KA v Linden
[2021] ACTCA 22
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | KA v Linden |
Citation: | [2021] ACTCA 22 |
Hearing Dates: | 19 February 2021 |
DecisionDate: | 13 September 2021 |
Before: | Burns, Loukas-Karlsson, and Charlesworth JJ |
Decision: | See [124] |
Catchwords: | APPEAL - APPEAL FROM SUPREME COURT – Act of indecency – whether new grounds of appeal may be relied upon where not raised before the primary judge – whether magistrate erroneously considered evidence relating to a dismissed charge – error of fact – Liberato direction |
Legislation Cited: | Crimes Act 1900 (ACT) s 60(1) Magistrates Court Act 1930 (ACT), s 218(1)(c) Supreme Court Act 1933 (ACT) s 37OA |
Cases Cited: | Clifton v Duong [2019] ACTCA 22 Cruz v The Queen [2017] ACTCA 48 |
Parties: | KA ( Appellant) Nicole Linden ( Respondent) |
Representation: | Counsel FJ Purnell SC and J Dempster ( Appellant) A Williamson ( Respondent) |
| Solicitors Lin Tang & Co Lawyers ( Appellant) ACT Director of Public Prosecutors ( Respondent) | |
File Number: | ACTCA 28 of 2020 |
Decision under appeal: | Court ACT Supreme Court Before: Murrell CJ Date of Decision: 6 July 2020 Case Title: KA v Linden Citation: [2020] ACTSC 182 |
BURNS AND LOUKAS-KARLSSON JJ:
Introduction
On 12 March 2020, the appellant was found guilty in the Magistrates Court of committing an act of indecency without consent on 11 April 2017, contrary to s 60(1) of the Crimes Act 1900 (ACT) by Special Magistrate Hunter (the Magistrate). The Magistrate found the appellant not guilty of a charge of common assault alleged to have occurred on 1 January 2017 (Nicole Linden v KA [2020] ACTMC 2).
On 6 July 2020, Murrell CJ (the primary judge) dismissed an appeal in the ACT Supreme Court with respect to the conviction imposed (KA v Linden [2020] ACTSC 182).
The appellant now appeals against the decision of the primary judge.
The Evidence
The evidence was usefully summarised by the primary judge as follows.
The complainant was a university student who, from August 2016, lived in a share house with other university students. The appellant was the landlord. From late December 2016, the appellant lived at the premises.
The complainant said that, on the night of 31 December 2016, the appellant knocked at her door and invited her for a walk to see the fireworks. During the walk, he held her hand for a while “on and off” and, at another stage, had his hands around her waist and close to her body. As they were returning to the premises, the complainant felt the appellant's face “very, very, very close” to her face. At the time, she did not object to any of the touching. When they arrived at the house, they said good night and went to their separate bedrooms. In her opening address before the Magistrate the prosecutor said that the allegation of common assault was that after the appellant and complainant returned to the house the appellant “grabbed the face of the complainant” and pulled it towards him. The complainant gave no evidence of such an occurrence and the Magistrate dismissed that charge at the close of the prosecution case. The events of the night of 31 December 2016 and the early morning of 1 January 2017 were referred to by the parties in the present appeal as “the earlier incident”.
The complainant gave evidence that on 11 April 2017, the appellant suggested that they have dinner together. For an hour or two, they ate dinner and had a general conversation. They then cleaned up. The appellant suggested that the complainant would sleep better if she had someone in bed with her, a proposition with which she disagreed. Later, the appellant hugged her by “wrapp[ing] his hands around [her] waist”. He stood in front of her with his arms encircling her tightly. He kissed her. She felt shocked. The appellant's hands moved on her back, then under her clothing, touching her skin including in the pelvic area. The appellant touched her buttocks and breasts. During the encounter, nothing was said. She was shocked and disgusted and did not consent. She pulled away and went to her room. Immediately, she communicated by text with her friend, NM, saying:
I think I was just sexually assaulted … Landlord … It keeps happening …
During this text communication the complainant was also speaking to NM on the telephone. On 15 April 2017, she vacated the property giving notice to the appellant by leaving a letter on the windshield of his car.
Subsequently, the appellant sent the complainant text messages saying:
how are you?
I feel so sad. Can’t sleep, do not want eat anything.
NM confirmed the text and verbal communications, saying that he had spoken to the complainant for about an hour. During the call, she had been very distressed and had been crying and whispering. She had told him that she had accepted the appellant's suggestion that they have dinner together and that, after the dinner, the appellant had attempted to kiss her and had touched her in some way.
AD, another occupant, gave evidence that, on 11 April 2017, she had seen the complainant and the appellant in the kitchen, talking and eating together. One or two days later, the complainant had told AD that the landlord had “done something bad to her”, which she had explained as “touched her and kissed her or something like that”. The complainant had been distressed and had not wanted to talk about it.
A university employee said that, on 12 April 2017, the complainant had disclosed to him that, on the previous day, in the kitchen, she had been touched inappropriately by a man who lived in the same house and that he had put his hands down her clothes without her consent. When making this disclosure, the complainant had been dishevelled and extremely distressed.
The appellant gave evidence. In relation to the events of 1 January 2017, he explained what had occurred. He said that on 11 April 2017, he had dined with the complainant. After dinner they had washed up together. When the complainant had mentioned her insomnia, he had suggested that “maybe you should find a boyfriend to take care of you”. He had hugged her “to encourage her” and patted her on the back. At that stage, her hands had been on his shoulder. When he had moved to let her go, his lip had touched her lip slightly, but this had been accidental and there had been no intention to kiss her. During a second hug which, to his mind, reflected an “upgrade” in their relationship, his hands had been on her waist and her hands had been on his shoulders. At one stage, her head had been on his left shoulder. The appellant's hands had moved to the bottom of her breasts, under her clothing, but the appellant denied that he had squeezed the complainant's breasts or that his hands had moved under her pants near her genitals.
In cross-examination, the appellant gave additional evidence about events occurring in the period between 1 January 2017 and the date of the charged acts. That evidence is summarised in the reasons of Charlesworth J from [94] to [98].
The appeal at first instance
The primary judge set out the grounds of appeal before her as follows (at [4]):
(a) On the evidence, it was not open to the Magistrate to be satisfied of guilt beyond reasonable doubt; and
(b) Her Honour failed to expose her reasoning in a manner that supported a finding of guilt; her Honour failed to apply Liberato v The Queen (1985) 159 CLR 507 (Liberato).
There was also an ‘additional’ ground which asserted that (at [5]):
[I]n her Honour's reasons in relation to the charge of act of indecency, the Magistrate detailed the earlier incident and expressed her view of the complainant's credit in relation to the earlier incident. The appellant contended that it was an error for her Honour to rely upon her view of the complainant’s credit in relation to the earlier incident when deciding her credit in connection with the later incident.
In relation to the first ground of appeal, the primary judge was not satisfied that the verdict was unreasonable. At [28], concluding:
The Magistrate's decision turned on an assessment of the credibility of the witnesses. Having given herself the appropriate warnings, her Honour was satisfied of the truth of the complainant's account. That is not surprising. The circumstances in which the events of 11 April 2017 allegedly occurred and the fact that the complainant made three contemporaneous complaints (i.e. to NM, AD and the university official) strongly supported the complainant's account.
In relation to the second ground, the primary judge referred to the decision of the High Court in De Silva v The Queen [2019] HCA 48; 268 CLR 57 (De Silva v The Queen), noting the circumstances in which a Liberato direction should be given to a jury.
The primary judge concluded (at [36]) that there was a finding by the Magistrate as to the complainant’s truthfulness, including independent corroboration of the complainant’s evidence. Thus, any reference to “preferring” the evidence of the complainant must be viewed within that context and the findings made by the Magistrate.
In relation to the ‘additional’ ground, the primary judge was not satisfied that there was any error. Her Honour, at [31] said this:
[T]here was no inconsistency of approach to the two incidents (importantly, the Magistrate accepted the complainant’s credibility in relation to both incidents). The appellant has not identified how the evidence relating to the first count may have been used inappropriately when deciding the second charge.
Accordingly, the primary judge concluded that none of the asserted grounds were made out and dismissed the appeal.
Grounds of appeal
The issues on appeal were summarised by the appellant as follows:
· Grounds 1(a) and (e): whether the Magistrate took into account an irrelevant matter, being the evidence relating to the charge of common assault (CC2017/6065) which the Magistrate ultimately dismissed on the basis that there was no case to answer, including for the purposes of forming an opinion on the appellant's credit;
· Grounds 1(b) and (c): whether the Magistrate took into account an irrelevant matter and/or made an error of fact when deciding the charge of indecent assault (CC2017/6673), in finding that BW (the complainant) expressly told the appellant "no" she did not want the appellant to touch her;
· Ground 1(d): whether the Magistrate made an error of fact when her Honour found that the appellant and BW had no "contact or interaction" between 1 January 2017 and 11 April 2017;
· Grounds 1(f) and (g): whether the decisions of the Magistrate at first instance and the primary judge on appeal were unreasonable; and
· Grounds 1(h) and (i): whether the Magistrate failed to properly apply the direction in Liberato, and whether the primary judge erred in finding that the Magistrate did not misapply Liberato.
Nature of appeal and new grounds
The respondent submitted that grounds 1(a) to (f) are misconceived as the grounds are framed as a second appeal from the Magistrate’s decision. There is force to this submission.
This is an appeal from the decision of the primary judge, not the decision of the Magistrate, and the appellant must therefore demonstrate error by the primary judge: Greenwood v Barlee [2018] ACTCA 62 at [15]; Head v Evans [2020] ACTCA 26 at [48].
Additionally, grounds 1(b) to (d) were not grounds of appeal that were raised before the primary judge. The errors were not raised by the appellant before the primary judge in written or oral submissions. The respondent submitted that the appellant is precluded from mounting a fresh attack as grounds 1(b) to (d) were not agitated before the primary judge.
In response, the appellant submitted that the primary judge had to review the evidence. It was submitted that in a review of the evidence, the primary judge did not ascertain that the Magistrate made significant errors of fact, including the complainant saying “No” and finding that the appellant and BW had "no contact or interaction between 1 January 2017 and 11 April 2017”. The appellant submitted that if the primary judge had reviewed the evidence these errors would have been identified.
It was also submitted that both the decision of the Magistrate and the decision of the primary judge was unsafe and unreasonable. This submission also relies on the submission that the primary judge's independent review of the evidence was inadequate.
In respect of a potential additional ground of incompetence of counsel 1(j), Counsel for the appellant stated (at T2.39-41): “If we are not permitted to keep those new grounds of appeal, are we allowed to add to our grounds today namely a ground alleging incompetence of counsel?”. Counsel for the appellant later stated (at T4.12-17):
And so our position is that if we are not able to – to raise and argue those grounds, then we want to amend by adding a further ground of incompetence of counsel. And that simply means this: that those additional grounds were not raised by counsel in the appeal in front of the Chief Justice, and we say that that was because of inadvertence not because of any forensic choice.
Conclusion on application for leave to rely on new grounds
Any appeal to this court is by way of rehearing: Roberts v Rhodes [2014] ACTCA 20 at [6]-[8]. This appeal is an appeal from an appellate decision by the primary judge that was itself a rehearing. Consequently, this appeal should not be used to mount a fresh attack on the decision of the original tribunal: Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6; Clifton v Duong [2019] ACTCA 22 at [6].
Nevertheless, we will not in this case preclude the appellant from raising the new grounds of appeal. It is in the interests of justice for the appeal grounds 1(b) to (d) to be heard and determined by this Court. From a practical perspective we note that the respondent has responded to all the grounds and there is no requirement for further evidence. Because the appellant only sought to raise a new ground of appeal alleging incompetence of the counsel who appeared in the appeal before the primary judge if he was not permitted to argue grounds 1(b) to (d) there is no need to consider the proposed ground 1(j) any further.
Grounds 1(a) and 1(e)
Submissions of the Appellant
The appellant submitted that the Magistrate took into account an irrelevant matter, being the evidence relating to the charge of common assault. The Magistrate dismissed that charge on the basis that there was no case to answer.
The appellant further submitted that in the process of making a decision on the indecent assault charge, at paragraph [205] the Magistrate used the evidence of the common assault charge to make a finding as to the credit of BW, including in support of "preferring" BW's evidence to that of the appellant. The Magistrate also relied on the evidence by stating that, at paragraph [212] "I reject [the appellant's] evidence and prefer the evidence of the complainant for the reasons I have given".
The appellant referred to Garrett v The Queen (1977) 139 CLR 437 (Garrett v The Queen) at 444, where Barwick CJ stated:
In my opinion, evidence of an earlier rape, quite apart from the fact of the earlier trial and acquittal, was not admissible.
The appellant submitted that once the common assault charge was dismissed, the Magistrate was not entitled as a matter of law to rely upon the evidence of the complainant in relation to that charge.
It was the appellant's submission that the evidence relating to the dismissed charge should not have played any part in the assessment of BW's credit.
Consideration
Fundamentally, the appellant’s submission was that the Magistrate erred in taking into account the evidence relating to the common assault charge in making findings as to the credit of the complainant and appellant. In particular, the appellant alleges that the Magistrate erred in making the following findings (Linden v KA [2020] ACTMC 2 at [205]):
I reject his evidence in respect to the New Year’s Eve incident in relation to whose invitation it was, and I prefer the evidence of the Complainant. In relation to whose invitation it was to hold hands I reject his evidence and prefer the evidence of the Complainant. [I am] satisfied it was he who instigated the contact that night. I also accept that the Complainant did not tell the Defendant that she did not want him to touch her by holding hands and placing his arm around her waist.
This issue was raised before the primary judge in oral submissions as "[n]ot necessarily a new ground but it may infect the reasoning process which then goes to the issue of Liberato" (T3.42-43). It was considered by the primary judge as a "further and related ground" of appeal: KA v Linden [2020] ACTSC 182 at [5].
In the appellant's oral submissions before the primary judge, counsel for the appellant suggested that the Magistrate's findings "may have been used for credit to bolster credit" but accepted that it was unclear what use the Magistrate made of those findings, stating at (T5.43-47;6.1-4):
… I accepted what happened on the first occasion so therefore I accept on the next occasion but I cannot make that as a positive submission because it is a singular paragraph, then there is the decision in relation to the second count and then her Honour says that the offence is proven on page 31 of the reasons for judgment.
So, I cannot make a submission as to what it was used for but clearly it is in the mind of the special magistrate and therefore it has had some effect on the path of reasoning. What that was I cannot make a submission on.
The respondent submitted before the primary judge that the evidence given in relation to the events of New Year's Eve was relevant “in assessing the state of mind of the defendant in respect to consent on the night of the April incident'' (T9.19-21).
Ultimately, the primary judge held at [31]-[32]:
It may have been better if the Magistrate had not referred at length to the earlier incident. However, it was part of the evidence given in the trial of two matters. In any event, there was no inconsistency of approach to the two incidents (importantly, the Magistrate accepted the complainant's credibility in relation to both incidents). The appellant has not identified how the evidence relating to the first count may have been used inappropriately when deciding the second charge.
I am not satisfied that there was any error in this regard. Nor am I satisfied that any possible error could have affected the verdict on the second count and caused a miscarriage of justice.
In our view, the primary judge correctly found that the appellant had failed to identify any error or inappropriate use of the evidence relating to the charge of common assault.
The principle set out in Garrett v The Queen is not that evidence given in relation to an earlier charge is inadmissible. The relevant principle of incontrovertibility is that an acquittal may not be called into question.
In R v Carroll [2002] HCA 55; 213 CLR 635 at [35], Gleeson CJ and Hayne J, citing Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251 at 273, refer to “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”. At [37] Gleeson CJ and Hayne J referred to Barwick CJ’s statement of principle in Garrettv The Queen but observed that the reference in that statement:
…to calling in question and tending to overturn give the principle great width: wider than may be thought to have been stated by the Privy Council in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 at 479, a case often referred to in this connection.
In Nash v The Queen [2019] NSWCCA 124 the NSW Court of Criminal Appeal referred to the High Court case of R v Carroll [2002] HCA 55; 213 CLR 635 and discussed the principle where an acquittal is “called into question”, stating at [31]:
The extended principle stated by Barwick CJ in Garrett, that is, that the principle of incontrovertibility applies where an acquittal is “called into question” by any evidence which if accepted would “tend to overturn the verdict” … should not in my view be accepted as authoritative. The extended principle has not been accepted in any subsequent High Court decisions as authoritative and indeed, as I have indicated, has been the subject of doubts expressed in Carroll as to its correctness. Moreover, the disposition of Garrett did not require a principle of the breadth stated by Barwick CJ to be applied.
In our view, a proper reading of the Magistrate's decision does not suggest that the Magistrate used the evidence relating to the events of New Year's Eve in a manner that was inconsistent with the appellant's acquittal in relation to the common assault charge. This common assault was an allegation of grabbing the complainant’s face. The Magistrate's findings at [205] do not refer to the grabbing of the complainant’s face.
Further, and in any event, the appellant submitted before the Magistrate that the Magistrate should have regard to the evidence in relation to the events of New Year's Eve in assessing the appellant's state of mind as at 11 April 2017.
In the context of the appellant’s submissions, it is therefore not surprising that the Magistrate made findings concerning the events of New Year's Eve before turning to consider the appellant's state of mind. In any event, the evidence of what occurred between the parties in the earlier incident was relevant as relationship evidence; it was relevant to an assessment of the nature of the relationship between the appellant and the complainant in the period before the incident on 11 April 2017. In that regard the evidence was potentially useful to the appellant, as his then counsel recognised. After the charge of common assault had been dismissed, the appellant gave evidence before the Magistrate in which he himself raised the events surrounding the earlier incident with a view to suggesting that the complainant had demonstrated a romantic interest in him at that time. In those circumstances the Magistrate was entitled to make findings of fact in relation to the earlier incident and to make credit findings based on that evidence.
The primary judge was correct in finding that the appellant had failed to identify error. No error on the part of the primary judge has been established by the appellant.
Grounds 1(b) and 1(c)
Submissions of the Appellant
The appellant submitted that the Magistrate took into account an irrelevant matter and/or made an error of fact when deciding the charge of indecent assault, in finding that BW expressly told the appellant "No" she did not want the appellant to touch her.
There is no evidence that BW did say "No" to the appellant. In fact, the Magistrate noted at [18] that when BW was asked by the prosecutor whether she said anything to the appellant at the end of the conduct alleged to make up the indecent assault charge, BW replied "No".
The evidence of BW in relation to the indecent assault charge was that she did not say anything at all to the appellant when he was physically interacting with her, including before, during and after "his lips were on [her] lips" (T13.19-20) and he touched her body.
BW gave evidence during the hearing that her memory was "fuzzy" and "not the best with regards to the actual events."
The appellant submitted that the evidence of the appellant concerning the indecent assault charge was not entirely inconsistent with BW’s evidence. The appellant did not deny having engaged in some of the conduct particularised as making up the indecent assault charge, however he asserted that BW consented, or at least that his understanding was that she had consented, to that conduct.
The appellant submitted that it was a fundamental error that BW told the appellant "No". That error vitiating the Magistrate’s finding of guilt.
Consideration
In respect of these grounds, we agree with Charlesworth J. The grounds 1(b) and (c) should be upheld.
Ground 1(d)
Submissions of the Appellant
The appellant submitted that the Magistrate made an error of fact that the appellant and BW had no "contact or interaction" between 1 January 2017 and 11 April 2017.
The Magistrate stated at paragraph [185] of the decision, "I note that the Defendant stated there was no contact or interaction between the pair from the New Year's Eve event until 11th of April 2017".
The appellant submitted that this was incorrect. The appellant in cross-examination stated that after New Year's Eve and before 11 April 2017, he saw the complainant as follows:
(a)"Just a few times"
(b)"We ate together once and she cooked me Indian cuisine";
(c)"The rest of the time we just say hello and sometime we hug"; and
(d)"It's just once or twice when I saw her I say "you look nice", and I hug her".
In explaining why he hugged BW, the appellant said:
(a)"I did it, just I want to make her happy";
(b)"Because according to my memory, [BW] liked this, so I did it"; and
(c)"Yes, but she looks happy and she never told me that she didn't like it".
In paragraph [189] of the decision, the Magistrate found "The next interaction was four months later". Paragraph [194] stated:
However, I find no continuity between that event [New Year's Eve] and the events of 11 April. There had been no contact between the parties in that time at all other than the payment of rent on a monthly basis.
In paragraph [203] of the decision, the Magistrate stated:
The Defendant also said in his evidence that he hugged [BW] between New Year's Eve and 11 April. That was never put to the complainant.
The appellant submitted that given the appellant's evidence of hugging BW and having dinner with her between 1 January 2017 and 11 April 2017 came out in cross-examination, it would have been difficult for defence counsel to "put" that to BW noting the prosecution case was, by that stage, closed. It was submitted that this was not the fault of either party, yet the Magistrate appeared to disregard the appellant's evidence of the “in-between interactions” on that basis despite the prosecution:
(a)Not challenging the appellant on the truthfulness of this evidence; or
(b)Not suggesting to the appellant that this evidence was central to the case.
The Magistrate's finding that there were no interactions between the appellant and BW between New Year's Eve and 11 April 2017 was inconsistent with and unsupported by the evidence.
Consideration
In respect of this ground, we agree with Charlesworth J. Ground 1(d) should be upheld.
Grounds 1(f) and 1(g)
Submissions of the Appellant
The appellant submitted that the decisions of the Magistrate at first instance and the primary judge on appeal were unreasonable.
The appellant submitted that the errors which ought to cause this Court to allow the appeal are those articulated above in grounds of appeal 1(a) – (e). It was submitted that if this Court accepts the appellant's submissions on any of those grounds then it follows that the finding of guilt was unreasonable and ought to be overturned.
Consideration
The question for this Court is not whether the Magistrate's decision was unreasonable. The question is whether the primary judge erred in finding that it was open to the Magistrate to find the offence proven: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].
The respondent submitted that in considering whether the primary judge erred in finding it was open to the Magistrate to find the offence proven, regard should be had to the following matters:
(a)The question has to be decided in light of the grounds of appeal that were actually pleaded before the primary judge, and the issues that were agitated before her Honour during the hearing of the appeal. Error is not demonstrated simply by virtue of the primary judge not somehow 'divining' the matters now raised for the first time in this Court in grounds (b) to (d) of the appeal;
(b)Full allowance must be made for the significant advantage that the Magistrate had in being able to observe the witnesses give their evidence: R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]-[66]; Cruz v the Queen [2017] ACTCA 48 at [38]; Fox v Percy [2003] HCA 22; 214 CLR 188; Greenwood v Barlee [2018] ACTCA 62.
In relation to the first ground of appeal, the primary judge was not satisfied that the verdict was unreasonable. At [28], concluding:
The Magistrate's decision turned on an assessment of the credibility of the witnesses. Having given herself the appropriate warnings, her Honour was satisfied of the truth of the complainant's account. That is not surprising. The circumstances in which the events of 11 April 2017 allegedly occurred and the fact that the complainant made three contemporaneous complaints (i.e. to NM, AD and the university official) strongly supported the complainant's account.
In our view, on a full review of all the evidence, it was open to the Magistrate to find the offence proven, and the primary judge did not err in reaching that conclusion.
Grounds 1(h) and 1(i)
Submissions of the Appellant
The appellant submitted that the Magistrate failed to properly apply the direction in Liberato, and that the primary judge erred in finding that the Magistrate did not misapply Liberato.
The Magistrate referred to the Liberato direction at [150] and [173] of the decision and stated "I have given myself that warning in relation to this matter when considering my decision".
The appellant submitted that the Magistrate’s approach to the evidence at [204]-[206] was not an application of the Liberato direction. The appellant further submitted that it is clear the Magistrate "preferred" the evidence of BW over that of the appellant, including in relation to the dismissed common assault charge. This is despite BW conceding multiple times in her evidence that she had an imperfect memory of the events on 11 April 2017 and, further, that she failed to give evidence of some of the particulars of the indecent assault charge on which the prosecution opened.
Finally, the appellant submitted that the primary judge also erred in finding that the Magistrate correctly applied the Liberato direction. Further, the error the Magistrate made at [209] of the decision dated 12 March 2020, that there was an explicit statement of non-consent by BW, vitiates her Honour's finding of guilt in any event.
Consideration
The appellant asserted that the primary judge erred in finding that the Magistrate properly applied Liberato.
In Liberato at 515, Brennan J stated:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
In De Silva v The Queen, the High Court discussed the circumstances in which a Liberato direction should be given to a jury. At [9]-[10], the Court stated:
Whatever may have been the practice when Liberato was decided, in Murray v The Queen this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few.
This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
(Footnotes omitted)
The primary judge stated at [35] that when the Magistrate's reasons are read in context, the Magistrate did not “prefer” one version over another or rely upon the appellant's false account to prop up the prosecution case. The primary judge further stated that it was apparent from the numerous references to Liberato that the Magistrate was aware of the correct approach in circumstances where the appellant's evidence was rejected.
In our view, the primary judge correctly found that, when the Magistrate's references to "preferring" the complainant's evidence are read in context (at [205]-[206] and [212]), it is clear that the Magistrate rejected the appellant's evidence and accepted the complainant's evidence beyond reasonable doubt:
205. I reject his evidence in respect to the New Year’s Eve incident in relation to whose invitation it was, and I prefer the evidence of the Complainant. In relation to whose invitation it was to hold hands I reject his evidence and prefer the evidence of the Complainant. I’m satisfied it was he who instigated the contact that night. I also accept that the Complainant did not tell the Defendant that she did not want him to touch her by holding hands and placing his arm around her waist.
206. In relation to the evening of 11 April 2017 I prefer the evidence of the Complainant and I am satisfied that the Complainant did not instigate the hug nor did she approve of the Defendant placing his hands on her body under her clothing to any extent. I also accept her evidence that she did not do anything whilst he was touching her on her body under her clothing until she was able to extricate herself from his hold and went to her room, locking the door.
…
212. Clearly the lack of engagement between the two for the four months between New Year’s Eve and 11 April as well as the inconsistency in his Affidavits and in his evidence before me leads me inexorably to conclude that he was untruthful about what happened on 11 April. He was untruthful because he knew how serious his conduct was. In relation to the circumstances as described by him about his conduct on 11 April 2017 I reject his evidence and prefer the evidence of the complainant for the reasons I have given.
In our view, the Magistrate did not simply "prefer" the complainant's evidence but was satisfied of the truth of that evidence, beyond reasonable doubt, having found the complainant to be an impressive witness whose evidence was independently corroborated. The appellant has not established error on the part of the primary judge.
Conclusion
Before concluding, there is one more matter we wish to address. The appellant submitted that it was the responsibility of the primary judge in presiding over the appeal from the Magistrate to identify the factual errors allegedly made by the Magistrate and which were not raised by the appellant’s then counsel. While it is true that the primary judge was obliged to conduct a real review of the evidence before the Magistrate, the primary judge was not required to become the appellant’s counsel and determine the issues to ventilate on appeal. Appeals, like trials, are adversarial and it is for the appellant to determine those issues upon which it is sought to advance the appeal.
Orders
We agree with the orders proposed by Charlesworth J at [124].
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns and Justice Loukas-Karlsson. Associate: Date: |
CHARLESWORTH J:
I have had the benefit of considering the reasons for judgment of Burns and Loukas-Karlsson JJ in draft. I agree that grounds 1(a) and 1(e) should be rejected. I generally agree with the reasons given by their Honours in respect of those grounds.
Grounds 1(b) to 1(d)
The task of this Court of Appeal is to identify whether the primary judge committed appealable error. However, the Court also has the discretion to allow an appellant to advance arguments not raised in the proceedings in which the order appealed from was made. The instances in which leave will be granted are uncommon, and for good reason: see generally Lobban v Minister for Justice [2016] FCAFC 109; 244 FCR 76 at [64] – [65].
In the circumstances described below, I am satisfied that it is necessary in the interests of justice that the appellant be granted leave to argue the points in grounds 1(b) to 1(d) to the extent that leave is required.
The respondent submitted that if leave to introduce the grounds were to be granted, the arguments must be rejected on their merits because it cannot be shown that the primary judge erred in failing to determine them. I do not accept that submission.
In my view, having granted leave to argue the new grounds, it is not for the Court of Appeal to then reject the grounds on the basis that they were not argued (and so not determined) by the primary judge. On the rare occasions when leave to raise a new argument is granted, it will invariably be the case that the Court of Appeal does not have the benefit of the primary judge’s reasons in relation to the argument and so cannot detect error in its disposal. In all cases it may be said that a primary judge does not err by failing to address and adjudicate upon an argument that is not advanced. There could be no utility in granting leave if the new arguments (now advanced with leave) must be rejected by that line of reasoning.
The existence of this Court’s discretion to grant leave to raise a new argument is not denied by the respondent. The respondent does not suggest that the discretion cannot be exercised on an appeal from an order that has been made in the exercise of the Supreme Court’s appellate jurisdiction. The well-established principles guiding the discretion ensure that the instances in which an appellate court will entertain new arguments will be rare. The consequence of the grant of leave in the present context is that this Court should determine the arguments on their substantive merits and allow the appeal if the errors alleged against the Magistrate are established and a miscarriage of justice at the trial stage is shown to have resulted from them. An order allowing the appeal may be made in accordance with s 37OA of the Supreme Court Act 1933 (ACT), if it be shown that it is in the interests of justice to set aside the order of the primary judge.
At the conclusion of these reasons I will summarise the circumstances that bring this case within a small class of cases in which new arguments may be entertained.
As to the merits of grounds 1(b) to (d) I have concluded that the errors of the Magistrate were such as to give rise to a miscarriage of justice in the proceedings before the Magistrate and that, accordingly, it is in the interests of justice to set aside the orders of the primary judge. The appeal should be allowed, the conviction should be set aside and the matter remitted for retrial.
Errors
Burns and Loukas-Karlsson JJ have summarised the reasons of the primary judge and the issues arising on the appeal. I gratefully adopt those summaries.
The finding impugned by grounds 1(b) and (c) is that expressed at the conclusion of [209] of the Magistrate’s reasons:
The Defendant stated at least in evidence before me that it was his view that she was consenting to his conduct. That is despite the fact that she did not tell him she wanted him to touch her and indeed said no to him.
It is not in dispute that the Magistrate was wrong to state that the complainant had said “No” to the appellant.
The finding impugned by ground 1(d) is that expressed at [185] of the reasons of the Magistrate:
… I note that the Defendant stated there was no contact or interaction between the pair from the New Year’s Eve event until 11 April 2017.
The respondent acknowledges that statement is also in error. I make the following observations about it.
Whether the appellant had contact or interaction with the complainant in the three months and 11 days between New Years Eve and 11 April 2017 was the subject of evidence adduced in cross-examination of the appellant by the respondent. The Magistrate at times participated in the questioning of the appellant on the topic and otherwise repeated back his evidence from time to time. The relevant portion of the cross-examination (omitting the Magistrate’s participation) is as follows:
Q:After New Year’s Eve, so after the lake incident, if I can describe it that way, how often did you see [the complainant] between that time and April 2017.
A: Just a few times.
Q: Would it be fair to say those few times were to do with collecting rent?
A: We ate together once and she cooked me Indian cuisine.
…
Q: When was that?
A: It was 14 February.
…
Q: Was there anyone else there?
A: At the beginning no other people, but later other people came.
…
Q:So other than when you say you had dinner on 14 February, how often did you see, or how many times did you see [the complainant] between then and April 2017?
A: The rest of the time we just – we say hello and sometimes we hug.
…
Q:So you’re saying that between – if I can put it this way – February 2017 and April 2017, you saw [the complainant] a few times, you said hello and you hugged; is that right?
A: Yes.
Q: Who would initiate the hugging?
A: It’s just once or twice when I saw her, I say, ‘You look nice,’ and I hug her.
…
Q: Did you do this with any other tenant?
A: No. Because according to my memory, [the complainant] liked this, so I did it.
Q:And when you say you thought she liked it, again, she hadn’t told you that; is that the case?
A: Yes, but she looks happy and she never told me that she didn’t like it.
Q:I asked you whether you were romantically interested in [the complainant] before and you said no?
A: Yes, definitely no.
Q:When we move into 2017 – so the period we’re talking about, if we use between February and April – is that still the case, you weren’t romantically interested in [the complainant]?
A: No.
Q: So you’re not romantically interested in her, but you hugged her on occasions?
A:It’s just once or twice. I did it, just I want to make her happy. I never think of anything else.
Q: And you’ve never done that for any other tenant?
A: No, never, because we don’t do such things in China.
Q: Then why did you do it with [the complainant]?
A:I have said many times it was because of New Year’s Eve, that night. I thought she might like it. …
In an affidavit affirmed on 21 June 2018, the appellant stated that he did not have any “significant conversation” with the complainant between 1 January and 11 April 2017. He said that he was a busy person and did not have much time to socialise with the tenants in the boarding house. He did not explain what he meant by the phrase “significant conversation”. He was not directly challenged as to the truth of that part of his affidavit (although he did admit that other significant portions of his affidavits were untruthful). It may be that the respondent elicited the above responses in an attempt to have him explain or elaborate upon the affidavit evidence, but that is by no means clear.
On its face, the affidavit evidence is not entirely irreconcilable with the evidence given in cross-examination as to whether the contact he described occurred at all. It may well be that the appellant did not consider the contact as amounting to a “significant conversation”. That, too, is unclear.
I am satisfied that the Magistrate’s observation (at [185]) that the appellant had stated that there was “no contact or interaction” in that period is a misstatement of the evidence given by the appellant both in the affidavit and in the course of cross-examination.
To the extent that grounds 1(b) to 1(d) assert errors on the part of the trial Magistrate, the points should be decided in the appellant’s favour.
Miscarriage of justice
In circumstances where leave has been granted to raise the arguments, and the respondent has conceded that both errors occurred, it is difficult to comprehend why this Court should not allow the appeal and set aside both the order of the primary judge and the conviction if the errors are shown to have given rise to a miscarriage of justice at the trial stage. There will be shown to have been a miscarriage of justice if the appellant has lost a chance of being acquitted that is fairly open to him: Mraz v The Queen (1955) 93 CLR 493.
The respondent submitted that the error at [209] of the Magistrate’s reasons could not have deprived the appellant of the possibility of a different outcome for two reasons. First, it was submitted that the reasons make it plain that the Magistrate properly understood that there had been no vocal expression by the complainant of her lack of consent. Second, it was submitted that the conviction founded in recklessness was made by a path of reasoning that did not involve any erroneous step. In respect of the error at [185], the respondent submitted that the factual subject matter of the events between January and April 2017 were of such marginal relevance that even if the appellant’s evidence on that topic were to be accepted, it could not have altered the outcome.
To my mind, the reasons of the Magistrate give rise to a troublesome ambiguity. At [209] there is an unqualified and plainly incorrect statement to the effect that the complainant said “No”, whereas elsewhere there are correct statements to the effect that the complainant had “admitted that she said nothing” (at [181]) and that she “did not do anything” in response to the charged conduct (at [206]).
Textually speaking, the erroneous statement at [209] cannot be disregarded as a mere typographical error. The context of the paragraph tends strongly against that view. Nor do I consider the Magistrate was there intending to refer to any conversation in which the complainant said she was not interested in having a boyfriend. The paragraph is focused on the critical question of whether the appellant reasonably believed there was consent to the touching that constituted the physical element of the offence. At the very least, I am satisfied that the Magistrate made a significant error of law in the course of rejecting the appellant’s version of events going directly to the fault element of the offence, that is, by expressing a finding for which there was no evidentiary foundation: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91].
I accept the respondent’s submission that the reasons on their face express a line of reasoning to conviction that does not expressly depend upon or incorporate the erroneous finding at [209]. In the ordinary run of cases, demonstration of an independent line of reasoning will be sufficient to warrant dismissal of an appeal even where an error elsewhere in the reasoning is demonstrated.
However, in the unique circumstances of this case, I consider the error at [209] to go to such a critical issue that it significantly undermines confidence in the whole of the fact- finding process, particularly as it affects the fact finder’s assessment of the appellant’s asserted state of mind. Relatedly, it cannot be said that the confused thinking disclosed in that paragraph did not influence the learned Magistrate’s adverse assessment of the appellant’s credit or her assessment of the reasonableness of the appellant’s asserted belief. In that regard, the error is not to be considered in isolation from the additional error asserted in ground 1(d).
The erroneous conceptualisation of the evidence at [185] of the Magistrate’s reasons is reinforced by other statements to the effect that:
(a)there was no contact other than the monthly payment of rent between the pair until some months later in April (at [179]);
(b)after New Year’s Eve “the next interaction was four months later” (at [189]);
(c)there was “no continuity” between the New Year’s Eve event and the events of 11 April 2017 (at [194]); and
(d)“there had been no contact between the parties in that time at all other than the payment of rent on a monthly basis” (at [194]).
The learned Magistrate did, however, refer to the evidence adduced in cross-examination in the following terms (at [203]):
The Defendant also said in his evidence that he had hugged her between New Year’s Eve and 11 April. That was never put to the Complainant. …
That passage gives rise to further ambiguity. It may be accepted that the appellant’s evidence had not been put to the complainant. However, the earlier affidavits of the appellant were adduced as part of the respondent’s case and the evidence given in cross-examination was also adduced by the respondent, including in response to questioning by the Magistrate herself. Neither the prosecutor nor the Magistrate asked the appellant why the facts asserted in cross-examination had not been put to the complainant in the course of her cross-examination.
Having observed that the version of events had not been put to the complainant, the Magistrate did not go on to determine the consequences that should follow.
In her evidence-in-chief, the complainant said that she could not recall having interactions with the appellant but conceded that she must have had some interaction with him in order to pay her rent. Her memory in respect of that period of time was otherwise unclear.
In the circumstances, it was necessary for the Magistrate to grapple with the fact that the evidence had been adduced and then to determine its weight and significance. It was not open to the trial Magistrate to proceed on the basis that the evidence had not been given at all.
Contrary to the respondent’s submission, I do not accept that the events between January and April 2017 were of such marginal relevance that acceptance of the appellant’s evidence on that topic could make no difference to the outcome. The case is one in which the respondent had the burden of proving recklessness beyond reasonable doubt in circumstances where the complainant had not verbalised the absence of consent and in circumstances where there had been some degree of prior affection that she had either participated in (for example by holdings hands) or had otherwise not discouraged.
Of course, those prior instances and the lack of verbalisation do not of themselves demonstrate that the complainant subjectively consented to the charged acts. It may well be that the evidence was capable of proving lack of consent beyond reasonable doubt, thus establishing a physical element of the offence. As to the fault element, the most critical issue at trial was the fact and reasonableness of the appellant’s asserted belief that the charged acts were consensual. He bore no onus to establish the existence of that belief to any standard.
The appellant’s evidence was that his belief was based on his past encounters with the complainant in which consensual touching occurred (however insignificant in degree), together with the fact that the complainant did and said nothing to indicate her lack of consent until the charged acts of 11 April 2017 were complete. In such a case, all evidence informing the relationship context was important in determining whether the fault element was proved beyond reasonable doubt. The duration of the physical acts on 11 April 2017 must also inform the analysis, the complainant having no recollection of the duration, and the appellant alleging (without challenge) that the encounter on 11 April 2017 continued over several minutes. It is not disputed that over that time the complainant did and said nothing to indicate her lack of consent until the charged acts were complete. Considered against the evidence as a whole, the appellant’s evidence (if accepted) was at least capable of giving rise to a reasonable doubt as to his guilt.
Having regard to the evidence as a whole, I am satisfied that there was at least a possibility of an acquittal based on a failure by the respondent to prove the fault element to the requisite standard. I am satisfied that the errors of the trial Magistrate deprived the appellant of that possibility so giving rise to a miscarriage of justice. The errors demonstrate a degree of carelessness in the fact-finding function resulting in reasons that are confusing and that do not properly grapple with the evidence in fact adduced at trial. It cannot be said with confidence that the errors at [209] did not affect the trial Magistrate’s assessment of the appellant’s credit, so infecting the whole of the judgment (including the portions of the judgment upon which the respondent relies in this appeal). The two sentences in that paragraph suggest that they did. On a plain reading of that impugned paragraph, the erroneous fact was used as a basis for rejecting the appellant’s version of events and so cannot be disentangled from other threads in the reasoning.
The grant of leave
Returning to the question of leave, this case is a rare instance in which arguments not advanced before the Supreme Court on an appeal should be entertained, principally because there are errors of law apparent on the face of the reasons and conceded by the respondent, and because (contrary to the respondent’s submission) they give rise to a miscarriage of justice. The patent nature of the conceded errors is such that this Court can be satisfied that there was no strategic decision on the part of the appellant not to raise the arguments on the appeal before the primary judge. No abuse of process is apparent. It may be inferred that the failure to raise the grounds was due to inadvertence on the part of the appellant’s legal advisers, although it would have been preferable for the appellant’s present advisers to adduce some evidence on that point. It is not necessary to characterise the inadvertence as incompetence. It is sufficient to identify that there is a reasonable explanation for the failure to raise the grounds, sufficient to warrant the grant of leave in all of the circumstances. Given the respondent’s appropriate concession that the errors were made, it would work an injustice if this Court were to permit the conviction to stand because of a failure of the appellant’s representatives to advance arguments about their consequences before the primary judge.
Other grounds
For the reasons that follow, my conclusions in relation to grounds 1(b) to (d) render it unnecessary to ask whether the primary judge erred in concluding that the evidence supported the verdict to the requisite standard.
The errors in grounds 1(b) to (d) not having been brought to her Honour’s attention, the conclusions of the primary judge were based in large part on deference to the Magistrate’s adverse assessment of the appellant’s credit (particularly in respect of his asserted state of mind). However, as explained above, there is at least a possibility that the Magistrate’s assessment would have been different had the identified errors not been made. The defects in reasoning are not of a kind that can be resolved by deference to the Magistrate’s unique position to make an assessment of the impression of the appellant as a witness.
Having reviewed the material before this Court, I do not accept the submission that the appellant was entitled to an acquittal. But it does not follow that the verdict of guilt entered by the Magistrate should be permitted to stand, based as it is on erroneous reasoning. A reasonable verdict of guilt would depend upon a correct understanding of the evidence resulting in a proper assessment of whether the appellant’s version of events is or might be true: De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [12]. The appellant is entitled to a verdict arrived at by a correct understanding of the evidence and (where there is no jury) a cogent path of reasoning disclosed in the reasons of the trier of fact. That has not occurred.
It follows that there is little utility reviewing the task performed by the primary judge on the unreasonableness ground. It is sufficient to say that had the arguments raised in grounds 1(b) to (d) been argued, her Honour would have identified that a miscarriage of justice had occurred.
I do not consider it necessary to express any further views about the remaining grounds of appeal. They are either subsumed or rendered otiose in light of what I have said above.
Orders
This Court has the power to confirm, reverse or amend the order appealed from and to give any order it considers appropriate: Supreme Court Act 1933 (ACT), s 37OA(1)(a) and (b) respectively. The latter power includes a power to make any order that could have been exercised by the primary judge, which include powers to quash the Magistrate’s verdict and order a new trial: Magistrates Court Act 1930 (ACT), s 218(1)(c).
The appropriate orders are:
(a)The appeal be allowed.
(b)The orders of the primary judge be set aside.
(c)On the charge of an offence contrary to s 60(1) of the Crimes Act 1900 (ACT), the verdict of the Magistrate be set aside.
(d)There be a new trial of the charge.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Charlesworth Associate: Date: |
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