GOMEZ v Police - [2005] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOMEZ v POLICE
Judgment of The Honourable Justice Besanko
23 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - OTHER INSTANCES OF INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against conviction recorded and sentence passed by Magistrate - appellant convicted of indecent assault and sentenced to four months imprisonment, suspended upon the appellant entering into a good behaviour bond for a period of 2 years in the sum of $200 - a condition of the bond required the appellant to deliver a written apology to the victim within 14 days - where victim was intoxicated on the night of the incident - whether Magistrate erred in accepting victim's version of events - whether it was beyond the power of the Magistrate to impose a condition requiring the appellant to apologise to the victim - appeal against conviction dismissed - appeal against sentence allowed for the purpose of deleting the condition requiring the writing of a letter of apology.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 56, referred to.
R v Calides (1983) 34 SASR 355; Devries v Australian National Railways Commission (1983) 177 CLR 472; Fox v Perry (2003) 214 CLR 118, considered.

GOMEZ v POLICE
[2005] SASC 64
Magistrates Appeal

BESANKO J: This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 against a conviction recorded and a sentence passed by a Magistrate. The appellant was charged with indecently assaulting L on 26^th July 2003. At that time L was 14 years of age and the appellant was about 21 years of age. The alleged offence occurred at Whyalla in the State of South Australia. Indecent assault is an offence by reason of s 56 of the Criminal Law Consolidation Act 1935.
The appellant was convicted of the offence. He was sentenced to four months imprisonment which was suspended upon the appellant entering into a good behaviour bond for two years in the sum of $200.00. A condition of the bond was as follows:
“To write to the Registrar of the Whyalla Court for and on behalf of the victim within 14 days a written apology which the Court will tender to the victim.”
The appeal against sentence relates only to that condition.
Appeal against conviction
The Magistrate’s Reasons
It is convenient to start with the Magistrate’s findings as to the circumstances of the offence. At about 6.00 am on 26^th July 2003, L was in the house of a female, E. She was asleep in a bedroom of the house. She was awoken by her cousin K who told her that she was going home. The appellant was also in the room. The appellant asked L if it was alright if he lay on the bed with her. She said it was and he got into bed with her. The appellant then kissed L although she could not remember if it was more than once. L told the appellant that he was a lot older than her. L then went back to sleep. L was lying on her left hand side and away from the appellant. The appellant took L’s right hand and pulled it towards his groin but she pulled it away. The appellant kept grabbing her hand although L could not remember how often. At one point her hand touched the appellant’s penis. The appellant then tried to undo L’s halter-top and bra. He also tried to undo her jeans and she later discovered that one of the locks on her jeans was broken. The appellant then put his hand under L’s clothing and touched her breast for a short time. After the incident, L lay on the bed for a while. She then got up, did up her bra and went to the toilet. She retrieved her shoes and spoke to the appellant. He told her not to tell anyone and she replied “yes”. She walked back to K’s house and told K that the appellant had tried to kiss her.
L did not want the appellant to do what he did and the appellant said he just wanted her to touch his penis and she had said no.
L told a friend, A, about the incident and she then spoke to her school counsellor. That occurred about two weeks after the incident. She also told her aunties and another cousin about the incident. She did not tell her mother about the incident until after she had spoken to the school counsellor and following that she went to the police station and made a statement.
There can be no doubt that if the Magistrate was right to be satisfied beyond reasonable doubt that the incident occurred in the manner described above then the appellant was guilty of the offence of indecent assault. The appellant did not argue the contrary.
There was a good deal of evidence about L’s movements on the night and early morning immediately before the alleged incident. Initially, L said that the night before, she had gone to K’s house where she consumed an amount of alcohol and subsequently vomited. At about 1.00 am she left K’s house and went to E’s house where a party was in progress. She felt tired and went to sleep in a bedroom. A short time later she woke up and there were a number of people in the room including the appellant and they were drinking and talking. She then went back to sleep and woke up at about 6.00 am when the alleged incident occurred.
L was cross-examined at length about her movements in the hours leading up to the alleged incident. The Magistrate referred to that evidence in detail in his reasons and he referred to what she said and did and to those times where she could not remember what she did.
It is apparent that L did not have a good recollection of her activities leading up to the alleged incident. Some matters are fairly inconsequential whereas others required careful consideration. She could not clearly remember if she had left K’s house to collect some clothes and then returned and she could not remember how long she was at K’s house. She agreed that she vomited at K’s house and in the taxi when she left K’s house. She agreed that there were some gaps in her memory and she agreed that she had gone to the Spencer Hotel after leaving K’s house and before going to E’s house. She agreed that it was possible she had been at the Spencer Hotel from about 1.00 am to about 4.00 am. Her evidence about whether she had a watch and looked at it on the night and in the early morning is confusing and on the face of it unsatisfactory. L agreed that she did not remember going to the Spencer Hotel because she was drunk and that she wanted to go to bed at E’s house because she was drunk. She said that she had told the police she went from K’s house to E’s house because she could not remember much of that night and that she had forgotten about going to the Spencer Hotel in August 2003. She said that she could remember being at the Spencer Hotel vomiting in the toilets. L maintained that the incident had occurred in the way she had related it in her evidence in chief and she said that when the appellant placed her hand on his penis, “his pants were zipped up”.
The Magistrate heard evidence from C who is L’s cousin. C could recall the party at E’s house. She arrived at E’s house at between 9.00 pm and 10.00 pm and she thought the appellant was there at the time. C could recall going to the Spencer Hotel with L and others between 12.00 midnight and 1.00 am. There was not a lot of drinking at the Spencer Hotel and the group left some time after 4.00 am and returned by taxi to E’s house. C can recall L appearing tired and not very well and going to bed in a bedroom at E’s house. C awoke at E’s house at about 8.00 am and she had a brief conversation with the appellant in her room some time after 8.00 am. She later went to K’s house and spoke with L. L told her that she and the appellant had kissed although she said she had to force it out of L who did not want to speak about it. In cross-examination C said she thought L had been with her when she went to E’s house at between 9.00 pm and 10.00 pm. C said she could recall L vomiting in the taxi on the way to the Spencer Hotel.
The appellant did not give evidence and the Magistrate reminded himself that he was to draw no inference adverse to him from that fact. The Magistrate found that L had consumed a large quantity of alcohol and given inconsistent evidence of her movements on that night. He also said that in evidence L gave the impression of being bored and of not wanting to be in court. Nevertheless he was satisfied that she was telling the truth.
The Magistrate said that L was a young Aboriginal girl who was 14 years old at the time of the incident and 15 years old at the time she gave evidence. He said that to his knowledge L had not given evidence before. She gave her evidence in chief in a satisfactory manner. She was embarrassed when asked to describe the incident. Her account of what happened in the bedroom was plausible and consistent.
The Magistrate said that L was impatient, bored and restless during a prolonged cross-examination but he was not surprised at that because she was in the witness box for some three hours. The Magistrate said that L’s recollection of the events of the night before the incident was poor. However, he said the events of the night before were of relevance only to the question of her alcohol consumption and her movements on the night. The Magistrate said that there was no dispute that L did go to bed at E’s house and that the appellant was at E’s house. It was not suggested to L that the appellant did not get into bed with her. L was unshaken about the key features of the incident. The Magistrate said that it was not put to L that the appellant had not touched her breast under her clothing for a short time.
The Magistrate referred to R v Calides (1983) 34 SASR 355. In his concluding remarks the Magistrate said:
“Irrespective of the fact that the only evidence that I have of the indecent assault in this matter is that of the victim and notwithstanding all of the matters that I have mentioned above about the manner in which L presented her evidence, I am satisfied beyond reasonable doubt that she told the truth and that the several incidents referred to in her evidence happened as related by her.”
Issues on appeal
In relation to the Magistrate’s decision to record a conviction there are six grounds of appeal.
The first ground of appeal is that the Magistrate erred in ascribing the negative aspects of L’s evidence during cross-examination to “the prolonged cross-examination” by counsel and it is said that he should not have done that when the matter was not raised with counsel at the time of trial. I deal with the latter proposition first. I know of no principle that requires a judicial officer to raise with counsel the effectiveness or otherwise of his or her cross-examination during the cross-examination. Sometimes counsel’s cross-examination in fact bolsters the credit of a witness. Sometimes a provocative question by counsel will lead to an angry response from a witness and the judicial officer may attribute that anger to the provocative nature of the question rather than a matter going to the witness’s credit. It is not for the judicial officer to give counsel an ongoing assessment of how he or she is performing in cross-examination. Many counsel would object to that course and in any event the judicial officer does not know what counsel has in his or her brief.
The Magistrate was ideally placed to assess the credit of L. An appeal court will exercise restraint in interfering with findings as to the credit of a witness (Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479; Fox v Perry (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [127] – [128]. Nevertheless, as the reasons for judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Perry make clear, on an appeal by way of rehearing, a judgment of the appellate court on both fact and law is required and is not to be avoided by a ritual incantation about witness credibility (at [128]). In my opinion, it was open to the Magistrate to ascribe features of L’s demeanour during cross-examination to the fact that the length of the cross-examination caused her to become impatient, bored and restless. Furthermore, I reject the suggestion that in assessing her demeanour the Magistrate was not entitled to take into account the fact that L was a young Aboriginal girl. The Magistrate was entitled to take into account the fact that L was unlikely to have any real experience of giving evidence although it probably did not take the matter very far to say in the absence of evidence that she had not given evidence before to his knowledge. The appellant complained of the Magistrate’s comment that L had given her evidence in chief in a perfectly satisfactory manner and in support of that complaint he referred to passages in her evidence in chief where she stalled or was unable to answer at critical stages. I have read those passages. Each relates to the appellant touching L. The Magistrate was ideally placed to consider the reason for L’s hesitation and he said it was due to the fact that she was embarrassed when talking of the incident. There is no basis upon which to interfere with that conclusion of the Magistrate. I reject the first ground of appeal.
The second ground of appeal is that the Magistrate erred in concluding that the events of the night before were of relevance only to L’s alcohol consumption and her movements on that night and that the time at which L went to bed at E’s house was of no real significance. As I understood the argument it was that L’s credit was crucial and those matters were relevant to her credit. I do not think the Magistrate was saying the matters were irrelevant and/or not to be taken into account. In fact he had earlier said that he agreed entirely with the submission of the appellant’s counsel that L had given inconsistent evidence of her movements on the night. He said that the alcohol L had consumed meant that she had a poor recollection of events. To my mind, he was doing no more than putting various circumstances in context. For example, he noted that there was no contest that the appellant was at E’s house and it was not put to L that the appellant did not get into bed with her. The Magistrate did not ignore matters relevant to L’s credit, nor did he ignore the fact that she had consumed a considerable quantity of alcohol. In the end, he was satisfied beyond reasonable doubt that she had told the truth about the incident. I reject the second ground of appeal.
The third ground of appeal is said by the appellant’s counsel to be subsumed in the other grounds of appeal.
The fourth ground of appeal is that the Magistrate erred in treating the evidence of statements to C after the incident as evidence of a recent complaint. There is a short answer to this ground of appeal and that is there is nothing to suggest that the Magistrate treated the evidence as evidence of a recent complaint. I reject the fourth ground of appeal.
The fifth ground of appeal is that the Magistrate erred in finding that L was consistent about her experience upon waking up the next morning when her recollection as to who was in the bedroom when she first awoke changed over the course of her evidence. I do not think the Magistrate was referring to L’s evidence as to who was in the bedroom when she woke up but rather her evidence as to the events constituting the incident. I reject the fifth ground of appeal.
The sixth ground of appeal is that the Magistrate erred in saying that it was not put to L that the appellant did not touch her breast under her clothing for a short time. It was certainly put to L that the appellant did not touch or try to undo her clothing and I think it was effectively put to her that the incident involving the touching of her breast did not occur. I think the Magistrate did err but I do not think that it may have given rise to a risk of a miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129; Wait v Police [2003] SASC 94 per Besanko J at [49]). Reading his reasons as a whole I think that it is clear that he has decided the case by reference to whether he should accept L’s evidence beyond reasonable doubt and not by reference to what was and was not put to her. I reject the sixth ground of appeal.
I reject the appeal against conviction.
Appeal against sentence
The appellant submitted that the Magistrate did not have the power to impose as a condition of the bond a requirement that the appellant write a letter of apology. The respondent did not contest that proposition or at least the proposition that to impose the condition was inappropriate. The condition should be removed from the bond.
Conclusion
The appeal against conviction is dismissed. The appeal against sentence will be allowed but only for the purpose of deleting the condition requiring the writing of a letter of apology. I will hear the parties as to the appropriate orders.