Cross v Haylock
[2016] VSC 793
•21 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00436
| SHAUN VINCENT CROSS | Appellant |
| v | |
| JAMES HAYLOCK | Respondent |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2016 |
DATE OF JUDGMENT: | 21 December 2016 |
CASE MAY BE CITED AS: | Cross v Haylock |
MEDIUM NEUTRAL CITATION: | [2016] VSC 793 |
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CRIMINAL LAW – Appellant convicted in Magistrates’ Court of indecent act with child – Crimes Act 1958 (Vic) s 47 – Appellant repeatedly squeezed buttocks of daughter and commented on their size – Whether complainant specifically referred to the charged behaviour when describing incident in video evidence – Whether sufficient evidence for satisfaction beyond reasonable doubt – Appeal allowed.
EVIDENCE – Mother of complainant gave evidence as to previous instances of inappropriate touching – Whether Magistrate used evidence as tendency evidence – Evidence Act 2008 (Vic) ss 97, 101 – Evidence was not used to show that the appellant squeezed the complainant’s buttocks.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Ginsbourg | Frank Rutherford, Solicitor |
| For the Respondent | Ms E Ruddle | Solicitor for Public Prosecutions |
HIS HONOUR:
The appellant was tried on 12 January 2016 in the Magistrates’ Court. He was found guilty of one charge of committing an indecent act with a child under the age of 16, contrary to s 47 of the Crimes Act 1958 (Vic). The complainant (‘B’) was the appellant’s daughter. The charge alleged that the appellant placed his hands on B’s buttocks and squeezed them while making comments about their size.
The appellant raises three questions of law for determination in this Court:
(1) Was it open to the Magistrate to find that the appellant had touched the complainant’s buttocks on the occasion alleged by the charge?
(2) Was it open to the Magistrate to find that the act of squeezing the complainant’s buttocks was ‘indecent’ within the meaning of s 47 of the Crimes Act?
(3) Was it open to the Magistrate to find that the evidence of the complainant’s mother supported a finding that the appellant had committed an indecent act on that occasion, either:
(a) on the basis that she had witnessed the appellant’s conduct on that occasion; or
(b) on the basis that she had witnessed the appellant’s conduct on a prior occasion, notwithstanding the prohibition against the use of tendency evidence contained in s 97 of the Evidence Act 2008 (Vic)?
For the reasons which follow it was not, in my opinion, open to the Magistrate to find beyond reasonable doubt that the appellant touched the complainant’s buttocks on the particular occasion alleged. The appeal must be allowed on Ground One and the conviction of the appellant quashed.
As a result of this finding, it will be unnecessary to deal with the other grounds of appeal, save for some brief comments I will make concerning Ground Three.
Factual background
The appellant is the father of the complainant, B. The appellant lived with the complainant’s mother at the time of the alleged offending, though their relationship had broken down. They lived separately in the same house with their son and daughter. B’s mother made complaints to the police about indecent acts toward each of the children. The appellant was found not guilty of the acts in relation to his son.
After complaints about the offending, the appellant was forcibly removed from the family home on 29 or 30 July 2014. The charge sheet alleges that the offending occurred between 26 and 27 July 2014 – that is, a few days before the removal.
The complainant was 14 years old at the time of the offending. She participated in an interview with Senior Constable H in August 2014. This was recorded as Visual and Audio Recording of Evidence (‘VARE evidence’), for use as B’s evidence-in-chief.[1]
[1]Criminal Procedure Act 2009 (Vic) s 367.
The VARE evidence contains the following relevant passages, with the interviewer’s words of assent between each sentence omitted:
B Well, he kind of touched us in areas that he shouldn’t and feels us where he shouldn’t.
…
To me he runs his hands up my body.
And touches my bum.
And squeezes it.
And kinda talks about my bum in ways that he shouldn’t.
Saying “Oh, it’s getting bigger today. Oh, its gotten smaller today,” and stuff like that, things he shouldn’t be saying.
Stuff like that.
H OK. Tell me, in as much detail, the last time that this happened.
B Probably three nights before he got taken off us maybe.
Yeah. Three nights before.
H Yep
B Yeah.
H And tell me in as much detail everything that happened on that day in regards to when he touched you like you were talking about.
B So probably in this room and he probably – like, it’s a normal thing for him to do, like, but it’s not normal. So probably in here in – around – like, kind of touches, like, rubs on you like that, but … not in a pleasant way kind of thing.
Yeah. Something a dad shouldn’t do.
I guess, kind of grooming youse kind … of thing. Something … he shouldn’t do.
H OK.
B Yeah.
H All right. So it was about – well, you say three nights before he got taken away.
B Yep.
H How long ago was that?
B I think it’s two weeks.
…
H So you were sitting in this room?
B Yep.
H And your dad starts touching you. Tell me everything that he did in regards to when he started touching you. Where he put his – what he did in regards to touching you, what he said. Anything that you can … remember in as much … detail.
B He starts, like, he rubs, like, all down like that.
Around stuff like that. And he go – and he says, “How are you today, kiddo? Come over for a hug,” and stuff like that.
B Yeah. We’re watching the TV… and he just does that.
H And this is the last time it happened?
B It happened. Yeah.
After some discussion of the appellant’s alcohol consumption, the interviewer continued:
H O.K. So you – you say – you mentioned before that he touches you on – on the bum and he talks about your bum.
B Yeah.
H Tell me in as much detail about that.
B Like, he squeezes it … like that. He calls me, like, princess and stuff and then says, “Oh your bum’s getting bigger today,” and stuff. I think – I don’t think – I don’t know if it’s a joke or not but I don’t think he should be doing that … as a joke, ‘cause that’s not what dads do.
…
H And how often would he do that?
B Well, I don’t really like going near him ‘cause he does that, so – I dunno. Say if I was in the kitchen there cooking tea with mum he’d come and just squeeze my bum or something like that.
Like – yeah. So I cook tea probably two nights a week with mum. Like, family bonding with mum.
Yeah.
B also gave evidence during the trial before the Magistrate, by way of video link. B stated that everything in the video interview was true. However, B was unable to give details of the ‘last time’ spoken of in the VARE evidence, because she could no longer remember the particular incident at least to the extent that she was asked about particular matters.
B’s mother, K, also gave evidence before the Magistrate by video link. K stated that the appellant would ‘put his hand on [B’s] ankle and bring it up to her knee and then up – and rub her thigh’. She observed this from the kitchen, with the act itself taking place in the lounge room. K said that this made her upset and feel sick, because it ‘didn’t look like normal behaviour’.
K stated that she observed this twice, each time being after February 2014. The last time was around one month before K’s son made complaints about the appellant’s behaviour, which led to the his removal from the house.
The Magistrate found the appellant guilty and clarified his finding in the following exchange with counsel for the accused:
Mr Ginsbourg Sorry, it wasn’t clear from your Honour what your Honour found to have occurred on the charged occasion in relation to [B].
His HonourYes. Inappropriate touching of the child on the buttocks.
Mr Ginsbourg On the buttocks.
His Honour Yes.
The appellant does not deny that he engaged in this behaviour. In his interview with police, the appellant stated that he would grab B’s buttocks in this way every two or three days. He says, however, that it was in the nature of teasing and that he never understood B to be genuinely upset with the behaviour.
Ground One
While the appellant admits having engaged in this behaviour over time, the prosecution is required to prove that the appellant touched B’s buttocks in that way within the charge period – that is, on 26 or 27 July 2014. The appellant claims that the evidence is not capable of showing, beyond reasonable doubt, that the appellant touched the complainant’s buttocks on that specific occasion. That contention should be accepted.
The basis of the appellant’s argument is that B’s VARE evidence does not speak of her being touched on the buttocks on 26 or 27 July 2014 (the ‘last time’ spoken of in the interview).
In the passage quoted above, B lists a number of behaviours, which include the appellant touching and commenting on her buttocks. B is then asked when was the last time ‘this’ happened. Whether ‘this’ refers to touching of the buttocks (as alleged in the charge) or to some other behaviour such as rubbing of the leg is unclear. When B provides an answer to the question, she speaks only of the appellant rubbing her thigh, rather than touching her buttocks. B’s actions on the video evidence mimic touching and rubbing, but not squeezing of the buttocks. I note at the time B acts out the relevant touching she is seated on a couch in a position which would make it difficult for her to mimic the touching of her buttocks without standing up.
The respondent focuses on the precise order of statements in the evidence. B states that ‘this’ last happened two or three days before the appellant was removed from the house. Immediately prior to the question about when ‘this’ last happened, B refers to touching on the buttocks. The respondent therefore says that B’s answer is a reference to squeezing of the buttocks. The description of other behaviours provides context, without lessening the importance of the squeezing of her buttocks.
It is possible that B was referring to a squeezing of the buttocks on that last occasion. However, she did not expressly say that such behaviour occurred on the last occasion. When asked to give details of what happened on that occasion, there was no reference to squeezing of the buttocks. There is therefore no express evidence on the point. When asked later in the VARE evidence to provide ‘as much detail as possible’ of the last occasion, B again refers only to rubbing. This appears to be a reference to rubbing on the leg, not squeezing of the buttocks.
Nor is it possible to draw an inference that the squeezing occurred on the last occasion. To do so would require a reconstruction of events which goes beyond the evidence. Such an inference would also be difficult (though, admittedly, not impossible) to align with other aspects of the evidence. The interviewer asks B whether they were ‘sitting’ in that room (that is, the lounge room) and B then describes the rubbing. It is difficult to infer that squeezing of the buttocks would have occurred if the two were seated. When describing other examples of squeezing of the buttocks, B refers to cooking tea with her mother in the kitchen, where the two would likely be standing rather than sitting.
These last considerations are not, perhaps, conclusive. However, they do demonstrate the difficulty in finding that the appellant squeezed B’s buttocks on the ‘last occasion’ (26 or 27 July 2014). The evidence as a whole is at least equally consistent with a finding that the appellant rubbed B’s legs on the last occasion, but did not squeeze her buttocks. It was not open to the Magistrate to be satisfied of the matter beyond reasonable doubt.
Ground Two
The second question accepts, for the sake of argument, that the appellant did touch B’s buttocks on the relevant date. The question in argument was whether this was an act which was ‘indecent’ within the meaning of s 47. In light of the conclusion above, this question does not arise.
Ground Three
Ground Three concerns the relevance and proper use of K’s evidence. The appellant focuses on the following passage of the Magistrate’s findings:
Further, there was evidence given by the mother of her observations of the interaction between her daughter and her estranged husband, as observed by her through, as I recall, the kitchen door. On that basis those charges are proven.
The appellant raises two objections to the Magistrate’s approach. First, the appellant says that this passage indicates that the Magistrate relied on K’s evidence to find that the appellant touched B’s buttocks. In fact, K’s evidence says no such thing: K spoke only of seeing the appellant touch and rub B’s legs.
There is no dispute that K did not see the charged incident. Rather, K observed earlier instances of other conduct – namely, the appellant touching B’s legs as opposed to her buttocks. Accordingly, the Magistrate could not have used the evidence to show that the appellant had, in fact, touched B’s buttocks on 26 or 27 July 2014. This is consistent with the conclusion in relation to Ground One.
The further question in part (b) of Ground Three concerns whether K’s evidence was improperly used as tendency evidence to convict the appellant. Sections 97 and 101 of the Evidence Act 2008 (Vic) restrict the use of such evidence.
The Magistrate does not appear to have reasoned that the accused was more likely to have touched B’s buttocks because of previous instances of inappropriate touching. Rather, his Honour’s reference to K’s evidence comes after a discussion as to whether an act is to be considered ‘indecent’. K gave evidence that she considered other instances of touching to be inappropriate. The Magistrate appears to have used the evidence to determine whether the act was indecent, not whether it occurred at all.
I concluded in relation to Ground One that the evidence did not show beyond reasonable doubt that the appellant squeezed B’s buttocks on the occasion alleged. The evidence of K was not used by the Magistrate to make such a finding, and would be incapable of leading to such a finding given the equivocal nature of the evidence considered earlier. In light of my conclusion in relation to Ground One, it is unnecessary to say anything further concerning Ground Three: the evidence in this matter is incapable of showing beyond reasonable doubt that the appellant squeezed B’s buttocks in the charge period.
Conclusion
The order will be as follows:
1. The appeal is allowed.
2. The orders of the Magistrates’ Court made on 12 January 2016 will be set aside.
3. The charge against the appellant under s 47 of the Crimes Act 1958 (Vic) is dismissed.
4. The respondent pay the costs of this appeal and those of the Magistrates’ Court proceedings.
5. Liberty to the parties to apply.
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