Cooley (a pseudonym) v Van Riel
[2024] VCC 442
•9 April 2024
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| FRANK COOLEY (a pseudonym) | Appellant |
| v | |
| FIRST CONSTABLE HARRY VAN RIEL | Respondent |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 29 & 30 January 2024, 15 February 2024 | |
DATE OF JUDGMENT: | 9 April 2024 | |
CASE MAY BE CITED AS: | Cooley (a pseudonym) v Van Riel | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 442 | |
VERDICT
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Subject:CRIMINAL LAW - RULING
Catchwords: Conviction and sentence appeal – ruling – sexual assault – common law assault
Legislation Cited:
Cases Cited:Quick v Creanor (2015) 49 VR 479; Keech v County Court of Victoria (2017) 55 VR 32; AB v Paulet [2022] VSC 646
Judgment: Finding of guilt on charges 7 and 8
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T. Battersby | Stary Norton Halphen |
| For the Respondent | Ms S. MacDougall | Office of Public Prosecutions |
HER HONOUR:
Introduction
1This matter came before me on 29 January 2024 as a conviction and sentence appeal. Mr Frank Cooley[1] has been charged with 8 offences. These charges include 4 charges of sexual assault and 4 alternative charges of common law assault.
[1] A pseudonym.
2At the outset I formally set aside the orders of the Magistrates’ Court.
3Initially the prosecution indicated that only the four charges of sexual assault would be prosecuted. However, they have since revisited this position and have indicated that all eight charges should properly be before this court. I agree with this position and consider it to be consistent with practice and authority.[2]
[2] Quick v Creanor (2015) 49 VR 479; Keech v County Court of Victoria (2017) 55 VR 32.
4In the Magistrates Court the prosecution made application to amend the charges. Such amendment was not opposed by the defence, and I was advised at the outset of the appeal of the amendments made by the Magistrate in the court below. As this is a hearing de novo I cannot act on amended charges. The prosecution has made application to amend the charges subject of the appeal. Such application is not opposed by the defence. I therefore have amended the charges in the terms sought by the prosecution.
5The amended charges read as follows;
1) The accused in Victoria on the 15th of September 2020 did intentionally touch Wade McMillan[3] in a sexual manner by slapping the victims buttocks without his consent and did not reasonably believe that he consented to the touching. (Behind the bar).
2) The accused in Victoria on the 15th of September 2020 did intentionally touch Wade McMillan in a sexual manner by slapping and squeezing the victims buttocks without his consent and did not reasonably believe that he consented to the touching. (In the office).
3) The accused in Victoria on the 16th of September 2020 did intentionally touch Sean Foster[4] in a sexual manner by grabbing and dry-humping the victim without his consent and did not reasonably believe that he consented to the touching.
4) The accused in Victoria on the 17th of September 2020 did intentionally touch Aaron Farmer[5] in a sexual manner by using a broomstick to poke the victim’s anal region without his consent and did not reasonably believe that he consented to the touching.
5) The accused in Victoria on the 15th of September 2020 did assault Wade McMillan without lawful excuse. (Behind the bar).
6) The accused in Victoria on the 15th of September 2020 did assault Wade McMillan without lawful excuse. (In the office).
7) The accused in Victoria on the 16th of September 2020 did assault Sean Foster without lawful excuse.
8) The accused in Victoria on the 17th of September 2020 did assault Aaron Farmer without lawful excuse.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
6The four charges of sexual assault as amended were read to the appellant and he pleaded not guilty to each of those charges. The remaining four alternative charges of common assault were not formally put to the appellant. However, through his counsel he indicated that he denied all offences before the court.
General directions of law
7The general directions of law that would have been given to a jury and that I have applied in this case are as follows.
Presumption of innocence and the onus and standard of proof
8Mr Cooley is presumed innocent unless and until guilt is proved on evidence presented to the court. The guilt of Mr Cooley must be established beyond reasonable doubt on each element of an offence charged. This is the highest standard of proof known to the law. It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility. If the court is not satisfied to this standard Mr Cooley must be found not guilty. The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Cooley bears no onus of proof. It is not for Mr Cooley to prove his innocence or prove anything at all.
Decision to be based solely on the evidence
9I must decide the case only on the admissible evidence led in this appeal. In this appeal such evidence takes the form of witness testimony and the exhibits that have been tendered. I have not done any outside research or had regard to any outside sources of information.
Assessment of witnesses
10I must assess both the honesty and reliability of the witnesses. That is whether a witness was truthful and whether they correctly recalled the facts about which they gave evidence. In that assessment I may accept all, some or none of a witness’s evidence. I must bear in mind that I should not make any assessment only on the basis of how a witness gave evidence, as giving evidence can be a stressful experience. I remind myself that witnesses come from different backgrounds and have different abilities. There are too many variables to make the manner in which a witness gave evidence the only or even the most important factor in my assessment.
Separation consideration
11As this case involves eight separate charges, I must give separate consideration to each charge and the evidence which relates to it.
Alternative Verdicts
12Charges 1 and 5, 2 and 6, 3 and 7, and 4 and 8 have been presented to the court as alternative charges. The prosecution asks that I convict on one or the other of these charges and not both. This is because each pair of charges relates to one incident. There are 8 charges involving 4 incidents.
13When considering my verdict, I will consider charges 1, 2, 3 and 4 first. If I find the appellant guilty of any of these charges, then I do not need to continue to consider the corresponding alternative charge. If I find the appellant not guilty of any of these charges only then will I go on to consider charges 5, 6, 7 and 8. The prosecution is entitled to a verdict on the most serious charge. I will not compromise to find the appellant guilty of an alternative.
Preliminary directions in sexual offence charges
14Preliminary directions in relation to sexual offences that are applicable in this case are as follows.
Distress
15When considering the evidence of Wade McMillan, Sean Foster and Aaron Farmer, I have reminded myself that some people may show obvious signs of distress when giving evidence about an alleged sexual offence and others may not.
Delay in complaint
16In this case Wade McMillan did not report the alleged offending of 15 September 2020 until he was approached by the police to make a statement on 27 October 2021. It was, however, Wade McMillan’s evidence that he told his father on the day the two incidents occurred.
17Sean Foster did not complain to the police until February 2021. The circumstances of reporting the alleged incident to the police included Dave McMillan contacting the police and taking both him and Aaron Farmer to the police station during work hours. Sean did however complain to Dave McMillan, Aaron Farmer and the others staying at the hotel at a time proximate to the alleged offending. Sometime later towards the following weekend he told his father Edward Hunter.[6]
[6] A pseudonym.
18Aaron Farmer did not complain to the police until February 2021 after Dave McMillan contacted the police and arranged to take him and Sean Foster to the police station. Aaron Farmer said he told Dave McMillan, Sean Foster and his girlfriend Jess Hooper[7] about the alleged offending later on the day it was alleged to have occurred.
[7] A pseudonym.
19In relation to Wade McMillan there was a delay of 13 months between the alleged offending and his report of the matter to the police. In relation to both Aaron Farmer and Sean Foster there was a delay of approximately 6 months between the date of the alleged offending and their report of the matter to the police.
20I remind myself that experience shows that people react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint. It is a common occurrence for there to be a delay in making a complaint about a sexual offence and there may be good reasons why a person does not complain, or complain immediately, about a sexual offence.
Post offence relationship
21During the 13-month period relating to Wade McMillan and the 6-month period relating to Adian Foster and Aaron Farmer, each of them continued to have some contact with the Appellant.
22There may be good reasons why a person would continue to see their alleged offender, or otherwise continue to communicate with them.
23I will base my decision on the evidence and not on assumptions of how people may or may not react to alleged sexual offending.
The elements of the offence of sexual assault
24To prove the crime of sexual assault, the prosecution must prove the following 4 elements beyond reasonable doubt:
(a) That Mr Cooley intentionally touched each respective complainant in the way alleged.
(b) The touching was sexual.
(c) Each of the complainants did not consent to the touching.
(d) Mr Cooley did not reasonably believe that the each of the complainants consented to the touching.
25In this case the prosecution must prove the following beyond reasonable doubt;
(a) For charge 1, Mr Cooley touched Wade McMillan in a sexual manner by slapping him on the buttocks behind the bar.
(b) For charge 2, Mr Cooley touched Wade McMillan in a sexual manner by slapping and squeezing him on the buttocks in the office.
(c) For charge 3, Mr Cooley touched Sean Foster in a sexual manner by grabbing and dry-humping him.
(d) For charge 4, Mr Cooley touched Aaron Farmer in a sexual manner by using a broomstick to poke him in the anal region.
26Mr Battersby on behalf of Mr Cooley isolated two real issues in this appeal. The first issue is ‘did it happen’? That is can the Crown prove beyond reasonable doubt that Mr Cooley performed each of these acts that make up each of the charges. Mr Cooley in his record of interview denied the alleged conduct. The second issue is ‘if the court is satisfied that the touching occurred, is the touching sexual’?
27There was no argument advanced in relation to elements 3 and 4. The evidence from each of the complainant’s was that they did not consent to be touched in any manner by Mr Cooley. Mr Cooley’s evidence was that he did not touch them in any manner. In this context it could not be argued that he had a reasonable belief that they were consenting to his touch.
The elements of the offence of common law assault
28To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:
(a) That Frank Cooley applied force to the body of the each respective complainant.
(b) The application of force was intentional.[8]
(c) The application of force was without lawful justification or excuse.
[8] It is also possible for this element to be satisfied by recklessness. In relevant cases the charge will need to be amended accordingly (see Recklessness for assistance).
Background and undisputed facts
29Background facts, not contested in the evidence or without significant challenge, include the following;
(a) Mr Cooley was and remains the publican of a Country Hotel.
(b) In September 2020 he engaged the services of an electrical company to perform electrical work at his hotel.
(c) The three complainant’s Aaron Farmer, Sean Foster and Wade McMillan are each employees of the company.
(d) The company was at that time was run by Dave McMillan.
(e) Wade McMillan was a director of with his father and sister also being directors.
(f) Mr Cooley spoke with Dave McMillan and obtained a quote for works to be done at the hotel.
(g) On 15 September 2020 Dave McMillan, his son Wade McMillan, and his employees, Aaron Farmer, Sean Foster, Raymond Blake,[9] and Steve McMillan[10] attended the hotel to undertake the electrical rewiring of the hotel as quoted. The work was expected to take around one week. The arrangement was made that Dave McMillan, and his team would stay in the accommodation section of the hotel, whilst the work was being performed.
(h) None of the employees had met the appellant Mr Cooley prior to attendance at the hotel in September 2020.
[9] A pseudonym.
[10] A pseudonym.
Evidence – Aaron Farmer
30Aaron Farmer gave evidence of three separate incidents involving Frank Cooley. The first of these occurred three days into the job when he observed Frank Cooley grab Sean Foster from behind and hold him across the chest whilst he made a thrusting motion moving his genital area towards Sean’s backside. Sean told Mr Cooley to go away and appeared upset after the incident. Aaron said this incident was also witnessed by Wade and Dave McMillan.
31On the fourth day of work at the hotel, Aaron gave evidence that he was working in a manhole in the roof when Frank Cooley poked him in the bottom with a broom handle and removed the ladder from under him. Aaron said Mr Cooley laughed and told him he couldn’t get down without his ladder. Mr Cooley returned the ladder following several angry demands by Aaron.
32Aaron also gave evidence that he observed a third incident where Mr Cooley ‘smacked Wade McMillan’s arse’ and he heard Wade tell Mr Cooley not to touch him. Aaron did not give evidence of when this occurred only that it occurred in the bar.
33Not long after the broom incident, Aaron said he told Dave McMillan what had occurred. According to Aaron, Dave McMillan said this behaviour was unacceptable. Aaron remained at the worksite until the end of the week before returning to his home with Dave McMillan on the Friday.
34During cross-examination Aaron Farmer gave evidence that Mr Cooley had laughed and made a joke about Aaron not being able to get down as he had taken the ladder away. Aaron agreed he returned to the hotel in at the end of 2020 and at that time Mr Cooley had identified problems with the electrical work they had performed. He denied that there were any problems with their work. Aaron said he had heard that Mr Cooley had sued Dave McMillan but knew nothing further as it was none of his business as an apprentice. When questioned about why he returned to the worksite after the incidents with Frank Cooley, he said he had a job to do and was told where to go as an apprentice.
35He denied that Dave McMillan ever directed him to report to the police but conceded that it was unlikely he would have gone had Dave McMillan not offered to take him and made him feel comfortable with the idea. When asked why he did not report the matter earlier, he responded that he was not ready and felt embarrassed.
Evidence - Sean Foster
36Sean Foster gave evidence that during the job at the hotel he was working on his own for the majority of Wednesday. At this time, he was working on the sub board. Whilst doing so, Dave McMillan, Aaron Farmer, Raymond Blake, and maybe Wade McMillan, came to where he was working and were having a conversation.
37Sean Foster said that Frank Cooley was there, and at some point, Mr Cooley came up behind him, grabbed his chest, squeezed it, and thrust his genitals into his buttocks. Sean Foster gave evidence that he could feel Frank Cooley’s penis pressed against him.
38Mr Foster said he tried to shrug Mr Cooley off and told him to “fuck off”. According to Mr Foster, Mr Cooley was laughing during this incident. Mr Foster went back to working on the sub board for about 10 minutes before finishing for the day. After work was done, during some after work drinks, Sean Foster told Raymond, Aaron, Dave McMillan and Wade McMillan about feeling uncomfortable and being unsure what he should do about the incident. He said that Dave McMillan told him that if it ever happened again, to tell him and Mr McMillan would deal with it.
39During a conversation with Aaron Farmer on Thursday night Aaron told Sean that Mr Cooley had taken away a ladder Aaron was using and had shoved a broomstick in his buttocks. Sean Foster stated that Aaron was angry and uncomfortable with the situation. Mr Foster also gave evidence that he was present during a telephone conversation between Aaron and his then girlfriend where Aaron explained to her the broomstick incident.
40During cross-examination, Sean Foster was asked about the sub board incident. He gave evidence that he had just finished eating dinner and went to work on the sub board to finish that job so he could start fresh the next day. Sean Foster gave evidence that after finishing their dinner, Aaron Farmer, Dave McMillan, Raymond Blake and potentially Wade McMillan came to where he was working. Frank Cooley, at some stage, came up behind Sean Foster, grabbed and squeezed his chest, and dry humped him whilst being directly behind him. Sean Foster said he could feel Mr Cooley’s penis against his backside but was not aware if Mr Cooley had an erection. He denied ever telling police that Mr Cooley had thrust against his leg. It was Sean Foster’s evidence that Mr Cooley’s hands were on his chest, not his hips, and that Mr Cooley was laughing during the incident.
41Sean said that he explained the situation to his dad, who suggested he make a statement to the police. Sean Foster’s gave evidence that he did not make a statement until February 2021, due to being uncomfortable, embarrassed, and shaken up about the situation. It wasn’t until February 2021 he finally felt comfortable to report the incident to police.
42In his evidence, Sean Foster said he was not aware of any issues between Mr McMillan and Mr Cooley, of any reports to Energy Safe Australia, to WorkSafe or any refunds for the work. Sean Foster stated he was encouraged by Mr McMillan to report the incident, but only after bringing up the idea to Mr McMillan. Mr Foster denied that Mr McMillan put him up to making a statement and denied the statement having anything to do with problems between Mr McMillan and Mr Cooley.
Evidence - Wade McMillan
43Wade McMillan gave evidence that he attended the hotel with other members of in September 2020. He said his main task on the job was to work on the switchboard. In these circumstances he photographed the switchboard. These photographs were tendered as Exhibit A.
44Wade McMillan described the first day as uneventful. On the Tuesday, he gave evidence that he was working on the switchboard and needed to go outside, at which point he bumped into Mr Cooley, who asked if was going to get to another job at the hotel, Wade McMillan said he would, and after this conversation, Mr Cooley smacked him on his right buttock and said, “Thanks chief”, this happened in the main bar area.
45It was Wade McMillan’s evidence that this made him feel angry and violated, and that he did not consent to this physical contact. He told Mr Cooley, “If you do that again, I’ll break your fingers”. He said Mr Cooley just smiled.
46Mr McMillan did his work outside, before coming back to the switchboard, when he walked in Mr Cooley said “It’s all a bit of fun”.
47When Wade McMillan turned to work on the switchboard, Mr Cooley slapped and squeezed his left buttock, which made him angry, and he said, “I’m not mucking around this time, stop messing around, I’ll hurt you”. Wade McMillan said this happened in the office area.
48After the incidents Wade McMillan said he spoke to his father. He was angry and fired up and told his father to keep Mr Cooley away from him for the rest of the job.
49During cross examination Wade McMillan agreed he was in fact one of the directors of the Electrical Company at the time of the job. He said he was at the job the whole week and stayed after doing the switchboard to supervise the apprentices. It was his evidence that Steve wasn’t working there, and he looked puzzled as to who Steve was.
50Wade McMillan described the first incident as a slap, and the second as a tap and squeeze. He agreed that he might not have cared if it was a teammate, but this guy in this context left him feeling angry and violated. Wade McMillan said he had no knowledge of whether anyone else saw it or was around. He said there was roughly 15 minutes between incidents.
51It was his evidence that after the first incident Mr Cooley just smiled at him and, the second time Mr Cooley chuckled. To Wade McMillan’s observation Mr Cooley didn’t seem to think it was very serious and was treating it like a joke.
52Wade McMillan said he did not see the sub board incident where Sean Foster was said to be grabbed by Mr Cooley, as he was downstairs, and it happened upstairs. However, he said that he had been told about it.
53When questioned about making his statement Wade McMillan said he didn’t make his statement until 27 October 2021, when he was approached by First Constable Van Riel. He said that he had thought about it previously but just didn’t make it to police station.
54Wade McMillan said he went back to the Hotel in December 2020, as he needed to complete some work. He denied knowing of Mr Cooley’s complaint to either Energy Safe or WorkSafe. Further he gave evidence that he was not aware of issues with Frank Cooley as a client and had only found out about the refund after the fact. It was his evidence that as at January February 2021, he was not aware of any conflict between Dave McMillan and Frank Cooley.
55In response to direct questioning, he maintained the slaps occurred, that he didn’t feel right, and this had violated his personal space. Wade McMillan disagreed with the suggestion that he reported the matter to help his dad out.
Evidence - Edward Hunter
56Edward Hunter gave evidence that whilst his son was an apprentice for Dave McMillan, he would drive Sean to and from McMillan’s house for work. He recalled Sean speaking to him about the behaviour of the publican towards Sean and Aaron. Specifically, that the publican had made inappropriate jokes and grabbed Sean from behind in a sexual manner and laughed. He had also been told the publican had made inappropriate jokes towards Aaron, including something to do with the use of the broom. Sean had told him that he and Aaron had spoken to Dave McMillan about these incidents.
57During cross-examination Mr Hunter said that the conversation with Sean about what had occurred, happened the night he picked Sean up on the way back from the job at the hotel. Mr Hunter believed that at the time Sean informed him of the issues with the publican, Aaron and Sean had already spoken to the police. Mr Hunter denied telling Sean to go to the police. He said Sean seemed slightly angry and concerned when discussing the incidents but was not crying.
Evidence - Jess Hooper
58Jess Hooper gave evidence that she was in a relationship with Aaron Farmer in 2020 including at a time when he was completing a job at a country hotel.
59She recalled Aaron telling her about the owner of the place he was working at in named Frank. In particular that Aaron felt he had been sexually assaulted and was very uncomfortable. Aaron had told her he was working in a manhole in the roof and the owner had taken the ladder away and was ‘trying to stick a broomstick up his arse’. She believed this conversation with Aaron occurred on the day the incident happened.
60During cross-examination Ms Hooper agreed she couldn’t recall exactly when this conversation occurred but that she spoke with Aaron every night at this time. She agreed her statement was made in January 2023 and she felt it was necessary to provide one because she was involved at the time. She agreed in her evidence she had provided additional details not present in her statement such as the owner’s name and the location Aaron was working but this was simply because she wasn’t asked at that time.
Evidence - Raymond Blake
61Raymond Blake gave evidence that he is the son in law of Dave McMillan and commenced working with the Electrical Company four years ago as a first-year apprentice electrician.
62He recalled the job in and meeting the owner of the hotel, Frank. During the job he spent the first and second day working in the cellar and on the third day assisted Dave McMillan in the kitchen and roof space.
63He said that on that day he had observed Sean working upstairs on the switchboard with Dave McMillan and also present was Aaron Farmer. He said he was told by Dave McMillan and Aaron Farmer that the owner of the hotel had ‘dry humped’ Sean whilst Sean was using a ladder to work on the switchboard. He had also been told by them that the owner had grabbed Wade either on his breast area or bum. He did not personally see physical contact between the owner and Wade McMillan.
64During cross-examination, Mr Blake said that police misheard him over the phone as they were taking his first statement in November 2021 and therefore this statement had errors. He agreed that he had nonetheless attended the police station and signed the statement as true and correct.
65He agreed his initial statement stated that he had observed Cooley dry hump Sean and that observing this made him uncomfortable. Blake conceded he didn’t observe the incident at all and rather it was hearing about what had happened that made him uncomfortable. He said that by the time of his second statement in April 2023, he had corrected these mistakes because he didn’t want to be untruthful. He denied Dave McMillan had told him to say he had observed the dry humping incident.
66He believed that when the incident with Sean occurred, he was most likely in the cellar because he recalls he was coming upstairs after finishing the job when he was told about it.
67He denied any concerning behaviour towards him by Mr Cooley.
Evidence – Dave McMillan
68In examination-in chief, Dave McMillan said that he was the owner of an electrical company from 2014 until approximately 2022 or 2023.
69He gave evidence that he was told about two incidents between his employees and Frank Cooley which occurred whilst working on the job at Mr Cooley’s hotel in September 2020. He also gave evidence about an incident he directly observed during this job between Frank Cooley and an employee.
70He said that on Tuesday at the worksite, he was told by Wade McMillan that Cooley had grabbed his buttocks more than once.
71On the third day, he was supervising the work of Sean Foster in the presence of Aaron Farmer when Cooley made an inappropriate joke and then grabbed Sean by the hips and made a thrusting motion against him. Sean appeared to be ‘devastated’ and ‘distraught’ by this interaction.
72On another day during that week, he was approached by Aaron Farmer who told him that Cooley had poked him ‘in his butthole’ with a broom handle whilst he was climbing into the roof cavity. This had made Aaron very angry.
73After each incident, McMillan said he had confronted Cooley and told him the behaviour was inappropriate and he needed to stop. Cooley responded each time that he had only been joking. Upon confronting Cooley about the incident in relation to Aaron, McMillan had threatened that his employees would leave the job site at which point Cooley apologised and the incidents stopped.
74During cross-examination, McMillan said that at the time he was owner of he was responsible for the business’s electrical company licence. This licence carries obligations to ensure work sites are safe and to allow their work to be certified and inspected. Whilst he understood his obligations to keep his employees safe from sexual harassment, he said he also had obligations to not leave the electrical work in an unsafe manner.
75Mr McMillan was certain that had Aaron or Sean asked to go home following the incidents, they would not have been prevented from doing so or pressured to stay. When confronted with his earlier evidence at contested hearing that Sean had asked to go home, he said Sean must have changed his mind because he would never have been forced to stay and the fact he did stay was not a reflection of how serious McMillan considered these incidents to be.
76He conceded that they returned to the worksite in December, but Cooley had agreed to leave his workers alone. McMillan also agreed that on this date Cooley had identified electrical issues including a live wire, but he denied that were responsible for these problems.
77Whilst initially being satisfied with the work and paying on time, Cooley became ‘a very, very difficult customer’ and eventually made a complaint with Energy Safe Victoria and a request for $16,000 in damages. Dave did eventually have to pay $16,000 to Cooley, about $1,000 more than they were initially paid for the work. He denied this caused him difficulty and said it was just part of the job.
78He initially denied contacting police for Sean and Aaron, however after being presented with an interpose record stating he had contacted police, he said he may have but he couldn’t recall. He agreed he drove the apprentices to the police station on a workday but denied encouraging them, or Wade McMillan, to go to the police or to fabricate or exaggerate what happened to get Cooley charged.
79He said the timing between the issue with Energy Safe Victoria and the report to police was unfortunate but unrelated and the apprentices had made their own minds up about when they wanted to report.
Motive to lie
80In this case, Mr Battersby pointed to evidence that Dave McMillan had a motive to encourage others to make false allegations against the Mr Cooley. Mr Cooley had made a complaint in relation to poor workmanship performed by the electrical company to both Energy Australia and Worksafe. In addition, Dave McMillan, had accused Mr Cooley of threatening and being rude to his daughter on the phone. Aspects of the timing of the complaint made by Mr Cooley coincided with when Mr McMillan took his apprentices Aaron Farmer and Sean Foster to the police station to report the alleged offences. Further to this, the result of the complaint made by Mr Cooley was that the company had to refund the entire cost of the job at the hotel, which was $15,000 and pay an additional $1000. Mr Battersby suggested to each of the witnesses they made allegations against the Mr Cooley because they were encouraged to do so by their boss Dave McMillan in the context of this complaint and in doing so gave false evidence.
81I accept that Dave McMillan had a high degree of animus towards Frank Cooley as a result of the complaint, the payment of compensation and the way Mr Cooley spoke to his daughter. Further, I accept that Dave McMillan was the driving force in Aaron Farmer and Sean Foster reporting their complaints against Mr Cooley to the police. In light of the power imbalance between boss and apprentice, it is my view that this motive has affected the evidence given by Dave McMillan, Aaron Farmer and Sean Foster.
82I do not however, find that this caused Aaron Farmer and Sean Foster to give false evidence rather in my view it caused each of the boys to embellish or elevate what they say occurred.
83Having partially accepted the motive posited by the defence I have kept firmly in mind that the prosecution to prove, beyond reasonable doubt, that the appellant is guilty. I can only convict Mr Cooley of each of the offences if, on the basis of all the evidence, I am satisfied of his guilt beyond reasonable doubt. Mr Cooley does not have to prove that any of the witnesses had a reason for giving false evidence.
84This motive was also put to Wade McMillan. I do not accept Wade McMillan’s evidence that as a director of the company he had no knowledge of the complaint made by Mr Cooley. Further, I do not accept that he did not know of the compensation payment until after it occurred or that Mr Cooley was alleged to be rude to his sister on the phone. As a director of what was a family company, in circumstances where he works closely with his father it defies belief that Dave McMillan or his daughter would not have mentioned this to Wade McMillan.
Complaint
85In this case there was evidence that Aaron Farmer complained to Dave McMillan and Sean Foster shortly after the alleged incident. Later that night Aaron spoke to his then girlfriend Jess Hooper and she gave evidence that he told her about the broom stick incident.
86Sean Foster also complained to Dave McMillan. The incident involving Sean was said to have been witnessed by Dave McMillan and Aaron Farmer and potentially others. In these circumstances it was the object of discussion and complaint later that evening. Further, Sean Foster told his father about what had occurred when he was home for the weekend after the job.
87Wade McMillan says he told his father Dave McMillan later the same day after the two alleged incidents.
88I accept that Aaron Farmer and Sean Foster ‘complained’ about being touched by Mr Cooley. I do not accept that Wade McMillan complained to his father as I do not consider either Wade or Dave McMillan to be credible and reliable witnesses.
89Having accepted that Aaron Farmer and Sean Foster complained I can use these complaints as evidence in the case and I can use them to assess the credibility of Aaron Farmer and Sean Foster.
90When considering this evidence, I have reminded myself that just because a person says something on more than one occasion, that does not mean that what they say is truthful or accurate and that a false or inaccurate statement does not become true and accurate by virtue of being repeated.
91In this case, I also heard evidence of the complaints from Edward Hunter and Jess Hooper. It would be a mistake to treat this as evidence that is independent of the complainants as it is Aaron Farmer and Sean Foster who are the source of that evidence.
Admissions
92In this case Mr Cooley was alleged to have said “Oh it’s all a bit of fun” to Wade McMillan after the alleged conduct constituting charge 1. The prosecution says that this is evidence of an admission to having slapped Wade McMillan on the buttocks. Before I can use this evidence, I must decide if Mr Cooley actually made the alleged admission in the terms alleged by Wade McMillan. I must also accept that the alleged admission was truthful in that when he said “Oh it’s all a bit of fun” he meant to admit that he had sexually touched Wade McMillan, that is the admission was true.
93In circumstances where Wade McMillan did not make a statement to police for 13 months I have doubts as to his ability to recall such a specific comment. Additionally, on face value I do not accept that the alleged comment is a true admission to the sexual touching which is alleged as charge 1. In the circumstances I have disregarded this evidence as an alleged admission.
Tendency
94Part of the prosecution case is that Mr Cooley demonstrated a tendency to sexually touch men who are employed to carry out work on his business premises in circumstances where the sexual touching was committed under the guise of a joke so as not to rouse suspicion/apprehension from each complainant about what had occurred; was committed when the accused was physically positioned behind each complainant; was committed when the complainants and/or other employees of were either close-by or in the near vicinity and there was some risk of detection.
95The prosecution argued that this behaviour reveals distinctive conduct that if accept would amount to a modus operandi or pattern of behaviour. The defence argued that the evidence does no more than establish rank propensity and before the court could act on such a tendency given the tendency is based on charged acts those charged acts would need to be proven beyond reasonable doubt.
96If I find that Mr Cooley did have the tendency contended for then I could use that to find that it is more likely that Mr Cooley committed the sexual assault offences before the court. However, before I can use this evidence in this way because the prosecution relies on the other charges to establish this sexual interest, I can only use this evidence if the prosecution has proved that other charged act beyond reasonable doubt. I must consider each charged act separately and if I am satisfied beyond reasonable doubt about the charged act and I consider that it demonstrates that Mr Cooley had a sexual interest and willingness to act on it, then I may use it when considering the other charges.
97In view of my ultimate findings in relation to the charged offences the tendency reasoning has no application in this case.
Prior inconsistent statement
98Dave McMillan gave evidence in court that he had a duty of care to his staff and if his staff wanted to go home, they could have gone home, and he and the other employees would finish off the job. It was his evidence that the staff wanted to continue because they could not leave a job site unsafe. Mr Battersby suggested to Dave McMillan that he had previously given evidence that Sean Foster did want to go home. Mr McMillan could not recall giving that evidence but conceded if he had said that on the day he had sworn an oath, and it would have been the truth.
99I accept that Dave McMillan made each of these statements and as a result there is a different version of events. I consider the two statements to be inconsistent and, in my view, this diminishes the credibility and reliability of Dave McMillan and accordingly I am less willing to accept his evidence. I am mindful that a witness who gives inconsistent accounts is not necessarily lying. In the circumstances I am unable to decide which of the two different accounts to believe.
S.43 Prosecution failure to call witnesses
100In this case I would have expected that the prosecution would have spoken to and potentially called Steve McMillan and a police officer Mark from a nearby police station however they chose not to. There was no explanation given as to why Steve McMillan was not spoken to or called to give evidence. The informant’s evidence was that he considered the police officer to be dealing with the civil aspect of the complaint made by Mr Cooley and saw no relevance in speaking to that police member.
101In my view there was no satisfactory reason to not speak to and call these witnesses. Steve McMillan was potentially an eyewitness or complaint witness and the police officer may have been able to give evidence in support of a potential motive to lie by Dave McMillan in particular. I have concluded that these witnesses were not spoken to or called by the prosecution as their evidence would not have helped the prosecution case.
Liberato
102In this case there is a clear conflict between the evidence of the prosecution witnesses and the denials contained in Mr Cooley’s record of interview. It is not necessary for me to accept the denials in Mr Cooley’s record of interview in order to find him not guilty. I must acquit Mr Cooley if the contents of his record of interview give rise to a reasonable doubt. This is the case even if I prefer the evidence of the prosecution witnesses. It is not sufficient for me to merely find the prosecution case preferable.
103If I do not think Mr Cooley is telling the truth but I am unsure where the truth lies, I would find him not guilty. Even if I was convinced that Mr Cooley’s evidence is not true it is not the case that I must convict him. In such circumstances I remind myself that I must put his record of interview to one side and ask myself whether the prosecution has proved his guilt beyond reasonable doubt on the basis of the evidence I accept.
Accused failure to give evidence
104Mr Cooley did not give evidence on his appeal. This is his right and I cannot draw any adverse inference from the fact that he did not give evidence. I cannot use the fact as an admission or to fill in any gaps in the evidence. The fact he did not give evidence proves nothing at all.
Good character
105Mr Cooley is a man of specific good character. The evidence of the informant was that he has no prior convictions for sexual offending. I can use this fact when determining the likelihood that Mr Cooley committed the offences charged. Generally, a person of good character is unlikely to commit a criminal offence. In addition, I can use this fact when considering Mr Cooley’s credibility and his denials of the prosecution case. As a person who is of good character is generally thought to be more trustworthy than other people, I might be less willing to accept the prosecution’s evidence than if Mr Cooley was not a person of good character.
106This doesn’t mean I must find Mr Cooley not guilty if I accept he is a person of good character. This fact doesn’t alter proven facts and a person who has previously been of good character can commit a crime for the first time
The elements of the offence of sexual assault
107To prove the crime of sexual assault, the prosecution must prove the following 4 elements beyond reasonable doubt:
(a) That Mr Cooley intentionally touched each respective complainant in the way alleged.
(b) The touching was sexual.
(c) Each of the complainants did not consent to the touching.
(d) Mr Cooley did not reasonably believe that the each of the complainants consented to the touching.
108To prove the first element the prosecution must prove that Mr Cooley slapped Wade McMillan on the buttocks behind the bar area, on another occasion Mr Cooley slapped and squeezed Wade McMillan on the buttocks in the office, that Mr Cooley grabbed and dry-humped Sean Foster and poked a broom stick in Aaron Farmer’s anal area.
109The touching does not need to be violent or to cause an physical harm of injury. Any touching no matter how slight is enough. The touching can be done with any part of the accused’s body, or with anything else.
110The second element that the prosecution must prove is that the touching was sexual. The law says that touching can be sexual because of the area of the body involved, of either the person being touched or the person doing the touching, such as the genital or anal area, or the buttocks or breasts. Or the touching can be sexual because the person doing the touching wants to get or gets sexual gratification from the touching.
111Finally, any other aspect of the touching, including the circumstances in which it happened, can also make the touching sexual.
112In this case, the prosecution alleged that the touching was sexual because the accused man was not previously known to any of the complainants; and on that basis, any suggestion that he was joking or laughing cannot amount to a workplace joke between men who work together regularly; and having regard to the parts of the body which were touched by the accused the court can be satisfied that the touching was sexual in nature.
113The defence responded that I should not accept that any touching occurred. However, even if I were to find that touching as alleged occurred given the description of the touching on the prosecution case, I could not be satisfied that the touching was anything more than stupid masculine physicality or locker room behaviour and toxic bullying without sexual gratification and as such was not objectively a sexual act.
114The third element that the prosecution must prove is that the touching happened without the respective complainant’s consent. Consent is a state of mind. The law says that consent means free agreement. So, the prosecution must prove that Wade McMillan, Sean Foster and Aaron Farmer did not freely agree to being touched by Frank Cooley at the time alleged. This element is not in dispute in this case as the defence case is that the touching did not occur. Each of the complainants gave evidence that they did not consent to be touched by Frank Cooley.
115The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of the touching the accused did not reasonably believe that the complainant was consenting. This fourth element will be met in any of the following circumstances:
(a) The accused believed that the complainant was not consenting.
(b) The accused gave no thought to whether the complainant was consenting.
(c) Even if the accused may have believed that the complainant was consenting, this belief was not reasonable in the circumstances.
116The prosecution only needs to prove one of these three states of mind. If the prosecution does not prove beyond reasonable doubt that Frank Cooley had any of these states of mind about the complainant’s consent, then I must not find this element proven, and I must not find Frank Cooley guilty of this offence.
117In this case, this element is not in dispute. The real issue for determination is whether the touching occurred at all and if it did occur whether the touching was sexual touching.
The elements of the offence of common law assault
118To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:
(a) That Frank Cooley applied force to the body of the each respective complainant.
(b) The application of force was intentional.
(c) The application of force was without lawful justification or excuse.
119The first element relates to what the Mr Cooley did. He must have applied force to the body of the Wade McMillan, Sean Foster and/or Aaron Farmer.
120It does not matter how much force is applied or for how long it was applied, and it does not need to have harmed the complainant. Even a slight touch is enough.
121In this case, the prosecution alleged that Mr Cooley applied force to Wade McMillan on two occasions when he slapped Wade McMillan on the buttocks behind the bar and when he slapped and squeezed Wade McMillan on the buttocks in the office. The prosecution alleged that Mr Cooley applied force to Sean Foster when he grabbed Sean Foster around the chest and thrust his pelvis into Sean Foster’s buttock region. Further the prosecution alleged that Mr Cooley applied force to Aaron Farmer by using a broom stick to poke Aaron Farmer in the anal region. The defence responded that this offending did not occur. The evidence of each witness was unsupported apart from the alleged offending involving Sean Foster. Given the inconsistencies in evidence, the delay in complaint, the fact that Dave McMillan contacted police at a time proximate to when a complaint had been made by Frank Cooley to Energy Safe and as such there was a motive to give false evidence the court could not be satisfied to the requisite standard that any touching occurred.
122The second element relates to the accused person’s state of mind. The prosecution must prove that the application of force was intentional. To be satisfied that the accused’s actions were intentional, one must be satisfied that Frank Cooley deliberately applied force to Wade McMillan’s body, Adian Foster’s body and Aaron Farmer’s body. This element is not in dispute, the real issue is whether the touching occurred at all.
123The third element that the prosecution must prove is that the application of force was without lawful justification or excuse.
124In this case the defence argued that if the court found that Mr Cooley did apply force to the respective complainant’s bodies, this was done while he was carrying out the ordinary social activity in that he was having joke and mucking around with each of the complainants. Under the law, force that is applied in the course of ordinary social activities is excusable. However, this excuse is limited to touching that is reasonable in our daily interactions. If the force that is applied goes beyond that, the accused will not have a lawful excuse.
125It is for the prosecution to prove, beyond reasonable doubt, that the application of force was without lawful excuse. Mr Cooley does not need to prove that he had such an excuse.
Findings of fact and decision
126I accept that Sean Foster and Aaron Farmer were essentially truthful witnesses. However, it is my view that in light of the pressure from their boss Dave McMillan they each embellished or exaggerated their evidence of the actual touching by Mr Cooley.
127I find beyond reasonable doubt that Mr Cooley touched each of the complainants in the way they described. That is, in relation to Aaron Farmer by poking him with a broomstick in the anal region and Sean Foster by grabbing him around the chest and dry humping him.
128I do not find the touching was sexual despite the area of the body Mr Cooley touched and I find there was no evidence of sexual gratification by Mr Cooley.
129I do not accept the arguments relied upon by the prosecution that the men were not known to each other, such that any element of joking or laughing could not amount to a workplace joke between men who do not work together regularly. The fact that the men were previously not known to each other does not preclude a finding that what was done was done as a joke and as a form of stupid masculine physicality, locker room, toxic bullying type behaviour. This is particularly so given the evidence of all witnesses, that Mr Cooley was laughing at the time of the touching and said it was all a joke and just mucking around.
130Before I can be satisfied beyond reasonable doubt about this element something more is required than bare satisfaction of one or more of the limbs of s. 35B(2). It is however difficult to provide a definitive statement of what that ‘something more’ involves, particularly at the margins.[11]
[11]AB v Paulet [2022] VSC 646.
131The complainant’s subjective characterisation is not relevant to this assessment.[12]
[12] Ibid.
132It is the more immediate circumstances of the touching as opposed to the history or relationship between the parties that is more important when characterising the touching.[13]
[13] Ibid.
133On the evidence before me I do not consider there was a sexual interest on the part of Frank Cooley given the joking and laughing that accompanied the touching. There was no evidence of sexual gratification. I accept the argument of Mr Battersby that Mr Cooley’s behaviour is better described as a form of stupid masculine physicality, locker room toxic bullying type behaviour.
134In the circumstances I am not satisfied that there is something more that makes this touching sexual. It follows that I am not satisfied of this element beyond reasonable doubt.
135I therefore find Mr Cooley not guilty of charges 3 and 4.
136However, having found that the touching occurred in my view it was deliberate, and Mr Cooley intended to touch Aaron Farmer and Sean Foster in the manner described by each of them. Further, in my view the prosecution has proven that what was done was done without lawful excuse. Mr Cooley acted in a manner that in my view was outside the course of ordinary social activity such that it would be excusable.
137I therefore find Mr Cooley guilty of charges 7 and 8 of unlawful assault.
138I do not consider Wade McMillan to be a credible witness upon whom I can rely beyond reasonable doubt.
139There are several reasons for this including his presentation in court, the delay of 13 months in reporting the matter to police and his report to the police only when approached by them, this in my view is incongruous with his evidence that he felt violated and was upset and angry.
140Further, I could not be satisfied Aaron Farmer witnessed either charged event. What Aaron Farmer described in his evidence is more likely to be charge 1 given he says it occurred in the bar area. However, Wade McMillan’s evidence was Frank Cooley said, ‘thanks chief’ and he responded if he did it again, he would break his fingers – these are two very distinct comments that you would expect a witness to remember. This was contrary to the evidence of Aaron Farmer who said that Wade McMillan’s response was don’t touch me again.
141Other aspects of Wade McMillan’s evidence that have caused me to doubt his credibility and reliability include his evidence that Steve McMillan was not present and the look of shock when this was suggested, his evidence that as a director of the company he had no knowledge of the complaint made by Mr Cooley and no knowledge of the allegation that Mr Cooley spoke inappropriately to his sister.
142Further, I have doubts about the veracity of his complaint to his father Dave McMillan and his father’s evidence given the animus present between Dave McMillan and Frank Cooley. I do not accept Dave McMillan’s evidence that he was unconcerned about the complaints made against him to Energy Safe and WorkSafe. Further I do not accept that he was not concerned about having to repay Frank Cooley the cost of the work $15,000 and an extra $1,000.
143In circumstances where are no other witnesses and no independent evidence of the alleged sexual touching, I am not satisfied beyond reasonable doubt that Mr Cooley touched Wade McMillan in any manner as alleged.
144I therefore find Mr Cooley not guilty of charges 1 and 2 and the alternative charges of 5 and 6.
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