Evans v Kelly
[2012] WASC 148
•4 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EVANS -v- KELLY [2012] WASC 148
CORAM: HALL J
HEARD: 21 FEBRUARY 2012
DELIVERED : 4 MAY 2012
FILE NO/S: SJA 1107 of 2011
BETWEEN: CLINTON JAMES EVANS
Appellant
AND
BRENDAN FRANCIS KELLY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :MI 10411 of 2010
Catchwords:
Criminal law - Indecent assault - Appeal against conviction - Whether guilty verdict unreasonable or could not be supported having regard to the evidence - Whether it was open on the evidence for the magistrate to be satisfied beyond reasonable doubt - Need to review whole of the evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code (WA), s 323
Result:
Extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: Ms C A Fletcher
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Grubisic v State of WA [2011] WASCA 147
Harvey v Matthews [1999] WASCA 58
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lovell v Fulman [2011] WASC 312
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morgan v The State of Western Australia [2011] WASCA 185
Rasoolifard v Nicol [2001] WASCA 180
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Smart v Albuquerque [2011] WASCA 231
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
HALL J:
Introduction
On 29 April 2011 the appellant was convicted in the Midland Magistrates Court of one count of indecent assault contrary to s 323 of the Criminal Code (WA). That conviction followed a hearing which took place on 17 and 18 February 2011. He now seeks leave to appeal against his conviction.
The appeal notice was filed on 12 October 2011. That was some four and a half months out of time. An application for an extension of time was filed, supported by an affidavit from the appellant's solicitor. The reason given for the delay is that the appellant had difficulties in obtaining funds to retain lawyers to act for him on the appeal. The nature of those difficulties is not detailed in the affidavit.
An extension of time may be granted where the delay is not adequately explained if there are exceptional circumstances or there would be a miscarriage of justice if an extension was not granted: Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424. It is not suggested that there are any exceptional circumstances in this case, so the question of whether an extension should be granted turns upon whether it has been established that there has been a miscarriage of justice. That question necessitates a consideration of the merits of the grounds of appeal.
The grounds of appeal
The appeal notice contains two grounds of appeal. Both grounds raise the same essential issue. The first ground asserts that the guilty verdict was unreasonable and could not be supported having regard to the evidence. The second ground asserts that the evidence before the magistrate lacked sufficient probative force to justify a finding of guilt. In essence, the appellant contends that the magistrate should not have accepted the evidence of the principal prosecution witness, being the complainant. He submits that the credibility of the complainant was so significantly impaired that it was not open to the magistrate to be satisfied beyond reasonable doubt that the offence was committed.
Where a finding of guilt by a jury is challenged on this basis the question for the appeal court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495 [7] ‑ [9] (Mason CJ, Dean, Mawson & Toohey JJ). It is not sufficient to show that there was evidence which, if accepted, would have precluded satisfaction of guilt beyond reasonable doubt. This is because it may well have been open to reject that evidence and accept that which led to a conclusion of guilt.
The principles applicable to whether the verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA; with whom McLure P & Mazza J agreed). See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [79]; Smart v Albuquerque [2011] WASCA 231 [16] and Lovell v Fulman [2011] WASC 312 [9].
Where the findings of the primary court depend to any substantial degree on the credibility of witnesses it must be borne in mind that that court had the opportunity to both see and hear the witnesses give their evidence. However, findings may be disregarded by an appeal court if the primary court 'has failed to use or has palpably misused' its advantage or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 [10] (Brennan, Gaudron & McHugh JJ); Fox v Percy (2003) 214 CLR 118 [66] (McHugh J) and CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] (Kirby J).
Grounds of this nature require the appeal court to examine the whole of the evidence, not only to determine its sufficiency but also to weigh the evidence and decide whether or not it gives rise to any reasonable doubt: see M v The Queen and SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. The task is not one of determining what the jury, or in this case the magistrate, did. The task of the appellate court is to make its own assessment of the evidence.
However, it is important not to disregard or discount that the tribunal of fact, or in this case the magistrate, is the entity entrusted with the primary responsibility for determining guilt or innocence: M v The Queen (493). In order for an appellate court to form the opinion that a verdict of guilty should be set aside because having regard to the evidence it is unreasonable or cannot be supported, it must be satisfied that the verdict of the jury is infected by error. However, error will not be demonstrated merely because the finder of fact made a choice between competing inferences which were open on the evidence: Morgan v The State of Western Australia [2011] WASCA 185 [94] ‑ [95] (Pullin JA).
The prosecution case
The prosecution case was that the complainant, a 21‑year‑old work experience student, was indecently assaulted whilst working at an aged care home. The appellant was a male carer who was also working at the home. It was alleged that on 8 April 2010 the appellant and the complainant were performing duties together in the room of one of the residents of the home. The appellant was alleged to have pulled his pants down, exposed his penis and asked the complainant to touch it.
Immediately following this alleged incident the complainant left the room and made a telephone call to a friend. She told the friend what had happened and was advised to report the incident to her work experience coordinator. She then made a second call to the work experience coordinator. During the course of this call she collapsed in a distressed state and was attended to by other staff at the home. She was asked to write down what had occurred, which she did in very brief terms.
The appellant was charged and interviewed by the police. He denied that the incident as described by the complainant had occurred. Indeed he said that the complainant had made a sexual advance to him which he had rebuffed. He said that she had not responded at that time. He later became aware of the allegation, which he denied.
There were no witnesses to what had occurred in the room other than the complainant and the appellant. There was, however, evidence of immediate complaint by the complainant and of her demeanour immediately following the alleged incident. That evidence came from the complainant's friend whom she had called, the work experience coordinator who she had also called and several staff from the aged care home. There was also close circuit television footage depicting the complainant at the time she collapsed whilst on the telephone to the work experience coordinator.
The appellant did not give evidence at the trial. There was, therefore, no conflicting evidence on oath as to what had occurred in the resident's room. The question for the magistrate was whether the indecent assault as described by the complainant had been proved beyond reasonable doubt. This required a careful assessment of the prosecution evidence. It is necessary to review that evidence again now for the purposes of this appeal.
The evidence
The complainant
The complainant said that she attended at the aged care home for work experience at 8.00 am on 8 April 2010. She said that she had been doing work experience for one day a week and that this was the third week. On this day she was assigned to work with the appellant. She had met him previously but had not worked with him until 8 April 2010.
The complainant said that she had an early lunch and that the appellant took his lunch break at the same time. The appellant asked the complainant to come outside and sit with him whilst he had a cigarette. She said that they had a conversation about his family and that he showed her a photograph of his infant son on his mobile telephone. She said that she then handed the phone back and that the appellant asked whether she wanted to see a picture of his wife. She agreed and the appellant then handed the phone to her again, displaying what she described as a 'nude picture'. She explained this as meaning that the woman depicted had black pants on but no bra. The complainant said that she told the appellant that it was 'wrong to show me' and that he responded by saying 'oh its okay, all his mates saw that'. She responded by saying that she was not a mate. The appellant then said 'Oh, that's nothing' and told her how his mates had filmed him having sex with his wife, including zooming in whilst he was licking her vagina. The complainant said that she felt uncomfortable and decided to leave. She went back inside and soon after resumed her duties.
After lunch, the complainant and appellant assisted one of the male residents to go to the toilet. This resident was named Ian and was in a single room with an adjacent toilet ensuite. After the resident was placed on the toilet the complainant and the appellant waited in the room for the resident to indicate that he had finished. Whilst they were waiting the appellant began to talk about an accident he had had in 1991 and how he had scars from it. He then said he was exhausted from the work and asked the complainant to give him a massage. Her evidence in this regard was as follows:
So while the resident is in the toilet, what happened then?---I was just sitting - I was sitting and then Clint was there and then he went on about an accident he had and he said 1991 and how he had some scars from it and I was like, okay, and then he - like he was exhausted, like, because we were running too much around and that he asked me to give him a massage and I was like, 'But I can't do that,' and he was like, 'Sarah, please give me a massage.' I was like, 'I don't think I can do that,' and he's like, 'Please Sarah, please.' I was like, 'Clint, I'm not allowed to do that,' and he's like, 'I'm just exhausted,' and I felt a bit scared because it was only me and him and the main door is shut and the resident cannot do anything, so I was like, okay, so I took my left hand and rubbed his shoulders and some - like for some seconds and I was like 'We should actually check on the resident,' and he was like, 'Oh, he's not ready,' and then I asked the resident, 'Are you ready?' and he's like, 'Yeah'. I was like, 'The resident says he's ready.' He's like, 'No, he's not,' and then I was like, 'Oh, we should probably go and check on him,' and then we went and took the resident off and I was putting back the shoes and the pants on the resident and he - - -
Sorry. I will just stop you there and we'll let her Honour catch up with some writing there. So you said that was a male resident's room and the male is in the toilet - - -?---Yeah.
- - - and the door is half open. When you said Clint is talking to you about an accident in 1992, what sort of accident was that?---A car accident.
What did he tell you about that accident?---He had some scars from it.
Did you see the scars or was he just telling you about them?---He was telling me about them at first and then after we got the resident off the toilet, I was putting on the shoes and the pants and then he's like, 'I've got scars,' and then he called my name. I was like, 'Wait.' Then he called my name again and I looked up and then I saw like he had his pants down showing me the scars and I just looked and I was like, 'Clint' and I just looked and I looked away (ts 14 ‑ 15).
The complainant said that she did see scars on the appellant's stomach and on the back of his legs. She was asked whether the resident was in a position to see the appellant and she said that she did not think so. She also said that the resident could not speak properly. She said that she left the room, taking the resident to the TV room.
The complainant said that a short time later the appellant asked her to assist him to put some residents back in their rooms for an afternoon nap. She said she was not happy to go with him but felt she had no choice. She said that at that time there were no other staff members other than herself and the appellant in the TV room.
The complainant said that she and the appellant went to the room of a female resident named Nancy. She said that she put the resident into her bed and that whilst she was doing so the appellant stood behind her. She said that this was not unusual because he was supposed to observe what she was doing and tell her whether it was right or wrong. She said that this particular resident required a high level of care and could not speak. The complainant said that the room in this case was a double room with a curtain between the beds. Whilst her back was turned she heard the curtain pulled across. She then said:
[A]ll I could hear was the curtain go shut and I was like, 'Okay,' and my heart was just pounding. I was shaking and then he's like, 'That's not - and then I was like, 'Okay. That's all we got to do,' and then like, 'No, that's not what you had to do.' I was like, 'What do you mean?' and then he's like, 'This is what you had to do,' so I looked back and I heard him with undies - like with his pants down and his penis out and he told me, 'This is what you have to do.'
So just going through that again, you have said that you have heard the curtain close, then you have said, what, sorry?---I said, 'Is this all we have to do?'
'Is this what we have to do?'---Yeah.
Then what has happened?---And then he's like, 'No, this is what you have to do,' and I was like, 'What do you mean?' and then he's like, 'No, this is what you have to do,' so I looked back - I look at him because I was like, 'Okay,' in my heart I was only thinking, 'Okay. Why did he pull the curtain shut?' So I was like, 'Okay,' and I looked back at him. He was against - like he was in the middle like next to me, but, yeah, a bit far but not that far and I looked and then I saw him with his pants down (ts 20).
The complainant said that the appellant's underpants were pulled up but that his penis was over the top of the elastic of the underpants. She said that his penis was not erect and described it as 'short and circumcised'. The complainant said that she felt scared and that he then moved closer to her. She then said:
And then he's like, 'Touch it.' I was like, 'What?' He's like, 'Touch it'. I was like, 'I don't have to do this,' and I was just - and then after that I looked through the window - I was looking at the window and then he was talking and he was get angry and angrier saying it and I was just - and then he's like, 'You have to do it or else you'll lose your traineeship if somebody hears about this.' Then he's like, 'Put your hands on it.' So I got my - and then I was scared. I didn't know what to do. I wanted to run out, but looking at him and myself in the room, I could've screamed, but no‑one can hear me. So I didn't know what to do. I just like, 'Okay. You better go along with this or he can harm me.' (ts 23)
The complainant said that she could tell from the way the appellant looked that he was getting angry. She said that she held her hand out as instructed and then the appellant pulled it towards his penis. She then gave the following evidence:
Did you touch his penis yourself?---No, I was like on top of his penis.
Above it or on it?---Above it.
Touching it?---Above it.
Then you said Clint has done something. What has happened then?---He took my hand and he forced it to his penis.
So just then you showed us - you said he took your hand, but you have grabbed just below your elbow on your arm?---Sorry.
No, no, that's fine. Is that where he has grabbed you or on your hand?---Yeah. Like here.
You're showing your left hand. Is that the hand - - -?---My left hand.
- - - is that the hand that you - - -?---Yeah. That is the hand I was using.
Okay. So you have had your left hand - is he front of you now or just at the back?---I was standing like this and he was on the side.
So when you said he's on this side, you have put your hand out like you showed, your left hand?---Yeah.
But you - then Clint has grabbed you, you showed on the left forearm there. Yeah?---Mm.
What has he done with your hand?--Forced it to his - on his penis (ts 24 ‑ 25).
The complainant said that the appellant then told her to 'do it'. She said that she understood this to mean that he wanted her to massage his penis. She said that she was looking out of the window and that he asked her why she was doing that. He then told her to 'look at it'. She said that she did not move her hand but that the appellant's penis became erect.
The complainant said that another staff member, Ms Joneryn O'Connor, then came into the room and said that she needed some help. The complainant said that as Ms O'Connor came into the room she and the appellant were still behind the curtain and could not be seen. She said that the appellant pulled his pants up and was zipping up and putting the belt on as Ms O'Connor opened the curtain. The complainant said that Ms O'Connor then walked out of the room and she followed her. The appellant went to the resident's bathroom and washed his face. The complainant said that the appellant followed her shortly after and asked where she was going. The complainant walked off saying that she would be back. She said she was shaken and scared and went to the receptionist and asked if she could use the telephone.
The receptionist directed the complainant to the telephone in the staff room. The complainant then made a telephone call to a friend, Ms Flora Lomginous. She said that she started to tell her friend what had occurred but that the appellant then came into the staff room and asked who she was speaking to. The complainant said that she then started to talk to her friend in Arabic. She asked her friend what she should do and her friend told her to call her work coordinator. She said that she told her friend: 'This guy who I work with. He kinda asked me to massage his penis'.
The complainant said that at this stage she was feeling tearful and returned to the reception area to ask if she could call her coordinator. The receptionist was nearby as she was talking to the coordinator on the telephone. During the course of this telephone call the complainant collapsed to the floor crying as she endeavoured to explain what had occurred. The receptionist left to fetch a more senior staff member, Ms Nola Badmin. Arrangements were then made for the complainant's father to collect her. He came within about ten minutes.
In the meantime, Ms Badmin asked the complainant to write down what she said had occurred. The complainant said that the note does not make sense because she was upset at the time of writing it. She also said that the pen that she was writing with ran out of ink and that she had to swap to a different coloured pen. The note became an exhibit at the trial and does contain writing in two different colour inks. The note reads as follows:
We were at a room waiting for resident to finished [sic] (finish) and Clint asked me to rub his back which I thought it was normal and then he pulled out his penis and asked me to rub it for him and I said 'No' but he yelled and said 'Do it'. I was scaret [sic] (scared). Didn't know what to do so, I did it because I throught [sic] (thought) he mind [sic] (might) hurt me.
There is then a date and a signature.
Under the signature there is further writing to the following effect:
I have called my workplace learning coordinator Sharon Gilgallon.
There then appears two telephone numbers. Then, in a different ink the following sentence:
Jo walked in and he strated [sic, started] to pull up his paints [sic, pants].
In cross‑examination it was put to the complainant that in a meeting at the beginning of the work day she had stood behind the appellant and given him a massage. She denied this but agreed that she had on one other occasion seen another female give the appellant a massage but she did not know the name of that person. She said that the appellant had told her that he had a crush on that female staff member.
It was put to the complainant that the appellant had not shown her a semi‑naked photograph of his wife. It was suggested that after receiving the telephone with the photograph of the infant son she had then flicked through photographs on the phone. She denied this and maintained that the appellant had shown her the photograph of his wife and she reiterated the conversation in regards to a friend filming the appellant and his wife whilst they had sex.
It was put to the complainant that there were inconsistencies between her evidence and the statement that she gave to the police. In particular, in her police statement she had said that following the lunchtime conversation she had been physically shaking but had denied any physical affect at this time in her evidence. When asked to explain this apparent inconsistency, the complainant said she had not understood the distinction that defence counsel was making between physical and emotional reactions. She also said that she was not lying when she said in her evidence that she did not have a physical reaction at this time, rather she simply could not remember it.
It was put to the complainant that she had voluntarily massaged the appellant in the male resident's room and that she had then reached out to grab the appellant's groin with her hand. It was suggested that the appellant had then said: 'Fuck off slut'. The complainant rejected these suggestions.
It was put to the complainant that her evidence in regard to the position of the scars was inconsistent with what she had said in her police statement. In her evidence she referred to scars on the side of the stomach and on the back of one leg. In her statement she referred to scars on the appellant's back and on both legs. When asked to explain this she said that she probably used the wrong word when describing the position of the scars to the police and that at the time the statement was prepared she was very scared. In re‑examination she said that the police officer who took the statement changed her words by shortening the sentences and correcting them. She said that she did not read the statement in its entirety and made no corrections prior to signing it.
It was put to the complainant that in her statement to the police she had said that the appellant had asked her to 'massage' his penis whereas in her evidence she said that the words he used were 'touch it'. She agreed that he did not use the word 'massage' but said that this was her understanding of his meaning. The implication was that this was why her statement used the word 'massage' in this context.
It was put to the complainant that her evidence that the appellant had pushed her hand down onto his penis was inconsistent with what she said in her statement. In her statement the complainant said: 'I touched his penis with my left hand. I lightly touched it. Clint grabbed my hand and forced my hand down on to it'. It was put to her that this indicated that she had touched his penis before he put any physical pressure upon her hand. She accepted that that was so, but denied that she had touched his penis voluntarily.
Flora Lomginous
Ms Lomginous is the friend of the complainant. She confirmed that the complainant rang her on 8 April 2010. She recalled asking the complainant what was wrong and said that the complainant then said:
This thing happened to me at the workplace. This guy asked me to touch his dick (ts 95).
Ms Lomginous said that she could then hear a male voice saying words to the effect 'who are you talking to'. She then heard the complainant say: 'Oh I'm just calling somebody to come and pick me up'.
Ms Lomginous said that she and the complainant usually spoke in a mix of English and Arabic. She said that the first words spoken in the conversation were in English but that the complainant then switched to Arabic. She said that that part of the conversation in regard to the touching was in Arabic.
Ms Lomginous said that she told her friend that she should 'go and see the manager'. She said that this conversation occurred over two telephone calls close in time to each other.
In cross‑examination it was put to Ms Lomginous that the complainant had used the word 'massage' but had not referred to 'dick'. She said that the complainant had used both words. She accepted that the complainant did not tell her that she had in fact touched the appellant.
Melissa Jones
Ms Jones was the receptionist on duty at the aged care home on 8 April 2010. She gave evidence that sometime after 1.00 pm the complainant had come to her desk and asked if she could use the telephone in the manager's office. She said that she told the complainant that she would have to use the phone in the staff room. The complainant went away and came back a couple of minutes later and said that there were too many people in the staff room. Ms Jones then offered to make a call for her from the desk. She then put through a call to the work coordinator, Ms Gilgallon.
Ms Jones said that she could hear the complainant speaking on the phone. In particular, she heard the complainant say that someone had asked her to massage his back and then pulled out his penis and asked for that to be massaged. Ms Jones said at this point she realised that she needed to get a senior staff member and left the area. She returned shortly after with Ms Badmin. At that point the complainant had 'collapsed in a heap at the front desk'. Ms Jones said that the complainant was visibly upset and that she took the phone and spoke to Ms Gilgallon and told her that a senior staff member had been called.
Nola Badmin
Ms Badmin gave evidence that sometime just before 2.00 pm the receptionist, Melissa Jones, contacted her to ask if she could come to the reception area because the complainant was upset and had collapsed at reception. Ms Badmin said that when she arrived the complainant was on the floor, huddled and curled up and that Ms Jones was trying to comfort her. Ms Badmin said that the complainant kept saying 'Keep him away from me. Keep him away from me, he's going to hurt me'. She said that she then asked 'Who' and that the complainant said: 'Clint'.
Ms Badmin said that she asked the complainant to write down what had occurred on a piece of paper. She said that she could recall that what was written had all been written at the same time prior to the complainant's father collecting her. She had kept the piece of paper before giving it to the police.
Ms Badmin also asked the appellant to write down what he said had occurred. This note was also tendered as an exhibit. Though brief, it is consistent with what he said in the police interview.
Joneryn O'Connor
Ms O'Connor was also a member of the nursing staff and confirmed that she was on duty on 8 April 2010. She said that at the beginning of the day the appellant had seemed stressed and that she could recall the complainant laughing and making a chopping motion on the appellant's back and saying words to the effect of 'its going to be all right'. This was said to have occurred in the dining room when the staff met for the allocation of work duties.
Ms O'Connor confirmed that the complainant and the appellant had an early lunch. At that time Ms O'Connor went to work in a different section of the home and then took her own lunch break until about 1.00 pm. She said that following her lunch she was assisting a high care resident and needed to use a hoist. She said that she then walked around from one side of the high care area to the other calling out for the appellant and the complainant. She said that she heard the appellant answer that they were both in a male resident's room. She said that she went into the room and saw the complainant making the bed and the appellant attending to the male resident in the bathroom. She said that the appellant said that he and the complainant would come to help Ms O'Connor as soon as they were finished with the male resident. She said that after a few minutes the complainant and the appellant came into the female resident's room and assisted her.
Ms O'Connor was asked whether she could recall having gone into the room of the female resident named Nancy, the room in which the complainant said the indecent assault had occurred. She said that she did not remember any contact with Nancy at that time. Whilst this was not consistent with the complainant's evidence, it was also inconsistent with the appellant's police interview.
Ms O'Connor said that she did not see either the complainant or the appellant again until sometime later when she was again walking around calling for someone to help her. She said that she was looking for the complainant but that Ms Badmin came and told her that she would have to look for someone else because the complainant was with her. She then recalls looking around and seeing the appellant who appeared stressed and angry. She said that he was swearing and saying 'eff this place. I have enough with this'. Ms O'Connor said that she then went to the staff room where she saw the complainant sitting down, looking down at her hands. She said that that was the last time she saw the complainant.
In cross‑examination Ms O'Connor was asked whether she had gone into Nancy's room looking for the complainant and the appellant. She said that she was not 100% sure and that 'to the best of my knowledge I don't remember that one any more ... or I don't remember that ... no that happen ... no'. She was asked whether she saw any inappropriate conduct and she said that she did not. She was also asked whether she saw anything that might look like the appellant pulling his pants up from around his ankles and doing his belt up and she said that she could not remember anything like that.
Sharon Gilgallon
Ms Gilgallon gave evidence that she worked for the Swan Education Industry Training Association as a workplace coordinator. She said that her role was to find work placements for students as part of a workplace training program. She had arranged the placement for the complainant at the aged care home.
Ms Gilgallon said that she had received a telephone call from the complainant on 8 April 2010. She said that the complainant asked her to come and pick her up. She said that the complainant was gasping and incomprehensible. The complainant said she was frightened and that someone was chasing her.
Ms Gilgallon endeavoured to calm the complainant but then another person came on the phone. The second person said that 'Nola' had been called and that arrangements would be made for the complainant's father to collect her.
Ms Gilgallon said that the complainant was normally a very calm and relaxed person. She said that her state on the telephone was not typical and shocked her.
Appellant's police interview
The appellant's recorded interview with the police on 21 May 2010 was tendered by consent at the trial.
In that interview the appellant denied that the alleged indecent assault had occurred. He gave a different account of what occurred. In particular he said that the complainant had voluntarily massaged his shoulders in the male resident's room but had then twice made attempts to grab his genitals. He said that after the second attempt he said 'fuck off, slut'.
The appellant agreed that he does have scars on his back and legs. He said the reason the complainant knew this was because he told her at lunch. He denied ever dropping his pants to show the complainant scars on his legs. He said he had also told the complainant at lunch that he was circumcised.
The appellant agreed that at some time he and the complainant were in Nancy's room. He also agreed that the central curtain was closed at this time. He accepted that Ms O'Connor had come in to the room looking for he and the complainant. He said that at that time he was in the en‑suite bathroom washing his hands.
The merits of the appeal
Counsel for the appellant submitted that the complainant's evidence lacked credibility and that it contained a number of significant discrepancies and inadequacies that should have caused the magistrate to have a reasonable doubt as to the guilt of the appellant.
The issues raised by counsel for the appellant in regard to the complainant's evidence were as follows:
1.That she stated that she saw scars on the appellant's stomach whereas in her statement to the police she said the scaring was on the appellant's back and legs.
As to this it should be noted that there was no independent evidence as to whether the appellant has scars and where they are located. He did not dispute the existence of scars to his back and legs in his police interview. In her oral evidence, the complainant referred to scarring to the side of the stomach. This does not necessarily exclude the possibility that the scarring extended to the back. It should also be noted that in her oral evidence the complainant also referred to scarring to a leg. To the extent that there was inconsistency, the complainant's evidence was that in her statement she may have used a wrong word in referring to the back. She also said that she had been in a distressed state at the time that the statement was made and had not read it closely.
2.That on the complainant's evidence, there were two incidents in different rooms during which the appellant had dropped his pants.
It is said that this is inconsistent with the contemporaneous complaints which suggest a single incident. This is a matter of interpretation. It is true that in the telephone calls to her friend and the work coordinator, the complainant did not clearly specify two separate incidents. Nor did she do so in the handwritten note prepared at the time. However, the note is very brief and both it and the telephone conversations occurred in circumstances where a detailed account of the events could hardly have been expected. It is entirely possible that the complainant was drawing together what she saw as the significant elements of what had occurred when making her first complaints.
3.That the complainant's evidence about how she came to touch the appellant's penis is different to what she told the police.
The suggestion here is that the complainant was inconsistent as to whether she voluntarily touched the penis before the appellant held her arm or whether he forced her hand down onto his penis. If there is an inconsistency in this regard it is far from clear from examination of the evidence. The complainant consistently stated that the appellant had exerted some force in pushing her hand down onto his penis. She accepted, however, that she had held her hand out towards him. She said that she did this because he told her to 'do it'. When she was asked the question: 'Did you touch his penis yourself?' she answered: 'No, I was like, on top of his penis'. It is entirely possible that by this she meant that her hand was above but not touching the appellant's penis. Even if there was a discrepancy between her statement saying that she lightly touched his penis before he forced her hand down on it, this is not a discrepancy of a type which would necessarily require rejection of the complainant's evidence. It is a matter of detail not substance.
It was also suggested as an inconsistency between the statement and her evidence that in the statement she referred to the appellant asking her to 'massage me' whereas in her evidence she said that he told her to 'touch it'. The complainant explained this by saying that she understood him to mean that he wanted her to massage his penis. However, she maintained that he had used the word 'touch it'.
4.That the complainant did not complain to Ms O'Connor when she came into the room.
Ms O'Connor said that she had only worked with the appellant on two occasions and had not worked at the aged care facility for long herself, having started at the end of August 2009. When asked why no complainant had been made to Ms O'Connor the complainant said that she did not know Ms O'Connor and could not talk to her. Furthermore, there is an obvious reason why a complaint might not have been made to Ms O'Connor and that was that the appellant was still present at the time. In any event, the complainant said that she had been told that if anything happened the proper course was to tell her supervisor. Bearing in mind that on any view a complaint was made within a very short time of this incident to the complainant's friend, her work coordinator and to senior staff at the aged care facility, it would be difficult to conclude that the failure to make any complaint to Ms O'Connor had any significance.
5.That the complainant gave evidence that she made two telephone calls to her friend, Flora, and not one as stated to the police.
In fact the complainant did not state what number of telephone calls there were. Her evidence was that in speaking to her friend she had been interrupted and told her friend to hang on but that she had then continued her conversation with her friend. It was Flora Lomginous who said that there were two connected telephone calls. If there is a discrepancy in this regard it is not one that appears to be material. There was no dispute between the complainant and her friend as to the substance of what was said.
6.That in the complainant's initial complaint there was no allegation of touching, merely that the appellant showed the complainant his penis.
In fact, the first complaint was made to Flora and did involve an allegation that the complainant had been asked to touch the appellant's penis. Furthermore, the handwritten note that the complainant was asked to write by Ms Badmin stated that she had done what the appellant told her to do because she feared he might hurt her. If the complainant was more circumspect in her telephone discussions and referred only to the appellant asking her to touch his penis and not that she had in fact touched it that might well be explained by an understandable reluctance to refer to the details of what had occurred on the telephone. The fact remains that she did refer to actual touching in the handwritten document completed at the time.
7.That the complainant did not mention to anyone that the appellant asked her for a massage before the alleged assault.
What appears to be alleged is that there is an inconsistency between the appellant's evidence as to the course of events on the day and her complaints. This submission assumes that the complaints were intended to be a complete and detailed account of all interactions between the appellant and the complainant during the course of that day. Given the complainant's evident distress and the circumstances in which she was making the complaints, it is not reasonable to assume that the complaints were intended to be such a detailed account. In the circumstances, it would be expected that a person in the position of the complainant would place emphasis on the most significant and recent of the events. The fact that at an earlier time on that day the appellant had asked for a massage of his back and that the complainant had, reluctantly, complied is not something that would necessarily be expected to be included in the oral complaints. In any event, she did refer to the appellant asking her to rub his back in the handwritten note.
8.That the evidence of the witness Ms O'Connor that she had seen the complainant earlier in the day massaging the appellant's back was denied by the complainant in her evidence.
In fact, the complainant did not deny having massaged the appellant's back, though it was in circumstances different from those described by Ms O'Connor. She did deny the incident described by Ms O'Connor. In this respect, there was an inconsistency between the two witnesses. It was not, however, an inconsistency as to a significant issue in the trial. Nor did it necessitate the rejection of the complainant's evidence.
In fact in regard to whether there had been a massage as described by the complainant, the appellant's own account to the police was consistent with the complainant and not with Ms O'Connor. This was also the case in regard to whether the appellant and the complainant had been in Nancy's room with the curtain closed. In these circumstances it would be open to conclude that Ms O'Connor was not a reliable witness.
9.That the complainant in her evidence said that she did not read her police statement and that the police officer who took it made changes using his words not hers.
This was said to contrast with what that police officer had said as to the way in which he took the statement. A statement from the police officer was tendered in evidence as Exhibit P4. This does not detract from the fact that the appellant said that she did not understand that she could make corrections, did not make any corrections and only read the statement quickly before signing it.
It must be recognised that the magistrate had the opportunity to observe the complainant giving evidence. In her reasons Her Honour stated that:
My estimation of Sarah is that there were language difficulties and that she felt vulnerable and confused by the events. Her written statement made to Nola was confusing but Sarah wanted to leave and the statement was not completed. Similarly with the police statement there were matters not included, but this was not deliberate and does not mean that the incident did not occur.
Earlier in her reasons the magistrate referred to the complainant having comprehension, spelling and language issues. Whilst the complainant did not require an interpreter she did refer to speaking in Arabic to her friend and the friend said that when they were together they spoke in a mix of Arabic and English. Though language difficulties were not explored in the evidence, I am prepared to accept that the magistrate's findings in regards to the complainant's difficulties with comprehension were based upon her observations of the complainant. This means that potential inconsistencies between the appellant's evidence and her statement to the police have possible explanations. It cannot necessarily be concluded that what appears to be an inconsistency is in fact that rather than being a misunderstanding.
Furthermore the matters raised by the appellant do not, when viewed in the context of the evidence as a whole, significantly detract from the testimony of the complainant. Her evidence as to what occurred was clear and she maintained the essential aspects of that evidence throughout a sustained cross‑examination. As to there having been an incident in which the appellant exposed his penis, asked her to touch it and used force to push her hand down, the complainant was entirely consistent.
There was also strong evidence of recent complaint. Such evidence can be used to bolster a complainant's credibility in so far as it is consistent with her evidence: Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769. The evidence of complaint to Flora, Ms Gilgallon, and the written note provided to Ms Badmin were made within a short time of the alleged incident and are consistent with the account given by the complainant in her evidence. That evidence strongly supported the credibility of the complaint.
There was also evidence of the complainant's distressed state. This came from prosecution witnesses who had spoken to or observed her at the time. Importantly, it also came from close circuit television footage that showed her making a telephone call at the reception desk, collapsing on the floor and being comforted by Ms Jones. Evidence of distress can be relevant both to credibility and as corroboration: Grubisic v State of WA [2011] WASCA 147 [107]. Before it can be so used other possible explanations for distress must be discounted. However, in this case no alternative explanation existed. The appellant did not repeat on oath his suggestion that he had rejected in strong terms a sexual advance from the complainant. Such suggestions were firmly rejected in cross‑examination by the complainant. In these circumstances I consider that the evidence of distress was evidence which both reinforced the credibility of the complainant and supported the truth of her evidence.
Conclusion
On my assessment of the whole of the evidence I am unable to conclude that it was not open for the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. The complainant's evidence did require careful consideration. Unless that evidence was capable of being accepted and of proving that an indecent assault had occurred, the appellant could not be convicted. In making this assessment it is necessary to consider the credibility and reliability of the complainant. This also requires careful consideration of matters that could detract from her evidence. It is true that there were some matters that had the potential to be seen as inconsistencies. Some of these were of marginal importance, which others were a matter of interpretation or were amenable to explanation. On the other hand the complainant's credibility was strongly supported by the complaint evidence and the evidence of her distress. In these circumstances, it remained open for the magistrate to accept the complainant's evidence and to be satisfied beyond reasonable doubt that the indecent assault had occurred as alleged. Accordingly, no miscarriage of justice has been demonstrated.
Leave of the court is required in respect of each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA). Section 9(2) of the Act provides that the court must not give leave to appeal on a ground unless it is satisfied the ground has a reasonable prospect of succeeding. This requires that the ground has a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193 [56]; (2005) 30 WAR 473, 487. Unless the court gives leave to appeal in respect of at least one ground of appeal the appeal is dismissed: s 9(3) of the Act.
In the present case it is necessary to consider whether an extension of time should be granted. If not, the question of leave falls away. As I have noted earlier, the delay here is significant and an extension should not be granted unless there are either exceptional circumstances or there would be a miscarriage of justice if an extension was not granted. For the reasons I have given there would not be a miscarriage of justice if an extension was refused. Accordingly, an extension of time must be refused and the appeal must be dismissed.
Orders
1.Extension of time to appeal refused.
2.Appeal dismissed.
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