DH v The Queen

[2016] NSWDC 214

District Court

New South Wales

Medium Neutral Citation:	DH v R [2016] NSWDC 214
Hearing dates:	7 September 2016
Date of orders:	15 September 2016
Decision date:	15 September 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeal upheld
Catchwords:	Assault with act of indecency
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986
Cases Cited:	Charara v R [2006] NSWCCA 244 AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 R v Telfer (2004) 142 A Crim R 132
Category:	Principal judgment
Parties:	DH (appellant) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr P Boulton SC (Appellant)   Crown Advocate: Mr S Makin
File Number(s):	2014/00124762
Publication restriction:	Order made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 as to name of the appellant and complainant. All witness names have been anonymised to protect the identities of the appellant and complainant.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Crime Date of Decision: 23 February 2016 Before: Magistrate Milledge File Number(s): 2014/00124762

Judgment ON appeal

Introduction

1. The appellant appeals from his conviction on 23 February 2016 following a hearing at the Local Court at Sydney on a charge pursuant s 61L of the Crimes Act 1900 of assault with act of indecency.

2. Section 61L provides as follows:

“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.”

3. The offence is a Table 2 offence under the Criminal Procedure Act 1986 and is therefore to be dealt with in the Local Court unless an election is made for trial on indictment.

4. The appellant was also charged with an offence of assault which was alleged to have occurred on the same day, and involved a difference complainant. That charge was dismissed by the Learned Magistrate.

The appeal

5. The appeal was heard on 7 September 2016. The appeal was by way of a rehearing based on the transcript of evidence before the learned Magistrate. In determining the appeal I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in her judgment dated 13 November 2015.

6. I am mindful of the limitations that therefore exist in proceeding wholly on the record of the proceedings in the Local Court and the advantages held by the learned Magistrate in considering the evidence, particularly in respect of the issue of credibility in respect of any witness.

7. I am also bound by the Court of Appeal’s judgment in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. In that decision, Basten JA held that an appellant under s 18 of the Crimes (Appeal and Review) Act 2001 (“C(AR)A”) was required to demonstrate some legal, factual or discretionary error on the part of the learned Magistrate for an appeal to succeed. Basten JA said at [34]:

“However, the term ‘error’ has no precise meaning. It refers to the satisfaction of the appellant judge that the trial judge was ‘wrong and should be corrected’. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors. Indeed, a miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term.”

8. Simpson JA held that s 18 of the Act does not require any finding of error by the Magistrate. Rather, the District Court Judge should make his own finding on the evidence of the facts. Sackville AJA preferred not to express an opinion on the question of whether it was necessary to identify error.

9. The elements of the offence pursuant to s 61L are as follows:

1. The accused assaulted the victim; and

2. That assault was accompanied by an act of indecency on or in the presence of the victim which occurred before, after or at the time of the assault.

10. An act of indecency has been defined as one which right-minded persons would consider to be contrary to community standards of decency. It is unnecessary for the prosecution to prove the purpose of providing sexual gratification.

11. The alleged offence occurred on 25 April 2014. The appellant, who was a member of the defence forces, was in the beer garden of an hotel in Balmain as was the complainant and a large number of other persons. There was a game of two-up taking place, and the complainant, who was celebrating her twenty-first birthday with her sister and several friends, alleged that she was touched on the buttocks on three occasions in relatively quick succession. On the third occasion she alleged the appellant placed his hand underneath her skirt and struck her upper thigh near her buttock. The particulars of the offence set out in the Court Attendance Notice are as follows:

“Assault with act of indecency

At 7.00pm on 25/04/2014 at Rozelle

Did assault GS and at the time of the assault committed an act of indecency on GS, to wit, placed his hand under the dress of the Victim and grabbed her lower buttocks.”

12. The appellant, through his counsel, conceded that he had placed his open hand on the complainant’s buttocks on the first two occasions, for reasons which are set out in the summary of the evidence below. He denied to the police in his ERISP interview following his arrest the third occasion, and denied in his evidence that he placed his hand underneath the complainant’s skirt and grabbed her thigh near the buttock.

13. The complainant told her sister, her friend, her boyfriend and the police within a short space of time. The Crown relies on that evidence as complaint evidence which supports the version of events as alleged by the complainant. The appellant, by his learned senior counsel submitted that the complaints made by the complainant were inconsistent and did not assist the Crown case. Further, the appellant relied on uncontradicted evidence as to his good character, including not only his lack of criminal antecedents but also unchallenged evidence as to his attitude towards women in both social and work environments, to submit that the learned Magistrate erred in finding the offence proved. It was therefore submitted that the Crown had not established the elements of the offence beyond reasonable doubt and the appeal should be upheld.

The evidence

14. The Crown bundle, Exhibit A, included the following relevant exhibits:

• Statement of Constable J Fozzard

• Exhibit 2: ERISP interview between Constable Fozzard, Constable Yates and the appellant

• Exhibit 3: colour photocopy of photograph of alleged injury to the complainant’s right buttock area

• Exhibit 5: statement of Constable K Low

• Exhibit 6: statement of Constable Yates

• Exhibit 7: statement of Inspector G Coffey

• Exhibit 8: sketch plan

• Exhibit 9: photo downloaded from hotel Facebook page

• Exhibit 10: photo of the complainant and appellant taken at 6.58pm

• Exhibit 11: photo of hotel

• Exhibit 12: sketch plan

• Exhibit 13: statement of Constable E Moss

• Exhibit 14: photograph of hotel

• Exhibit 15: photograph of hotel

15. Constables Fozzard and Yates gave evidence in the Crown case, together with the complainant GS, her friend SE, the complainant’s boyfriend RS, another friend MD, and the complainant’s sister CS.

16. In the defence case, the appellant gave evidence and was cross-examined, and called evidence from two friends of long standing as to his attitude towards women, as well as PS, who served in the same unit as the appellant in the armed forces, who was with the appellant at the hotel on the day in question. Two further character witnesses were called; FM, a senior serving officer in the armed forces and DH, a cousin of the appellant who was a serving police officer in the Queensland Police Force. All attested as to his good character and respectful attitude he held towards women generally.

17. Whether the Crown had proved the elements of the offence beyond reasonable doubt therefore depended on a determination between the evidence of the complainant, and the evidence of witnesses who gave complaint evidence on her behalf on the one hand, and the evidence of the appellant, supported to the extent that it was by the evidence of PS, and the evidence as to his good character on the other. The following summary of the evidence focuses on those issues.

Evidence of the complainant

18. GS gave evidence that she was in the beer garden from 4.20pm with her boyfriend RS, her sister CS and her boyfriend MB. She met another friend there about an hour later, namely SE. The group participated in a game of two-up that was taking place in the courtyard, it being ANZAC day. During the afternoon the courtyard was crowded with over 100 people present. Around the courtyard was an elevated platform and at approximately 7.00pm, just before the game of two-up finished, the complainant was standing on that platform and her friends were standing on the courtyard below her. At that time she first felt her bottom being touched. She gave the following evidence:

Q: What actually happened?

A: I felt someone’s hand slap my bottom.

Q: Can you recall which side of your bottom?

A: My right side.

Q: Can you describe the amount of force that was used?

A: I would say that it was quite hard for a slap, yeah

…

Q: How did that make you feel?

A: I was shocked.

Q: What did you do, if anything, after you were slapped?

A: I pushed the arm back. I could see the hand that had done it, and I pushed it back

…

Q: What happened after that?

A: Immediately after, I was hit again with more force.

Q: Whereabouts was the impact?

A: The same spot.

Q: What, if anything, did you do?

A: I then pushed the arm back again with more force. I managed to grab the forearm of the person

…

Q: What happened next?

A: And then I was hit again

…

Q: Can you describe what happened on that third hit?

A: The third hit was much harder and kind of hit my tailbone first. And then I felt a hand under my legs to grab me.

Q: Can you describe what you mean by “under my legs”? Whereabouts under your legs?

A: I was wearing a dress at the time so the hand came up underneath my dress. So the palm of the hand was touching my underwear.

Q: You said, “grabbed me”. Can you describe what you mean by “grabbed me”, what happened?

A: It felt like the hand was doing a gesture, maybe like this.

19. The complainant then demonstrated a cupping motion.

20. The complainant then described turning around quickly and attempting to hit the man with her right hand in his groin area. As she made contact with him she was pushed back and stumbled, thereby stepping off the elevated platform to the ground. When she turned around in an attempt to hit the man, she said, “How dare you,” and he had said to her, “How dare I push him back,” or attempt to hurt him back. She was asked:

Q: After you stumbled off the platform what happened next?

A: My friends asked me if I was ok, if something had happened. And two-up had just finished, so people were dispersing out of the courtyard. I indicated to them that I was fine and I just wanted to leave.

Q: Why did you say that?

A: I was a bit shaken up and I was nervous.

21. The complainant then gave evidence that she sat down with her friends and explained what had happened. She gave this evidence:

Q: Do you remember what you said to them, or words to the effect of?

A: I told SE that he had grabbed me from underneath.

Also present were her sister CS, and the two men MB and RS. Her sister and SE went to an RSA marshal and then MB recognised a police officer who he knew in the premises and reported the matter to her. She next saw the appellant being escorted out of the premises.

22. Later, outside the hotel premises, she spoke to police and told them what happened to her. The complainant, SE and her sister walked into a nearby premises and took a photo of her buttocks, which became Exhibit 3. The complainant gave evidence that what is depicted in that photograph is as a consequence of what happened on that evening, namely the mark that she identified just below the crease of her bottom on the right hand side, she described it as “a red mark” approximately an inch and or an inch and a half in length. She gave evidence that she remembered that it hurt and felt like she had been bruised.

23. In cross examination the complainant conceded that she had consumed two drinks of vodka mixers during the time she was at the hotel. By 7.00pm the number of people in the courtyard had diminished and she gave evidence that she participated in the game of two-up. She denied that she was leaning over, talking to her friends who were standing on the ground level when she was standing on the platform. The appellant’s case was put to her as follows:

Q: I suggest that what happened was, the accused patted you on the bottom as he was moving behind you. What do you say about that?

A: No.

Q: That he had some drinks with him, right?

(No verbal reply)

Q: Did he have anything in his hand, the one that didn’t touch you?

A: Not that I saw, and I don’t believe that I was leaning over, no.

…

Q: I would suggest that after you were touched on the bottom, you didn’t move his hand away or attempt to do it? The first time. The first time you got touched on the bottom, I suggest that you didn’t try and move his hand away, did you?

A: Then what are you suggesting?

Q: I’m suggesting you didn’t react.

A: Well, I did react.

Q: I am suggesting that he touched you a second time in much the same way as the first time, a touch on the bottom. What do you say about that?

A: No. I reacted the first time and the second time.

Q: I suggest you didn’t react the second time, did you?

A: No that’s incorrect.

Q: I suggest you didn’t grab his forearm as you believe or say you did, did you?

A: I did grab his forearm.

Q: I suggest that no one put their hand under your skirt on your thigh as you have described, did they?

A: That’s incorrect.

Q: What I suggest is that after you felt yourself being patted on the bottom as he was squeezing past you, you said something to him about what he had done, right?

A: No. He was in no attempt to squeeze past me. He remained behind me.

Evidence of witness SE

24. SE was a friend of the complainant who gave evidence that she was standing on the ground in the courtyard when the complainant, who had been standing on a platform, fell onto her. She gave evidence that she had observed the appellant standing behind the complainant on the platform for about 10 or 15 minutes. She had taken the photograph at 6.58pm which became Exhibit 10 which showed the appellant standing behind the complainant. She was asked:

Q: If you can describe exactly what happened?

A: Yep, so I was facing the two-up area and all of a sudden GS fell off the stage, like, and put her arms out to support herself from falling onto me and I fell a little bit with her. I pulled my balance back together and turned around and asked her if she was… OK… and she quickly turned back to say “nothing, nothing, don’t worry about it,” abruptly pushing it off.

25. SE then told the complainant’s boyfriend that she thought something had happened to the complainant but that she was not telling her. Five to ten minutes later she gave the following evidence:

A: So she said, “I was standing on the stage and he kept touching my bum,” and after the first time she told him not to do it.

…

A: The second time she said she was a bit more stern and then she said she grabbed his hands when he was doing it and pushed them down and said, “please don’t do that”, and then she said that once she turned around from that he punched her very hard in between the legs, and she turned around to hit him back and he pushed her off the stage.

She then identified to SE the appellant.

26. In cross examination SE confirmed that the complainant had told her the man punched her very hard in between her legs. She was cross examined about what she had told the police that the complainant told her and she conceded that she had not told the police that the complainant told her that she had been punched. She gave this evidence:

Q: Did GS tell you she had been punched?

A: I don’t recall.

Q: But you have just told the Court she did.

A: A forceful hit.

Q: She used the word “forceful” hit?

A: She would have to me.

Q: Did you tell police that she received a forceful hit or that she told you that she received a forceful hit?

A: Yes

27. SE then conceded that she did not use the words “a forceful hit” in her police statement. It was suggested to her that the complainant simply told her that the appellant had been touching her on the bottom and the last time it happened it was so hard she fell off the platform, with which she agreed. She was asked:

Q: Alright. That’s not punching and it’s not hitting, is it?

A: In terms of the words used?

Q: Yes.

A: No.

Q: Would the term “punching” be your own opinion about what you think happened?

A: So in my own words you’re saying.

Q: You use the words and I’m asking you if you use them because it’s your after-the-event opinion about what you think happened. Is that why you used the word “punched”?

A: Yes.

Evidence of RS

28. RS was the complainant’s boyfriend. He gave evidence that he was participating in the two-up and standing on the ground level of the courtyard. The complainant was standing on the platform adjacent to where he and their friends were standing. As the two-up was winding down the complainant came up to him and said “the guy grabbed me. The guy’s a creep.”

29. RS gave evidence that he had noticed the appellant approximately half an hour before this conversation as he was wearing a suit and, “he was making his presence known.” In cross examination, RS was asked:

Q: When you noticed the accused standing in your girlfriend’s personal space on the platform, everybody was about the same distance from each other on the platform.

A: Definitely not.

He agreed that the complainant was playing two-up at times when she was on the platform, and that she was playing with the appellant. He conceded that he did not see the incident that she complained of, and that the complainant did not use the words “punch” or “hit” or “forced”. She said that it had occurred several times and he had touched her on the backside several times. RS conceded that it led to a confrontation with the appellant outside the hotel.

Evidence of the complainant’s sister CS

30. When asked what happened, CS gave the following evidence:

A: It was probably almost 7.00pm and we’d all kind of become separated in the courtyard area. It was quite busy and so GS in another corner of the courtyard to me but I could see her from a distance and then I was on the other side of the courtyard for some of the time that I noticed that she was off a platform that she had previously been standing on. That’s when I asked her what had happened and we figured out that something had happened to her while she was standing up on the platform.

31. CS did not see the complainant come off the platform. She said that the complainant was reluctant to tell her what happened, but when asked what she said CS answered:

“A: She said that she had been slapped on the bum.”

32. The complainant identified the appellant as the man who did that, and the matter was reported to an RSA monitor who did not want to get involved. Shortly thereafter the appellant was escorted out.

33. The evidence of CS as to what the complainant said to her was not challenged in cross examination.

The defence case

Evidence of YHL

34. YHL was a friend of the appellant and had known him since 2004. They have been members of the same rowing club and had become good friends. She gave the following evidence:

Q: What is his attitude to women like?

A: His attitude to women is extremely respectful. He is very friendly with both sexes, but particularly with women. He is extremely respectful to them, has always had an extremely great attitude with myself…

35. YHL gave evidence that he had seen the appellant when he was affected by alcohol and was asked what his attitude to women was like in those circumstances. He answered:

A: Exactly the same as when he is sober.

Q: Have you ever seen him do anything that’s inappropriate with women?

A: No.

Q: How would you describe his integrity?

A: I would describe his integrity as extremely high. He has high morals and high standards that he sets upon himself.

Q: Have you ever heard him say anything that you believe to be untrue?

A: No, I have not.

36. YHL was cross examined about the times he had been socialising with the appellant. He was asked:

Q: So it’s fair to say that most of the time that you’ve seen him affected by alcohol or drinking or socialising in that kind of environment has been more low key type situations, either at someone’s house, dinner, those sorts of things, as opposed to a licenced premises?

A: In the last year, yes. Prior to that, more in a licenced premises.

Evidence of AW

37. Ms AW gave evidence that she had been a friend of the appellant for approximately 10 years and she knew him through her husband, who also rowed with the appellant. She had read the facts sheet and knew the charges against the appellant and was asked:

Q: What is his attitude towards women like?

A: I think he is very respectful towards women. I have never heard him say anything derogatory towards women or about women.

Q: Or do anything to them?

A: Or do anything to them.

…

Q: What about violence?

A: I definitely have never seen or heard of any violence that he has displayed towards women.

Q: What is he like when he’s had something to drink?

A: He is very merry and jovial, just like my husband and myself when we have had a few drinks.

Q: Have you ever seen him say or do anything anti-social?

A: No.

Q: What is his integrity like?

A: I think he is a very- like, he has a lot of integrity.

Q: How would you describe his character?

A: He is somebody who is very trustworthy, very respectful. You know, I would be happy to leave my son with him and I think he is a really good gentleman. He is a gentleman, that is how I would describe him.

38. Ms AW worked as a senior risk manager at the Macquarie Bank. She was cross examined and agreed that the appellant was “not perfect”.

The accused’s ERISP interview

39. On the evening of 25 April 2014 the appellant underwent an ERISP interview with Constables Fozzard and Yates. He described to the police the two-up game that was taking place in the courtyard of the hotel. Relevantly, he was asked as follows:

Q86: Did you ever slap a person, a female on the, on the backside?

A: Possibly. I don’t recall exactly and what you constitute a slap, yes maybe no, I , I don’t know, I touched many people and certainly there were many females around but what, what are you constituting a slap?

Q87: Well, an open hand brush or contact with a person?

A: Open, I, I would not deny that I open-hand brushed a female.

Q88: Ok. Do you remember anybody in particular that you may have done it to?

A: Yeah, sure there, well, there, there was one female in particular, in a white dress, who, as I was moving past, I, yes, I contacted, made contact with her.

Q89: Can you describe the contact to me?

A: I can’t, to be honest I can’t recall, that’s how insignificant it was to me.

Q92: So no, this person in the white dress, did they ever grab your forearm and push it away from him, from themselves?...

A: No that I am aware of.

Q99: You don’t recall? OK. This person’s also made an allegation that you once, after your, your hand has been pushed away, you’ve immediately done it again. Do you have anything to say about that?

A: I, I don’t recall the initial incident, so I, so no.

Q100: There’s also an allegation that you may have put your, put your arm on the left shoulder or the back region on a third occasion. Can you, can you tell me more of that?

A: Well, no, constable, I don’t recall the first occasion, so I can’t… recall a second or third.

Q102: Now, there’s an allegation OK, and this is the serious one where… you have slapped a, this person in the white dress on the, on the, on the back, on the, on the buttock region OK… and may have placed your hand under her dress in the upper thigh area.

A:No.

Q105: Can you explain…

A: I can’t, I don’t recall it and I categorically deny it because that would take intent and there was absolutely no intent at any stage for me to do that because I have no intention of doing that.

Q107: Well, this person’s also informed us, or alleging, that they have turned around… OK and tried to hit yourself in the groin area to get away, and also saying, how dare you. Do you recall that?

A: No, I don’t.

Q108:… Why were you removed from the, the premises?

A: I was heading towards the bar with a, a female, I can’t, I don’t know her, she, I met her around the two-up ring, we were heading towards the bar and a security member asked, well, approached me and said, like, I, I’ve been told to ask you to leave, at which point I questioned it and he said, look, this is what’s happening. So OK, let’s go outside, we went outside, I asked the manager to come out, me outside, he did. And then it just stated that, essentially, if the security guys were telling me that, and telling him that I had to leave, then I had to leave. I had a conversation with the security guys, I explained that I felt that this was a vexatious claim, that the incident hadn’t occurred, and the security guard at the, at the front door said, look, I get it but this is the way it is, we’ve asked, we’ve, we’ve asked you to leave so you’ve gotta leave, and I said, cool, got it, then I moved away from the, from the premises and moved towards where the taxis were moving past.

Evidence of the appellant

40. The appellant gave evidence of what he had been doing on ANZAC Day. He had attended a dawn service at Holdsworthy Barracks and then attended a memorial in the city at 8.30am. Thereafter he remained at the Morrison Hotel in the city until he went with two friends to the hotel at Balmain, arriving at approximately 5.00pm. The appellant gave evidence of his consumption of alcohol throughout the afternoon and at the hotel. He described the two-up game that took place in the courtyard of the hotel, and an incident when he came into contact with the complainant. He was asked:

Q: So, could you please explain the circumstances in which that occurred?

A: Yep. So, there was an occasion when I was returning from the bar having bought some drinks, I was moving back through the crowd and approached the platform and was trying to step onto the platform where my friends were and she was also standing.

Q: How many people were on the platform at that time, do you think?

A: 6 to 8.

Q: How close together were people?

A: Quite close. The- the groups of people that were talking were quite close, yeah.

Q: What happened?

A: So I- I was attempting to step onto that platform and there wasn’t space to move past her and another group or another couple of individuals behind her, so I indicated to her by making contact with her backside.

Q: What did you do?

A: So I- I patted her on the- on the backside on her- on yeah, on her back right buttock.

Q: Was this above or below her skirt?

A: Above.

Q: So it was on the material?

A: Yes.

Q: What was she doing when you did that?

A: She was bending over, standing on the platform and leaning forward talking to some friends of hers in front of her.

Q: Did she react?

A: No.

Q: Did she say or do anything in response to your pat?

A: No. Not that I saw, no.

Q: Did she do anything to your hand?

A: No.

Q: Did she move?

A: No.

Q: What happened then?

A: So, I did it again thinking that she may not have realised that I was trying to move past.

Q: Did she react then?

A: No.

41. The appellant then gave evidence that two individuals behind the complainant noticed that he was trying to move past her on the platform and so they moved out of the way to make room for him to step onto the platform and move past.

Q: What happened then

A: So moved past her and then handed the drink off to one of my mates, one of my mates that was standing there.

Q: What happened when the people went back and you moved past?

A: So, I moved past and took up a position off her- immediately off her left hip where our group of friends were standing.

…

Q: What happened?

A: So, I- I sought of felt her move off the platform onto the- onto the ground level.

Q: You felt her move onto the ground level?

A: Yeah. So I was immediately on the other side of her and I had hip to hip contact with her on that side.

Q: So your hips were touching?

A: Effectively, yes, your Honour.

…

Q: Did she say anything to you?

A: No.

…

Q: Did you put your hand under her skirt and touch her in a way that she has described?

A: No.

Q:Did she do anything to you?

A: No.

42. The appellant was cross examined about his answer to question 86 of his ERISP interview, as recorded above. He gave the following evidence:

Q: So in terms of the proposition that’s being put to you, whether you ever slapped a female on the backside and you responded “possibly”, surely you would know for certain whether you had or hadn’t slapped a female on the backside?

A: Yes.

Q: You would know for certain?

A: Yes. I did know for certain. I knew that I had not slapped, what I considered to be a slap.

Q: So why did you respond that “possibly”?

A: Because I was uncertain of what the police interpretation of a slap was.

43. The appellant agreed that he was not under any misapprehension about what the word slap meant, he said that he had disagreed with the notion that he had slapped anyone and was asked:

Q: Well, that’s not correct. You answered “possibly”.

A: I answered “possibly”. The reason I answered “possibly” is because I disagreed with the notion that I had done it. I did not consider that I had slapped anyone, slapped anyone.

Q: What do you understand the word slap to mean?

A: A forceful open hand contact.

44. The appellant agreed that the occasion on which he attempted to move past the complainant occurred “somewhere around 7.00pm”. He was asked about the contact he made with the complainant as follows:

Q: How do you say that you patted her? What do you constitute to be a pat?

A: It was a contact firm enough for her to know that I was making contact with her, to indicate that I was coming through.

Q: So a firm touch to a female’s bottom?

A: Yes.

Q: To her cheek?

A: Yes. Or to her upper leg.

Q: Did you just sort of pat it with an open hand or was there any movement of your fingers?

A: No, just an open hand as you initially indicated, a single- single contact.

…

Q: Why did you touch her on the bottom?

A: Because that was the portion of her body immediately closest to me.

Q: Would you accept that touching a woman that you don’t know on her bottom is inappropriate?

A: In the manner that I did it, no, I wouldn’t.

45. The appellant went on to give evidence that he had said the words “excuse me” at the same time as he touched the complainant. He was unable to touch her shoulder because she was leaning forward. The appellant did not accept that the photo Exhibit 10 showed himself and the complainant between two and five minutes prior to the incident. He said his answer to the police, “not that I am aware of” meant that he denied what had happened.

Evidence of PRS

46. PRS had worked with the appellant in the armed forces, and was with him during the afternoon of ANZAC Day 2014. They had been drinking together and arrived at the hotel in Balmain at approximately 4.00pm. They played two-up in the courtyard, and he noticed the complainant. He was asked whether he saw a female go off the platform at any stage onto the ground level of the courtyard. He answered:

A: So there was a point later in the evening that I saw DH coming back from the bar carrying many drinks and he was struggling to get through past people. I believe it was-

HER HONOUR Q: Hang on. Carrying many drinks, he was struggling to get past people?

A: Yes. There was a capacity crowd and there was- I believe that girl on the front of the- the table and the two gentlemen behind her, DH was struggling to get through. In the end, the two men stepped back and she sort of went forward.

Q: Did you see any contact between DH and that lady?

A: Yeah, if there was contact that saw it was just incidental. He was bumping into everyone. It was a capacity crowd.

Q: Did you see him do anything to her bottom?

A: No.

Q: Were you paying attention particularly to what happened?

A: No. It was of very little consequence. The only reason I remember it is because it was the same girl that we had discussed earlier that had his money.

Q: When she was on the ground then did you see or hear anything that occurred between her and DH if at all?

A: No.

47. PRS was cross examined about the contact that he saw between DH and the complainant:

Q: So, are you saying that you specifically have a recollection of seeing contact or that you are just guessing, and if there was any contact it was incidental?

A: To clarify further, he was coming through and so I did see him bump into her, yeah, I am happy to say that.

48. PRS had spoken to DH about the allegations made against him, but was not aware that there was an allegation that he touched the complainant on the bottom three times. He accepted that the appellant had been drinking at a similar pace to him, and that they were quite affected by their consumption of alcohol. He described the incident in which DH came into contact with the complainant as him “brushing through her” in the crowd.

Evidence of Ms FM

49. Ms FM was a colleague of the appellant with the rank of Major. She gave evidence that she had known him for 6 years and had seen him affected by alcohol. She gave the following evidence:

Q: What is his general attitude towards women?

A: Very positive.

Q: Have you had special cause to observe, because of your position?

A: Yes, mostly because there are not that many females in the areas that I was working in and that was a point of discussion and he was extraordinarily supportive of females in the workplace and had actually verbalised that on a number of occasions.

Q: Have you played a particular role around equitable attitudes in your regiment?

A: Yes, so I have had multiple exposures to working as an equity advisor. That consists of advising the Command on issues of equity, diversity, harassment, things of that nature.

Q: What can you say about DH’s integrity?

A: I’d say within the time that I’ve known him, he’s been an excellent officer and a very, very good colleague.

50. In cross examination, Ms FM agreed that the occasions on which she had socialised with him were work related.

Evidence of DCH

51. DCH was a cousin of the appellant and a police officer employed by the Queensland Police Force. He gave the following character reference:

“DH is an upstanding man. Since playing with him, as a child, teenagers, through to adults, you know, we’ve had a myriad of great experiences together where- I think DH is an exceptional man, even though I am older than him, I’ve always looked up to him, with his dedication to school, his- you know, he, he met [his wife] at a younger age than I met my wife and I – he has a daughter a little bit older than mine and I look up to him for advice in relation to that as well.

…

Q: What is his attitude to women like, to your knowledge, to your observation?

A: He’s very respectful to women, he speaks to my wife, with respect. He treats [his wife] with respect and I’ve not seen any example that would prove otherwise.

Q: How would you speak about his integrity?

A: Very upstanding. I have known DH, as I said, for, for a long time, he’s- he’s anti-violence, he’s anti-drugs, the- we socially drink, so very upstanding.

Q: What about his honesty?

A: Extremely honest.— We’re very close, he tells me everything that goes on in his life. We discuss some work things as well, and we’re both upfront and honest with each other. There’s a mutual respect there that he has for me and I have for him.

52. In cross examination DCH said that he was aware of the allegations made against DH.

The appellant’s submissions

53. Learned senior counsel for the appellant submitted that the appellant had not been charged with touching the bottom of the complainant. The charge pursuant to s 61L was confined to the particulars contained in the Court Attendance Notice, namely that the appellant had “placed his hand under the dress of the Victim and grabbed her lower buttocks”.

54. The appellant had denied doing that on arrest in his ERISP interview and on oath in his evidence.

55. The appellant submitted that the complaint evidence relied on by the Crown contained numerous inconsistencies. For example, SE gave evidence that the complainant said to her, “I was standing on the stage and he kept touching my bum”. SE went on to say that the complainant told her she said “please do not do that” and that he had then “punched her very hard in between the legs”, which was not consistent at all with the complainant’s evidence. Further, she had not told the police that the complainant had told her that the appellant punched her very hard between the legs, nor that he had punched her so hard that she fell off the platform.

56. The appellant submitted that the evidence of SE was unsatisfactory, and not consistent with the complainant’s evidence.

57. Similarly, the evidence of RS was that the complainant said to him, “the guy grabbed me. The guy’s a creep.” It was submitted that that evidence was inconsistent with the evidence given by the complainant, and not helpful to the Crown case.

58. Similarly, CS had given evidence that the complainant told her that “she had been slapped on the bum.” Again, it was submitted that this did not assist the prosecution case.

59. The appellant submitted that in his ERISP interview he had used an open hand to touch the complainant to indicate to her that he wished to get past her. This was the central plank of his defence, and he had otherwise categorically denied the allegation of indecent assault. It was further submitted that the learned Magistrate in her reasons had mischaracterised the concession made by the appellant where she said that identification was not in issue because DH agreed “to having slapped her on the buttocks”, and in her dispositive reasons she had said:

“Even on DH’s evidence himself, he says that he touched her on the buttocks, slapped her on the buttocks to get her out of the way because he had two drinks in his hand. He cannot get past her. He says he puts the other drink in his hand and he slaps her on the backside.”

60. It was submitted that this was a factual error made by the learned Magistrate which led to her finding of guilt, and in doing so missed the entire point of the defence case. It was submitted that the complainant evidence was not truly confirmatory of the prosecution case, and was not analysed in any real sense by the learned Magistrate. She had also failed to take into account the evidence of the good character of the accused which went not just to the absence of any criminal antecedents, but also to his attitude towards women.

61. It was submitted that the appellant was a man of good character with a very responsible position in the armed forces. He was a “decent and trustworthy fellow”, and was entitled to rely on his good character as demonstrating that he was a person who was unlikely to put his hand up a young woman’s skirt so forcefully as to cause her injury.

62. It was submitted that the photograph of the alleged injury was not at all clear, and therefore of limited value. Whilst it gave some support for the complainant’s version, it was not supported by any medical evidence and did not establish that her version was the only truthful version. Therefore, the Court could not be satisfied that the elements of the offence were made out beyond reasonable doubt, particularly when the appellant had not been shaken in cross examination.

The Crown’s Submissions

63. The Crown submitted that the learned Magistrate had the advantage of seeing the witnesses give their evidence from the witness box. She had made findings as to the credit of the complainant and had accepted her evidence. She described that as “very clear evidence of what happened on that day”, and there was no reason to overturn that finding. It was submitted that the complainant was not shaken in cross examination, and had made appropriate concessions, for example, in relation to an issue as to whether the appellant was wearing cufflinks. She had denied the appellants version, which was not supported by Exhibit 10.

64. The Crown submitted that the time of the offence was important, it being approximately 7.00pm. Exhibit 10 had been taken according to the imprint on it at 6.58pm at which time the appellant was standing behind the complainant on the platform in the courtyard, and had no drinks in his hands.

65. The Crown submitted that the complaint evidence here was contemporaneous. It was made to her friends with reticence and it had the ring of truth about it. Similarly, the evidence of what happened thereafter, namely reporting the matter to the RSA marshal and then complaining to someone with authority to remove the appellant from the premises was consistent with the Crown case. Further, when the various parties moved outside the premises their continued complaint to the police officer supported the prosecution case.

66. As to the various alleged discrepancies in the complaint evidence referred to in the appellant’s submissions, the Crown submitted that descriptions of a punch by CE demonstrated that it was forceful contact with the complainant. Similarly, RS’s description that she told him “that guy grabbed me” was not inconsistent with the complainant’s evidence of hitting her and cupping his hand. Similarly, the evidence of the complainant’s sister was largely consistent with the complainant’s evidence.

67. The Crown submitted that in his ERISP interview at Q87 the appellant had accepted that he had brushed the complainant with an open hand. Whilst this was not an admission of the offence pursuant to s 61L as particularised, it had been adopted by the learned Magistrate in her reasons in two ways. First, in finding that there was no issue as to identity, and secondly in her reasons where she stated that the complainant gave very clear evidence which she accepted.

68. The Crown submitted that the Court should have regard to the direction as to good character provided in R v Telfer (2004) 142 A Crim R 132 at [37] where Bell J (Grove and Sully JJ agreeing) said:

“It may have been preferable for the Judge to have directed the jury in terms such as those suggested by King CJ in Trimbole (at 578; 74), namely, “that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character”.”

69. The Crown therefore submitted that the appeal should be dismissed.

Directions of Law

70. Section 133 of the Criminal Procedure Act 1986 provides as follows:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

71. The first direction I give myself concerns the complaint evidence, namely the evidence of what the complainant said to other people about the alleged indecent assault. The Crown relies on that evidence to establish that such an assault did occur. The evidence the Crown relies upon falls into the following three categories:

1. The complaint made to SE.

2. The complaint made to RS.

3. The complaint made to CS.

72. If I find that the complaints were made substantially to the effect that each witness gave evidence of, I could use it as some evidence independent of the evidence given by the complainant in the witness box. The law says that because of the circumstances in which a complaint is made, a judge is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against the accused. A judge is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is that the allegation is less likely to have been fabricated by each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion and so treat the complaint as evidence of the alleged indecent assault by the appellant. If I do use it as some evidence of the indecent assault, then what weight I give that evidence is a matter for me.

73. The Crown further contends that the fact that the complainant raised the allegation against the appellant at the time and in the manner that she did, would lead me to accept the evidence given by her in the witness box. In other words, it makes the evidence of the complainant more believable than if she had not raised the allegation as she did.

74. The questions I must ask myself are:- “Did the complainant act in a way I would expect her to act if she had been assaulted as she said she was?”, and “Is what she did the sort of conduct that I would expect of a person who has been indecently assaulted in that way?” If I think that what the complainant has done is what I would expect someone in her position to do, that may support the Crown case because I may find that there is consistency between the complainant’s conduct and the allegation that she makes against the appellant.

75. On the other hand, if the complainant has not acted in the way that I would have expected someone to act after being indecently assaulted, as she described, that may indicate that the allegation is false. But I am to bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.

76. Of course, the fact that the 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 just because it is repeated on more than one occasion.

77. The second direction I give myself concerns the evidence of the good character of the appellant. That evidence has not been challenged by the Crown and I therefore accept the fact that the appellant is a person of good character.

78. The law provides that a jury is entitled to take evidence of an accused’s good character into account in favour of him on a question of whether the Crown has proved the accused’s guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the alleged offence. I can take into account the appellant’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I do reason in that way is a matter for me.

79. Further, a judge can use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, either in giving evidence or in giving an account of the events in answer to questions asked by police. Again, whether I reason in that way is a matter for me to determine.

80. None of this means, of course, that good character provides the appellant with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the appellant. What weight I give to the fact that the appellant is a person of good character is completely a matter for me, but it is a matter to be taken into account.

Determination

81. The learned Magistrate gave her reasons on 14 December 2015 in respect of two charges, being indecent assault, the charge the subject of this appeal, and a further charge of common assault brought against the appellant which was dismissed on the basis the prosecution had not negatived a defence of self-defence. Much of the evidence in the trial related to that second offence which arose from an incident outside the hotel involving a group of people comprising the friends and relatives of the complainant.

82. The learned Magistrate had the advantage of seeing the witnesses give their evidence and accepted the evidence of the complainant and her account of what happened to her inside the courtyard of the hotel.

83. It is also clear that the learned Magistrate accepted the evidence of the appellant in respect of the second charge of assault. Having dismissed that charge, the learned Magistrate referred to the character evidence called on behalf of the appellant by FM and DH but dismissed that evidence on the basis that “people do behave differently when intoxicated and when caught up in the moment of intoxication and dealing with a young woman in an environment such as we have heard about, this ANZAC Day”.

84. The learned Magistrate referenced the evidence of the appellant and set out his ERISP interview from question 86, and selectively questions 100, 117 and 153.

85. The latter answers related to evidence relevant to the charge of assault which had already been dismissed, and were therefore irrelevant to the first charge.

86. She then proceeded to reject the explanation given by the defendant that the contact he had with the complainant arose as a result of his need to pass by her to deliver the drinks that he was carrying. The learned Magistrate relied on the evidence of SE as to the way in which the appellant was talking, and looking at the complainant earlier in the day as supporting the complainant’s evidence. She then referred to the photo of the complainant and appellant taken by SE at 6.58pm which clearly showed him behind the complainant, and the learned Magistrate commented that there did not, from that photograph, “appear to be wiggle room as far as that is concerned.”

87. The learned Magistrate was in error in reasoning that the evidence of SE of her observations of the appellant at an earlier time, and the photograph Exhibit 10 taken at 6.58pm, support a finding that the offence has been proved beyond reasonable doubt. The observations of SE of the appellant earlier were irrelevant to that question, and the photograph was in no way conclusive, being merely a snapshot in time as to when it was taken. Even if the time was accurately recorded as 6.58pm, it does not show the scene at the time of any alleged offence.

88. Further, the learned Magistrate failed to deal with the discrepancies in the complaint evidence. I accept the submission made by learned senior counsel on behalf of the appellant that the evidence of SE in respect of what she was told by the complainant was so unsatisfactory as to be unreliable. Nor does the evidence of RS or CS support a complaint that would lead to a finding that the indecent assault actually occurred in the manner in which the complainant said it did, making her evidence more reliable. To the contrary, it made the evidence of the complainant here seem somewhat less reliable than the learned Magistrate found.

89. Further, the learned Magistrate did not deal with the evidence of the complainant in which she said the words “how dare you” to the appellant. When asked in cross examination what she said to him the complainant said she said words to the effect of “don’t touch me”. It was put to her that when she said those words the appellant just ignored her, but she answered:

A: I remember him saying something to the effect of “how dare you”, after I had touched him.

Q: Your friends were literally within arm’s reach of the fellow at that time, right?

A: They were in my arm’s reach.

Q: Yes and he was immediately behind you on a half-a-metre high platform, right?

A: Yes.

90. Further, the complainant was then asked whether she spoke to her friends about the appellant at that time, and she gave evidence that she said, “don’t worry, let’s leave.”

91. None of the witnesses called on behalf of the complainant gave evidence supporting the complainant’s evidence as to the conversation she alleged took place between her and the appellant, a conversation which was within close proximity to her group of friends. Notwithstanding the evidence of CE that the complainant was at first somewhat reticent to talk about the incident, this also diminishes somewhat the reliability of the complainant’s evidence as to her interaction with the appellant.

92. Further, the learned Magistrate dismissed the evidence of two of the witnesses called on behalf of the appellant as to good character on a basis that was not open to her. All four witnesses called as to his character gave evidence that they had socialised with him and seen him have a positive attitude towards women when in social situations where alcohol was consumed. Insufficient weight was therefore placed by the learned Magistrate on the evidence called in the defence case as to his character, which has to be taken into account. Her critical finding that “people behave differently when intoxicated” may be a truism, however the learned Magistrate did not reject any of the character evidence, and that finding was not available to her on the evidence here.

93. In applying the test set out by Basten JA in AG v DPP, supra, error has been demonstrated in the reasoning of the learned Magistrate in finding the offence proved. Having regard to the whole of the evidence, and the advantage enjoyed by the learned Magistrate in seeing the witnesses give their evidence, I accept that the complainant was a credible witness. The evidence establishes that there was contact between the appellant’s hand and the right buttock of the complainant. The appellant admitted to doing so on two occasions and gave sworn evidence as to the circumstances in which that occurred.

94. The photograph (Exhibit 3) does show a red mark below the crease line on the complainant’s upper right rear thigh. In cross examination Constable Yates conceded that the complainant had told her on the day of the incident that she had suffered a bruise. There was no medical evidence to support the extent of the injury or the cause of it, and the appellant submits that an inference is available that the injury was not caused on the same day.

95. The determination as to whether the Crown has therefore established beyond reasonable doubt the elements of the offence as particularised therefore has to be determined as to whether the complainant is to be accepted as to the third incident, namely that she felt the appellant’s hand hit her tailbone, come up underneath her dress and grab her right buttock so that the palm of his hand was touching her underwear. Her evidence as to the first two occasions do not prove the offence with which the appellant was charged.

96. The appellant denied that allegation when put to him in general terms, at his ERISP interview and denied it under oath, and was not moved on that issue. Having regard to the extent of the character evidence called on his behalf, he is entitled to have his good character and integrity taken into account in assessing the question as to whether there is reasonable doubt in relation to the Crown case. Because of the inconsistencies in the complaint evidence as outlined above, there must be some doubt. Coupled with appropriate weight given to his good character, I am not satisfied beyond reasonable doubt that the elements of the charge pursuant to s 61L as particularised have been proved to the high standard required.

Conclusion and orders

97. I therefore uphold the appeal. The orders I make are as follows.

1. The appeal is upheld.

2. The orders made by the learned Magistrate on 14 December 2015 are set aside.

3. The exhibits are returned.

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Decision last updated: 15 September 2016