Bookless v Smith
[2020] VSC 56
•21 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03899
| JOHN BOOKLESS | Appellant |
| v | |
| BYRON SMITH | Respondent |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2020 |
DATE OF JUDGMENT: | 21 February 2020 |
CASE MAY BE CITED AS: | Bookless v Smith |
MEDIUM NEUTRAL CITATION: | [2020] VSC 56 |
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ADMINISTRATIVE LAW – Appeal on a question of law from the Magistrates’ Court – Appeal by person convicted of sexual assaults – Identification evidence – Evidence of appellant’s good character – Adequacy of magistrate’s reasons – Whether open to find charges proven – Appeal allowed – Charges remitted for rehearing before another magistrate.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Lavery and Ms N Karapanagiotidis | David Gibbs & Associates |
| For the Respondent | Mr B Sonnett | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 1 August 2019, in the Magistrates’ Court at Melbourne, Magistrate Livingstone found proven against the appellant — a 69 year old retired school teacher of previously unblemished character — first, a charge of sexual assault of a child under the age of 16 years,[1] and, secondly, a charge of sexual assault.[2] The next day, 2 August 2019, the magistrate convicted the appellant, and sentenced him to a conditioned community correction order of two years’ duration. Each charge related to the appellant’s alleged sexual touching of two boys, ‘JT’ (aged 14) and ‘JG’ (aged 16), at a lookout platform at Point Leo near midnight on 31 December 2017.
[1]Crimes Act 1958, s 49D(1).
[2]Crimes Act 1958, s 40(1).
Pursuant to s 272 of the Criminal Procedure Act 2009, the appellant appealed to this Court on a question of law against the final orders of the Magistrates’ Court. The appellant’s two grounds contend that the magistrate erred in law:
1. … in finding that the Appellant had been identified as the same person who had touched the complainants near midnight on 31 December 2017/1 January 2018.
2. … in that she failed to give any reasons which would enable the Appellant to understand how it was that the Magistrate satisfied herself that he was the same person who had touched the complainants near midnight on 31 December 2107/1 January 2018.
For the reasons that follow, I consider that ground 2 has been made out. Accordingly, I will set aside the orders of the Magistrates’ Court made 2 August 2019, and remit the charges for hearing before another magistrate.
I would not, however, uphold the first ground. As will appear, the quality of the evidence available to found the prosecution case is dubious in a number of respects. I am unable to say, however, that — had she properly considered and analysed the available evidence — the magistrate could not have found the two charges against the appellant proven.
Summary of the evidence
Over four sitting days in the Magistrates’ Court, twenty witnesses gave evidence in the prosecution case, including the complainants JT and JG, and another child, FS (the evidence-in-chief of the three in each case being given by way of VARE[3]); and the appellant and a character witness, Brian Ridgeway, gave evidence in the defence case. Conveniently, a transcript was made of the proceeding, and was exhibited to an affidavit in support of the appellant’s case.[4] No issue was raised before me concerning the transcript’s accuracy.
[3]Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.
[4]Exhibit RJ-1 to the affidavit of Rachel Johnson, sworn 25 September 2019.
As I have mentioned, the incidents founding the two charges against the appellant occurred around midnight of New Year’s Eve 2017, when a number of people were on a lookout platform in the vicinity of the Point Leo Foreshore Reserve. JT and JG, and their friend, FS, aged 15 years, had gone to the platform for the purposes of viewing a midnight fireworks display taking place at Phillip Island.
JT’s version of events, contained in his VARE of 2 January 2018, was:
So we were just sitting there waiting for the fireworks for about 15 minutes earlier and then everyone started coming down. About two minutes before the fireworks this guy pushed up against my friend, like, really close and then, like, he grabbed my arse, my butt, yeah, and then he’s like, ‘Sorry for exciting you boys’. So we quickly watched the fireworks and just left and I went and told my parents.
He described the ‘guy’ as ‘old’ (60 or 65), ‘white’ haired, with ‘a bit of a beer gut’, wearing glasses and a black shirt.
In his VARE, also taken on 2 January 2018, JG described the crucial events as follows:
Well, me and my friend were down on the – I guess it’s a landing, like, I think it’s called that. We were waiting to see the fireworks go off, yeah, and, like, we were just standing there waiting, and then oh, we didn’t hear anything. And then I felt something touch me – oh, well, kind of rub up against me and then – I dunno, I kinda [sic] just turned around, and there was a man standing there and I just kind of moved back, I was scared. And then – anyway, it happened really – like, really quickly and he said – when it finished we – ‘Sorry to excite you boys’. And then he turned around and started kissing his wife and stuff – well, the girl he was with. … We kinda; like, just left it alone kinda, like, laughed it off I guess, what happened and we watched the fireworks for a bit, and then just left cause it was kinda, like, the last year, nothing really too exciting. I didn’t take much notice of what actually happened, I wasn’t really paying much attention, but – yeah, that was that was about it.
JG described the man as follows:
Oh, he had, like, kind of white hair and it stood up a bit, and he had glasses. I thought he had a bit of a beard, but it was a bit dark, and he was wearing kind of black clothes and all.
FS, in his VARE of 2 January 2018, said:
I was with two friends watching the fireworks over at Phillip Island and then there was about 10 of us on the landing platform and then an older 60 to 65 year old man came up sort of behind us, we didn’t really take too much notice of him, and then he squeezed one of my mate’s bum and then pushed up against my other mate next to me and then I was turned to them and then he said, ‘Sorry for exciting you boy’, which we all felt uncomfortable at that point, and then I said to my friend, ‘Well, let’s go, they’re the same as last year’, so we went.
And also:
I, yeah, saw this 60, 65 man walk up just casually, just thought nothing of it, and then there was around about 10 other people on there with us and then he – I didn’t actually see him squeeze or push up against [JT and JG].
FS described the man in the following way:
About six foot, white hair, he had those prescription glasses with the black wired things … and they were sort of straight on top and then they had a little bit of a semicircle on the bottom … Broad shoulders, bit of a beer gut, not too much though.
The principal issue before the magistrate was the identity of the person who sexually touched JT and JG. Remarkably, police carried out neither an identification parade nor a photo array in an attempt to have the three boys identify the appellant. As I understand it, the prosecution case was circumstantial, and sought to establish that the appellant was the assailant in the following way. The evidence revealed that, on 1 January 2018, after prompting by JT’s mother, JT, JG, FS and others rode around the Point Leo campsite to see if they could see the man who had carried out the sexual assaults.[5] They jointly purported to identify a male present at site 234 as that man. Since site 234 was booked in the name of the appellant and his wife, so the prosecution case proceeded, the appellant must have been the man who had touched the two complainants on the viewing platform.
[5]JT’s evidence was: ‘… Yes, spoke to my mum and then we went to [JG’s] camp and spoke to his parents. And our parents asked [us] to try and identify him’.
It is convenient at this point to observe that there was at least one feature of JT’s evidence which impinged significantly on the credibility and reliability of his evidence of identification. JT’s evidence was that he spoke to his mother and other parents on New Year’s Day, and they asked the boys to try and identify the man who had touched him. They found and ‘recognised the guy’ when he, FS, JG and JG’s father rode around the campsite on 1 January 2018.[6] They said to each other, ‘Yes. That’s the guy from last night’. After that, they ‘rode back and started writing [their] statements’ (to JT’s mother, ‘Sarah’). Very importantly, JT claimed to have seen the man at ‘his campsite’ the following Christmas holidays; that is, about a year later. (In re-examination, JT said the man ‘was getting into a car’, ‘in the car park across from his camp’.) It was conceded by the prosecution, however, that the appellant had not returned to the campsite after 1 January 2017, so that the man JT claimed to have seen a year after the crucial events could not have been the appellant. But as will be shown, the magistrate completely failed to explain how this aspect bore on her assessment of the credibility and reliability (or lack thereof) of JT’s evidence.
[6]JT gave evidence that four were present when they saw the man. He said he was with JG, FS and JG’s ‘dad’.
JG gave evidence that, on the morning following the events on the viewing platform, JT’s sister, ‘Emma’, ‘came down and she’s like, “I think I saw the guy up at the campsite …”’. They then went riding, and, when he looked to the right of the toilet block, ‘he was … just at a table with some friends’. JG’s evidence was, ‘We all said, “That’s him. That definitely looks like the man”’. (JG also gave evidence that JT’s mother, Sarah, had told him that the man was at the campsite a year later.)
FS gave evidence that JT’s mother, Sarah, took two statements from him. In the first, ‘she wrote things out and got [him] to sign it’, the second statement being ‘more formal’. After Sarah spoke to him, he went off riding with JT, JG, JG’s father[7] and JG’s sister.[8] The group rode past the campsite looking around. He said, ‘while we were riding looking around … [t]o see if we could spot him or see him, and I’m not sure who said it, but someone pointed out that it was him … And then we all sort of looked, and then we were like, “Yes, that’s him”’.
[7]JG’s father, ‘AG’, gave evidence, but said nothing of having ridden around the campsite in the manner suggested by FS.
[8]See [12] above. JG gave evidence that it was JT’s sister, Emma — that is, not his, JG’s sister — who was part of the group.
I pause at this juncture to note that, given the circumstances in which it was accomplished, little weight could have been attached to this evidence of ‘joint identification’. Self-evidently, there were grave risks of contamination, concoction and suggestibility. Moreover, JG’s evidence that it ‘looks like’ the man amounted to something considerably less than a positive identification.[9]
[9]See Pitkin v The Queen (1995) 130 ALR 35, 38 (Deane, Toohey and McHugh JJ).
JT’s mother, Sarah, gave evidence that as she was getting ready for bed after the fireworks on New Year’s Eve, JT told her, ‘Some man just grabbed my arse’, and also said that the man ‘rubbed up against [JG] as well’. Later that day, she had a meeting which involved ‘the three boys’, Emma and other adults, and they then sent a text message to ‘Tony’ (presumably Anthony Walkington, the manager of the Point Leo Foreshore Reserve campsite), who responded by calling them ‘almost immediately’. After they told Tony what had happened, he asked them ‘to write down descriptions’ and inquired whether they knew whom it was. Thereafter, Sarah ‘transcribed’ statements for the boys, including descriptions. Police attended at about 10.30 pm, following a call from Tony. In cross-examination, Sarah agreed that the next summer holidays a year later, JT’s father, Cameron, told her that JT had seen the man who had sexually assaulted him. As a result, she rang the police.[10]
[10]See [19] below.
Anthony Walkington, the campsite manager, gave evidence that, on 1 January 2018, JT’s mother told him of ‘an incident that had occurred at the lookout’ involving her son and JG. He asked that they write statements. As a result of something the children said, he spoke to the appellant at 8.50 pm. He also called the police, who came and spoke to the children. The next day, police spoke to the appellant in the campsite office. Mr Walkington produced booking records for the Point Leo Foreshore Reserve, Exhibit G, which showed that site number 234 was booked to John and Val Bookless for the period between 30 December 2017 and 13 January 2018.
Valerie Bookless, the appellant’s wife, gave evidence that on New Year’s Eve 2017 she and her husband occupied site number 234. She and her husband ate dinner with family, her husband drinking a bottle of red wine. Just before midnight, they all went to the viewing platform to watch the fireworks. When the fireworks concluded, she and her husband ‘kissed and cuddled each other’. She produced two photographs, Exhibit F, taken at 8.31 pm on 31 December 2017, which depicted her husband. Under cross-examination, Mrs Bookless said that her husband of 49 years was decent, reliable, trustworthy and moral. She also gave evidence that, although she stayed at the campsite the next summer holidays a year later, the appellant did not. He abided by bail conditions which prevented him from attending.
A number of other witnesses, whose evidence it is unnecessary to recount in any detail, gave evidence that they attended the viewing platform and observed no sexual assault perpetrated by the appellant. Several prosecution witnesses also attested to the appellant’s good character. And as I have mentioned, a defence witness, Brian Ridgeway, who had known the appellant since 1983, and had worked at the same school with him as a teacher for 12 years, gave character evidence, describing the appellant as an honest, moral individual who had a reputation ’as a decent person who’s committed to his family and to the community’.
The informant, Detective Senior Constable Byron Smith, gave evidence concerning the police investigation, and produced the record of interview he conducted with the appellant on 3 January 2018. During cross-examination by defence counsel, it became clear that Detective Smith had failed to disclose a matter that reflected adversely upon JT’s credibility and reliability. Detective Smith said that in December 2018 he received a report that the appellant had returned to the Point Leo campsite — other evidence suggested that the report came from JT’s mother — and, as a result, police searched the campsite and caravan occupied by Valerie Bookless. Other police also attended the appellant’s home address and located him there, so much establishing that the appellant could not have been observed at the campsite as alleged. Detective Smith endeavoured to explain the breach of his ongoing duty of disclosure by saying it was simply an ‘omission’ on his part, adding that he could ‘see the value of all parties being aware of it’.
Although he agreed that he went to the viewing platform on New Year’s Eve 2017, in his record of interview the appellant denied that he had sexually interfered with any boys. The appellant also gave sworn evidence denying that he touched anyone on the platform. He was cross-examined by the prosecutor — including to establish that his appearance generally fitted the descriptions given by JT, JG and FS — but steadfastly denied that he had sexually assaulted the two boys. I can see nothing in the prosecutor’s cross-examination of the appellant that properly could have had an adverse impact on his credibility.
There are two final matters arising from the evidence which I should mention. First, apart from evidence of ‘opportunity’ — the appellant (and other witnesses) agreed that he had been present on the viewing platform on New Year’s Eve — the prosecution relied on the assertion that the appellant’s appearance fitted generally the description of the male who had assaulted the two complainants. There was little attempt made, however, to elicit detailed descriptions of those present on the platform[11] (and there was substantial variation between witnesses as to the number of people on the platform).[12] Secondly, there was evidence that a substantial number of different people attended the appellant’s campsite, site 237, at proximate times. There was no attempt, however, to establish who was present at the appellant’s campsite when the joint identification was made by JT, JG and FS.[13] Indeed, it seems simply to have been assumed that the appellant was present when the identification was made (and was the only person present whose appearance fitted the description that had been given of the alleged offender), that assumption apparently being based on the fact that the site was rented to the appellant and his wife.
[11]By way of example, the prosecutor asked one witness who had been on the platform, Jeremy Lai, ‘Did you make any observations of any of the other people?’, eliciting the response: ‘It was that dark. No. I could hear voices, but it’s not somewhere where you could sort of see a face’.
[12]For example, FS gave evidence that there were ‘about 10 other people’ on the platform, whereas another prosecution witness, Joelle Katherine, said there may have been ‘as many as thirty’.
[13]Both JT and FS agreed that there were other people present at the campsite apart from the man they identified.
Failure to provide adequate reasons
It is convenient to turn first to ground 2, which complains that the magistrate failed to provide adequate reasons for her decision. As I have indicated, I consider that this ground is made out.
In Ta v Thompson,[14] I observed that almost a century ago, in Donovan v Edwards,[15] Irvine CJ lamented the failure of justices in the Court of Petty Sessions to provide adequate reasons for their decision. He said:
This case is another instance of the embarrassment which is caused to the Court, by the refusal of justices to give reasons for their decisions … I have to repeat again that, in the exercise of their judicial functions, justices are not exempt from the duty which attaches to every judicial officer to state, to the best of his, ability, the facts he finds, and the reasons for his decision. The result here is that the justices have made an order leaving it entirely uncertain on what grounds, and on what findings of fact, that order is based.
[14](2013) 46 VR 10, 22–3 [64].
[15][1922] VLR 87, 88.
There can be no doubt that magistrates have a duty to give adequate reasons for their decisions — so much is an ordinary incident of the judicial function — the nature and content of those reasons being dictated by the evidence and issues raised in the particular case. In a proceeding such as the present, however, it is not sufficient for a magistrate simply to set out the evidence adduced by one party, and then assert that, having considered the evidence, he or she finds the charges proven, let alone wholly fail to refer to and consider the evidence adduced by the defence on critical issues. Among other things, it is necessary that a magistrate’s reasons be adequate to enable this court exercising an appellate function to determine whether there was a satisfactory basis for his or her decision. The reasons need to explain the magistrate’s process of reasoning and to state the basis of the judgment sufficiently to enable this court to see whether the decision did or did not involve an error of law. The discipline of having to give reasons is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.[16]
[16]See AK v Western Australia (2008) 232 CLR 438, 481 [108] (Heydon J).
In Beale v Government Insurance Office of NSW,[17] Meagher JA observed:[18]
It is well-settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given: Pettitt v Dunkley [1971] 1 NSWLR 376. That obligation arises as a matter of judicial duty: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; but only as a normal, not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. It does not arise from legislation as it does in the field of administrative law: see, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13; Administrative Appeals Tribunal Act (Cth) 1975, ss 28, 37 and 43.
[17](1997) 48 NSWLR 430.
[18]Ibid 441.
Meagher JA also said:[19]
[19]Ibid 442–4.
Just as the requirement to provide reasons depends on the particular matter, so too the content of the reasons depends on the particular circumstances of the matter being considered by the court. As Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
‘… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.’
Similarly, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, McHugh JA, as he then was, said:
‘In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff’s credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough.’
It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related ‘… to the function to be served by the giving of reasons’. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
As I will explain, the magistrate’s reasons in this case did not meet these requirements. Thus, although she referred to much of the evidence in the prosecution case and the issues raised by it, the magistrate failed altogether to identify the basis of her ultimate conclusions by reference to relevant considerations flowing from the evidence. Moreover, she wholly failed to refer to the evidence adduced by the appellant — including as to his good character — and explain how she was seemingly able to discount it completely. As was observed by Sholl J in Sandhurst and Northern District Trustees Executors & Agency Co Ltd v Auldridge:[20]
The true principle, I think, must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to the matter not having been considered as it should have been, the appellate tribunal may properly draw that inference, and the magistrate will have no cause to complain if it does so.
[20][1952] VLR 488, 496.
Magistrate Livingstone’s reasons were, as counsel for the respondent realistically conceded, ‘tissue’ or ‘wafer’ thin. When they are considered in full — against the issues raised by the evidence — their inadequacy is plain. Her Honour said:
HER HONOUR: Sorry it has taken me so long.[[21]] There’s quite a bit in the submissions. I won’t go over them. Both sides have been helpful. Clearly, there were these issues in the case and a lot of time spent on establishing, or trying to establish, things about the conditions, visibility, number of people on the platform that night and a lot of focus on the inconsistencies. There is, of course, the matter of the purported identification. It was completely wrong one year later. There’s the matter of the investigation of that and of the late notification of that to the defence, which is unfair. There is the matter of the, no doubt, well-meaning meddling and putting the children together for the statements, which is a formula for causing contamination, on one view.
Did it contaminate the evidence here? The documents, to the extent inconsistent, are the work of the adult intervention in the matter. It should never have been done that way. So weighing up the evidence, these boys give very clear and consistent evidence as to what occurred on the platform: the acts in relation to James; the acts in relation to [JG]; and the words used by the accused. And they did have opportunity to see him. There was discussion about whether he was at the side of [JT] and the motion of elbowing but none of this discussion throws any doubt on what occurred. Having been elbowed, he stood back a bit and then the act in relation to [JG] occurred.
The boys don’t really remember what they said to each other at that time and, to the extent that [JT] said things, he thinks the others didn’t hear. But they did report to their parents. Then there’s the issue of the fact they’ve identified – they’ve seen the accused and they are able to describe him with consistency and they saw his wife. And then there’s the bike riding identification. Again, there’s some problems with doing it this way and [defence counsel] rightly raises, well, who identified first and was it just a contaminated identification. It is what it is. They were together and if you look at the evidence ..... of [JG], he says, ‘Well, I said it first. We all said it’. The boys all said that they said, ‘That’s him’ and they were seeing him with his wife, who they recognised.
There were some words about, ‘It looks like the man’, but it’s not one of those cases where that’s all they said, ‘It looks like the man’. That was, more or less, an elaboration on their basic words of, ‘It is the man’. I’ve looked at all of the evidence together and I’ve directed myself based on the very helpful submissions. And I have no doubt – and the case is proven beyond a reasonable doubt and I propose to sentence in relation to charges 1 and 2, and I imagine the prosecution would withdraw charge 3.[[22]]
[21]The magistrate heard oral submissions in the morning, then adjourned until 2.00 pm for decision.
[22]Charge 3 was behaving in an indecent manner in a public place.
Having noted that there were a number of issues in the case, her Honour turned to what she termed ‘the purported identification’ — her use of language carrying the connotation that the evidence may simply have masqueraded as identification evidence — before observing that the purported identification ‘was completely wrong one year later’, this apparently being a reference to JT’s claim that he saw the man who sexually assaulted him at the campsite 12 months after the assault. Nowhere, however, does the magistrate attempt any analysis of the manner in which JT’s purported identification a year after the event may have influenced her assessment of the weight (or lack of weight) to be afforded to the crucial aspects of his evidence. Plainly, the evidence of the later purported identification was of the utmost importance. If JT’s identification of his assailant 12 months after the assault was accurate, it necessarily follows that the appellant was wrongly accused (and, ultimately, wrongly convicted). At the very least, JT’s later purported identification should have caused any reasonable fact-finder to closely scrutinise his evidence.
The magistrate then reflected on the unfairness of the lack of disclosure by police of JT’s later purported identification, and ‘the late notification’ to the defence, without any assessment of the relevance that may have had to the resolution of the disputed issues.
Next, the magistrate turned to the question of contamination. She asked herself whether the ‘well-meaning meddling and putting the children together for the statements’, which ‘on one view’, ‘is a formula for causing contamination’, contaminated the evidence. She observed that the statements of the boys ‘should never have been done that way’, and, to the extent that they are ‘inconsistent’, ‘are the work of the adult intervention’. Her Honour did not, however, answer the question that she posed for herself. It would have been obvious to any reasonable fact-finder that the risk of contamination of the identification evidence was substantial. Nowhere, however, did the magistrate attempt any analysis of how she was able to rely on the evidence notwithstanding the palpable risk of the evidence of JT, JG and FS having been contaminated by each other (and others), and in the course of the ‘well-meaning meddling’. Given the importance of the risk of contamination to the resolution of the case, some analysis was required. Indeed, I consider that, given the circumstances in which the identification was in the first place attempted, coupled with the meddling by JT’s mother, the risk of contamination was extremely high, and the evidence lacked weight. In any proper investigation, the three boys should have been separated, and their accounts separately taken, so as to avoid any risk of contamination. Moreover, in any proper investigation, it could be expected that police would have attempted an identification parade, or, failing that, photographic identification. That, of course, was not done. The magistrate needed to warn herself of the risks of mistaken identification, including that a number of witnesses may be mistaken, and that mistaken identification evidence has resulted in innocent people being convicted.[23] She does not appear to have done so.
[23]See Jury Directions Act 2015, s 36(3) and s 4A(1)(a).
Further alluding (apparently) to the issue of contamination, the magistrate said that ‘then there’s the bike riding identification’. She observed that, ‘Again, there’s some problems with doing it this way and [defence counsel] rightly raises, well, who identified first and was it just a contaminated identification’. Somewhat cryptically — and, it must be said, unhelpfully — her Honour remarked, ‘It is what it is’. I am unable to determine what this last remark was intended to convey, save that it may simply have been an acknowledgment that the identification evidence was permeated with ‘problems’, including the risk of ‘contamination’.
The closest that the magistrate came to any analysis is to be found immediately before she announced her satisfaction beyond reasonable doubt, when she said, ‘ I’ve looked at all of the evidence together and I’ve directed myself based on the very helpful submissions’. This bald assertion, however, cannot substitute for proper analysis. At the risk of repetition, nowhere does the magistrate expose the path of reasoning which enabled her to accept the identification evidence despite its apparent lack of probative value.
Moreover, and very significantly, the appellant is — as a number of witnesses testified — a man of positive good character. He gave evidence in his own defence denying the conduct alleged against him. The evidence of good character went not only on the unlikelihood of the appellant’s guilt, but also the credibility of his denial of guilt.[24] He was entitled to have his good character properly weighed and assessed by the magistrate; and, if the credibility of his denials was capable of being put to one side despite his good character, so that the magistrate was capable of finding the charges proven despite that good character, the magistrate was required to provide sound reasons explaining how she was able to find the charges proven in the face of that evidence (particularly given the obvious flaws in the prosecution’s case).
[24]See Evidence Act 2008, s 110; Attwood v The Queen (1960) 102 CLR 353, 359; R v Warasta (1991) 54 A Crim R 351, 354; Bishop v The Queen (2013) 39 VR 642, 651 [36].
In light of the foregoing, ground 2 has been made out. The magistrate failed to give proper reasons, so that her decision cannot be permitted to stand.
I should say finally that I am not much attracted to the notion that, in some circumstances, the availability of a de novo appeal may to some extent excuse a magistrate’s insufficient reasons.[25] The logic of that view escapes me. To my mind the availability of an appeal to the Supreme Court on a question of law seems to point in the opposite direction. I need to say no more about it, however, since it was not submitted that the availability of a de novo appeal had any relevance to the resolution of the instant case.
[25]See Perkins v County Court of Victoria (2000) 2 VR 246, 270–1 [56]; Makeham v Sheppard [2019] VSC 749, [88]–[91].
Were the convictions open on the evidence?
As I have discussed, the identification evidence is infected by a number of frailties and defects, including (but not limited to) the very substantial risk of contamination and JT’s erroneous identification a year after the crucial events. Were I the tribunal of fact, I would afford the evidence scant weight. To my mind, although the evidence of identification may be admissible as a matter of law,[26] given its genesis, its probative value is low (and would be so viewed by any reasonable fact-finder).
[26]See Dickman v The Queen (2017) 261 CLR 601, 614–5 [43]–[44].
Moreover, the appellant, a man of good character, has denied the assaults on oath, in circumstances in which the complainants’ claims are not supported by the evidence of any of those also present on the viewing platform.
That said, I consider that it may theoretically be possible for a magistrate — properly scrutinising the evidence and properly directing himself or herself — to accept the evidence of identification (notwithstanding the weaknesses and imperfections with which the evidence is fraught), and to reject the sworn evidence of the appellant and his denials in the record of interview (notwithstanding the solid obstacles in the path of so doing).
In those circumstances, I have no option but to remit the matter for rehearing before another magistrate, whom, it may be expected, will properly scrutinise the evidence, and will provide adequate reasons for his or her ultimate decision.
Costs
The respondent argued that, should the appellant succeed only on ground 2, he should be denied costs. In support of that submission, counsel for the respondent contended that the appellant’s counsel in the Magistrates’ Court should have asked the magistrate for further reasons.[27]
[27]Ta v Thompson (2013) 46 VR 10, 26 [83] (Beach JA).
Although I acknowledge that it might theoretically have been possible for counsel to have asked for further reasons, I consider that it would have been an arid exercise. The reasons that were given were so glaringly deficient that it is unrealistic to think that they could have been adequately supplemented following a request by counsel.
The appellant had complete success on ground 2; and, although he did not succeed on the first ground, I could not say that the ground was wholly without substance.
Given these circumstances, the appellant should have the costs of the appeal. The costs of the hearing in the Magistrates’ Court should be determined by the magistrate on the rehearing.
Conclusion
The appeal will be allowed; the final orders of the Magistrates’ Court made 2 August 2019 will be set aside; and the matter will be remitted for rehearing before another magistrate. I will order that the Chief Commissioner of Police pay the appellant’s costs of the appeal.
I will hear the parties on any consequential orders
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