Lawson v Jordan
[2015] TASSC 47
•19 October 2015
[2015] TASSC 47
COURT: SUPREME COURT OF TASMANIA
CITATION: Lawson v Jordan [2015] TASSC 47
PARTIES: LAWSON, Conrad Miles
v
JORDAN, Steven (Sergeant)
FILE NO: 1061/2014
DELIVERED ON: 19 October 2015
DELIVERED AT: Hobart
HEARING DATE: 12 May 2015
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters - Assertion magistrate failed to direct herself as to relevant legal principles and had given inadequate reasons.
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; Caccavo v Collins [2014] TASFC 7, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: D Gunson SC and R Meredith
Respondent: S Nicholson
Solicitors:
Applicant: Wallace Wilkinson & Webster
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASSC 47
Number of paragraphs: 109
Serial No 47/2015
File No 1061/2014
CONRAD MILES LAWSON v SERGEANT STEVEN JORDAN
REASONS FOR JUDGMENT TENNENT J
19 October 2015
The applicant was charged with one count of indecent assault contrary to the Criminal Code, s 127(1), and one count of stalking contrary to the Code, s 192, on complaint number 6813/13. The complainant in respect of both matters was JL. The particulars of the indecent assault charge were that on 25 July 2012 at Rosny the applicant unlawfully and indecently assaulted JL by rubbing his exposed penis on her face. As to the count of stalking, the complaint alleged that between 30 April 2010 and 31 August 2013 with the intention of causing JL mental harm and apprehension, the applicant did a number of things. These were listed in a later attachment to the complaint and were as follows:
"You used the internet in a way that could reasonably be expected to cause [JL] to be apprehensive or fearful
By sending her a facebook message on the 30th of April 2010 threatening to punch her and stating if she didn't want a relationship with you she should go and kill herself
By sending her a facebook message on the 14th of June 2010 stating she should kill herself and that you wondered if police would find out that you raped her if it was done after you killed her
By sending her an email on the 13th of February 2011 stating you would punch her to suicide and also threatening to kill her
By sending her a facebook message on the 25th of July 2012 stating that she deserved what happened that day
By sending her a facebook message on the 26th of July 2012 stating the only way you could be together was murder suicide
By sending her numerous facebook messages on the 27th of July 2012 requesting she forgive you and stating fingering a chick is bloody awesome
By sending her a facebook message on the 28th of July 2012 threatening to post a picture of her underwear to facebook telling people you'd had rough sex
By sending her a facebook message on the 31st of July 2012 threatening to kill her, burn her body and dump it
By sending her a facebook message on the 14th of August 2012 stating you wanted her dead and would destroy her life
By sending her a facebook message on the 12th of July 2013 stating her death would be your ultimate achievement, you want to rape her to death and wedge a knife in her vagina
By sending her a facebook message on the 12th of July 2013 telling her to kill herself and stating you want to kill her dog
You transmitted offensive material by electronic means in a way that the offensive material was likely to be found by [JL] namely you sent an image of a penis to her facebook account
You contacted [JL] by electronic communication
namely you called her 3 times on the 27th of July 2012 via skype
namely you text her on the 2nd of September 2012 via skype
by posting a photograph of the two of you, that was taken on the 25th of July 2012, to her facebook page
namely you messaged her on the 22nd of August 2012 via Facebook
namely you messaged her on the 23rd of August 2012 via Facebook"
The applicant pleaded not guilty and elected to be tried summarily, and the charges were heard by Magistrate Rheinberger on 13 and 14 August, 3 October and 20 November 2014. On 21 November 2014, the learned magistrate found both charges proved (as to the count of stalking only in relation to the period between 25 July 2012 and 14 August 2012). A notice to review in relation to those findings of guilt was subsequently filed and the sentencing proceedings before the learned magistrate were stayed pending the outcome of the review.
The grounds of review, as amended, were in the following terms:
"1The learned Magistrate erred in law when finding that it was the applicant who had sent the complainant the Facebook messages which were adduced in evidence when such evidence was circumstantial evidence and when making that finding she failed to direct herself in accordance with the established legal principles applicable to the use to be made of circumstantial evidence.
2The learned Magistrate erred in law when making adverse demeanour findings against the applicant and then making use of those findings as a means of determining the guilt of the applicant when it was an impermissible process of reasoning to do so.
3The learned Magistrate erred in fact and law in finding that on the whole of the evidence it was open to find beyond reasonable doubt that the Defendant committed the offences as alleged.
4The learned Magistrate erred in law in failing to give adequate reasons for her decision."
The issues raised by these grounds of review necessitate a consideration of the evidence before the learned magistrate.
The case for the prosecution
The case for the prosecution in relation to the charge of indecent assault was that on 25 July 2012, JL and the applicant, who were already known to each other, went from the Hobart CBD to Eastlands and then to Kangaroo Bay. There they kicked a soccer ball around for a while. While still in that area, JL fainted and when she came to, her skirt was pulled up and underpants were pulled down and the applicant was sitting on her with his penis exposed and on her face.
As to the count of stalking, the prosecution's case was essentially that on the occasions identified in the particulars, the applicant had communicated with JL via Facebook and Skype with the intention of causing her mental harm and apprehension.
The case for the applicant
As to the indecent assault, the applicant did not dispute that he and JL went to Kangaroo Bay on 25 July 2012 and kicked a soccer ball around. He did not dispute she fainted and that he remained with her. However he denied any indecent assault and disputed a number of details in her evidence about what happened that day.
As to the stalking charge, that largely hinged on alleged communications via Facebook and Skype. The applicant denied he was responsible for any of them and asserted that JL had fabricated them.
The evidence
JL
JL said she had met the applicant in 2009 when they were both students at Guilford Young College. They were then in year 11 and both left school at the end of the following year. They remained friends at varying levels after that. From some time in 2010, JL said she was subjected to a campaign of unpleasant, often malicious and sometimes threatening messages via Facebook, email and letters. The letters were at times found in her locker, in her bag and sometimes just lying around the school.
She gave evidence about an incident which she said occurred at Easter 2010, the Walk of Hope incident, which was not the subject of any charge. The evidence was allowed to be led to provide context for the Facebook messages which formed the basis of part of the stalking charge. JL said that, after a walk which was a school event, she and the applicant were playing frisbee when the applicant fell on her. She said that, when he did so, he put his finger in her vagina. She then got up and ran to the toilets crying. A girl she knew, Rebecca Schofield, came in and she said she knew what had happened because she had talked to the applicant. JL said she did not tell anyone else about the incident.
Following that, she said there was a cooling in the friendship between her and the applicant. She gave evidence about a document shown to her, which became exhibit P1. She described the document as a screen capture of two messages from her Facebook inbox. The name of the sender was Conrad Lawson. The page was headed "Conrad Lawson – Messages". Underneath that was what appeared to be a web address. That web address was:
" the left of the page was a set of boxes. Each contained from left to right a photograph, a name and a date. Each also had some words underneath the name. The box containing a photograph, the applicant's name and the date 7/20/13 was highlighted. Underneath the applicant's name were the words "OK". JL said the photograph depicted the applicant. To the right of the highlighted box, there was another box headed "Conrad Lawson". There were two parts to that right hand box which contained what JL said were messages from the applicant. The top part had the applicant's name and the date 30 April 2010 and a time "22.21" beside it. Beneath that was a message which read:
"Want another punch from me? Well continue to ignore me and that is exactly what you will get. This time James won't be there to witness it. Ever since the day of Walk for Hope you fucking won't have anything much to do with me. You think I am writing those letters don't you? Abbey and James confronted me about them. It's not me writing them and too bad if it was because I do what I want. I love you and I know we are meant to be together. You have no idea how miserable I have been feeling since you have been avoiding me. It was one mistake. I didn't mean to hurt you. I said I'm sorry now please forgive me. If you don't want a relationship with me go and kill yourself because I want you dead if that is the case. Please [JL] give me a chance at being your boyfriend. If not I want you to commit suicide and do it now. Your life won't be worth living without me in it. You don't understand the concept of love do you [JL]. When you are crazily in love with someone you don't give up on them. I'm not giving up on you."
JL said the comments made her feel worthless, they affected her self-esteem, and were detrimental to her mental health. It made her self-harm.
There was a second message shown on P1. The bottom part of the document had the applicant's name and the date 14 June 2010 with a time "9.40". The message under that read:
"Don't bother coming to school. If you do, you will regret it. Want me to do what I did to you Walk for Hope? I'll happily do it again and go future next time. Go kill yourself [JL], because everyone in this world hates you and wants you dead. I have always wondered whether police would find out if I killed you in whatever way and raped you whether they'd know I raped you because you were already dead before I did it? See, I can think evil when I want to be. I know you scared of me [JL]. I can tell by the look in your eyes and I like that. It feels good. Everything from Walk for Hope to now. My love for you is real. I'm a young lad and need a girl like you to complete his life. We could live happily ever after together and I could have sex with you every day for the rest of our lives."
Again, JL said the message made her feel despondent and she stopped going to school every day. She began distrusting men and did not feel safe. The two messages were the subject of the first two Facebook communications listed as constituting part of the stalking charge.
JL said that she and the applicant began talking again towards the end of 2010. She said she told him that she was suicidal and that she had harmed herself. He knew an ambulance had been called to school for her. She said she began talking to him again because she thought he had changed. He seemed interested in helping when all the letters and stuff were being distributed. She had shown him some of the material she had been getting and they had talked about it.
Contact resumed in 2011 and 2012 in the form of email, Facebook and Skype. JL said she and the applicant were friends on Facebook and stayed so until the incident in July 2012. She said the applicant's Facebook account was initially under the name Conrad Lawson, but sometime in 2013 the applicant changed it to C-Rad Miles. JL explained that with Facebook, you could have private messaging where only you and the other party saw the messages, and you could send photos and files with private messages.
JL was shown another document which became exhibit P2. She said it was a screen capture of an email she sent to the applicant on 4 February 2011. It read:
"Conrad, stop with the e-mails!!
The reason why I don't want you in my life, the reason I don't want to be friends you is because: YOU have taken a part of my life that I will never be able to get back, and I hate you for that!!
The memory of that afternoon on the 17th of February, still replays over and over and over and over in my mind. Sometimes, it feels as if I am stuck in time and I cannot move forwards nor can I move backwards!!! I feel that every step forward I take, it only takes that dirty part of what you did to me to return and then I am forced hundreds of step backwards. I still remember gasping the words 'You are hurting me, please stop', but you didn't stop!! You treated me like a sex object, and you made me feel like I was not even a person. Because of you, I don't even want to be alive anymore. I can't even look at guys the same way that I used to be able to look at them; because I am terrified they might do what you did. What pisses me off the most is that whenever I see you, you always have a certain smirk on your face, and you can't or won't even look at me in the eyes.
I am sorry, but I just don't trust you Conrad. I don't want you in my life. I am done with you, so please stop contacting me!!!"
She said that when she referred to 17 February it was a reference to the Walk of Hope incident.
JL identified another document which became exhibit P3. She said it was a screen capture of an email she had received from the applicant dated 13 February 2011. It read:
"You won't end our friendship [JL], what we have something special. I'll make your life difficult if you so dare as try and end our friendship. I will fuck your life up and push you to suicide. Our friendship is not going anywhere, do I make myself clear?
Also, Susan McArdle won't betray my trust because we have a special connection. In her eyes I wouldn't hurt a single sole. She's also there for me in away no one else will ever be.
Walk for hope was a mistake okay? It was all your fault. You see i thought you had feelings me like I had for you we all make mistakes [JL]. please [JL] i need your forgiveness. And I swear if you go as far as open your mouth about that or what happened in Susan McArdle's office i will kill you. I don't have to worry about her because my confidentiality is safe but its you i have to be worried about. I know you told Abbey and James so you better make sure their mouths remain fucking shut.
I still think the TQA ripped me off. There is no way you could have got that high of an ATAR Uni entrance score with the amount of time you had of school in term 2 and 3. you were rarely at school in the end.
Do you want your Sport Science book back? Because I accidentally let my junk all over it hahahahahahahaha."
JL said that Ms McArdle was a school counsellor she was seeing and there had been an argument between the applicant and another student about what had happened in her office. That email was the subject of the third particular of stalking.
JL then gave evidence about what she said happened on 25 July 2012 at Kangaroo Bay. She said that the applicant made contact with her and suggested they meet up and go to the eastern shore to play soccer with a group of friends. She caught a bus to the city. While she was waiting for the bus her father had seen her and spoken to her. He had suggested she go with him and not go to town and meet people. She decided to go to town anyway and met the applicant in the Hobart CBD. JL said she was feeling particularly anxious that day and that she had taken some paracetamol she bought. She said that the applicant gave her a tablet which he told her would help with her anxiety. They then caught a bus to Eastlands and walked around. While they were there the applicant told her he got a text message saying the others were not coming. The applicant, it seems, may have bought a soccer ball and the pair went to Kangaroo Bay and began kicking the ball around. They ended up near what JL described as the green building. She collapsed. She was wearing a skirt and tights. When she woke up, her skirt was up and her pants down, and the applicant was squatting on her upper body and his penis was on her face. A car pulled up and the applicant got off her. She dressed. She said she felt freaked out and panicky.
JL said she walked away with the applicant following behind. She then had a panic attack and fainted and found herself lying on the ground. The applicant called an ambulance. JL said that while they waited for the ambulance, the applicant was looking at his phone. She asked him what it was and he said, "That's the video". She told him to delete it and he said he would. When the ambulance arrived she was taken to hospital and the applicant travelled with her. At the hospital, the two sat in the triage area for a period. The applicant then said he would call his father to collect them both. JL said she did not want to go with his father. Evidently the applicant's father came, but then left without either of them. JL was sent to a cubicle. In there, she took off her clothes and put on a hospital gown. She then went to the toilet. When she returned to the cubicle, the applicant was there. He told her not to leave her underpants there and he would take them. Arrangements were subsequently made for her father to collect them both. He did so and dropped the applicant home and then JL at her home. JL made no report to her father about the alleged assault. She said she got home that night at about 6.30 to 7pm.
JL was then shown another document which became exhibit P4. She described it as a screen capture of a message she received from the applicant in her Facebook inbox. The document was headed "Conrad Lawson – Messages". Underneath that was the same web address which appeared in exhibit P1, and the boxes on the left hand side of the page contained the same material as in P1. The message to the right however was different. It bore the date 25 July 2012 and a time "8.11pm". That was about an hour or so after JL said she had got home after the hospital visit. The message read:
"[JL] please answer my calls…..I need to talk to you about today. You seriously cannot tell a single person about today I mean it [JL]….I deleted the recording and I did not make a single copy….I don't know what came over me…I would have never hurt you on purpose [JL] and I was not violent or anything….I only wanted to have sex with you because I am sick of our friendship only being a boring friendship. I know you don't love or care about me and it really hurts… I don't want any other guy to have you… Knowing Callum, Cody, Ben, Matt, Paul, Nick, Lindsay and god-knows who else 'likes' you, it really bothers me I know you and Cody have been sleeping together because why the fuck do you allow him to sleep over at your house……You don't even care how strong my feelings are for you….. You deserve what happened today anyway [JL]….Please don't go ending our friendship….I can't live without you in my life."
This message was the subject of the fourth particular of stalking.
Another document was then shown to JL which became exhibit P5. She said it was a screen capture of a message in her Facebook inbox. It was set up in the same manner as P1. The box on the right hand side of the page contained a message headed "Conrad Lawson" with the date July 26 2012 and the time 10.33pm. The message contained words and a picture of a penis below it. The message read:
"Avoiding me isn't the answer [JL]. We need to talk face to face about what happened over at Bellerive yesterday. That aside, you must admit I do have a decent size cock for a young lad like myself".
JL was shown another document containing two pages which became exhibit P6. She described it as a screen capture of some private messages from her Facebook inbox exchanged between her and the applicant. The first message was from her to the applicant. She said it was sent at 10.47pm on 26 July 2012. It read:
"To be honest, I think you 'thing' called a penis is nauseating!! I am sorry, but I CANNOT remain friends with you anymore. History keeps on repeating itself with you!! You keep on saying you are 'sorry', but I am sick and tired of your apologies!! You just continue on hurting me!! Nothing changes!! I am sorry, but I have no idea how to deal with this!! In the meantime please just leave me alone!!"
She said the next message was one to her from the applicant. It was sent at 10.49pm on 26 July 2012. It read:
"A very bad move [JL]. Looks like the only way for us to be together is a murder suicide. Samantha and Kuol couldn't work things out and now they are both living happily ever after in heaven. This will be us in time [JL]."
That message formed the basis of the fifth particular of stalking. JL said that message made her feel fearful, frightened and scared.
JL said the next message on the first page of exhibit P6 was one sent to her by the applicant on 29 July 2012 at 11.25am. It read:
"You have no idea how miserable I am feeling right now. I spend half my life sick and now I have lost my best friend over a stupid mistake. Life is great…not…".
JL said the next message on the first page of exhibit P6 was a message from her to the applicant sent on 31 July at 1.28pm. It read:
"What part of LEAVE ME ALONE don't you understand? I don't want any contact with you!! I made it crystal clear that I never wanted any sexual contact with you!! You, however; was only ever interested in one thing!! I should have never trusted you …".
There is another message which starts near the bottom of the first page of exhibit P6. JL said it was a message from the applicant to her sent at 6.53pm on 31 July. It read:
"If you dare speak a single word of what happened, to the police or your parents or anyone else you will fucking regret it and your life will be".
The page then ends. On the second page of exhibit P6, there are three messages. The first is a repeat of that said to have been sent by the applicant at 11.25am on 29 July. The second message is the same as the second last one on the previous page. As to the third message on the second page, the sender of the message appears as "Lady-El McClaws". JL said it was a message sent by the applicant to her. The profile photograph is of the applicant. It is dated 31 July and timed at 3.50pm. The message read:
"If you dare speak a single word of what happened, to the police or your parents, or anyone else, you will fucking regret it and your life will be over before you know it. I may not have possession of a gun, but I have a good friend who has one and I know he would be happy to lend it to me. And no the police would never know I killed you because I would burn your body and dump it somewhere police would never dare to look. So. If I was you, I would keep my mouth shut. It never happened."
It is apparent the first two lines are identical to the message which appears lastly on the previous page of the exhibit but with a different sender and earlier time. JL explained the name "Lady-El McClaws". She said the name related to a stuffed bald eagle plush toy with anxiety beads on it. She had it and used to take it with her on occasions because it relieved anxiety. She showed the bird to the applicant and he gave it the name. She said no-one else would have known about the name but the applicant.
JL gave evidence about her use of Skype. She had had an account since early 2012. She opened it so she could contact students at university. She and the applicant were friends on Skype. She said she thought you could send messages to someone when they were off-line but they only came through went they went on line. The applicant's Skype account name was C-RAD. The next document JL was shown became exhibit P7. She described it as a screen snippet of Skype on 27 July 2012. She had logged into her Skype account and the snippet showed contact by the applicant with her. It showed three missed calls.
JL identified the next document she was shown as another screen capture from Facebook. It became exhibit P8. The web address, photograph and name are all the same as P1. The messages shown are as follows:
27 July 2012 8.00pm Conrad Lawson
"Why are you dismissing my calls on Skype [JL]? We need to talk about things and ignoring me isn't going to work [JL]. Please, just talk to me. I need to talk to clear the air between us both. Mistakes happen. You forgave me for what happened back in College, so I am sure you can find it in yourself to forgive me again."
27 July 2012 8.22pm Conrad Lawson
"Hello are you online? Please talk to me."
27 July 2012 9.27pm Conrad Lawson
"Can you remove that photo of you and Lucy Henry of your Facebook please. Her face is rank and I feel like vomiting up.
Fingering a chick is bloody awesome.
I still have the Frisbee by the way.
Hello [JL] please talk to me."
27 July 2012 10.39pm Conrad Lawson
"I masturbated last night and hurt myself. Need someone to talk to about my issues 'down there', can I talk to you please."
27 July 2012 11.15pm Conrad Lawson
"You haven't told your dad about what happened have you [JL]?"
JL said she thought the reference to the frisbee was to the Walk of Hope incident and the last message referred to the Kangaroo Bay incident. These messages made her feel frightened and disturbed. The 9.27pm message formed the basis for the sixth particular of stalking.
JL identified the next document she was shown as a screen capture of two private messages she received from the applicant. This document became exhibit P9. The first message was dated 28 July 2012 and received at 5.23pm. It read:
"You have no idea how angry I am right now. I have sent you a total of 7 messages and not one of them you have replied to. If you don't start replying soon and apologise for wanting to end our friendship I will upload the photos from our little episode over at Bellerive. Yep I still have your underpants. Funny how much damage I did in what a matter of 20 seconds isn't it? I had to wash these hard to get my cum of them and the blood mark. Want me to put this photo up on my Facebook and I'll just saw we had rough sex or something. hahaha I wish it was rough sex that would have been fucking epic hey? I sleep with these under my pillow and still remember pulling out my pocket knife and accidentally cutting the inner part of your thigh with it while trying to cut these pants open. hahaha all in the name of fun and what you do with love."
Under those words appeared a photograph of a pair of underpants that JL identified as those she was wearing at Kangaroo Bay on 25 July 2012. She expressed similar feelings as before when she received that message. This message formed the basis of the seventh particular of stalking.
There was a second message on the same page also dated 28 July 2012 but timed at 5.30pm. It read:
"When I fingered you back in 2010 what did it feel like? Tell me was it your first time? You avoid it every time I ask you that question so I will keep ".
The page is cut off at that point. The photograph to the left of the message is the same as that beside the name Conrad Lawson in previous messages. JL said this message reminded her of the Walk of Hope incident. She said she had flashbacks about that.
JL identified the next document she was shown as a screen capture of a message she sent to the applicant. It became exhibit P10. It is dated 14 August 2012 and timed at 9.25. It read:
"Conrad, I still haven't forgiven you for what you did to me those 878 days ago. Tell me you don't remember that day? You have no bloody idea the pain you have caused me, do you? My anxiety gets so bad sometimes, and that is your fault!!! You have stolen my normality!!! 878 days ago, was the worst day of my entire life!!! You took a safe place and made it hell. I still have not forgiven you for that, and to top it off I will not ever forgive you for what you did to me over at Kangaroo Bay!!! I did not consent to that, but that did not stop you from doing it!! I dread waking up in the morning, but I also dread going to sleep at night!!! I get a life sentence of pain, because even if it does eventually fade, I'll never forget what you did – 878 days ago or just recently over at Kangaroo Bay. I sometimes just seriously want to die. Then I would not have to deal with this pain, and I would not have to be around you or risk the chance of you hurting me all over again!!!
The sad thing is, I gave you so many chances to show me that you were sorry for what you did, that you would somehow change into a better person, than that person you were those 878 days ago. I wanted to believe you when you said you would change. But, I have given you so many opportunities of proving yourself of being a better person. Your words are now meaningfulness to me. You promises are nothing more than a mask of your disgraceful actions.
I have better things to do with my life than allow you to continue hurting me. I do not need or want someone like you in my life. I really do hope you do mature into that person you have claimed to be since the beginning of our friendship, but we can never go back to being friends. Not now, not ever! I am absolutely done with you!! Please do not persevere with contacting me."
JL identified the next document, which became exhibit P11, as another screen capture said to be the applicant's reply to P10. It was dated 14 August and timed at 9.44pm. It read:
"I remember that but I thought you would forgive me for that. you know that was only done out of love right? I loved you [JL]. I will change. I promise [JL]. I need your help to change. We can be happy together [JL]. please don't give up on us. please don't give up on me. i need you [JL]. we are meant to be together. everything i have done is always been out of love [JL]. I won't give up on us. I'm a good person [JL] but you cant see that can you? thinking back you deserved everything that happened because you never gave me the chance of proving myself boyfriend material did you [JL]? doing what i did in 2010 saved you the mistake of going out with Lindsay. He wont be good boyfriend material for you [JL]. I was and always will be. I'm the one for you [JL], please just give me a chance. while you are alive we will be together. otherwise i want you dead because i wont be able to live with seeing your face. I fucked up twice but that's no reason to hate me [JL]. i wont hurt you [JL]. if worst comes to worse ill do what i can to destroy your life. you think i wont but i will. Your mine [JL]. I know exactly what to do and i'm not afraid of doing that to you. my evil can rise hahahahahah."
The next document, which became exhibit P12, was identified as another screen capture. It contained two messages which JL said were sent by the applicant to her on 12 July at 8.09pm and 8.11pm. They read:
"Your death will be my ultimate life achievement, [JL]. Are you aware that that it possible to kill someone by raping them to death? I want to rape you death and dispose of your body by burning it. But before I burn it I want to wedge a knife into your vagina. I am not scared of the fucking police, they're a bunch of your useless assholes anyway. They all deserve a bullet. It might not happen now, but in time it will happen [JL]. I promise you it will. Just enjoy the rest of the time you still have on this earth.
Alternatively, you could go an put an end to this now and kill yourself [JL]. SUICIDE FAILURE.
HAHAHAHAHAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHHHHHHHHHHHHAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA. The police once told me you are a mental nut case and i know they believe me over you so don't bother talking to them again. Ill kill your dog, yep i want to kill your dog.
Hahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahah
ahahahahahahahahahahahahahahahahahahah. I still have your underpants by the way. Hahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaha."
These messages formed the basis for the tenth and eleventh particulars of stalking.
The next document, which became exhibit P13, was identified by JL as a screen capture of her Skype showing messages exchanged between her and the applicant. The messages were sent on 2 September 2012. The exchange reads:
Conrad Lawson - "Hey there Jellyfish" 8.54pm
JL - "What do you want Conrad" 8.54pm
Conrad Lawson - "Nothing – why?" 8.55pm
JL - "Why are you talking to me?" 8.55pm
Conrad Lawson - "Am I not allowed to talk to you" 8.56pm
JL - "Considering the fact that I should
go kill myself, you don't remember
that?" 8.57pm
Conrad Lawson - "I do remember that. Do you want
me to go away?" 8.57pm
Exhibit P14 was identified by JL as a screen capture of a photograph and message she said was posted on her Facebook wall. Up to that point all the screen captures tendered were said to be of private messages. When asked what the difference was, JL said that on the wall you can choose who sees the message. The message is dated simply 2013. JL said the photo was of her and the applicant in the Royal Hobart Hospital where she went after the alleged indecent assault. The message with the photo read:
"Bit of a blast from the past right here! Happy to say this is an old photo and we aren't here right now – with [JL] at Royal Hobart Hospital".
The next document shown to JL became exhibit P15. She described it as another screen capture she said she took from her Facebook. She said it was a message she received from the applicant. It was dated 22 August 2012 and timed at 10.51pm. It read:
"I honestly don't think I have felt this pissed off in my entire life. I am going to make this very simple, very clear and I will say it once.
I never called your mum a bitch. I said she was acting like one because she was. I'm pretty sure everyone has been like that before, myself included. She was extremely unpleasant when I came around with my mum.
I regret telling Ben anything. I thought I could trust him with that information. He promised not to share it.
I have been accused of many things in my life. Being dishonest isn't one of those. Do I make mistakes – yes. Do we all make mistakes- yes. Is there anything wrong with that – no. It is a part of life and is no reason to not trust someone. Perhaps I made a mistake, I apologise for that but it's no reason to not trust me. I would like to think we have been through too much for that."
JL said that particular screen capture was taken in 2014. The picture was different because the original account had been deactivated.
Exhibit P16 was another screen capture JL said she took and identified as a message sent to her by the applicant. It was dated 23 August 2012 and timed at 10.32am. The message read:
"I told Paul to back off for my own selfish reasons, I feel like a spanner for doing that. I came around to your house because I didn't know if you were alive or not. I'm pretty sure that is a good reason to want to see a friend. I am really sorry for talking to Ben about what I did, I can see it wasn't my smartest decision and I apologise. What Matt said and did wasn't abusive, he was just being himself. That is very different to the abuse that you get. I have no reason to show you the abusive stuff but what Matt did was just weird and given he is your friend you had a right to know he was talking about you in such a way. What happened on Homer's photo was regrettable but there was very little I could have done to affect that. I'm not responsible for what Matt and Aiden say, only my words and I said nothing remotely wrong.
[JL] you know I have feelings for you and perhaps that is the reason behind my confusion. I simply can't stand to argue with you, it hurts too much. I fully apologise for my wrong doings and I hope we can get past this. I regret saying some of the things I did last night. I don't get angry often but I do say some really stupid things when I do.
Again I apologise for everything and I hope that Professor C-Rad and Doctor Jellyfish can get things together again J".
JL said the names Professor C-Rad and Doctor Jellyfish were names the applicant had given himself and her. As to the reference to Homer's photo, she said that was a bird of hers that died and she posted photos of him on Facebook. The applicant and others started making comments.
An overnight adjournment occurred at this point in the evidence. The next morning the prosecution sought to lead evidence from JL about an email she said she received on 11 August 2014, that is three days before. JL produced a screen capture of that to the court. On the face of it, it was sent from Bec Schofield with the email address [email protected], at 2.25pm on 11 August 2014. It read:
"[JL] you have no idea the position you have put Conrad in, we might show up in court and watch u crumble and probs have a weak ass panic attack would be cool lol. u are the weakest bitch I know cos why the fuck would u tell the cops u were sexually assaulted anyway? Fuck id never tell the police nothing. Drop the case whore. You wont ever become a psychiatrist cos ur name will be mud and ull have no patients lol. lollol
Your pussy is the ugliest I have ever seen ha ha. Kangaroo Bay Special went public and made everyone die of laughter. The world can all see it."
JL said she clicked on the link in the email. She could not access it because she had blocked Bec Schofield so she got her brother to do it. They went to the link and saw a video. She did not know how to copy a video from Facebook and so recorded it on her mobile phone. That recording was played to the court. JL identified that it was footage from the Kangaroo Bay incident. It was her in the footage. It appeared to be of her vaginal area. She said she was able to identify it as coming from that day because she had never videoed herself or allowed anyone else to in that position before. She also identified the red band of the underpants she had been wearing that day. The evidence relating to this was taken de bene esse but subsequently admitted.
In cross-examination, it was suggested to JL in relation to the Walk of Hope incident that it did not happen and that she did not talk to Bec Schofield in the toilets about any such incident. She denied that. It was suggested that, in fact, as soon as people got back to the school after the walk, the applicant and others had gone to Hungry Jacks. She did not dispute they had gone to Hungry Jacks but said that was after the incident. It was also put to JL that she made no mention of this incident to police when she provided them with a lengthy written statement in 2013. She agreed she did not.
Counsel for the applicant moved on to the alleged indecent assault. He suggested to JL that she had not told police her father had tried to persuade her not to go with the applicant. She did not recall. It was also suggested that she had told police that the applicant had given her all the pills she had taken, whereas in her evidence she said she had bought the paracetamol. She reiterated she had bought the paracetamol and said the applicant was with her when she did. He had had a bottle of pills and gave her one. It was suggested it was implausible to suggest she would take a pill offered like that without querying what it was. She said she had no reason to query it.
JL agreed she did not tell paramedics who took her to hospital that she had taken a pill given to her by the applicant. She was asked why she did not tell them or the hospital, and she said she did not want blood tests and just wanted to go home. It was suggested the applicant never gave her a pill, and she said he did.
JL agreed she did not tell anyone at the hospital or her father that she had been assaulted by the applicant or that he had taken her underpants. She also did not, in her lengthy statement to police, tell them about this assault. She explained that she only told Constable Adams when she found her approachable. It was also suggested to her that less than 24 hours after the alleged assault, she had sent the applicant an email asking for help with a school assignment. She did not recall doing so, and when documents were shown to her, she did not believe she had sent the suggested email and could not tell from what she was shown if she had. Whatever documents were shown to JL were not tendered. It was also suggested to JL that she had told police that the applicant had told paramedics on 25 July 2012 that she was diabetic and may have needed insulin. She agreed she did and it was put to her he never said that. She said she believed he did.
Counsel for the applicant then moved on to the evidence about messages. JL accepted that she had told police she had received a number of malicious messages from various named accounts, and that there was information in some which could not have come from the applicant. She also agreed that if you knew someone's username and password for Facebook you could log onto any computer as that person. JL also accepted that in about January 2013 a relationship request was sent from her Facebook account to that of the applicant. She said her account was hacked into and a number of posts were posted on her wall as well as some email notifications. She had reported all of this to police and had also provided police with her log-in authorisation. She agreed this indicated someone else had had access to her Facebook although the time at which this might have occurred was not explored.
Right at the end of her cross-examination, counsel for the applicant put to JL that "all of these Facebook messages have been fabricated". She disagreed. It was also put that she "provided them in a form in that they are printed out screen shots that is impossible to verify". She disagreed. It was then put that "you've manipulated some of these Facebook posts and screen shots". She disagreed with that.
HL
JL's father, HL, told the court that his relationship with her had ceased nearly two years before. Up until then she lived with her mother and he and she had been close. He told the court, in relation to the visit by JL to hospital in July 2012, that the applicant had rung him on his daughter's phone when she had been at the hospital and he had then spoken to his daughter. She asked him to come and pick her up and he agreed.
He also said he had a conversation with the applicant in which he queried him on why he was sending things he found on Facebook to JL when he knew she suffered anxiety. HL said he told the applicant to take them to police.
Jonathon Morffew
Mr Morffew was a police officer attached to the computer forensics unit. He outlined his qualifications and experience in computer related technology.
Constable Morffew was shown exhibit P16. He identified the long number appearing at the top of the page as a Facebook identifier which appeared to relate to a user ID. He said in this case that number identified the person the message was sent from. He was then shown exhibit P1 and said the identifier on that was that same as in P16 which indicated it was the same Facebook account on each occasion. He said the identifier number was created by Facebook and no two profiles set up within Facebook could have the same number. He said that if a person shut down their Facebook account and started a new one they would get a new number. If the person applied to reactivate the old account however they could continue with the original identifier number.
When cross-examined, Constable Morffew was asked about screen shots. He agreed that exhibits P1 and P16 were not actually copies of Facebook but appeared to have been produced via screen shot. He said there were a number of ways to produce a screen shot. He said you could use the Print Screen function on your computer so that a screen shot was an actual shot of what was displayed on the computer, or you could use a snipping tool and capture the region you wanted to capture and print that out. He agreed that from just looking at the two screen shots he was shown you could not tell if they were an accurate representation of what was actually on Facebook because it was possible to manipulate words or any information on the page before taking the screen shot. He also agreed you could edit the image with an image editing tool like Photoshop and change text.
Constable Morffew was then "walked through" a number of steps on a computer for the purpose of showing the magistrate how the content of a screen shot could be made different to an original post. He was taken through a number of steps and screen shots were taken of screens as they were dealt with. There seems no doubt that the content of a Facebook message produced in the form of a screen shot may not necessarily be the content of the original message, that is the content can be altered before the screen capture is taken, and that would not be apparent from simply viewing the ultimate screen shot. No-one would be able to tell were they to look at the original post that it had been altered. Only the person who edited a message would see the editing. The only way to tell if there had been an alteration would be to look at the Facebook account of the person said to have sent the message. Constable Morffew also agreed that it would be possible by the same means to alter the identifier number as it appeared in a screen shot.
It was put to Constable Morffew that some people have their mobile phones permanently logged on to Facebook, and that someone picking that phone up could post messages as if they were the phone owner without the need to know a username and password. He agreed that could be done. The same would be the case were a computer permanently logged on to Facebook.
In re-examination, Constable Morffew was asked about some of the evidence he had given about steps he had been taken through. He was asked how he became aware of a particular step and interpreting what he called design coding, and he said through doing a course. He was asked if he could have interpreted that coding before doing the course, and he said not to the extent he could now. He said, "I knew what HTML was, but I wouldn't have known how to manipulate it."
Another aspect of the constable's re-examination related to whether there would need to be a message from somebody in the first place to have something to manipulate. He said a message said to be from someone could not be created from scratch. There would have to have been something from that person in the first place to be manipulated.
An attempt was made by counsel for the respondent to elicit from this witness information to the effect that it was possible for a person with a Facebook account to download the entire history of their Facebook account and, for example, provide that to police so that they could check original messages. The officer did not know, and the best which could be elicited from him after he was shown an unidentified and ultimately untendered document was that, if that is what they say then he presumed it could be done. As the magistrate raised with counsel at the time the evidence was led, the officer's response could hardly be admissible evidence that the process could be undertaken because essentially he did not know.
There was no attempt during cross-examination of JL to establish whether she had the knowledge to undertake the steps identified by Constable Morffew which might result in a modification of a message on Facebook. It was also never put to her in cross-examination that she took those steps. All that was suggested to her was that she had manipulated the messages displayed in the screen captures.
Detective Constable Leah Adams
On 9 June 2013, Detective Adams went to the applicant's home and spoke to him. The applicant reported that he believed JL's Facebook account had been hacked and that someone was making threats to rape her. Detective Adams created an incident report, and on 12 July went to see JL. She said JL stated she had received a number of threats on Facebook but she was unable at the time to show Detective Adams any of the threats on her computer. Detective Adams advised her to stay off her computer, change her email address and stay off Facebook.
On 30 July 2013, Detective Adams received a large statement from JL. In that statement, JL outlined a number of emails and Facebook messages she had received from various people. Detective Adams then spoke to a number of people named. After that, on 27 August 2013, she interviewed the applicant. The interview was played.
Detective Adams was cross-examined about the interview. She was not the lead interviewer. That was done by a Detective Barwick. A number of questions put to Detective Adams were apparently directed to establishing that the style of the interview was quite aggressive.
Detective Adams also said that despite the fact she looked at JL's computer a number of times, all she had ever seen were the folders with screen shots. She had not been able to find the original Facebook messages either on JL's computer or that of the applicant.
The applicant's police interview
The interviewing technique adopted during the interview by police could be described as robust and even aggressive. The applicant nevertheless maintained his position throughout and was not shaken as to his denials of wrong doing and his denials about sending messages. He ultimately confirmed in court as true what he told police about the day of the Walk of Hope incident and the alleged indecent assault and what he said was consistent with his counsel's cross-examination of JL.
The applicant told police he had liked JL since first meeting her but did not have the courage to tell her. He said he just maintained a friendship but kept it very much at a distance. He was aware of the harassment of JL at school and that she had mental health issues. He said he suffered from chronic liver illnesses and at times depression. He saw a counsellor at school, the same one JL saw. The applicant was asked about whether he knew who it was JL was having problems with. He said, "I'm trying to remember the lad's name". I mention that, not because in itself the answer had any significance but because of the language used. The applicant denied being responsible for sending any harassing material to JL.
In 2011, the applicant said he began courses at TAFE. He had on and off contact with JL. There were infrequent texts, but he did not see her or talk to her. There may have been Facebook contact. The applicant said he had had a Facebook account since about 2007/2008 and the name of his account was just "Conrad Lawson". Early in 2013 he closed that account because of harassment and opened a new one called "C-Rad Miles".
As to the original account, he said that, as far as he knew, nobody apart from himself knew the password. JL was a Facebook friend from early in 2009. The applicant also had an email account with the address [email protected]. He accepted that predominantly only he used his Facebook account, mobile phone and emails. He also had a Skype account. He accepted that he had referred to himself as "Professor C-RAD" and to JL as "Jellyfish". Only the two of them knew these names.
As to contact with JL in 2012, the applicant said that early in January he texted her and suggested they catch up. She said yes. They then had contact on Facebook three or four times a week until actually meeting in about March. They met in the city, spent some time together and then went their separate ways. They then communicated on social media as friends. She then began involving him in the harassment she was still subject to, and she was showing him things she was being sent.
The interviewer then moved on to the alleged indecent assault. The applicant said he and JL agreed to meet up in the city. She then asked if he wanted to go to Eastlands. They did and walked around there for a while. She decided they would go for a walk in the park across from Eastlands. He agreed and bought a little soccer ball to kick around. He said JL fell over trying to kick the ball. She got up and they kept walking to a green shed near the end of the park. He said she fainted. He said she got herself together fairly quickly and said she had a cousin working in Bellerive and suggested they go to see her. As they began to walk in that direction, he said it became increasingly clear that JL had made up the story. She was becoming increasingly shaky and finding it hard to walk. She then fainted again and seemed to be having a severe panic attack. He called the ambulance and went with her to hospital.
There were differences between what the applicant told police and what JL did as to precisely where they first met, whose idea it was to go to Eastlands, and whose idea it was to buy the paracetamol JL bought. The applicant denied giving JL any pill for anxiety. He denied completely that the indecent assault had occurred. There were other details that JL gave police which the applicant said just did not happen.
The applicant admitted that he probably contacted JL the night of the incident at Kangaroo Bay to find out how she was. The Facebook screen capture which became exhibit P4 was shown to him and he denied he sent it. He denied that the account from which the message appeared to have been sent was his and said that it was his account modified. It was suggested to him, "Are you saying JL's responsible for it?" and he said, "Well if it's not me and no one else could have known what happened then it must have been, yes because I can say one hundred percent certainty I did not send that message."
The applicant was asked if he had put any photos taken that day on Facebook. He was shown a photo and agreed he had taken it of them at the hospital that day and he said he did not know if he had put it on Facebook. He said that as far as he was aware they just stayed between him and JL.
The applicant did admit to sending the Facebook messages which became exhibits P15 and P16, but denied sending a number of others which were put to him. The police interview was somewhat unhelpful generally. The principal interviewing officer kept accusing the applicant of doing various things, talked over him regularly and was aggressive. It was difficult to establish from either the transcript or the actual recording just what documents were being shown to the applicant. There appeared to be records of messages not put in evidence. However, the applicant consistently denied sending the messages generally to JL and appeared perplexed as to the source of them. He admitted they appeared to have been sent from his account, but repeated several times he did not send them. He eventually claimed someone must have hacked his Facebook account.
Applicant's oral evidence
In his oral evidence, the applicant said what he told police in his interview was true. As to the Walk of Hope incident, he denied it occurred. As to his Facebook dealings, the applicant said he started on Facebook in about 2008. He said when he got a new phone in 2012, he put the Facebook application on it but deleted it shortly after because he was having issues with the phone. He said he primarily accessed Facebook on his computer, which he kept at home. He was asked about the video clip that JL was sent and he denied taking it. The applicant was not specifically asked any questions by his own counsel about any exhibits tendered through JL.
Under cross-examination, the applicant was not shaken about his evidence relating to the Walk of Hope incident. He was also not shaken in his denials generally.
Rebecca Schofield (also known as Brannigan)
Ms Schofield had been at college with both the applicant and JL.
Her recollection of the day of the Walk of Hope incident was vague. She said she did not speak to JL that day in the toilets and there was no complaint of an assault.
She said she had no Twitter account but did have a Facebook account. She was friends on Facebook with the applicant, and was at one time also friends with JL. She denied sending a tweet to the applicant asking him what he wanted her to say about the Walk of Hope incident. She admitted that, before she actually gave her evidence, the applicant had told her what evidence JL had given in court.
Grounds of review – Ground 1
Ground 1 asserts an error of law. It asserts that the evidence to the effect the applicant had sent and received the Facebook messages identified above was circumstantial, and the magistrate failed to direct herself as to the principles applicable to the use to be made of circumstantial evidence in any reasoning process.
It was submitted by counsel for the applicant that the importance of the issue raised by this ground lay in the fact that the versions of events given by JL and the applicant about the alleged indecent assault were different and there were no other witnesses to the alleged incident. There was no evidence of complaint and no other evidence which might support the version of events given by JL which might remove this case from the "word on word" category. The only evidence which it might be said could take the case outside that category and assist the magistrate to be satisfied beyond reasonable doubt the incident occurred as alleged, was the evidence relating to the Facebook messages. The magistrate had accepted the messages were genuine and had used that finding to underpin her conclusion the alleged indecent assault had occurred.
It was submitted that, in considering the evidence relating to the Facebook messages, the magistrate was obliged to first recognise it was circumstantial evidence and then deal with it in accordance with established principles. She needed to be satisfied that all other reasonable hypotheses consistent with innocence were excluded. Counsel for the applicant submitted she could not have been so satisfied, given her reasons.
Commencing at 6 of her reasons, the magistrate summarised the content of the messages in the various screen shots. At 13, the magistrate then said:
"So, given the evidence that—that's the chronological order of the messages that could be said to be relevant to the allegation of what occurred at the Kangaroo Bay and if you accept the authenticity of those messages, if you accept that they were sent from Mr Lawson to [JL] and a couple of the messages that she's said to have sent back to him, they are entirely consistent with an incident occurring at Kangaroo Bay, that's consistent too with there something happening back at school, or back when they were at college on that Walk for Hope day.
But more importantly from the Prosecution case, when you read them in that context in that chronological order, they are obviously very consistent with Mr Lawson being in a position where he is desperate to get her to talk to him about what had happened at Kangaroo Bay, that he's sorry about it and his comments to her escalate as she doesn't respond to him. It's apparent that, if you accept it's him, that he's regretting what has occurred and it's obvious from the messages that are said to have sent by [JL] to Mr Lawson that she's obviously very upset about what occurred and it has obviously damaged their relationship, which is all consistent with the type of incident that [JL] has described occurring at Kangaroo Bay."
Following this, the magistrate, commencing at 13 of her reasons, dealt with the applicant's position in relation to the evidence. She said:
"Now, Mr Lawson denies sending any of those messages. The defence position is very clear about this. As far as he's concerned, he has not sent her any messages like that. Obviously he accepts that they have sent messages between each other, but he says he certainly did not send those messages that I have read out. And in the messages or the material that was put forward, there were a couple that he did admit to sending and they were marked P15 and P16 and they are essentially two messages that don't really impact on the consideration I guess of the charge of the indecent assault or the stalking, but he does admit sending these particular ones and it's the same ID number that can be seen, but—so he admits a couple of them, P15 and P16, but not the others, and the relevance from the Prosecution point of view in relation to those is that well, he's picking and choosing they would say what he says he sent. They're fairly innocuous so he accepts he sent those ones that have been put forward.
The other one—the other message, or not message, the other posting that's relevant to the indecent assault too is P14, which is actually, that appears, to be a screen shot of a message that Mr Lawson's said to have posted on his Facebook on the 25th of February, 2013, which is actually a photo, or referred to I guess as a selfie, of he and [JL] when they were at the Royal Hobart Hospital back in July 2012, and the message that's associated with the photograph is, 'A bit of a blast from the past right here. Happy to say this is an old photo and we aren't here right now. With [JL] at the Royal Hobart Hospital', and there's a posting from what purports to be, or a posting from [JL] saying, 'Not cool Conrad.' She also makes a comment about it being a shocking photo, but she's indicating to Mr Lawson that's not cool posting that photo.
But there is that photo and [JL] can be seen and it appears that she's sitting on the hospital bed. It appears that she's in a gown and she, well difficult to—it's not particularly a good quality photo but it's obvious—it seems fairly obvious where they are. So as I say, Mr Lawson denies sending any of these. The other ones that are relevant are P12, which is some messages that are purported to be sent in 2013, July, which are particularly unpleasant and talking about [JL]'s death and telling her to kill herself, and there's some earlier ones back in 30th of April, 2010 which is P1 and also the 14th of June, 2010 which is P1 and there's a couple of emails P2 and P3 which are said to be from Mr Lawson to[JL], but obviously he denies obviously sending those. But they're not as relevant. Well they're not particularly relevant to the indecent assault charge, but they're relevant to the stalking charge."
Then commencing at 15 of her reasons, the magistrate said:
"So as far as the consideration of the case is concerned, it seems to me that on the face of—well it seems to me that those messages, particularly the ones that I've been referring to, which are P4, 5, 6, 8, 9, 10, 11, really when you look at the content of them and the way those messages are said to have unfolded, could have only been written by two people. It's either by [JL] or Mr Lawson. They are the only two people who knew something had happened at Kangaroo Bay and that first message, that P4 one is only a couple of hours after the incident's said to have occurred. [JL] has told no one and Mr Lawson is the only other person who is said to have been involved in the incident. So it seems to me that it's one or the other who have written these messages, and the defence position is, that it's not Mr Lawson, and it was put to [JL] that she in fact has manipulated these messages and then she's printed them off in these screen shot forms and so the authenticity can't really be verified. She's edited them to make it look as if Mr Lawson is effectively admitting to the incident that's said to have occurred at Kangaroo Bay.
So to find Mr Lawson—if I was to find Mr Lawson guilty of the indecent assault, I'd really need to be satisfied beyond a reasonable doubt of [JL]'s evidence."
It is here that counsel for the applicant asserts the magistrate fell into error. He submitted that the magistrate identified only two possible hypotheses in relation to the Facebook messages and these were that either the applicant or JL was responsible for the messages. Counsel submitted there was a third option, not considered by the magistrate, and that was that JL made the messages up and had someone else send them. Counsel submitted that third option was raised in the evidence in that the applicant said in his police interview his Facebook account could have been hacked. The actual possibility as articulated by counsel for the applicant in his submissions on this review was never raised before the magistrate, in either cross-examination of any witness or submissions. In fact, the issue of how the magistrate should deal with circumstantial evidence was never even raised by any counsel at the hearing. Certainly no submissions were made to the effect that there were a number of hypotheses consistent with innocence and they could not all be excluded. The first time the possibility now raised by counsel for the applicant has been raised is on this review.
It was submitted by counsel for the applicant that because neither lawyer addressed the issue of how to deal with circumstantial evidence, the matter was not foremost in the magistrate's mind when she made her decision. It was also submitted that the fact that the magistrate did not address this further hypothesis supported the assertion that she failed to properly direct herself.
There can be little doubt, having regard to the evidence of Constable Morffew, that the question of the authenticity of Facebook messages is fraught with difficulty. A person could look at their Facebook account and see messages in their inbox. Those messages may purport to have been sent from a particular person's account. However, without being able to see the contents of the asserted sender's sent box, it is impossible to assert with certainty that the message shown in the receiver's inbox is authentic, that is the form of the message as received is identical to that sent.
In this case, police had looked at both the applicant's and JL's Facebook accounts and were unable to find any record of the messages said by JL to have been sent and received. The applicant denied sending the disputed messages, both in his interview and in his oral evidence. He did admit to sending two messages which had the same identifier number and profile of the applicant as the disputed ones. The only evidence about the messages was the oral evidence from JL that the messages about which she gave evidence were received and sent by her, and the screen captures she produced of those messages. She said she produced all the screen captures. She was not asked how she did that.
To the extent therefore that that evidence could support a finding that the applicant sent and received the disputed messages, it was circumstantial.
There can be no dispute that there was no explicit recognition in the magistrate's reasons that this evidence was circumstantial. There was no explicit reference by the magistrate to having given herself a direction about the way to approach circumstantial evidence. With respect, that is not surprising. As Green CJ observed in Kelly v O'Sullivan (1995) 4 Tas R 446 at [10]:
"Obviously the Court's functions when it reviews the decision of a magistrate are not identical to those it performs when reviewing the verdict of a jury: inter alia the reasons for a magistrate's decision are known whereas those of the jury are not and all the legal directions upon which a jury has acted will have been explicitly stated by the trial judge in his summing up whereas a magistrate will rarely record all the directions of law which have actuated his decision."
There was no legal requirement for the magistrate to expressly state the directions of law she needed to consider. Failure to do so is not in itself an error. The asserted failure, if there was one, will need to be inferred from the magistrate's reasons.
How did the magistrate approach the evidence? She firstly outlined JL's evidence about the messages, the evidence of Constable Morffew, the evidence of the police officer, and that of the applicant.
The magistrate summarised the timing and contents of the disputed messages at 6 to 12 of her reasons. She noted at 13 that, if the messages were authentic, they were consistent with:
· the Walk of Hope incident occurring,
· the alleged incident at Kangaroo Bay occurring,
· the applicant being desperate after that incident to talk to JL about it,
· that he is sorry for it happening, and
· his comments escalate when she does not respond.
They were also consistent with:
· JL being very upset, and
· the relationship between the two being damaged.
The magistrate then noted that the applicant denied sending the disputed messages, but did admit to sending two which were not really contentious. She noted that from the prosecution point of view that was important because the identifying features of the admitted messages were almost identical to those on the disputed messages, and the applicant appeared to be picking and choosing which ones to acknowledge. The magistrate noted a photo said to have been posted by the applicant on Facebook of him and JL when she was in the Royal Hobart Hospital. The applicant admitted he took the photograph on his mobile phone but was not sure if he put it on Facebook.
The magistrate concluded at 15 that, having regard to the content of the messages and the way they were said to unfold, there were only two people who could have written them. These were the applicant or JL. With respect, it is clear that, in making that remark, the magistrate had determined that the content and sequence of the messages could lead to only two conclusions, either the applicant or JL was responsible for them. A third party hacker, as suggested by the applicant later in his interview, could not have known the detail in the messages. It was never suggested to JL that she prepared all the messages and arranged for a third party to send them as if coming from the applicant. Indeed, not even the applicant actually suggested that in his interview.
The issue therefore is did the magistrate approach the evidence from JL about the messages on the basis that, to accept the applicant sent those it was alleged he did, and use that evidence to support a finding of guilt as to the indecent assault, she needed to exclude any hypothesis consistent with innocence, and determine that the only rational conclusion open on the evidence was that the applicant was guilty.
At 21 of her reasons commencing at line 21, the magistrate, having commented on the various pieces of evidence given which might impact on her decision about the indecent assault, returned to consider the Facebook messages. She said:
"So having made all of those observations, it really comes down—the crucial part of this case is what could you be satisfied of beyond a reasonable doubt in relation to these messages, and as I say, on the face of those messages and the ones I'm referring to are P4, 5, 6, 8, 9, 10 and 11, on the face of it it seems they seem entirely consistent with Mr Lawson trying to contact [JL] to talk about what happened. And when you consider all of the purported messages, it seems that he's stressing about what has been alleged and wanting to know what [JL]'s going to do about it, and then it also includes some quite odd material in that context as well. There's the picture being sent of the penis, there's the discussing of the masturbating, the photo relating to Lucy Henry and the fingering a chick being awesome and him still having a frisbee.
So as I say, they are consistent, but the defence case is, and it was put, that I couldn't be satisfied beyond a reasonable doubt that Mr Lawson sent them and that it's open that [JL] has manipulated these messages. And as I said, I've already come to the conclusion that it could only be one or two of them that have sent these messages, given that the first message starts not long after the alleged incident and then that just flows from there.
So one or other of them obviously has, as I say, have done the messages and the evidence then of constable Morffew becomes important. He gave evidence that it's possible to edit texts of the Facebook messages, that you could then take a screen shot of the edited message and then it appears as if that was the message. And he did a demonstration for us in Court where Mr Meredith took him through how that in fact can happen, that a message can be sent, that—and I don't purport to understand the technology of it, but certainly Constable Morffew was indicating it's related to the web design coding of the message, and you're able to go into the message, change the text of the message and then you can take a screen shot of the message and it would appear that that was the original message that was sent and there were a number of screen shots that were taken of each step that constable Morffew when through and they were tendered and marked D1 through to D11, which ultimately showed that the original message that was sent was, 'This is a test', then ultimately became a message that said, 'Anyone can change this, it's as easy as pie' still having the same sender, who it was going to, the same time, the same date, the only thing that had been changed was the text of the message. So it was apparent obviously from the evidence that that is possible to do that.
Constable Morffew indicated that his knowledge of how to do that came from his study doing certificate III in information technology as I understood it. They learnt about web design coding and it was clear from the evidence and from watching what was done, that you needed to have some info technology knowledge to be able to edit the messages, or to edit messages, Facebook messages. [JL], when it was suggested to her that she had edited or manipulated the text, she certainly denied that and it was not suggested to her that she had any knowledge or that she knew it was possible to edit—she wasn't asked whether she knew that you could edit a message and she was certainly not cross-examined about whether or not she even had any of that sort of information—technology information. So there's no evidence before the Court that she was someone who would even be capable or have the knowledge to be able to do something like that. But obviously, it can be done.
Now, Detective Adams gave some evidence that she had accessed [JL] and Mr Lawson's Facebook accounts, and when she looked at the accounts, just using her knowledge, she wasn't able to see these messages. In relation to [JL], she said that [JL] had folders of screen shots on her computer and that she wasn't able to show her the messages actually on the Facebook account. And the defence position is that consideration of these screen shots of the purported messages on Facebook should carry very little weight because they are merely screen shots produced by [JL] and their authenticity is not verified, and the messages can be edited and you couldn't rule out that [JL] is the one manipulating the messages. And in my view, this is obviously an important question and obviously a consideration of could I be satisfied beyond a reasonable doubt that Mr Lawson is the author of the messages that purport to be from him and sent to [JL]. And obviously that requires a careful analysis in relation to those messages, because the other evidence was that the evidence was that the message, to edit the message, the message needed to be sent in the first place. So that would tend to suggest that the messages—there are messages being sent and that it's just whether or not they are messages that are being sent by Mr Lawson. Well there needs to be a message sent by his account to [JL] and then it's been purported that [JL] was then manipulating it to say that. And as I said, my view is it could only be one of the two of them that are putting the content in these messages.
So one of them has created P4, which is that first message that has been sent, and I take the view that it's highly unlikely that so soon after the event that—and I take that view that it could only be one or the other because it's highly unlikely that someone else would have known that something had happened between the two of them that day and is somehow manipulating sending a message that's independent of Mr Lawson or [JL]. And as I say, it goes on in relation to the nature of the messages keeps flowing, which is consistent with the two of them, messages being sent about what happened that day, the two people who have got intimate knowledge about what occurred and those messages reflecting that.
Now, the other aspect of the messages and what you can make of them is that on the 26th of July, so P5, that's the one that's said to be sent at 10:33pm from Mr Lawson to [JL], is the one that has the photo of some male holding the penis and the comment, 'You must admit, I do have a decent sized cock for a young lad like myself', there was no evidence from Constable Morffew. He wasn't asked about whether or not photographs could be part of that editing process that's said to have occurred and whether that's a possibility as well, and he—well the evidence is silent as to that and we really don't know one way or the other and he certainly was taken through in great detail about editing the text, but he wasn't asked about whether or not a photo can be added to that editing process.
So the other aspect about the messages and the points that are made by the Prosecution, is that that reference to the word young lad is indicative of Mr Lawson because he uses that language in his interview and that's the language that's used in the message, which again tends to, the Prosecution say, link him to the messages. The underpants are said to be part of [JL] gave evidence that she didn't have the underpants again and they purport to be in that footage that she's seen, which is also consistent with what [JL] says happened.
And when you look at the messages there are other types of comments that are made in the messages which are completely, as I say, consistent with it being, not a natural conversation but an exchange that's credible and not been manipulated. There's comments like when there's the evidence in P7 of the three missed Skype calls and then there's a message that says, 'Why are you dismissing your Skype calls [JL]?' which is what you might expect is something that you would say if someone's not answering your Skype calls, that they need to talk about things, that ignoring him won't work and that needing to clear the air. They're types of language that's being used that's entirely consistent with trying to deal with the situation. And if it's the case that [JL]'s being said to have manipulated all of this, it's a very, very detailed comprehensive manipulation that's being suggested and the other thing is, that you might think that she would put it in more square terms, 'I'm sorry for putting'—she'd be more direct about what she's manipulating the situation about, but it's actually a conversation effectively that's being put in those messages."
Following those comments, the magistrate concluded that the applicant had sent the various impugned messages.
In my view, the magistrate undertook a detailed examination of the evidence relating to the messages and gave reasons for why she accepted that the applicant was responsible for the messages as opposed to JL. These reasons included a reference to the use by the sender of the messages of the term "lad", a term which appears in two messages and which the applicant uses in his interview. By implication the magistrate has clearly excluded the hypothesis that either JL, or indeed anyone else, was responsible for the messages.
In my view, the applicant has not established that the magistrate failed to direct herself appropriately and this ground must fail.
Ground 2
This ground contains an assertion that the magistrate erred in law when making adverse demeanour findings against the applicant, and then making use of those findings as a means of determining the guilt of the applicant when it was an impermissible process of reasoning to do so.
The remarks of the magistrate which underpin this ground appear at 20 of her reasons commencing at line 19. The magistrate said:
"Now, when he gave evidence, on watching and listening to Mr Lawson give evidence, he was probably less convincing in his evidence than what he was in the interview, despite the nature of that interview. At times when he was being cross-examined by Ms Perkins about some of the issues relating to he and [JL], he was smirking. Now that may have been nerves, I'm not sure, but he certainly didn't—he certainly wasn't quite the same as what he was when he gave his evidence. He was less compelling and less convincing in his denials when he gave evidence in this Court room."
Counsel for the applicant referred the Court to the reasons of Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. While this was a civil case, his Honour dealt with the question of demeanour findings by judicial officers. Under the heading "The need to take care in making demeanour findings", his Honour at [16]–[27] summarised a number of authorities and articles dealing with demeanour of witnesses. His Honour said at [27]:
"27 These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge's reasons that the probabilities and consistency with other relevant evidence have properly been taken into account."
His Honour went on at [28]–[31] to say:
"28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates. I hasten to add that this is not what the trial judge did in this case. Her Honour gave detailed reasons as to why she preferred Mr Arsic's testimony.
29 Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.
30 In the influential case of SS Hontestroom v SS Sagaporack (1927) AC 37 Lord Sumner said (at 50) that one of the material questions in determining whether the credibility finding in that case was erroneous was: 'Is there any glaring improbability about the story accepted, sufficient in itself to constitute 'a governing fact, which in relation to others has created a wrong impression,' or any specific misunderstanding or disregard of a material fact ... that has had the same effect?' It is in this context that the following remarks of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1835, [130] are particularly relevant:
'Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, and the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.'
31 A failure by a judge, when making a demeanour finding, to deal with an improbability constituting a 'governing fact' in the SS Hontestroom sense may constitute 'an error in the process of fact-finding' as explained by Hayne J."
Counsel submitted that the decision of the magistrate hinged "completely" on her findings about the applicant's demeanour, and said that methodology was wrong. With respect, leaving aside whether it is appropriate or not to make comments about a witness's demeanour, it is a nonsense to suggest that the magistrate's conclusion of guilt hinged "completely" on findings about demeanour. The comments about the applicant quoted above were a small part of a summary given by the magistrate of evidence given at the hearing. There was no suggestion they necessarily were determinative of her ultimate conclusion. In any event, she recognised that what she described as smirking could have been nerves. She had the opportunity to observe the applicant while he gave his oral evidence and during his interview, and make comparisons. She was entitled to observe that there were differences.
I am not satisfied that, by reference to the authorities to which I have been referred on this issue, the applicant has demonstrated error in this regard and the ground should fail.
Ground 3
By this ground the applicant asserts that the magistrate erred in fact and law in finding that on the whole of the evidence it was open to find beyond reasonable doubt that the applicant committed the offences as alleged. It was acknowledged by counsel for the applicant that a motion to review is not in the nature of a re-hearing, and that the principles in Warren v Coombes (1979) 142 CLR 531 do not apply. It was also acknowledged that the question on this review was whether the magistrate could, as a reasonable person, have come to the conclusion she did.
The ground of review was generic in that it did not separately identify the two charges. I will deal with the stalking charge first. The evidence relating to this came from JL and the Facebook messages. JL was not challenged to any real degree about her reaction to the various messages she said she received. Those reactions were understood against a background of mental fragility which even the applicant acknowledged in his interview. Satisfaction as to guilt therefore hinged on an acceptance that the applicant sent the Facebook messages it was alleged he did.
In dealing with the indecent assault the magistrate had expressed herself satisfied that the applicant was responsible for the messages depicted in exhibits P4, P5, P6, P8, P9, P10 and P11. Combined with the evidence as to JL's response to those messages, I am satisfied that the magistrate could, as a reasonable person, find the charge proved on the evidence. However, the magistrate went further to refer to further exhibits, which were P1, P2, P3 and P12. The magistrate said about these, commencing at 26 of her reasons at line 20:
"That leaves the stalking charge. Now, the stalking charge is said to relate to those messages that I've just discussed, plus P1, P2, P3 and P12. They're effectively the messages that—so it's all of those exhibits including the ones we've just talked about. To my mind, P1, 2, 3 and 12, it's less obvious that they could have been sent necessarily by Mr Lawson. There are others who potentially had some knowledge and there are some issues about other people having some knowledge, and what's different, the messages that are sent between July and August are all connected and linked into what's said to have occurred at Kangaroo Bay and they are in a different category to the other messages that were before the Court.
And there have obviously been some issues around the Facebook material. There was evidence from [HL], that he closed his Facebook account because someone had duplicated the messages and sent messages—duplicated his account and sent messages to [JL]. Detective Adams even said that she had someone purport to be her and was sent—and sent a message to [JL]. So as I say, it's open in my view that I should have a reasonable doubt about those other messages, P1, 2, 3 and 12, but as I say, the ones that are between the 25th of July and the 14th of August are in a different category."
The magistrate concluded that she had to entertain a reasonable doubt about those messages and as a consequence confined her finding of guilt to the period 25 July 2012 to 14 August. That conclusion in my view was open on the evidence.
As to the indecent assault, the direct evidence in relation to the indecent assault, which I have already canvassed, consisted of the oral evidence of JL, the applicant's interview and the applicant's oral evidence. The magistrate also canvassed other evidence and drew inferences as to the impact it might have had on the version of events described by JL. This evidence included the lack of early complaint, the Facebook messages, the video clip and Ms Schofield's evidence.
The magistrate accepted that the applicant was responsible for the Facebook messages sent between 25 July and 14 August. Once that acceptance existed, it was clearly open to the magistrate to conclude they corroborated the version of events given by JL because their content was consistent with the incident occurring, the exposure of the applicant's feelings for JL to which the applicant admitted in his interview, and an escalating anger on the part of the applicant when JL would not communicate with him.
In my view, this ground cannot succeed.
Ground 4
This ground asserts the magistrate failed to give adequate reasons for her decision.
As to an asserted failure by a judge to give adequate reasons for his or her decision, Pearce J addressed this at [35] in Caccavo v Collins [2014] TASFC 7, where he said:
"35 Ground 4 contends that 'the learned judge erred in law by failing to give sufficient reasons and/or failing to sufficiently state the basis for making relevant findings'. The duty for magistrates and judges to give reasons and the content of the duty has been considered and applied in many cases: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (above); Australian Securities Commission v Schreuder [1994] TASSC 127; (1994) 14 ACSR 614; Phillips v Arnold (above); Robinson v Chatters [2010] TASSC 66; Lusted v Mokomoko [2012] TASSC 72. See also AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, 470 [89] per Heydon J, citing Gleeson, 'Judicial Accountability', The Judicial Review, vol 2 (1995) 117, at 122. Phillips JA observed in R v Arnold [1998] VSCA 34; [1999] 1 VR 179, 181 – 182, [8]:
'It has frequently been emphasised how important is the giving of reasons to the process of judicial decision-making: see, for example, De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-9 (where the earlier cases are recounted); Pettitt v Dunkley [1971] 1 NSWLR 376 at 380-2 (where again earlier authorities are recounted); Palmer v Clarke (1989) 19 NSWLR 158 (where the nature of "the common law duty" imposed upon a judge was emphasised); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, especially at 278-81 per McHugh JA, and Sun Alliance Insurance Ltd. v Massoud [1989] VicRp 2; [1989] VR 8 at 19-20 per Gray J. In stating the relevant principles, it is always accepted that there is no universal obligation on the decision-maker, even though it be a court, to give reasons (for which proposition Brittingham v Williams [1932] VicLawRp 35; [1932] VLR 237 at 239 is commonly cited) and what is sufficient by way of reasons in a given case will always depend upon the circumstances (of which Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637 is a recent example). In Soulemezis at 280, McHugh JA (as he then was) said that "the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons" (quoting Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). McHugh JA also pointed out (as did Gray J in Massoud) that the obligation to give reasons could no longer be seen as dependent upon the existence of a right of appeal: as to which see Tatmar Pastoral at 386 and Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-7 per Gibbs CJ (although of course the hearing of an appeal has often provided the occasion for pointing out the difficulties created by the absence of reasons below). The duty to give reasons, qualified though it is, can be recognised now as "an incident of the judicial process"'."
As to this ground, save for acknowledging the obligation of a judicial officer to give reasons and listing relevant authorities, there was nothing in counsel's written submissions to indicate the basis for this ground. In oral submissions, the ground appeared to be predicated on two bases. The first was an assertion that the magistrate had made what was described as an "unfortunate" remark to the effect that she did not understand the technology. As a consequence it was submitted she could not have understood the evidence given about the Facebook messages and therefore could not give adequate reasons about that evidence. The second basis was that the magistrate had "spectacularly" failed to deal with the applicant's case. In support of his submission that these assertions must lead to a conclusion that the magistrate failed to give adequate reasons, counsel referred to Papps v Police [2000] SASC 183, where Gray J said at [34]–[36]:
"34 The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be 'coherent, intelligible and comprehensive.' But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:-
'The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:- (a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or (b) justice is not seen to have been done. The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.'
35 In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed.
36 The issue that then arises is whether the Magistrate's reasons in this matter were adequate. The resolution of the issue of credit was central and critical to a proper consideration of the charges. The Magistrate dealt with the credit of the police witnesses, and his assessment of them, but he did not deal at all with the credit of the defendant or his witness or his assessment of them. He gave no reasons for his rejection of the defence case." (Footnotes omitted.)
However, despite making those assertions, there were no submissions identifying precisely in what way the magistrate failed to understand the evidence about the messages, or failed to deal with the defence case. The "unfortunate" remark referred to by counsel is quoted in the extract in [91]. With respect, it was made in the context of the magistrate dealing with a specific aspect of Constable Morffew's evidence. It did not impact on her conclusion that Facebook messages could be manipulated, and there was no criticism of any statements made by the magistrate about the evidence of Constable Morffew, save that there was not enough commentary in relation to his evidence. No errors were pointed out as to the magistrate's characterisation of the evidence relating to the possible manipulation of the messages. The complaint seemed to be based wholly on what counsel described as an "unfortunate" comment by the magistrate. As to the applicant's case, the magistrate referred to it a number of times. She referred to the fact there were discrepancies between what he said and what JL had said, she referred to the evidence the applicant had called from Ms Schofield, she dealt with the applicant's interview and how he had coped with the interviewing style, and she dealt with the applicant's position in relation to the Facebook messages. In my view, her Honour's reasoning by reference to the matters she dealt with is clearly exposed and ground 4 should fail.
Outcome
All four grounds of review have failed and therefore the review is dismissed.
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