Fenton v Lane - [2015] TASSC 61

[2015] TASSC 61

COURT: SUPREME COURT OF TASMANIA

CITATION: Fenton v Lane [2015] TASSC 61

PARTIES:  FENTON, Darren John
  v
  LANE, Sergeant Richard

SUNDRAM, Lakshmi

FILE NO:  120/2015
DELIVERED ON:  10 December 2015
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2015
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Indecent assault – Error of law and or relating to facts – Sufficiency of reasons – Whether magistrate erred in not giving adequate consideration to reliability of complainants, separate from issue of honesty.

Police Offences Act 1935 (Tas), ss 35(3).
Criminal Code (Tas), s 127(1).
Douglass v The Queen (2012) 290 ALR 699; Cawthray v The Queen [2013] NSWCCA 105; Phillips v Arnold (2009) 19 Tas R 21; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.
Aus Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondents:  J Rudolf
Solicitors:
             Applicant:  E R Henry Wherrett & Benjamin
             Respondents:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 61
Number of paragraphs: 70

Serial No 61/2015
File No 120/2015

DARREN JOHN FENTON v SERGEANT RICHARD LANE and
LAKSHMI SUNDRAM

REASONS FOR JUDGMENT WOOD J

10 December 2015

The applicant pleaded not guilty to two charges of assault with indecent intent and one charge of indecent assault. The three charges involve two complainants, MS and IR, who were both 13 years of age. The two charges relating to the complainant, MS are as follows:
"Date of Offence: 27/1/14
Charge Indecent Assault
Breach of: Section 127 (1) Criminal Code, 1924.
PARTICULARS: You are charged with, on the 27^th January, 2014 at Dolphin Sands in Tasmania, unlawfully and indecently assaulting another person namely, [MS], by touching her breasts, both over and underneath her clothing and touching her body underneath her shorts.
AND FURTHER: 2 –
CHARGE: Assault with indecent intent.
BREACH OF: Section 35(3) Police Offences Act, 1935.
PARTICULARS: You are charged with on the 27^th January, 2014 at Dolphin Sands in Tasmania, with indecent intent, assaulting [MS], by touching her with your hand on her breasts over her clothing."
The single charge relating to IR is one of assault with indecent intent and is as follows:
"Date of Offence: 27/1/14
Charge Assault with indecent intent.
Breach of: Section 35 (3) Police Offences Act, 1935.
Particulars: You are charged with on the 27^th January, 2014 at Dolphin Sands in Tasmania, with indecent intent, assaulting [IR], by touching her with your hand on her breasts over her clothing."
The three charges were heard together, the applicant having elected to be dealt with summarily on the charge of indecent assault. The hearing was conducted before Chief Magistrate Mr M Hill, and occupied three days over the course of three months. The first sitting day was on 16 July 2014 and the last day when evidence was received was on 9 October 2014. The parties provided written submissions and subsequently, on 4 February 2015, the learned magistrate delivered written reasons for his decision. The applicant was found guilty of all three charges.
The applicant seeks to review the decision on three grounds. Originally, there were five grounds but grounds 1 and 3 were abandoned.
Ground 2, as amended, is that:
"the learned magistrate erred in law in failing to give any or any sufficient reason in finding that he did not get an impression of concoction in circumstances where there was evidence of opportunity for concoction and of discussion between the witnesses."
Ground 4, as amended, is that:
"the learned magistrate erred in fact and/or in law in failing to reconcile the inconsistencies in the evidence."
Ground 5:
"the learned magistrate erred in law in failing to give any or any sufficient reason why he accepted the evidence of the complainants despite finding each complainant to be half asleep or drowsy and subsequently in a state of shock at the relevant time and/or affording such weight to the complainant's [sic] evidence which in law could not be so afforded."

The prosecution case

The offences are alleged to have been committed in the early hours of the morning on 27 January 2014 on the property of Mr C at Dolphin Sands. The S family was camping on the property for the Australia Day long weekend. IR was a friend of MS and had been invited to stay with the S family.
The complainants, IR and MS, were sharing a tent on the property, and Mr and Mrs S, MS's father and mother, were staying in a caravan some 30 metres away. The property is about 29 acres. There was a shed on the property and an entertaining area with amenities such as a shower, toilet, fridge, couches, a television, a table and seats.
Mr C joined them on Saturday evening. On Sunday evening the applicant arrived with his son, who was approximately 18 years of age. The applicant, a friend of Mr C, was not known to the S family. During the course of the evening there was a social gathering in the shed. The applicant consumed alcohol in the company of Mr S and Mr C. Mrs S and the two complainants were also present for part of the evening.
It is the prosecution case that, during the evening, the applicant made some inappropriate comments towards the complainants. The evidence was disputed. Mrs S gave evidence that he made a remark to her daughter that she was near naked. MS was wearing a t-shirt and shorts; the shorts were not short shorts. Her mother tried to suggest MS put some pants on. Mrs S gave evidence that he also made a comment about IR's eyebrows. The applicant asked IR to stand under the fluorescent lights so he could see what colour her eyebrows were. Mr S gave evidence. He recalled something triggered his brain to think that something that was said by the applicant was wrong. He turned around and said to the applicant, "Fuck off mate they're only 13".
There was some uncontentious evidence about the events later in the night. At about midnight the complainants had gone to watch a movie in the tent. Mrs S and her son had retired to the caravan. Mr S, Mr C, the applicant and his son remained in the entertainment area consuming alcohol. At about 2.30am, the applicant and his son went to leave, but the applicant's car would not start. It was found that the battery had a broken terminal lead and Mr S and Mr C helped him fix that. That took some time and once it was fixed, the applicant and his son drove back to the applicant's shack. It is the prosecution case that, while Mr S and Mr C were preoccupied with fixing the applicant's car, the applicant left them and went to the complainants' tent and committed the offences.
As mentioned, the complainants had left the adults at approximately midnight and went to their tent to watch a movie. They fell asleep during the movie and woke to find the applicant in the tent. It was not in issue that the applicant went into the complainants' tent. The issue at trial was what transpired when he was in the tent and whether the applicant assaulted the complainants as alleged.
The complainants each separately participated in an interview with police. Both of the interviews were conducted on 28 January 2014. The interviews were tendered during the hearing and played to the court pursuant to the provisions of the Evidence (Children and Special Witnesses) Act 2001, s 5. Their respective interviews formed the substance of their evidence-in-chief. In addition, they gave evidence during the hearing by audio-visual link from the remote witness room.
In summary, MS's evidence was as follows. She had woken up and "the man" was on top of her and she did not realise what was happening. The man had said to her, "Do you want me to turn off the computer?" MS replied, "Just leave it", and rolled over, and then he started touching her. At first, his hand was on top of her clothing. He was rubbing his hand up and down. She pushed him a bit away. Initially, she was non-specific about where she was touched. Later in her interview, she said when she rolled over, "he started touching me up my top and down my shorts". He was touching her both underneath and on top of her clothing. She tried to sit up but he would not let her, so she pushed him away. He went over to IR, and MS then tried to wake her. He said, "Are you all right [I]?" IR said that she was just trying to sleep. The man started touching IR, his hand was "near her breasts". Then he came back over to MS and started touching MS again. This time it was on top of her clothing. Again, she pushed him away. Later in her interview, MS stated that after he leant over IR and returned to her, "that's when he started touching me under my top and under my pants". He was rubbing his hand under her top, above her bra.
During cross-examination she said she was not sure of the timing, but remembered "it all happened in the time he was in the tent". On the second occasion he touched her, MS said that she "really pushed him that time". He looked at her and then at IR and went out of the tent, and she heard the car drive off. MS gave evidence that, after about two to three minutes, they left the tent. They went to the caravan and MS told her mother that "he was in my tent". When she calmed down, she told her mother what had happened.
IR gave an account as follows. She woke up and the man was on top of MS saying, "are you okay [I], do you need help with sleeping?" He had his hand on her stomach, and then he moved his hand up her stomach and felt her breasts. He touched her over her clothing. She pushed his hand away and rolled over to prevent him touching anywhere else. The man left and they sat in the tent for about five minutes. They went to the caravan and told MS's mother and father what had happened.
Mrs S gave evidence of what is known as "complaint" evidence. At about 3am she woke up to the door slamming and the girls coming in the caravan. Mrs S said to them, "What's going on?" MS said, "That man was in the tent". Mrs S asked what had happened and MS said, "he was here Mum", and MS placed her hand up to her face in front of her nose. She said she could see his face and that he was on top of her. Meanwhile, IR was very quiet and she was crying. Both of them were shaking. Mrs S got them to sit down on the settee and told them to take a breath. She asked MS whether he used her name and MS said no. Mrs S gave evidence that MS was explaining how the tent was unzipped when IR did "blurt out" that he used IR's name. Mrs S gave evidence that she asked the complainants what he had said. IR told her that she woke, and he looked at her and said, "What are you doing [I]?" IR said, "He did this" and she gestured from her shoulder across her chest, down. IR told Mrs S that he had said to her, "Do you want some help with that?" Mrs S looked over to MS and she said, "Yeah, he touched me too". MS said he touched her across her chest and up her shorts.
The applicant participated in a police interview on 31 January 2014. During the course of the interview, he admitted entering the tent but denied assaulting the complainants. He gave the following account of what occurred. When he was first asked whether there was anything he would like to say in respect of an allegation that he had entered the complainants' tent and there was, euphemistically described as, "interaction" he responded:
"AOh I can't really recall the matter that much. Um I do believe I entered the tent yes but there was music going at the time and I think I woke the girls up to let them know that the music was going cause it was reasonably loud at the time even though it was early in the morning.
QCan you tell me anything more about this music?
ANa. It was on a computer on a laptop I think, that's all I know."
He was asked about his sobriety when he drove home and he said that he was drunk. He said that he, Mr C and Mr S spent "probably a good hour if not more" working on his car battery. He told police that he went into the girls' tent "while we were fixing the vehicle". He was asked to tell the police everything about when he went into the tent.
"AWhile I was fixing the vehicle we um oh [J] kept going back and forth to his car to get some screws and different things. I went over to, in the bush and went to the toilet and then I could hear the music going and I went over and um entered the tent and I think, I'm not sure whether the girls were awake or not and I said to them I said, 'Oh you might want to, you're music's going, you might want to turn the music down a little bit, you're wasting your computer'. I think, I can't remember me exact words I said.
QWhat happened next?
AOh I don't think, one of the girls woke up I think and I can't really remember. I think she turned it off and then I left."
The specific allegations of assault were put to him and denied. He stated:
"Q… [MS] claims specifically that uh you assaulted her by touching her on her breasts and by uh placing your hands under her shorts. Have you got anything to say in relation to that?
ANo it's not true.
Q[IR] says that you assaulted her by attempting to place your hands on her breasts over her clothing.
ANo. I tried to wake one of the girls up like by putting my hand out like that and like wriggling them. That was the only time I touched them.
QWhich girl did you try to wake up?
AWell both of them at the one, at yeah both of them.
QYou said that …
AThe one, the one that was closest to the computer was the one I initially tried to wake up."
He was asked about the response of the complainants, and he said, "Well hardly any cause they were like half asleep". He said he woke up the girl on the left hand side and "she didn't wake up initially and that's when I tried to wake the other one up … And then she woke up". He was asked how he tried to wake them up and he said he wriggled their legs. During the interview the following exchange occurred:
"QRight ok. Alright as I said to you um the, these girls have alleged and in particular uh [M] alleges that you touched her with your hands on her breasts and that you touched her under her shorts between her legs.
A     Na. Well she was covered up so how could I do that?
Q     and [I] alleges that you touched her on breasts over her clothing.
A     No. They were both in sleeping bags as far as I know so."
He said he went probably a foot into the tent and he thought he was kneeling outside the tent. Later, he said he did not go in the tent, he knelt outside the tent with his top half inside the tent.
He was asked why he told the girls to turn the music down when the tent was on a 50 acre block, with no neighbours and no one to disturb, and the applicant said as follows:
" AOh well you're probably right, there was probably nobody to disturb but I don't know I'm just a person that turns things off and you know. I don't like leaving things running, I don't like things going on unnecessarily so you know I just went over and told them to turn it off and save their computer.
QThese girls, [M] and [I], did you say you'd never met them before?
ANa I've never met em before.
QDo you think um and can you comment on, I'm just a little bit confused here, why you as an adult male who don't know these girls, never met before, why you would go into their tent in the early hours of the morning and invite them to turn their music down when there's no real reason for that.
AWhy I did it? Oh I don't have any reason why I did it. I, you know in hindsight I probably shouldn't have done. I prob…not knowing them I probably scared them being early in the morning. It wasn't my intention to do that but …
QIt just seems a bit unusual to me …
AIt probably does yeah and even thinking about it now I probably, myself it's probably unusual."
He was asked about whether he had made any remarks earlier in the evening about what the complainants were wearing or about their appearance. He said not that he could recall.
The applicant did not give evidence and relied upon the denials of the allegations in his police interview.

The decision

The learned Chief Magistrate delivered written reasons. He began by referring to the charge and the elements of the offences. He summarised the evidence of each of the witnesses and the applicant's police interview. He referred to the submissions made on behalf of the prosecution and defence. His Honour then gave the following reasons which detail his observations, findings of fact and conclusions:
"I accept the evidence that the defendant made certain remarks about the girls prior to entering their tent in the early hours of the morning. I sought some assistance as to what I make of this evidence if I accepted it. I think that evidence puts the later incidents in some context.
Having seen and heard the witnesses in this matter over a long period of time I must say that I was extremely impressed with the evidence of the two young complainants.
As for [M], I assessed her as a confident impressive young witness who gave a clear and lucid account of the events despite some obvious distress.
I noted [I] as a cautious earnest witness.
I noted Mrs [S] as a very nervous witness who appeared to be genuine and honest in giving her recall of events to the court.
I take into account the denials made in the record of interview and adopt the approach as it was explained by Malcolm CJ and Murray J in R v McCarrol [2004] WASCA 131; BC200404491 at [19]:
The law as to the reception in evidence of a 'mixed' statement, one containing admissions or declarations against interest by an accused person and one containing exculpatory statements, is clear: Mule v R [2004] WASCA 7; BC200400034 … Where the prosecution is permitted to tender such a statement, relying upon its confessional qualities, then it is obliged to accept in evidence the exculpatory material which may in turn be relied upon by the accused. All of the statement becomes evidence available to the jury for their consideration, but the admissions and the exculpatory material need not, and indeed probably should not in the generality of cases, be accorded equal weight.
Having considered all the evidence I accept the evidence of the complainants as to what happened in the tent. I reject the defendant's explanation of why he went to the tent in the first place. As his counsel submits that of itself is not evidence of guilt but it is an issue that I am satisfied he was not truthful about when he was spoken to by police.
I accept the prosecutor's assessment of the defendant's interview. Giving him all due credit for the position in which he was in, I think he did underestimate the extent of his intoxication and I thought in a number of areas he was defensive and not totally frank.
In this regard I refer particularly to the passages at pages 16 and 19 of his interview to which I have referred.
I reject his answers in relation to his reason for asking the girls to turn the music down. Mr [S]'s unchallenged evidence was that he could not hear sounds from the tent from where he was and on the evidence the defendant was in that area too.
I accept that there are some inconsistencies in the evidence of both [M] and [I] both between themselves and between Mrs [S]. It is also clear in my view each was either half asleep or drowsy when the defendant approached them in the tent and subsequently were in a state of shock and upset. I tend to prefer the evidence of Mrs [S] as to the events immediately following the girls coming into the caravan. Despite this I did not get an impression of concoction nor any recent invention when any of the three were giving their evidence. They were cross-examined at length by senior counsel and at the end of the day despite some inconsistencies which I consider to be minor; I consider their evidence honest and acceptable and at the end of the day I accept the defendant acted in the way they each said he did.
I accept the defendant assaulted them in the manner they each allege and that in the circumstances those assaults were both in indecent circumstances and with indecent intent.
I find against the defendant. I am satisfied beyond reasonable doubt he assaulted [M] in the manner alleged and find proved counts 1 and 2 on complaint 1720.
I am further satisfied beyond reasonable doubt he assaulted [I] in the manner alleged in complaint 3350 and I find that count proved."

It may be noted that the specific passages referred to which appear at pages 16 and 19 of the interview are set out in the summary above at pars[21] and [23] respectively.
The grounds of review are concerned with the adequacy of the Chief Magistrate's reasons and involve consideration of whether his Honour complied with his obligation to give adequate reasons. It is convenient, at this stage, to consider this obligation and what it involves.

Obligation to give adequate reasons

A failure to give adequate reasons when required is an error of law: Pettit v Dunkley [1971] 1 NSWLR 376. There is no question that the Chief Magistrate was required to give reasons in this case. The enquiry as to adequacy of reasons is upon what is essential, as required by law, not upon reasons that may be optimal or desirable. The principles regarding the content of the obligation to give reasons are well-settled. There is no formula or exhaustive check-list that can be applied in assessing whether the reasons are adequate. The extent of the reasons that are required depends on the nature and circumstances of each case. The purpose of reasons informs the nature of the obligation. The reasons need to contain enough detail for the parties to understand the reasoning which led to the conclusion reached, and to enable the appellate court to examine the decision and determine an appeal: Phillips v Arnold (2009) 19 Tas R 21, per Crawford CJ at [64], and Robinson v Chatters [2010] TASSC 66 at [74]-[77]. The reasons must do justice to the issues posed by the parties' cases: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [58] and [59]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per Kirby P at 259.
The extent and content of the reasons will also depend upon the way the trial was conducted and the arguments that were presented: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 442; R v Keyte (2000) 78 SASR 68. It must be borne in mind that the resolution of a criminal trial depends upon whether the evidence, taken as a whole, proves the elements of the offence beyond reasonable doubt and does not depend upon whether the evidence of one witness is preferred to that of another: Douglass v The Queen (2012) 290 ALR 699 at [12]. Acceptance of a complainant as truthful is not inconsistent with the existence of a reasonable doubt as to guilt. Therefore, even if a complainant is accepted as truthful, distinct questions remain such as, whether a defendant's evidence raises a reasonable doubt, and whether the complainant's account may be honest but not reliable. An absence of reasons sufficient to exclude those possibilities may constitute legal error: Douglass v The Queen, per the judgment of the Court at [12]-[15]; see also, Cawthray v The Queen [2013] NSWCCA 105, per Hoeben CJ at CL at 1, Adams J at [80] and [95] Beech-Jones J at [132].

An overview of the grounds

The three grounds of review are aspects of a single assertion of error, in that the Chief Magistrate failed to give adequate reasons. The grounds assert that the Chief Magistrate failed to provide reasons largely, as to whether the complainants' accounts were reliable. The individual grounds each highlight matters said to give rise to unreliability: ground 2 – opportunity for concoction and discussions; ground 4 – inconsistencies; and ground 5 – the drowsy condition of the complainants at the time of the incident. The contention is that, in light of these matters, additional reasons were required.

Ground 2: concoction, discussion and suggestibility

Ground 2 rests on evidence that the complainants had an opportunity to concoct their accounts, and that they had discussions about the incident. It was submitted at the hearing of the review that the issue of concoction by the complainants was a live issue on the trial. In brief, the submissions were as follows. Each complainant was present when it is alleged that the applicant assaulted the other complainant. The complainants were in the tent together, after the applicant left, for a couple of minutes before they went to the caravan and spoke to Mrs S. They had the opportunity, at that time, to discuss what had happened. There was evidence from MS that the complainants had some discussion in the tent about what had happened. Further, each complainant was present at the time that the other complainant spoke to Mrs S in the caravan. According to Mrs S, MS was present when IR complained to Mrs S, gesturing across her own chest. It was after IR had complained in MS's presence that MS made a complaint that she was touched by the applicant.
It was submitted at the hearing of the review that given that the complainants had discussed what had happened, at some stage or stages before they were interviewed, there was a risk that MS had invented her evidence as a result of things said by IR. Further, it was contended that there was a real risk that nothing amounting to the offences alleged in either complaint happened, but that each complainant alleged offending, as a consequence of having talked with or heard the other. The contention was that there is "clear evidence of the possibility of concoction which the learned magistrate was bound to determine and the learned magistrate was in error when he found that there was no basis for concoction". This contention strays into an assertion of error in the finding, when it needs to be remembered that the ground of review is confined to an assertion of inadequacy of reasons for the finding. A submission of error in the finding was not pressed, undoubtedly it was open to a reasonable magistrate to accept the evidence of the complainants and to find that there had not been concoction.
In submitting that fulsome reasons were required, it was argued that there was not just an opportunity for concoction but actual concoction or, if not, at least it was shown that the complainants were suggestible. Before turning to the reasons, it is worthwhile considering examples relied upon by the applicant as evidence of concoction, opportunity for concoction, and suggestibility.
There was a passage of evidence relied upon in the cross-examination of IR:
"QYour evidence was I think that you went from the tent to the caravan because [M] wanted to go to the toilet?
A        Yes
Q        So you weren't going to over there to tell anybody what happened?
ANot initially we hadn't until [Mrs S] had mentioned Darren's name and said something."
Shortly after:
QDid anybody – did either you or [M] say anything when you first walked in?
A        No." (Footnotes omitted.)
This is evidence that neither of the complainants said anything until Mrs S mentioned the applicant's name. However, this has dubious significance. This not a case where identity is in issue. The issue is what the applicant did. There is no suggestion, in cross-examination or in the evidence, of any suggestion from Mrs S with respect to the applicant's conduct.
There was evidence relied upon to show that MS was suggestible. During her interview, she had agreed to a suggestion that the applicant had said, "Do you need a hand sleeping" to IR when initially she had not mentioned a question by the applicant in those terms, and her account to police had been that the applicant had said, "Are you alright [I]". It was submitted that this is significant because IR did not give evidence of the applicant asking the question, "Do you need a hand sleeping". Instead, IR gave the following account:
"Q Yep.
AAnd then he said 'Are you' he said 'Are you okay [I]?' and I said 'Yeah' and like rolled over.
QYep.
AAnd then um, he asked 'What are you doing?', I said 'Sleeping' and he's like 'Oh do you want help with that?' and I said 'No', he asked that question twice."
It was submitted that because IR had not mentioned a question from the applicant about whether she needed a hand sleeping, this likely did not happen, demonstrating that MS was suggestible. I am not convinced that the accounts are different, and IR may be referring to a question in the same terms as that put to MS. In any event, earlier in IR's interview, before the passage relied upon, IR had given the following account:
"Q Um, can you outline that again for me if you would?
AWell me and [M] went to um, our tent and watched a, a few movies and fell, fell asleep and um, we woke up to um, the guy in our tent and he was on top of [M] and was, was feeling certain places and kept on like saying 'Oh, are you okay [I], do you need help with sleeping?' and stuff."
IR's account that the applicant said, "do you need help with sleeping" is so similar to the words put to MS which she agreed with, "Do you need a hand sleeping", that the likely explanation for the commonality in their accounts is that both complainants heard the applicant saying words to that effect. Consequently, the submission about MS's suggestibility falls away.
Other responses in MS's interview were relied upon as demonstrating opportunity for concoction and a real risk of concoction. MS said that, "he started touching [I]", and she agreed that he leant over to IR and was "touching her 'cause I saw that whilst, and whilst he was doing that I sat up". She was asked, "What did you see him doing?" and she answered, "his hand was near her breasts". Later, she was asked what she saw and whether she saw the applicant touching IR on top of or underneath her clothing, and she said that she "didn't see […] but […] his arm was in that area". When asked, "So you could see his arm?" MS replied "Yep, and she had told me that that's what had happened".
It was submitted that matters the complainants asserted that they had seen were in fact matters told to each other. Another passage in MS's interview was relied upon, during which MS told the police that "we talked about it" referring to a discussion she had had with IR before they entered the caravan. It was submitted that a conversation had occurred between the complainants of a nature as to lead to a real risk of concoction or collusion. An example relied upon by the applicant in relation to IR and her police interview was her assertion to police that she thought that, at one point, MS had pushed the applicant's hand away. When asked what made her think that, she replied that that was what MS had told her.
The following observations are made about the evidence of the complainants making reference in their police interviews to discussions with the other when recounting the applicant's conduct. It is necessary to keep in mind that the issue arising in the context of this review is whether this reference to discussions reflected poorly on the reliability of the complainants, such that further reasons were required. The example of MS's account of the applicant touching IR and that it was in fact based on what IR told her, must be seen in context. She was being asked to describe what had happened. MS stated that she saw the applicant's hand "near" the upper part of IR's body. She clarified, of her own accord, that while she did not see actual touching, she did see his hand in that area. Given that she was being asked to account for what happened, it is unsurprising that a complainant, doing her best to assist police, would answer questions asked of her, not only with reference to what she observed, but also what she was told by another person who was the person assaulted and who was assaulted in her presence. There is nothing at all suspect about that. The same may be said for the example in IR's interview about MS pushing the applicant's hand away. The police interview with each complainant is the initial unedited account given by a child witness in response to questions about the incident. It is to be contrasted with evidence given by a witness during a trial when hearsay and other legally inadmissible material in the witness' account is identified by the prosecutor and not led during the oral evidence.
Significantly, both complainants, in the two examples relied upon, demonstrated candour in referring to discussions with each other. They identified the limits of their recollection and identified the aspects of their account which were based on information that the other had revealed during discussions. Contrary to the submissions, these examples did not reflect poorly on the reliability of the evidence given by the complainants.
One of the submissions was that there was evidence of actual concoction and invention. The term concoction, in the context of a hearing involving two complainants, would ordinarily mean collusion and deliberate fabrication. This seems to be the sense in which the word "concoction" was used by the applicant's counsel in the submissions before the Chief Magistrate. The examples relied upon and examined above are not indicative of concoction. There was just no evidence at all of that. Indeed, it was not suggested to the complainants during cross-examination that they had concocted or invented their accounts. The reasons of the Chief Magistrate referred to concoction, in the deliberate sense. His Honour noted:
"Despite this I did not get an impression of concoction nor any recent invention when any of the three were giving their evidence … ."
Clearly, his Honour expressly rejected concoction in the form of invention or fabrication. The Chief Magistrate's reasons were ample in that regard in view of the evidence.
As mentioned, the arguments for the applicant before the Chief Magistrate also made reference to matters such as "suggestibility" of the complainants and the risk of influence. In effect, the submissions raised the risk that the complainants had given mistaken evidence about events. Thus, one of the possibilities canvassed in submissions before the Chief Magistrate was whether the complainants were sincere witnesses giving honest accounts which may have been inaccurate or mistaken as to the events, not only as to details but as to whether the event actually occurred.
The critical question is whether the Chief Magistrate's reasons were sufficient, given the evidence before his Honour of discussions between the complainants and the potential for influence. The extent to which reliability of a complainant or an eye-witness must be addressed in the reasons, as a topic separate from honesty, depends on the evidence and the issues raised, and the extent to which reliability is in issue. Ultimately, it is a question of degree dependent on the nature and circumstances of each case. In some cases, the evidence raises clear and well-founded concerns about the reliability of the evidence of a complainant, separate from concerns about honesty. In Douglass, the High Court considered a case where reliability of the complainant was a significant issue, separate from the honesty of the witness. The complainant was just under 4 years old at the time of the alleged offence, and 5 years and 9 months of age at the time of trial. There were initial denials by the complainant of the offending that was later asserted by the complainant, and inconsistencies in her evidence which suggested her evidence was unreliable. The High Court held that there was error by the trial judge in not assessing the reliability of the complainant's evidence, and in only assessing her honesty as a witness. Cawthray was another example where there were matters raised about the reliability of the complainant's evidence. These matters included that the complainant first made a complaint some fours year after the alleged incident (she was 7 or 8 years of age at the time of the incident); and her evidence at trial was given four to five years after the alleged offence. In the interim, she was exposed to influences and adverse opinions relating to the appellant and information about him, such as other occasions of sexual offending, and that he had been to gaol. In that timeframe she was continually asked by her mother whether the applicant had "interfered" with her sexually, which she had denied. The complainant tied the timing of the incident to kitchen renovations and when the appellant was living with them. There was evidence these renovations occurred after he ceased living with them. It was considered that there were various reasonable possibilities, such as confabulation, which were overlooked in the reasons, and there was an obligation to consider the reliability of the complainant's evidence distinct from her honesty as a witness.
I accept that in this case, the reliability of the complainants' evidence was an issue on the trial arising from the evidence relating to discussions between the complainants, and submissions raised the risk of concoction and maintained that the complainants were suggestible. In relation to discussions between the complainants there was evidence they had occurred. The complainants had an opportunity in the tent, albeit for a few minutes, to discuss what had happened, and in fact did talk about what had happened. The complainants were present and heard the complaint given by the other complainant to Mrs S. Further, they discussed aspects of the events before speaking with police in their respective interviews. As noted, the complainants reveal as much in those interviews.
However, the evidence did not support the remaining concerns raised by the defence about the reliability of the complainants. The so-called real risk of concoction amounted to no more than the discussions I have mentioned between the complainants. While the evidence of discussions warranted scrutiny, it should also be noted that it is not inherently suspect for two complainants, given the circumstances in which the alleged offending occurred, their age and friendship, to have had those discussions. It can be seen from the above examination of the examples relied upon by the applicant that they are not indicative of the complainants having been suggestible, or having been influenced by discussions with the other complainant or Mrs S.
There is a lack of other circumstances suggesting unreliability. This is not a case involving particularly young complainants, they were both aged 13. They made complaints almost immediately, and were interviewed by police within 48 hours of the incident. While there had been discussions between the complainants, and these were referred to in their interviews, both complainants distinguished between their recollections and observations and what they had been told during discussions.
I conclude that it was a case where the reliability of the complainants, as distinct from their honesty, was raised in submissions, but there was a lack of evidentiary support for the contentions beyond the evidence of discussions having occurred. The evidence did not reasonably suggest there were any issues of significance bearing on an assessment of the complainants as reliable historians. I turn to consider the adequacy of the Chief Magistrate's reasons.
His Honour's reasons as to this issue provided:
·     He was "extremely impressed" with the evidence of the complainants.
·     MS was a "confident impressive young witness who gave a clear and lucid account".
·     IR was a cautious and earnest witness.
·     Mrs S was "genuine and honest" in giving her recall of events.
·     He accepted the evidence of the complainants as to what happened in the tent.
·     The evidence of the complainants and Mrs S was honest and acceptable.
·     Inconsistencies among the three were considered to be minor.
While these reasons focussed on the honesty and sincerity of the complainants, they also assessed more broadly the complainants' evidence. Once the Chief Magistrate expressed his finding that he was "extremely impressed" by their evidence and that it was accepted by him, that finding implicitly rejected the submission of a risk of influence and suggestibility. It is evident from his Honour's reasons and that general finding, that he thereby rejected the attack on their veracity and reliability in all its forms. His Honour could not have found the complainants' evidence to be extremely impressive if he considered that either complainant may have been influenced by the other, or that either was suggestible, or that it was possible that their accounts were unreliable. His Honour did not need to discuss an opportunity for concoction and a risk of influence at a theoretical level if he rejected the reality of such in the case before him. It is sufficiently clear that his Honour did so.

It was argued that the Chief Magistrate's reasons were confined to his assessment of the demeanour of the complainants. While his reasons covered matters of demeanour, for example, he did not get an impression of concoction or recent invention when the complainants were giving their evidence, and he described one as "confident" and the other as "earnest", his findings were not confined to demeanour. For example, the observation that IR was a cautious witness includes the consideration she gave to questions asked of her, and also encompasses the content of her evidence. To describe the evidence of the complainants as "extremely impressive" covers, not just their demeanour, but the content of their evidence, and would include matters such as internal consistency and the accuracy of their evidence.
It is to be remembered that the concern here is with adequate reasons, not optimal reasons. As I have mentioned, in some cases the issue of influence or confabulation might be such that it requires specific findings, in addition to general findings, about credit. There may be inherent qualities regarding a complainant's evidence giving rise to concerns about reliability. Douglass was one such example; Cawthray was another. This is a case where it would have been preferable if his Honour had dealt with reliability expressly in his reasons, rather than leaving his conclusions on this issue to be divined from more general remarks. However, given the observations I have made about the evidence in this case, this was not a case where more explicit reasons were essential. As noted, influence and suggestibility were not borne out by a consideration of the complainants' evidence, and in fact, arguably the examples relied on by the applicant were indicative of reliable evidence. There were other positive considerations also bearing on the issue of reliability, such as the contemporaneous police interviews conducted with each complainant. I conclude that the Chief Magistrate's reasons were adequate in light of the evidence and the issues raised with respect to discussions and the risk of influence and suggestibility.

Ground 4: inconsistencies

It is submitted that there were significant inconsistencies in the evidence of the complainants and Mrs S and, given the nature of the inconsistencies, it was necessary for them to be addressed in light of his Honour's approach in accepting the evidence of the complainants. As I understand the argument, it was that it was necessary for his Honour to give reasons for concluding that, notwithstanding the inconsistencies, the evidence of the witnesses was reliable. This was what was meant by ground 4 and the assertion that it was necessary to reconcile the inconsistencies. It was, again, a grievance about sufficiency of reasons.
It was submitted for the respondents that there was no need for further reasons as the learned magistrate assessed the inconsistencies to be minor and that that assessment was reasonable.
Counsel for the applicant drew support from the Chief Magistrate initially describing the inconsistencies as of some significance, and later, describing them as minor. I do not see that anything turns on this. It seems that, at first, his Honour was referring to how the inconsistencies were characterised in submissions by the applicant and, when he later referred to them as minor, he was describing his own view about them, in light of his findings regarding matters such as the veracity of the complainants.
I turn to consider the inconsistencies and whether the inconsistencies had to be seen as pivotal and significant. It was submitted that there were inconsistencies in the evidence of MS regarding the two episodes of touching that she was subjected to. At one stage of her interview, she asserted that in the first episode there was significant touching, including under and over her clothing to the area of her chest and vagina; and in the second episode, after IR was touched, there was touching to the same areas as before but it was brief in nature and merely on the outside of her clothing. It was submitted that this account was not maintained consistently in the interview and during cross-examination, and that differing accounts were given as to what happened during each of those two episodes. I deal first with the interview.
At one point during her interview, MS referred to the second episode and did not mention any conduct of touching at all. However, it does not seem to me that she was purporting to describe the applicant's conduct in touching her at that time, but rather was mentioning the sequence of other matters:
"Q       Mhm.
AAnd then he looked at her, then he looked at me, then he like came back over to me and then he said to me 'Do you want me to turn the music off? And by that he meant the computer –
…
Q        Yep.
AAnd I just said 'Leave it and go away' and then I pushed him and then he was looking at me funny and then he, I pushed him again and then like nudged him and then he looked at us and then got out of the tent."
A very short time later she was asked:
"Q       Okay. Did he touch you on top of or underneath your clothing?
AUnderneath and on top but when he was, he started off on top and then when he came back over to me after he left [I] it was on top."
This response is said to be inconsistent with the next responses in the interview:
"QOkay. So you say he started off on top so the first time when you've woken up is that where he's touching?
AYes.
QOkay. And then he's gone and leant over [I] like you said and then come back to you.
AAnd that's when he started touching me under my top and under my pants."
It is just as feasible though, that MS was still talking about the first episode of touching. It was not clarified in the interview.
In cross-examination MS stated that there was touching of the areas around her belt-line, her breast under her shirt, and touching under her shorts. Again, the effect of her evidence was that the applicant's conduct was more extensive in the first episode. She agreed that the touching under her shorts occurred in the earlier episode, but she was not positive of whether it was during the earlier or later episode. MS stated, "I don't remember it in a time – like in a series of events", and she reiterated a number of times that she did not recall the timing. She was at pains to state that she did not know during which episode it occurred. She just remembered that, "it all happened in the time he was in the tent". Noting the complainant's evidence during cross-examination that she was not then sure about the timing, I do not see her evidence as being inconsistent with her evidence during the police interview. If it was properly regarded as an inconsistency, it was open to the learned Chief Magistrate to regard it as minor.
The other area of supposed inconsistency was in relation to the account of IR and the applicant's motion of touching her breast. In her interview, she described him moving his hand from her stomach up to her breast, while Mrs S's evidence was that when IR made a complaint minutes later, she demonstrated an action from shoulder downwards, over her breast. It is worth noting that IR did not agree that she had gestured as stated by Mrs S.
If the Chief Magistrate accepted the evidence of Mrs S, it was open to him to regard the gesture as different from the account given by IR, but to regard the difference as minor. It was not the kind of factual matter that had to be specifically addressed in the reasons, and describing it and other differences as minor was sufficient.
In conclusion, having regard to my comments, the inconsistencies were not of a kind that they had to be seen as significant or telling in an assessment of the complainants' credibility. The primary issue with respect to this ground of review regarding inconsistencies, is the sufficiency of his Honour's reasons. In my view, his Honour did not need to refer to each inconsistency. His Honour characterised them as minor, and in doing so, disclosed his conclusion about them. It is evident that his Honour did not consider that they had significance. It is implicit in the reasons that the inconsistencies were considered not to bear adversely on the credit and reliability of the complainants. Beyond that, the inconsistencies could have no material significance. The Chief Magistrate was not obliged to provide further reasons as to the inconsistencies, explaining why he regarded them as minor.

Ground 5: the complainants' state

The submissions on behalf of the applicant relied on findings made by the learned Chief Magistrate that the complainants were either half asleep or drowsy when the applicant entered the tent, and subsequently in a state of shock and upset, and that his Honour preferred the evidence of Mrs S, over that of the complainants, as to what happened in the caravan. It was submitted that these findings bound the magistrate to give further reasons for accepting the evidence of the complainants that the applicant acted as they said he did. Having preferred Mrs S to the complainants, and thereby having found their evidence wanting, he did not then articulate why he was able to accept their accounts of what happened in the tent. The applicant also relied upon evidence in IR's interview which indicated that she had "kind of fallen asleep" after she had pushed the applicant's hand away. Other than these submissions, there was no other basis for the final limb of this ground of review that his Honour afforded such weight to the complainants' evidence "which in law could not be so afforded".
The Chief Magistrate gave substantive reasons for accepting the evidence of the complainants' evidence as to the applicant's conduct in the tent. He stated that he was "extremely impressed" by their evidence and elaborated upon the reasons for that. The evidence of Mrs S was confined to complaint evidence, being evidence of what the complainants had said had happened in the tent. The Chief Magistrate's findings are not internally inconsistent by virtue of a preference for Mrs S's evidence as to the complainants' assertions in the caravan of what had happened. It is not as if the nature of the differences, in the account of Mrs S and the evidence of the complainants about what they said to Mrs S is inherently significant. It is rather self-evident that the complainants' experience of the applicant's conduct is likely to be the focus of their recollection, rather than what they told Mrs S about what had just happened to them. Putting those matters aside, there is a reason given by the Chief Magistrate for preferring Mrs S's account on the complaint evidence, and that is that the complainants were in a state of shock and upset. The fact that Mrs S was considered to be a more reliable historian than the complainants, about what the complainants said when they were in a state of shock and upset, does not suggest that the complainants were not reliable historians about the applicant's conduct. There was no necessity for further reasons arising from the preference for Mrs S on this matter.
The fact that the learned Chief Magistrate considered that the complainants were half asleep or drowsy when the applicant approached them in the tent is not at odds with a conclusion accepting their evidence of what then happened in the tent. Clearly, his Honour was alert to the evidence of the drowsy state of the complainants at that time. In the circumstances, his Honour gave sufficient reasons for accepting their evidence.

Conclusion

I have considered the separate matters raised in the grounds, bearing on the reliability of the complainants, to assess whether further reasons were required. I have also considered the matters in combination to assess whether more was needed in terms of reasons. Having regard to the issues in relation to the reliability of the complainants, this is not a case where features of their evidence were inherently suspect, or the acceptance of their evidence as accurate, needed more detailed explanation.
It may also be noted that his Honour made findings about the applicant's interview with police that "in a number of areas he was defensive and not totally frank", and his Honour rejected his answers as to his reasons for asking the complainants to turn the music down. He also rejected the applicant's explanation for going into the tent in the first place, and found that he was not truthful on that point. This is further exposition for the finding that the applicant acted as alleged and the conclusion reached of guilt beyond reasonable doubt.
I conclude that the Chief Magistrate's reasons were sufficiently exposed.

Orders

The motion to review shall be dismissed. Sentencing of the applicant was deferred pending this appeal. The matter should be remitted for sentence. I shall give the parties an opportunity to be heard before making orders in those terms.