KA v Linden
[2020] ACTSC 182
•6 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | KA v Linden |
Citation: | [2020] ACTSC 182 |
Hearing Date: | 6 July 2020 |
DecisionDate: | 6 July 2020 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Act of indecency – Whether verdict was unreasonable – Whether Magistrate erred in considering complainant’s credit in directed verdict charge – Liberato direction |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 60 Magistrates Court Act 1930 (ACT) pt 3.10 |
Cases Cited: | De Silva v The Queen [2019] HCA 48; 94 ALJR 100 R v Murray (1987) 11 NSWLR 12 |
Parties: | KA (Appellant) Nicole Linden (Respondent) |
Representation: | Counsel T Jackson (Appellant) R Christensen (Respondent) |
| Solicitors Aulich (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 20 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 12 March 2020 Case Title: Linden v KA Citation: [2020] ACTMC 2 |
MURRELL CJ
Background
The appellant was charged with common assault on New Year's Eve 2016/2017 and committing an act of indecency without consent on 11 April 2017, contrary to ss 26 and 60 of the Crimes Act 1900 (ACT) respectively. The hearing proceeded on 8 November 2018, 26 February 2019 and 27 February 2019.
At the hearing, the prosecutor conceded that, in relation to the charge of common assault, there was no case to answer. The charge was dismissed. In relation to that charge, the complainant had not conveyed to the appellant that she did not want the touching to occur. It was not determined on the issue of consent.
Having reserved the decision on the outstanding charge on 27 February 2019, it was not until 12 March 2020 that Special Magistrate Hunter (the Magistrate) found the appellant guilty of committing an act of indecency without consent: Linden v KA [2020] ACTMC 2.
In substance, the appellant appealed on the grounds that:
(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).
Today, the appellant raised a further and related ground. The appellant submitted that, in 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.
The appeal
An appeal under pt 3.10 of the Magistrates Court Act 1930 (ACT) is an appeal by way of rehearing. In order to succeed, an appellant must identify an error of law or fact: Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24, Head v Evans [2020] ACTCA 26.
The evidence
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.
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.
Magistrate’s decision
In her Honour’s reasons for decision, the Magistrate set out the evidence at length.
At [142], her Honour set out the legal directions that she considered to be relevant and appropriate, including:
That because he gave evidence there is no assumption or onus or obligation on the accused to prove anything in the trial.
At [145], the Magistrate noted a submission by the prosecutor that she should direct herself in accordance with Liberato per Brennan J at 515.
Her Honour set out the submissions for the defence and, at [150], referred to Rhodes v Roberts [2013] ACTSC 145 at [63], where Higgins CJ cited this paragraph of Liberato (at 515):
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.
At [165], the Magistrate set out relevant directions and warnings including as to the onus and standard of proof and presumption of innocence.
At [172], her Honour gave herself a Murray direction (R v Murray (1987) 11 NSWLR 12) regarding the need to scrutinise the complainant's evidence very carefully.
At [173], her Honour gave herself a Liberato direction.
The Magistrate found the complainant to be an impressive witness: at [176]. Her Honour noted that the complainant's evidence was, to some extent, corroborated by the complaints: at [182].
On the other hand, her Honour considered that the appellant appeared to obfuscate and that his account was implausible, found that he was clearly lying and described him as “a most unimpressive witness”: at [204]. Her Honour provided convincing reasons as to why she found his account to be implausible and rejected it.
At [213]–[217], the Magistrate made affirmative findings consistent with the complainant's evidence in relation to the charge of act of indecency.
In relation to certain matters, her Honour rejected the appellant's evidence and “preferred” that of the complainant. At [205], her Honour referred to “preferring” the complainant's evidence in respect of the count of common assault. At [212], her Honour referred to “preferring” the complainant's evidence in relation to the charge of act of indecency.
Whether the verdict was unreasonable
The first matter raised by the appellant is whether the verdict was unreasonable— whether, on the whole of the evidence, it was open to the Magistrate to be satisfied of guilt beyond reasonable doubt; whether the Magistrate “must, as distinct from might” have entertained a doubt about the appellant's guilt, noting that the appeal court must give full weight to the primacy of the fact finder and their advantage in seeing and hearing the witnesses: Libke v The Queen [2007] HCA 30; 230 CLR 559 (Hayne J at [113]), M v The Queen (1994) 181 CLR 487.
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.
I am not satisfied that the verdict was unreasonable.
Reference to earlier incident
The second complaint was that, in her Honour’s reasons relating to the charge of act of indecency, the Magistrate referred at length and made findings about credit in relation to the earlier incident, the subject of the directed verdict.
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.
Whether the Magistrate’s approach to the evidence was correct: Liberato
The appellant contended that, while the Magistrate “preferred” the evidence of the complainant and rejected the evidence of the appellant in relation to the charge of act of indecency, her Honour failed to state why she preferred the evidence of the complainant and failed to make it plain that she accepted the evidence of the complainant beyond reasonable doubt, not just as a matter of preference.
The appellant accepted that the Magistrate had directed herself in accordance with the law. However, the appellant submitted that her Honour had failed to apply the Liberato direction that she had given herself, i.e. having rejected the appellant's version, the Magistrate should have “parked” it to one side and examined the evidence that her Honour did find to be reliable for the purpose of determining whether guilt was proved beyond reasonable doubt.
Recently, in De Silva v The Queen [2019] HCA 48; 94 ALJR 100, the High Court discussed the circumstances in which a Liberato direction should be given to a jury. At [9]–[10], the Court said:
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)
When the Magistrate's reasons are read in context, her Honour did not “prefer” one version over another or rely upon the appellant's false account to prop up the prosecution case. It is more than apparent from the numerous references to Liberato that her Honour was aware of the correct approach in circumstances where the appellant's evidence was rejected. Her Honour provided lengthy reasons as to why she accepted the truth of the complainant's account. The occasional references to “preferring” the evidence of the complainant over that of the appellant must be viewed in the context of clear findings that, in all relevant respects, the complainant was truthful. As stated above, not only was there a finding about the complainant's truthfulness, but there was independent corroboration of the complainant’s evidence by three witnesses to whom contemporaneous complaints were made, providing additional evidence of the facts asserted.
This ground is not made out.
The appeal is dismissed.
I note that the matter is listed for sentence before Special Magistrate Hunter on 4 September 2020.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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