Laurie v Police - [2011] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAURIE v POLICE
[2011] SASC 56
Judgment of The Honourable Chief Justice Doyle
20 April 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
The appellant appealed against a conviction recorded by a Magistrate after a trial before the Magistrate for the offence of indecent assault - the Magistrate had acquitted the appellant of a second count of behaving in an indecent manner in a place other than a public place or police station, so as to offend or insult another person - whether the conviction on count one was consistent with acquittal on count two - whether the conviction was unsafe and unsatisfactory.
Held: appeal dismissed. The evidence before the Magistrate supported a finding of guilt beyond reasonable doubt.
Magistrates Court Act 1991 (SA) s 42, referred to.

LAURIE v POLICE
[2011] SASC 56
Magistrates Appeal: Criminal

DOYLE CJ: Mr Laurie appeals against a conviction recorded by a Magistrate after a trial before the Magistrate. The ultimate question is whether the Magistrate should have had a reasonable doubt, and should have found him not guilty for that reason.
Mr Laurie was charged on two counts arising out of events late on 24 July 2008 and in the early hours of 25 July 2008.
The first count was that he indecently assaulted Ms S. The second count was that he behaved in an indecent manner in a place other than a public place or police station, so as to offend or insult another person. The person in question was again Ms S. The place of the alleged offence was his home.
The grounds of appeal are that the conviction on count one is inconsistent with the acquittal on count two. A further ground is that the conviction is unsafe and unsatisfactory. This is not a ground found in s 42 of the Magistrates Court Act 1991 (SA). I take it to raise the question of whether the Magistrate should have had a reasonable doubt.
The hearing before the Magistrate
The circumstances of the alleged offending were as follows. I take this outline from the Magistrate’s findings, which are recorded in detailed reasons provided by the Magistrate.
Ms S knew Mr Laurie. She was 16 years of age at the time in question. On the evening of 24 July 2008 Ms S was at a party at premises next door to the property where Mr Laurie lived with his parents. He was not at the party. He was at home with his girlfriend. A number of the people at the party knew Mr Laurie. From time to time Ms S and others called in to the house where Mr Laurie lived. His parents were there. As the evening passed, Ms S became increasingly intoxicated.
At some point, probably fairly late, she may have “passed out”, but in any event she had no recollection of what occurred thereafter. Mr Laurie and his mother helped her to a spare room in Mr Laurie’s house. They put her on a bed in that room, fully clothed. The Magistrate found that she was “extremely intoxicated”. Ms S woke up the following morning. This was probably about 7.00am. She was now wearing only her underpants. She noticed vomit on and around the bed. She was suffering from a bad hangover and, according to the Magistrate, was partly intoxicated.
She said that Mr Laurie was standing close to the bed, behaving in an indecent manner. He made an indecent remark.
Ms S found her clothing at the end of the bed, apparently got dressed and left the house hurriedly.
Later that day she became aware that someone had written an indecent message, with a black felt tip pen, across her buttocks. It is not necessary to go into the details. Understandably, she said that she was upset.
It is implicit in the Magistrate’s reasons that the message must have been written on her buttocks after she passed out, or ceased to have any memory of what had happened, and before she woke up the next morning. Whoever put the message there must have had access to the Laurie house on the night in question.
She did not complain to the police until sometime in 2009. The information is dated 24 May 2009. I infer that she probably complained about a month before that.
The Magistrate considered Ms S’s evidence with care. The Magistrate noted some deficiencies in her evidence, and problems with her memory. The Magistrate allowed for her intoxication and the effect of that on her the next day. There were some matters, relating to events in the early part of the evening, in relation to which the evidence of Mr Laurie and Ms S conflicted.
In the end the Magistrate was satisfied that Ms S gave her evidence honestly, and had not sought to exaggerate. She noted that she could convict Mr Laurie only if satisfied beyond reasonable doubt of the reliability of her evidence on the disputed issues.
The Magistrate also heard evidence from Ms K, a female friend of Ms S. Ms K gave evidence about Ms S making an initial complaint to her. More importantly, Ms K gave evidence that on 18 December 2008 she was in Mr Laurie’s company, and raised the matter with him. Her evidence was that he admitted to her that he wrote the message on Ms S’s buttocks, because he thought it would be funny.
The Magistrate also considered her evidence with care, and found her to be a witness of truth and reliable concerning the admission by Mr Laurie, although not wholly reliable in all respects.
Mr Laurie gave evidence. The Magistrate noted that he gave evidence in a forthright and confident manner. In his evidence he denied writing the message, and denied the act of indecency in Ms S’s presence when she woke up.
He also denied making the alleged admission to Ms K.
Each of Mr Laurie’s parents gave evidence. The Judge accepted that they were honest, but found that they could not assist on the crucial issues. One issue was whether the door of the bedroom in which Ms S slept was locked. At first Mrs Laurie said that she did lock the door, but acknowledged in cross-examination that she might not have done so. The locking device was a button or knob on the inside handle. The door could be locked by turning the button or knob, and then closing the door. The person inside the room could open the door by turning the handle. From the outside the door could be opened only with a key, if it was locked.
Mrs Laurie gave evidence that there were only two keys to the room. She kept one and the son who usually slept in the room kept the other.
The Magistrate found Mr Laurie not guilty on the second count because she was left with a reasonable doubt. This was attributable to the fact that when Ms S awoke she was partially under the influence of alcohol, and also no doubt because of the effect on her of the hangover.
The Magistrate accepted Ms S’s evidence beyond reasonable doubt in relation to finding the message on her buttocks. She accepted the evidence of Ms K as to the admission by the defendant, and on that basis found him guilty of count one. She found that he must have taken the opportunity to enter the room after Ms S fell into a deep sleep.
There is no apparent error in the Magistrate’s reasons or reasoning process. The Magistrate directed herself carefully in terms of proof beyond reasonable doubt. As I have already mentioned, the Magistrate provided quite detailed reasons for her conclusion, and appears to have considered all relevant evidence.
Submissions on appeal
I reject the submission that the conviction is inconsistent with the acquittal on count two. The acquittal on the second count is clearly based on a doubt the Magistrate had about the reliability of Ms S’s observations, as she woke up intoxicated and hung over.
The acceptance of the evidence of Ms K was fundamental to the conviction on count one. Ms K gave evidence of an admission of guilt by Mr Laurie. Of course, the finding that the message was written on Ms S’s buttocks was also a crucial finding and that depended on the acceptance of that part of Ms S’s evidence.
In any event, there is no necessary inconsistency between finding Mr Laurie guilty on count one, and a conclusion that count two was not proved, based on the residual doubt held by the Magistrate. This was a doubt not inconsistent with the honesty and general reliability of Ms S.
Having said that, I turn now to the particular matters argued by Ms Brown, counsel for Mr Laurie on appeal. The question is whether, despite the points I have already made, the state of the evidence was such that the Magistrate could not properly be satisfied of guilt beyond reasonable doubt.
Ms Brown put a forceful submission that calls for careful consideration. It was as follows.
A number of findings had to be made to sustain a conviction beyond reasonable doubt. A finding that itself had to be made beyond reasonable doubt was that the bedroom door was not locked. Mrs Laurie said she locked it. In cross-examination she did no more than concede that she was “pretty sure but not positive” that she locked the door. On her evidence, she was the only one in the house with a key. She was not questioned about where the key was kept. Ms Brown, counsel for the appellant, submits that in the face of this evidence a finding could not be made beyond reasonable doubt that the door was not locked.
Ms Brown submitted, referring to the evidence, that the evidence from Ms S about events the next morning after she woke up was unclear.
There was no evidence that a black pen of the type probably used to write on Ms S was to be found in the house. Ms Brown submits that if Mr Laurie wrote across Ms S’ buttocks as claimed, that would have woken her up. However, having regard to Ms S’ intoxication, I doubt that.
Ms Brown submits that Mr Laurie would not have been able to see what he was doing if he had gone into the bedroom in darkness, and written on Ms S then. This suggests that whatever happened probably happened about 7.00am the next morning, about the time when Ms S awoke. But the Magistrate had a reasonable doubt about her evidence as to the alleged act of indecency at that time. Also, it was unlikely that Mr Laurie would have touched Ms S if she was lying on the bed with vomit around her, and some of it on her. As to these points I make the comment that if Mr Laurie had gone into the room when it was dark, and had turned on the light, that might well not have woken Ms S. Ms Brown’s point about the vomit assumes that the writing was put on Ms S after she had vomited. That is not necessarily the case.
Ms Brown makes the point that if Mr Laurie went into the bedroom the following morning, then he must have done so without others in the house observing him, and that was unlikely.
She said that the evidence from Ms S about the sequence of events the next day was unclear. I agree with that. She was unclear about what happened after she woke up, and as the day went on.
After the events in question Ms S saw Mr Laurie on social outings on a number of occasions. She did not challenge him about the writing. Ms S and Ms K gave conflicting evidence about when and in what manner Ms S complained to Ms K about the incident. It was about five months after the incident when Ms K confronted Mr Laurie about it, and when he allegedly made the admission of which she gave evidence. Ms Brown submitted that the Magistrate could not convict unless the Magistrate accepted the evidence of Ms K as to the admission beyond reasonable doubt.
As Ms Brown said, the Magistrate made no findings critical of Mr Laurie’s evidence or of the manner in which he gave the evidence.
There was also the point that Ms S gave evidence that she had a shower when she got home, before going out again to a football match. But she did not notice the writing then. And later she changed into bathers without noticing the writing. It was another person at her parent’s house who saw parts of the writing, and called her attention to it. This person was not called. Ms S gave no detailed evidence about the size and style of the writing, or how she got it off. That should have taken some effort, if the writing was with a texta pen.
This is a forceful submission, and I agree that it requires careful thought. It is one that requires consideration of the submission as a whole.
I bear in mind that Ms S’ evidence does not directly implicate Mr Laurie. If accepted it establishes that there was writing on her buttocks, that it was placed there between the time when she passed out and the time when she woke up the next morning, and during the time that she was in a bedroom in the house where Mr Laurie lived with his parents. This was circumstantial evidence that tended to establish that Mr Laurie had the opportunity to commit the offence, but it went no further than that. It was the evidence of Ms K that was critical for a finding of guilt, because on her evidence Mr Laurie admitted the offence to her.
None of the matters raised by Ms Brown are matters of objective fact that are beyond contention, or of events in respect of which an unchallenged finding could be made. I agree that the evidence about the possible locking of the bedroom door was of central importance, as was the evidence of Ms K about the alleged admission.
But at the end of the day, having given careful thought to Ms Brown’s submission, I am not persuaded that the evidence does not support a finding of guilt beyond reasonable doubt. In my opinion it was open to the Magistrate to be satisfied beyond reasonable doubt that the bedroom door was not locked, and to accept the evidence of Ms K about the alleged admission beyond reasonable doubt. I acknowledge the force of the criticisms made by Ms Brown of the evidence of Ms S, and to a lesser extent of the evidence of Ms K. But one also has to bear in mind their age and maturity, and in the case of Ms S, the effect of alcohol on her after she woke up and during the rest of that day. I consider this to be a case in which the impression made by the witnesses was very important, and in that respect the Magistrate is in a distinctly better position than I am. The Magistrate had the opportunity to assess the evidence of Mrs Laurie, of Ms S and Ms K, and of Mr Laurie. Despite the criticisms that can be made of the evidence of Ms S and Ms K, and I agree that the criticisms can be made, the Magistrate was prepared to accept them and to base crucial findings on their evidence. The Magistrate was obviously aware of the criticisms. The Magistrate must have been influenced by the concession Mrs Laurie made that the bedroom door might not have been locked. That also is a matter on which the manner of giving evidence is significant.
Conclusion
For all those reasons I am not persuaded that the Magistrate should have had a reasonable doubt. I would dismiss the appeal against conviction.