Clark v Neff - [2020] WASC 475

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CLARK -v- NEFF [2020] WASC 475
CORAM:   ALLANSON J
HEARD:   14 SEPTEMBER 2020
DELIVERED          :   24 DECEMBER 2020
FILE NO/S:   SJA 1134 of 2019
BETWEEN:   GREGORY JOHN CLARK
Appellant
AND
ORLA NEFF
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N J LEMMON
File Number            :   FR 1972 of 2019

Catchwords:

Criminal law - Appeal against conviction - Where prosecution alleged driving instructor indecently assaulted 16 year old student by touching her thigh during lesson - Where prosecution led as propensity evidence that appellant touched another 16 year old student between four and five years earlier - Whether evidence had significant probative value - Turns on own facts

Criminal law - Evidence - Where propensity witness gave evidence of complaint to her mother - Whether magistrate erred in admitting and using the evidence of complaint by propensity witness - Turns on own facts

Criminal law - Recent complaint - Whether complaint made at earliest reasonable opportunity - Turns on own facts

Criminal law - Where magistrate made findings against credit of appellant based on his interview with police - Whether magistrate reversed the onus of proof - Turns on own facts

Criminal law - Whether magistrate required to direct himself in accordance with Liberato v The Queen

Criminal law - Whether magistrate required to direct himself as to the use of evidence of the complainant's distressed condition

Criminal law - Whether magistrate erred in finding assault indecent - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 119, s 120
Evidence Act 1906 (WA), s 31A
Magistrates Court Act 2004 (WA), s 131

Result:

Leave to appeal granted in part
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T Percy QC & A Munday
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
DKA v The State of Western Australia [2017] WASCA 44
Fleming v The Queen (1998) 197 CLR 250
La Bianca v The State of Western Australia [2019] WASCA 105
Liberato v The Queen (1985) 159 CLR 507
McPhillamy v The Queen (2018) 92 ALJR 1045
MNA v State of Western Australia [2020] WASCA 84
R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
SPW v The State of Western Australia [2012] WASCA 41

ALLANSON J:

On 22 August 2019, the appellant was convicted, after trial in the Magistrates Court, on one charge of unlawful and indecent assault.
On 23 October 2019, the appellant filed a notice of appeal against conviction and sentence. On 29 May 2020, the appellant filed amended grounds against conviction only.

The Magistrates Court proceedings

The court heard evidence on 30 July and 13 August 2019. The magistrate reserved his decision and delivered it on 22 August 2019, with sentencing on 19 September 2019.
There was an earlier hearing on 24 July 2019 to consider an application by the prosecution to lead propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA).

The application to adduce propensity evidence

The prosecution applied to lead evidence of Ms H (a propensity witness), Ms G (an early complaint witness for Ms H) and Ms C (a second propensity witness). The prosecutor submitted that the evidence was to rebut accident and to show 'a systematic course of conduct'.[1]
[1] ts 24 July 2019, 31.
In a detailed ruling on 29 July 2019, after summarising the case in relation to Ms E, and the evidence sought to be led, his Honour said, correctly, that in his interview with the police the appellant had not admitted repeatedly touching Ms E in the manner she alleged.[2] He also identified, as matters to be taken into account in determining whether any touching was indecent, 'whether there was any touching at all and, if so, the nature of the touching. That is, the exact physical circumstances in which it occurred'.[3]
[2] ts 29 July 2019, 6.
[3] ts 29 July 2019, 6.
His Honour held that the proposed evidence of Ms H and Ms C fell within the definition of propensity evidence and arguably also relationship evidence, as defined in s 31A of the Evidence Act. He identified 'very obvious similarities' being that the inappropriate touching occurred while the accused was giving driving lessons; involved the touching of the left thigh on multiple occasions while the complainant was driving; and both Ms H and Ms C were sufficiently concerned about the behaviour to tell their parents about it.[4]
[4] ts 29 July 2019, 7 ‑ 8.
His Honour found that evidence of 'very similar' conduct in 2016 and 2015 had significant probative value when determining whether 'the accused did the acts alleged and otherwise behaved inappropriately towards the complainant'.[5]

The prosecution case

[5] ts 29 July 2019, 8.

The prosecution case was that at about 9.00 am on 1 February 2019, the appellant attended at Ms E's home to take her for a driving lesson. During the lesson, he touched Ms E to her upper left thigh numerous times, 'with a facedown palm on her thigh' and also placed his hand over her left hand on the steering wheel and asked her if she was cold.[6]
[6] ts 30 July 2019, 6.
In discussion with the magistrate, the prosecutor identified the alleged indecent assault as the appellant placing his hand facedown, for two or three seconds, on Ms E's upper left thigh and that there was other touching by him of that area of her body.[7] The prosecutor also submitted that the touching of Ms E's hand on the steering wheel could itself be an unlawful and indecent assault.[8]

The evidence of Ms E

[7] ts 30 July 2019, 10.

[8] ts 30 July 2019, 11.

Ms E gave evidence that her mother had organised for her to have driving lessons and had contacted the appellant. The first lesson was on 1 February 2019. The lesson was in the appellant's automatic vehicle.[9]
[9] ts 30 July 2019, 16 ‑ 17.
After getting in the car Ms E said the appellant had a general conversation with her for about 10 minutes before instructing her to adjust the seat so it was comfortable for driving. Ms E said that before taking off, the appellant placed his hand over her hand on the handbrake.[10]
[10] ts 30 July 2019, 18 ‑ 19.
Ms E said that after a few minutes of driving after leaving her house, the appellant started to reach over and touch her with his palm on the top of her thigh.[11] She said he did this after giving her an instruction or before giving an instruction. Ms E said it was on her skin, and described the touch as being 'like a tap sort of'.[12] Ms E said the tap or touch occurred very frequently and too many times to keep track of.[13]
[11] ts 30 July 2019, 19.
[12] ts 30 July 2019, 19 ‑ 20.
[13] ts 30 July 2019, 21.
Ms E said that the appellant had made some inappropriate comments to her. Ms E said that the appellant asked her if she had a boyfriend, and then placed his hand over her thigh and held it there for a few seconds before removing it while they were stationary in a car park (they had stopped to practice parking).[14]
[14] ts 30 July 2019, 22 ‑ 23.
She described the appellant reaching over and putting his right hand over her left hand while they were driving home. Her hand was on the steering wheel and the appellant said that he was checking to see if her hand was cold, referring to the air conditioning.[15]
[15] ts 30 July 2019, 24 ‑ 25.
Ms E said that when they resumed driving, the appellant continued the tapping of her thigh.[16]
[16] ts 30 July 2019, 25.
When Ms E arrived home from the lesson her mother was there, but left immediately for work. Ms E said she told her mother what had happened when her mother came home from work later that day.[17] The evidence does not show when that was.

The evidence of Ms E's mother

[17] ts 30 July 2019, 26, 29.

Ms E's mother gave evidence. She described seeing the appellant, at the end of the lesson, lean into the car and touch Ms E on her thigh.[18]
[18] ts 30 July 2019, 60 ‑ 61.
Ms E's mother described her daughter's demeanour after the lesson as 'flat', and that it was clear that something was not quite right when Mrs E did not want to sign up for another lesson when it was suggested to her.[19] She also gave evidence of Ms E bursting into tears after she asked how the driving lesson was and that Ms E complained to her when she came home from work.[20]

The evidence of Ms C

[19] ts 30 July 2019, 62.

[20] ts 30 July 2019, 63 ‑ 64.

The prosecution relied upon the evidence of Ms C as propensity evidence. Ms C was aged 21 at the time of the trial.[21] She had three driving lessons with the appellant when she was 16 1/2 years old. Ms C and her family had known the appellant, through little athletics, since she was about seven years old. [22]
[21] ts 13 August 2019, 14.
[22] ts 13 August 2019, 15.
Ms C gave evidence that during her third lesson with the appellant, he would pat the inside of her leg area (demonstrated as being the front of her upper thigh) every time she made some sort of mistake.[23] She said it happened around three times and was on the skin of her leg, and was not lingering.[24] She described the touching as being slightly closer to her groin than to her knee,[25] and with a cupped hand.[26] The appellant made a comment about making sure she look in the rear view mirror so he could see her 'beautiful eyes'.[27] The touching, however, was not accompanied by any sexual comments.[28]
[23] ts 13 August 2019, 16.
[24] ts 13 August 2019, 18.
[25] ts 13 August 2019, 24.
[26] ts 13 August 2019, 28.
[27] ts 13 August 2019, 22.
[28] ts 13 August 2019, 27.
Ms C said she told her parents what had occurred during the third driving lesson and told them she did not want to do any more driving lessons with the appellant.[29]
[29] ts 13 August 2019, 19.
No other evidence was called regarding Ms C's complaint to her parents.

The evidence of Ms H

The prosecution also relied on a second witness, Ms H, giving propensity evidence. Ms H had four lessons with the appellant in 2016 when she was aged 20.[30] Ms H said that during the first lesson, the appellant had stopped and bought her a coffee.[31] During the second lesson, the appellant made complimentary remarks about her looks. She said he was 'invasive', and would touch her thigh continuously when she used the clutch.[32] During the third lesson, he touched her face, and brushed her hair out of her eyes.[33]
[30] ts 30 July 2019, 83.
[31] ts 30 July 2019, 84.
[32] ts 30 July 2019, 85.
[33] ts 30 July 2019, 87.
The magistrate was not persuaded as to the accuracy of the evidence of Ms H regarding the nature of the physical contact during the driving lessons, and did not rely on it.[34]

The police interview

[34] ts 22 August 2019, 141 ‑ 143.

A video recording of the police interview with the appellant was played as part of the prosecution case. The interview was conducted on 20 February 2019 ‑ 19 days after the lesson with Ms E.
The police told the appellant that Ms E was 16 and she alleged that during a driving lesson on 1 February 2019 he 'indecently touched her to her left upper thigh'.[35]
[35] ts of WA Police Recording Interview, 7.
The appellant said, initially, that he was 'struggling' to remember Ms E. From his phone record, he could confirm that he gave Ms E a driving lesson and said that it was possible he touched her leg.[36] The appellant said
I certainly wouldn't have done anything knowingly inappropriate. I wouldn't have reached across and I wouldn't - I would not have stroked her leg or anything like that.[37]
[36] ts of WA Police Recording Interview, 7 ‑ 8.
[37] ts of WA Police Recording Interview, 9.
The appellant told police that he gave six to eight lessons a day, seven days a week, and it was hard to remember Ms E.[38] The majority of his students were female.[39] Many were from boarding schools.[40]
[38] ts of WA Police Recording Interview,7, 9.
[39] ts of WA Police Recording Interview, 16.
[40] ts of WA Police Recording Interview, 16.
He told police that he was outgoing, and was relaxed and friendly and tried to make students feel comfortable by being friendly.[41]
[41] ts of WA Police Recording Interview, 17 ‑ 18.
The appellant said that he did not think he would have touched Ms E's upper thigh intentionally.[42] He could not recall Ms E's lesson specifically.[43]
[42] ts of WA Police Recording Interview, 24.
[43] ts of WA Police Recording Interview, 25.
The appellant was asked also about Ms H. He could recall her because he could remember receiving a letter from Ms H's mother complaining about his conduct towards Ms H about three years earlier.[44]

The defence case

[44] ts of WA Police Recording Interview, 38 ‑ 39.

The appellant gave evidence.
He said that he had been a driving instructor for about six years, and would see possibly 30 to 35 students a week.[45] He was now able to remember more about Ms E, having seen her in court and googled her street address.[46] The appellant agreed that he may have touched Ms E's hand while releasing the handbrake, but denied having any sexual motivation.[47] He recalled Ms E as being nervous and said they would have spoken about all sorts of things: school, sport, mutual friends, boyfriends, part-time jobs, subjects at school. He denied any motivation in asking her about whether she had a boyfriend, and denied any sexual attraction to her.[48]
[45] ts 13 August 2019, 34 ‑ 35.
[46] ts 13 August 2019, 35.
[47] ts 13 August 2019, 37.
[48] ts 13 August 2019, 37.
The appellant could recall tapping Ms E near her knee with the back of his hand and saying, 'let's go' to encourage her to push the accelerator to drive out of the driveway.[49] The appellant said he may have touched her leg or arm with the back of his hand in the course of the lesson as an encouragement if Ms E was hesitant.[50] He could not recall touching Ms E's hand on the steering wheel, but agreed it could have happened.[51]
[49] ts 13 August 2019, 38.
[50] ts 13 August 2019, 39.
[51] ts 13 August 2019, 40 ‑ 41.
The appellant denied that he could have placed his hand palm down on her thigh and held it there for two or three seconds.[52] He denied that any touching was motivated by sexual interest or that he wanted to touch her for the sake of touching her.[53]
[52] ts 13 August 2019, 42, 58.
[53] ts 13 August 2019, 39, 58, 74.
The appellant could remember the lessons with Ms C. He could not recall touching her on the leg although he agreed that it was possible 'once or twice'. The appellant said it would have been to encourage her to move on, or to admonish her to concentrate.[54] The appellant said that tapping her on the leg was 'just so that the correction was friendly and flippant, rather than a discipline or a criticism'.[55]

The magistrate's findings

[54] ts 13 August 2019, 48, 69.

[55] ts 13 August 2019, 48.

The magistrate reserved his decision and, on 22 August 2019, gave detailed reasons. After stating the principles relating to burden and standard of proof in criminal trials, and summarising the evidence, his Honour identified the primary factual issue as 'the precise nature of [the] physical contact' between the appellant and Ms E. His Honour said that there was no dispute that the appellant initiated physical contact with Ms E, Ms C and Ms H when alone in the vehicle with them. His Honour noted the obvious conflict in the evidence between the appellant's account of 'tapping [Ms E and Ms C] on the side of their upper leg with the back of his hand' and the accounts given by Ms C and Ms E that the appellant 'repeatedly placed his cupped palm on … the skin of their thigh area between the knee and the groin'.[56]
[56] ts 22 August 2019, 136.
His Honour considered whether either of the young women could have been mistaken about the nature of the physical contact and found that the sensation of being touched in the manner described was 'so fundamentally different' from that of being tapped on the side of the leg with the back of the hand that there was no possibility that the appellant could have acted as he said and that Ms E and Ms C were mistaken about it.[57]
[57] ts 22 August 2019, 137.
His Honour found that he had serious doubts about the appellant's evidence and found the evidence of Ms C and Ms E in relation to the nature of the physical contact 'particularly persuasive'.[58] After summarising the evidence, his Honour made these findings:
(1)The appellant's physical contact with Ms C was as she described it in her evidence, and that finding enabled him to use her evidence to 'bolster the credibility' of Ms E's evidence.[59]
(2)In the late afternoon or early evening of the day of the lesson, Ms E complained to her mother that the appellant had touched her hand and touched her on the leg during the lesson.[60]
(3)Ms E's mother was running late for work when Ms E first returned from the lesson, and the complaint Ms E made to her mother when she returned home was as soon as practicable.[61]
(4)Ms E was visibly upset and crying when she told her mother.[62]
(5)The evidence of Ms E's mother, if accepted, established consistency and supported the credit of Ms E.[63]
(6)There was no possibility that Ms E had mistaken conduct as described by the appellant for the touching she described.[64]
(7)Ms E and Ms C gave similar descriptions of the physical contact by the appellant; the two girls were of the same age when the alleged conduct took place; both cases involved contact with the bare skin of the thigh area.[65] Ms E said the touching occurred more frequently and went on longer.[66]
[58] ts 22 August 2019, 141.
[59] ts 22 August 2019, 144.
[60] ts 22 August 2019, 144.
[61] ts 22 August 2019, 145.
[62] ts 22 August 2019, 145.
[63] ts 22 August 2019, 145.
[64] ts 22 August 2019, 145.
[65] ts 22 August 2019, 145.
[66] ts 22 August 2019, 146.
His Honour found Ms E to be an impressive witness. He found her credibility was 'significantly reinforced' by the evidence of her mother and by the evidence of Ms C.[67] He described her evidence as both honest and reliable and said:
…when I have regard to the deficiencies in the accused's evidence that I've identified, and the fact that [Ms E's] evidence of the accused's physical contact with her while driving was, in my view, both honest and reliable, I am able to be satisfied beyond reasonable doubt that while driving the vehicle the accused touched [Ms E] in the manner she described.
…
Her evidence of the accused resting the palm of his hand on her thigh for a few seconds was both cogent, believable and … persuasive, and I am satisfied beyond reasonable doubt the accused touched [Ms E] as she described while the car was stationary in a car park.[68]
[67] ts 22 August 2019, 146.
[68] ts 22 August 2019, 146 ‑ 147.
His Honour found that there was no consent by Ms E to being touched repeatedly in the manner he had found, and no basis for the appellant to believe she was consenting to that form of contact. His Honour found that the touching was unlawful.[69]
[69] ts 22 August 2019, 148.
His Honour then considered whether the touching was indecent and, by two different paths of reasoning, found that it was.
First, he found that, in the circumstances, it was unbecoming or offensive to common propriety for the appellant to touch Ms E in the way he did. His Honour noted the relevant circumstances as including the age of the appellant and the age of Ms E, their being confined alone in a vehicle, the nature of the touching, and that the touching was of a part of the body that was 'private or intimate'. On that basis he was satisfied that the assault was indecent.[70]
[70] ts 22 August 2019, 149 ‑ 150.
Second, his Honour found there was no legitimate reason for a driving instructor to touch a student in that way, and that the appellant was not motivated to do so to assist her with driving. He said that he could see no motivation for the touching other than that the appellant was motivated by sexual desire. By that independent reasoning, his Honour found the touching of Ms E's thigh, both while driving and when the car was parked, to be indecent.[71]
[71] ts 22 August 2019, 150.

The appeal

The grounds of appeal

The appellant relies on eight grounds of appeal (particulars omitted):
1.The learned Magistrate erred in admitting the evidence of the witness [Ms C] as propensity evidence under section 31A of the Evidence Act 1906 (WA).
2.The learned Magistrate erred in:
i.Admitting the complaint of the witness [Ms C] to her parents; and
ii.Using it as tending to enhance or bolster the evidence of the witness and the evidence of the complainant.
3.The learned Magistrate erred in admitting into evidence or relying on the evidence of the complaint by the complainant to her mother; that complaint not having been made at the earliest reasonable opportunity.
4.The learned Magistrate erred in his assessment of the Appellant's evidence and his video record of interview by effectively reversing the onus of proof.
5.The learned Magistrate erred in law by failing to direct himself in accordance with the principle in Liberato v The Queen (1985) 159 CLR 507.
6.The learned Magistrate erred in failing to direct himself as to the limited extent to which the evidence of the complainant's distressed condition could support the prosecution case.
7.The learned Magistrate erred in finding that the assault on the complainant was indecent.
8.In the event that the Court was not persuaded that any of the matters set out in Grounds 1 to 6 individually had led to a miscarriage of justice, the accumulation of the errors alleged therein have, in combination, led to a miscarriage of justice.

Consideration

Ground 1

In submissions, the appellant expanded ground 1 by alleging error in relying upon the evidence of Ms C.
In particulars the appellant contends that, in the absence of any evidence of any ongoing interest in young female student drivers in the period 2015 to 2019 and a tendency to act on that interest, the evidence of Ms C had no significant probative value.
The evidence of Ms C was propensity evidence as defined in s 31A of the Evidence Act, being:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.
The appellant submitted (the magistrate having not accepted the evidence of Ms H) that there was no evidence that, in the period since Ms C's driving lessons, the appellant had exhibited any propensity or tendency to act on an interest in touching young female students intimately during driving lessons. Relying on McPhillamy v The Queen,[72] the appellant submitted that it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. It is not sufficient for the evidence to indicate a sexual interest, and such evidence is not significantly probative when a significant period of time has elapsed between the proposed tendency evidence and the alleged offending: 10 years in McPhillamy, and about five years in the present case.
[72] McPhillamy v The Queen (2018) 92 ALJR 1045.
The appellant also referred to comments of Derrick J in MNA v State of Western Australia where his Honour said:
The evidence of the appellant's tendency was not capable of proving that he had in any way acted on his sexual interest in young teenage girls at a time that was substantially contemporaneous with, or even temporally proximate to, the alleged touching of A the subject of the offence of which he was convicted. [73]
[73] MNA v State of Western Australia [2020] WASCA 84 [179]. (emphasis omitted)
The facts of MNA are clearly distinguishable. The relevant charge against MNA was that he indecently dealt with a child under the age of 13 years between 1 August and 30 November 2016. The propensity evidence was not evidence of prior indecent acts but of things that MNA wrote in two online conversations with a person whom MNA believed to be a 13-year-old girl. The conversations were in 2013.
To be admissible, pursuant to s 31A(2) of the Evidence Act, the evidence must, either by itself or having regard to other evidence adduced, have significant probative value. The principles relevant to whether propensity evidence has significant probative value have been summarised in a series of cases in the Court of Appeal.[74] Relevantly, evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. 'Significant' connotes a probative value that is important or of consequence. Whether the probative value is 'significant' 'will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact'.[75] The more specific the alleged similarity between the conduct led as propensity evidence and the conduct the subject of the charge, and the nature and extent of the similarity, are relevant to whether the evidence has significant probative value.
[74] See DKA v The State of Western Australia [2017] WASCA 44 [30] - [44]; RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [50] ‑ [52], [185]; LaBianca v The State of Western Australia [2019] WASCA 105 [24] - [26], [144].
[75] DKA v State of Western Australia [30].
When determining whether the trial miscarried in consequence of the admission of propensity evidence, the court is concerned with the use made of the evidence at trial, rather than the reason for its admission. It is for this court to form its own view about whether the evidence had significant probative value.[76]
[76] MNA v State of Western Australia [67].
In the present matter:
(1)the two incidents were separated by about four or five years,[77] and (the evidence of Ms H not being accepted) there is no evidence of any similar behaviour in the intervening period;
(2)both incidents occurred while the appellant was giving a driving lesson;
(3)Ms E and Ms C were of the same age when the alleged conduct took place;
(4)Ms E and Ms C gave similar descriptions of the physical contact, being a touch to the thigh with a cupped palm, although Ms E said the touching was more frequent and there was one more lingering touch;
(5)on both occasions, the appellant made comments or asked questions that were personal and could be regarded as inappropriate comments for him to make to a young student; and
(6)the appellant's evidence of 'tapping' students near the knee, with the back of his hand, put in issue the precise nature of the conduct.
[77] It is only possible to estimate the period from Ms C's evidence that she was then 16 1/2 years old, and was 21 at the time of trial.
Ms E was cross‑examined about whether she had previously described the contact by the appellant as 'tapping', and whether the appellant had touched her with the palm of his hand.[78] She was cross‑examined about whether the touch was to her knee or her upper thigh, and whether she was confused about where she was touched.[79] It was suggested that she had been 'over-thinking' the touching of the leg.[80]
[78] ts 30 July 2019, 38, 40 ‑ 41.
[79] ts 30 July 2019, 42, 45.
[80] ts 30 July 2019, 42.
The appellant gave evidence of 'just tapping [Ms E] near the knee' with the back of his hand to encourage her to go; on the outside of the leg, closer to the knee than the hip. He said he would touch students on the arm or leg if they were hesitant.[81] He described Ms E as 'nervous',[82] while describing Ms C as 'pretty good'.[83]
[81] ts 13 August 2019, 38, 40.
[82] ts 13 August 2019, 55 - 56.
[83] ts 13 August 2019, 69.
There is, in my opinion, sufficient specific similarities between the conduct on each occasion to link them, so that the findings regarding the appellant's conduct to Ms C were probative of whether his conduct towards Ms E was as she described. Where the appellant admitted some touching, but denied it was as described and denied any sexual motivation, the probative value of the evidence was important.
I am satisfied that the evidence of Ms C was properly admitted, and the magistrate did not use it incorrectly as independent evidence bolstering the credibility of Ms E's account.
I would grant leave on ground 1 but not uphold it.

Ground 2

In particulars the appellant contends that:
i.[Ms C] was called by the prosecution as a propensity witness.
ii.It was not open to receive or use evidence of [Ms C's] complaint to her mother or of those events.
iii.By using the complaint of [Ms C] to bolster the evidence of [Ms E], the learned magistrate was in error.
The evidence of complaint was in this context: Ms C said that she had known the appellant for some years and knew him to have a boisterous personality and to be very friendly with the young people at little athletics. She said:
so I sort of passed it off as this is me just being uncomfortable and him being friendly. So more of a 'me' problem than something that was weird about the situation …
… And then that night I felt weird about it enough that I told my parents about it, so it wasn't fun.[84]
[84] ts 13 August 2019, 18 ‑ 19.
The evidence was not objected to.
In cross‑examination, it was put to Ms C that she was not going to make a complaint about the appellant until she saw a report in the media, and 'because you heard about it in the media, it made you regurgitate and rethink about these things, in a way that you had not previously thought about them'.[85] Ms C responded that her view had not changed and 'what I said to my parents on the first night, is the same as what I'm saying now'.[86]
[85] ts 13 August 2019, 29 (emphasis added).
[86] ts 13 August 2019, 29.
Following that cross‑examination, Ms C was re-examined about why she came forward.[87]
[87] ts 13 August 2019, 30 ‑ 31.
His Honour referred to Ms C's evidence about her complaint to her parents in discussing the nature of the physical contact by the appellant. He referred to Ms C's evidence that the appellant's conduct had made her feel 'clenched up' and 'cringey', so that she told her parents and said that she did not want to continue driving lessons with the appellant.[88] Where the evidence had not been objected to, and where it had been directly put to Ms C that she had not previously thought about the appellant's conduct in the way she now testified, I find no error in his Honour making the findings that he did.
[88] ts 22 August 2019, 143.
Further, on a fair reading of his Honour's reasons, it is not accurate to say that he used the evidence that Ms C told her parents as 'tending to enhance or bolster' her evidence or that of Ms E.
I would not grant leave on ground 2.
It is not necessary to deal with the argument advanced by the respondent that recent complaint evidence is generally admissible to bolster the credibility of a witness giving propensity evidence, as it is to bolster the credibility of the complainant. I am unaware of any authority for such a proposition and, where it is not necessary to decide it, would leave such an issue for another case and, preferably, a Court of Appeal.

Ground 3

In ground 3, the appellant alleges error in admitting into evidence or relying on the evidence of the complaint by Ms E to her mother when that complaint was not made at the earliest reasonable opportunity.
It is not clear, on the evidence, what the extent of the delay was in making the complaint. Ms E's mother was home when Ms E returned from the lesson. She paid the appellant for the lesson, but then had to go straight to work. Ms E said she felt 'like in shock and quite like confused'.[89] She went into the house, her mother had gone at that point.[90] When her mother returned from work, Ms E was upset and crying and told her mother what had happened.[91]
[89] ts 30 July 2019, 26.
[90] ts 30 July 2019, 28.
[91] ts 30 July 2019, 29.
Ms E's mother said that Ms E returned from the lesson after 10.15 am. She was waiting in the front garden because she was due to go to work at 10 o'clock.[92] Ms E's mother said she was already 20 minutes late for work so she jumped into her car while Ms E went into the house.[93]
[92] ts 30 July 2019, 60.
[93] ts 30 July 2019, 62.
When she got home from work, she asked Ms E how the lesson went and Ms E began to cry and told her about the touching and comments during the lesson.[94] Ms E's mother said that she had to go back to work again, and they had a discussion that evening when her husband came home.[95]
[94] ts 30 July 2019, 63.
[95] ts 30 July 2019, 64.
On that evidence, the complaint was not immediate but it was made as soon as Ms E's mother came home. Counsel for the appellant had not objected to the complaint evidence on the basis of when it was made. Had she done so, it might well have opened up the issue of whether an earlier complaint had been made to a friend of Ms E.
Whether a complaint has been made at the first reasonable opportunity is an evaluative judgment, taking into account all relevant facts and circumstances, and, often, will involve questions of fact and degree.[96] I find no error in the magistrate accepting that the complaint was made as soon as practicable and could be received as recent complaint evidence[97] when regard is had to these circumstances:
(1)Ms E's age;
(2)her evidence that she was shocked and confused;
(3)the nature of the appellant's conduct;
(4)the lesson ending late with her mother leaving immediately for work; and
(5)the complaint being made immediately on her mother's return from work.
[96] SPW v The State of Western Australia [2012] WASCA 41 [53], [57].
[97] ts 22 August 2019, 145.
I would refuse leave on ground 3.

Ground 4

The appellant asserts that, in his assessment of the appellant's evidence and his video record of interview, the magistrate erred by effectively reversing the onus of proof. He submits that the magistrate implicitly required the appellant to prove his own honesty and the veracity of his account.
There is no doubt about the principle to which the appellant refers ‑ the onus of proof remained on the prosecution at all times. The appellant relied on selective quoting from the reasons of the magistrate, which did not demonstrate that his Honour proceeded otherwise.
The critical issue in this case was the nature of the appellant's contact with Ms E. The appellant put forward an explanation of why he might have contact with a student, and why that contact was justified. There could be no error in the magistrate finding that the appellant's evidence, and what he said in the police interview, was unconvincing and saying why. Rejecting an accused person's explanation is not the same as reversing the onus of proof.
His Honour clearly made his findings by reference to the evidence of the prosecution witnesses. First, his Honour found beyond reasonable doubt that the appellant's physical contact with Ms C was as she described it.[98] He then considered the evidence of Ms E, the use that could be made of the propensity evidence, and of the evidence of complaint. While His Honour referred to 'deficiencies' in the appellant's evidence.[99] I am satisfied that he proceeded on the correct understanding that the onus lay on the prosecution.
[98] ts 22 August 2019, 144.
[99] ts 22 August 2019, 138 ‑ 141, 145 ‑ 147.
I would refuse leave on ground 4.

Ground 5

The appellant alleges error of law in the magistrate's failure to direct himself in accordance with the principle in Liberato v The Queen.[100]
[100] Liberato v The Queen (1985) 159 CLR 507.
In written submissions, the appellant argued that magistrates are required to give themselves the same warnings as would be required of a judge directing a jury. The appellant relied on the comments in Fleming v The Queen[101] and s 119 and s 120 of the Criminal Procedure Act2004 (WA).
[101] Fleming v The Queen (1998) 197 CLR 250.
Fleming v The Queen concerned the statutory requirement in s 33(3) of the Criminal Procedure Act1986 (NSW) for a judge sitting without a jury to take any warning required to be given to a jury into account. The court said:
The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.
Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.
The obligation imposed by s 33(3) 'to take the warning into account' is not only to be discharged but also to be seen to be discharged …[102]
[102] Fleming v The Queen [30] ‑ [33].
There is a corresponding provision in Western Australia s 119 and s 120 of the Criminal Procedure Act which applies to prosecutions in a superior court.
For prosecutions in the Magistrates Court, the relevant provision is s 31 of the Magistrates Court Act 2004 (WA) by which:
(1)The Court's reasons for a judgment in a case ‑
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The magistrate was not required by s 31 to include any express Liberato direction.
A Liberatodirection is needed when the trial judge perceives a real risk that a jury might reason, incorrectly, that the evidence on which an accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. His Honour stated, as an introductory remark, that his key finding of fact depended on 'whether I can reject the accused's evidence as to the nature of the physical contact and accept the evidence of [Ms C] and [Ms E] on this issue such that I can be satisfied beyond reasonable doubt that the touching did occur in the way described by [Ms C] and the complainant'.[103]
[103] ts 22 August 2019, 137. (emphasis added)
In the ensuing reasons, his Honour rejected the evidence of the appellant, including the explanations he gave in his interview with the police.[104] He then separately considered the prosecution evidence and made findings which included a finding that the evidence of Ms H was not of sufficient quality to allow him to make findings as to the precise nature of any physical contact with her.[105]
[104] ts 22 August 2019, 138 ‑ 139.
[105] ts 22 August 2019, 142 ‑ 143.
Critically, his Honour found as to the evidence of Ms E:
Her evidence of the accused resting the palm of his hand on her thigh for a few seconds was both cogent, believable and … persuasive, and I am satisfied beyond reasonable doubt the accused touched [Ms E] as she described while the car was stationary in a carpark.[106]
[106] ts 22 August 2019, 147.
The reasons of a magistrate are to be read reasonably and fairly. I find nothing in them to support a finding that his Honour misdirected himself so as to simply find which version he preferred, or otherwise reasoned incorrectly as to the finding of guilt.

Leave to appeal should be refused on ground 5.

Ground 6

In this ground the appellant alleges that the learned magistrate erred in failing to direct himself as to the limited extent to which the evidence of Ms E's distressed condition could support the prosecution case.
In written submissions the appellant argued that his Honour should have directed himself that '[Ms E's] condition could reasonably be attributable to some other cause, such as remorse derived from consensual sexual behaviour which she later regretted', or 'could have been the result of incidents which did not form part of the charge'.[107]
[107] Citing Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [50]; and R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366 [42].
The magistrate was deciding the case before him. He was required by s 31 of the Magistrates Court Act to identify the facts that he had accepted and the law he had applied, and to give reasons for doing so. It was never put to Ms E that there was some other reason for her distress, nor does the evidence reveal anything that could have caused it.
In his reasons for decision, the learned magistrate found that Ms E was 'visibly upset and crying' when she made the complaint to her mother, and that this was unusually emotional behaviour for her.[108] He did not refer separately to the evidence of distress, but found only that the complaint established consistency and could be used to buttress Ms E's credibility.
[108] ts 22 August 2019, 145.
On the case before him, it was unnecessary for his Honour to direct himself in the manner contended, and he did not err in the manner alleged.
Leave on ground 6 should be refused.

Ground 7

The appellant contends that the learned magistrate erred in finding that the assault on the complainant was indecent.
The appellant did not take issue with the magistrate's statement of the tests for indecency and its application on the evidence. He submitted, however, that his Honour failed to engage with the defence case at trial, and consider whether there was any other explanation (such as a proper and legitimate guidance and direction during the course of the driving lesson) reasonably consistent with innocence and inconsistent with the inference that the touching was sexually motivated.
His Honour found that the touching was indecent by two pathways. It was conceded at trial that if the appellant placed his hand on Ms E's thigh for two or three seconds while the vehicle was stationary, that contact was unrelated to instruction and would 'fall into the indecent category'.[109] His Honour made that finding.[110] He found that it was unbecoming or offensive to common propriety for the appellant to touch Ms E in that way in the circumstances (including the age of the appellant and the age of Ms E, their being confined alone in a vehicle, the nature of the touching, and that the touching was of a part of the body that was 'private or intimate'). On that basis he was satisfied that the assault was indecent.[111]
[109] ts 13 August 2019, 96.
[110] ts 22 August 2019, 149.
[111] ts 22 August 2019, 150.
With regard to the alternative pathway, his Honour said that he could not see any other motivation than sexual intent for the appellant to have touched Ms E in the manner that he had found.[112] It is not necessary to decide whether that finding excludes any inference consistent with innocence. The finding that the touching was offensive to common propriety is sufficient.
[112] ts 22 August 2019, 150.
I would refuse leave on ground 7.

Ground 8

Ground 8 only arises if the court has found error in one or more of the other grounds. I have found no error. Leave will be refused on ground 8.

Conclusion

The result is that I would grant leave to appeal on ground 1, but refuse leave on grounds 2 to 8.
The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
24 DECEMBER 2020