Mansoor v Bulloch
[2012] WASC 11
•12 JANUARY 2012
MANSOOR -v- BULLOCH [2012] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 11 | |
| Case No: | SJA:1125/2010 | 8 DECEMBER 2011 | |
| Coram: | HALL J | 12/01/12 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMAD AMIN MANSOOR STUART JOHN BULLOCH |
Catchwords: | Criminal law Appeal against conviction Indecent assault Necessary component of a fair trial that the appellant's evidence be considered and assessed in the context of the evidence as a whole Other explanations for appellant's conduct ought to be considered Whether verdict of guilty is unsafe, unreasonable and cannot be supported by the evidence Whether miscarriage of justice Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2) Criminal Code (WA), s 323 |
Case References: | Anderson (2001) 127 A Crim R 116; [2001] NSWCCA 488 Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 R v Liberato [1985] HCA 66; (1985) 159 CLR 507 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
STUART JOHN BULLOCH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G CICCHINI
File No : PE 50422 of 2008
Catchwords:
Criminal law - Appeal against conviction - Indecent assault - Necessary component of a fair trial that the appellant's evidence be considered and assessed in the context of the evidence as a whole - Other explanations for appellant's conduct ought to be considered - Whether verdict of guilty is unsafe, unreasonable and cannot be supported by the evidence - Whether miscarriage of justice - Turns on own facts
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Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 323
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr M Seaman
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson (2001) 127 A Crim R 116; [2001] NSWCCA 488
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
R v Liberato [1985] HCA 66; (1985) 159 CLR 507
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- HALL J:
Introduction
1 On 18 May 2009 the appellant was convicted after a three day trial in the Magistrates Court of one count of indecent assault contrary to s 323 of the Criminal Code (WA). He now appeals against that conviction.
2 A notice of appeal was not lodged until 21 December 2010. The appellant applied for an extension of time and supported that application with an affidavit. In essence the appellant states that his attempts to obtain representation to pursue an appeal were largely unsuccessful. His difficulties were compounded by the fact that he has a limited understanding of the English language having been born in Afghanistan and only arriving in Australia as an adult. The appellant states that as a result of his conviction he lost his employment and did not have the financial resources to pay for a lawyer. He applied for, but was initially refused, legal aid.
3 The appellant had difficulty meeting procedural requirements and this has caused delays in finalising the appeal. On 22 June 2011 I granted the application for an extension of time and also granted leave to appeal in respect of the grounds contained in the notice of appeal. The appellant then made a fresh application for legal aid which was granted.
Background
4 The offence was alleged to have been committed in 16 August 2008. At that time the appellant was a 43-year-old taxi driver. He had migrated to Australia from Afghanistan in 2003, speaks Dari as his first language and has limited English comprehension skills.
5 On 16 August 2008 between 2.15 am and 3.00 am the appellant was working in his taxi. He received a computer generated dispatch in relation to a request for a taxi at a residential address in Thornlie. He drove to the address and picked up three people: the 17-year-old female complainant, her female friend, JB, and her male friend, MM. The complainant sat in the front passenger seat and her friends in the rear seat. Earlier in the evening, the complainant and her friends had attended a work function in the city at which they had all consumed alcohol. The extent of their intoxication and the effect that it might have had upon the reliability of their evidence was in dispute at the trial.
6 The work function ended at about midnight after which the female complainant, JB and MM made their way to Thornlie for a birthday party.
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- When the three friends were ready to leave the party, a taxi was called for them to return to the Good Earth Hotel in Perth. They had booked a room at the hotel to avoid the necessity of driving home after the party. The journey from the Thornlie address to the hotel took approximately 20 minutes.
7 When the complainant first got into the vehicle the appellant asked for her name. She gave it and said that the appellant then complimented her on her name. The appellant's evidence was that he was simply seeking to ascertain that she was the person in whose name the booking had been made. He had been provided with a first name (which was that of the complainant) as part of the computer dispatch order.
8 During the journey the appellant's left hand came into contact with the complainant's right leg. The extent and duration of the touching was in dispute. According to the complainant, the appellant had his hand on top of her knee for approximately two minutes before moving his hand up her thigh towards her vagina. She said that this involved moving his hand under her dress and that the whole incident took approximately five minutes. As this was occurring the complainant sent a text message to her friend JB in the back of the taxi stating that the driver was touching her leg. JB showed the message to MM and they both said that they looked forward, saw the appellant touching the complainant's leg and confronted him about it.
9 The appellant conceded that he had touched the complainant's leg but said that it had been accidental and of brief duration. He said that he had been reaching for a cup of tea in the centre console of the car and that his hand had accidentally come into contact with the complainant's right leg.
10 The taxi arrived at the hotel a short time thereafter. The complainant's friends were agitated and angry and verbally abused the appellant. They got out of the taxi without paying the fare. MM struck the vehicle with his hand and, according to the appellant, also kicked it. The appellant drove off a short distance before realising that one of the passengers had left a mobile telephone on the back seat. The appellant then drove back to the hotel to return the phone. There was some divergence in the evidence as to which one of the three passengers then took it from him but nothing turned on that.
11 The prosecution case critically relied upon the evidence of the complainant and her friends, JB and MM. The prosecution also sought to rely upon other evidence which it was said indicated consciousness of
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- guilt on the part of the appellant. Firstly, that the appellant had left without seeking the fare for the taxi ride. According to the complainant, the appellant had said 'Don't worry about the fare'. This was said to be consistent with the appellant realising that he had been caught and an attempt to placate the passengers so that they would not report him. The appellant's evidence was that he never said to the passengers to not worry about the fare and that he drove off for fear of being attacked. Secondly, the prosecution alleged that the appellant had deliberately wiped the contents of the taxi's internal security camera. It was submitted that this had been done at some point following the incident when the appellant had caused the camera to activate and thereby overwrite any images from the relevant time. The appellant denied that he had done such a thing.
Grounds of appeal
12 There are two grounds of appeal. They are as follows:
1. The verdict of guilty is unsafe, unreasonable and cannot be supported by the evidence.
Particulars
- (a) The Magistrate erred in fact by concluding that the Appellant deleted images from the in-car surveillance and took into account an irrelevant consideration being the Appellant's alleged motivation for deleting the images.
(b) The Magistrates [sic] erred in fact by concluding that the configuration of the console meant any touching by the Appellant could not have been accidental.
(c) The Magistrate erred in fact and law by concluding that the Appellant's failure to pursue his fare, report the incident to police and his act in returning the mobile phone was evidence of a guilty mind.
(d) The Magistrate failed to give adequate reasons as to why he accepted the Complainant's evidence as credible in its entirety.
(e) The Magistrate failed to identify the evidence upon which he relied in concluding that he did not believe the Appellant's evidence.
(f) The Magistrate failed to take into account or failed [to] give adequate weight to the Appellant's evidence of previous good character.
- (g) The Magistrate failed to take into account discrepancies in the Appellant's interpreter's statements in evaluating the Appellant's credibility.
- 2. There was a miscarriage of justice when the Magistrate proceeded to take the Appellant's evidence when the interpreter for the Appellant spoke a different language to the Appellant, namely the interpreter spoke Persian and the Appellant (who is from Afghanistan) speaks Duri [sic].
13 At the hearing of the appeal counsel for the appellant did not pursue particulars (d) and (g). As to particular (d), it was accepted that it was open to the magistrate to make the finding that is referred to. As to particular (g), it was accepted that that matter is covered in ground 2.
Prosecution evidence
14 The transcript of the proceedings in the Magistrates Court is incomplete. The portions that are missing include the examination-in-chief and the initial part of the cross-examination of the complainant. Also missing is a portion of defence counsel's closing address and the initial part of the magistrate's reasons. Enquiries have indicated that the audio recording is no longer available.
15 The lack of a complete transcript is problematic. The complainant's evidence was obviously of critical importance. However, the substance of that evidence was not in dispute in this appeal and the essence of it can be determined by reference to the prosecution's closing address and the magistrate's reasons.
16 It should also be noted that the original exhibits were not available. Enquiries with the Magistrates Court indicated that the exhibits could not be located. At the hearing of the appeal, counsel for the appellant and the respondent were able to provide copies of some of the exhibits. It was not suggested by either party that the absence of the original exhibits was an impediment to the resolution of this appeal.
17 The following is a summary of the evidence of the principle witnesses at the trial. Some formal evidence was also adduced from police witnesses, but it is unnecessary to refer to it for present purposes.
The complainant
18 The complainant was 17 years old at the time of the incident. According to the prosecution's closing address, the complainant said that she and her friends had gone to the Good Earth Hotel after work before
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- attending a work function at the Hyatt Hotel. She had one or two alcoholic drinks before going to the Hyatt Hotel. At the function she had five or six glasses of sparkling wine. This alcohol was consumed approximately over a five-hour period.
19 Some time around midnight the complainant, JB and MM had left the Hyatt Hotel and gone to a party at the house of a friend in Thornlie. At the party the complainant had one or two glasses of punch approximately over a two-hour period. She said that she had sobered up by the time the incident occurred.
20 At approximately 2.30 am someone else at the party ordered a taxi on behalf of the complainant and her friends. The complainant said that when she got into the taxi the appellant asked for her name and she told him her first name. She said he then repeated her name and said 'That's a beautiful name' or words to that effect.
21 The complainant said that a short time into the journey the appellant touched her leg. At that stage she thought that the touching could have been accidental and did nothing about it. She said that the appellant then touched her leg again by placing his hand on her knee. She said there was then a third occasion when the appellant placed his left hand on top of her right thigh with his fingers towards the inside, and squeezed. She said that she did not say anything because she was scared. However, she did send a text message to her friend, JB. A photograph of that text was produced at the trial. It was accepted that the time signature was two hours ahead of the actual time and that the correct time was 2.41 am. The content of the text was as follows:
[JB] the drver (sic) is touching my leg tell [MM] and u 2 wath (sic) him.
22 The complainant said that at this point the appellant moved his hand up her leg and touched her on the outside of her underpants near her vagina. She said he then moved his hand back down her leg. At this point JB and MM asked the appellant what he was doing and began abusing him. She said he then removed his hand.
23 The complainant said that she wrote down the cab and driver numbers, which she later gave to the police. She said that when the taxi arrived at the hotel the appellant said 'Don't worry about the fare'.
24 The complainant said that after she and her friends were dropped off at the Good Earth Hotel she was very distressed and made an immediate complaint to the police.
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25 In cross-examination the complainant agreed that MM was 'pretty drunk' and was behaving angrily when they got out of the taxi. She agreed that MM had punched the passenger window as the taxi had driven away.
26 The complainant denied in cross-examination that there had been only one brief touching or that the appellant had said it was an accident and apologised. She did not recall seeing a cup of tea in the console of the vehicle. Nor did she recall the driver reaching for a cup during the journey.
JB
27 JB was a 22-year-old female friend of the complainant. They worked together, shared the room at the Good Earth Hotel and attended the work function at the Hyatt Hotel together on the evening of 15 August 2008.
28 JB said she had no alcoholic drinks before going to the Hyatt Hotel. At the function she had five to six glasses of wine. She said that she and her friends left the function at about 12 midnight and were talking to some work colleagues before she, the complainant and MM went to a party at the house of a friend in Thornlie. JB said that she had two drinks of punch at the party. She was not sure whether the punch was alcoholic.
29 At about 2.30 am someone at the party ordered a taxi for JB and her friends. When the taxi arrived the complainant sat in the front passenger seat next to the driver. JB sat behind the driver and MM sat behind the complainant.
30 A short time into the journey JB received a text message from the complainant. She said that she then looked up and could see that the appellant was leaning to his left and she then showed the text message to MM. JB said that she then leaned forward and saw that the appellant's left hand was on the complainant's right upper thigh.
31 JB said that MM then said words to the effect 'Take your hand off her. Oi, what are you doing?' She said that the appellant then said: 'Sorry, sorry' and removed his hand. JB said that she then swore at the appellant and said 'We're not letting you get away with this. Take down the driver number. Take down his name. We're going to the police with it'. JB said that at this time the complainant seemed upset and was crying.
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32 JB said that she then told the appellant 'We're not going to pay for this' and asked if he had a wife and kids; to which he replied 'Yes'. JB then said 'That's disgusting. That's dirty. I can't believe you did this. That's something you shouldn't do'. She said that she was 'really going off at him'. She denied that her recollection had been affected by her alcohol consumption. She also denied that what she saw could have been accidental.
MM
33 MM was a 23-year-old male friend and work colleague of the complainant. He said that he had 'a couple of vodkas and sprite' at the Good Earth Hotel before going to the work function. At the function he said he had 'quite a lot' of beer and estimated that he drank between five and ten pints. He agreed that he was 'quite drunk' by the end of the function.
34 Together with the complainant and JB, MM then went to the party in Thornlie. He had a further one or two drinks of punch at the party. He said that the punch was mildly alcoholic. He said that he fell asleep at the party and was woken up by the complainant to go back to their hotel. He sat behind the complainant in the taxi.
35 MM recalled being showed a text message by JB during the taxi ride. After reading the message he looked forward and saw the appellant's hand placed on the complainant's middle thigh. He said that the hand was placed loosely on the complainant's leg about 10 cm back from the kneecap. He then said 'Oi, get your fucking hands off'. He said that the appellant then removed his hand and said 'Sorry, sorry'.
36 MM said that there was a bit of yelling and the taxi driver was told to pull over. He said that the appellant then said 'Don't have to pay'. He said that JB had suggested that they take down the taxi driver's number and that the appellant had covered it up with his hand. He said that the car was then driven up onto the curb a short distance from the Good Earth Hotel and they all shouted at him a little bit more. MM said that he hit the back window on the passenger's side with the back of his hand. He said that the taxi drove off but returned almost immediately. The appellant held out MM's phone which MM took from him. MM said that at this point the complainant was crying hysterically.
37 In cross-examination MM agreed that when he first got into the taxi he may have laid down on the back seat. However, he did not recall the appellant saying 'Don't vomit in the car'.
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Graham Lloyd Edwards
38 Mr Edwards was a customer service officer working for the relevant taxi company. He gave evidence that a request for a taxi was received at 2.16 am on 16 August 2008 for a taxi in the Thornlie area. The job was taken by the appellant. When a driver accepts a job the computer dispatch system communicates the name of the person who booked the taxi. In this case the taxi was requested in the first name of the complainant. The records indicated that the meter in the taxi had been turned on at 2.24 am and turned off at 2.50 am.
39 In cross-examination Mr Edwards agreed that prior to this incident there had been no complaints about the appellant in the period that he had been working as a taxi driver for the company, which was since 13 July 2007. He had received a certificate of merit from the taxi company in October 2008. A favourable personal reference from the company, dated 25 August 2008 was also tendered at the trial.
Richard Mark Roberts
40 Mr Roberts was a senior compliance officer with the Passenger Services Business Unit at the Department of Planning and Infrastructure. His responsibilities included compliance duties in respect of the taxi industry. In this regard, he had been requested by the police to download the contents of the security camera in the appellant's taxi.
41 Mr Roberts said that he was contacted by police at 9.00 am on 16 August 2008 and asked to be on standby. Later that day, at approximately 4.30 pm, he was told by police that the taxi had been located. Mr Roberts gave instructions to the police as to how to preserve the contents of the security camera.
42 Mr Roberts said that there were two ways in which the camera could be activated. The first of these was by deliberate activation of a concealed alarm by the taxi driver. Images taken as a result of such an activation were preserved indefinitely. That method was not relevant to the circumstances of this case. The second method by which the camera could be activated automatically was by opening and closing the car doors or upon activation of the meter. Opening and closing of the doors triggers the camera to take a small number of still images. The starting and stopping of the meter has a similar effect.
43 The camera holds a finite number of images. Once full, the camera will overwrite the oldest images with new ones. Mr Roberts estimated
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- that if a driver did ten to 12 fares he could potentially go through the memory of the camera two or three times.
44 Mr Roberts said that it was possible for a driver to remove images by deliberately opening and closing the car doors on multiple occasions or by pressing the meter on and off a number of times. There was no direct evidence that either of these things had been done.
45 Mr Roberts said that when the images from the appellant's taxi were downloaded he found that there were none prior to 3.00 am on the morning of 16 August 2008. He said that on examination of the preserved images a number of them appeared to have occurred for no apparent reason. That is to say, activation of the camera usually coincided with a person either entering or alighting the vehicle but that did not appear to be the case with a number of the images on the camera. He described these as 'unnecessary triggers' and estimated that there was approximately forty of these triggers.
46 Mr Roberts said that training of drivers included information about security camera operation. However, he said this training was targeted more at driver safety and focused on how to store and freeze images. He did not think that the training included anything to indicate how images could be deliberately deleted or overwritten. Nonetheless, drivers were told what the memory of the camera is and what happens after the camera gets full. In respect of this matter, Mr Roberts was unable to say whether there had been deliberate triggering of the camera with the intention of erasing or overwriting photos.
Defence evidence
47 The appellant gave evidence in his defence. He did so with the assistance of an interpreter. The appellant said that he was 43 years old, had been in Australia for six years and was married with four children. He said he had no prior criminal convictions.
48 The appellant said that he was working in the early morning of 16 August 2008 when he received a job through the computer dispatch system. He said that the job was for an address in Thornlie and gave the first name of a female (which was that of the complainant). He said that on arriving at the address he sounded his horn and three people came to the taxi. He said that the complainant sat in the front passenger seat and the other two in the back. He said that they were all laughing and that the male was very drunk. He said that the man laid down on the back seat and the appellant asked him 'Please don't vomit on my taxi'.
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49 The appellant said that he then asked the complainant for her name and she gave her first name. He said that he did this to confirm that this was the passenger in whose name the booking had been made. He said that he responded by saying 'that's nice' or 'nice'. When it was put to him in cross-examination that there was some significance in him having said 'nice' rather than 'good' he said:
Is there a difference between good or nice? I just say good or nice any [to] passenger ... I just said nice. It's nothing bad. I say to any passenger. We give some respect to the passenger (ts 45).
50 The appellant said that he had a cup of tea in one of the two cup holders in the centre console between the front seats. He said that as a result of health issues he had been told by his doctor to drink at least every hour. He said that whilst driving he reached to get his tea and his hand touched the complainant's leg. He said that at this time the complainant was moving and her leg was close to the cup. He said he touched her only once and it was an accident.
51 He said that the complainant then said 'Why did you touch me? Why did you touch my body - my leg?' and that he responded by saying 'It was an accident'. He said that the female who was sitting in the back of the taxi then started to say 'Why did you touch her?' The appellant said that he did not want his passengers to be upset with him and that was why he said 'Sorry, sorry'. He said that the passengers in the back continued to shout at him as they approached the hotel. When they got out MM was kicking and hitting the car. He said he was afraid that the window might get broken and that was why he drove away. He then saw that a mobile phone had been left in the back. He turned the vehicle around and went back to the hotel and said 'This is your mobile'.
52 He said:
I thought, you know, giving them their mobile they will pay me my fare and I again saw the man and one of the girls start shouting and [the complainant] came and took the mobile off me. The man and the other girl came and shouted at me and they wanted again to hit the car and I left (ts 39).
53 The appellant denied that he had touched the complainant's thigh in the manner that she had described in her evidence. He maintained that there had been one incident of touching and that it was brief and accidental.
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54 As regards the security camera, the appellant said that he did not have any idea how the camera worked or how images were deleted. He said that in training he was simply told that when the camera's light is green it was working and when it was red it was not working. He said he was only aware that the camera operated for a very short period when a door was opened or closed. He was not aware that it was also triggered by the meter.
55 In cross-examination the appellant maintained that his hand was in contact with the complainant's leg for a second before he took it away. He said he then returned his hand to the wheel. He denied that his hand was still on the complainant's leg when the other passengers were shouting at him. He indicated that it was the side of his left hand, near the little finger, that touched the outside of the complainant's thigh towards the top (ts 48). He denied that he had put his hand under the complainant's dress or touched her on the outside of her underpants. He denied that he had squeezed the complainant's thigh with his fingers. He denied that he had put his hand over his driver identification and taxi number as alleged by MM. He denied that he had said not to worry about the fare.
56 The appellant further denied that he had deliberately triggered the camera in order to overwrite images. When shown some images of himself sitting in the car with no passengers, the appellant said that shortly before 9.00 am on the morning of 16 August his wife had told him to go to the police because he had told her that he had not been paid the fare by the complainant and her friends. He said he had got into the vehicle but had not gone to the police because he felt it would be of no use.
Magistrate's reasons
57 After summarising the evidence, the magistrate turned to the question of whether images had been deleted from the security camera. The magistrate said that it was apparent that the appellant did delete images following the incident and that some suspicion attached to his motivation for doing so. However, the magistrate concluded that he could not be satisfied that the appellant did this in order to delete potentially damning photographs. The magistrate said that there were other explanations that could not be excluded, including 'fiddling with the on/off button on the meter'. For these reasons, the magistrate said that the deletion of the photographs was of no particular assistance to the prosecution.
58 The magistrate then noted that this case essentially involved a conflict between the evidence of the complainant (supported to some
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- extent by the evidence of JB and MM) and the evidence of the appellant. The magistrate noted the importance of being satisfied beyond reasonable doubt of the truth of the evidence of the prosecution witnesses and quoted R v Liberato [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J).
59 The magistrate then stated that he found the complainant to be a credible witness. He also found that she was not drunk at the material time and had a good recollection of the events. The magistrate also accepted the evidence of JB that she had leaned forward and saw the appellant's hand on the complainant's upper thigh after receiving the text message. He found that JB was affected by alcohol but that she was not drunk. As regards MM, the magistrate found that he was drunk at the relevant time but he did not consider that this had materially affected what MM saw and he accepted MM's evidence in that regard.
60 The magistrate then turned to consider the evidence of the appellant. The magistrate said:
On the other hand, I do not accept the evidence given by the accused. I do not accept that the configuration of the console, relative to where the teacup was positioned, would have lead the accused to accidentally touching [the complainant's] leg. In my view, there would have been some effort needed on the accused's part to reach across to touch her leg.
I don't accept that any touching was accidental. To go beyond the teacup and for a hand to go over on to the seat area required effort beyond just a mere slippage. Furthermore, the accused's guilty conduct in my view is reflected in the fact that he did not pursue his fare. In my [view] that is a very damning aspect to this case.
He is a taxi driver. A fare is everything to the taxi driver, that is why he is working. If he had done nothing wrong and had been abused by his passengers, why didn't he complain [to] the police and the authorities about that? Because if it is the case that people get away without paying a fare in those circumstances, well why be on the road?
It is important to recognise that a fare - a lost fare to a taxi driver is an important thing. So any issue in relation to a lost fare is of significance and is of importance in determining this matter.
In this particular instance, any problem that might have [been] associated with the identity of the group could have been perfectly resolved by the mobile phone having been left in the vehicle. He could have gone to the police or other authorities with the mobile phone which would have then enabled the authorities to track down the people who had evaded the fare. Indeed, he decided to return the mobile phone.
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- I find the reason why he did so was that he had done something wrong earlier and was wanting to placate the group, which had become extremely distressed by his actions. For those reasons, not only didn't he report the fare evasion, but returned the phone as a gesture of good will in the hope that it would all go away.
He did that, even after [MM] had hit and kicked his car. That, of itself, warranted a report to police, but that didn't eventuate. Given the conduct of the group with the behaviour displayed, the threats allegedly made to him and the unpaid fare, he let it all go. That is the consciousness of a guilty mind.
The fact that he let it go is reflective of his guilty mind about what had happened. Quite frankly, I do not believe the accused and his denials concerning the touching.
I find, in accepting the evidence of the complainant that the accused initially touched [the complainant] to the leg, then put [his] hand on [her] knee, moved it up, inside her dress, to the thigh area, squeezed her thigh. Then moved his hand so it touched her underwear, in the vicinity of her vaginal region. He then pulled his hand back, up to the thigh area, at which time he was seen by the back-seat passengers.
I accept [the complainant's] evidence, as she has put what occurred to the court. I accept that she was scared at the time and responded by texting - which is not unusual for a young person; that was her preferred option rather than speaking. I have no doubt that what she has told the court that that actually occurred.
Clearly, the touching of [the complainant], as I have found it occurred, was not only non-consensual, but it was unlawful. It was also clearly indecent. All of the touches, throughout, as described were indecent and constitutes an offence as charge. For those reasons I find the charge against the accused has been proved beyond reasonable doubt (ts 20 - 21).
Deletion of images - Ground 1(a)
61 This ground asserts that the magistrate erred by concluding that the appellant deleted images from the taxi camera. The significance of this evidence depends upon it being open to conclude that deletion was not only deliberate, but done to conceal evidence of wrong-doing.
62 There were a number of obvious difficulties with the suggestion that the appellant had deleted images out of a consciousness of guilt. Firstly, on the available evidence, it was apparent that the camera did not operate continuously. Given that on any view the incident was said to have occurred some minutes into the taxi journey, and there was no suggestion that at the time of the incident any doors had been opened or the meter
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- button had been pressed, there would be no reason to think that any relevant images would have been recorded. This was accepted by the magistrate. Secondly, the remaining images indicate that the position of the camera was directed to the rear of the vehicle. It is not apparent that it would have recorded the position of the appellant's hand. Thirdly, as the appellant noted, it may have been in his interests for any images taken at the time that the complainant and her friends got into the taxi to have been preserved as this may have assisted in confirming his own evidence, including as to the state of the passengers and in particular, that MM had laid down on the seat just prior to the appellant asking him not to vomit in the taxi.
63 The magistrate did conclude that the appellant had deleted images from the camera. However, he did not accept that the only explanation for these deletions was that the appellant was seeking to destroy evidence out of a consciousness of guilt. The magistrate said that for this reason he had excluded this evidence from his consideration. Accordingly, there is no basis for asserting that the magistrate's finding in respect of the deletion of the images contributed to the finding of guilt.
64 This aspect of ground 1 has no merit.
Configuration of the console - Ground 1(b)
65 The magistrate recognised that in assessing the available evidence it was necessary to take into account that this was a case involving a clear conflict between the evidence of the complainant (supported to some extent by her friends) and that of the appellant. In referring to Liberato, the magistrate recognised that it was not simply a case of deciding who was to be believed. In this regard, the magistrate referred to the following statement of principle by Brennan J in Liberato:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue (515).
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66 There were a number of possibilities; the appellant's evidence was believed in which case he could not be convicted, the appellant's evidence whilst not positively believed, nonetheless raised a reasonable doubt as to his guilt in which case he could not be convicted, the appellant's evidence was rejected in which case the appellant would be convicted only if the prosecution evidence established guilt beyond reasonable doubt: See Anderson (2001) 127 A Crim R 116; [2001] NSWCCA 488 [25] - [26] and also Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51; Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 and Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531.
67 In whatever way the course of reasoning is formulated it is clear that an assessment of the evidence of the appellant was critical. Whilst a rejection of the appellant's evidence would not in itself establish that the prosecution case was proven beyond reasonable doubt, acceptance of his evidence or a reasonable doubt created by his evidence would necessarily require that he be acquitted of the charge. In these circumstances, it was important that the magistrate approached the task of assessing the appellant's evidence with care.
68 The magistrate concluded that he did not accept the appellant's evidence. The first reason that he gave for reaching this conclusion was that he did not accept that the configuration of the console would have allowed the appellant to accidently touch the complainant's leg. He expressed the view that more effort was required than would occur by reaching for a teacup in the centre console. It is important to examine whether this finding had a basis in the evidence.
69 There were a number of references to the centre console in the course of the evidence. None of them referred to its dimensions or configuration. No plan or diagram of the interior of the car was tendered. No photograph was produced which fully or adequately depicted the relevant part of the vehicle.
70 The complainant said that she could not recall seeing a cup of tea in the console of the taxi (ts 6 4/5/09). At ts 12 the complainant was asked:
In terms of the layout of the cab can you say whether he would have been able to have got his right hand on your right knee or not?
CHRISTOU, MR: Would have been? I mean - - -
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- FORDHAM, MS: Well, I'm talking about the layout of the cab. We weren't there. She should be able to estimate from the dimensions whether that's a possibility or not.
CHRISTOU, MR: Perhaps the question could be couched perhaps a better way.
FORDHAM, MS: Would have (indistinct) possibility.
All right. I'll ask it another way.
Would it have been possible or not for him to have put his right hand on your right knee. Do you know?---It would have been extremely difficult.
Thank you. At what point did it occur to you that this wasn't an accident?---The minute I felt his hand on top of my knee.
71 There are two obvious difficulties with this evidence. Firstly, it refers to the appellant's right hand rather than his left. That may well have been an error but it was not corrected by anyone so it is somewhat difficult to know how the answers relate to the layout of the cab and to what was in fact alleged to have occurred. Secondly, the complainant later accepted that the initial touching of her leg could have been accidental. The reason she ultimately dismissed the possibility of accident was not because of the configuration of the car but because of the movement and apparently deliberate nature of the touching as described by her.
72 JB was asked about the console of the car and said that she could not remember anything about it (ts 22 4/5/09). Similarly, MM could not recall anything about a console or whether the taxi even had a centre console (ts 32 4/5/09). In cross-examination, however, he said that there was a console but no cup holders (ts 46 4/5/09). In fact it was not in dispute that there were cup holders.
73 In his evidence, the appellant said that there was a centre console with two cup holders and that he had a cup of tea in one of them (ts 38 5/5/09). He described moving his hand towards his cup and accidentally having his hand come into contact with the complainant's thigh, however no greater detail was given as to the configuration of the console. He was not cross-examined as to any difficulty with what he described in terms of the internal configuration of the car.
74 In closing submissions, counsel for the prosecution said:
He says he touched her thigh as he reached for his tea. That, your Honour might think, would be pretty hard to do. There is only one image which
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- shows tea; that's at 8.42 am the next morning. If your Honour has a look, your Honour might think that's really a very difficult thing to achieve. I would suggest to your Honour that he is simply lying about that and about everything else, in terms of what he did with [the complainant] (ts 12 18/5/09).
75 As I have noted earlier, the original exhibits are not available. However, it was accepted by counsel for the respondent on the appeal that the security camera photographs showed nothing of significance in respect of the console (appeal ts 35). In any event the photograph referred to by prosecuting counsel was taken many hours later and there was no evidence that the position of the teacup in that photograph was the same as at the time of the incident.
76 In the circumstances, it is difficult to understand how the magistrate could have come to the conclusion that the 'configuration' of the console was inconsistent with the appellant's evidence that the touching of the complainant's leg was accidental. There was nothing in the evidence that supported such a conclusion and, indeed, on its face it does not appear to have taken into account the complainant's evidence that she initially interpreted the touching as accidental.
77 The respondent submits that it would be a mistake to place too much emphasis on the use of the word 'configuration' as all that may have been intended by the magistrate was to refer to the effort that was needed for the appellant's hand to reach across to a passenger's leg. But that, too, assumes something about the configuration of the car and the distances involved, about which there was no evidence.
78 The reference by the magistrate to the configuration of the console must be understood as meaning that the appellant's account of what occurred was inconsistent with the objective layout of the interior of the vehicle. That is to say, the accidental touching as the appellant described it, was being said to be inconsistent with that layout. There was nothing in the evidence to support that conclusion.
79 It is clear that, whilst the magistrate gave other reasons for rejecting the evidence of the appellant, the configuration of the console was the first of these and appears to have figured prominently in his reasoning. Whether he would have reached a different conclusion regarding the appellant's evidence if he had not placed emphasis on the configuration of the console cannot be known. What is apparent, however, is that one of the reasons that the magistrate gave for rejecting the evidence of the appellant was not well-founded. In these circumstances, his conclusion
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- that the appellant's evidence should not be accepted is tainted. This leaves open a possibility that a proper assessment of the appellant's evidence could cause the finder of fact to have a reasonable doubt.
80 Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of an appellant the court may dismiss it if it considers that no substantial miscarriage of justice has occurred. It is not open to apply that provision in these circumstances as any assessment of the appellant's credibility relied not only upon its consistency but on an assessment of his conduct as a witness. This is not a case where the appellate court is in as good a position as the primary court to assess the evidence of a witness: See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. Indeed, it is not practically possible for this court to undertake such an assessment.
81 Whilst the prosecution evidence was arguably strong, the strength of the evidence could never justify this court dispensing with an assessment of the appellant's evidence in a case such as this. It was a necessary component of a fair trial that the appellant's evidence be considered and assessed in the context of the evidence as a whole. If that evidence was to be rejected it must be on the basis of findings as to credibility and reliability that were properly open on the evidence.
82 For these reasons, this aspect of ground 1 must succeed.
Failure to pursue fare - Ground 1(c)
83 The magistrate concluded that the appellant's failure to seek payment of the fare reflected consciousness of guilt. It is difficult to see how this conclusion could be fairly reached on the evidence. Whilst two of the prosecution witnesses referred to the appellant having said that they should not worry about payment of the fare, even if that evidence was accepted a statement to that effect was entirely explicable in circumstances where the passengers were behaving in an admittedly aggressive manner including striking the appellant's vehicle.
84 It seems to me to be problematic that the magistrate would use the non-pursuit of the fare as a reason for rejecting the appellant's evidence when, in fact, the appellant never accepted that he told the passengers not to worry about payment. Of course, it was open to accept parts of the evidence and reject other parts, but that is not what the magistrate appeared to be doing. Rather, he appears to have been assessing the appellant's evidence as a whole, but not taking into account significant aspects of it.
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85 The appellant maintained in his evidence that he did want to be paid and that was one of the reasons that he went back with the mobile telephone. He also said that his wife urged him to make a complaint to the police the following morning regarding the non-payment of the fare. To suggest, as the magistrate did, that the appellant accepted that the passengers did not have to pay the fare involves an implicit acceptance of their evidence rather than any assessment of his.
86 The magistrate placed very considerable emphasis on the appellant's failure to pursue the fare. He noted in this regard that there were other options available to the appellant including retaining the mobile telephone and using it to track down the people who had evaded the fare. That was a suggestion never put to the appellant in cross-examination. In any event, there is an obvious reason, inconsistent with guilt, why he would return the mobile telephone. That is, that the phone clearly belonged to one of the passengers and the honest and appropriate thing to do was to return it. A failure to do so might have attracted an accusation of stealing. In any event, the appellant said that he returned the mobile phone in the hope that by doing so the passengers may be encouraged to pay his fare. It is apparent that any such hope had no prospect of being realised given that when the taxi returned, MM said words to the effect of 'Do you want some more?' In these circumstances, it might be thought to be entirely understandable that the appellant would not pursue an argument regarding payment.
87 With respect to the magistrate, his own views as to the importance of fares to taxi drivers in general appear to have assumed great significance in his assessment of the appellant's conduct. To suggest, as he does, that the appellant was acting against type and contrary to how a taxi driver would be expected to behave fails to recognise that the appellant's evidence was that he was concerned about the fare and continued to be so when he later spoke to his wife about it. Bearing in mind the circumstances, including the aggression shown by the passengers and the appellant's limited understanding of English, it was incumbent upon the magistrate to consider whether there were other explanations for why the fare was not pursued.
88 In my view, the magistrate failed to do so and, thereby, failed to properly assess the appellant's evidence.
Failure to identify evidence - Ground 1(e)
89 This ground asserts that the magistrate did not identify the evidence upon which he relied in coming to the conclusion that the appellant's
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- evidence was not to be believed. In fact, the magistrate did identify the basis upon which he came to that conclusion and I have referred to it above in respect of grounds 1(b) and 1(c). The difficulty is not that the magistrate failed to identify the basis for his finding but that the identified basis was not well-founded in the evidence.
Good character evidence - Ground 1(f)
90 This ground asserts that the magistrate failed to take into account evidence of the appellant's prior good character. This evidence consisted of the commendation and reference referred to in the evidence of Mr Edwards and the appellant's statement that he had no prior criminal convictions.
91 Where good character evidence is given it may be relevant in assessing both the credibility of the accused and in assessing the likelihood that the accused would commit the alleged offence. However, a direction in regards to good character is not necessarily required; it depends upon the circumstances of the case: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1.
92 In the present case, the magistrate did refer to the good character evidence (although he did not specifically make reference to the lack of prior criminal record). In this regard, his Honour said:
The accused says that his previous good character and conduct within the industry should be noted by the court and he has presented, at exhibit 6.1 and 6.2 in that regard. In my view those certificates are very limited in their assistance of the accused. It is noted that he has been within the industry for only a relatively short period of time and they are to be viewed in that light (ts 18 - 19 18/5/09).
93 Accordingly, it is clear that the magistrate did take into account the appellant's prior good character. He gave it little weight, but that was a conclusion open to him in the circumstances.
94 This aspect of ground 1 has no merit.
The interpreter - Ground 2
95 Throughout the trial the appellant had the services of an interpreter. It is submitted that whilst the appellant's native language was Dari, the interpreter spoke a different dialect of Persian. It is said that this caused confusion and difficulties in conveying the appellant's meaning to the court. As to the principles applicable where an interpreter is required in a
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- criminal trial see de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 (Roberts-Smith JA).
96 If this be true, there is no affidavit evidence before the court to establish it. Accordingly, there is no basis for saying that anything contained in the transcript is not an accurate reflection of what the appellant said. I note in this regard that the trial occurred some 31 months ago, that the appellant has had access to the transcript for many months and that there has been no suggestion that the transcript is not an accurate reflection of his evidence.
97 This ground is only supported in submissions by reference to a number of aspects of the transcript where issues arose in regard to the proper interpretation of words. In particular, at page 43 of the transcript of 5 May 2009 there was an issue in regard to whether the appellant asked the name of the complainant before or after the car started moving. There was some confusion as to whether the car had started in the sense that the engine was running or started in the sense that it was moving. This confusion did not obviously arise from issues of interpretation. The ambiguity as to whether a car has started in one or other of the senses referred to can exist in the English language. In any event, any confusion was clarified when the interpreter said that the appellant meant that the car was running but had not yet moved. It is not suggested that this evidence is contrary to the meaning that the appellant intended to convey.
98 At page 48 of the transcript of 5 May 2009 the interpreter stated that due to the emotional state of the appellant at that point in the cross-examination, the sequence of his sentences as interpreted by her might be different to the order in which he stated them. She said that if the court wanted her to interpret sentence by sentence she could do so but the appellant would then have to be told to give his evidence in that manner. The magistrate said that he appreciated that interpreters cannot give a literal interpretation, that there was a degree of flexibility and if what was being conveyed was an accurate account of the whole of what was said, there was no difficulty. There was no demur to this by anyone present and it is not now suggested that what the interpreter said was not an accurate account of the appellant's evidence.
99 At the end of the evidence the magistrate asked the interpreter some questions. He noted that a Farsi interpreter had been ordered on a previous occasion but that on the next occasion a Persian interpreter had been ordered. The interpreter said that she was an accredited Persian interpreter but spoke both languages, that is Persian and Dari. She said
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- that Farsi was another name commonly used for Persian. She said that Farsi was the base language of both the Afghan and Iranian people but that they used two dialects of that language. There was no evidence to the contrary on the appeal.
100 This ground is without merit and must be dismissed.
Conclusion
101 Ground 1 must succeed in respect of particulars (b) and (c). In the circumstances, I am therefore satisfied that this appeal against conviction must be allowed, the conviction quashed and a retrial before a different magistrate ordered.
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