Crossgrove (a Pseudonym) v The Queen

Case •

[2019] NSWDC 424

•

23 May 2019

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Crossgrove (A Pseudonym) v R [2019] NSWDC 424
Hearing dates: 9, 11 and 12 April 2019
Date of orders: 23 May 2019
Decision date: 23 May 2019
Jurisdiction:Criminal
Before: P Taylor SC DCJ
Decision:

Dismiss the appeal against conviction

Catchwords: CRIME – all grounds appeal – aggravated indecent assault – dentist assault of dental assistant – attempted kiss – slap on backside – grabbing shoulder – credit findings of Magistrate – tendency evidence – text messages – whether significant probative value
Legislation Cited: Crimes (Appeal and Review) Act 2001, s 11, s 18, s 20
Evidence Act 1995, s 66, s 97, s 101
Cases Cited: Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244
Eades v DPP (NSW) (2010) 77 NSWLR 173
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Johnson v Ramsden [2019] WASC 84
McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
R v Bauer (A Pseudonym) (2018) 359 ALR 359; [2018] HCA 40
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
Category:Principal judgment
Parties: Paul Daniel Crossgrove (Appellant)
Regina (Respondent)
Representation: Solicitors:
Johnston Vaughan Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2017/236831
Publication restriction: NB: s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies any complainant or may lead to the identification of any complainant. As such pseudonyms have been used.
 Decision under appeal 
Court or tribunal:
Local Court
Jurisdiction:
Criminal
Date of Decision:
31 August 2018
Before:
Magistrate D Covington
File Number(s):
2017/236831

Judgment

Introduction

  1. Paul Daniel Crossgrove appeals from a decision of the Local Court convicting him of two charges of aggravated indecent assault and one charge of assault.  All involve the same complainant, Melissa Thompson. 

  2. Ms Thompson was a 19-year-old dental assistant who worked with Mr Crossgrove, a dentist.  The element of aggravation in the two charges of indecent assault was Mr Crossgrove's position of authority as the sole dentist at the practice.  This was not disputed by Mr Crossgrove. 

  3. The appeal also raises a question about the value of tendency evidence.

The appeal

  1. The appeal against conviction in the Local Court is available under s 11 of the Crimes (Appeal and Review) Act 2001. This Court may determine the appeal against conviction by setting aside the conviction or dismissing the appeal. [1]  

    1. See s 20 of the Crimes (Appeal and Review) Act 2001.

  2. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings subject to exceptions not presently relevant. [2]   That evidence comprises a transcript of the Local Court proceedings and a bundle of exhibits in that Court.  The question to be determined is whether this Court is satisfied beyond reasonable doubt of the guilt of Mr Crossgrove on the evidence which is admissible in the hearing of the appeal.  I am to form my own view of the facts, taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses in the court below. [3] I am entitled to consider the reasons of the magistrate, including on issues of credibility of witnesses. 

    2. See s 18 of the Crimes (Appeal and Review) Act 2001.

    3. See Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244.

  3. There was no application for, or any decision allowing, recordings to be played before me, or calling of witnesses to give evidence, or any fresh evidence.

The charges

(a) The first aggravated indecent assault, sequence 2

(i) The elements

  1. The element of aggravation is that Mr Crossgrove was in a position of authority. That was not disputed. It was established to the criminal standard by Mr Crossgrove being the sole dentist and a director of the practice.  The remaining elements of the offence required proof beyond a reasonable doubt of an assault involving an act of indecency.

  2. An assault involves an intentional or reckless act causing another to apprehend immediate and unlawful violence, and need not occasion actual bodily harm.  At least in the case of an act of indecency it includes deliberate and unlawful touching: even the slightest touch, which need not be hostile or aggressive, or cause fear or pain, may suffice.  It requires a lack of consent by the victim and also knowledge of a lack of consent or recklessness as to whether the victim was consenting.

  3. The indecent component of the assault, the act of indecency, involves an act contrary to the ordinary standards of respectable people in the community, which must have a sexual connotation. 

  4. While Mr Crossgrove disputed the occurrence of the events involving the aggravated indecent assaults, there was no dispute that if they occurred as described by Ms Thompson, they constituted aggravated indecent assaults.  The principle question then was whether the events were proved beyond reasonable doubt to have occurred.

(ii) The undisputed context

  1. In about May 2016, Ms Thompson desired to have some time off in the morning to attend a funeral.  Mr Crossgrove agreed to that and offered to provide Ms Thompson an Uber vehicle for transport to minimise the period of time she would be absent from the busy practice.  She came into a small office where Mr Crossgrove was located to obtain the details of the Uber vehicle.  Subsequently, she departed.  What occurred in the office was the subject of the first aggravated indecent assault charge.

(iii) The evidence

  1. The relevant evidence comprised Ms Thompson's and Mr Crossgrove's testimony, some text messages by Mr Crossgrove to Ms Thompson and another dental assistant, a police interview with Mr Crossgrove, Ms Thompson's statement dated about 12 months after the incident, evidence of a complaint by Ms Thompson to Ms George, Ms Thompson's supervisor, some photographs of the work offices and evidence of Mr Crossgrove's tendency to have and act upon a sexual interest in his female staff members. No objection was taken to any of the evidence. 

  2. Ms Thompson's statement contains representations which are admissible as evidence of the indecent assault if made when the assault was "fresh in the memory" of Ms Thompson. [4] The representations in the statement are specific as to the nature of the acts and the time of their occurrence, which are relevant to suggest that they were fresh in her memory. [5]

    4. See s 66 of the Evidence Act 1995.

    5. See R v Bauer (A Pseudonym) (2018) 359 ALR 359; [2018] HCA 40 at [89]-[94].

  3. Ms Thompson, in her statement and in her oral account of the incident, stated that she entered the room, Mr Crossgrove slid the sliding door closed behind her, manoeuvred her against the wall of the office where he put his arms around her and with his body, specifically his stomach, against her, specifically her stomach, attempted to kiss her whilst stating: "Aw I love you, and I would love to take you home with me",[6] or "Oh, I love you, I wish I could take you home with me". [7]

    6. See Exhibit A, tab 2 at [15].

    7. 1/3/18, T26/48-49.

  4. In Ms Thompson's evidence‑in‑chief, the following exchange occurred:

"Q. You close the door. When you closed the door; you were still standing at that corner point?

A. Correct, and he was to the left of me." [8]

8. 1/3/15, T25/32-34.

  1. In his ERISP interview, Mr Crossgrove did not recall any of closing the door, pressing Ms Thompson against the wall of the office, putting his arms around her, attempting to kiss her and stating the words quoted above.  In his oral testimony, he did not recall whether the sliding doors were closed, [9] but otherwise denied these matters.  He could not recall if Ms Thompson said, "I've got to go", and then left. [10]

    9. See 26/4/18, T7/14-15; T26/45-49.

    10. 26/4/18, T27/23-25.

  2. Mr Crossgrove, in cross‑examination, initially said he did not recall a staff supervisor, Ms George, speaking to him about this allegation but then he accepted that he did recall a conversation about this allegation where Ms George told him, in effect, "You can't touch your staff like that". [11]

    11. See 26/4/18, T28/9-17 and also T29/16-24.

  3. The text messages relied upon by the Crown in respect of this offence comprised one occasion where Mr Crossgrove texted to Ms Thompson, "Hey there spunky butt".  The date of this text and whether it was before or after the incident are not clear. There were other texts to another young female dental assistant, Julia Barton, prior to the subject incident which stated (omitting the emojis):

“I hope you had fun

It is nice to have you enter my private space

You are very special”

“Thank you darling

Wear your mascara please

After wards I want to do your eyes…”

“He wants to come u so that’s good

And we can go shopping afterwards then hang out…”

“Really looking forward to our afternoon together at last…”

“You can have anything you wish…”

“It has to be lots of FUN

Our own private time together fun fun fun”

“I really think you are so cool”

“Everything is on your agenda you call the shots”

“You set the rules”

“Love you honey…”

“I want to make you very happy

And enjoy what we do together

It’s all about you…”

“Missing you…”

Need a cuddle…” [12]

12. Exhibit A, tab 15.

  1. All the texts were put forward as relevant in proving a tendency in Mr Crossgrove to have a sexual interest in young adult female staff and to attempt to kiss female staff members at work and touch female staff members without their permission, and other matters.  This tendency is said to be relevant to this and to the other indecent assault. 

  2. To be admissible, a text must be either part of the context of the incident or must establish a tendency relevant to an element of the offence.  As the texts were not established to be proximate to the incident in time, they are not legitimately part of the context.

  3. The tendency alleged was that Mr Crossgrove had a tendency to have a sexual interest in young adult female staff and act upon that tendency.  Such a tendency would be relevant to whether Mr Crossgrove would press against, hug, and attempt to kiss Ms Thompson if there was evidence that Mr Crossgrove had acted on that tendency in any way other than sending texts,[13] which the evidence of the other charged acts could constitute.

    13. Cf R v Bauer at [86], McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52.

  4. However, evidence of such a tendency must satisfy the requirements of the Evidence Act 1995 to be admissible. Section 97 of the Evidence Act 1995 requires notice and that the evidence, by itself or with other evidence, has significant probative value. And by s 101, the tendency evidence cannot be used against Mr Crossgrove unless the probative value significantly outweighs any prejudicial effect on Mr Crossgrove.

  5. I take into account that Mr Crossgrove was represented by an experienced practitioner who took no objections to the texts, the tendency notices or evidence of the other charged acts.  I also take into account that the appeal is a new hearing before a judge alone and no real prejudicial effect in the texts was asserted. 

  6. The real question is whether the texts have significant probative value in the case against Mr Crossgrove under s 97 of the Evidence Act 1995. However, as mentioned, s 97(1) provides that the evidence of the texts is not admissible unless, "either by [themselves] or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, [they] have significant probative value".  The value of the texts cannot be determined in isolation. 

  7. The texts display inappropriate language by an experienced 71-year-old dentist dealing with young adult female staff.  They convey feelings of affection and refer to parts of the anatomy.  Most of the texts are in communication with Ms Barton, a one time member of staff. 

  8. The one relevant text Ms Thompson received, "Hey there spunky butt", while plainly inappropriate in the circumstances, is not significantly probative of itself to show a sexual interest in either staff, generally, or Ms Thompson, in particular.

  9. There is also evidence of two instances of indecent exposure by Mr Crossgrove, but as these are quite different in nature from this offence of indecent assault, and because the evidence and circumstances of the two alleged acts of indecent exposure do not render them highly probative, I reject them as relevant evidence in the appeal.

  10. The remaining tendency evidence in respect of this charge then comprises the one text message to Ms Thompson, the repeated text messages to Ms Barton, the slapping of the bottom of Ms Thompson, another charge in the appeal, and the attempted kiss of Ms Barton, a charge which was dismissed by the magistrate.  The last matter was not proved beyond reasonable doubt but this does not preclude it being tendency evidence in accordance with R v Bauer.

  11. The magistrate did not appear to give any real weight to the tendency evidence, although to me these matters do have significant probative value to prove the tendency. The tendency is of significant probative value in the trial to explain why the indecent assault may have occurred. 

  12. To clarify, the tendency evidence of acts includes evidence of Mr Crossgrove slapping Ms Thompson's backside and attempting to kiss Ms Barton during treatment not at, but proximate to, the time she was his dental assistant (the matters referred to at items (iv) and (v) at the top of p 4 of the tendency notice).

  13. Accordingly, I do propose to give consideration to the text messages, the evidence of the slap on Ms Thompson's bottom and the evidence of an attempt to kiss Ms Barton as evidence of the tendency to have a sexual interest in young female staff and act upon that tendency in a relevant manner.  That is the only way that I can or shall consider that evidence.

  14. As to the evidence of Ms Thompson, quoted earlier, that indirectly indicated that she closed the door, I note that counsel for Mr Crossgrove made no submission (and before the Local Court made no submission and asked no questions), about that evidence.  It was not referred to by the magistrate.  It appears to be a mistake by the prosecutor in asking an incorrect leading question, not objected to by Mr Crossgrove, perhaps because it was favourable, and not corrected by Ms Thompson, perhaps explicable because of her age, because the question came from a friendly source, and because a concluding part of the question was correct.  Her focus was on that concluding part concerning her position when the door closed.  Her statement and earlier oral evidence stated in plain terms that Mr Crossgrove closed the door.  In all these circumstances, I do not think it to be significant, although it is not a point in her favour.

  15. Ms Thompson gave evidence of a contemporaneous complaint by text message to another staff member, Ms Barton. [14] But the text message itself was not in evidence, neither its transmission by Ms Thompson nor its receipt by Ms Barton, nor was there oral evidence from Ms Barton about the complaint. 

    14. See 1/3/18, T28/6.

  16. Ms Thompson also gave evidence of a complaint to a supervising staff member, Ms George. [15] Ms George gave evidence of an occasion where Ms Thompson told her Mr Crossgrove had, "Kissed her on the neck" and was "Rubbing her shoulders and giving her a massage", [16] and Ms George thereafter told Mr Crossgrove that, "You can't touch your staff" [17] to which Mr Crossgrove gave no response to Ms George. [18]

    15. 1/3/18, T28/15.

    16. See 2/3/18, T134/38-46.

    17. 2/3/18, T134/50-T135/1.

    18. 2/3/18, T135/7.

  17. As noted earlier, Mr Crossgrove accepted that Ms George's statement to him occurred and it was made in connection with the events of this charge. Ms George's account differs from the conduct described in Ms Thompson's testimony, which referred to an attempted kiss rather than a kiss on the neck, and made mention of Mr Crossgrove's arms around her and his body touching hers, rather than of him rubbing her shoulders or a massage. As indicated under s 66 of the Evidence Act 1995, evidence of a complaint may be proof of the facts complained of as well as the credit of Ms Thompson, although I recognise that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable by repetition.

  18. Thus, there are difficulties with each of the alleged complaints.  The first, to Ms Barton, is evidenced only by Ms Thompson and is not otherwise corroborated, and the second, to Ms George, where Ms George's recollection of what she was told differs from what Ms Thompson testified had occurred.

  19. Both Ms Thompson's account and Ms George's account of the complaint and her subsequent direction to Mr Crossgrove that, "You can't touch your staff", are evidence of an aggravated indecent assault.

  20. In these circumstances, I find no real value in Ms Thompson's complaint to Ms Barton as evidence of what occurred, but the evidence of a complaint gives some perhaps slight evidence of consistency in her account. 

  21. The complaint to Ms George is of greater value because it is corroborated both by Ms George's evidence of hearing it and acting on it in a communication with Mr Crossgrove.  The circumstance that Ms George's recollection of what she was told differs from Ms Thompson's evidence of what occurred or what Ms Thompson told Ms George is not, in my view, especially adverse to Ms Thompson's credit. Differences in accounts of sexually related trauma are not necessarily a guide to reliability.  Independent recollections might be expected to differ, especially where Ms Thompson is primarily recalling an event which involved her, whereas Ms George is recalling a conversation.  The event was of greater significance to Ms Thompson than the details of the conversation would be to Ms George.  The principal content of what Ms George was told was as she testified to having communicated to Mr Crossgrove and which Mr Crossgrove accepted: that he was wrongly touching his staff.

  22. The magistrate made a favourable credit finding in respect Ms Thompson. He said that her evidence was "compelling in relation to this count" [19] and that "I found her a reliable witness and I found her evidence persuasive". [20] I took this matter into account. In submissions Mr Crossgrove accepted that I should, because of the advantage enjoyed by the magistrate in observing and hearing the witnesses.  I note however that one can too readily draw conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses[21] and that, "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour". [22]

    19. See 4/6/18, T18/39.

    20. See 4/6/18, T18/41-42.

    21. See Fox v Percy (2003) 214 CLR 118 at [30]-[31]; [2003] HCA 22.

    22. See Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152.

  23. It is clear that the prosecution seeks to establish guilt on this charge at least substantially on the evidence of Ms Thompson.  That requires that I must examine Ms Thompson's evidence very carefully before acting on it to find proof beyond a reasonable doubt in accordance with a Murray direction, and I do this.

  24. Accordingly, I have Ms Thompson's account described as compelling by the magistrate, supported by evidence of a complaint to her supervisor, Ms George, prompting Ms George to direct Mr Crossgrove not to touch staff; a direction which in evidence Mr Crossgrove accepted had occurred.  In the context of the evidence, I do not regard Ms Thompson's acceptance of the prosecutor's proposition that included her closing the door as significant. 

  1. I also have the contrary evidence of Mr Crossgrove where in the ERISP interview he initially fails to recall anything about the incident although ultimately, in his oral evidence, he denies it. [23] But he accepts that the direction by Ms George about the incident occurred [24] and there is the tendency evidence of Mr Crossgrove's sexual interest in young adult female staff, in particular Ms Thompson and Ms Barton and a tendency to act on it constituted by the text messages, the slapping of Ms Thompson's bottom and Ms Barton's evidence about an attempted kiss.

    23. See Exhibit A, tab 20, Q&A 288 to 301 and 26/4/18, T26/10.

    24. See 26/4/18, T28/14-17.

  2. Proof beyond reasonable doubt does not require absolute certainty.  Whilst the terms of Ms George's recollection of the complaint and the acceptance of the prosecutor's mistaken leading question are matters to be considered, Ms Thompson's otherwise compelling evidence and Mr Crossgrove's faulty recollection of the incident, together with Ms George's subsequent instructions to Mr Crossgrove, convince me beyond reasonable doubt of the offence. 

  3. Counsel for Mr Crossgrove on the question of Ms Thompson’s credit referred to the circumstance that in respect of another more serious offence, the indecent exposure, the magistrate found in favour of Mr Crossgrove despite Ms Thompson's testimony.  I do not find this submission persuasive. The evidence connected with that allegation involving Ms Thompson included Mr Crossgrove's forceful denial, a real question about whether the act was intentional, some issues of practicality, the absence of any complaint and Ms Thompson's testimony of a momentary observation.  That was quite unlike the evidence supporting this indecent assault.  The features of the evidence in respect of the other allegation are matters that may cause the magistrate not to be convinced beyond reasonable doubt.  Testimony of a witness can be accepted wholly, in part, or not at all, as the magistrate noted. [25] In my view, the doubt of the magistrate on one alleged offence is not of itself probative in respect of the credit of a witness in respect of another offence.

    25. 4/6/18, T18/10.

  4. Accordingly, I find the offence proved.  I turn to the second charge of common assault.

(b) Common assault

(i) The elements

  1. As indicated earlier, an assault is an intentional or reckless act causing another to apprehend immediate or unlawful violence.  It need not occasion actual bodily harm.

(ii) The undisputed context

  1. On 18 November 2016, Ms Thompson made a mistake involving an impression model and when Mr Crossgrove made a motion towards her, she became upset and left the room to work in an adjoining room. [26]   Mr Crossgrove entered the adjoining room where he grabbed Ms Thompson by her top at her shoulder.  As Ms Thompson moved away, the buttons on her top became undone which exposed her bra to Mr Crossgrove and other persons in the practice.  Ms Thompson became upset and left the room. Mr Crossgrove apparently accepted that his conduct was not appropriate [27] and in a subsequent text message said:

"[Melissa]

I am sorry for being tough". [28]

26. See 26/4/18, T30/34-T31/3, especially T30/48.

27. See 26/4/18, T33/35-44 but cf T33/46-T34/3-9.

28. See Exhibit A, tab 8, p 6.

(iii) The evidence

  1. Ms Thompson says that when Mr Crossgrove discovered her mistake, he became angry with her, said, "You'd be very lucky" before making a throat slicing motion.  She became upset and left to set up another room.  Mr Crossgrove then entered the room that Ms Thompson was in.  She said that in an aggressive and commanding tone he gave her instructions on another procedure and instructions that she had to respect him.  She replied, "I really don’t appreciate you speaking to me like that, doc".  Mr Crossgrove then grabbed her by the collar of her scrub top, she stepped back and as she did this the buttons on her top came undone.  She felt humiliated and upset and ran out of the room.

  2. Mr Crossgrove's account of the event is not substantially different. In his ERISP interview, Mr Crossgrove said Ms Thompson "tried to run away" so he "tried to stop her from running away" [29] by grabbing her shoulder and tunic. [30]   And when she "pulled away" three buttons on her tunic "unpopped" so her underwear was visible. [31] In his evidence, Mr Crossgrove attributed his conduct to Ms Thompson's refusal to answer him. [32]   Mr Crossgrove accepted that he raised his voice [33] and was upset, but said he was not aggressive. [34]

    29. See Exhibit A, tab 19, p 34.

    30. See Exhibit A, tab 19, p 36.

    31. See Exhibit A, tab 19, p 35.

    32. 26/4/18, T33/20-22; 31-33.

    33. Exhibit A, tab 19, p 37.

    34. 26/4/18, T33/15.

  3. Ms George also gave evidence of Ms Thompson's complaint.  She saw Ms Thompson "crying in the corridor", "upset and tearful" and "distressed". [35]   When Ms George asked what had happened, Ms Thompson said, "I just can't take it anymore. He just can't do that. He just grabbed me and my shirt came undone in the front of a patient". 

    35. 2/3/18, T135/12-18.

  4. Ms George said she spoke to Mr Crossgrove, "You cannot do that...You cannot handle your staff, you cannot yell at them" to which Mr Crossgrove said, "[S]he was being disrespectful, she didn't listen to what I asked for". [36]

    36. 2/3/18, T135/23-29.

  5. Two other staff members gave evidence about the incident. Virginia Song said Mr Crossgrove "grabbed her [Ms Thompson] by the collar" [37] so that "her shirt became unbuttoned" and her bra was "completely exposed". [38]

    37. 2/3/18, T54/13.

    38. 2/3/18, T54/26-32.

  6. Kate Davidson said, "[S]he went to walk away and [Daniel] grabbed her shirt and it unbuttoned", revealing "her entire torso". 

  7. Another former dental assistant, Britney Beams, gave evidence but because of the nature of her evidence, I reject it as at all probative.

(iv) Analysis

  1. The evidence established that Mr Crossgrove, when upset, grabbed Ms Thompson's shoulder and clothing top to restrain her from walking away, and when she did pull away, her top unbuttoned.  He submitted that "he had no intention of assaulting or humiliating Ms Thompson". [39]   I accept that Mr Crossgrove did not intend to humiliate Ms Thompson, but he was upset with her and grabbed her shoulder to restrain her which had humiliating consequences for her.

    39. See appellant's submissions, 1/2/19, at p 3.

(v) Conclusion

  1. I find beyond reasonable doubt that Mr Crossgrove intended forcefully to grab Ms Thompson's shoulder and he did so with force so as to restrain her. Mr Crossgrove's force was sufficient that when Ms Thompson pulled away, her top became unbuttoned.  I am persuaded to the criminal standard that she apprehended immediate and unlawful force sufficient to constitute an assault.

(c) The second aggravated indecent assault, sequence 4

(i) The elements

  1. As indicated earlier, the components of this offence are an unlawful assault involving an act of indecency in circumstances of aggravation. An assault involves an intentional or reckless act causing another to apprehend immediate and unlawful violence, and need not occasion actual bodily harm. At least in the case of an act of indecency, it includes deliberate and unlawful touching: even the slightest touch, which need not be hostile or aggressive, or cause fear or pain, may suffice.  It requires a lack of consent by the victim and also knowledge of a lack of consent or recklessness as to whether the victim was consenting. 

  2. The aggravating circumstance of Mr Crossgrove being in a position of authority as the sole dentist dealing with his dental assistant and being a director of the practice [40] was not disputed, and was established beyond reasonable doubt.

    40. (see Exhibit A, tab 20, p 75, answer 733)

(ii) The undisputed context

  1. Whilst bending down to retrieve and unplug Mr Crossgrove's phone charger from the computer, which Ms Thompson had been using to charge her mobile phone, Ms Thompson was struck on the backside.  In issue was whether Mr Crossgrove had slapped her and whether that constituted an act of indecency and an assault.

(iii) The evidence

  1. Ms Thompson said that she became aware that Mr Crossgrove was looking for his phone charger which she had borrowed.  It was plugged into the computer in the reception area.  She informed Mr Crossgrove of this and as she bent over to retrieve the cord or cable, she "felt this large slap on [her] backside" which was "quite forceful".  She said that Mr Crossgrove had said to her, "You're so cheek" (in her statement it was "you're so cheeky") as she gave him the cable.  Neither party sought to change or raise any questions about the accuracy of the transcript.  Ms Thompson was upset and told the practice manager, Ms George. [41]  

    41. See 1/3/18, T32/27-41.

  2. Ms Song, a senior dental assistant, gave evidence that Mr Crossgrove “approached [Ms Thompson] from behind and slapped her on…the behind". [42]   Ms Song was half a metre away at the time, she said Mr Crossgrove was "giggling" as he walked away. [43]

    42. See 2/3/18, T57/30-35.

    43. 2/3/18, T58/36.

  3. Ms Song asked Ms Thompson if she was okay and Ms Thompson responded, "No. He's not going to stop doing it". [44]   She was repeatedly challenged on her observation of seeing Mr Crossgrove slap Ms Thompson's backside, but adhered to her evidence. [45]   Ms Thompson gave evidence that she did not believe Ms Song was present. [46]

    44. 2/3/18, T59/20.

    45. See 2/3/18, T69/11, T71/9.

    46. See 2/3/18, T81/8.

  4. Ms George, the practice supervisor, also gave evidence of seeing Mr Crossgrove slap Ms Thompson on the backside in the reception area.  She gave the circumstances of the slap, which did not include any reference to the mobile phone charger. 

  5. That evening, Ms George sent Mr Crossgrove a text that stated:

“Hi Doc, 2.5 weeks ago I spoke to you about the issue with you touching grabbing staff and explained to you, that you cant [sic] do this…

Today, in front of [Jodie Farr] I witnessed you slapping [Melissa] on the bottom.

This is a sexual harassment offence, it is inappropriate, unprofessional and iny [sic] own opinion, criminal. Dr [Crossgrove], please do not touch your team members. It will be only a matter of time before a staff member put it in writing or worse go to the police…and you will then have a massive sexual harassment lawsuit against you.

The outcome for you-your professional dental career wil [sic] be over……please take this seriously….Happy to talk if you need…but, this is not an allegation, this is a fact, that I witnessed, and as a manager, I have a duty of care to all staff members. [Sally]”. [47]

47. See Exhibit A, tab 19, pp 1 and 2.

  1. Ms George was challenged in cross‑examination about seeing this event but adhered to her testimony. [48]  

    48. See 2/3/18, T140/4-6.

  2. Mr Crossgrove in his ERISP interview recalled looking for his phone charger. [49]   Because his phone battery had become flat, he "got pretty angry" and when "she gave it to me and I sort of took it and sort of hit her on the way out". [50]   He said, "[W]hen I took it I sort of obviously grazed her there...across the back I think". [51]   He said that about the matter "no one said anything to me". [52]  

    49. Exhibit A, tab 20, p 63, Q&A 625.

    50. See Exhibit A, tab 20, p 64, Q&A 631.

    51. Exhibit A, tab 20, p 65, Q&A 639 to 641.

    52. Exhibit A, tab 20, p 65, Q&A 643.

  3. Mr Crossgrove did not recall whether Ms Thompson was "sitting down the whole time" or where he did "graze her back". [53]   He was asked whether he said, "You're so cheeky" and accepted, "I could easily have, had said that". [54]

    53. Exhibit A, tab 20, p 67, Q&A 651 and 655.

    54. Exhibit A, tab 20, p 69, Q&A 676 and 677.

  4. In oral evidence Mr Crossgrove testified that "the cable...connected with her body" and "I think it struck her - her rear". [55]   He testified that he had said, "You’ve got a lot of cheek". [56]

    55. See 26/4/18, T39/21-26.

    56. 26/4/18, T38/33.

(iv) Analysis

  1. There is inconsistency between Mr Crossgrove's answer in his ERISP interview and his oral testimony.  In the interview, he admitted he "sort of hit her", whereas he denied this in his oral evidence and attributed contact to the charger cable.  He conceded in his interview that he could easily have said, "You're so cheeky", but in his evidence he gave a different account of what he said.  These matters caused me to doubt the reliability of his evidence.  Further, he denied that the matter was raised with him but the text message from Ms George, the staff supervisor, proves otherwise. I do not accept his evidence on this incident. By reason of the text message and the evidence of Ms Thompson, Ms George, and Ms Song, the prosecution has proved to me beyond reasonable doubt that Mr Crossgrove slapped Ms Thompson's bottom.

  2. The question of whether a slap on the bottom is an act of indecency was the subject of a recent decision of the Supreme Court of Western Australia in Johnson v Ramsden. [57]   Reference in that case was made to the judgment of Campbell JA in Eades v DPP (NSW),[58] where the learned Judge of Appeal referred to relevant circumstances in deciding whether an action was an act of indecency, including the respective ages and social roles of the parties such as doctor/patient and teacher/student. 

    57. [2019] WASC 84.

    58. (2010) 77 NSWLR 173 at [61] to [63].

  3. Here the act was without consent and clearly perceived to be so, was perhaps hostile and was by a supervising dentist much older than Ms Thompson. These circumstances are relevant to whether the conduct constituted an assault and an act of indecency.  The Crown has proved to me beyond reasonable doubt that Mr Crossgrove slapped Ms Thompson's bottom.  Further, in the circumstances mentioned, I am persuaded beyond reasonable doubt that the slap constituted an act of indecency and an assault and accordingly, the charge of aggravated indecent assault is established.

  4. It follows that the three charges, the subject of appeal, have been proved to me to the requisite criminal standard.

Orders and judgment

  1. The appropriate order is that I dismiss the appeal against conviction.

**********

Endnotes

Amendments

19 August 2019 - Case title amended.

Decision last updated: 19 August 2019

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Charara v R [2006] NSWCCA 244
R v Bauer [2018] HCA 40
R v Bauer [2018] HCA 40