Boyle (a Pseudonym) v The Queen
[2022] SASCA 50
•9 June 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
BOYLE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 50
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
9 June 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
The applicant, an Uber driver, was convicted of two counts of indecent assault. The offending occurred on two separate occasions, against two different and unrelated female passengers.
Trial was conducted in the Magistrates Court. Both complainants gave evidence that once the Uber vehicle had reached their respective destinations, the applicant pulled them towards him and touched them on the breast. The applicant appealed before a Single Judge of Appeal: all grounds of appeal were dismissed.
The applicant now seeks permission to appeal to the Court of Appeal on four grounds: that the Single Judge of Appeal erred in finding that the Magistrate's misuse of inadmissible complaint evidence did not enhance nor affect the Magistrate's assessment of the complainants' evidence, that the Single Judge of Appeal erred in failing to find that the Magistrates Court trial had miscarried due to the Magistrate's wrongful admission and use of, inadmissible out of court statements, that the Magistrate's reasons are inadequate and finally, that it was not open to the Magistrate to find the offences proved beyond reasonable doubt.
Held, by the Court, granting permission to appeal on Grounds 1 and 2 allowing the appeal on those grounds and remitting the matter to the Magistrates Court for hearing before a different Magistrate:
1.The Magistrate admitted inadmissible complaint evidence and used that evidence for an inadmissible hearsay purpose. The Single Judge of Appeal erred in finding that such erroneous admission and use of the complaint evidence by the Magistrate did not enhance nor affect his assessment of the evidence at trial.
2.The Magistrate's use of the fact and timing of an out of court statement to boost the credibility of the second complainant and reject part of the applicant's evidence was impermissible. The Single Judge of Appeal erred in failing to find that the trial has miscarried as a result.
3.The Magistrate's reasons adequately dealt with the inconsistencies arising on the evidence.
4.Despite the inconsistencies, the evidence before the Magistrate was nevertheless capable of proving the offences to the requisite standard.
Criminal Law Consolidation Act 1935 (SA) s 56(1); Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 34M; Magistrates Court Act 1991 (SA) s 42, referred to.
Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53; Bristow v The Queen (2020) 137 SASR 449; Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; DL v The Queen (2018) 266 CLR 1; Fleming v The Queen (1998) 197 CLR 250; Fox v Percy (2003) 214 CLR 118; JGS v The Queen [2020] SASCFC 48; Kalbasi v Western Australia (2018) 264 CLR 62; Le Cornu v Thomas [2019] SASCFC 154; Lee v Lee (2019) 266 CLR 129; MM v Police [2021] SASC 1; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Police v Cadd (1997) 69 SASR 150; R v Anderson (2017) 128 SASR 550; R v Blayney [2001] SASC 211; R v H, T (2010) 108 SASR 86; R v Hendrie (1985) 37 SASR 581; R v Hissey (1973) 6 SASR 280; R v J, JA (2009) 105 SASR 563; R v Jones [2018] SASCFC 80; R v Keyte (2000) 78 SASR 68; R v P, S [2016] SASCFC 97; R v Rendell (2018) 131 SASR 201; R v Ricciardi (2017) 128 SASR 571; R v Usher (2014) 119 SASR 22; Sharman v Thomas [2020] SASCFC 52; Spurway v Police [2011] SASC 177; Wade v Australian Railway Historical Society (2000) 77 SASR 221, considered.
BOYLE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 50Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA
THE COURT: The applicant, an Uber driver, was charged in the Adelaide Magistrates Court with two counts of indecent assault.[1] After a lengthy trial, the applicant was convicted of both charges. The conduct giving rise to the offending occurred on two separate occasions, approximately six weeks apart, involving two different and unrelated women. On each occasion, the complainants were passengers in the applicant’s motor vehicle. The nature of the assault was, on each occasion, non-consensual touching of the complainants at the end of their respective journeys. The prosecution case depended upon the evidence of each complainant, supported by evidence of the immediate complaints made to a friend and boyfriend, respectively.
[1] Contrary to the Criminal Law Consolidation Act 1935 (SA) s 56(1).
The applicant denied the offending behaviour; he gave evidence at trial. In relation to the first count, the applicant denied touching the complainant, TW, in any way. In relation to the second count, the applicant denied that the touching of the complainant, LT, was non-consensual.
Procedural history
The two counts of indecent assault were originally laid on separate Informations in the Magistrates Court. As the complainants were unknown to each other, the applicant objected to a fresh Information being laid joining the two charges. The Magistrate considered it appropriate for the charges to be tried together on the basis that the evidence on each count was cross-admissible.
Due to a number of delays, the reasons for which are explained in the Magistrate’s reasons, the trial proceeded over a period of 18 months. The complainants each gave evidence, as did the friend of TW; TA, and the boyfriend of LT; DC. The applicant himself gave evidence. The applicant was found guilty of both counts. The Magistrate gave detailed reasons for his findings.
Appeal to a Single Judge of Appeal
The applicant appealed the convictions, agitating eight grounds of appeal. The Single Judge of Appeal (“Single Judge”) dismissed all grounds of appeal.
Appeal to Court of Appeal
The applicant now seeks to appeal the convictions to the Court of Appeal on three of the eight original grounds of appeal. The question of permission to appeal was referred to the Court of Appeal on all grounds. At the close of submissions on appeal, the applicant was granted permission to file a further ground of appeal. Thus, the applicant agitates four grounds of appeal as follows:
1.the Single Judge erred in finding that the Magistrate’s misuse of inadmissible complaint evidence did not enhance nor affect the Magistrate’s assessment of the evidence of the complainants;
2.the Single Judge erred in failing to find that the Magistrates Court trial miscarried because of the wrongful admission of, or use by the Magistrate, of irrelevant and/ or inadmissible out of court statements;
3.the Magistrate’s reasons are inadequate more generally, having particular regard to the Magistrate’s failure to address and resolve numerous conflicts in the evidence and other shortcomings in the accounts of TW and LT; and
4.on an independent review of the evidence, but mindful of the advantage the Magistrate had in seeing the witnesses give evidence, it was not open to the Magistrate to find the offences proved beyond reasonable doubt.
Background
The Magistrate found the applicant guilty on both counts. He gave lengthy reasons for his decision and the rulings he made on the evidence. The Magistrate found that the prosecution proved beyond reasonable doubt that both TW and LT were giving truthful and accurate evidence, and he disbelieved, even as reasonably possibly true, the version given by the applicant. He found that the evidence, which he accepted beyond reasonable doubt, clearly made out both charges. In the course of his reasons, the Magistrate dealt with the complaint evidence relating to both charges.
The main issues on this appeal relate to the Magistrate’s rulings on, and the use he made of, the evidence of complaint, as well as his discussion and reasoning in relation to the topic of the alleged inconsistencies in the evidence of both complainants.
In order to deal with the grounds of appeal from the Single Judge, it is necessary to consider the manner in which the Magistrate dealt with the evidence of complaint.
First charge
The first alleged indecent assault occurred in the early hours of 9 January 2017. Through the Uber application (“Uber app”) on her mobile phone, TW booked an Uber vehicle to collect her and TA from their location in Hindley Street, Adelaide. The Uber vehicle, driven by the applicant in the course of his employment as an Uber driver, arrived to collect TW and TA. An agreement was made that TW would pay the applicant $60 cash for the ride, instead of paying through her Uber app; the booking was subsequently cancelled. TW sat in the front passenger seat of the vehicle; TA sat in the rear passenger seat. Their destination was a residence in Hackham West.
TW gave evidence that during the journey, the applicant stopped the car because TA was smoking. The applicant asked TA for $20, assumed to be a penalty for smoking in his car. The applicant gave evidence that he stopped the car twice: the first time in response to TA asking him if he wanted to have a “happy time”, the second time in relation to the smoking incident. TW denied the former occasion.
Upon arrival at their destination, TA got out of the car and entered the house. TW remained in the car. TW gave evidence that the applicant asked her if she wanted to “go around the corner”. TW took this comment as the applicant wanting to engage in some form of sexual activity. TW stated that the applicant then pulled her toward him, grabbing her jumper and pants. It was the prosecution case that the applicant pulled TW toward him and placed a hand on her right breast and a hand on top of her right leg in her groin area. The applicant denied touching TW in any way.
TA gave evidence that immediately after the incident, TW complained to her of the indecent assault, saying: “He grabbed me on the boob and inner thigh”. TA further described TW as distressed and crying when she got out of the car. TW made reports to both the police and Uber. The complaint to Uber was made via a message on her Uber app that “he touched my crotch and chest after telling my friend to get out”. Later that day, TW gave a statement to an Uber representative and the police. Evidence of the conversations with representatives of Uber was led as elaboration of the initial complaint to TA.
Second charge
On 19 February 2017, at around 3.00 am, the applicant was working as an Uber driver. He picked up LT from Bank Street, Adelaide. LT tried to get in the backseat of the car but the door would not open, so she sat in the front passenger seat. Her destination was her boyfriend, DC’s, residence in Rosslyn Park. LT gave evidence that she and the applicant engaged in uncontroversial conversation during the journey.
The applicant stopped the car in the street of LT’s destination, a few houses down from her boyfriend’s residence. LT gave evidence that as she was getting out of the car, the applicant told her to put his phone number in her phone so that she could call him if she needed a ride again. LT allowed him to put his number in her phone. The applicant then said he needed her phone number, which LT considered to be a strange request. LT entered a false number into the applicant’s phone, which the applicant then called and found to be incorrect. On LT’s evidence, the applicant again gave her his phone to put in the correct number, which she did, as she was beginning to feel concerned. The applicant was alleged to have then said he wanted a kiss and pulled LT toward him into a hug. LT gave evidence that the applicant repeatedly asked for a kiss, to which she would reply “no”, while still seated and feeling frozen. On LT’s evidence, the applicant then forcefully pulled LT towards him and placed one of his hands on her breast.
LT gave evidence that she pushed the applicant off of her and got out of the car. LT called DC and asked him to meet her at the front door. Upon entering the house, LT complained to DC that she had been touched inappropriately. DC used LT’s phone to report the incident to Uber on behalf of LT via a message through her app, stating that “my Uber driver groped me”. Later that day, an Uber representative spoke to LT on the telephone. This evidence was led as complaint evidence. DC phoned the applicant, whose number was in LT’s phone, regarding the alleged offending. A report was also made to police the following day.
Applicant’s case
The applicant’s defence was that the complainants had independently fabricated the allegations and/ or, that as a result of their intoxicated state on the evening of the alleged offending, they had misinterpreted, misremembered and otherwise generally reconstructed the relevant events. The applicant gave evidence in his defence and called character witnesses.
In relation to TW and Count 1, the applicant denied touching her in any way. He said that in the context of seeking a cleaning fee from TW and TA for chewing gum smeared on his seat and jacket by TA, TW essentially propositioned him, claiming to be a sex worker and showing him photographs of her lying on a pool table naked, but with snooker balls covering her genitals and breasts.
As to Count 2, the applicant denied touching LT’s breasts or forcing her to hug him. He said, rather, that LT had tried to smoke a cigarette in the car (which, despite her denials, was captured on CCTV footage). The applicant suggested she may be fined by Uber for doing so. On the applicant’s evidence, LT asked him to forgive her, and, in that context, had suggested they shake hands and then hug. She gave him a “faux” kiss on the cheek before getting out of the vehicle.
The applicant submitted that there were substantial inconsistencies in the accounts of TW and LT, both internally, and when compared with other evidence led at trial. The applicant submitted that the number and nature of the inconsistencies should have led the Magistrate to have a reasonable doubt about their reliability and credibility.
The applicant’s case also included challenges to other elements of the offences, including whether the touching of TW’s breast was deliberate or otherwise occurred in circumstances involving, at least, a reasonable possibility that the applicant might have thought she was consenting to physical contact; and, in relation to LT, whether there was a reasonable possibility that any touching of LT’s breast might have been thought by the applicant to be consensual.
Complaint evidence
It is convenient to deal with appeal Grounds 1 and 2 together.
While the operation of s 34M of the Evidence Act 1929 (SA) (“the Act”) has been considered by this Court in many cases, the issues raised on this appeal require the fundamental principles of complaint evidence to be revisited. Section 34M provides:
34M—Evidence relating to complaint in sexual cases
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Section 34M(1) of the Act abolished the common law in relation to evidence of complaint and replaced it with a statutory regime. The approach to the admissibility of complaint evidence has been discussed in depth in recent cases.[2] In R v Jones (“Jones”) the Court observed:[3]
In R v P, S, this Court highlighted the importance of counsel considering the admissibility of complaint evidence before the empanelment of the jury. Nicholson and Lovell JJ (with whom Parker J agreed), in summarising the general principles relating to complaint evidence, said:
Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved. It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. Complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”. However, what was said must encompass generally the conduct alleged in a particular count. In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.
Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.
(citations omitted)
[2] For example, R v S, DD (2010) 109 SASR 46, R v Maiolo (No 2) (2013) 117 SASR 1, R v Maiolo (No 3) [2014] SASCFC 89, R v Place (2015) 124 SASR 467; R v Jones [2018] SASCFC 80; R v Van Wyk (2018) 132 SASR 46.
[3] [2018] SASCFC 80 at [75].
While complaint evidence is not admitted as evidence of the truth of what is stated, that is, it is not probative of a fact in issue or a fact going to a fact in issue, it remains important evidence from the prosecution perspective. The purpose and relevance of complaint evidence in a prosecution case is to “boost” the credibility of a complainant. As Kourakis J (as his Honour then was) explained in R v H, T:[4]
The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak, of its occurrence.
[4] (2010) 108 SASR 86 at [106].
As Duggan J observed in R v J, JA,[5] consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency between the wording of the complaint and the conduct alleged.
[5] (2009) 105 SASR 563 at [95].
Complaint evidence is one of a limited number of exceptions to the rule prohibiting proof of prior out of court consistent statements.[6] In general terms, a party may not call evidence supporting the credibility of a witness called by that party. To put that another way, a witness may not be asked in evidence in chief whether he or she has made a statement, outside of the court hearing, consistent with their present testimony. It is sometimes called the ‘rule against narrative’ or ‘the rule against self-corroboration’. The witness cannot narrate such a statement if it was oral or refer to it if it was in writing and other witnesses may not be called to prove it. This rule exists independently of the rule against hearsay.
[6] Other exceptions include a consistent statement made contemporaneously with the events to which they refer, admitted as part of the res gestae, and previous statements admitted to rebut the suggestion that a witness’ evidence was an afterthought (recent invention).
Also, s 34M of the Act expanded the circumstances in which complaints are potentially admissible beyond the contemporaneity and spontaneity required by the common law.[7] As Kourakis CJ observed in R v Rendell:[8]
The common law, because of what is now known to have been an unjustified institutional suspicion of complaints of sexual offending, required spontaneity as a condition of admissibility. The reluctance of victims of sexual abuse, particularly children, to make a complaint is now a notorious fact. The common law rule is now known to have no basis in the dynamics of sexual abuse.
[7] R v Usher (2014) 119 SASR 22 at [48].
[8] (2018) 131 SASR 201 at [53].
Complaint evidence is now more readily admissible than at common law. Further, the terms of s 34M of the Act now immunise a complainant from critical comments from defence counsel or the trial judge about any delay in the making of a complaint. The significance of any delay is simply left to the jury to evaluate without comment from counsel or judge.
“Complaint” is not defined in the Act. Precisely what detail may be elicited by way of an initial complaint, or an elaboration of an initial complaint, will depend on the circumstances of the case. While the evidence must be referrable to the charge or charges, the controlling criteria for the amount of detail of a complaint are found in the examples in s 34M(3) and also in ss 34M(4)(a) and (b) of the Act. When admitting complaint evidence, the court must allow sufficient detail for the jury to carry out their task. However, the initial complaint (or the elaboration) should not be used as an opportunity for witnesses to elaborate, in detail, the circumstances of that which led up to the incident, how they dealt with the incident, nor other background material. To illustrate that point, if the initial complaint was to a police officer, who took a full statement from the complainant the day of or shortly after the alleged incident, it would not be appropriate to allow the full statement to be given as initial complaint evidence. That said, complaint evidence should not be restricted such that it deprives the jury of its proper context.
In many cases involving allegations of sexual misconduct, the prosecution case will only involve the evidence of the complainant, his or her evidence of complaint and the person to whom the complaint was made. In such circumstances, the value of complaint evidence in ‘boosting’ the credibility of the complainant should not be underestimated. Counsel and the trial judge should bear in mind the principles discussed in Jones and R v P, S,[9] quoted earlier.
[9] [2016] SASCFC 97.
Before turning to the grounds of appeal arising from the findings of the Single Judge, it is necessary to consider how the Magistrate dealt with the question of complaint evidence at trial.
Evidence of complaint on the first count
The prosecution led evidence that TW complained to TA shortly after getting out of the applicant’s car. That evidence came from TA only, as while TW said in evidence in chief that she reported the incident to Uber, she made no mention of speaking to TA about the incident.
TA gave evidence that she saw TW get out of the Uber “quite distressed” and in tears. TW walked inside and said, “[h]e grabbed me on the boobs and inner thigh”. There was no dispute on appeal that this evidence was admissible pursuant to s 34M of the Act.
However, the Magistrate also admitted a document generated by Uber that recorded a message sent from TW’s phone at 2.23 am on 9 January 2017. It recorded that “[h]e touched my crotch and chest after telling my friend to get out”. The message was sent by TA using TW’s mobile phone, not TW. Further, the Magistrate admitted TW’s evidence of a conversation, which was recorded, between herself and a representative of Uber. This contained a lengthy narrative of events unrelated to the question of complaint. It included an allegation that the applicant had blackmailed TW over payment of an amount of money for cleaning his car. The only part of this conversation that could be considered complaint evidence, albeit not initial complaint, was TW’s allegation that the applicant had groped her on the “boob” and “went to pull on [her] crotch”.
Evidence of complaint on the second count
LT gave evidence that she told DC “what had just happened in the car”.
DC stated that LT told him that the applicant “grabbed her boob and then after that tried to kiss her”. However, he also added:
… she said that when she went to get in the cab the Uber sorry she went to get in the front seat – sorry the back seat and he said sorry the back doors aren’t working something’s wrong with the car. So then she got in the front and then she said when she got to my place that he asked for her number and when he asked for her number she gave him a false number which wasn’t the correct number and then he called her straight away and said that’s not your number. Obviously he knew that she would most likely not give her his number [sic] and proceeded to do the check. She didn’t know what to do she panicked and she gave her real number then she went to get out the car and the guy he asked can I have a hug and she said ‘No’ and then he proceeded to ask her if he could have a hug. She told me she was scared because she wouldn’t know what would happen if she didn’t co-operate. She went to get out the car … but the car was actually locked and she gave him a hug and when she was giving a hug she [sic] grabbed her boob and then after that tried to kiss her. She liked [sic] pushed him off and then got out the car.
Again, the Magistrate allowed a lengthy narrative of events to form part of the complaint evidence. The lengthy narrative of events was not admissible.
The Magistrate also admitted as complaint evidence a message sent on LT’s mobile telephone to Uber, via her Uber app. The message stated: “My Uber driver groped me”. The evidence at trial was clear that it was DC who sent this message, not LT. LT’s evidence was that she thought describing the incident in those terms “made it sound incorrect”. The Magistrate also admitted the subsequent telephone conversation that LT had with an Uber representative on 19 February 2017 which also consisted of a reasonably lengthy narrative of events, including: “The driver like gave me a hug and was like grabbing my boob and trying to make me kiss him”.
On appeal before the Single Judge, the prosecution conceded that much of the evidence admitted as complaint evidence was, in fact, not admissible pursuant to s 34M of the Act. It is necessary to consider the Magistrate’s reasons for admitting the evidence.
When discussing the Uber evidence as part of the prosecution case, the Magistrate stated:
Ms Ballans led evidence of the message of complaint left by T.W. on the Uber app and the follow up phone call with the Uber representative and played the recording of the call made and a [sic] provided a transcript of the recorded calls as an aide memoire. The recorded call was tendered without objection. It’s clearly admissible as evidence of complaint of a victim of a sexual offence as an exception to the hearsay rule. I will discuss the principles applying to the admission of such statements later in these reasons.
There are two errors in the Magistrate’s reasons. First, rather than being clearly admissible, the Uber evidence, as complaint evidence, was clearly inadmissible. Secondly, complaint evidence is not an exception to the hearsay rule. If complaint evidence was an exception to the hearsay rule, the evidence could be led for the truth of what is alleged. As discussed earlier, complaint evidence is one of a limited number of exceptions to the rule prohibiting proof of prior, out of court, consistent statements.
When turning to discuss the complaint evidence, the Magistrate stated:
Complaints by victim of a sexual assault are admissible under and at common law and s.34M of the Evidence Act – not as to the truth of the content of the complaint but corroborative of consistency of the account given by the complainant. Depending on the nature of the complaint it may also go to the issue the (sic) consent– see R v Blayney [2001] SASC 211.
(emphasis added)
That is not a correct statement of the law. Section 34M(1) of the Act abolishes the common law relating to recent complaint in cases of sexual assault. We are unsure what the Magistrate was referring to when he said complaint may go to the issue of consent. At common law, complaint evidence was admissible only to show consistency of conduct which in turn may impact on the credibility of the complainant. We were unable to find in R v Blayney (“Blayney”)[10] a reference to the principle referred to by the Magistrate. In any event, Blayney was decided before s 34M of the Act was enacted and is therefore of little relevance.
[10] [2001] SASC 211.
The Magistrate then, in relation to Count 1, turned to the question of the contact with Uber. He stated:
There was a subsequent follow up by Uber at 7.17 p.m. on 9 January 2017. Evidence was produced of the recording of that conversation. The evidence was admitted as Exhibit P8 and P9. As earlier indicated, an aide memoir as to the call was also provided by Ms Ballans. Ms Ballans says it is equally admissible as case law recognises that a timely extrapolation of an initial complaint is also admissible if it is logically consistent.
(emphasis added)
Ms Ballans, the prosecutor at trial, did argue that the further contact with Uber could be regarded as an elaboration of the initial complaint. She did not use the expression extrapolation. Section 34M of the Act does not allow an extrapolation of an initial complaint. Extrapolation and elaboration are not synonyms. It is unclear what the Magistrate meant by his use of the term “extrapolation”.
In relation to Count 2, the Magistrate stated:
… Uber records identify that the complaint was received from L.T.’s phone at 3.34 a.m. on 19 February 2017 to the effect of ‘my driver groped me’.
L.T. identified that the complaint was made on her behalf by her then boyfriend D.C. and she subsequently gave an extrapolation of the complaint to a staff member of Uber at 10.54 a.m. on 19 February 2017 …
(emphasis added)
Again, the Magistrate appears to have considered that an extrapolation of the initial complaint is admissible.
There are other problems with the manner in which the Magistrate has dealt with the complaint evidence. The Magistrate acknowledged, correctly, in his reasons, and on more than one occasion, that complaint evidence is not admitted as to the truth of the contents of the complaint. However, when dealing with the question of distress, the Magistrate stated:
… I am satisfied that in respect to the first complainant, the evidence of T.A. is highly corroborative of the fact that T.W. was genuinely distressed. I accept she was distressed because the defendant had touched her inappropriately. I accept the account she gave to T.A. was an honest account of what had occurred. A complaint was made immediately and the complaint to Uber immediately and followed through with a more extensive complaint within 18 or so hours of the event occurring. She also reports the matter to police contemporaneously with the events.
(emphasis added)
Two issues arise from these remarks. First, it is unclear what the Magistrate meant when he said that TW gave to TA “an honest account of what had occurred”. In context, it is arguable that the Magistrate, although using the word honest, has used the truth of the complaint to support his findings about distress. TA was relating to the Court the fact of the complaint which could be used to establish the consistency of TW’s conduct. To find that TW was honest in her account is to arguably use the truth of the complaint to support the question of distress. The complaint evidence could not be used in that manner to support the finding of distress.
Secondly, the Magistrate has clearly given weight to the “more extensive complaint within 18 or so hours”. There was barely, if any, elaboration of the initial complaint to Uber. The “extensive” nature of the complaint was inadmissible and the Magistrate could not use that evidence as he did.
There is a further matter. The Magistrate made findings about the credibility of both complainants. In relation to Count 1, the Magistrate found that the evidence of TW was “truthful, accurate and reliable” and that “the defendant is patently untruthful and unreliable”. Those remarks are followed by findings of specific facts about what occurred. Indeed, the Magistrate made a finding that the applicant “took hold of T.W.’s upper chest and put a hand on her upper thigh near her groin. The hand on the upper chest moved down and brushed her breast”.
The Magistrate then stated:
Those findings are not conclusive of the matter. I will discuss the use of discreditable conduct evidence, complaint and distress evidence and how that pertains to the ultimate conclusions later in these reasons.
(emphasis added)
With respect to the Magistrate, as the earlier findings involved an assessment of the complainant’s credibility, the complaint evidence, other than explaining how the allegations first came to light, had no further role to play. The above comment supports the position that despite the Magistrate’s acknowledgement that complaint evidence is not admitted for its truth, he has in fact used it in that manner.
In relation to Count 2, the Magistrate made similar findings of fact including that the applicant “reached over to pull L.T. toward him and put his hand onto her breast”. The Magistrate stated that “I absolutely accept her [LT’s] evidence” and that he “formed a negative view of the truth and accuracy of the defendant’s account of events”. He made no mention of the complaint evidence during those credibility findings.
Having made those findings in relation to Counts 1 and 2, the Magistrate went on to remark:
The evidence of the distress of each woman is cogent evidence, and in my view, is corroborative that something unexpected, improper, offensive, disturbing and frightening had just happened to each of them. Likewise, the evidence of complaint speaks as to their state of mind and it supports their distress. Both the evidence of distress and the evidence of complaint are admissible evidence.
(emphasis added)
It is unclear what the Magistrate meant by stating that the complaint evidence “speaks as to their state of mind and it supports their distress”. Complaint evidence is relevant and admissible under s 34M only to inform a jury as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the alleged victim. It cannot be used, on any issue, as evidence of a complainant’s state of mind. While the distress of a complainant and the making of a complaint may occur at or about the same time, that does not make the complaint evidence admissible to establish the state of mind of a complainant and therefore supportive of their distress.
The Magistrate stated that his findings on credibility and the facts that flowed from those findings were not conclusive and only preliminary. Having discussed the question of cross-admissibility of the evidence, the Magistrate then turned to the question of whether the prosecution had discharged the onus of excluding any version of events consistent with the applicant’s innocence: namely, whether the contact made was accidental or consensual. While the question of accidental contact was still to be determined, the Magistrate’s acceptance of the complainant’s evidence amidst his “preliminary” findings had already proved that neither complainant consented. It is difficult to see how the complaint evidence could have any further role to play in deciding those questions. It certainly had no direct role in determining whether the contact was accidental.
The Magistrate’s final conclusion is also problematic. He stated:
The admission of distress evidence, complaint evidence and the mutually corroborative accounts of both complainants, together with my preliminary findings of fact beyond reasonable doubt in each case, are determinative in my finding beyond reasonable doubt that [sic] prosecution have excluded consent in each case. I equally reject the submission that in each case the touching was accidental. It was deliberating [sic], and targeted, and constituted indecent assault.
(emphasis added)
As we stated earlier, it is difficult to see what role complaint evidence had in the Magistrate reaching that final conclusion. His finding that complaint was relevant to the question of consent needs to be seen in the context of his earlier remark that the common law of complaint still applied and his corresponding reliance on the case of Blayney.
The Magistrate relied on Blayney, but, as mentioned, that case does not stand for the broad proposition he suggested. Indeed, to use evidence of complaint as evidence of a lack of consent is to blur the distinction between the testimonial and nontestimonial use of complaint evidence. Reasoning that a complaint is evidence of an absence of consent suggests that the truth of the assertions of fact expressed in or to be implied from the out of court statement can be acted upon. That is not so, and although the Magistrate referred to the prohibition on using complaint evidence for a hearsay purpose, the reasons suggest he may have done so.
While, as mentioned, the Magistrate stated that complaint evidence is not evidence of the truth of the complaint, his remarks and findings, as well as how he has structured his judgment, demonstrate that he has used the complaint evidence in this impermissible manner. His use of the inadmissible narrative evidence as complaint evidence was also an error.
It is against that background that we turn to the reasons of the Single Judge.
The Single Judge’s reasons
The applicant, before the Single Judge, made lengthy written submissions as well as making oral submissions. During the course of his written submissions, the applicant accepted that there was some evidence from TA and DC that qualified as admissible complaint evidence. However, the applicant submitted that the Magistrate inappropriately admitted the evidence of the discussions with Uber representatives in relation to both complainants. The applicant contended that both the text messages and the subsequent telephone conversations between TW and LT with Uber representatives were not part of an elaboration of an initial complaint and were therefore inadmissible.
The respondent did not argue to the contrary. Ms Cairney, counsel for the respondent on that appeal, conceded that all communications with Uber representatives, apart from one statement made by TW in the course of her telephone call with Uber, were inadmissible.
The Single Judge, in relation to this ground of appeal stated:[11]
[11] MM v Police [2021] SASC 1 at [46]–[51].
Complaint evidence in relation to Count 1
As set out above, TW complained to TA when she walked inside her house and said, “He’s just grabbed me on the boobs and my leg, inner thigh”. That was admissible evidence of complaint and was properly regarded by the Magistrate as showing consistency of behaviour. Following on from that, the Magistrate allowed evidence of a recorded message sent from TW’s phone at about 2.23 am on 9 January 2017 that said, “He touched my crotch and chest after telling my friend to get out”. This may have been drafted by TA and not TW. Further, TW had a subsequent conversation with an Uber representative on 9 January 2017, in which, among other things, she said, “he groped me boob”. Those two statements to Uber, although led by way of complaint and accepted by the Magistrate as such, were clearly not, and that was conceded by the respondent in argument before me.
Complaint evidence in relation to Count 2
DC gave evidence that immediately after LT got out of the car she said the following:
She said that he touched her boob and he tried to kiss her. She also said – I said like remember then because at that point in time she was very fragile and she couldn’t really talk properly and I didn’t really know how to approach it I didn’t want to ask her the full thing so we went up to my room and then we spoke about it more and she said that when she went to get in the cab the Uber sorry she went to get in the front seat – sorry the back seat and he said sorry the back doors aren’t working something’s wrong with the car. So then she got in the front and then she said when she got to my place that he asked for her number and when he asked for her number she gave him a false number which wasn’t the correct number and then he called her straight away and said that’s not your number. Obviously he knew that she would most likely not give her his number and proceeded to do the check. She didn’t know what to do she panicked and she gave her real number then she went to get out the car and the guy he asked can I have a hug and she said ‘No’ and then he proceeded to ask her if he could have a hug. She told me she was scared because she wouldn’t know what would happen if she didn’t cooperate. She went to get out the car -
That evidence was clearly admissible within in the meaning of s 34M of the Evidence Act and was used by the Magistrate as evidence of consistency. Further evidence was led of a message that was sent via the Uber app on LT’s mobile phone to the effect “my Uber driver groped me”. The evidence was clear that it was DC who sent that message. That was treated by the Magistrate as evidence of complaint. Further, LT had a subsequent phone conversation with an Uber representative on 19 February 2017, which consisted of a narrative of events and included her saying, “the driver like gave me a hug and was like grabbing my boob and trying to make me kiss him”.
In relation to both counts, the Magistrate erroneously took the view that the subsequent out of court statements made by TW and LT to Uber representatives and messages sent by TW (or TA) and DC amounted to complaint evidence showing consistency.
As I have indicated, the respondent concedes that the subsequent “complaints” set out above, other than the original spontaneous complaints were inadmissible. She suggests that one of the phone calls from TW to Uber may have amounted to an elaboration of her initial complaint because she tells the operator that the appellant said to her, “we’ll go round the corner and I’ll give you another $20 for suck or sex”. That was not mentioned in the original complaint. However, that really is of no moment because I agree with the argument of Ms Cairney that the subsequent inadmissible out of court statements took the matter no further. They merely reiterated to other parties what was said in the original spontaneous complaints. Once that was admitted showing consistency, it was not enhanced or effected by the subsequent statements to Uber.
I dismiss this ground of appeal.
The Single Judge concluded, in line with the concession of Ms Cairney, that the Magistrate had erroneously admitted subsequent inadmissible out of court statements. Nevertheless, his Honour proceeded to find that the initial complaint evidence, once admitted, was sufficient to show consistency, and the other statements “took the matter no further” in neither enhancing nor affecting this finding. The Single Judge dismissed this ground of appeal.
With respect to the Single Judge, the question to be answered is not whether the inadmissible material “took the matter no further”, but rather, whether the Magistrate misused the inadmissible material, and if so, how? The ground of appeal, and the submissions, also raised the issue of whether the Magistrate had impermissibly used the complaint evidence for a testimonial purpose. The Single Judge does not appear to have considered that question.
We are unable to agree with the Single Judge’s conclusion. As set out earlier, the Magistrate has permitted much inadmissible material to be admitted. Whilst we accept that there was admissible complaint evidence led, the Magistrate has misunderstood the law relating to complaint evidence and, in our view, has used the complaint evidence that was admissible, for a testimonial purpose. The Magistrate also used the inadmissible narrative evidence to support the complainants’ credibility; he was not entitled to do so.
We would allow this ground of appeal.
Ground 2
This ground of appeal relates to the use the Magistrate made of what came to be described as the “creep message”. DC gave the following evidence in respect of this message:
Well before she got home she actually I remember she messaged – sent me a message saying it was either my Uber driver’s being a creep or something … As soon as I got that message I ran downstairs to check where she was and then I saw her walking up from on the road about two houses …
(emphasis added)
A number of issues arise. First, between the evidence, submissions and the reasons of the Magistrate and Single Judge, there lie conflicting suggestions of when LT sent the creep message. Whether the message was sent before or after the indecent assault affects its admissibility, and if admissible, its permissible use. Secondly, how the Magistrate used the evidence, and whether that use was permissible, must be clarified. Finally, whether the creep message was admissible warrants examination.
When opening the case before the Magistrate, the prosecutor stated that DC would give evidence of the complaint LT made which occurred after she got out of the Uber, as well as evidence that he received a call from LT during which she asked him to come downstairs as the Uber driver was being a “freak”. We note that although DC said LT used the expression “creep”, in context, the meaning conveyed is the same irrespective of whether “creep” or “freak” was used: nothing turns on the difference. The prosecution case was that the message was sent after the alleged indecent assault had occurred and the prosecutor sought to lead the evidence as complaint evidence.
LT maintained in her evidence that nothing untoward occurred during the journey home; it was only after the car had stopped and the applicant asked for her phone number that she started to feel uncomfortable. On LT’s evidence, she called DC as soon as she got out of the car and asked him to “meet [her] right now”. When questioned by the prosecutor as to whether anything further was said in the course of that phone call, LT maintained that it was only this request — for DC to come meet her — which was communicated.
The phone call must nevertheless be the communication to which DC references as the creep message, even though LT did not give evidence that she used that expression, or any similar expression, during the call. Indeed, she gave no evidence of having sent the creep message. While DC testified to the contact occurring via text message rather than phone call, whether the contact was by phone or text does not matter in the context of this case.
DC’s evidence does not assist in ascertaining the exact timing at which the message was sent, other than inferentially, through his assertion that he ran downstairs immediately having received the message to see LT “walking up from on the road”. This evidence is consistent with LT’s evidence that she sent a message after the alleged indecent assault, once she had exited the vehicle.
The applicant gave evidence that LT accepted a phone call from DC whilst they were on their way to DC’s house, during which she told DC “I’m four minutes away from the destination”, which was consistent with what the applicant’s Uber app was telling him. However, LT denied that she spoke to DC on the phone during the trip.
There was no evidence that LT, via either text or phone call, conveyed the creep message to DC when four minutes away from his residence.
Despite that factual position, the Magistrate made the following findings:
To the contrary I formed a negative view of the truth and accuracy of the defendant’s accounts of events. I accept Ms Ballan’s submissions that I should find proven beyond reasonable doubt the following matters relevant to the primary findings; -
1.L.T. texted her boyfriend D.C. when about four minutes away and in that message suggested the driver was being a ‘creep’.
2.L.T. had not said anything to the defendant about her sexual activity with her then boyfriend D.C.
3.L.T. did not tell the defendant that ‘his car was very clean and he was a good driver and she wanted to use him again or get Uber to send him again’ - or words to that effect. As Ms Ballans comments that assertion by the defendant cannot be reconciled with the completely inconsistent text ‘my driver is being a creep’,
4.L.T. did not ask the defendant for his mobile number. It was the defendant who raised the issue.
5.L.T. did give the defendant initially the wrong number, but it was not as Mr Richard’s asserted in error, possibly due to her state of intoxication. It was deliberately, because as she describes, she didn’t want him to have her number. She then gave him the correct number as she realised he was insistent and again she just wanted to leave.
6.L.T. did not lean in towards the defendant and hug and [sic] him or kiss him on the cheek nor did she turn and blow him a kiss as she was walking toward the house. The defendant is lying when he suggests it was L.T. that initiated physical contact with him.
7.The defendant reached over to pull L.T. toward him and put his hand onto her breast.
(emphasis added)
As discussed, the first finding of the Magistrate is contrary to the evidence. The creep message was sent after the alleged offending, not while the car was four minutes away from its destination. On this appeal, the respondent accepted, in our view correctly, that the evidence supported the fact that the text or call came after LT got out of the car.
The Magistrate having found that the creep message was sent four minutes before the car arrived at the destination, used the fact of the message, and the timing of it, to reject part of the applicant’s evidence. That is, the Magistrate found that LT did not tell the applicant, as he asserted, words to the effect of “his car was very clean and he was a good driver and she wanted to use him again or get Uber to send him again”. The Magistrate rejected the applicant’s evidence on the basis that the “assertion by the defendant cannot be reconciled with the completely inconsistent text ‘my driver is being a creep’”. The Magistrate was not entitled to use the creep message in that way as it was not actually sent until after LT got out of the car.
On appeal before the Single Judge, when dealing with this ground, counsel for the respondent conceded that the evidence of the creep message should not have been led, was inadmissible and the Magistrate ought not to have referred to it. However, the respondent submitted that the error would have made no difference to the Magistrate’s assessment of the credibility of the applicant.
The Single Judge observed that he had difficulty with the respondent’s concession that the creep message was inadmissible:[12]
I also have a little difficulty with the concession by Ms Cairney that it is inadmissible. I do not want to indulge in an argument that was not presented at trial, but it occurs to me that a proper permissible use of that evidence would be that it is evidence of LT’s state of mind about her attitude to the appellant whilst on the journey. That could be led to assist in deciding the question of who to believe when the appellant says that shortly after that message was received LT was affectionate to him and wanted to hug him and kissed him before she left. In other words, it was an application of the principles concerning a victim’s state of mind and their intentions, as described in R v Walton and R v Hendrie. In my view, it goes clearly to the question of LT’s attitude towards the appellant, and whether that was consistent with her behaviour as described by the appellant in his evidence at trial.
(citations omitted and emphasis added)
[12] MM v Police [2021] SASC 1 at [53].
The Single Judge does not appear to have appreciated that the Magistrate was in error as to when the creep message was sent. In finding that the creep message was admissible as going to LT’s state of mind, the Single Judge considered that the message was sent during the journey, approximately four minutes before the car reached its destination, rather than after LT got out of the car. On that basis, the Single Judge’s finding that the creep message was admissible as going to LT’s state of mind cannot stand. We do not need to consider whether the Single Judge’s assessment of the admissibility of the creep message on the facts as he understood them to be, was correct.
However, on the present appeal, the respondent, despite accepting that both the Magistrate and the Single Judge erred in relation to the timing of the creep message, submitted that it was still admissible, either as original evidence or alternatively, as the Single Judge suggested, as part of the res gestae, in its relevance to the state of mind of LT at the time of the offending.
Strictly speaking, it is unnecessary for us to consider the respondent’s submissions any further as, while contending that the creep message was admissible, the submissions confine its use to a different time period to that used by the Magistrate. That is, even if the message was admitted for the purpose now identified by the respondent, it cannot affect the Magistrate’s error in timing identified earlier. However, as the parties addressed the issue, we add the following remarks.
Turning to its use as original evidence, the respondent submitted that it was open to the Magistrate (and the Single Judge) to use it as a piece of circumstantial evidence to reject the applicant’s assertion that LT had asked for his phone number and initiated the physical contact (after the car had arrived at its destination).
To support that submission, the respondent relied on the remarks of King CJ in R v Hendrie (“Hendrie”) where his Honour observed:[13]
The third ground of appeal relates to a point of admissibility of evidence. The evidence objected to was a conversation deposed to by the deceased’s husband and which is said to have occurred between the deceased and her husband some little time before the day of the crime. In that conversation the deceased’s husband said that he and his wife had discussed and decided upon a project to convert a window in the bedroom into a door in a way which would enable part of the carport to be used as a breakfast patio. The prosecution sought to prove this conversation as tending to establish an intention on the part of the deceased to do something about this project, thereby explaining why she would be in the bedroom with the offender without a struggle and why therefore the signs of struggle were confined to the bedroom. Mr. Waye contended that the evidence should have been excluded as hearsay.
In my view, there was no hearsay element in the evidence which was adduced relating to this conversation. What was sought to be proved by the prosecution was the reason why the deceased was in the bedroom with the offender without a struggle. The existence of an intention on the part of the deceased to have work done in relation to the window tended to explain that. The intention was therefore a relevant fact. The conversation between the deceased and her husband was original evidence tending to prove the state of mind and intention of the deceased at the time when the conversation took place and by inference her intention and state of mind on the morning of the crime in relation to the window.
It is well established law that a person’s state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.
This evidence, as it seems to me, was properly admitted because it consisted of statements by the deceased which tended to indicate that she had an intention with respect to the window. The existence of that intention with respect to the window tended to provide the explanation of her being in the bedroom and of the first signs of struggle occurring in the bedroom. In my opinion, therefore, the evidence was not objectionable as hearsay and was properly admitted.
(emphasis added)
[13] (1985) 37 SASR 581 at 585.
We make the following points about the respondent’s submission. First, Hendrie is a case where the evidence was led to prove the state of mind of the deceased. In this matter, LT was available and in fact did give evidence of her state of mind during the journey. She said nothing untoward happened at that time. Indeed, she gave evidence of what occurred both during the journey and after to car stopped. As Kourakis CJ observed in Bristow v The Queen (“Bristow”):[14]
It is generally not necessary to rely on the making of an out of court statement to prove a relevant intention if the declarant is available as a witness. If the declarant’s statement were not original evidence — a verbal act — the testimony of a third person that the statement was made, would be second-hand hearsay and therefore inadmissible.
[14] (2020) 137 SASR 449 at [176].
Secondly, as King CJ observed in Hendrie, the contemporaneous state of mind of the deceased was not hearsay as it was not led for the purpose of proving the truth of the statements. Rather, it was original evidence: it simply established that the deceased had an intention in relation “to the window” and that was a piece of circumstantial evidence that tended to suggest why she (the deceased) may have been in the bedroom at the relevant time. In contrast, to use the creep message to undermine the credibility of the applicant, as the Magistrate and the Single Judge purported to do, is to rely on the truth of the implicit assertion in the statement that the applicant was behaving in a particular manner that was offensive to her. It is important to consider to what use the prosecution sought to use LT’s state of mind.
Here, the prosecution sought to use LT’s state of mind to establish the truth of what led to her forming that state of mind, and then to use those facts to undermine the applicant’s evidence. The evidence cannot be used in that way. In our view, the remarks of King CJ in Hendrie do not assist the respondent’s submission.
The respondent also contended that, the creep message, if not original evidence, was admissible as part of the res gestae, in that it fell within one of the recognised exceptions to the rule against hearsay. When considering the admissibility of evidence under the res gestae principles, much depends on the forensic contest at trial.
In Bristow, Kourakis CJ, when analysing the case law on the doctrine of res gestae, wryly observed:[15]
The expression res gestae has a history with strong ties to public affairs, private dealings, and business transactions, such that it came naturally to legal discourse. Nonetheless, there is broad agreement that it does not serve any useful purpose. Odgers writes strongly against its use:
The term res gestae should be abandoned in the law of evidence. To the extent that it encompasses statements tendered for a non-hearsay purpose, it is unnecessary and confusing. To the extent that it creates an exception (or exceptions) to the hearsay rule, it would be far better if the scope of those exceptions were precisely delimited in accordance with the justifications for each. …
Notably, Lord Tomlin in Homes v Newman described res gestae as “a respectable legal cloak for a variety of cases to which no formula of precision can be applied”. Lord Blackburn once remarked that “if you wish to tender inadmissible evidence, say it is part of the res gestae”.
(citations omitted)
[15] (2020) 137 SASR 449 at [84]–[85].
As Kourakis CJ’s analysis demonstrates, the doctrine of res gestae bristles with difficult points in its application to any specific factual scenario.
The doctrine of res gestae provides an exception to both the rule against narrative (the rule against self-corroboration) and the rule against hearsay. The Latin term, res gestae, literally means “the things done”. The “thing” is the event which is the subject of, or a fact in in issue in, the legal proceedings.
Cross on Evidence[16] suggests that there are four categories of exceptions to the hearsay rule falling under the heading of res gestae. They are:[17]
1.spontaneous statements about an event made by participants or observers;
2.statements made by a person accompanying and explaining a relevant act;
3.statements disclosing the maker’s contemporaneous statement of his or her intention, state of mind or emotion; and
4.statements describing a contemporaneous physical sensation.
[16] J D Heydon, Cross on Evidence (LexisNexis, 11th ed, 2017).
[17] J D Heydon, Cross on Evidence (LexisNexis, 11th ed, 2017) [37020].
The respondent submitted that the creep message fell within the third exception mentioned above. The statement by LT, the respondent submitted, indicated her attitude towards the applicant around the time of the offending. It was relevant to a fact in issue at the trial; namely, whether LT had initiated the physical contact with the applicant in the Uber. The evidence that she was in some manner disturbed by the applicant’s behaviour, it was submitted, is irreconcilable with the applicant’s version that LT had been the one to ask for a hug and a kiss before she left. As mentioned earlier, the Magistrate used that evidence in relation to a different time period.
A condition precedent to the admissibility of statements under this exception is that the statement must be made at or about the time when the res occurred. That is, the statement throws light on the statement maker’s state of mind because of its proximity to the event. While contemporaneity is a requirement, the cases establish that it is a question of degree, depending on the facts.[18] Further, for the person’s statement to establish their state of mind, and therefore to be relevant, it must be part of the event and not merely a reported statement.
[18] R v Hissey (1973) 6 SASR 280 at 294; Bristow v The Queen (2020) 137 SASR 449 at [118]; R v Anderson (2017) 128 SASR 550; Spurway v Police [2011] SASC 177.
In our view, the creep message, as discussed earlier, is not admissible to prove LT’s state of mind (if relevant), but it was rather a report to her boyfriend of what had just occurred. At a certain level of abstraction, a person’s state of mind can often be inferred from their conversation. However, the indecent assault (the res) here had finished and the statement, in context, was arguably more a statement of narrative; that is, a report, rather than a statement from which her state of mind could be inferred.
In effect, LT was making a complaint to DC about the applicant’s conduct, but it was, arguably, not sufficiently referrable to the charge to qualify as an initial complaint pursuant to s 34M of the Act. To illustrate the point further, if LT had added the words to the creep message “and he touched me on the boob”, which, shortly after the message, she did say to DC, there would be no doubt that the message would be admissible pursuant to s 34M — but its only use would be in assessing the consistency of conduct of LT to thus support, potentially, her credibility. It could not be used as evidence of her state of mind. Nor could it be used to undermine the applicant’s evidence on what he said occurred in the car approximately four minutes before the car arrived at the destination.
In any event, LT was available to give evidence as to her state of mind at that time. As discussed earlier, it is generally not necessary to rely on the making of an out of court statement to prove a relevant intention if the declarant is available as a witness.
The creep message, if admissible at all under the doctrine of res gestae, perhaps falls more naturally under the first exception to the hearsay rule noted earlier. That is, it is arguable that it was a spontaneous statement about an event made by participant. In Bristow, Kourakis CJ stated the test for admissibility under this exception:[19]
The test so stated appears to be an admixture of:
(1) a finding of reliability;
(2) a requirement for a strongly causal connection between the events and the utterance; and
(3) a discretion to exclude the evidence if the admission of the statement may lead to forensic unfairness.
[19] (2020) 137 SASR 449 at [129].
The basis for the admission of evidence under this exception is that the statement illuminates the nature of the relevant act because of its proximity to it. Proximity in this sense includes temporal proximity. LT’s statement occurred after the alleged indecent assault, but her statement is likely to have been made no more than a minute or so after the event — possibly earlier. Arguably, the condition of contemporaneity would be satisfied. Depending upon the forensic contest at trial, the evidence could potentially be admissible.
What this statement would add to the prosecution case, given the fact that an admissible complaint was made almost immediately after the event and was accompanied by LT’s significant distress, is not clear. However, that is a matter for a judicial officer to take into account when considering the exercise of the discretion to exclude the evidence.
For the reasons explained earlier, the creep message was not admissible as an exception to the hearsay rule going to the state of mind of LT. As to whether it was admissible as a spontaneous statement about an event, that is not necessary to decide. The evidence does not support the timing of the statement occurring four minutes before arriving at the destination. We note that while the respondent submits that the creep message is admissible and could be used for a different purpose, that is not the way the Magistrate used the evidence. The respondent’s submissions do not address the fact that the Magistrate used the creep message to undermine the applicant’s evidence, and therefore credibility, at a different point in time.
The respondent did not suggest that the creep message could be used in the way the Magistrate used it. The Single Judge erred in dismissing this ground of appeal. We would allow the ground of appeal.
Grounds 3 and 4
Ground 3 complains that the Magistrate’s reasons were inadequate and that he failed to deal properly with inconsistencies in the evidence. Ground 4 raises the issue of whether it was open to the Magistrate on the evidence to find the charges proved beyond reasonable doubt.
Before turning to the substance of the two grounds, there is a procedural issue that needs clarification. The respondent submitted:
An appeal to the Full Court is not an appeal by way of rehearing, as was the appeal before the Learned Judge. Permission to appeal to the Full Court should only be granted where there is an arguable case that a Learned Judge has made an error or where a given case raises a point of law or principal of some general importance.
We do not accept that submission. On the question of whether permission to appeal should be granted from a single judge, the Court must consider if it is arguable that the single judge has made an error, or whether the case raises a point of law or principle of some general importance. It is only in those circumstances that permission to appeal will be granted. However, if permission to appeal is granted, the appeal to this Court is by way of rehearing.[20] While the focus of an appeal is whether the single judge erred, on some issues it may be necessary for the Court to perform its own review of the evidence before the Magistrate, particularly if the attack on the decision of the single judge turns on whether the judge erred in their review of that evidence.
[20] Police v Cadd (1997) 69 SASR 150 at 189 (Lander J).
We note that the appeal grounds themselves are couched in terms of criticism of the Magistrate’s approach. These were matters argued before the Single Judge and this appeal should focus, initially at least, on how the Single Judge dealt with the issues. That of course, as mentioned, may involve consideration of the Magistrate’s approach and reasons. We will deal with the grounds of appeal as if they challenged the Single Judge’s findings on these grounds. The grounds overlap and it is convenient to deal with them together.
Before the Single Judge, the applicant combined his submissions on these two grounds. As that was the way the appeal was conducted, the Single Judge dealt with the two grounds together.
The Magistrate’s reasons clearly demonstrate that he dealt with the complainant’s evidence in some detail. His task was difficult due to the delays in completing the trial (none of which were of the Magistrate’s making) and the fact that he had to determine complex arguments on the joinder of charges and on the admissibility of certain evidence. It is clear that he spent considerable time, no doubt between busy court lists, determining many of the issues. No complaint was made, nor could it be, about the diligent manner in which the Magistrate approached his task.
In relation to Ground 3, the applicant accepted that the Magistrate’s reasons were lengthy and, in some respects, detailed. However, the applicant submitted that the Magistrate did not discharge the obligation imposed upon him to resolve critical and contested issues and to adequately expose the link between his analysis of those issues, the evidence and his ultimate conclusions. The applicant submitted that the Magistrate dealt with many of the issues by way of a summary of the evidence or of counsel’s submissions. This approach, the applicant submitted, did not discharge adequately the Magistrate’s obligation to demonstrate how he resolved the conflicts in the evidence and how and why certain findings were made.
The applicant’s case, both before the Magistrate and the Single Judge, was that the evidence of the two complainants was unreliable and, on account of various inconsistencies, lacking in credibility.
In relation to Count 1, the applicant submitted that the evidence was incapable of establishing that he had deliberately touched the complainant’s breast. Before both the Magistrate and the Single Judge, the applicant pointed to the numerous times TW gave evidence regarding what occurred during the incident. The applicant submitted that the evidence was internally inconsistent, or at best, unclear and inconclusive. The applicant complained that at no point in his reasons did the Magistrate engage with the evidence or the submissions on this topic and that he failed to demonstrate how he was able to reach a conclusion beyond reasonable doubt that there was deliberate, and indecent, touching given the variations and uncertainties in TW’s account. The applicant pointed to other issues arising from the incident including inconsistencies between TW and TA’s accounts.
In relation to Count 2, the applicant pointed to inconsistencies within LT’s account of what occurred in the car as well as discrepancies between her evidence and that of DC’s. Again, the applicant complained that the Magistrate failed to explain how, notwithstanding the inconsistencies in LT’s evidence, he was able to find the offence proved. More was required than the Magistrate’s assertion that he found LT to be a “credible and reliable witness”.
The applicant accepted that the Magistrate declared his findings on reliability and credibility in unambiguous terms but submitted that he failed to explain how he arrived at such a conclusion. The applicant submitted that the Magistrate’s reasons were inadequate, as he had failed to expose that he had examined the issues and had not demonstrated how he had resolved them. In any event, given the inconsistencies and shortcomings in the complainants’ evidence, on an independent review of the evidence, neither offence was proved beyond reasonable doubt.
Legal principles of adequacy of reasons
The judicial obligation to give reasons is directed, in part, to facilitating the exercise of a party’s right of appeal,[21] in addition to promoting public accountability as to how and why a judge has made a particular decision.[22] Reasons for a verdict following a trial by judge alone or magistrate are essential to enable an appellate court to perform its statutory function in determining whether the judge has correctly applied the relevant rules of law.[23] The adequacy of a magistrate or judge’s reasons (distinct from the adequacy of reasoning) will depend on the circumstances of each case. [24] However, there are general established principles that operate as a guide.
[21] Fleming v The Queen (1998) 197 CLR 250 at [22]; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387–388; JGS v The Queen [2020] SASCFC 48 at [204]; R v Keyte (2000) 78 SASR 68 at [44]–[45]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385. For a detailed review of the history and rational of the scope of the judicial duty to give reasons, see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[22] R v Keyte (2000) 78 SASR 68 at [43].
[23] R v Keyte (2000) 78 SASR 68 at [38]; Douglass v The Queen (2012) 290 ALR 699 at [14]; DL v The Queen (2018) 266 CLR 1 at [32].
[24] See discussion in JGS v The Queen [2020] SASCFC 48 at [199].
Reasons are to be read as a whole.[25] It is not necessary for a judge or magistrate to give extensive and elaborate reasons.[26] The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision.[27] However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.[28] Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge.[29]
[25] R v Ricciardi (2017) 128 SASR 571 at [25].
[26] R v Ricciardi (2017) 128 SASR 571 at [25]; R v Mayger (2013) 116 SASR 488 at [21]; R v Keyte (2000) 78 SASR 68 at [52]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–6.
[27] DL v The Queen (2018) 266 CLR 1 at [32].
[28] Fleming v The Queen (1998) 197 CLR 250 at [28].
[29] DL v The Queen(2018) 266 CLR 1 at [32]–[33].
A trial magistrate or judge will ordinarily be expected to expose their reasoning on points critical to the contest between the parties.[30] This expectation applies to both evidence and argument. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict.[31]
[30] See Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53 at [34].
[31] DL v The Queen (2018) 266 CLR 1 [33].
The failure to give adequate reasons constitutes an error of law.[32]
[32] Fleming v The Queen (1998) 197 CLR 250 at [22]; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Papps v Police (2000) 77 SASR 210 at [23].
Single Judge’s reasons
The Single Judge, in his reasons, stated that he had looked at the evidence and the Magistrate’s reasons carefully. He found there can be no criticism nor suggestion that the “Magistrate did not discharge his obligations to resolve the critical and contested issues”.[33]
[33] MM v Police [2021] SASC 1 at [63].
Turning to Count 1 the Single Judge stated:[34]
I also find that the Magistrate took into account a number of inconsistencies in the evidence of both complainants, which was pointed out both at trial and on this appeal. In dealing with the question of inconsistencies the Magistrate said in relation to Count 1:
I have had opportunity of reviewing the evidence that was given by all witnesses in this case and I have carefully considered the submissions made by counsel with respect to count 1. I have reflected on Mr Richards’ extensive submissions on the issue of inconsistencies and discrepancies in the accounts of T.W. and T.A.
The most obvious inconsistency is as to the point of time T.W. may have become aware of the bubble gum and whether she discussed the issue with the defendant and who told her he was seeking money for the damage. T.W.’s recollection in chief and cross examination was she was unaware of any additional claim being made to compensate that damage at the time she alighted from the vehicle.
T.A. said in cross examination -at page 175 transcript – that T.W. said; -
‘I was only trying to work out the bubble gum incident.’
T.W. said in evidence she had not read her statements to SAPOL since making those statements. She also said she was starting to forget some details. I believe her, and in fairness to her, neither counsel invited her to review the statements, to refresh her memory – albeit Mr Richards did quote selected portions to her.
I agree with Ms Ballans’ submission at paras.90 and 91 – however that the inconsistencies are of minor importance. I agree also with Ms Ballans’ submissions that any inconsistency between T.W. and T.A.’s accounts does not damage the essential credit of the complainant on the critical matters in issue in each charge. I have absolute confidence that she is a witness of truth with respect to all critical issues with respect to the prosecution case, namely whether the defendant did reach out, take hold of her shoulder, put his hand on her upper chest, breast and on her upper thigh and did so without her consent.
[34] MM v Police [2021] SASC 1 at [64].
In relation to Count 2 the Single Judge referred to the major issue raised by the applicant dealing with LT’s imprecision in describing the indecent assault. Having discussed the issue, the Single Judge concluded that the inconsistencies “would have made no difference to the Magistrate’s decision”.[35]
[35] MM v Police [2021] SASC 1 at [66].
When the Single Judge’s reasons are read in their entirety, his Honour’s careful consideration of all of the evidence and submissions is evident. Mr Richards, counsel for the applicant on present appeal, did not point to any error made by the Single Judge, but rather made submissions about the actual inconsistencies and their relevance. While the Single Judge did not explain, in detail, his reasons for rejecting Ground 3, in our view, upon review of the evidence, his decision was correct. A fair reading of the Magistrate’s reasons reveals that, while discussing various issues, he made a number of findings and explained his reasons. Many of his findings were expressed in terms of accepting the submissions of the prosecution. In circumstances where the prosecution submissions are identifiable, this is an acceptable manner of dealing with issues.
The fact that the Magistrate made findings in this way was recognised by counsel for the applicant before the Single Judge, Mr Handshin QC, who accepted that his argument fell more naturally under an allegation of inadequacy of reasoning rather than inadequate reasons. That is, the argument was more relevant to Ground 4 rather than Ground 3.
We would dismiss Ground 3.
Turning to Ground 4, it appears that the Single Judge did not specifically deal with this ground of appeal. The Single Judge dealt with inconsistencies under Ground 3 but did not specifically refer to this ground of appeal.
Given that the Single Judge did not specifically deal with Ground 4, we have conducted a review of the evidence. Undoubtedly there were, as Mr Richards pointed out during submissions, inconsistencies in the evidence. The Magistrate accepted the prosecution submission that the inconsistencies were minor. We would not describe all of the inconsistencies as “minor”. However, the applicant submits that the evidence, due to the nature of the inconsistencies, does not support the Magistrate’s ultimate findings.
As the main issue at trial related to the credibility and reliability of both complainants, it is important to note that the Magistrate had the advantage of seeing and hearing them give evidence. The Single Judge dealt with some of the major inconsistencies. Further, as the respondent submitted, the evidence of the complainants was cross-admissible. The cross-admissibility of the evidence was capable of being used to resolve the various inconsistencies. In our view, despite the inconsistencies, the evidence was capable of supporting the convictions.
We would dismiss Ground 4.
Disposition of Appeal
While we have dismissed Grounds 3 and 4, we have found Grounds 1 and 2 established. The submissions of both parties focussed on the question of whether, if a ground of appeal is established, there has been a miscarriage of justice.
This is an appeal from the Magistrates Court and the procedure is determined by s 42 of the Magistrates Court Act 1991 (SA) (“Magistrates Act”). The use of the phrase miscarriage of justice suggests an importation of the common form proviso found in s 158 of the Criminal Procedure Act1921 (SA) (“CPA”). However, the common form proviso only applies to appeals under the CPA and the Magistrates Act does not contain any equivalent provision. As to the test to be applied when considering an appeal from the Magistrates Court, Peek J (Bampton J agreeing) stated in Le Cornu v Thomas (“Le Cornu”):[36]
In 2017 in Police v Rosales, I returned to this matter and stated:
In Theophilus v Police I considered the circumstances in which an appeal under s 42 of the Magistrates Court Act 1991 may be dismissed even though a ground of appeal has been made out. I there followed the decisions of Napier CJ in Pelham v Homes, Bray CJ in Pope v Ewendt, and other later cases, all to the effect that a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
I note the approach of counsel for the respondent in advocating for an approach couched in terms of “miscarriage of justice”, but I prefer the above approach. In part, this is because the term “miscarriage of justice” might be mistakenly thought to connote a de facto importation of “the common form proviso” in s 353(1), Criminal Law Consolidation Act 1935 into the area of Magistrate Court appeals brought pursuant to s 42 of the Magistrates Court Act 1991. That, of course, cannot be lawfully done; s 353(1) of the Criminal Law Consolidation Act 1935 has no application to an appeal brought pursuant to s 42, Magistrates Court Act 1991. Maintaining this distinction may be all the more important since the High Court has commenced to formulate a new approach to the common form proviso commencing with Weiss v The Queen, continuing with a number of more recent decisions and, with all respect, further decisions not being unlikely.
(citations omitted and emphasis added)
[36] [2019] SASCFC 154.
The test suggested by Peek J in Le Cornu was adopted by Stanley J (Kourakis CJ and Hughes J agreeing) in Sharman v Thomas.[37] Justice Stanley observed:[38]
In Le Cornu v Thomas Peek J, with whom Bampton and Lovell JJ agreed, held that by reason of s 30(4) of the ERD Court Act the appeal is governed by s 42(5) of the Magistrates Court Act 1991 (SA).
Section 42(5) provides that on the hearing of an appeal the court may confirm, vary or quash the judgment subject to appeal or may remit the case for hearing, and may make any other order, including for costs, that may be necessary or desirable in the circumstances.
In Le Cornu v Thomas Peek J held that the relevant test posed by s 42(5)(a) is whether the Court should determine to confirm the judgment subject to appeal notwithstanding that the judgment below was demonstrated to have been infected by error on the basis that the charge was clearly proven irrespective of the error.
(citations omitted)
[37] [2020] SASCFC 52.
[38] Sharman v Thomas [2020] SASCFC 52 at [11]–[13].
In practical terms, there is probably little difference between the tests under the common form proviso and that suggested in Le Cornu. However, the question to be answered, on an appeal from the Magistrates Court, is whether the charge is so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
As previously discussed, the Magistrate has used the complaint evidence impermissibly and has also used the inadmissible narrative evidence impermissibly (Ground 1). The Magistrate has also erred in his use of the creep message (Ground 2).
Both errors infect the Magistrate’s assessment of the complainants’ credibility and also his assessment of the applicant’s credibility.
Although dealing with an appeal under the common form proviso, Kourakis CJ in Bristow observed:[39]
There is often an attempt to accumulate claimed errors, which individually may not have caused a miscarriage of justice, under the misapprehension that together they did occasion a miscarriage. However, there is no logic nor utility in doing so. Generally, there is a miscarriage of justice when directions fail to adequately summarise or explain the evidence and its use, or fail to warn against its frailties, such that the jury may have returned a verdict of guilty ignorant of some salient aspect of the evidence. An appeal court must make that assessment with respect to each of the discrete impugned direction separately, unless they are related complaints. If satisfied that there is no miscarriage, with respect to each of the discrete impugned directions, the position is not altered because the appellant has made other unrelated, and ultimately unfounded, complaints. It may well be different if the directions are related in the sense that one compounds the risk of miscarriage inherent in another in dealing with the same evidence or issue. That is not this case.
[39] (2020) 137 SASR 449 at [253].
The same logic applies to appeals pursuant to s 42 of the Magistrates Act. Here, however, both errors affect the Magistrate’s assessment of credibility of the witnesses and, in that sense, the established errors can be accumulated when considering whether, despite the errors, a conviction was inevitable.
The prosecution case was strong. That said, the credibility and reliability of both complainants was the main issue at trial. As the applicant gave evidence, his credibility was also a crucial issue at trial.
The respondent submitted that the purported complaint evidence was admitted at trial without objection. Largely that is correct, although the transcript of the trial reveals that objection was properly taken to DC’s extensive narrative evidence of complaint. The objection was overruled. The applicant did use some of the inadmissible Uber evidence to demonstrate inconsistencies in the complainants’ evidence. That some of the Uber evidence may have been used to demonstrate prior inconsistent statements does not mean that it would all have been admitted in any event. However, not only did the prosecution seek to lead, and the Magistrate allowed, extensive inadmissible narrative evidence to support the complainants’ evidence, the Magistrate also allowed the complaint evidence to be used impermissibly for the truth of its contents. This error also infected the Magistrate’s assessment of the credibility and reliability of the complainants.
In relation to Ground 2, the Magistrate used the creep message, impermissibly as described earlier, to support the credibility and reliability of LT’s evidence and also to reject the applicant’s evidence on that topic.
Once permission to appeal has been granted the appeal is by way of rehearing. When considering the question of whether the charge is so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error, the appellate court must undertake a ‘real review’ of the evidence at trial and form its own view as to the appropriate outcome. That said, the appeal is not a hearing de novo, and the appellate court should not substitute its own view, or otherwise interfere, unless satisfied that the trial judge fell into error.
Further, in conducting its own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, the appellate court should nevertheless have regard to the findings of the trial judge, and any advantage he or she may have had in making those findings. This advantage will be relevant in the case of factual findings which are likely to have been affected by impressions about the credibility or reliability of witnesses formed by the trial judge as a result of having seen and heard them give their evidence, and of having had the opportunity to consider their evidence in the context of the evidence as a whole and of the trial as it unfolded, and hence having had regard to the “feeling” of the case.[40]
[40] Fox v Percy (2003) 214 CLR 118; Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40]; Lee v Lee (2019) 266 CLR 129; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24.
The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.[41] In Kalbasi v Western Australia,[42] Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.[43] Similar considerations arise when the appeal is one under s 42 of the Magistrates Act.
[41] Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]‑[37]; GBF v The Queen (2020) 384 ALR 569.
[42] (2018) 264 CLR 62.
[43] Kalbasi v Western Australia (2018) 264 CLR 62 at [15].
This is a case which turns almost wholly on issues of contested credibility.
The respondent submitted that “the Magistrate made clear and unequivocal findings about the reliability and credibility of each complainant which were couched in strong and absolute terms”. So much can be accepted. However, such expressions of confidence do not assist an appellate court in performing its task of review. It is of no more assistance to an appellate court if a magistrate forms a strong opinion that the accused is guilty beyond a reasonable doubt than it would be if he or she only formed a weak opinion that the charges have been proved beyond reasonable doubt. There is, with only very few exceptions, only one standard in criminal law and that is proof beyond a reasonable doubt. It is a binary proposition; that is, something is either proved or not proved beyond a reasonable doubt. Qualifying words, or expressions of confidence, do not assist.
Further, the confidence the magistrate had in his belief, no matter how genuinely the belief is held, is not a measure of the quality of evidence allegedly supporting the belief. Where the magistrate has made demonstrable errors in his assessment of the complainants’ credibility and reliability, the justification for his belief is compromised.
There is an additional problem in this matter. The Magistrate has used his assessment of the credibility and reliability of the complainants’ evidence to reject the evidence of the applicant. There was no objective evidence that could have led the Magistrate to reject, almost entirely, the applicant’s evidence. The applicant’s evidence could not be said to be glaringly improbable. Indeed, some aspects of his evidence, disputed by the complainants, turned out to be supported by evidence adduced from Uber. It follows logically that if the assessment of the complainants’ credibility and reliability is compromised that must then flow into the Magistrate’s assessment of the credibility and reliability of the applicant’s evidence.
We have not overlooked the respondent’s submission in relation to Grounds 3 and 4 that the cross-admissibility of the evidence strengthens the prosecution case. However, that depends on whether the question of the credibility of the complainants and the applicant had been assessed correctly. We have found that the findings on credibility have been compromised and the strength of cross‑admissibility diminished accordingly.
In our view, both the findings on Grounds 1 and 2, taken individually or in combination, lead us to the conclusion that we cannot be satisfied that the charges are so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
We would allow the appeal and remit the matter to the Magistrates Court for hearing before a different Magistrate.
Orders
We make the following orders:
1. Permission to appeal is granted on Grounds 1 and 2.
2.Appeal allowed on Grounds 1 and 2.
3.The convictions on Count 1 and 2 be set aside.
4.The charges are remitted to the Magistrates Court for trial before a different Magistrate.
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