Hunter v Friedman

[1994] QCA 475

IN THE COURT OF APPEAL [1994] QCA 475

SUPREME COURT OF QUEENSLAND	C.A. No. 314 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Pincus J.A.
[Hunter v. Friedman]

GREGORY JOHN HUNTER

v.

PETER FRIEDMAN (Appellant)

Judgment delivered 09/11/1994

Separate reasons for judgment of each member of the Court, all
concurring as to the order to be made.
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APPEAL ALLOWED, CONVICTION SET ASIDE. ORDER THAT THERE BE A NEW
TRIAL.
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CATCHWORDS:CRIMINAL LAW - APPEAL - CONVICTION - misdirection - alleged assault in taxi of passenger by taxi driver - after alleged assault girl went back in taxi to nightclub - magistrate remarked on sentence that appellant's story unbelievable and that there was no reason for the complainant to have made the story up - whether misdirection - whether new trial should be ordered.

Galvin C.A. No. 132 of 1993, 30 July 1993.

Counsel:Mr P Alcorn for the appellant.

Mr D Meredith for the respondent.

Solicitors:Legal Aid Office for the appellant.

Director of Prosecutions for the respondent.

Hearing date:19 October 1994.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 09/11/1994

The circumstances giving rise to this appeal are set out in the reasons for judgment of Pincus J.A.

The reasons given by the magistrate for convicting the appellant inadequately set out his process of reasoning, and I consider it legitimate to seek an explanation in his remarks on sentencing.

Shortly stated, he considered it "unbelievable", "just too much", "straining credulity", "that a young woman on the Coast would ... get herself into a cab" and travel to Labrador, "... then somehow get herself upset and then somehow get back to [a Gold Coast nightclub] and thereupon concoct a fantastic story about a cab driver assaulting her ...". The plain inference is that, because he considered such a series of events "unbelievable", etc., he was satisfied beyond reasonable doubt that the appellant was guilty.

Three matters may be briefly noted. Firstly, the complainant did not "somehow" get back to the nightclub; it was not in dispute that the appellant drove her there. Secondly, the magistrate cannot have intended to describe the complainant's "story about a cab driver assaulting her" as "fantastic", since his acceptance of that "fantastic story" provided the only foundation for his conviction of the appellant. Thirdly, insofar as the complainant's motive for concocting a "fantastic story" is material, it is not obvious to me that no motive could possibly be imagined.

But the major defect in the magistrate's approach lies in the reason why he believed the appellant. He considered it "unbelievable" that she had concocted her "fantastic story". Assuming that no special virtues or other attributes are to be assigned to young women "on the Coast", this basis for believing what the complainant said seems to involve the proposition that it is unbelieveable that this particular allegation of sexual misconduct would be concocted for no apparent motive.

In my opinion, that proposition cannot be sustained. It is neither legally nor logically permissible to conclude beyond reasonable doubt that B has done what A alleges simply and solely because the alternative possibility is that A has fabricated the allegation and has no apparent motive for doing so. Taken to its extreme, such a proposition would place at greatest risk from false allegations those least likely to offend; an allegation against such a person would derive credibility from the improbability that it would be falsely made. While it is open to a tribunal of fact to take account of matters based on experience, where relevant and probative, it is impermissible to draw an inference which is not supported by evidence and cannot rationally be sustained on the basis of experience. What the magistrate did in this case was effectively to reverse the onus of proof.

To my mind, that is emphasised by the circumstances of the case, in which the complainant has described conduct which strikes me as unusual, both in relation to herself and the appellant who - it is said - first committed a sexual assault, and then, apparently unconcerned by the consequences, concentrated on recovering his fare.

I agree with Pincus J.A. that the appeal should be allowed and a new trial ordered. In my opinion, the new trial should be conducted by a different magistrate.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 09/11/94

The facts which gave rise to these proceedings, the course of proceedings below and the arguments advanced before this Court are canvassed in some detail in the reasons of Pincus J.A. I shall not restate them here except where necessary to explain my own reasons.

As pointed out in the reasons of Pincus J.A. the complainant's version of events on the night in question was such as to give rise to some doubt as to its veracity; and there were a number of significant inconsistencies between her evidence and that of some other prosecution witnesses about what she said to them when she arrived back at the nightclub from which she had departed earlier that night. Nevertheless, the magistrate who

saw and heard all of those witnesses was entitled to believe the complainant's evidence that the appellant had indecently assaulted her on the night in question. The inconsistencies were not so glaring or her evidence so inherently incredible as to preclude that result. The appellant did not give evidence and there were no other witnesses to the alleged assault.

The only substantial question in this appeal is whether the learned magistrate misdirected himself in reaching the result

which he did. Nothing which he said in his reasons for judgment before convicting the appellant would indicate that he did. His

reasons given for convicting the appellant, set out in full in the reasons of Pincus J.A., though unfortunately lacking in any detailed reasoning, express the "clear conclusion" that he

accepted the evidence of the complainant. In referring to her account standing up under rigorous cross-examination he appears to have been referring to her demeanour as well as the general credibility of her version of events. In short, unless one has regard to the learned magistrate's reasons given for sentencing the appellant, which were given after he had considered that question over the luncheon adjournment, there is no reason to believe that he misdirected himself in convicting the appellant.

In sentencing the appellant the learned magistrate said that the appellant had set up "an unbelievable story that a young woman on the coast would, somehow or other, get herself into a cab, canoodling somewhere at Labrador, then somehow get herself upset and then somehow get back to [the nightclub] and thereupon concoct a fantastic story about a cab driver assaulting her". He said that this strained credulity.

If those reasons had been used by the learned magistrate to convict the appellant they would have contained two important errors. The first is that, by saying, in effect, that it was inherently incredible that the complainant would, without any

apparent motive, fabricate that a cab driver had assaulted her, the learned magistrate was effectively reversing the onus of proof. The second is that, by saying, in effect, that the version put to her in cross-examination was unbelievable, the learned magistrate was plainly in error for there was nothing

inherently incredible in that version.

But the above reasoning was not, at least directly, applied to the issue of guilt and the question for this Court is whether, in the absence of detailed reasoning on that issue, the above

reasoning was that which the learned magistrate in fact applied to that issue. The answer to that question is by no means clear. However the passage which I have quoted from the learned magistrate's sentencing remarks was introduced with the words:

"The material that you attempted to put to the witnesses before the Court; that is Mr Nyst asked them questions on your instructions, etc., showed to me that really you were setting up ..."

This seems to imply that the learned magistrate, at the conclusion of cross-examination, had reached the conclusions referred to in the passage which I quoted earlier; that the story set up in that cross-examination was unbelievable and that it was inherently incredible that the appellant would fabricate

the commission of an assault. Although, as I have said, it is not entirely clear, I am inclined to think that the learned magistrate did reach those conclusions before finding the appellant guilty of the offence and consequently misdirected himself on the question of guilt.

I therefore agree that the appeal should be allowed, the conviction set aside and a new trial ordered.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 09/11/1994

The appellant was convicted in the Magistrates Court of an offence of having unlawfully and indecently assaulted a girl on 19 February 1994. The Crown case was that the appellant, a taxi driver, violently assaulted the complainant at Labrador in the

early hours of the morning. It was argued on appeal that the magistrate erred in his treatment of a question of corroboration, that it is unclear whether his Worship satisfied himself beyond reasonable doubt of the guilt of the appellant

and that the verdict was unsafe and unsatisfactory; the
appellant also sought to rely upon fresh evidence.

In my opinion the complaint about the magistrate's treatment of the question of corroboration has no substance. The argument that it is unclear whether his Worship was satisfied beyond a reasonable doubt, however, requires some examination.

The complainant's evidence was that she caught a taxi, driven by the appellant, about 3.30 a.m., from a nightclub
called Coco's at the Gold Coast, in order to travel to Labrador;
her purpose was to find one Santini, a male friend. She said
that the taxi already contained two male passengers when she
entered it, but it was agreed that she would share with them.
On her version the other two passengers left the taxi at
Broadbeach and she travelled on to Labrador. When the taxi
arrived there the appellant stopped, left the driving seat and
got into the back, where the complainant was sitting, and
assaulted her sexually. Then at the complainant's request the

appellant returned her to the nightclub where she complained of

the assault; the police were called.

The appellant gave no evidence before the magistrate. His solicitor cross-examined the complainant at considerable length and put to her that there was no assault. There were of course no witnesses to the assault complained of, but to prove her distressed condition, as well as to prove fresh complaint, the

prosecution called evidence from people who saw and spoke to the
complainant when she returned to the nightclub.

It was argued for the appellant here and below that in some respects the complainant's story was improbable and reliance was placed upon some apparent discrepancies between what was said by the complainant and the claimed recollection of the prosecution's other witnesses. These points are further mentioned below; they were not dealt with in detail in the magistrate's reasons. His Worship said at the conclusion of the addresses, according to the record:

"Thank you. The defendant appears before me charged with an offence of indecent assault in the early morning of 19 February. He was legally represented by Mr Nyst, solicitor. In order to find the defendant guilty of the charge I've got to be satisfied beyond reasonable doubt of all elements of the charge. The onus of proving a case is on the prosecution who bring it, and they must prove it beyond reasonable doubt. In this case the only issue - live issue - is whether the indecent assault occurred or not. If the assault occurred it was most certainly indecent on the complainant's evidence. If I'm not satisfied beyond reasonable doubt I must acquit the accused.

Four witnesses were called by the prosecution. No witnesses were called by the defence; and at the conclusion I was addressed by both the Prosecutor and Mr Nyst. I'm not going to go into the evidence in great detail because it's fresh in our minds having listened to it fully yesterday and into today. I've considered the whole of the evidence; I've weighed up all the evidence given in front of me and I've given the evidence due care and attention in analysing it. The whole case comes down to credibility; that is believability of witnesses.

I've come to the clear conclusion that I accept the evidence of the girl. She was rigorously cross- examined, but her account stood up. She made some minor mistakes, minor inconsistencies, but in all matters of substance she rigorously withstood a strong cross-examination. I accept the evidence of the witnesses that she complained as soon as she got back to Kokoz; she was distressed in her appearance at the time. I've thought about the fact that this young girl went back in the cab, and in my opinion she was numbed by the experience; she wouldn't know what to hell was happening.

I therefore find the defendant guilty of the charge, and I (inaudible) of a sentence. It might be wise if I adjourn the sentence to 2.15 (inaudible) the defendant can remain on bail."

It should be noted that "what to hell was happening" is an accurate transcription of what appears in the record, although presumably something different was in truth said. After the magistrate delivered these reasons there was an adjournment to 2.15 p.m. on the same day, for addresses on sentence. His Worship, having heard the parties on sentence, gave his reasons with respect to that subject, the first paragraph of which, as recorded is as follows:

"Right, well I've listened to everything that your solicitor's had to say. The material that you attempted to put to the witnesses before the Court; that is Mr Nyst asked them questions on your instructions, et cetera, showed to me that really you were setting up an unbelievable story that a young woman on the coast would somehow or other, get herself into a cab, canoodling somewhere at Labrador, then somehow get herself upset and then somehow get back to Kokoz and thereupon concoct a fantastic story about a cab driver assaulting her, was just too much - it is straining credulity."

These observations were, as it seems to me, intended to be relevant to the level of sentence to be imposed: so far from admitting the offence, the appellant had in cross-examination put forward an unbelievable story, an element or implication of which was that the complainant would "concoct a fantastic story about a cab driver assaulting her".

If the complainant's story was untrue, then it has to be said that no sensible motive for its invention appeared; this was a practical difficulty for the cross-examining solicitor. He had sought to meet it by suggesting to the complainant that she had, as a result of some contact, including "flirting", with another of the passengers in the taxi, formed a desire to see Santini (mentioned above) at the nightclub and get his attention. The solicitor asked: "And you got his attention too; you got his attention by saying you'd been attacked, didn't you?" and received the reply "No.".

Of course, on no view of the matter could the solicitor or his client have known this suggested motive to be so; it was

only a hypothesis being put forward. But if that suggestion were rejected, as it was, the magistrate still had to determine whether he was satisfied, positively, that the complainant's version of events was true. One of the matters which the magistrate characterised as "unbelievable" and "straining credulity" is the proposition that the complainant would concoct the story of the assault; its incredibility, one must infer, was thought to depend on the absence of any sensible motive for such a concoction, the only motive suggested by the defence having no substance.

The question is whether the passage quoted from the remarks on sentence suggests that his Worship considered the case on the basis that it was very unlikely that the "fantastic story" of

the assault had been concocted; the epithet "fantastic" is applied to the story of the assault, which was accepted. Let it be assumed as a matter of statistical fact that it is in truth

improbable that such a detailed account of sexual assault as the

complainant gave would be concocted without any reason. Is it proper for a court to deal with a case of sexual assault on the basis of that presumption?

A court is no doubt obliged, when an accusation is made, to take into account whether or not the accuser had any apparent motive to make up a story about the alleged offender. For example, in determining accusations of sexual assault by a child against a parent, a court will often have before it evidence from which it may be able to be determined whether the

complainant had any reason, such as a desire to influence the result of a custody or access contest, to concoct the allegation. But the absence of a plausible reason for concoction does not shift the onus or alter the standard of proof.

A rather similar problem was considered by this Court in Galvin (C.A. No. 132 of 1993, 30 July 1993) where it was held in effect that a judge had misdirected a jury by using expressions implying that the accused parent might well be guilty of sexual

misconduct with a child, because it was unlikely that the child would have gone through the ordeal of pressing the allegation in court if the allegation were false. The Chief Justice was of opinion that the jury had been asked to assess credibility "upon the basis that the credibility of child complainants in general can be regarded as strengthened by the fact they have persevered in their allegations and given evidence". Just as it may well

be the fact that children are unlikely to do that, it would not

be surprising if it were true that apparently motiveless

allegations of sexual misconduct are rather rare, but as Galvin illustrates, probabilities of that sort "cannot be allowed, as

to any individual accused person, to create a presumption of
guilt; that would be unjust".

Here, it seems plainly enough to be suggested by the passage I have quoted that the magistrate took into account against the appellant, on sentence, that an unbelievable story had been put up on his behalf, one element of which was that the

complainant had concocted her allegations of sexual assault. Concern that a wrong approach might have been taken is enhanced if regard is had to some aspects which emerge on consideration

of the evidence.

One which was the subject of discussion before us is that there was said to be an odd feature of the complainant's version, in that her stated reasons for making, at 3.30 a.m., the substantial journey from Coco's to Labrador and back seemed unusual. On the complainant's evidence, she left the nightclub, quite sober, to "go and pick up a friend of mine, Alex Santini" at an address she had "got...off a friend at the nightclub". She also said that she decided to go to that address to see if Santini was okay; she said in effect that she was worried about him because she had understood he would be at the nightclub.

When asked why she did not phone Santini she said she did not have his telephone number; although she knew he had a mobile

phone she did not ask Santini's brother, who was at the nightclub, what the number was. Then, having been violently assaulted by the appellant and being "scared", she decided to travel back with the person who had assaulted her to the nightclub although (she said) she assumed that the place where the cab had been pulled up and the assault committed was 18 Whiting Street, Labrador, where Santini lived. One possible explanation for the return journey was that referred to by the magistrate ("...in my opinion she was numbed by the experience;

she wouldn't know what to hell was happening"). But on the

face of it there could be nothing reprehensible about a

suggestion that this aspect of the evidence required to be
carefully scrutinised.

It was also submitted before us that the conviction was unsafe because of the discrepancies between the evidence of witnesses who spoke about fresh complaint and that of the complainant herself. On that subject Santini's evidence was that "exactly what she said" was "I nearly got raped...by a taxi driver", but the complainant denied that she had used the word

"rape" to Santini. Another witness in this category, Mark Kelada, made a statement to the police which although unclear appears to have been to the effect that the taxi driver told the complainant that there were "other ways of paying her fare" and Kelada affirmed that in court; but the complainant denies that she had told Kelada that. Reliance was also placed upon what was said to be a lack of that sort of damage to the complainant's clothing which, so it was submitted, one would have expected to have been caused by an assault of the degree of

violence she described, and a similar submission was made about the lack of any bruising or other injury. Then it was pointed out that when the appellant arrived back at the nightclub and the complainant got out and went inside, the appellant hung about waiting to be paid the fare, which was still owing.

Other similar points were made. None of them could justify a conclusion that the evidence was not sufficient to support a safe conviction. But, on the other hand, the case was not one in which the defence had nothing sensible to talk about, or in

which there was any occasion for indignation at the suggestion that the Court should not be satisfied that the complainant's version of events was true. As counsel for the respondent emphasised before us, the magistrate made his remarks about the unbelievable character of the defence at a time when he had already considered the case and accepted the complainant as credible. Yet it is hard to dispel the impression that an approach to the case which is legally impermissible, however useful it might be thought to be in everyday affairs, was used, in the magistrate's consideration of the question whether the

prosecution case should be accepted; that approach, revealed by the remarks on sentence, was that it was offensive to suggest that, without any sensible reason for doing so, the complainant would make up a story of having been sexually assaulted. The vice of such a mode of reasoning is, of course, that it would tend effectively to reverse the onus of proof, in cases of that kind. It is my view that the conviction should be held to be

unsafe, because of the likelihood that, although his reasons for convicting do not say so, the magistrate in fact used the approach just mentioned.

It should be added that an attempt was made to induce the Court to accept fresh evidence, but in the circumstances it is unnecessary to say anything on that subject.

In my opinion the appeal should be allowed, the conviction set aside and a new trial ordered.