Gray v Police - [2010] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRAY v POLICE
[2010] SASC 246
Judgment of The Honourable Justice Anderson
16 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appellant charged with one count of indecent assault.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
RULE IN BROWNE v DUNN
Agreed fact as part of prosecution case was dictated onto transcript by magistrate - fact related to the absence of telephone records relating to alleged phone call - phone call alleged to have been made directly after the alleged offence took place - defence counsel criticised by magistrate for not asking direct questions about phone call - whether magistrate made an error in the emphasis placed on the questions asked and not asked - whether magistrate made an error in application of rule in Browne v Dunn relating to the treatment of the agreed fact.
Held: The magistrate placed an incorrect emphasis on the failure of defence counsel to ask specific questions - rule in Browne v Dunn misapplied.
Appeal allowed. New trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.
Browne v Dunn (1894) 6 The Reports 67; Reid v Kerr (1974) 9 SASR 367, applied.
R v Calides (1983) 34 SASR 355, considered.

GRAY v POLICE
[2010] SASC 246
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

Mr Gray has appealed against his conviction by a magistrate for indecent assault. He was charged with indecent assault on victim AB on 20 January 2007 at Munno Para West contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).
A trial before the magistrate took place on 7 April 2010 and the magistrate gave judgment and delivered his reasons on 21 April 2010. The magistrate stated that his reasons were “ex tempore in nature”. He explained that he prepared his reasons from notes which he made at the time of the hearing and immediately after the hearing, so even though there was a delay of two weeks between the hearing and the delivery of the reasons he regarded the reasons as ex tempore.
The magistrate was satisfied that all elements of the offence of indecent assault had been proved beyond reasonable doubt and convicted Mr Gray.
Background
At the time of the alleged offence victim AB was 14 years of age. The appellant was aged 38 at the time of the alleged offending.
On the day of the alleged offence, AB had gone to S’s house with her mother H and step-father for a barbeque. At the time, although there is some dispute as to whether the relationship had finally broken down, S was in a relationship with the appellant and both S and the appellant lived in S’s house. AB was going to stay at the house to help S look after a dog that was having complications during pregnancy. AB’s brother A also went to the barbeque.
After the barbeque AB’s mother H and step-father left, as did her brother A and AB stayed behind as planned to help look after the dog. It was intended that she would stay for the night.
Later that night, S went to bed and the appellant and AB stayed in the lounge room and watched television.
No particulars were given in the Information and Summons in relation to the alleged indecent assault. The evidence which was called from AB related to three incidents, all part of the one event, all of which occurred within a short of time of each other when AB says she was assaulted by the appellant whilst they watched television.
The first, which the magistrate refers to as an “initial touching”, took place during a pillow fight. It was alleged that the back of the appellant’s hand came in contact with the region of AB’s breast. The magistrate found that any such touching, if it occurred, was consistent with an innocent or accidental touching.
The second incident, which the magistrate found proved, was that the appellant on two occasions attempted to put his hand up AB’s top. He found that proved. He found that it constituted an indecent assault.
Finally there were two instances on the floor when AB says that the appellant pushed her knees apart and placed himself between her legs, bringing their respective groin areas into contact. The magistrate also found this proved.
A complaint was not made to the police until approximately six and a half months after the alleged incidents.
Grounds of appeal
The appellant filed an amended notice of appeal, and on the appeal was represented by Mrs Shaw QC. Originally there was only one ground of appeal, namely, that the verdict of the magistrate was unsatisfactory, unsafe and/or unreasonable against the weight of the evidence.
I allowed Mrs Shaw to amend the grounds of appeal to file seven additional grounds of appeal as follows:
1.The learned Magistrate erred in his assessment of the significance of the failure of the appellant’s counsel to challenge the alleged phone call by the complainant to her brother and his reliance upon it in his reasons for finding the appellant guilty.
(Reasons paragraphs 12 – 15 XN page 6; XXN p 22).
2.The learned Magistrate erred as a matter of law in relation to the use that his Honour made of the complainant’s statements to her brother and to her mother in the absence of the appellant (Reasons paragraphs 12 – 15, 26, XN p 6 XXN p 23; p32).
3.The learned Magistrate failed to give adequate weight to the prior inconsistent statements of the complainant.
4.The learned Magistrate’s findings are duplicitous in that his Honour found that more than one offence of indecent assault was committed in relation to the single count charged.
5.The learned Magistrate erred in relation to the use that his Honour made of the appellant’s denial that the breakdown of his relationship with another witness resulted from the allegations before the Court (Reasons paragraph 17, 22).
6.The learned Magistrate erred in his approach to the assessment of the evidence of the complainant and the determination of guilt in that his Honour misapplied the onus of proof, in particular, making findings based on an acceptance of the complainant’s evidence as truthful without regard to the contradictory evidence of the appellant (Reasons paragraphs 11 – 12).
7.The learned Magistrate failed to evaluate the evidence of the complainant and to determine the question of proof of the charge upon the basis that this was a case of oath against oath, the appellant denied the allegations when spoken to by the police, the complaint made a number of inconsistent statements and the complainant delayed in reporting the matter to police.
Arguments on appeal
Mrs Shaw focused in her argument on the way in which the magistrate dealt with an alleged telephone call made by AB soon after the alleged incident of indecent assault. In that telephone call AB says that she spoke both to her brother A and to her mother H when she telephoned to ask to be taken home after she alleges the incident occurred.
The issue in relation to this telephone call relates to an agreed fact put in as part of the prosecution case at the outset of the trial. The transcript reveals that at the outset of the trial, before AB was called to give evidence, the magistrate dictated the following onto the transcript:
It is an agreed fact between the prosecution and defence that the investigating officer made all appropriate inquiries in relation to the making of the phone call by the alleged victim to her brother and mother on the day of the alleged offending and shortly after the alleged offending but was unable to obtain any evidence from any telecommunications company confirming any such phone call.
The magistrate dealt with the phone call at [12] of his reasons as follows:
[12]I turn to the issue of the telephone call mentioned in evidence. I note that it was an agreed fact at the outset of the trial that the police investigating this matter had made appropriate investigations and had been unable to find any evidence of a phone call being made in the manner or to the numbers or to the people that were subsequently referred to. The agreed fact was not specific as to a particular telephone number but I accept that it was agreed by prosecution and defence there was no evidence from any of the telecommunications companies to confirm or corroborate that the call in question was made. In this regard I note that it was not put to any of the relevant witnesses that the phone call in question was in fact not made. I repeat – it was not suggested specifically to any of the witnesses that the call was not made, and this was pointed out to defence counsel during closing submissions when counsel started making submissions that I ought to have some doubt about the fact that the telephone call was made. Generally it was put to [AB] that she was making up the whole story because of a concoction or collusion between her and her god sister. That was very general in nature. It was never suggested to [A] that he was lying about the phone call having been received. It was never suggested to [H] that the phone call in fact had not been made. In fact it was never put to [H] that there was ever any collusion or concoction whilst that had been put to the alleged victim, AB. The phone call is significant. I find that the phone call was made. In that regard, whilst it does not in any way prove the truth of the allegation, it does support AB’s evidence, and shows consistency and assists me in assessing her credibility.
It can be seen therefore that the making of the telephone call was an important issue in the magistrate’s mind. The agreed fact was also an important aspect of the magistrate’s reasoning. The magistrate clearly regarded as important the fact that counsel who appeared at the trial for the appellant did not specifically put to AB in cross-examination that there was in fact no telephone call. The magistrate further mentioned the telephone call in his reasons at [14] and [15] when he considered the evidence of AB’s brother A and mother H. He repeated that it was not put to those witnesses that the telephone call did not occur. He also commented that it was not put to those witnesses that they were parties to a concoction or collusion.
The rule in Browne v Dunn
Mrs Shaw argued that consistent with the rule in Browne v Dunn (1894) 6 The Reports 67 defence counsel did sufficiently challenge the prosecution witnesses by questions suggestive of the inference that there was no telephone call. It was put to AB that there was collusion between the witnesses, and in particular that she was put up to her “wild and crazy allegations” by her mother H. It was put to her that she had lied and again it was suggested that it was a collusion between AB, her mother H and the appellant’s partner S. Both AB’s brother and mother were cross-examined in a way which suggested that the telephone call was inconsistent with their conduct on the night in question. It was not suggested to them that they were part of a collusion with AB.
In light of the agreed fact, Mrs Shaw submitted that the challenge made in cross-examination of the witnesses was appropriate and that it was not necessary therefore to go any further, to specifically put that the telephone call did not happen. If the telephone call happened, it occurred in the absence of the appellant and it was not something upon which the appellant could give instructions for the purpose of cross-examination. The attack that was made by defence counsel was clearly based on the unlikelihood of the making of the telephone call with the suggestion that AB’s evidence and the whole story of the complaint was as a result of collusion.
The rule in Browne v Dunn has been described in various ways and is a well-known and frequently applied rule. Wells J in Reid v Kerr (1974) 9 SASR 367 at 376-376 said:
Speaking generally, it is essential to the fair conduct of a trial that a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns the particular witness … As a corollary to this, it must also be borne in mind that where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so he may have an opportunity for explanation.
As I understand it, the purpose of the rule is that counsel, armed with knowledge of what their witnesses will say, should give notice of that later evidence when cross-examining so that witnesses are given the opportunity of answering the relevant point. Put another way, it is designed so that counsel should signal any potential punches so that when and if a knock-out blow is to be delivered it is not delivered without proper notice. It is a rule of fairness.
In this case the agreed fact was led as part of the prosecution case. It arose because the defence had given notice of a challenge to the telephone call and requested details of telephone records from the prosecution. The agreed fact arose when searches conducted by the prosecution through the relevant records of the telephone companies did not reveal any such telephone call. Defence counsel could not be instructed on the point. It was not going to form any part of the defence case. The prosecution was faced with an inconsistency between the telephone companies’ records and the evidence of its witnesses. It was something that the prosecution had to explain, and not something that defence counsel was required to explore.
In those circumstances it seems to me that the magistrate has placed an incorrect emphasis on the failure of defence counsel to specifically put to AB and her brother and mother that the telephone call was not in fact made.
The magistrate goes on to find that the telephone call was made. Mrs Shaw submitted that the magistrate spent his time dealing with the consistency of the evidence given and the credibility of the witnesses but failed to deal at all with the question of reliability. The magistrate used his finding that the telephone call was made to support AB’s evidence and assist him. I repeat what he said at [12]:
[12]… The phone call is significant. I find that the phone call was made. In that regard, whilst it does not in any way prove the truth of the allegation, it does support [AB’s] evidence and shows consistency and assists me in assessing her credibility.
As Mrs Shaw points out, even if AB did make the phone call, that does not support her credibility because it is self-serving. Mrs Shaw submits that the magistrate, faced with the agreed fact, should have been looking at the reliability of the evidence rather than its believability. Instead, the magistrate used counsel’s failure to put the specific question as part of his reasoning to enhance the credibility of AB. That is circular reasoning and is a misuse of the rule in Browne v Dunn.
Other grounds of appeal
I take the view that because of the error which I have found in relation to the use to which the magistrate put the evidence of the alleged telephone call, it is not therefore strictly necessary to deal with the other grounds of appeal. I will mention them briefly because it is relevant to my consideration of whether to remit the matter for re-trial or simply quash the conviction.
One general submission made by Mrs Shaw related to the fact that the magistrate misdirected himself in relation to the onus of proof. Her point was that although instructing himself as to the Calides principle (see R v Calides (1983) 34 SASR 355), he did not apply it. Mrs Shaw argued that the magistrate failed to identify the issue which he had to deal with in relation to the specifics alleged of the indecent assault. He only came to deal with the issues in this case after he, as Mrs Shaw submitted, had wrongly considered the matters relating to the telephone call and questions of credibility and believability rather than reliability. The order of his reasons, it was submitted, showed that he misdirected himself on the onus of proof.
Although the order in which the reasons are delivered might tend to suggest that that is so, I am not convinced that the magistrate has erred in this respect. His reasons are, as he says, ex tempore in nature and one can understand that more considered reasons may have resulted in a more preferable and orderly structure. On my reading of the way in which the magistrate has reasoned, I am not convinced that he has misapplied the onus of proof and therefore the matter comes down, in my view, to the error which the magistrate made regarding his use of Browne v Dunn.
The other grounds really relate to an assessment of the evidence and the weight of the evidence on those other topics. Much of the magistrate’s reasoning involves his impression of the witnesses, and he spent a considerable amount of time analysing the witnesses and the evidence which they gave overall.
In those circumstances it would not be appropriate to interfere with the magistrate on those findings because there is insufficient information available on the papers to enable me to undertake such an exercise.
Some of the evidence of AB reveals considerable inconsistencies as outlined by the magistrate. There is also the delay of some six and a half months between the alleged incident and the complaint. There is the agreed fact in relation to the lack of corroboration of the telephone call. It is my view that for a combination of factors the verdict of the magistrate cannot necessarily be said to be unsatisfactory and unsafe. In any event, his reasons contain an error of law in the way in which the decision of Browne v Dunn was used to the detriment of the appellant.
Conclusion
Mrs Shaw submitted that in the circumstances the matter should not be remitted for re-trial, and for the reasons she advanced, as set out in the amended notice of appeal, the conviction is unsafe and unsatisfactory and that therefore the appropriate decision is that the conviction should be quashed. As I have said, whilst there are certainly inconsistencies in AB’s evidence and the other matters I have mentioned, it is not sufficient in my view to support this ground of appeal.
I consider that this is a case for a re-trial. It is, on my view of the matter, not possible on the papers before me to finally decide the matter. The error relating to the application of Browne v Dunn is one thing, but it is not possible to say, if that were corrected, that there would not be a sufficient basis for a conviction. An error has been made and the matter should be referred for a re-trial before another magistrate.