Goring v Police
[2022] SASC 93
•1 September 2022
Supreme Court of South Australia
(Magistrates Appeal: Criminal)
GORING v POLICE
[2022] SASC 93
Judgment of the Honourable Justice Stein
1 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant and complainant were in a relationship during which they shared sexually explicit images with each other. The appellant also shared sexually explicit images with a subsequent sexual partner, E. Once the appellant’s relationship with E ended, E informed the complainant the appellant had shared images of the complainant with E.
On 20 December 2021, the appellant was found guilty of four counts of distributing an invasive image of another person knowing, or having reason to believe, that the other person did not consent to that particular distribution of the image contrary to s 26C(1) of the Summary Offences Act 1953 (SA).
The appellant appeals against his conviction on grounds that the Magistrate’s reasons were not adequate, the Magistrate reversed the onus of proof and, in all of the circumstances, the finding of guilt is unsafe and unsatisfactory.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 353(1); Magistrates Court Act 1991 (SA) s 42(1); Summary Offences Act 1953 (SA) ss 5, 26C(1); Supreme Court Civil Rules 2006 (SA) r 286(1); Supreme Court Criminal Rules 2014 (SA) ch 12A, referred to.
AK v Western Australia (2008) 232 CLR 438; Barry v Police (SA) (2009) 197 A Crim R 445; Collins v Northern Territory (2007) 161 FCR 549; De Silva v The Queen (2019) 268 CLR 57; Devries v Australian National Railways Commission (1993) 177 CLR 472; Douglass v The Queen (2012) 86 ALJR 1086; DW v The Queen (2004) 150 A Crim R 139; Fox v Percy (2003) 214 CLR 118; Frunks v Police (SA) [2016] SASC 120; Khammash v Police [2001] SASC 52; Liberato v The Queen (1985) 159 CLR 507; Makeham v Sheppard [2020] VSCA 242; Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141; Papps v Police (2000) 77 SASR 210; Perkins v County Court of Victoria (2000) 2 VR 246; Pettitt v Dunkley [1971] 1 NSWLR 376; Prouten v Chapman [2021] NSWCA 207; R v Keyte (2000) 78 SASR 68; Rowland v Police (2001) 79 SASR 569; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Taylor v Hayes (1990) 53 SASR 282; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; Woolworths Ltd v Warfe [2013] VSCA 22, applied.
Carlson v King (1947) 64 WN (NSW) 65; DL v The Queen (2018) 266 CLR 1; Farrugia v The County Court of Victoria [2000] VSC 11; Garrett v Nicholson (1999) 21 WAR 226; Greenham Tasmania Pty Ltd v Director of Public Prosecutions (Tas) [2021] TASSC 51; Lloyd v Faraone [1989] WAR 154; M v The Queen (1994) 181 CLR 487; Mule v The Queen (2005) 79 ALJR 1573; Phillips v Arnold (2009) 19 Tas R 21; R v Arnold [1999] 1 VR 179; Webb v Tang [2021] WASC 344, considered.
GORING v POLICE
[2022] SASC 93Magistrates Appeal: Criminal
Overview
STEIN J: For a period of time in late 2019 and early 2020, the appellant and complainant were in a relationship during which they shared sexually explicit images with each other. The appellant also shared sexually explicit images with a subsequent sexual partner (“E”). After the appellant’s relationship with E ended, E contacted the complainant and informed her that the appellant had shared sexual images of the complainant with E. The appellant was thereafter charged with four counts of distributing an invasive image of another person knowing, or having reason to believe, that the other person did not consent to that particular distribution of the image contrary to s 26C(1) of the Summary Offences Act1953 (SA) (“Act”).
On 20 December 2021, the appellant was found guilty by a Magistrate of each count. The appellant appeals against his conviction on grounds that the Magistrate’s reasons were not adequate, the Magistrate reversed the onus of proof and, in all of the circumstances, the finding of guilt is unsafe and unsatisfactory.
In order to address the appellant’s challenges to the Magistrate’s reasons it is necessary to consider the evidence at trial and the manner in which the case was conducted.
The trial
The prosecution called oral evidence from E, the complainant, Mr Denwood (a digital evidence support officer at SAPOL) and Brevet Sergeant Williams (the investigating officer).
The prosecution tendered copies of images which it alleged were sent by the appellant to E on Instagram; Facebook and text messages between the appellant and complainant; four images the subject of the charges; a disc of body worn footage of the complainant identifying herself in images; a disc of body worn footage of the appellant’s arrest; a disc of footage of the appellant’s record of interview (“record of interview”) and a document recording the file path for data extracted from the appellant’s phone and transferred to a disc. A transcription of the record of interview was provided to the Court as an aide.
I set out a summary of the evidence below.
Complainant’s evidence
The complainant gave evidence that she met the appellant in around 2017 or 2018 through running events and was a Facebook friend of the appellant. The complainant had two Facebook accounts, a personal page and a professional page using a stage name, to keep her personal and professional life (as an exotic dancer) separate and maintain privacy. The complainant inadvertently disclosed her profession in a post published to her personal Facebook page. She said this prompted interest from the appellant who starting flirting with her in July 2019. The complainant wished to ensure the appellant’s interest in her was genuine and not a result of what he might think were characteristics attributable to her profession. On 15 August 2019, she determined there was genuine interest in her and, on 7 September 2019, a sexual relationship commenced.
The complainant gave evidence that, in late July 2019, the appellant shared with her explicit images of him, and images depicting him engaging in sexual activity with other women. He did so after asking the complainant if he could send these to her, to which she agreed after asking whether the women depicted had consented to the sharing of the images.[1] In response, the complainant sent to the appellant lingerie type promotional photographs taken for her work. The complainant gave evidence she told the appellant she was trusting him not to share those photos[2] and she made it clear to him that she did not want them shared.[3] The complainant sent to the appellant a couple of explicit photographs of her. The complainant stated she was aware that the appellant also took photographs whilst they engaged in sexual relations.
[1] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T48.14-21.
[2] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T47.28-29.
[3] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T49.7-8.
At trial, the complainant gave evidence about conditions she placed on the appellant when she provided photographs of her to him. The complainant gave oral evidence as follows:[4]
…I made it clear to him, I said no matter what happens between us these images – no matter what happens between us, what we are sharing, whether our messages or our photos, should not be shared with others or shown to others. He agreed. I referenced a few other times that I was building trust, so I would send the photo and say that I have racier ones but I’m building trust, meaning I’m building trust that you won’t share them and I believe I said that a few times.
[4] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T51.1-10.
The complainant was shown messages between her and the appellant. She gave evidence of sending the following message (Exhibit P3) to the appellant via Facebook on 22 August 2019:[5]
…Taking a step back for a second, we on the same page right, that no matter what happens between us our conversations and photos stay between us. No-one else gets told about it.
[5] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T51.37 - T52.2; tendered as Exhibit P3.
The complainant sent to the appellant a text message on 27 August 2019 (Exhibit P4): [6]
…I like that we can be naughty and I’m building trust that you’re not going to share my raunchy ones to others...
[6] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T52.34-36; tendered as Exhibit P4.
In August 2019 the complainant sent a photograph of herself to the appellant (Exhibit P5) with a message saying “That’s definitely in the not to be shared category”.[7]
[7] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T53.22-23; tendered as Exhibit P5.
The complainant sent to the appellant a Facebook message (Exhibit P6) on 24 August 2019 that said, among other things: [8]
…Again, I will kill you if you ever share these messages with anyone ... I’m building up trust here. Don’t ruin it
[8] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T56.27-29; tendered as Exhibit P6.
The complainant said these messages were typical of the timeframe of July and August and that:[9]
At that time we had not had a verbal conversation because it was already covered with the do not share these with anyone. I’m sorry, we already had one but it was reiterated at least once verbally, yes.
[9] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T57.20-23.
The complainant said there was no change in what was allowed until October. On 5 October 2019, the appellant told the complainant he had sent his friend, Trevor, a picture of the complainant’s buttocks along with the message “whose bum do you think this is?”. The complainant was rather surprised as she was not aware the appellant was sending photographs. She stated she expressed this surprise to the appellant who responded that it had not occurred to him that she might not want photographs shared and that he was so used to sharing photographs and sexual information that it would be strange for him not to.[10] After discussion, the complainant agreed to the appellant sending photographs to Trevor as she thought it would make the appellant happy.[11] She said the permission was given on the basis that the appellant would tell the complainant which photographs he was sharing and when, as she was an acquaintance of Trevor and would feel awkward seeing Trevor if she did not know what was shared.[12]
[10] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T58.18-38.
[11] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T58.38 - T59.1‑4.
[12] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T59.16-20.
The complainant gave evidence that during this conversation, the appellant also raised with her a wish to share images of her with David, who was not an acquaintance of the complainant. She stated:[13]
A. …He said that – he said that, I cannot explain his logic, but he said that David was like a father to him. I remember that phrase ‘cos it’s a very strange phrase to use when talking about sexuality but he said David was like a father to him and he and David always were very comfortable sharing sexual information and he suggested that, especially as I had some reservations about it being shared with someone, Trevor, in the running community, perhaps I’d feel more comfortable if he shared them – if most of what he shared was to David and I thought about that and I said ‘Okay, you can share to David. I’m fine with you sharing to David. Unlike Trevor, you don’t have to tell me which photos. You can share some to David. You still have to tell me which photos you share with Trevor because I will be seeing Trevor and interacting with him and as he’s in the running community he could be talking to others as well so I just feel a little less comfortable with Trevor having the photos and want to have more information’. So that was our agreement, those two people could have them on those conditions. I’m sorry, I forgot to add that we had also said that he said he was going to be cautious about sharing photos with my face so that was the condition attached as well.
Q.That he was going to be cautious about sharing photos –
A.Photos with my face, so that was another condition. So, he could share photos of me to Trevor if he told me which photos and when and he could share photos of me, sorry, of us, I should say, me or us, with David and he would be cautious of sharing my face and would not do it and it was made clear at that time that any – anybody that he would want to share photos to we would need to discuss because we would have to see if I was comfortable and what limits I would put onto it if I was.
[13] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T59.24 - T60.1‑20.
The complainant gave evidence in relation to further messages in October or November. She sent a Facebook message to the appellant in which she referred to him mentioning he would not show David photos of her face but that, if the appellant trusted David and that he would not let others see the photos, she did not mind. The appellant responded, “oh baby, no, I don’t like to think your face is out there”.[14] The complainant interpreted this as an agreement they were “keeping it as not showing my face to David or Trevor”.[15]
[14] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T61.21-25; tendered as Exhibit P7.
[15] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T61.25-27.
The complainant gave evidence that, on 11 November 2019, she sent to the appellant a Facebook message (Exhibit P8) saying that the appellant had complete permission to share whichever faceless photos he wanted with David and that he had complete carte blanche on that.[16]
[16] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T62.1-6; Exhibit P8.
The complainant then sent a further Facebook message (Exhibit P9) saying that she was fine with the appellant sharing photos with Trevor as well but that she asked the appellant to tell her which ones first.[17]
[17] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T62.23-28; Exhibit P9.
The complainant gave evidence that she sought to clarify the nature of her relationship with the appellant on a number of occasions.[18] From late November 2019, so far as she was aware, she and the appellant were in an exclusive relationship. In December 2019, she had further discussions with the appellant in which she stated she wished to discuss with the appellant concerns and boundaries, including in relation to sharing photographs.[19] The appellant would agree to have a discussion but not meet with her or would not agree on a time or date for a discussion. Eventually, the complainant agreed to the appellant picking her up from her work Christmas party on 22 December and, if she was sober, they would talk, and if not, they would talk later.[20]
[18] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T44.23-30.
[19] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T63.9-25; T64.27-28.
[20] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T65.3-10.
The complainant asserted at the party, on 22 December 2019, the appellant behaved towards her in a manner which she found concerning, including the appellant encouraging her to show explicit photographs to the bartender, groping her in front of her colleagues and asking her to engage in three-way kisses with the complainant’s colleagues as an early Christmas present.[21] The complainant did not want to bring up the behaviour before Christmas to avoid ruining Christmas. On Christmas Eve she went to the appellant’s house around 10.00 pm and she stayed the night. She woke early on Christmas morning feeling emotional and initiated a conversation with the appellant in which she told him she was upset about his behaviour.[22] The appellant told her she should take personal responsibility for drinking and that he was afraid she was sending photos to people during the party.[23] The complainant gave evidence that in the conversation she raised the issue of sharing photographs:[24]
…I brought up I don’t actually – I’m not comfortable with photos being shared. I – especially with the way that our relationship had been, our interactions had been in the last couple of weeks and he – by this point the conversation is in the kitchen. … He’s pulled his phone out of his pocket and he said ‘How about we don’t share photos to anyone anymore?’, and I said ‘That sounds like a great idea’, and that was basically our truce for the day, that was the one thing we could agree on...
[21] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T67 - T69.
[22] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T71.
[23] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T72.
[24] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T73.26-36.
The complainant gave evidence that the appellant continued sending sexual messages to her in January 2020. She repeated requests to discuss their relationship throughout January 2020 and told the appellant she did not wish to engage in sexual activity with the appellant until they discussed their relationship and what behaviours were acceptable. The relationship ended on 4 February 2020.[25]
[25] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T45.24-27.
During evidence, the complainant was shown four images (Exhibits P10, P11, P12 and P13). The complainant identified herself in the images, including by reference to remembering the photographs (which she said were taken in September or October 2019), recalling some details of the taking of the photographs such as who took the photograph and where, identifying her lingerie, a Garmin watch and a bedspread (a small section of which was visible).
Counsel for the appellant cross-examined the complainant in relation to her professional Facebook page. He put to the complainant that the purpose of the page was to promote herself as an exotic dancer, but she denied the page was advertising or promoting herself, for example, to get a new audience.[26] Counsel cross‑examined the complainant in relation to the selection of images and screenshots of conversations provided by the complainant to the investigating police officer. He established that the police officer did not inspect the complainant’s phone but rather the complainant made choices of the material to copy onto a USB stick, which was then provided to the investigating officer.[27] The police officer chose which materials he thought were relevant and attached those to her statements.
[26] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T87 - T88.
[27] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T93.
Counsel for the appellant cross-examined the complainant in relation to the agreement to share photos with Trevor and David. The complainant accepted that the appellant was given permission to show whichever faceless photographs he wanted to David.[28] The complainant maintained that her agreement with the appellant was that the appellant would have to contact her any time he wanted to share images with Trevor, but he did not have to do so in relation to images he shared with David.[29]
[28] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T97.
[29] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T98.
The complainant accepted there were no dates on some of the messages, such as the message giving the appellant complete permission to share photographs with David, however, she said she could determine approximate dates by reference to other messages which were dated, and she gave evidence of approximate dates.[30] The complainant said the evidence about dates was her evidence based on her having reviewed the messages and the electronic records.[31]
[30] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T101.
[31] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T102.
The complainant accepted in cross-examination that there were more messages between the appellant and complainant that were not in evidence including messages between about 10 and 23 December.[32] Counsel for the appellant cross‑examined the complainant in relation to events which the complainant gave evidence had occurred at her work Christmas party and evidence given by the complainant of having, on Christmas Day, withdrawn all consent to sending images. The complainant disagreed that she had not stayed at the appellant’s house on Christmas Eve and she was not at his house the morning of Christmas Day. The complainant disagreed there was no conversation at all on Christmas Day where she withdrew any consent.[33]
[32] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T111; T114.
[33] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T125.
Counsel put to the complainant that there was nothing in the images that suggested they were of her, but the complainant maintained her position it was her and she could identify her body parts. The complainant accepted there were no distinguishing scars or birth marks but said she could recognise the lingerie and the watch and could recognise and identify her own legs, hands and body.[34]
[34] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T129.
E’s evidence
E gave evidence of meeting the appellant at a conference, seeing him at running events and thereafter exchanging messages on Instagram. In January 2020, E said the appellant started sending images of other girls to her, including images showing exposed genitals and images of persons engaging in sexual intercourse.[35] E gave evidence that she did not identify specific people in the images at the time and the appellant just told her they were his previous girlfriends or girls he had been with.
[35]Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T8-9.
Thereafter, in about mid-January 2020, E commenced a sexual relationship with the appellant. E said that in around late February 2020, the appellant showed to her images on his phone and identified the complainant. The appellant told E the complainant was an ex-girlfriend and said he was worried that the complainant would be jealous because she was a regular at running events.[36]
[36] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T17.
E said her relationship with the appellant ended in mid-March. E did not have any discussions with the appellant about images she had sent to him of herself.[37] After the relationship ended, E contacted the complainant. Her explanation for doing so was she thought the complainant should know her private images were being shared, most likely without her knowledge. She said she would hope if there was a similar situation, another woman would let her know that was happening.[38]
[37] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T18.
[38] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T19.
Counsel for the appellant cross-examined E in relation to asserted prior inconsistent statements and put to E that she was very angry with the appellant when the relationship broke up, which she denied. During cross-examination, E accepted the appellant did not specifically point out which images were of the complainant, but said she was one of the women in the images. Counsel for the appellant put questions to E to challenge her ability to identify the complainant in images. E said the appellant showed her images from his phone and said “that’s the running girl that I was sleeping with” and then showed E the complainant’s Facebook profile because E asked who she was. E explained she was anxious that she might be running up next to her at events and would not know who she was.[39] E accepted the appellant did not specifically name the complainant in any of the photos. E asserted she came to the conclusion that seven images she received from the appellant via Instagram were of the complainant because she recognised the images previously shown to her by the appellant on his phone. E said because the appellant had shown her the complainant’s Facebook profile, she could gauge from her body type on her Facebook profile which images were of her. E accepted she went to a Facebook profile then sought to match the Facebook profile with images she had been sent.[40] E accepted only the appellant’s face and the face of another woman (not the complainant) were depicted in the images (shown to her by the appellant on his phone and those sent to her on Instagram).
[39] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T32.
[40] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T33.
Mr Adrian Denwood
Mr Denwood is a digital evidence support officer at SAPOL. His role involves taking digital evidence, extracting data from devices and providing it to the investigating officer.
Mr Denwood received a model J2 Pro Samsung mobile phone on 21 July 2020, with a request that he extract as much data as possible. He extracted the data, transferred it to three discs and advised the investigating officer the discs were ready for collection.
Brevet Sergeant Peter Williams
Brevet Sergeant Williams was the investigating officer. As part of the investigation, he obtained a statement from E and, during the process of doing so, obtained a copy of photos allegedly shared, or that E was shown. Brevet Sergeant Williams gave evidence that E showed him (on her phone) E’s Instagram page and he viewed, within the messaging section, the images (Exhibits P1 and P2) and where E had received them.[41] E provided copies of the images to him.[42]
[41] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T138.24-31.
[42] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T138.9-14.
Brevet Sergeant Williams met with the complainant and showed her the images provided to him by E. He allowed the complainant to go through the images and asked her to sign and mark images she believed depicted her and that she was sure were her. The process was recorded by body worn video. The complainant identified four images (Exhibits P10, P11, P12 and P13).[43] Those four images were from images E gave to Brevet Sergeant Williams.[44]
[43] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T145-146.
[44] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T145.
Brevet Sergeant Williams gave evidence that, on questioning the complainant how she could identify herself, she pointed out a watch and lingerie in images, she then produced the watch and lingerie to him but he did not seize those items.[45] He also gave evidence that he produced to the appellant during his record of interview a matching duplicate of photographs provided to the complainant (without the signatures marked by the complainant on photographs she believed depicted her) and, during his record of interview, the appellant identified the same four images which the complainant had signed.[46]
[45] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T140-141.
[46] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T146.27 - T147.3.
Brevet Sergeant Williams obtained a further statement from the complainant about a conversation she had on Christmas Eve or Christmas Day with the appellant. The complainant provided to him a USB containing photos or snapshots of messages and a number of screenshots from the USB were produced to the Court.[47]
[47] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T150.33 - T151.8.
Brevet Sergeant Williams gave evidence in relation to the arrest and interview of the appellant (both of which were recorded on body worn camera). Brevet Sergeant Williams gave evidence in relation to the seizure of the appellant’s phone and the request to have a duplicate of the contents of the phone transferred to disc.
Brevet Sergeant Williams located within the content downloaded from the appellant’s phone three of the four images allegedly distributed. Those three images were placed in a document with a note of the file path (Exhibit P17).
Brevet Sergeant Williams was cross-examined about the interview with the complainant, the lingerie, watch and USB produced to him by the complainant, and the complainant’s identification of herself in images. He accepted he did not make enquiries as to how common was the lingerie or take details about the watch. Brevet Sergeant Williams agreed in cross-examination that he did not have access to messages between the complainant and appellant between 23 December and the Christmas Day conversation, and he did not have information from the complainant’s phone regarding exchanges between the appellant and complainant after 9 January. As far as he was aware, there were no messages or evidence relating to consent the Court was not made aware of.[48]
[48] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 12 October 2021), T151.
Record of interview
The appellant was interviewed on 15 June 2020. In the record of interview, the appellant denied the allegations. He asserted the complainant had sent photos to people in Queensland and “as far as I’m aware an agreement that she could send those photographs and I had some photographs of her as well and so it was um, was something that … we mutually agreed that we’d take the photographs and they were our property to do what we wanted with them.”[49] The appellant said there were no discussions to say “you can’t send”.[50] In response to a question about having a discussion with the complainant about sending photos to Trevor, the appellant said the complainant said to him that “we could do whatever we wanted with our photographs”;[51] there was “never any agreement that said we could not send them at any time” and “no restriction” was placed by either party.[52]
[49] Record of Interview at 3, lines 114-118.
[50] Record of Interview at 4, lines 182-183.
[51] Record of Interview at 4, lines 139-140.
[52] Record of Interview at 4, lines 144, 164-5.
In response to a question about a conversation at Christmas (in which the complainant asserted the appellant agreed not to send any more photos and she relinquished any permission to send or share photos) the appellant said “No. There’s never been a dis, there’s never been a, there’s never been a conversation like that and there’s never been any written certification for it.”[53]
[53] Record of Interview at 5, lines 196-207.
The appellant stated he had not distributed photographs without permission and there was never a conversation to say “you cannot do this”.[54] In response to a question whether there was a conversation that said you can do it, the appellant responded it was implied[55] because the complainant asked if she could send photographs and:[56]
…we’ve said we could, could send them, there was never any description saying well, we can’t do that, there was no end, end date as such and we were still sort of seeing each other, you know. January February time and told [the complainant] … that there’s a relationship, I say it wasn’t formal boyfriend and girlfriend it was very casual, um that I found somebody who might be more suitable because [the complainant] was doing the pole dancing, was wanting to get back into teaching and you know um and [the complainant]… has a, a Facebook profile … and basically is always putting photographs on there and she’s a pole dancer…
[54] Record of Interview at 13, lines 589-590.
[55] Record of Interview at 13, lines 597-599.
[56] Record of Interview at 13, lines 605-617.
The appellant reiterated that there were no conversations, no written statement, no formal agreement, discussion or certified document, he could not recall a conversation, from his perspective no conversation had occurred and there were no images he was categorically told he could not share.[57] The appellant stated the only time he had done anything like that (that is, share photos) was consensual.[58]
[57] Record of interview at 5, lines 189-190, 223; at 6, lines 233-234; at 8, lines 374-375; at 9, lines 385-387; at 10, lines 463-465; at 11, lines 520-521; at 14, line 628; at 16, line 758; at 17, lines 799-800; at 18, lines 824-825, 833-834, 838-839, 862-863.
[58] Record of interview at 10, lines 460-461.
A not insignificant part of the record of interview related to E. Among other things, the appellant asserted E was vindictive after their breakup and trying to get back at him.[59]
[59] Record of interview at 10, lines 474-476.
The record of interview footage was tendered as Exhibit P16. The appellant did not give evidence.
Documentary evidence
As set out above, copies of a number of images, Facebook and text messages were tendered.
Closing submissions
In closing, prosecution submitted that E gave evidence to the best of her ability, and she gave clear evidence of receiving the images, how she received them and from whom. Although there was some suggestion in the record of interview that E had motivation not to be truthful, prosecution counsel contended the appellant’s counsel failed to put that suggestion to E in cross-examination.
Prosecution submitted distribution was proved by E’s evidence about receipt of the images from the appellant, locating three of the four images on the appellant’s phone and admissions in the appellant’s record of interview of having sent and shared the images to E.
Prosecution submitted the complainant tried to be honest and recall incidents to the best of her ability, was very clear on her position in relation to consent and to what she consented and that she never gave consent to distribution to E. Prosecution referred to the complainant’s evidence about the conditional agreement to share with Trevor and David and her clear and unchanging evidence about the withdrawal of consent on Christmas Day 2019. Prosecution referred to the complainant’s evidence identifying herself in the images, including evidence about the circumstances in which the photographs were taken.
Prosecution submitted that, in the record of interview, the appellant made statements leading to some form of admission. Prosecution submitted the appellant’s denials of conversations, and of anything in writing, about consent were contradicted by the documentary evidence. Prosecution submitted it could be inferred from the record of interview that the appellant relied on the complainant’s occupation, Facebook profile and the complainant having sent photographs of herself to someone else, which fell short of knowledge of consent or reason to believe consent was given. Prosecution pointed to the evidence that the images were shared in January with E at which time the complainant and appellant were still in a relationship, but the complainant was unaware the appellant had commenced a relationship with E and did not know E. Counsel submitted if a person does not know another person exists, it would not be possible to consent to photographs being shared with them, unless there was complete consent to share photographs with anyone. Counsel submitted that a reasonable person in a relationship would not think it was okay to share intimate images of that person with a potential future partner.
In closing, counsel for the appellant submitted one of the images was not invasive, only three images were located on the appellant’s phone, the complainant’s self-identification in some images was equivocal, the lingerie and watch were common items and it was not clear which images were identified by her. Counsel submitted failure by police to seize the complainant’s watch and lingerie were fatal flaws in the prosecution case.
Counsel contended E did not specifically identify any individual image (only Exhibits P1 and P2) and E gave no specific date of receipt. Counsel submitted there were issues with E’s credibility, she gave evidence in the context of a failed relationship, she gave a large number of inconsistent statements, there was significant acrimony and vengeance is not uncommon.
Counsel endeavoured to persuade the Magistrate not to accept the complainant’s evidence on grounds including that her evidence was at times non‑responsive, contained self-justifying monologues and she presented evidence in a barracking manner. He submitted there were messages between the appellant and complainant not before the Court. Counsel submitted the complainant gave strange evidence about the second Facebook page and said there was a clear inference it was a page promoting herself as an exotic dancer which contained photos of herself in various states. Counsel contended the Magistrate could not accept the complainant’s word beyond reasonable doubt and she must have some concern about gaps in the messages provided to the police, which were said to be suspicious and strange, and the absence of a complete narrative in a toxic relationship breakup.
Counsel submitted the Magistrate could not exclude beyond reasonable doubt that the appellant believed there was consent and she could not exclude that he had reason to believe the complainant consented. He submitted the complainant gave the appellant mixed messages and the appellant was consistent in his record of interview about his belief of consent. Counsel contended that there was a course of conduct where the complainant was either giving consent or placing different conditions at different times by text message but there was no text message supporting her evidence of withdrawing consent on Christmas Day. Counsel submitted that the Magistrate could not exclude reasonable doubt that some messages may have caused the appellant to get to a point where he believed there was consent and, other than the complainant’s identification, there was nothing identifiable in the images. Counsel submitted that if the complainant’s evidence was accepted without clear corroboration, there was a grave risk of miscarriage of justice.
In relation to the record of interview, counsel for the appellant submitted there were initial general denials by the appellant and, if they were misleading, asked the Magistrate not to conclude they were said out of any consciousness of guilt because the record of interview later became quite specific. Counsel for the appellant submitted there was not a single question put to the appellant in the record of interview about the Christmas day conversation.[60] Counsel submitted there were specific and complete denials in the record of interview, the Magistrate ought to accept as truthful the appellant’s statements to the effect there was no conversation or formal agreement they could not share photos, and the Magistrate should ignore certain parts of the interview as irrelevant. In relation to the identification of photos by the appellant, counsel submitted it was not clear from the record of interview which photos were identified and what was taken from the phone was most reliable as to what may or may not have been distributed.
[60] However, see Record of Interview at 5, lines 196 – 207 which refer to an asserted conversation at Christmas 2019.
The Magistrate’s reasons
The Magistrate set out the offence in s 26C(1) of the Act.[61]
[61] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [1].
The Magistrate summarised, albeit briefly, the cases put for each of the prosecution and the appellant. She described the prosecution case as being that the complainant did not consent to the appellant distributing four images of her to E, who became the appellant’s next girlfriend.[62] The Magistrate referred to the appellant’s argument as being that the complainant had previously consented to the distribution of explicit images of her body, and he believed she would not object to further distribution to his new girlfriend.[63]
[62] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4].
[63] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [5].
The Magistrate then summarised some background to the relationship between the appellant, the complainant and E and the factual background leading to the proceeding[64] and summarised the evidence of E, the complainant and Brevet Sergeant Williams.[65]
[64] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4].
[65] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [8]-[29].
The Magistrate addressed comprehensively a preliminary legal issue raised by parties, that is, the interaction between ss 5 and 26C(1) of the Act, in particular, whether or not s 5 of the Act applied to shift the ordinary onus of proof and require the appellant to prove consent. After careful consideration, the Magistrate concluded that s 5 of the Act did not apply to s 26C so as to displace the burden of proof and require the appellant to prove the element of consent for s 26C(1). It followed that prosecution bore the onus of proving beyond reasonable doubt all elements of the offence including that the appellant knew, or had reason to believe, that the complainant did not consent to distribution of the images. The Magistrate’s analysis quoted s 26C[66] and included a reference to the definitions of “distribute” and “invasive image” for the purpose of s 26C(1).[67]
[66] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [34].
[67] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [32]-[33].
The Magistrate addressed a number of matters under the heading “Credibility”.[68] The Magistrate noted that omissions in seizing exhibits from the complainant was a potential disservice to the Court and to the appellant but was not significant in determining the case. The Magistrate also noted it could be presumed there was disagreement between the appellant and complainant on when events occurred, such as whether the complainant stayed at the appellant’s house on Christmas Eve or Day, but whether the complainant was correct about dates of events was irrelevant to determine the elements of the offence and irrelevant to credibility.[69] The Magistrate considered the cross-examination of the complainant about her work as an exotic dancer was irrelevant to her credibility and irrelevant to whether the appellant had direct or implied consent to publish the complainant’s images.[70]
[68] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [64]-[73].
[69] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [65].
[70] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [66].
The Magistrate stated the inference by the appellant’s counsel that, because the complainant was an exotic dancer or used a nudist beach, she would not mind the appellant distributing images, showed a self-serving bias.[71] The Magistrate said it was disrespectful and not insightful to suggest during cross‑examination of the complainant that because she used her body to earn an income, she could expect to be treated differently from women who enjoy voyeurism or only publish images to boyfriends.[72]
[71] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [66].
[72] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [66].
The Magistrate made findings in relation to E’s evidence.[73] The Magistrate concluded there was no reasonable basis for E’s evidence that she assumed the appellant would not share the images E had provided to him, this evidence lacked plausibility, and that E’s explanation (that she would hope in a similar situation other women would let her know) was “problematic”.[74] Nevertheless, the Magistrate accepted E’s evidence that the appellant disclosed the complainant’s identity to E, as all three were involved in trail running and he wished to warn E that the complainant may be jealous if he saw them together. She accepted E’s evidence that the appellant identified the complainant as “…the running girl that I was sleeping with”, and the appellant found the complainant’s Facebook profile because E wanted to be able to identify her if they crossed paths.
[73] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [67]-[68].
[74] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [67], [69].
The Magistrate addressed the complainant’s evidence under the heading “Credibility”.[75] The Magistrate said the complainant’s assertions she told the appellant he was not to share her images with anyone else because they were private, and only meant to be shared by them, was inconsistent with the complainant allowing the appellant to send images to Trevor and David. The Magistrate said there was no nexus between allowing the appellant to send her images to other persons and asserting that sharing the images was to establish trust with the appellant. By that, I understood the Magistrate to mean that there was inconsistency between those two matters. The Magistrate said the complainant’s promises to send increasingly sexualised images once the appellant earned her trust was a motivation at odds with the voyeurism the complainant promoted by sharing images with Trevor and David, particularly as she had no interest in finding out which images were being shared with David. The complainant followed her consent for David to see her images with an offer for the appellant to allow David to see images that included the complainant’s face. The Magistrate referred to the fact that the appellant was more protective of the complainant’s privacy than was the complainant. She said the complainant:[76]
…was giving mixed messages about her need for privacy and these attitudes suggest she had no objection to an unknown man, David, looking at images which identified her and without her knowing what he was looking at.
[75] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [71]-[73].
[76] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [71].
The Magistrate then stated the complainant’s permission for the appellant to show images to Trevor and David did not lead to an inference that this permission would cover sending images to a future girlfriend, who the appellant had warned the complainant may be jealous of if she found out. She accepted as plausible and logical that jealousy may be exhibited if the appellant, the complainant and E met at running events. The Magistrate noted the appellant must have assumed the breakup was not to the complainant’s liking or he would have not presumed she would harbour jealous feelings afterwards.
The Magistrate then stated:
[72] … I accept [the complainant’s] evidence that by Christmas Day 2019, when she was disappointed by [the appellant’s] disrespectful treatment of her at her work Christmas parties and being unable to find out from [the appellant] the type of relationship he considered they were having, she told him she no longer agreed to him distributing the sexualised images of her.
[73] Even though she changed her mind from:
dictating that her images be used for the exclusive use by [the appellant]; to,
allowing him to show images to Trevor, with her prior approval; to,
cart blanche permission to show her faceless images to David;
these changes of heart or mind do not suggest she would grant permission, after their breakup, for [the appellant] to show his new girlfriend images of her.
Under the heading “Findings”, the Magistrate found Exhibits P10 – P13 were images sent by the appellant to E’s Instagram page and given to Brevet Sergeant Williams, which the complainant recognised as images of her taken by or sent to the appellant. The Magistrate found that E and the complainant provided copies of these images to Brevet Sergeant Williams. She found that E knew the images depicted the complainant because the appellant identified the complainant to her. The Magistrate further found that the complainant did not consent to E being sent the images.[77]
[77] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [76].
The Magistrate rejected the suggestion that there was nothing to enable the complainant to identify herself in Exhibit P10 and found that she recognised it. The Magistrate found Exhibit P11 was an image of the complainant and noted the top depicted and produced during the complainant’s interview. The Magistrate accepted the complainant’s recognition of her own legs and hands in Exhibits P12 and P13 and that these were images of the complainant.
The Magistrate then stated:[78]
Prosecution have proved the charges beyond reasonable doubt in each offence. There was nothing raised by the [appellant’s] explanation in his Record of Interview or during cross‑examination which suggested other than [the appellant] did not have [the complainant’s] consent to distribute her images and there was no reason to believe [the complainant] would consent to him showing [E] these images. It is clear from their emails during the relationship that [the appellant] knew to ask [the complainant] for permission to distribute any images of her.
(citations omitted)
[78] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [80].
Principles on appeal
The appeal is brought pursuant to s 42(1) of the Magistrates Court Act 1991 (SA) (“Magistrates Court Act”) and is governed by Chapter 12A of the Supreme Court Criminal Rules 2014 (SA).
Justice Doyle set out the approach to be taken to such an appeal in Frunks v Police (SA):[79]
As this is an appeal by way of re-hearing, I am required to undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. It is not necessarily enough to justify dismissing the appeal that there was evidence which meant it was open to the Magistrate to reach the decision he did. If, despite taking account of the Magistrate’s advantage in seeing and hearing the witnesses, I reach a different view on the evidence I must give effect to that by substituting my view for that reached by the Magistrate, or if it is appropriate by remitting the matter for a re-trial.
That said, the appeal is not a hearing de novo and so I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error. Further, in conducting my own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, I should nevertheless have regard to the findings of the Magistrate, and any advantage that he may have had in making these findings.
(citations omitted)
[79] Frunks v Police (SA) [2016] SASC 120 at [11]-[12].
Issues on appeal
There were three grounds of appeal as follows:
1. The Learned Magistrate erred in law in failing to give any, or any adequate, reasons for finding the charges proved beyond a [reasonable] doubt and the Appellant guilty, and, in particular, the Learned Magistrate:
1.1. failed to identify the elements of the offence which were in contest at trial;
1.2. failed to make reference to the submissions put by the parties, particularly the Appellant, at trial;
1.3. failed to acknowledge the repeated denials of éléments of the offence by the Appellant in his interview with police;
1.4. failed to make any finding in relation to the credibility and the reliability of [the complainant] and [E];
1.5. failed to reveal the process of reasoning which resulted in the finding of guilt and which would permit an examination of the decision on appeal.
2. The Learned Magistrate erred in law in reversing the onus of proof when erroneously stating at Judgment paragraph 80:
"There was nothing raised by [the appellant's] explanation in his Record of Interview or during cross-examination which suggests other than [the appellant] did not have [the complainant’s] consent to distribute her images and there was no reason to believe [the complainant] would consent to showing [E] these images …"
3. In all of the circumstances, the finding of guilt is unsafe or unsatisfactory.
Each ground was interrelated. The appellant put submissions on each ground on the basis they should be read and treated as submissions on each other ground. Accordingly, I have addressed the appeal grounds together.
Appellant’s submissions
Adequate reasons
Counsel for the appellant submitted a magistrate must give reasons containing enough detail for parties to understand the reasoning how each conclusion was reached, and to enable this Court to examine the decision and determine the appeal.[80] A failure to do so constitutes an error of law.[81] The appellant submitted a magistrate is obliged to identify and record the elements of the offence and which are in issue, state the principles of law to be applied, findings of fact and statements of the reasoning process linking law and fact to justify the verdict reached.
[80] Phillips v Arnold (2009) 19 Tas R 21 at [64]; Greenham Tasmania Pty Ltd v Director of Public Prosecutions (Tas) [2021] TASSC 51; Webb v Tang [2021] WASC 344 at [217]-[218]; Garrett v Nicholson (1999) 21 WAR 226 at [73]-[74]; Carlson v King (1947) 64 WN (NSW) 65 at 66; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388; Lloyd v Faraone [1989] WAR 154 at 162-163.
[81] Pettit v Dunkley [1971] 1 NSWLR 376; Greenham Tasmania Pty Ltd v Director of Public Prosecutions (Tas) [2012] TASSC 51.
Counsel relied upon DL v The Queen as to the adequacy of reasons:[82]
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
(citations omitted)
[82] DL v The Queen (2018) 266 CLR 1 at [33].
Counsel submitted no reason was disclosed as to why the complainant’s evidence was accepted beyond reasonable doubt or how it proved the elements of the offence to the requisite standard. The complaints were distilled into contentions that the Magistrate’s reasons did not:
15.1. summarise the crucial arguments of the parties,
15.2. formulate the issues for decision,
15.3.resolve the critical issues of fact, which were whether it was proved beyond reasonable doubt that the complainant did not consent to the distribution of the images, and, if so, what was the appellant’s state of mind ? Each of these issues needed to be determined before the verdict could be arrived at,
15.4.explain how competing the [sic] arguments of the parties were to be dealt with, because her Honour did not consider the arguments of the parties at all, or
15.5.apply the law found to the facts found, or make any attempt to explain how the verdict followed.
Counsel submitted that, accounting for the whole trial record, it was not apparent either explicitly or by inference from the reasons:
19.1.on what basis the complainant’s evidence was accepted beyond reasonable doubt,
19.2.on what basis the evidence accepted beyond reasonable doubt supported a finding that the elements of the offence were proved beyond reasonable doubt, in particular the elements of the offence as to the complainant’s consent and the appellant’s belief that the complainant was not consenting, or any basis to believe that the complainant was not consenting, and
19.3.ultimately, on what basis her Honour reasoned to conclude that the elements of the offence were established beyond reasonable doubt.
Counsel submitted the highest point of the Magistrate’s analysis of the complainant’s evidence was to find that, although the complainant changed her mind about aspects of what she had consented to, those changes of heart or mind did not suggest she would grant permission after the end of the relationship to the appellant to show his new girlfriend photographs of the complainant. Counsel asserted that the Magistrate made relevant factual errors (as to an agreement for sharing photographs with David and Trevor and the date on which the relationship ended).
Counsel submitted the Magistrate reversed the onus of proof in rejecting the appellant’s denials in his record of interview.
Counsel asserted the prosecution case depended solely on the complainant’s evidence.[83] Counsel submitted the Magistrate did not analyse the complainant’s purported selective evidence provided to the police, nor her reliability, credibility, motivations, or presentation at trial,[84] in a context in which the Magistrate found the complainant’s evidence inconsistent, her motivations at odds and that she gave mixed messages.[85] Counsel submitted the reasoning did not disclose how the Magistrate accepted the complainant’s evidence beyond reasonable doubt, or how the Magistrate applied that evidence to the elements and particularly, whether the complainant consented to the distribution and, if so, the appellant’s state of mind.
[83] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T4.9‑11.
[84] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T10.3‑10, T15.16-19, T17.12-13.
[85] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T11.24-38 - T12.1-22.
Counsel submitted that there was no relevant distinction between credit and demeanour in the present case.[86] Rather, the criticism related to the acceptance by the Magistrate of the evidence of E and the complainant, having made adverse findings about them but not the appellant, without adequate reasons.[87]
[86] In oral submissions counsel for the appellant submitted demeanour was a live issue at trial but in written supplementary submissions submitted demeanour was not in issue at trial or on appeal: Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T8.23-27; Appellant’s supplementary written submissions dated 4 July 2022 at [4].
[87] Appellant’s supplementary written submissions dated 4 July 2022 at 2-3.
Counsel submitted that, where a person is open about their body image, they may consent to its publication or distribution, and the complainant’s occupation and attitude toward body image are relevant and important factors to the appellant’s belief as to consent.
Counsel submitted that, if it was open to the Magistrate to reject the appellant’s evidence in the record of interview, it was imperative reasons were given for doing so.[88] Although the content of a record of interview is not evidence on oath, counsel contended it still obliged the Magistrate to make reference to the “denials and the explanations” contained within it and make findings and produce reasons in relation to it.
[88] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T15.33-38 - T16.1-4.
Counsel for the appellant submitted that the elements actually in contest at trial were “the issue of [the complainant’s] consent and whether in the firmament of the relationship at the time it's reasonably possible she might have consented, particularly bearing in mind the history of the relationship, and of course his subjective belief, if in fact she didn't consent, and that had to occur in the context of the record of interview”.[89] Counsel submitted that the findings made were not really in issue, nor central to the case and that, without referring to the elements of the offending, or identifying the real issues in the trial, the Magistrate summarised the evidence and simply purported to find the offences proved beyond reasonable doubt. Counsel submitted this Court cannot discern the Magistrate’s reasons for verdict and an error of law is established.
[89] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T15.1-11.
Reversal of onus
Counsel contends the Magistrate reversed the onus of proof by virtue of the following sentence:[90]
…There was nothing raised by the [appellant’s] explanation in his Record of Interview or during cross-examination which suggested other than [the appellant] did not have [the complainant’s] consent to distribute her images and there was no reason to believe [the complainant] would consent to him showing [E] these images...
(citations omitted)
[90] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [80].
Counsel contends the language in this paragraph strongly suggests the Magistrate was looking for something in the appellant’s record of interview that contradicted the complainant’s evidence. Counsel characterised this as the Magistrate making it incumbent on the appellant to raise things in his record of interview or cross‑examination, thus reversing the onus, and not having done so to the Magistrate’s satisfaction, he was to be found guilty.
Counsel also asserted the Magistrate did not make any references to the relevant standard of proof until [80]. Counsel conceded this was not necessarily fatal but took on significance given the words used and the lack of any reference to the element of the offence in the reasons. Counsel submitted that, if the appellant’s evidence was not accepted, it was to be put to one side. The appropriate question was whether the complainant’s evidence was credible and reliable such that it proved beyond reasonable doubt a lack, or absence, of consent, and that the appellant believed, or had reason to believe, the complainant did not consent.
Unsafe or unsatisfactory verdict
Counsel relied upon M v The Queen (“M v The Queen”).[91]
[91] M v The Queen (1994) 181 CLR 487 at 494.
Counsel contended the Magistrate found that the appellant did not have the complainant’s consent to distribute the images to E on an erroneous finding about the date the relationship ended.[92] He submitted the Magistrate found the relationship ended prior to the distribution,[93] but the evidence in fact established the relationship ended on 4 February 2020 after the offending.
[92] Appellant’s written submissions dated 5 April 2022 at [34].
[93] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4].
Counsel submitted the evidence was insufficient to prove beyond reasonable doubt that the appellant believed, or had reason to believe, that the complainant did not consent to the distribution of the images.[94] He submitted the verdict of guilt was unsafe and unsatisfactory as it was not supported by sufficient evidence to prove an essential element of the offence beyond reasonable doubt.
[94] Appellant’s written submissions dated 5 April 2022 at [40]-[41].
Counsel submitted there was no direct evidence which went to the appellant’s state of mind, other than his interview where the appellant strenuously denied having knowledge or reason to believe the complainant did not consent. Counsel submitted the complainant was reasonably free with whom she allowed the appellant to distribute the images and this submission went to countering the allegation that the appellant believed, or had reason to believe, the complainant did not consent.
Respondent’s submissions
Adequate reasons
Counsel for the respondent submitted that whether reasons are adequate depends upon the complexity of charges, the elements of the offence, the issues in the case, the evidence called, the use to which evidence was put and the way the case was run at trial.[95]
[95] Perkins v County Court of Victoria (2000) 2 VR 246; Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247; Pettitt v Dunkley [1971] 1 NSWLR 376; R v Arnold [1999] 1 VR 179; Farrugia v The County Court of Victoria [2000] VSC 11; DW v The Queen (2004) 150 A Crim R 139; Makeham v Sheppard [2020] VSCA 242 at [36], [37].
Counsel contended each element of the offence was included in the reasons through the analysis of the fault element of the charge and the analysis of s 5 of the Act. She submitted that, given the offence elements were not complex, there could be no question that the Magistrate was aware of the elements of the offence and addressed each element of the offence in varying detail depending on the level of dispute and complexity. Counsel contended the two critical elements in issue at trial were whether the complainant did not consent and whether the appellant knew or had reason to believe the complainant did not consent.[96]
[96] Transcript of Appeal, Goring v Police (Supreme Court of South Australia, 22/17, 14 April 2022), T23.20-23.
Counsel submitted:
·The elements of “distribute” and “invasive image” were not in issue at trial but were nonetheless addressed, unsurprisingly briefly, in the reasons.[97]
·The element requiring the images be “of the complainant” was in dispute and the Magistrate accepted the respondent’s evidence of self‑identification on the basis she recognised the image and/or items in the image.[98]
·The findings of the element of the complainant’s non-consent were brief but consent occupied a significant portion of the reasons. The Magistrate accepted the complainant, by 25 December 2019, no longer agreed to distribution of her images.[99] As a direct statement proves the element of non-consent, the Magistrate was not required to provide further explanation.[100]
·As to the appellant’s knowledge or reason to believe the complainant did not consent, the Magistrate relied upon messages during the relationship to establish the appellant knew he had to ask for permission to distribute images.[101] She used the fact of agreement to distribute to two specified persons to support a finding that, because specific consent had been provided to two persons, consent was in issue, and the appellant knew to ask the complainant for permission to distribute images of her.[102]
[97] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [76].
[98] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [77]-[79].
[99] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [72].
[100] Respondent’s written submissions received 11 April 2022 at [40].
[101] Respondent’s written submissions received 11 April 2022 at [34]; Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [80].
[102] Respondent’s written submissions received 11 April 2022 at [35].
Counsel for the respondent submitted that non-consent was a question of fact and could occur verbally or be expressed by actions or in other ways. Counsel submitted that whether the appellant had reason to believe the complainant did not consent is an objective test. She referred to Collins v Northern Territory[103] in which French J said the words “reason to believe” (which frequently condition the exercise of statutory powers) are used to ensure that the exercise of the power is justified by reference to objective facts and is not to be exercised simply upon unsupported belief.
[103] Collins v Northern Territory (2007) 161 FCR 549 at [64]-[66] per French J, obiter (and in dissent in addressing the directly relevant questions on appeal). The majority judgment was set aside on appeal to the High Court in Northern Territory v Collins (2008) 235 CLR 619 on other issues.
Counsel submitted that the complainant’s professional Facebook profile and occupation as an exotic dancer were irrelevant to credit and consent and whether she distributed invasive images of herself was irrelevant to consent.
While counsel conceded the Magistrate’s reasons were not optimal and her references[104] were a simplistic summary of the parties’ cases, nevertheless the summary of evidence and findings of fact in the reasons expanded upon matters critical for proper determination of the proceeding.
[104] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4], [5] and [66].
Counsel submitted that, as the appellant did not give oral evidence at trial, the denials in his record of interview did not have the same weight as evidence on oath[105] and it was open to the Magistrate to reject the appellant’s evidence given his denials were to be considered against, and were contrary to, independent and contemporaneous messages.
[105] Mule v The Queen (2005) 79 ALJR 1573.
Counsel accepted the Magistrate did not articulate expressly why the Magistrate accepted the complainant’s evidence in relation to the Christmas Day conversation, but the Magistrate considered the complainant’s credibility.[106] The respondent’s counsel emphasised that the complainant was the only witness whose credit and reliability was fundamental to the element of non-consent and that this Court must have appropriate regard to the fact the Magistrate saw and heard from the complainant.[107] Counsel for the respondent submitted that a finding based on credibility of a witness is not to be set aside because an appellate court considers the probabilities are against that finding unless it can be shown that the fact finder has failed to use or has misused his or her advantage or acted on evidence which was inconsistent with incontrovertibly established evidence.[108] Counsel also submitted that where a question of accepting or rejecting evidence is based on the witness’ demeanour, there is no requirement for the fact finder to give a detailed explanation for a decision to prefer the evidence of one witness over another.[109]
[106] Respondent’s written submissions received 11 April 2022 at [36]-[37]; Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [65]-[66], [71]-[73].
[107] Respondent’s written submissions received 11 April 2022 at [38].
[108] Respondent’s supplementary written submissions received 28 June 2022 at [5]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
[109] Respondent’s supplementary written submissions received 28 June 2022 at [7]-[9]; Prouten v Chapman [2021] NSWCA 207.
Counsel contended that while adequate reasons facilitate this Court discharging its duty, the essential nature of the task remains the same, however adequate or otherwise the reasons are.[110] The respondent acknowledged that in some cases of inadequate reasons, the nature of issues and evidence at trial may render a decision on the transcript alone unreliable or unjust. The respondent contended this is not such a case.
[110] Respondent’s written submissions received 11 April at [18]; Taylor v Hayes (1990) 53 SASR 282 at 291; Rowland v Police (2001) 79 SASR 569 at [36]-[40].
Reversal of onus
Counsel for the respondent submitted the appellant’s argument failed to have regard to the Magistrate’s consideration of the burden of proof in the context of the preliminary argument.[111] Counsel submitted there was no risk the Magistrate, by subtle implication, reversed the onus of proof.
[111] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [36], [61].
Counsel accepted it was incumbent on the Magistrate to consider the appellant’s account in his record of interview and the Magistrate was correct not to use the record of interview as an admission.
Counsel submitted that if the appellant’s account was not believed, it was to be put to one side[112] and the question remaining was whether the prosecution, on the basis of accepted evidence, had proved guilt beyond reasonable doubt. Counsel submitted there was nothing to suggest the Magistrate did anything other than put the evidence to one side and that findings of non-consent and knowledge of non‑consent were open on the rest of the evidence.
[112] Liberato v The Queen (1985) 159 CLR 507 at 515; De Silva v The Queen (2019) 268 CLR 57.
Unsafe or unsatisfactory verdict
Counsel contended that M v The Queen guides an appeal pursuant to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). However, the task on an appeal brought pursuant to s 42 of the Magistrates Court Act, requires this Court to make its own assessment of the evidence and if the appellate court comes to a different conclusion to that of the Magistrate, it must give effect to that view.
Counsel contended that even on a review of all of the evidence, there was ample evidence to support a finding beyond reasonable doubt of the appellant’s guilt.
Adequacy of reasons – legal principles
The failure of a Magistrate to provide adequate reasons for conviction is an error of law.[113] A Magistrate is not obliged to produce long and elaborate reasons and it suffices to provide a “short succinct statement of the essential process” by which the Magistrate arrived at the decision.[114]
[113] Barry v Police (SA) (2009) 197 A Crim R 445 at [9]; Papps v Police (2000) 77 SASR 210.
[114] Rowland v Police (2001) 79 SASR 569 at [32], [35].
Adequacy will be dictated by, and must be assessed by reference to, the nature of the evidence and the issues raised,[115] the circumstances of the case,[116] the complexity of issues and whether the questions for determination are of fact, and/or law.[117]
[115] Makeham v Sheppard [2020] VSCA 242 at [36]; DW v The Queen (2004) 150 A Crim R 139 at [27].
[116] Pettitt v Dunkley [1971] 1 NSWLR 376 at 390; Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 at 258.
[117] Perkins v County Court of Victoria (2000) 2 VR 246 at [64].
It is not sufficient merely to set out evidence and say some evidence is preferred to another, without any analysis or explanation why evidence is rejected.[118] The trial judge is required to address counsels’ arguments and must say why and how a question raised is resolved in the favour of one party.[119] It is not enough for the trial judge to state her or his satisfaction that the elements of the offence are proven to the requisite standard, without articulating the link with findings of fact that the relevant offence occurred.[120]
[118] Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 [129]-[131] per Hayne J (McHugh and Gummow JJ agreeing).
[119] AK v Western Australia (2008) 232 CLR 438 at [16].
[120] AK v Western Australia (2008) 232 CLR 438 at [36], [45].
Even if a trial judge accepts the evidence of a complainant as truthful, and is not persuaded by sworn evidence of the accused, it is nevertheless necessary to determine whether the evidence as a whole proves the offence beyond reasonable doubt.[121] There can be no conviction unless the trial judge is satisfied the accused’s evidence is not reasonably possibly true.[122] If there is a failure to record any findings about the appellant’s evidence, it may give rise to a possibility that the trial judge simply preferred the complainant’s evidence and convicted on it, applying a standard less than proof beyond reasonable doubt .[123]
[121] Douglass v The Queen (2012) 86 ALJR 1086 at [13].
[122] Douglass v The Queen (2012) 86 ALJR 1086 at [13] citing Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J.
[123] Douglass v The Queen (2012) 86 ALJR 1086 at [14].
In a case in which evidence of a complainant is crucial and the trial judge accepts that evidence, detailed explanation is not necessarily required. In R v Keyte, in considering an argument about the adequacy of reasons in a case in which the trial judge accepted the evidence of a complainant and rejected the evidence of an accused, Doyle CJ stated (with Wicks J agreeing):[124]
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[124] R v Keyte (2000) 78 SASR 68 at [56].
The scope of the duty is to explain, not to write an exhaustive treatise on all aspects of the trial.
Where there are allegations of inconsistencies between established fact and the evidence of a witness, the judge should identify that competing evidence and explain how the conclusion is reached.[125]
[125] Woolworths Ltd v Warfe [2013] VSCA 22 at [134].
Ultimately, whether reasons are adequate is highly contextual in any given case and will depend upon the circumstances and issues in the case and the nature of the evidence and submissions.[126]
Analysis in relation to adequacy of reasons
[126] R v Keyte (2000) 78 SASR 68 at [57]; Prouten v Chapman [2021] NSWCA 207 at [32] per Brereton JA.
Asserted failure to refer to submissions
The Magistrate summarised, albeit briefly, the cases for each of the prosecution and the appellant. She described the prosecution case as being that the complainant did not consent to the appellant distributing four images of her to E, who became the appellant’s next girlfriend.[127] The Magistrate referred to the appellant’s argument as being that the complainant had previously consented to the distribution of explicit images of her body and he believed she would not object to further distribution to his new girlfriend.[128] The Magistrate summarised the parties’ cases in relation to the preliminary issue[129] and also referred to matters put to the complainant by the appellant in cross-examination.[130]
[127] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4].
[128] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [5].
[129] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [37]-[38].
[130] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [66].
Although the summary is not extensive and it would have been desirable to include additional detail, the brief references summarise the core of the cases put to the Magistrate. I do not accept that the Magistrate failed to consider at all the parties’ arguments.
Asserted failure to identify elements of the offence
The Magistrate commenced her reasons by paraphrasing the offence.[131] The Magistrate later quoted the offence[132] and the legislative definitions of “distributes” and “invasive image” in the context of analysing the preliminary issue (that is, whether s 5 of the Act applied to s 26C(1) to displace the legal presumption that the prosecution must prove all elements of the offence).[133] Having set out the offence for the purpose of the preliminary analysis, there was no need for the Magistrate to restate the elements of the offence when addressing whether, on the evidence, the elements of the offence were proved beyond reasonable doubt.
[131] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [1].
[132] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [34].
[133] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [32]-[33].
The passage in [80] of which complaint is made must be read in the context of the Magistrate’s repeated, appropriate statements about the onus and standard of proof. I do not accept the appellant’s submission that the Magistrate failed to make any references to the relevant standard of proof until [80]. The Magistrate engaged in a comprehensive analysis of whether or not s 5 of the Act applied to s 26C(1) to shift the onus and require the appellant to prove consent, referred to the legal presumption that the prosecution must prove all elements of the offence[142] and to the onus of proof beyond reasonable doubt[143] and expressly stated that the prosecution has the burden of proving the appellant knew, or had reason to believe, the complainant did not consent to distribution.[144] The Magistrate understood the elements of the offence, understood the prosecution’s burden of proof and did not reverse it.
[142] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [36] and [61].
[143] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [61].
[144] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [31].
It is also necessary to read [80] in the context of the reference (in the same paragraph) to Exhibits P4, P5, P7, P8 (which were the messages containing the limits and conditions on distribution) which the Magistrate stated made it clear that the appellant knew to ask the complainant for permission to distribute. I do not accept the submission that [80] evidences a strong suggestion that the Magistrate was looking for something in the appellant’s interview that contradicted the complainant’s evidence, such that she must have inadvertently reversed the onus of proof. I understand the reference to the exhibits to demonstrate the reason why the Magistrate did not accept the appellant’s account in his record of interview. The Magistrate made no further use of the record of interview. Taken in the context of the reasons as a whole, including the messages concerning permission to distribute, I do not consider the paragraph demonstrates a risk the Magistrate had the impression she could convict because the appellant’s answers in the record of interview did not offer an account more persuasive than that of the complainant or she convicted the appellant on the understanding it was sufficient that she preferred the evidence of the complainant over the accused’s account in the record of interview.[145]
[145] (2019) 268 CLR 57.
Unsafe or unsatisfactory verdict – legal principles
There is distinction between an appeal on the basis a verdict is unsafe or unsatisfactory under s 353(1) of the CLCA and an appeal under s 42 of the Magistrates Court Act.[146]
[146] Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141 at [36]; Taylor v Hayes (1990) 53 SASR 282 at 290-291.
In Martin v The Department of Transport, Energy & Infrastructure, White J stated:[147]
[147] [2010] SASC 141 at [36]-[39].
[36] As previously noted, the appellant’s first ground of appeal is that the Magistrate’s verdict was unsafe and unsatisfactory. A ground of appeal in these terms is commonly seen in appeals under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is, however, inapplicable to appeals under s 42 of the Magistrates Court Act 1991 (SA).
[37] The present appeal is an appeal by way of rehearing. The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.
[38] In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
[39] Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.
(citations omitted)
Where an appellate court addresses an appeal by way of rehearing, the court must set aside a challenged finding of fact which is demonstrated to be wrong. The duty of the appeal court to weigh the evidence and draw inferences and conclusions is not avoided in the face of findings of credit.[148] Where findings are based on the trial judge’s assessment of the oral testimony of witnesses, allowance must be made for the advantage enjoyed by the trial judge in seeing and hearing the witnesses give evidence.[149] An appeal court will be slow to set aside findings based on credit of a witness, even if the probabilities of the case are against the finding, unless the trial judge has failed to use or misused the advantage or acted on evidence which is glaringly improbable, contrary to compelling inferences or inconsistent with other incontrovertibly established facts.[150]
Review of evidence
[148] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480 per Deane and Dawson JJ; see generally Fox v Percy (2003) 214 CLR 118 at 125-128 per Gleeson CJ, Gummow and Kirby JJ.
[149] (1993) 177 CLR 472 at 479- 480 per Deane and Dawson JJ; see generally Fox v Percy (2003) 214 CLR 118 at 125-128 per Gleeson CJ, Gummow and Kirby JJ.
[150] (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; see generally Fox v Percy (2003) 214 CLR 118 at 125-128 per Gleeson CJ, Gummow and Kirby JJ.
Asserted factual errors
Counsel for the appellant asserted the Magistrate made a factual error that the complainant’s relationship with the appellant ended prior to the alleged offending and that erroneous finding was the basis on which the Magistrate found the appellant did not have consent to distribute the images to E.
The Magistrate referred in part of the reasons to the relationship between the complainant and appellant ending prior to the offending,[151] and (inconsistently but correctly) to the relationship between the complainant and appellant ending in February 2020.[152] The Magistrate also referred to the complainant’s changes of heart (in relation to sharing with Trevor and David) not suggesting the complainant would grant permission, after their breakup, to the appellant showing his new girlfriend images of her.[153]
[151] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [4] and [12].
[152] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [18].
[153] Police v Goring (Magistrates Court of South Australia, 20 December 2021) at [73].
The complainant’s evidence was that the relationship ended on 4 February 2020.[154]
[154] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T45.24-36.
I do not consider any error in relation to the date the relationship between the complainant and appellant ended prevented the prosecution establishing beyond reasonable doubt the elements of the offence. It is not the case that any error in the date the relationship ended renders the ultimate conclusion inconsistent with other incontrovertible evidence or contrary to other compelling inferences. The appellant sending images prior to the relationship ending with the complainant of itself may render it more likely that the appellant subjectively believed he had consent. However, the images were sent to a new girlfriend (E) with whom the appellant had commenced a separate relationship while the complainant and appellant were still in a relationship. The Magistrate’s conclusion in [73] in relation to the appellant showing his new girlfriend images has application whether the relationship with that girlfriend started before or after the breakup with the complainant.
Counsel for the appellant contended the Magistrate in [73] confused the agreements to send images to Trevor and David, in that the agreement with respect to David was to show images including the complainant’s face. It is not necessarily apparent that the reference is an error. The complainant gave evidence[155] that after the messages between the appellant and complainant concerning sending images to David, she considered the agreement was that the appellant had carte blanche to send faceless images to David and [73] reflects the Magistrate’s acceptance of that evidence. In any event, I do not consider any potential confusion over whether the agreement in relation to David was or was not in respect of images showing the complainant’s face renders the ultimate conclusion erroneous or inconsistent with other incontrovertible evidence or other compelling findings.
[155] Transcript of Proceedings, Police v Goring (Adelaide Magistrates Court, 19 July 2021), T97.30-38.
Neither counsel submitted that the reference by the Magistrate in [80] to “emails” was an error. The referenced exhibits were messages rather than emails. I do not consider any misdescription gives rise to any significant issue or renders the ultimate conclusion erroneous.
General review
With the appellant’s criticisms in mind, I have reviewed the whole of the evidence before the Magistrate, including that of E and the complainant, and the exhibits. In conducting that review, I have considered and allowed for the Magistrate’s advantage in seeing the witnesses.
For the reasons set out above, the Magistrate made findings in relation to each element of the offence sufficient to enable satisfaction beyond reasonable doubt of the proof of each element. On the critical elements of consent and the appellant’s state of mind, which were the focus of the appeal, I consider the prosecution excluded, as a reasonable hypothesis, the possibility that the appellant did not know, or did not have reason to believe, that the complainant did not consent to the distribution by the appellant of the invasive images to E.
Having considered the evidence in the context of my independent assessment of the evidence as a whole, I am not satisfied the issues raised are sufficient for me to conclude that the Magistrate erred. The Magistrate had an advantage over the appeal court in seeing the witnesses give evidence. I do not consider the Magistrate erred in accepting evidence inconsistent with the appellant’s account in his record of interview. I do not consider on a review of the evidence and reasons that the Magistrate’s decision-making process miscarried.
In relation to establishing distribution, the prosecution submitted, and the Magistrate was entitled to accept, that E did not make any significant concessions and was consistent in her denials in relation to issues relating to proof of distribution and in relation to questions relevant to credit, such as matters put to her about the manner in which the relationship ended.
In any event, irrespective of E’s credit, there was sufficient evidence from other witnesses and documentary evidence to find distribution beyond reasonable doubt. The combination of evidence of the digital forensic officer in relation to the location of three images on the appellant’s phone, the evidence of the investigating police officer in relation to observing the images on E’s Instagram page, obtaining those images from E, the evidence of the complainant identifying four of the images as images of her, the complainant identifying and showing to the police officer the lingerie and watch depicted in some of the images and the complainant’s evidence of identifying herself in the images was sufficient to prove beyond reasonable doubt the distribution of images of the complainant by the appellant to E via Instagram message.
In relation to whether the images were invasive, each image depicts a person in a state of undress with genital regions visible and/or engaged in private acts. The images on their face leave no doubt that they were invasive images.
In relation to the question of consent and the appellant’s state of mind, the Magistrate accepted the complainant’s evidence in relation to the conversation with the appellant in which she withdrew all consent to any distribution. This was an important finding for the purposes of the offence in that, once accepted, it followed that the complainant did not consent. I give due allowance for the Magistrate’s advantage in observing the complainant give evidence. It also follows it was evidence from which the Magistrate could draw an inference about the requisite state of mind of the appellant, that is, that the appellant knew that the complainant did not consent and all permissions were withdrawn because of the conversation.
The same evidence justifies an inference that the appellant had reason to believe that the complainant did not consent. I accept the “reason to believe” aspect of the offence entails an objective test given the juxtaposition between the word “knowing” (which is consistent with subjective knowledge) and the phrase “having reason to believe”.[156] In accepting the complainant’s evidence of the conversation, it necessarily follows the Magistrate did not accept the appellant’s account in his record of interview (which was inconsistent with the complainant’s evidence as accepted by the Magistrate). The complainant’s evidence of the conversation as accepted by the Magistrate was sufficient to establish beyond reasonable doubt the complainant did not consent and the appellant had the requisite knowledge.
[156] Although the references by French J in Collins v Northern Territory (2007) 161 FCR 549 at [64]-[66] are obiter and in the context of the exercise of statutory powers, they have general relevance to the interpretation of the phrase “reason to believe”.
In reaching my view I have not overlooked the Magistrate’s findings that the complainant sent images of herself to the appellant, that she gave mixed messages or that the images were sent to E before the relationship between the appellant and complainant ended and the potential impact of those matters on the appellant’s state of mind.
Further, this was not a case in which the only evidence concerning consent was the word of the complainant. The documentary evidence of the messages established that initially the complainant told the appellant images were not to be shared. Thereafter the complainant agreed to sharing with Trevor and David on the bases set out above. Thus, even absent acceptance of the complainant’s evidence in relation to the conversation (and therefore acceptance that consent was completely withdrawn), the initial messages that images could not be shared and the subsequent messages in relation to the arrangements concerning Trevor and David constituted evidence of specific agreements for permission to share images with specific individuals and on specified conditions, at least in relation to Trevor. That constituted evidence that the complainant gave only limited and conditional permissions to distribution. Those permissions did not relate to or include distribution to E. Even in the context of the Magistrate’s findings of mixed messages, that evidence was sufficient to establish beyond reasonable doubt the complainant’s lack of consent to distribute to E and, by inference, the appellant’s knowledge or reason to believe the complainant did not consent.
The evidence of messages was inconsistent with the appellant’s account in the record of interview. The evidence thus justified the rejection of the appellant’s account in the record of interview.[157] It also justified an inference about the appellant’s state of mind, that is, the appellant knew or had reason to believe at that time that the complainant was not consenting to the sharing of images to anyone. Despite showing a change of position, the messages remain evidence from which inferences can be drawn concerning the appellant’s state of mind. It can be inferred that, contrary to the appellant’s statements in the record of interview (including to the effect that there was no agreement that they could not send images, no restrictions, no written certification etc), the appellant knew the complainant was permitting him to share images with only those two individuals and, in respect of Trevor, on the stated conditions. It also justifies an inference that the appellant had reason to believe the complainant did not consent. Such an express, conditional agreement is inconsistent with a general permission to share and inconsistent with the position put both generally by the appellant and also to the effect that the complainant’s pattern of behaviour (in relation to sharing with Trevor and David), the fact the complainant published images of herself on her professional Facebook page and to other people, and her profession countered the allegation that the appellant believed or had reason to believe the complainant did not consent.
[157] I note that the appellant’s account was inconsistent with the messages and the conversation but also contained internal inconsistency between what amounted in general terms to assertions of mutual agreement they could do what they wanted with the images and assertions of no conversation or agreement.
The Magistrate was entitled to accept aspects of E’s evidence and of the complainant’s evidence, even if she did not accept all of their evidence. I do not consider the evidence of E, relevant to distribution, or the complainant, relevant to consent or the recognition of images, was glaringly improbable. Both E and the complainant were subject to cross-examination on issues relevant to establishing the elements of the offence and in relation to credit. I respect the Magistrate’s assessment and conclusions in that regard. The fact she did not universally accept all aspects of the evidence of E and the complainant supports that position, rather than detracts from it. It demonstrates the Magistrate considered the evidence so as to accept some aspects of the evidence, albeit not all of it.
The Magistrate was entitled to have regard to the evidence of E and the complainant in the context of all of the evidence, including the documentary evidence. In the case of the complainant, that included the messages between the complainant and appellant relating to permissions to share. Those messages gave rise to inferences which supported the Magistrate’s conclusions. I do not consider the Magistrate reached conclusions that were glaringly improbable or contrary to other compelling inferences. I do not consider there was evidence which was inconsistent with other incontrovertible facts or uncontested testimony. Rather, as I have set out above, the documentary evidence supported evidence given by the complainant.
Conclusion
For the reasons above, each of the appellant’s grounds of appeal fail.
Orders
1.I dismiss the appeal.
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