Lloyd v Murphy
[2007] WASC 243
•21 SEPTEMBER 2007
LLOYD -v- MURPHY [2007] WASC 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 243 | |
| Case No: | SJA:1013/2007 | 21 SEPTEMBER 2007 | |
| Coram: | HASLUCK J | 21/09/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | PHILIP MICHAEL LLOYD DAVID MURPHY |
Catchwords: | Criminal law Offence alleged indecent assault in the course of a massage Prosecution notice did not specify the alleged conduct the subject of the indecent assault Whether open to learned magistrate to convict upon basis of findings that were not directly related to the prosecution case Case against appellant not supported by the evidence and findings Appeal allowed and conviction set aside Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 |
Case References: | Garrett v Nicholson (1999) 21 WAR 226 M v The Queen (1994) 181 CLR 487 Martinez v State of Western Australia [2007] WASCA 143 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DAVID MURPHY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E HAMILTON
File No : AL 1410 of 2006
Catchwords:
Criminal law - Offence alleged indecent assault in the course of a massage - Prosecution notice did not specify the alleged conduct the subject of the indecent assault - Whether open to learned magistrate to convict upon basis of findings that were not directly related to the prosecution case - Case against appellant not supported by the evidence and findings - Appeal allowed and conviction set aside - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Ms L Goodsell
Solicitors:
Appellant : Robert Young
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Garrett v Nicholson (1999) 21 WAR 226
M v The Queen (1994) 181 CLR 487
Martinez v State of Western Australia [2007] WASCA 143
(Page 3)
- HASLUCK J:
Introduction
1 The appellant, Philip Michael Lloyd, was convicted in the Albany Magistrates Court on 18 January 2007 of indecent assault. He was placed on a six month community based order with supervision and programme requirements and 60 hours of community service work.
2 The allegation underlying the prosecution case before the learned magistrate was that the female complainant engaged the appellant, a self-employed male masseur, to perform a massage for therapeutic purposes. On the complainant's case, the appellant asked her to take off some of her clothes and then performed a massage that she said made her feel uncomfortable. She had never previously had a massage.
3 The principal issue raised by this appeal is whether it was open to the learned magistrate to convict upon the basis of findings that arguably went beyond, or were not directly related to, the prosecution case.
The hearing
4 The prosecution notice alleged simply that on 13 May 2004 the appellant indecently assaulted the complainant. The prosecution case was that, in the course of the massage, the accused ran his hands over the complainant's breasts on a number of occasions. The touching was not required within the massage process and was thought by the complainant to be indecent.
5 During the course of the hearing before the learned magistrate, defence counsel made a submission of no case to answer based primarily on the absence of evidence concerning any touching of the complainant's breasts.
6 I pause here to note in passing that at page 41 of the transcript, while the complainant was under cross-examination, an acknowledgment was obtained by defence counsel that the complainant did not specifically have a memory of the appellant touching her breasts.
7 The prosecutor opposed the no case submission. There was no submission by the prosecutor that the touching of the complainant's buttocks could amount to an indecent assault. The discussion concerning these matters appears at pages 72 to 77 of the transcript.
(Page 4)
8 Her Honour rejected the no case submission and the hearing proceeded. Her Honour found that the issue in respect of which the appellant had a case to answer was whether the complainant had given a free and voluntary consent to what the appellant had done in the course of the massage. Again, there was no suggestion that a touching of the buttocks could have amounted to indecent assault.
9 At the end of the hearing, in the learned magistrate's final assessment of the evidence, her Honour was unable to find that the appellant massaged or touched the complainant's breasts improperly, or at all. Her Honour went on to find that, notwithstanding that the complainant may have felt some personal discomfort in the context of a massage, it could not be said that the complainant had not given free and voluntary consent; indeed she exercised a choice in relation to a number of actions during the massage.
10 However, in the course of her reasons for decision, which were delivered on 18 January 2007, the learned magistrate said further that she accepted the complainant's evidence that she was massaged in the buttock area. Her Honour rejected the appellant's denial that he had done so. She appeared to accept or act on his evidence that he would have had no need to massage the complainant's buttocks in spite of the complainant's evidence that she suffered tightness in that area.
11 In the end, her Honour found that the only inference that could be drawn was that the touching of the buttocks was not contemplated as part of the massage; hence, it must have had a sexual element to it. Upon that basis her Honour held that the appellant ought to be convicted.
Appeal
12 It was against this background, that the appellant initiated an appeal. There is no need for me to trace the procedural steps in detail. The essential point of reference at this stage of the matter is a substituted appeal notice dated 17 September 2007.
13 In that document the grounds of appeal are described. The first ground of appeal is that the learned magistrate erred in convicting the appellant of indecent assault by way of touching the complainant's buttocks in circumstances where the appellant was not prepared to meet that allegation.
14 The particulars in support of the first ground of appeal are that the prosecution notice did not specify what the indecent assault consisted of;
(Page 5)
- the statement of material facts and pre-trial discussion made it clear that the allegation that the appellant had to meet was that he had touched the complainant's breasts. Further, by reason of the appellant meeting that case, the complainant was not cross-examined on any touching of her buttocks. No evidence was led from the appellant on that issue and no submissions were made by defence counsel on that issue.
15 The second ground of appeal is that once the learned magistrate found that there was no evidence to establish beyond reasonable doubt that the appellant had touched the complainant's breasts, the appellant should have been acquitted.
16 The third ground of appeal is that the learned magistrate erred in convicting the appellant in circumstances where that verdict was unreasonable and not supported by the evidence.
Submissions
17 The three grounds of appeal reflect the various matters that are set out in the appellant's written submissions (presented to the court under the signature of the appellant's counsel, Mr Young). The submissions are lengthy and I will not go through them in their entirety.
18 Importantly, it is said at paragraph 17 of the submissions in question that her Honour made a fundamental error of fact as to the evidence. At page 26 of the transcript of 17 January 2007 the complainant said:
Then he told me to get up into the bed on my stomach and, yes, massaged my back and my buttocks, I think, and the tops of my thighs.
19 It is submitted at paragraph 18 of the submissions that both defence counsel and the prosecutor later asked questions which appeared mistakenly to assume that the complainant had distinctly said her buttocks were massaged. This was not in fact the case and that was recognised by the learned Magistrate at transcript 105 where in recounting the complainant's evidence, her Honour said:
She said he massaged her back, buttocks, she thought, and the tops of her thighs.
20 It is said further that when the complainant's evidence is correctly assessed there was not a sufficient evidentiary basis for her Honour's finding at transcript 123 that:
I find as a fact … that the accused proceeded to massage her buttocks, upper thighs and back.
(Page 6)
21 It emerges, then, as reflected in the grounds of appeal and in the submissions, that there are said to be errors of law in the reasoning of the learned magistrate in that there was a failure to concentrate on the crucial issue as to whether there had been indecent dealing in the sense of a touching of the breasts.
22 Further, it is said that, in any event, there was a mistake in the course of reasoning as to the findings made in relation to the complainant's buttocks within the context of a prosecution case that was essentially focussed on indecent dealing by reference to an alleged touching of the complainant's breasts.
Observations and principles
23 It is a basic precept of the legal system, and especially in regard to a prosecution of this kind, that the nature of the case to be met by the accused person should be clearly articulated. The matters of complaint must be set out with particularity before the trial commences so that the accused knows exactly what is the allegation to be dealt with, and prepares and conducts his defence accordingly. A complainant's case is confined by the particulars provided.
24 Let me also remind myself of certain important principles in dealing with an appeal of this kind.
25 By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow or set aside or vary the decision or remit the case for rehearing. Further if the court considers that no substantial miscarriage of justice has occurred it may dismiss the appeal, notwithstanding that a ground of appeal has been decided in favour of the appellant.
26 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and materials that were before the lower court but this does not prevent consideration of any evidence the lower count refused to admit. By s 40, an appeal court may admit any other evidence.
27 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. See Garrett v Nicholson(1999) 21 WAR 226.
28 In his lengthy written submissions counsel for the appellant has drawn my attention to the law relating to unsafe and unsatisfactory
(Page 7)
- verdicts. The law was recently reviewed by the Court of Appeal in this state in Martinez v State of Western Australia [2007] WASCA 143.
29 Further, in M v The Queen(1994) 181 CLR 487, it was held that the Court of Appeal must make an independent review of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused. In most cases, a doubt experienced by an appellate court as to the guilt of the accused will be one which a jury ought also to have experienced. Thus, in that case, which concerned two counts of indecent assault, where the uncorroborated evidence of the complainant led to a verdict which was thought to be unsafe or unsatisfactory the High Court ordered that the appellant's convictions be quashed and verdicts of acquittal be entered.
30 Mason CJ, Dean, Dawson and Toohey JJ said:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the Court is bound to act and to set aside a verdict based upon that evidence. (494)
The present case
31 I must now return now to the circumstances of the present case. It will be apparent from what I have said so far that there does indeed appear to be force in the contentions made in favour of the appellant. The prosecution was confined by the nature of its case to an allegation of indecent dealing referable to a touching of the complainant's breasts without her consent, but the evidence and the findings made by the learned magistrate did not support such a conclusion.
32 I draw also upon the submissions made by counsel for the respondent. These contained a concession that there was no direct evidence of a lack of consent to the touching of the complainant's buttocks. Accordingly any lack of consent had to be inferred from the evidence.
33 Counsel for the respondent (that is, acting for the complainant) referred to evidence of the complainant that she suffered from the medical condition known as fibromyalgia syndrome being tightness of the muscles at the neck and buttocks. She was told by her chiropractor that a deep tissue massage would assist in the management of this condition. She told the appellant about this condition when completing the questionnaire at
(Page 8)
- the outset of the consultation and the area of the body that made the complainant most uncomfortable when touched by the appellant was the front part of her body.
34 Counsel for the respondent acknowledged that there was an equally open and competing inference available to the learned magistrate that the touching of the buttocks, if it occurred, was within the contemplation of the complainant and was a consensual touching.
35 It was conceded by counsel for the respondent that the learned magistrate's acceptance of the appellant's evidence that, without being able to specifically recall the treatment, having regard to the diagrams, he could not now see any justification of massaging her buttocks, was not sufficient to enable her Honour to make a finding beyond reasonable doubt that the complainant did not consent, or that her consent was obtain fraudulently.
Conclusion
36 I consider that the appeal must be allowed. I am persuaded by what is before me in the submissions of the appellant and of the respondent that there is sufficient force in each of the three grounds of appeal to justify allowance of the appeal. In essence, findings of fact were made which excluded indecent dealing referable to a touching or massaging of the breasts, being the allegation that lay at the heart of the prosecution case. The appellant should then have been acquitted. Further, and in any event, a conviction based upon ambiguities in the evidence and related finding concerning the buttocks was unsafe and unsatisfactory.
37 For these reasons, and having regard to the concessions made by counsel for the respondent, I consider the conviction should be set aside and without any order being made for a retrial of the matter.
38 I will hear from the parties as to whether any further orders and directions are required including as to costs.
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