DALL v Police - [2008] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DALL v POLICE
[2008] SASC 85
Judgment of The Honourable Justice Debelle
4 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - CONVICTIONS
Appellant convicted of indecent assault – whether assault was intentional or accidental – whether prosecution case established that there was not a reasonable possibility that the touching was accidental – appeal allowed – conviction set aside.
Magistrates Court Act 1991 s 42; Justices Act 1921 s 177, referred to.
Bridge v The Queen (1964) 118 CLR 600; Coghlan v Cumberland [1898] 1 Ch 704; Cutter v The Queen (1997) 71 ALR 638; Knight v The Queen (1992) 175 CLR 495; Kural v The Queen (1987) 162 CLR 502; Laurie v Nixon (1991) 162 LSJS 16; Plomp v The Queen (1963) 110 CLR 234; Taylor v Hayes (1990) 53 SASR 282, applied.
Azzopardi v The Queen (2001) 205 CLR 50; Barca v The Queen (1975) 133 CLR 82; Parker v The Queen (1963) 111 CLR 610; Police v Cadd (1997) 69 SASR 150; Police v Dorizzi (2002) 84 SASR 416; Saad v The Queen (1987) 61 ALJR 243; T v Medical Board of SA (1992) 58 SASR 382; Weissensteiner v The Queen (1993) 178 CLR 217, considered.

DALL v POLICE
[2008] SASC 85
Magistrates Appeal

DEBELLE J. This is an appeal from a conviction for an indecent assault.
The prosecution case was that the appellant had indecently assaulted the victim by touching her right breast. At about 11:00 pm on 18 March 2006 the victim and her husband were walking in an easterly direction on the southern footpath of Rundle Street, Adelaide. The prosecution case was that the appellant and two male companions were approaching the victim and her husband from the opposite direction. It was alleged that as the appellant walked past the victim, he put his hand on her right breast. It is common ground that at this time Rundle Street was crowded with people. The victim’s evidence was that “It was just a sea of people”.
The victim’s evidence was that she was walking along Rundle Street with her husband. Her husband was on her left side close to the kerb. The appellant walked past the victim on her right side. She said that, as the appellant walked past, she felt the appellant’s hand on her breast. It was the palm of his hand. His hand remained on her breast for a short time. She described the time in these terms:
I can say it felt like forever but it would have been just moments. What are we looking at? One and maybe a couple of seconds.
She described it as quite a forceful touching. She said that the appellant had grabbed her breast. She did not see the appellant’s hand. She first became aware of it when she felt it on her breast.
Immediately after the incident the victim told her husband to call the police. She was angry and immediately chased after the appellant, stopped him and accused him of touching her, saying that his conduct was sexual harassment. She asked him his name. She said the appellant had said, “I’m sorry”, which she understood to be an apology.
An off duty police officer, Sergeant McMannus was in the vicinity. He approached the victim and the appellant. He described the appellant as moderately affected by alcohol. He cautioned the appellant. The appellant denied that he had done anything. Police officers who were on duty then arrived. One, Constable Brooks, spoke to the appellant who denied that he had touched the victim’s breast. The relevant part of the questions and answers was in these terms:
Brooks said:It has been alleged that as you were walking along Rundle Street, you bumped into a female and then grabbed her on the breast. Is that correct?
Appellant said:     No.
Brooks said:Do you remember bumping into a female in Rundle Street?
Appellant said:     Mate, there’s quite a few females that you bump into in Rundle Street.
Brooks said:Do you recall bumping into the lady seated there speaking to my partner?
Appellant said:     No, I have no idea.
Brooks said:That is the allegation, if you don’t remember is there any reason why you wouldn’t remember or are you simply denying that it happened?
Appellant said:     I deny doing it.
Brooks said:You will be reported for indecent assault. Do you understand?
Appellant said:     I suppose I understand. What’s the verdict on that?
Brooks said:I’m not a court, I can’t give you a verdict.
Appellant said:     I just don’t understand what just happened.
Brooks said:I six (6) to eight (8) weeks you will receive a summons to appear in court for indecently assaulting a female in Rundle Street. Do you understand?
Appellant said:     I’m dumbfounded.
After appearing to read them, the appellant then signed the notes. Those police officers observed that the appellant was affected by liquor.
The trial was heard by a magistrate. The appellant and her husband gave evidence. Her husband’s evidence was that he did not see the touching nor did he hear the appellant say “I’m sorry”. The appellant did not give evidence. His two companions on that night were called. They gave evidence on his behalf including evidence of his previous good character. Their evidence did not throw any light on the question whether the touching was intentional. Thus, the only evidence as to the touching was that given by the victim.
The magistrate found that the victim was an honest witness who was endeavouring to give a truthful account of events within her knowledge to the best of her recollection. He was satisfied that her evidence was reliable. He noted that the incident had occurred suddenly and unexpectedly on a crowded footpath. He found that the appellant had made contact with the victim’s breast. He found that the palm of the appellant’s hand came into contact with her right breast over the top of her clothing and pushed her breast quite forcefully for no more than a couple of seconds. He then turned to the question whether the contact was intentional. He found that it was intentional and made in circumstances where there was no lawful justification for that contact. On that basis, he convicted the appellant.
On the hearing of the appeal, it was not contested that the appellant’s hand had come into contact with the victim’s breast. The issue was whether the prosecution had established beyond reasonable doubt that the touching was intentional.
The appellant relied on two grounds of appeal. The first was that the case against the appellant was grounded on circumstantial evidence and that the prosecution had not excluded all hypotheses consistent with innocence. The second was that the magistrate had failed to give appropriate weight to the unchallenged evidence of the good character of the appellant.
A Re-Hearing
An appeal pursuant to s 42 of the Magistrates Court Act 1991 is a re-hearing: Police v Cadd (1997) 69 SASR 150 at 189 per Lander J; Police v Dorizzi (2002) 84 SASR 416 at [27]. A like conclusion was reached in Taylor v Hayes (1990) 53 SASR 282 at 289-291 and the cases there cited. Although the decision in Taylor v Hayes concerns s 177 of the Justices Act 1921, there is no material difference for present purposes in the terms in which the two provisions are expressed.
One consequence of the appeal being a re-hearing is that the function of a judge hearing an appeal from a decision of a magistrate differs from that of a Court of Criminal Appeal hearing an appeal from a verdict of a jury: Taylor v Hayes at 291 where Perry J said:
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
In reaching that decision Perry J applied the dicta of Lindley MR, Rigby and Collins JJ in Coghlan v Cumberland [1898] 1 Ch 704 at 704-705:
The case was not tried with a jury, and the appeal from the judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the questions arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.
The remarks of Perry J were approved by Matheson and Debelle JJ in T v Medical Board of SA (1992) 58 SASR 382 at 390. In Laurie v Nixon (1991) 162 LSJS 16 at 19 King CJ said:
The obligation upon a court hearing an appeal against a criminal conviction to make an independent assessment of the evidence in order to determine the propriety of the verdict, unquestionably applies to the Supreme Court when hearing appeals against convictions by Courts of Summary Jurisdiction.
Zelling AJ and Duggan J agreed. The question which I must therefore consider is not whether it was open to the magistrate to be satisfied that the prosecution had proved that the appellant intended to assault the victim but whether I am satisfied of that fact.
Was the Touching Intentional?
The magistrate correctly identified that one of the elements of the crime of indecent assault is that it be committed intentionally or recklessly. There was no suggestion of recklessness on the part of the appellant. The only question was whether the appellant intended to assault the victim.
The appellant had to have a subjective intention to touch the victim. That intention is not to be presumed from his act of touching her breast: Parker v The Queen (1963) 111 CLR 610 at 632-633 per Dixon CJ and at 648-649 per Windeyer J. The determination whether the appellant had the requisite intention is a question of fact to be inferred from the facts as found: Kural v The Queen (1987) 162 CLR 502 at 505 per Mason CJ, Deane and Dawson JJ who said:
What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges or juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.
Their Honours affirmed those views in Saad v The Queen (1987) 61 ALJR 243 at 244. In the absence of an admission, the existence of the requisite intention is often a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done: Kural at 504. In Kural, the issue was whether the prosecution had established an intention on the part of the accused to import a narcotic drug. In that case, there was a series of facts which established that intention. However, there are instances where it will be more difficult to draw an inference of an intention to commit the particular offence charged. One example is the crime of attempted murder. The accused cannot be guilty of the crime of attempted murder unless he has an intention to kill the victim. The difficulties which can arise when seeking to determine the intention of the accused are illustrated by Knight v The Queen (1992) 175 CLR 495 and Cutter v The Queen (1997) 71 ALJR 638 to which I shall refer in a moment. As those cases show, the mere fact that the victim was wounded does not necessarily establish an intent to kill.
The issues in this appeal provide another instance of difficulties which can exist when determining from proved facts whether the appellant had the requisite intention. There was no dispute that the appellant had touched the victim’s breast. However, the mere fact that the appellant had done so does not of itself establish that the touching was intentional. If, for example, the appellant and the victim had been alone, there might be no difficulty in inferring an intention to touch her breast. However, where, as here, the touching occurred on a well-lighted and busy street, crowded with people, there is a question whether it is a reasonable possibility that the touching was accidental.
The only issue on this appeal is what was the state of mind of the appellant when he touched the victim. His state of mind is necessarily a matter to be inferred from other facts that have been found. The magistrate directed himself that the prosecution had to prove that the circumstances were inconsistent with no other rational conclusion than that the contact was deliberate. He was correct to direct himself to that effect. A direction in those terms is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: Knight v The Queen at 502 per Mason CJ, Dawson and Toohey JJ.
In Knight, the appellant had been charged with attempted murder. Knight had approached a group with a rifle. One of the group grabbed the rifle and tried to wrest it out of Knight’s hands. A struggle ensued in the course of which the rifle discharged wounding the other person. The rifle had no trigger guard. Mason CJ, Dawson and Toohey JJ held that the evidence did not exclude the reasonable possibility that the appellant did not fire the shot with an intention to kill. They said:
The question is not whether the trial judge failed to give an appropriate direction to the jury, but whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant. In his charge, the trial judge instructed the jury to the effect that they should only find by inference an element of the crime charged if there were no other inference or inferences which were favourable to the appellant reasonably open upon the facts. A direction in those terms is often called for where the prosecution relies upon circumstantial evidence. However, it is a direction which is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt and the question to which it draws attention – that arising from the existence of competing hypotheses or inferences – may occur in a limited way in a case which is otherwise one of direct rather than circumstantial evidence. This was such a case where there was direct evidence that Salvo was shot – indeed there was no dispute about that – and the only real issue was the state of mind of the appellant at the time the shot was fired. The state of mind of the appellant was necessarily a matter of inference from other facts found by the jury.
In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognized. As Dixon J said in Martin v Osborne:
“If any issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation”.
In Plomp v The Queen Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said “has not been overcome by employing the expression ‘more consistent’ as if there could be degrees of consistency”. His Honour attempted clarification by citing his further words in Martin v Osborne:
“This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed”.
(Citations omitted).
In that same case, Brennan and Gaudron JJ adopted the test expressed by Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 104 following Plomp v The Queen (1963) 110 CLR 234 at 252:
To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”.
Though they adopted that test, Brennan and Gaudron JJ concluded (at 512) it was open to a reasonable jury to convict Knight of attempted murder. The reasoning in Knight was applied by the majority in Cutter v The Queen. When determining whether the appellant intended to touch the victim’s breast, the question is, therefore, whether that intention is the only rational inference that can be drawn from the facts.
The victim’s first description of the nature of the conduct was that it was forceful.
A.What I felt and it was quite forceful, it wasn’t a brush. I felt the flat part of his hand and I also felt as it was quite forceful the side of his hand as well. I felt it was quite sore, the centre, as well.
Q.Can you describe the positioning of his hand when he touched you on the breast.
A.In terms of?
Q.The rotation or angle of his hand.
A.It was on it. I am not sure what you mean and then when it was pushed then went to the side.
It was so forceful that it made her breast feel quite sore. In cross-examination it was suggested that the appellant had brushed against her. She replied:
A.Because it wasn’t a brush. Quite clearly it was a very forceful push.
In answer to a suggestion that the touching was accidental she said:
Q.    … The question is whether it was deliberate or accidental, do you understand.
A.I thought I’d answered that. I did, because of the force with which, because of the openness of the palm of his hand and the force with which I felt it.
Q.He (sic) openness of the palm of his hand.
A.It was a full-on hold and push.
Q.A full-on hold and push.
A.    He pushed right into me.
Q.What you originally told the police was ‘He walked past and grabbed my right breast with his right hand which I believed to be a deliberate act’ and that’s as far as you took the actual physical contact when you made that statement, is that right – that’s all you said about it.
Some eight months later in November 2006 she gave a further statement to the police. In cross-examination, she was asked some questions about that statement.
Q.You said that he came from your right and cupped his right hand around your right breast didn’t you, in that addendum.
A.Yes.
Q.You said ‘Although he would have had hold of my breast for only about two seconds it was long enough for me to feel his hand around my breast. It wasn’t a brush past, it was a forceful push’. You said those things.
A.Yes I did.
Q.Are they true.
A.    Yes.
She had then told police that the touching was deliberate. I will later refer to the allegation the touching was deliberate.

The consistent feature of the victim’s evidence is that the touching was forceful. She said that the appellant had pushed into her. A good deal of force would be generated by two people walking in opposite directions. A forceful touching sufficient to make her breast feel sore is, therefore, consistent with an accidental contact between two people walking past one another in opposite directions. It is not uncommon for persons walking towards each other on a crowded footpath accidentally to come into contact with one another. Given that Rundle Street was very crowded, one reasonable possibility is that the appellant was gesturing with his hands and was talking to his companions as he was walking along Rundle Street and that his hand accidentally came into contact with the victim’s breast. It is reasonably possible that the appellant was gesturing with his hands when the contact occurred. There are features of the victim’s evidence which lend some weight to that possibility. One is that the touching was forceful. Another is the fact that the victim said that she felt the side of his hand, a fact consistent with an accidental touching. If the appellant was gesturing with his hands, the side of his hand could have made contact and the contact would have been quite forceful. For these reasons, I believe that it is a reasonable possibility that the touching was accidental. It is therefore not possible to find beyond reasonable doubt that the appellant intended to touch the victim’s breast.
I do not rely on Mr Peek’s contention that it is unlikely that an assault of this kind would be committed on a crowded footpath in full view of other pedestrians since the appellant may have been affected by liquor in such a way that he was sufficiently uninhibited to commit the offence. The compelling fact is that the footpath was so crowded that it is a reasonable possibility that the touching was accidental. That is also consistent with the touching being momentary. The appellant’s conduct in continuing to walk with his companions along Rundle Street is another fact consistent with the contact being accidental. The appellant did not attempt to flee the scene.
In November 2006, some eight months after the incident, the victim had told police that the contact was deliberate. However, she said that she did not see the appellant nor his hand before she was touched. She was not paying attention to the appellant as he approached her. There was no reason why she should. In cross-examination, she was asked about that statement. The evidence was:
Q.But you say in your statement ‘During the act itself I looked at the face of the male who was looking at me. He appeared to have a blank look on his face. He didn’t say anything’.
A.And that’s right, that was after he touched me.
Q.But he was gone by then wasn’t he.
A.No. Because I turned around.
Q.But you can’t see his face.
A.I can –
Q. You were looking at the back of his head by that stage weren’t you.
A.No I wasn’t.
Q.You don’t suggest he was turning around looking at you do you. He was walking away from you, facing in the direction he was walking, wasn’t he.
A.I got a picture of his face, his side view and I followed him right through until I got the back of his face. I mean he was still standing – he was walking past.
As that evidence indicates, when pressed with the fact that she would not have been able to see the appellant’s face because he had already walked past her, she said that she saw the side of his face. There are difficulties with this evidence. First, a blank look on the appellant’s face does not necessarily suggest a deliberate act. Secondly and more importantly, the victim conceded that she had only seen the side of the appellant’s face. She would not, therefore, have been able to see the expression on his face. This evidence must be weighed with the fact that the victim was not aware of the appellant approaching her until her breast was touched. She was not paying attention to him. She admitted that she did not see his hand on her breast. As they were walking in opposite directions, the likelihood is that they had walked past each other before she was able to see his face.
The victim’s evidence was that the appellant had said, “I’m sorry” in answer to her accusation that he had touched her on the breast. She said that she understood that to be an apology. The statement was equivocal. I do not accept Mr Peek’s submission that the words “I’m sorry” were expressed in such a way as to question the victim’s assertion. That is contrary to the uncontroverted evidence of the victim that those words were expressed as an apology. However, even if expressed as an apology, it could have equally been an apology for an accidental as well as an apology for a deliberate touching.
The failure of the appellant to give evidence is not of itself evidence. It is not an admission of guilt by conduct. An accused person is entitled to exercise his right to silence. That is why silence on the part of an accused at his trial cannot be used as a make-weight. All this was said in Weissensteiner v The Queen (1993) 178 CLR 217 at 229; see also Azzopardi v The Queen (2001) 205 CLR 50 at [51]. As Windeyer J had said in Bridge v The Queen (1964) 118 CLR 600 at 615:
An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. A failure to offer an explanation does not of itself prove anything. Nor does it, in any strict sense, corroborate other evidence. But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.
In this case, the prosecution had the burden of proving that the appellant intended to touch the victim’s breast. The appellant’s failure to deny or explain may have made her evidence more convincing but it does not supply any deficiency in the prosecution case as to intention.
For these reasons, the prosecution case did not establish that it was not a reasonable possibility that the touching was accidental. It did not establish that the only rational inference from the facts was that the appellant intended to assault the victim. It follows that the conviction must be set aside.
In these circumstances, it is unnecessary to deal with the submission of Mr Peek QC that the magistrate had failed to give appropriate weight to the unchallenged evidence of the good character of the appellant. However, it can be dealt with shortly. Mr Peek QC submitted that the magistrate had incorrectly limited the ambit of the good character evidence in that the evidence was capable of being relevant to the credibility of the appellant’s denials to the police. There is nothing to suggest that the magistrate had limited himself in that way. The magistrate had expressly and unequivocally stated that the appellant’s previous good character was a factor to be taken into account in considering whether he was likely to have committed the offence.
I have carefully considered the victim’s evidence that she believed that the appellant had deliberately touched her. I have read it at least three times. Her reaction in chasing after the appellant and apprehending him is consistent with her belief that the touching was deliberate and intentional. However, at the risk of undue repetition, that evidence must be weighed with the fact that she did not see the appellant until after the incident and the fact that the incident occurred in a crowded street when there was a real possibility of accidental contact. My conclusion does not call the victim’s evidence into question. After repeatedly reading her evidence, I agree with the magistrate that she was an honest witness endeavouring to give a truthful account of events within her knowledge to her best recollection. I accept her evidence without reservation. The victim was clearly shocked and, given the nature of the contact, she was justified in acting as she did. It is impossible not to feel a great deal of sympathy for her. It was obviously a very disturbing incident and an affront to any woman, even if accidental. However, the task for this court is to consider whether her evidence is sufficient to establish beyond reasonable doubt that the appellant had the required intention. For the reasons already expressed, the evidence does not exclude the reasonable possibility of accidental contact.
For these reasons, the appeal will be allowed. The order of the magistrate convicting the appellant will be set aside as will the orders made on 20 December 2007 ordering the appellant to enter into a bond to be of good behaviour.