Low v McLeod
[2009] WASC 8
•21 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LOW -v- McLEOD [2009] WASC 8
CORAM: SIMMONDS J
HEARD: 19 NOVEMBER 2008
DELIVERED : 21 JANUARY 2009
FILE NO/S: SJA 1048 of 2008
BETWEEN: CALLAN HAROLD LOW
Appellant
AND
DARREN NEIL McLEOD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V C EDWARDS
File No :BS 1510 of 2007
Catchwords:
Appeal against conviction for doing an indecent act in a public place - Relevance of evidence as to good character - Whether notwithstanding error as to the relevance of that evidence no substantial miscarriage of justice occurred - Whether evidence as to good character meant appellant should necessarily have been acquitted
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 203(1)(a)
Result:
Appeal allowed
Matter remitted for re-trial before a different magistrate
Category: B
Representation:
Counsel:
Appellant: Ms B J Lonsdale
Respondent: Ms S Markham
Solicitors:
Appellant: Max Owens & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Attwood v The Queen (1960) 102 CLR 353
M v The Queen (1998) 104 A Crim R 154
Melbourne v The Queen (1999) 198 CLR 1
Nevermann (1989) 43 A Crim R 347
R v Bellis [1966] 1 All ER 552
R v Rowton (1865) Le & Ca 520; 169 ER 1497
Stewart v The King (1921) 29 CLR 234
Wedd v The Queen [2000] WASCA 273
Weiss v The Queen (2005) 224 CLR 300
SIMMONDS J:
Introduction
This is an appeal by leave against a conviction for the offence, under Criminal Code (WA) s 203(1)(a), of doing an indecent act in a public place. The act alleged was the accused's exposure of his penis.
I begin these reasons by reviewing the charge and another which the accused faced and the trial on both. As a result of that trial the accused was convicted on the first charge and acquitted on the second.
I then describe the present appeal before considering the grounds of appeal on which leave was granted.
The final section of these reasons is my conclusion and orders.
The charges and the trial
By prosecution notice 1510/07 the appellant was charged that on 14 October 2007 at Busselton he did an indecent act in a public place (the 14 October charge). This was the charge on which he was convicted.
By prosecution notice 1511/07 the accused was also charged that on 20 October 2007 at Busselton he did an indecent act in a public place (the 20 October charge). This was the charge on which he was acquitted.
On 29 and 30 April 2008 the accused was tried on these two charges before Magistrate Edwards, on the first day in Busselton and on the second day in Bunbury. The appellant was throughout represented by the counsel who appeared for him before me.
There was evidence called from seven witnesses. They were Darren Neil McLeod, the complainant police officer; Benjamin Anthony Leber, a person who worked for a technical unit for the police; Brett Moon, a police officer then stationed at the Busselton police station; Misake Walker, who at all material times worked at the service station in Busselton where the events alleged in the charges occurred; Deborah Ann Waters, who also at all material times worked at that service station; Nicholas Gordon Michael, who had known the appellant since year 11 in boarding school; and the appellant.
There were also tendered into evidence images from a number of close circuit television (CCTV) cameras in the service station. Those images were on a set of three DVDs (exhibit 1). Those images had also been converted to a format which could be played on the equipment in the court available to her Honour and which was on a further, single, disk which was also tendered into evidence (exhibit 2). There were also in evidence a video record of interview with the appellant (exhibit 3) and a compact disk containing images from all of the surveillance cameras at the service station (exhibit 4).
At the conclusion of the trial her Honour reserved her decision.
On 13 June 2008 her Honour delivered written reasons (the Magistrate's reasons) for her decision that the appellant should be convicted on the 14 October charge but acquitted on the 20 October charge.
The appeal
By notice of appeal dated 24 June 2008 the appellant applied for leave to appeal on the following grounds, including their particulars:
1.The Learned Magistrate erred in law in failing to afford sufficient weight to the evidence of good character in deciding whether or not the appellant was guilty of the offence as charged.
PARTICULARS
(a)The Learned Magistrate erred by finding that the evidence of the witness Nicholas Michael was of limited value because he did not see the appellant on a regular basis;
(b)The Learned Magistrate erred by failing to find that the lack of prior convictions coupled with the evidence of character given by Mr Michael was persuasive evidence of the appellant's good character;
(c)The Learned Magistrate erred by finding that evidence of good character was only relevant in cases only involving one person's word against another;
(d)The Learned Magistrate erred by failing to find that evidence of good character was relevant to establish the veracity of the accused's testimony that he was unaware of having exposed himself.
2.The Learned Magistrate erred in finding that the video evidence showed that the accused exposed his penis when there was no evidence of that on the video, or alternatively the evidence of that on the video was in the best equivocal.
3.The Learned Magistrate erred in finding that the offence proven as there was no evidence that the appellant's exposure was a willed act:-
Particulars
(a)the Learned Magistrate erred in finding that, because the accused took steps to cover himself up after the point where it is said he exposed himself, his exposure was a willed act;
(b)the Learned Magistrate erred in finding that, because the accused took steps to cover himself up after the point where it is said he exposed himself, his exposure was not an accidental one.
4.By reason of the errors identified, there has been a miscarriage of justice.
On 3 September 2008 McKechnie J granted leave to appeal on all of these grounds.
I turn now to the grounds, in the order above.
I leave aside ground 4, which appears not to add anything to the other grounds, except in respect of the matter of whether or not, if one or more of the grounds is upheld, no substantial miscarriage of justice occurred, in the terms of Criminal Appeals Act 2004 (WA) s 14(2) (the CA Act). I deal with that matter in due course below.
Ground 1
In the Magistrate's reasons her Honour said this, as to the matters of the relevance of character evidence and the evidence before her that she identified as going to character (Magistrate's reasons, [24], [46], [47], [48] and [49]):
The accused called character evidence from Nicholas Michael. Mr Michael testified that he had known the accused since Year 11 at boarding school. He said that he knew the accused and his wife and that he and the accused had remained friends since school days. He said that he would see the accused approximately once maybe twice per year and that they were the times that they would socialise. He said they would also speak to each other once or twice per year. He described the accused as being a very upstanding young family man who was honest and down to earth and reserved [24].
The accused called evidence of good character. He has no prior convictions of any kind. Mr Michael spoke very highly of the accused. However his evidence needs to be viewed with some caution because although he knew the accused quite well during school days, his contact with the accused in latter years has been quite minimal. Evidence of good character can be led for a number of purposes. Usually it is to persuade the tribunal of fact that it is unlikely that the accused would have committed the offence, or to persuade the tribunal of fact that the accused is a credible and truthful witness. It is up to the tribunal of fact to determine what weight ought to be given to such evidence. I am of the view that very little weight should be given to the evidence of Mr Michael because he does not associate with the accused on a frequent and regular basis. His knowledge of the accused seems to be based more on his friendship with the accused during school days. The accused is now 33 years of age so it is some time since they were at school together. The fact that the accused has no prior convictions however is of significance and should be afforded reasonable weight [46].
The value of character evidence is mostly where there are real issues of credibility as between the evidence of the prosecution witnesses and that of the accused. In respect of the events of 14 October 2007, I am satisfied on the CCTV evidence that at about 6:45 the accused's penis was clearly exposed. He was walking past the console area where Ms Waters was stationed. The CCTV evidence supports her oral testimony. Accordingly, in my view there are no issues of credibility in respect of Ms Waters. Therefore, the evidence of prior good character plays no part in my view in determining the matter. The evidence is such that I am persuaded beyond reasonable doubt that on 14 October 2007, the accused exposed his penis as Ms Waters described [47].
The accused position is that if his penis was exposed, which he denied, then it was an accident. The burden rests upon the prosecution to negate a defence of accident beyond reasonable doubt. The CCTV footage shows the accused on several occasions between 6:44:57 and 6:45:07 with a hand or hands near his genital area and when his penis was exposed. I also accept the evidence of Ms Waters as confirmed by the CCTV footage, that the accused had an exposed penis when he was heading towards the bait freezer, however, it was not exposed when he turned and left the service station. That is a clear indication that the accused while at the bait freezer and while his back was turned, returned his penis to the inside of his shorts. He maintained in evidence that if his penis had been exposed he was totally unaware of it. The evidence from Ms Waters and the CCTV footage flies in the face of the accused's evidence. If he had discovered while at the bait freezer that his penis was exposed and he took steps then to cover himself up, then in my view he would have had a memory of that, especially when viewing the CCTV footage. The accused, in answer to the fact that his hands were in his genital area, said that he was 'adjusting himself' or 'scratching'. If that be the case, then he would have become aware that he was exposed and would clearly have had a memory of that especially after seeing the CCTV footage. I am persuaded beyond reasonable doubt that the accused was well aware of the exposure and on deciding to leave the service station he took steps to cover himself up while at the bait freezer. Accordingly, I am satisfied beyond reasonable doubt that the exposure was not accidental [48].
Defence counsel raised a number of matters in closing that were suggestive that the accused had not exposed himself wilfully on either occasion. The first matter was the evidence of good character which I have already addressed in respect of the events of 14 October 2007. The second matter raised was that the accused categorically denied the offences. Further it was said that his otherwise normal behaviour, coupled with no lewd comments or actions was inconsistent with the allegations. That may be so, however, the CCTV footage and the evidence, particularly of Ms Waters has persuaded me otherwise. Why the accused exposed himself as he did, when he may have known there would be security cameras operating is not something I would speculate upon. However, again, the evidence in my view is clear that he did expose himself and that he knew he was doing so [49].
The following propositions of law as to the evidence of an accused's good character were not in contest before me.
The first such proposition is from Stewart v The King (1921) 29 CLR 234, 241 (Knox CJ, Gavan Duffy, Rich & Starke JJ):
Evidence of a prisoner's bad character is clearly inadmissible, as a general rule, for the purpose of raising a presumption that the prisoner committed the offence charged against him. It is excluded as irrelevant. On the other hand, a prisoner on grounds of humanity is allowed, in criminal cases involving punishment, to prove his good character for the purpose of raising a presumption of innocence; but the rule is exceptional.
See also Heydon JD, Cross on Evidence (7th Aust ed, 2004) [19110] at n134.
The next such proposition is from Attwood v The Queen (1960) 102 CLR 353, 359 (Dixon CJ, McTiernan, Fullagar, Taylor & Menzies JJ), referring to R v Rowton (1865) Le & Ca 520; 169 ER 1497 (footnotes omitted):
The expression 'bad character' in relation to a witness has no technical or legal meaning. The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton … Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ said [in Reg v Rowton at 530; 169 ER at 1502]: 'The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried'.
See also Melbourne v The Queen (1999) 198 CLR 1 [30] ‑ [31] (McHugh J) where the following appears:
In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility.
The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.
See also Melbourne [100] (Kirby J); and Cross on Evidence [19110].
The appellant submitted that the evidence of Mr Michael was highly favourable as to the appellant's character. I was directed to the following evidence of Mr Michael in that regard.
In his examination‑in‑chief Mr Michael testified he and the appellant 'have remained close friends for that whole time since leaving school and Callan's very much a part of that community' and that '[he and the appellant] would still catch up with close friends on a regular basis' (29 April 2008, ts 64).
In his cross-examination, Mr Michael testified he had seen the appellant as recently as the previous year and he had spent a 'lot' of 'personal, intimate' time with him (29 April 2008, ts 65) and that they had 'maintained an intimate relationship over those years' (ts 65).
However, the authorities appear to me to show that matters of the weight as opposed to the admissibility and relevance of character evidence are primarily for the finder of fact: see Wedd v The Queen [2000] WASCA 273 [20] (Murray J), [2] (Malcolm CJ) and [3] (Wallwork J). It is in that light I must approach the present ground in the particulars assigned.
As to particular 1(a), and indeed particular 1(b), I note that it was put to me her Honour was 'rather too dismissive' in relation to the evidence of character from Mr Michael, in the words used in M v The Queen (1998) 104 A Crim R 154, 157 (Kennedy J); see also 165 (Wallwork J) and 168 (White J); see also Wedd [24] (Murray J).
However, in my view her Honour was considering, by reference to the frequency of Mr Michael's contact with the appellant, the weight that she should assign to Mr Michael's assessment of the appellant's character (both his disposition and his reputation) at the time of the alleged offences. Considering the frequency of contact as bearing on such an assignment, in the way her Honour did, does not appear to me to be erroneous.
In particular, her Honour was not in error because she omitted to refer to what Mr Michael said in his evidence as to the quality of his contacts with the appellant. Mr Michael said (in his cross-examination, 29 April 2008, ts 65) he had an 'intimate relationship' with the appellant, as I have already indicated. I have no reason to conclude from that omission her Honour had lost sight of that evidence. For this purpose I note the view to be taken of the reasons of persons in the position of her Honour, which I consider to hold even for a case where she had reserved judgment as she had in this case: see for that view Nevermann (1989) 43 A Crim R 347, 350 (Malcolm CJ).
Further, in my view ground 1(a) is not made out, as it was not shown that the Michael evidence was 'persuasive evidence' of good character. At least this was so if by 'persuasive evidence' was meant evidence which, notwithstanding the other evidence, is sufficient to produce a reasonable doubt as to willed act not occurring by accident. The other evidence which I have considered in this regard is that I reach under ground 3 below.
Nor do I consider her Honour erred, in the language of ground 1(c), by finding that evidence of good character was only relevant in cases involving one person's word against another. Her Honour did not so find, in my view: see Magistrate's reasons [47], set out in full above, where she said, in material part:
The value of character evidence is mostly where there are real issues of credibility as between the evidence of the prosecution witness and that of the accused.
While I consider that 'mostly' may overstate the point, it is not without support: see R v Bellis [1966] 1 All ER 552, 552 (Lord Widgery CJ), quoted in Cross on Evidence [19120].
However, the view of the learned Magistrate just quoted may go to explain a form of error which in my view of their submissions both parties took this ground 1(c) to cover but which ground 1(d) more clearly addressed. That form was the failure of her Honour to address the relevance of character evidence, not only to the issue of whether or not the appellant's penis was exposed at the relevant time, but also whether or not such exposure was a willed act or an event which did not occur by accident.
The respondent conceded that her Honour did not address that latter matter of relevance, and that such failure was an error. In my view her Honour's failure went to the relevance of the good character evidence to the unlikelihood the appellant would have exposed his penis as a willed act or that such exposure was an event not occurring by accident, and the credibility of his evidence in that regard, particularly as to him being at no material time aware of the exposure of his penis: see the Magistrate's reasons [49] (second sentence) read with [47].
The respondent submitted, however, that the evidence to negate lack of wilfulness (or an event that occurred by accident) was overwhelming. I took this to be a submission, in terms of the CA Act s 14(2), that no substantial miscarriage of justice had occurred.
It appears to have been common ground before me that the approach to be applied to the consideration of that submission is from Weiss v The Queen (2005) 224 CLR 300 [41] ‑ [47] (footnotes omitted):
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence … and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record …, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.
There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out' … But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present … and that the standard of proof is beyond reasonable doubt.
Next, the permissive language of the proviso (the Court ... may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal ...) is important. So, too, is the way in which the condition for the exercise of that power is expressed (if it considers that no substantial miscarriage of justice has actually occurred). No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
…
That an appellate court must review the whole record of trial when it is required to consider the application of the proviso may be said to tend to prolong appellate hearings and increase the burden on already overburdened intermediate appellate courts. The immediate answer to that proposition must be that it is what the common form criminal appeal provision requires. But no less importantly, the proviso, properly applied, will, in cases to which it is applicable, avoid the needless retrial of criminal proceedings.
Here the respondent referred me to evidence from the CCTV cameras that the accused's hand or hands were near his genital area; and from witnesses at the scene, that he had his penis exposed on two occasions on 14 October 2007, being evidence from Ms Walker as to the first entry into the service station and from Ms Waters as to the second such entry a short time later. I put aside the appellant's evidence he was unaware his penis was exposed, to which the respondent referred in this connection. That is evidence whose veracity was in issue. It is difficult to see how (a lie implying consciousness of guilt aside, of which there was no question here) that is relevant in this context, to establish the fact in issue, being that of wilfulness or an event not occurring by accident.
However, in my view the evidence I have referred to as relevant to the fact in issue does not suffice when I follow the approach from Weiss. Nor was there other evidence to which I was directed, or which appears from my own review of the transcript and the exhibits, including the video record of interview, which made up the shortfall.
I particularly considered in this regard the evidence of Ms Walker that she saw the appellant with his penis 'erect' (29 April 2008, examination‑in‑chief, ts 30), in the context of the following in relation to the appellant at that time (ts 29):
So I was selecting food from bain marie and then I just put on the bench next to the bain marie and then I asked him, 'Would you like something - anything else,' and then he - I asked 'anything else' and he said - no, he pointed like this - - -
So he was standing up at the counter?---Sorry - - -
No, I'll explain. It's okay?---Yes.
He was pointing with his index finger pointing out?---Just like down.
Down?---Yes. And I was standing here and he had this one to - this one and he didn't said newspaper or anything because he said this one and I just looked up and then his penis was out from his shorts.
Take a seat again. Were the newspapers - whereabouts were they in relation to where he was standing?---Like normal counter like this and newspaper like it's lower than this about here.
Mm'hm?---And he was pointing at this direction.
You say that you saw his penis out of his shorts?---Yes.
Had you looked in that area before, can you say whether his penis was inside his shorts earlier or you don't know?---No, no because I didn't see because when I selected food from bain marie, I was standing in front of the bain marie here and other territory that - bain marie is quite thick here it has glass because it's all covered. So I didn't notice - - -
So it's glass at the front and it's got a cover, is that what you mean?‑‑‑Yes. So I didn't see and I was concerned just here for food.
Your attention was on the food?---Yes.
When you did look in that direction when he pointed down and said and this towards the newspaper?---Yes.
This evidence, it seems to me, is altogether too equivocal to make up the shortfall. I note that the learned Magistrate, who of course saw that evidence presented, did not single it out for mention in this context. However, her Honour may have meant to subsume it by her reference to 'the evidence' in [49], above, and which I set out again:
Defence counsel raised a number of matters in closing that were suggestive that the accused had not exposed himself wilfully on either occasion. The first matter was the evidence of good character which I have already addressed in respect of the events of 14 October 2007. The second matter raised was that the accused categorically denied the offences. Further it was said that his otherwise normal behaviour, coupled with no lewd comments or actions was inconsistent with the allegations. That may be so, however, the CCTV footage and the evidence, particularly of Ms Waters has persuaded me otherwise.
I have also noted the learned Magistrate's reliance on her view of Ms Waters' evidence, the CCTV images and the appellant's failure to address the matter which is described in the learned Magistrate's reasons as follows ([48]):
If he had discovered while at the bait freezer that his penis was exposed and he took steps then to cover himself up, then in my view he would have had a memory of that, especially when viewing the CCTV footage. The accused, in answer to the fact that his hands were in his genital area, said that he was 'adjusting himself' or 'scratching'. If that be the case, then he would have become aware that he was exposed and would clearly have had a memory of that especially after seeing the CCTV footage. I am persuaded beyond reasonable doubt that the accused was well aware of the exposure and on deciding to leave the service station he took steps to cover himself up while at the bait freezer. Accordingly, I am satisfied beyond reasonable doubt that the exposure was not accidental.
While the matter is not altogether clear, it appears her Honour found the failure of the appellant to acknowledge any such recollection made the possibility of an adjustment or scratching as he had testified less likely.
I would have considerable difficulty with any such finding. That is because it is not apparent to me there is any evidence (and none is referred to by the learned Magistrate) that the appellant must have discovered his penis was exposed if he had made the clothing adjustment he testified to. The matter of the nature of the adjustment was not explored in the evidence, and the nature of any such adjustment was on my viewing of them not clearly visible from the CCTV images.
I should add that, for reasons given below in relation to ground 3, I am also not persuaded I am in a position on the evidence to conclude that a reasonable doubt necessarily arises which means I should proceed to acquit.
Ground 2
I can dispose of this ground quite briefly.
Her Honour did not on the CCTV evidence alone find that the accused 'exposed his penis', at least in the sense of removing it from his clothing. However, her Honour did find on that evidence alone as follows (Magistrate's reasons [44]):
Cameras 5.1, 5.2, and 3 between 6:44:57 and 6:45:07, show the accused with his left arm bent in front of him and in my opinion a clearly erect penis below his arm.
This may be contrasted with her Honour's findings in respect of a later time, as follows (the Magistrate's reasons, [48], in part):
I also accept the evidence of Ms Waters as confirmed by the CCTV footage, that the accused had an exposed penis when he was heading towards the bait freezer, however, it was not exposed when he turned and left the service station.
However, I have difficulty finding the earlier CCTV images any clearer than the later images in the respect relevant under this ground.
At the same time, for the purposes of this appeal it was accepted the appellant's penis was exposed both at the earlier and the later times. This was the case on the evidence of Ms Walker and Ms Waters, which it was common ground the learned Magistrate could properly accept in this respect. Indeed the appellant's own evidence was that he had no recollection of his penis being uncovered but could not exclude the possibility it was uncovered (30 April 2008, examination‑in‑chief, ts 12).
Therefore, while I accept that at best the evidence from the CCTV cameras was indeed equivocal, and uphold this ground, I do not consider this is a basis to set aside the conviction.
Ground 3
I consider that as formulated this ground must fail. That is because there was evidence that the appellant's exposure was a willed act (or not an event that had occurred by accident).
The learned Magistrate referred to the evidence on which she relied in relation to whether or not the appellant 'exposed himself wilfully on either occasion' in the Magistrate's reasons [49]. That evidence was briefly described there, as 'the CCTV footage and the evidence, particularly of Ms Waters'. I take this to be a reference to the evidence to which her Honour referred in [48] in connection with whether or not the prosecution had negated 'a defence of accident beyond a reasonable doubt' as follows (the Magistrate's reasons [48], in part):
The CCTV footage shows the accused on several occasions between 6:44:57 and 6:45:07 with a hand or hands near his genital area and when his penis was exposed. I also accept the evidence of Ms Waters as confirmed by the CCTV footage, that the accused had an exposed penis when he was heading towards the bait freezer, however, it was no exposed when he turned and left the service station. That is a clear indication that the accused while at the bait freezer and while his back was turned, returned his penis to the inside of his shorts. He maintained in evidence that if his penis had been exposed he was totally unaware of it. The evidence from Ms Waters and the CCTV footage flies in the face of the accused's evidence.
The evidence is thus of three sorts.
One sort is the CCTV images of the appellant's entry into the premises when her Honour found he had his penis exposed.
The second sort was the CCTV images of the appellant's hands near his genital area on several occasions between 6:44:57 and 6:45:07 as shown on those images when on the evidence the penis was exposed.
The third sort of evidence was the fact on the evidence of Ms Waters, 'as confirmed by the CCTV footage' the appellant no longer had his penis exposed 'when he turned and left the service station' (reasons of the Magistrate [48] above).
I consider this evidence is sufficient to dispose of the present ground of appeal.
I should not leave ground 3 without noting that the three sorts of evidence I have just referred to in my view would prevent me concluding, as counsel for the appellant appeared to invite me to conclude, that no other conclusion was open on the evidence in this case but that a reasonable doubt arose on which the appellant should have been acquitted.
However, I note again that her Honour also appears to have considered that if the appellant had adjusted himself or scratched himself as he testified the appellant would have had a memory of exposing his penis, especially after he had seen the CCTV images, and that this appears to have had a bearing on her conclusion as to whether or not the appellant's exposure was a willed act (or an event which had not occurred by accident). I have previously considered this portion of her Honour's reasons in that respect, in relation to ground 1(d), above.
Conclusion and orders
It follows I would uphold the appeal, on ground 1 as I have indicated.
However, while I would set aside the conviction of the appellant, I would also remit the matter for retrial before a different magistrate.
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