Costigan v Eaton
[2020] WASC 335
•21 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COSTIGAN -v- EATON [2020] WASC 335
CORAM: ALLANSON J
HEARD: 9 SEPTEMBER 2020
DELIVERED : 21 SEPTEMBER 2020
FILE NO/S: SJA 1032 of 2020
BETWEEN: FINTAN COSTIGAN
Appellant
AND
BRETT PETER EATON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M M FLYNN
File Number : PE 51316 of 2019
Catchwords:
Criminal law - Criminal appeal - Whether verdict unreasonable or cannot be supported by the evidence - Whether in light of CCTV evidence the magistrate ought to have entertained a reasonable doubt - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | B W Standish |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | Max Crispe Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
MEN v The State of Western Australia [2020] WASCA 118
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
ALLANSON J:
Introduction
The appellant was convicted after trial on one charge of unlawful and indecent assault. He applies for leave to appeal the conviction on two grounds:
1.The decision of the Learned Magistrate should be set aside as having regard to the whole of the evidence, it is unreasonable or cannot be supported by the evidence.
3.[The Learned Magistrate] erred in law in failing to properly consider and apply the legal defence of accident available to the applicant.[1]
[1] The appellant abandoned grounds 2, 4 and 5.
The trial was conducted over one day on 6 April 2020.
The trial
The offence was alleged to have occurred in the Mustang Bar in Northbridge on 20 October 2019. In opening the prosecutor stated that the allegation was that, while the victim was in a nightclub, standing with a group of her friends, the appellant touched her indecently.
The prosecution called three witnesses at trial: the complainant, Ms C; a friend of hers who was present on the night; and a police officer. The appellant gave evidence but called no other witnesses.
Evidence in the trial included photographs taken from a CCTV recording in the bar, and a thumb drive containing the CCTV recording over the relevant period of 4 minutes and 18 seconds.
The witnesses
The appellant and Ms C did not know each other.
Ms C gave evidence‑in‑chief that at about 1.30 am she was dancing with a group of friends when,
I felt someone, with two fingers, reach underneath my skirt and poke me inappropriately.
…
I was dancing, and I felt someone reach underneath my skirt with two fingers and poke me in the vagina. I then turned around, and he was right behind me. The only person that would have been able to reach me, inappropriately, in that manner. So I started to yell at him and say, 'That's not okay. You can't do that to women.'
…
He was directly behind me. He then started to deny it and say, 'What do you mean', and he started to get in my face.[2]
[2] Trial ts 10.
Ms C was asked by the prosecutor what the timeframe was between when she was touched and when she said those words and she replied, 'I'm not 100 per cent sure, but a couple of minutes - a few minutes'. Ms C later qualified that answer by saying she turned around immediately after it happened, and it was less than a minute.[3]
[3] Trial ts 11.
Further in her examination‑in‑chief, Ms C stated that she was certain that the fingers were under her skirt and not on the outside.[4] She said that she was wearing a skirt 'about mid length from the thigh' over a leotard.[5]
[4] Trial ts 18.
[5] Trial ts 9.
In cross-examination, Ms C said that she felt a hand come from behind her, coming between her legs, to touch her.[6]
[6] Trial ts 21.
Ms C's friend gave evidence that he heard Ms C say, 'Don't do that, you can't do that', and push someone away. He stepped between her and the appellant and asked him to walk away. He gave evidence that later, when they left the bar, Ms C was 'distraught', crying and struggling to put sentences together.[7]
[7] Trial ts 33, 35.
The prosecution also called a police officer who interviewed the appellant. There were no relevant admissions.
The appellant gave evidence. He said, in effect, that he had been drinking for several hours at two other bars, before he went to the Mustang Bar. He accepted that he was affected by alcohol. He could recall being confronted by Ms C's friend. He did not otherwise have any recollection of the night. He did, however, say that he had two daughters, and that the conduct alleged against him is not something that he would do.[8]
The CCTV
[8] Trial ts 49.
Although it is not high-resolution, there is a CCTV record (including stills taken from it) which shows the area of the Mustang Bar where Ms C and the appellant were at the relevant time. The video is from 1.24 am to 1.29 am, and includes Ms C confronting the appellant. Each of them can be identified on the video. The area was crowded.
For most of the time, only the upper body of Ms C is visible. But she can, on at least two occasions, be seen from about the knees up. She was, as she described, wearing a skirt that came to mid-thigh, if not slightly lower. The appellant was standing near Ms C for approximately one minute, although he was not interacting with her before she confronted him.
The decision of the magistrate
The magistrate gave his decision immediately following the evidence and addresses. There is no challenge to the adequacy of his reasons.
His Honour summarised the prosecution case in this way.
The prosecution case is that [the appellant] placed his hand under the skirt of [Ms C] and with two fingers, over clothing which she was wearing under her skirt, a bodysuit and knickers, he applied force to her vagina; that that force lasted for a second.
… When asked to elaborate, she said that she was dancing. She felt someone reach under her skirt and poke her in the vagina. She turned around and behind her there was a person, who she yelled at. There was only one person who was close enough to her to have engaged in the conduct which she felt.[9]
[9] Trial ts 54 -55.
His Honour referred to the cross‑examination when it was put to Ms C that 'contrary to the evidence that she felt movement under her skirt and pressure from behind her, that the location of [the appellant] was such that he could not have engaged in the conduct as she described it'. His Honour said that Ms C 'consistently rejected the proposition that was put to her', and described her as 'resilient' in the cross‑examination.[10]
[10] Trial ts 56.
Describing his viewing of the CCTV, the magistrate said:
At the 28.12 mark [the appellant], who has been facing in the direction to the right from the camera position on the stage, turns in the direction of the stage and he's now looking in the direction of [Ms C]. That continues from the 28.12 to the 28.15 mark. They are adjacent to each other. [Ms C] has been looking towards the front of the stage and [the appellant] turns towards her. It's impossible to see the hands of [the appellant]. It's impossible to see anything other than his head. There's certainly no physical movement of the top half of his body that suggests anything done with his hands or able to make any findings about anything done with his hands. At the 28.15 mark [Ms C] turns to face [the appellant]. And at the 28.18 mark [the appellant] reacts to something that is said. There is a look on his face of anger, of incredulity, and I made findings already about - or I've summarised the evidence of [Ms C], uncontradicted, about her saying things to him that, 'You can't do that,' and his response of denial.[11]
[11] Trial ts 59.
His Honour, however, found that the CCTV did not of itself give rise to a reasonable doubt that the appellant 'applied force in the manner, which was the evidence of [Ms C]'.[12] While finding that the CCTV did not show 'anything suggesting any movement' by the appellant, his Honour found that nothing gave rise to a reasonable doubt that the appellant did what is alleged 'by reason of it being simply impossible to do that'.[13]
[12] Trial ts 59.
[13] Trial ts 59.
In making those findings, the learned magistrate did not expressly refer to Ms C's evidence that the touching was from behind, coming between her legs, and under her skirt.
Consideration
The magistrate clearly accepted Ms C as being credible and reliable. On appeal, however, the court must consider whether, notwithstanding that assessment, in light of other evidence it is satisfied that the learned magistrate, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[14]
[14] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 [39]; MEN v The State of Western Australia [2020] WASCA 118 [406], [707].
It was not open on the prosecution case and the evidence at trial to find that an indecent touching occurred other than in the manner alleged by Ms C.
With the agreement of counsel, I have watched the CCTV recording repeatedly in my chambers. There was no time at which the appellant was standing in a position in relation to Ms C where he could have put his hand under her skirt, and between her legs from behind her. The length of Ms C's skirt makes it even less likely. It is not only, as his Honour said, that there was no physical movement of the top half of his body that suggests anything done with his hands. The appellant's position in relation to Ms C was inconsistent with him having touched her in the manner she described. Despite his favourable assessment of Ms C's credibility, in the light of the CCTV evidence the learned magistrate must have entertained a reasonable doubt as to guilt.
I would grant leave on ground 1 and uphold the appeal on that ground. The conviction of the appellant should be quashed and an acquittal entered.
The finding on ground 1 makes it unnecessary to consider the second ground.
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 Allanson21 SEPTEMBER 2020
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