C a J v Forsyth - [2018] TASSC 17

[2018] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: C A J v Forsyth [2018] TASSC 17

PARTIES:  J, C A
  v
  FORSYTH, Russell (Detective Senior Constable)

FILE NO:  LCA 1322/2017
DELIVERED ON:  17 April 2018
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – "Oath on oath" case – Magistrate was entitled to believe the evidence of the complainant and reject the evidence of the applicant – Magistrate made a judgment which was clearly open on the evidence.

Shepperd v Cannell [2018] TASSC 12; Robinson v The Queen [1999] HCA 42, 197 CLR 162, cited.
Queen v Murray (1987) 11 NSWLR 12 at 19; Liberato v The Queen (1985) 159 CLR 507, considered.
Aust Dig Magistrates [1153].

Magistrates – Hearing – Procedural fairness and natural justice – Applicant alleged that the magistrate's finding, that the applicant's evidence was a product of reconstruction, was not asserted to the applicant during the hearing – Magistrate's reference to reconstruction was part of overall assessment of credibility of the evidence – Applicant was on notice that truth of his account was in issue.

Evidence Act2001 (Tas), s 108(2)(b).
Aust Dig Magistrates [1122]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  L Pennington
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 17
Number of paragraphs: 50

Serial No 17/2018
File No LCA 1322/2017

C A J v DETECTIVE SENIOR CONSTABLE RUSSELL FORSYTH

REASONS FOR JUDGMENT BRETT J

17 April 2018

The applicant was charged on complaint with one count of assault with indecent intent, contrary to s 35(3) of the Police Offences Act 1935. The offence was alleged to have been committed on 16 July 2016 in the applicant's home. The allegation was that he had indecently assaulted the 14-year old female complainant by touching her bottom.
The complaint was heard by Magistrate S Brown on 31 March 2017. On 12 April 2017, his Honour found the charge proved. He gave oral reasons for doing so. After hearing submissions with respect to sentence, his Honour adjourned the matter to a later date, at which time he imposed a wholly suspended sentence of three months' imprisonment, and made an order that the applicant's name be placed on the register pursuant to the Community Protection (Offender Reporting) Act 2005 for a period of three years.
The applicant has applied to this Court to review the magistrate's finding that the complaint had been proved. There are four grounds of review. The first asserts that a finding that the complaint had been proved was not open to the magistrate as a reasonable person. The remaining three grounds relate to various aspects of the magistrate's reasoning. It is arguable that each can only succeed if the first ground succeeds, and hence is subsumed within it. However, grounds 2 and 3 assert that the magistrate erred by finding that the applicant had reconstructed his evidence, without providing him with the opportunity to deal with this assertion. These grounds are said by the applicant to raise a discrete question of fairness. This argument will require separate consideration.

The evidence

The prosecution case was completely dependent on the magistrate's acceptance of the testimony of the complainant child. The child was aged 14 at the time of the alleged incident and when she gave her evidence before the magistrate. A recorded interview of the child by a police officer was admitted into evidence pursuant to s 5 of the Evidence (Children and Special Witnesses) Act 2001. This interview took place approximately two weeks after the alleged offence. The interview was played to the magistrate and, in practical terms, constituted a significant part of the child's examination-in-chief. The child was cross-examined at length by counsel for the applicant.
It seems that there were some difficulties with respect to the positioning of the child during the course of the police interview. Comments by the magistrate suggest that he was unable to clearly see the child's face during the course of that questioning. However, although her evidence in court was taken by audio visual link, there is no suggestion that his Honour was not able to see and hear the complainant clearly during the course of that testimony.
As the magistrate noted in his reasons, the area of dispute between the evidence of the complainant and that of the applicant was limited to the specific acts of assault alleged by the complainant. It was common ground that the complainant had been living with the applicant and his wife for some time. Also living in the house at the time of the relevant events were the applicant's six children aged between 12 and 2 years, as well as his mother-in-law. The complainant was living there because she had been placed in the care of the mother-in-law who had become unable to look after the child because of medical problems. Accordingly, the applicant's wife was described in evidence as the complainant's guardian.
The complainant alleged that the assault had occurred when she and the applicant were lying together in his bed. According to the applicant, it was not unusual for the complainant and the other children, either individually or together, to lie with the applicant in his bed while they were watching television. They sometimes slept there. The applicant's bed was located in a bedroom in which there was also located a separate bed used by his wife, and the cot of the youngest child, who was then aged 2 years. None of this was disputed by the complainant in her evidence.
On the night in question, the applicant's wife and some of the older children were absent from the house. The applicant's mother-in-law and the other children were present in the house with the complainant and the applicant.
In the police interview, the complainant said that the applicant had touched her bottom. She said, "He just like kept touching my bum … and he kept on grabbing it." She said she had tried to move away and he had "Pulled down my pants like that much." It was not possible for the magistrate to clearly see the demonstration, but in evidence-in-chief at the hearing, the complainant demonstrated a distance which the magistrate accepted was "four to six inches or thereabouts". The complainant also said that at the time the applicant was touching her, "He was like saying he was having sexual thoughts."
In the interview, the complainant said that she was wearing leggings with underpants underneath, and a T-shirt. She said that the applicant asked her if he was "too close to the front … he was like breathing really heavily …".
The complainant said that she told the applicant to stop. She then went on to say:
"and he did stop and laid back down and I said I can't sleep and he said ok I will turn around and leave you alone then and I said I don't like your mattress and so I said I am going back down to my bed."
In the interview, the complainant said that the child S, aged 5, was also in the bed, lying on the other side of the applicant. In cross-examination at the hearing, she confirmed that this was the case. However, later in the cross-examination, she said that the touching occurred after S had got out of the bed.
The applicant gave evidence at the hearing. He agreed that on the night in question, his wife had gone out to a social event, and the older children were at a friend's house. He agreed that the complainant had come to his room and got into his bed, in order to watch a movie. He said that the 5-year old child was lying on his wife's bed, but that the 2-year old lay with them, cradled into his right arm, until the child fell asleep. He then placed the child in the cot.
The applicant said that they lay there until the complainant said that she was going to sleep. When she did, he turned the television off and sent some text messages to his wife. He fell asleep soon after. Sometime later, he was aware that the complainant had got out of bed. She said that she could not "sleep on this mattress, [she] could only sleep in [her] own bed". As she stepped over his legs in order to get off the bed, he grabbed her just above the knees "pretending to give her a bit of a push off the bed". He said that this was a light hearted act consistent with "silly little games like that" that they would play from time to time. He denied attempting to remove her clothing, touching her backside, making any comment to her about having sexual thoughts or engaging in heavy breathing.
Apart from some non-controversial documentary exhibits, the only other evidence in the case was testimony from the applicant's wife. She was called by the prosecutor, but clearly only for the purpose of being made available for cross-examination by the defence. She was not asked any substantive questions in evidence-in-chief.
In cross-examination, the applicant's wife described the circumstances in which the complainant first made the allegation to her concerning the conduct of the applicant. The offence was alleged to have been committed on a Saturday night. On the following Wednesday, the applicant's wife had become angry with the complainant concerning some social media messages which suggested that the complainant had been spending time with a 17-year old male, contrary to the instructions of the applicant's wife. During the course of the conversation, the applicant's wife had become "really angry" and had nailed shut the complainant's bedroom window. She was asked to describe the events which followed:
"What happens next?…..I just – I said to her, you know, like, 'I don't want you drinking and out with 17 year old boys', and that I was her age and I was drinking at her age and that I'd been sexually assaulted and I didn't want that for her because I thought she deserved better and I didn't want her to experience what I'd experienced and then, and then she says, 'Yeah, well we need to talk about something later, too.' And I said, 'Do we?', I said, 'Well, let's do it right now.' She said, 'Can you shut the door?', and I did. I went and sat on her bed and I said, 'Well, what do we need to talk about?' She's looked away and she's, like, 'Oh, don't really want to tell you. You're going to hate me', and I was, like, 'Well, let's hear it. Come on.' She said, 'No, no, I don't want to tell you. You're going to hate me', and I said to her, 'Are you going to try and tell me that my husband tried to touch you?', and she put her hands in her face and she cried – started to cry and she's, like, 'Yes', and I was like, 'Well, what happened?', and she's like, 'He touched me on the bum', tried to take her pants down and said, 'I'm having sexual thoughts', and I was, like, 'Right'. She said, 'I knew you wouldn't believe me. I knew you wouldn't believe me.' I said, 'I'm not saying I don't believe you. I'm just saying I need to consider what you've told me very carefully because, you know, there's two people I care about very much here', and she said, 'I knew you wouldn't believe me. It's just like when I told Mum', and I said, 'Look, you know, I need some time to think about this', and I said to her that I would come back to her in her room and I went out and I closed the door and I went out and I spoke to [the applicant], told him what she'd said."
Upon being confronted with the allegation, the applicant denied its truth, and offered to leave the house until the matter was resolved. However, the applicant's wife made arrangements for the complainant to be returned to the care of her father. The applicant and his wife agreed that they should report the matter to the police. The applicant told her that he had nothing to hide.
In her evidence, the complainant said that she had told a friend about what had happened in the period intervening between the Saturday night and the conversation with the applicant's wife on the Wednesday. The prosecution had served a summons on the friend, but she did not give evidence. The parties agreed that no adverse inference should be drawn from the failure of this witness to give evidence.

The magistrate's decision

The magistrate accepted the truth and accuracy of the complainant's evidence. He stated, more than once, that he found her to be an "impressive witness". He acknowledged that she was uncertain about matters of detail but concluded that these uncertainties were "the product of her youth rather than any intention to mislead or obfuscate or indeed reconstruct". He found that she was "entirely unmoved in cross-examination". In respect of a challenge in cross-examination based on her motivation to make untrue allegations against the applicant, the magistrate stated that "her rejection of that as a motivation was, in my view, implicit". He also found that the complainant, in cross-examination, "did not show any sort of inclination to fill in blanks or explain things that she could not remember or the like".
The magistrate considered the applicant's evidence in some detail. He noted that the applicant was "largely unmoved as to his version of events" in cross-examination. However, the magistrate observed that:
"But at the end of the day I find myself in a position where I have significant doubt as to his reliability as a witness. Very significant doubt. In my view, whilst he was unmoved in terms of admissions that something he'd said was incorrect or incomplete or the like, there was a level of surprising detail included in his evidence which to me smacked very strongly of reconstruction. For example in that regard particularly the particularity with which he was – he gave evidence about times of movements and commencement of various things such as arrival in the upstairs bedroom and when things started, when children moved, how long things – how long people stayed in positions and the like. All of that did not inspire in me any confidence that what I was hearing was a reliable recount of events."
After making this observation, the magistrate then considered the circumstances in which the allegation had come to light, particularly in the context of cross-examination which had, by necessary implication, asserted that the complainant had made false allegations against the applicant to his wife, during the course of his wife's angry reaction to the complainant's conduct, and at the time that his wife nailed the complainant's bedroom window shut. It was also implied that the allegation was made so that the complainant would no longer be able to live with the family, hence facilitating her goal to return to her father's care.
His Honour commented that he did not "form the view that the complaint made to her [the applicant's wife] by the complainant was one which was made … in anger". He concluded that the applicant's wife's evidence was "very much on all fours with the complainant's evidence", and that the complaint about the applicant had been made "more in sadness than in anger".
Finally, the magistrate noted that the question for him was not whether he preferred one version over the other. He stated:
"The single question I must ask myself is am I satisfied beyond a reasonable doubt as to the accuracy of the complainant's version of events and having heard both her, most importantly [the applicant's wife] and [the applicant] I find myself so satisfied and I find the complaint proved".

Grounds 1 and 4

Grounds 1 and 4 are as follows:
1The learned Magistrate erred in fact and, or, in law, in finding the complaint proved when on no reasonable view of the evidence, ought he have been so satisfied.
4The learned Magistrate erred in fact and, or, in law, when applying the principles of Murray's case when considering the evidence of both the complainant and the Applicant by finding the evidence in support of the complaint had reached a standard whereby the Court was satisfied beyond reasonable doubt of the guilt of the Applicant."
Mr Hughes, who appeared for the applicant, argued these grounds together. He submitted that a reasonable view of the evidence must be assessed "in light of the principles that are at play when considering a matter of this nature". The principles in question, in Mr Hughes' submission, arise from the cases of R v Murray (1987) 11 NSWLR 12 at 19 and Liberato v The Queen (1985) 159 CLR 507.
The starting point is, of course, a consideration of the test which is applicable upon a motion to review, where the factual findings and verdict of the magistrate are under challenge in the manner raised by ground 1. I dealt with this question recently in Shepperd v Cannell [2018] TASSC 12. I restate the comments I made in that case as follows at [15]-[17]:
"[15]   It is well settled that a motion of this nature is not to be treated as an appeal by way of rehearing. The question is 'whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion which he or she did': Phillips v Arnold (above). Accordingly, it is not for the judge conducting the review 'to weigh the evidence and reach his or her own conclusions'. Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173, per Blow J (as he then was) at [59].
[16]     In cases which depend upon the magistrate's assessment of the credit of witnesses, and his or her acceptance of their evidence, the Court must pay due regard to the advantage which the magistrate has of observing the witnesses. In Wood v Smith [1991] TASSC 12, Crawford J (as he then was) said:
'26 But having come to that conclusion, I then turned to the reasons of the learned magistrate and in particular the passage I have cited from those reasons in which he stated that he had "absolutely no hesitation" in concluding that he believed the respondent and that she "was a particularly impressive witness who convinced me that she told the truth as she knew it, and I have no reason to think she was mistaken". The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour and Co Pty Ltd [1962] Vic Rp 48; (1962) VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p 119 it was for the magistrate "and not for this appellate court to determine what evidence should be accepted and what weight should be given to it". The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.
27   There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it.'
[17]   In Phillips v Arnold, Crawford CJ, pointed out that the comment at [27] of Wood v Smith 'was based on experience and reflection but, of course, was not a statement of principle'."
It is trite to point out that in assessing whether the magistrate, as a reasonable person, might have come to the conclusion which he did, the focus of the assessment must be on the evidence before him, and further must take into account that the hypothetical reasonable magistrate will have properly directed himself as to the appropriate principles of law. A case such as this, which is in essence, an "oath on oath" case, will engage both Murray and Liberato.
Both cases relate to explanations and warnings which ought be given by a judge to a jury in an appropriate case. Liberato dealt with an "oath on oath" situation and was concerned to correct what seems to have been a commonplace practice at that time, at least in the relevant jurisdiction, whereby a trial judge would invite the jury to consider "who is to be believed". Brennan J said:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

A direction in these terms is regularly given by trial judges in this State to juries in cases which can be described as "oath on oath". It is a direction which properly explains to the jury the task required of it, having regard to the presumption of innocence and the burden of proof. However, it would be incorrect to suggest that it superimposes upon these basic principles, a gloss or some further binding legal requirement. The direction does nothing more than properly explain the application of the presumption of innocence and the burden of proof to a case in which the accused has given evidence and where the jury decision is likely to turn upon its consideration of competing versions of the relevant events. The direction is designed to avoid the jury slipping into a form of fallacious reasoning in accordance with the invitation, which it seems was then being extended by trial judges in some States, to simply decide who they believe. The obvious danger of such reasoning is that a jury will simply compare one version to the other and decide the matter on the balance of probabilities.
The case of R v Murray concerned desirable and permissible comment and/or warning by a trial judge to a jury in a case in which the prosecution case depended upon the uncorroborated evidence of a single witness. The case, a decision of the New South Wales Court of Criminal Appeal, was concerned with permissible comment, having regard to legislative provisions which dispensed with the requirement that a judge must warn a jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness, and prohibited a judge from warning or suggesting to a jury that the law regarded any particular class of complainant as unreliable. These types of warnings had generally been given by judges in respect of the uncorroborated evidence of a complainant in a sex case.
The pertinent observation in Murray is that of Lee J:
"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witnesses' evidence is unreliable."
As Mr Hughes correctly pointed out in his submissions, Murray was cited with approval in Robinson v The Queen [1999] HCA 42, 197 CLR 162 and Tully v The Queen [2006] HCA 56, 230 CLR 234. In Robinson, the High Court made the point that the relevant legislative provision:
"… is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence …".
Again, these are cases concerned with warnings to a jury. They do not add to or place a gloss upon the basic legal principles applicable to the determination of a case, even one which will turn upon the conflicting versions of a complainant and defendant. Of course, a magistrate performing the function of a jury in a summary case must be conscious of and take heed of these warnings in an appropriate case.
I did not understand Mr Hughes to assert, by ground 4, that the magistrate made an identified legal error in respect of his application of the principles dealt with in the said cases. Clearly, in any event, the magistrate was aware of these principles. Mr Hughes had dealt with them comprehensively in his closing submissions at the hearing. The magistrate specifically averted to the exercise described in the direction contained in Liberato when he reminded himself that he must be satisfied of the evidence of the complainant, and be able to accept that evidence beyond reasonable doubt before he could find the charge proved. His Honour correctly observed that it was not a case of simply preferring the complainant's evidence to that of applicant; the single question was whether he was "satisfied beyond reasonable doubt as to the accuracy of the complainant's version of events". Further, it was implicit in this expression of the proper legal test, and can be inferred from his Honour's consideration of the evidence generally, that he subjected the evidence of the complainant to careful scrutiny, in accordance with the Murray warning.
Ultimately, it must be the case that ground 4 can only succeed if ground 1 succeeds. In other words, it is only if the magistrate's satisfaction of reasonable doubt as to the accuracy of the complainant's evidence, and his rejection of the evidence of the applicant was not reasonably open on the evidence, that either ground can be successful. In that sense, ground 4 is subsumed within ground 1.
I am satisfied that it was open to the magistrate, as a reasonable person, to accept the evidence of the complainant, and find the charge proved. Ultimately, the magistrate was entitled to believe the testimony of the complainant, and reject the evidence of the applicant. Mr Hughes pointed to various aspects of the complainant's evidence in which she expressed either vagueness or an inability to recall certain detail, and contrasted that evidence with the explicit recollections of the applicant. Mr Hughes challenged the magistrate's assessment of the complainant as an "impressive witness", relying largely upon her answers in cross-examination. In respect of the applicant, the magistrate had observed that his extensive recall of matters of detail gave rise to a doubt in relation to his reliability. Mr Hughes submitted that such a finding was simply not open, having regard to the evidence of each witness.
The exercise which Mr Hughes invites me to undertake effectively involves weighing up the evidence of each witness and drawing consequent conclusions. However, this was a matter for the magistrate, and not for the court of review. Such an exercise would only be appropriate if the review was by way of rehearing. It is not. The test is whether the magistrate's conclusion was open on the evidence. Although the magistrate in his criticism of the applicant's evidence referred to his reliability, this case essentially turned on the question of credit. It is unsurprising that there was a lack of corroborative evidence, as acts such as those alleged by the complainant are unlikely to be committed in the presence of witnesses. The offence occurred in private circumstances, notwithstanding that other young children were present in the room. It could only be proved if the magistrate accepted, beyond reasonable doubt, that the complainant was a truthful witness, and rejected the applicant as such. Although the magistrate spoke in terms of reliability, when regard is had to his comments in the last paragraph of his decision, it is clear that he, in fact, rejected the evidence of the applicant as truthful. He was entitled to do so. The fact that the applicant may have been able to recall detail accurately, and the complainant not able to do so in respect of events leading up to the relevant incident, said nothing about their respective credibility. Ultimately, this assessment depended upon the magistrate's assessment of the witnesses. This is the task entrusted to the tribunal of fact, and the determination of cases such as this must depend upon that task. This is a necessary consequence of factual determinations made on the basis of hearings which involve oral evidence. It must be reasonably open to a magistrate, acting as the tribunal of fact, to accept the honesty of a particular witness and reject the honesty of another witness. If it were otherwise, then it would be impossible for a criminal court to ever return a verdict of guilty based on the uncorroborated evidence of a single witness.
Of course, this is not to say that there can never be a case in which the court of review concludes that a finding based on credit was not, in the particular circumstances of the case, open to the magistrate. The determination of each case must depend on the particular circumstances. However, in this case, it was open to the magistrate to accept the truth of the complainant's version, and reject the applicant's version as a truthful account.
In any event, it is clear that the magistrate gained some support for his assessment of the credibility of the witnesses from the evidence of the applicant's wife. As already noted, his Honour considered that her evidence described a complaint made "very much more in sadness than in anger". He discounted a motivation on the part of the complainant to make a false complaint.
I have already described that the applicant's wife's evidence was that the complaint was made during the incident when she had become angry with the complainant over the complainant reputedly seeing a 17-year old male. The effect of her evidence concerning the circumstances in which the complaint was made, which is contained in the extract set out above, is that the complainant made the complaint reluctantly and in circumstances which demonstrated that she was genuinely upset about doing so. Although the statements are admissible for a hearsay purpose, that is to prove the truth of the facts asserted in the out of court representations, the probative value of such statements, taken alone, would be limited: see IMM v The Queen [2016] HCA 14, 330 ALR 382. However, it was clearly open to the magistrate to regard the manner and context in which the complaint was made as being consistent with the credibility of the complainant's account, and as providing some support for truth of the complainant's version.
Ultimately, this case depended on the credibility of the complainant and the applicant. The magistrate made a judgment in that regard, that was clearly open to him on the evidence. He was entitled to believe the complainant and not believe the applicant. There is no merit in grounds 1 and 4.

Grounds 2 and 3

Grounds 2 and 3 read as follows:
"2The learned Magistrate erred in fact and, or, in law, by rejecting the evidence of the Applicant as reconstructed.
3The learned Magistrate erred in fact and, or, in law, by finding that the Applicant's evidence was a product of reconstruction when the prosecution failed to assert this to the Applicant during the course of the evidence, thereby denying the Applicant the opportunity to answer the assertion in the course of his evidence."
These grounds were argued together by Mr Hughes. It is asserted that the magistrate made a specific error when he made the observations concerning his impression that the applicant's evidence "smacked strongly of reconstruction", and that this affected the reliability of the applicant's evidence. The full extract of his Honour's impugned comments is set out earlier in these reasons.
In part, Mr Hughes' submission is that the finding as to reconstruction is not justified on the evidence. To that extent, the grounds contain a complaint about the reasoning of the magistrate which is subsumed within ground 1. However, Mr Hughes' argument goes beyond that complaint. He argues that the magistrate made that finding without raising the allegation of reconstruction during the course of submissions, and without the applicant having any other notice of that allegation. He submitted that the magistrate used the finding as to reconstruction to effect his assessment of the credibility of the applicant. It is submitted that the use of the finding in this way was unfair because the applicant had not been given an opportunity to deny and rebut the suggestion. In particular, Mr Hughes notes that the applicant was deprived of the opportunity to deal with the assertion by presenting evidence to re-establish credibility, having regard to the provisions of s 108(2)(b) of the Evidence Act 2001. Under this provision, according to Mr Hughes, the applicant may have been able to adduce previous representations made by him orally or in writing to re-establish credibility and rebut the assertion that he had reconstructed aspects of his testimony.
These submissions are without merit. Firstly, although his Honour used the word "reliability", it is clear that he was assessing the credibility of the applicant's account. The case did not depend on reliability. It was not suggested that the allegations may have resulted from mistake, nor was there any real question that the determination of the case depended on the accuracy of the memory of the complainant or the applicant. The case depended on whether the complainant was telling the truth. By necessary implication, this involved also the question of whether the applicant's evidence was true. His Honour's reference to reconstruction seems to me to be part of an assessment as to whether the evidence had the ring of truth, or, alternatively, was contrived and fabricated. It was part of the overall assessment of the credibility of the applicant's evidence. By reconstruction, I think his Honour can be taken to have meant fabrication.
The applicant must have been aware, and on notice, that the truth of his denials was in issue. This was self-evident from the evidence of the complainant, the nature of the case generally, and the cross-examination of him by the prosecutor. In respect of the general question of credibility, it cannot be suggested that he was taken by surprise. The rule in Brown v Dunn (1893) 6 R 67 (HL). is a rule of practical fairness. It requires that a witness be given notice if the evidence of the witness is to be challenged, either by contradictory evidence or by submission. In the case of a general attack on the credibility of the applicant's version, the rule had no role to play in this case.
Further, this was not a case in which his Honour was suggesting that there has been a "recent fabrication", for example by reference to a prior inconsistent statement. Therefore, as his Honour's reference to reconstruction had no temporal context, it is difficult to see how any prior consistent statement adduced by or on behalf of the applicant could have had any significant bearing on his Honour's assessment of the credibility of the applicant's evidence. Finally, a previous representation by the applicant, if made when the occurrence of the asserted facts were fresh in the memory of the applicant, was admissible in any event, having regard to the exception to the hearsay rule contained in s 66 of the Evidence Act. Section 108 was not applicable to such evidence. This is because the evidence was not credibility evidence within the meaning of s 101A, and hence the credibility rule did not apply to the evidence. The evidence was admissible for a hearsay purpose, pursuant to s 66, and accordingly was not relevant only because it affected the assessment of the credibility of the witness.
Ultimately, the magistrate's determination of guilt depended upon satisfaction beyond reasonable doubt that the complainant had given accurate evidence about the acts which constituted the offence. Because there was little, if any, room for error, this came down to whether his Honour was satisfied beyond reasonable doubt that the complainant was truthful. He could not be so satisfied if he accepted that there was a reasonable possibility that the version given by the applicant was true. By necessary implication, by rejecting the evidence of the applicant, his Honour has found that evidence to be untrue. His assessment of the detail of the applicant's testimony as reconstructed, was clearly in the context that he regarded the tenor of the evidence as sounding fabricated or contrived. The fact that the applicant may have said exactly the same thing at an earlier time could have had no rational bearing on this assessment. In any event, the applicant was clearly aware that the truth of his account was in issue. To the extent that any other evidence or previous representation by him may have impacted on that question, he was entitled to adduce that evidence in any event. The fact that the applicant did not does not logically flow from the magistrate's reasoning, but rather from the probability that the applicant and his counsel understood that any such evidence would not have rationally affected the assessment of his credibility to any significant extent.
I am satisfied that there is no merit in grounds 2 and 3.

Conclusion

As I have determined that all of the grounds of review are without merit, the motion will be dismissed.