Maqdouf v Robinson - [2010] WASC 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MAQDOUF -v- ROBINSON [2010] WASC 15

CORAM: HALL J

HEARD: 21 JANUARY 2010

DELIVERED : 21 JANUARY 2010

FILE NO/S: SJA 1092 of 2009

BETWEEN: OUTMAN MAQDOUF
Appellant
AND
MATHEW JAMES ROBINSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT JOONDALUP
Coram  :MAGISTRATE M M FLYNN
File No  :JO 4019 of 2009

Catchwords:

Criminal law - Whether verdict unsafe and unsatisfactory - Whether open to accept evidence of complainant given alleged inconsistencies - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Ms R J Haylock

Solicitors:

Appellant: Paiker & Overmeire
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

M v The Queen (1994) 181 CLR 487

HALL J: (This judgment was delivered extemporaneously on 21 January 2010 and has been edited from the transcript.)

Background

On 29 July 2009 the appellant was convicted of a charge of indecent assault in the Magistrates Court in Joondalup. The conviction followed a trial over two days. From that conviction the appellant has been given leave to appeal to this court.
There is one ground of appeal. It is that the magistrate's finding of guilt was against the weight of the evidence and could not be supported, having regard to the evidence. There are particulars to that ground that I will not repeat here but in essence they assert that there were significant inconsistencies in the evidence of the prosecution witnesses, in particular the complainant. It is asserted that the magistrate failed to give sufficient weight to these inconsistencies and that because of them the evidence could not sustain a verdict of guilt beyond reasonable doubt.

The prosecution case

The prosecution case was that in the early hours of Saturday, 10 January 2009, the appellant was driving a taxi in Northbridge. The complainant and two female friends (Ms McCarthy and Ms Ventrelli) had been out that evening at a club. They hailed the appellant's taxi and told him they wanted to go to Greenwood. In the course of the journey the appellant passed his mobile telephone to the two friends who were sitting in the back. The phone contained photographs. The appellant showed the women two photographs, one depicting him bare-chested and the other depicting him naked. The complainant did not see the photographs on the phone as she was sitting in the front passenger seat.
It was alleged that the appellant then said, 'Do you girls like having your pussies licked?' It was also alleged that at the destination in Greenwood the appellant said that he would take the complainant on to Clarkson for free in return for a head job. He then said that he would give the complainant a free lift back to Clarkson the following day if she called him and he gave her a card with his phone number on it.
The prosecution case was that he also reached over, placed his hand between the complainant's legs and squeezed. It was this last act that was said to constitute the indecent assault.

The issue of credibility

The appellant comprehensively denied what was alleged. Whilst admitting he was the driver of the taxi, he denied any assault. The two friends had already alighted from the taxi at the time the assault was said to have occurred. In this sense this was a case where the only direct witnesses were the complainant and the appellant. However, the credibility of those witnesses also had to be considered in light of the surrounding circumstances. The evidence of the two friends was significant in that regard.
In assessing the credibility of the prosecution witnesses it was important that the magistrate consider whether there were inconsistencies between them or between their evidence and prior statements. If inconsistencies existed, then it was necessary to consider whether they were material and whether there were any explanations for them.
It was also important to take into account the extent to which the witnesses were consistent. All three of the relevant prosecution witnesses said they caught a taxi from Northbridge in the early hours of the morning. They all said the mobile phone was passed back to show photographs. They all said that the appellant said, 'Do you girls like having your pussies licked?' Whilst Ms McCarthy and Ms Ventrelli were in the back and got out first, Ms Ventrelli heard the appellant say something about exchanging a fare for a head job. That, of course, is consistent with the complainant's evidence.

What were the inconsistencies?

What then were the alleged inconsistencies? First, that the complainant said that she had met her friends at the house of one of them, whereas that friend said they had met at the Paddington Ale House. In fact the inconsistency, if it be one, is not so clear. Whilst the complainant does refer to meeting at the friend's house, this does not discount the possibility that they also went to the Paddington Ale House. Furthermore, Ms Ventrelli said in her evidence that they had met at her house before going out and Ms McCarthy said whilst she thought they had met at the Paddington Ale House, she could not remember. In any event, whether this was a significant matter must be seriously doubted. Where the friends met was something that occurred several hours before the relevant events and had no direct bearing on whether those later events occurred. Furthermore, there was no particular reason why the witnesses should remember this particular detail, as one of them pointed out.
Secondly, it is alleged that in her testimony the complainant said that the mobile telephone was passed back to her friends twice, whereas in her statement to the police she said this happened only once. In fact, again, the inconsistency is not so clear. Whilst the statement did not refer to two distinct incidents, the part of it that was read out in cross‑examination did not necessarily exclude this possibility. It was also relevant to take into account that the phone was not given to the complainant and she did not see any photos because her glasses were in her bag.
The complainant gave clear evidence that the phone was passed back twice and that on the second occasion the appellant said, 'Would you like to see another one?' and that she said she wanted to see them now as she had found her glasses and her friends indicated that she would not want to see them. This conversation was not in her statement but she was adamant that it occurred. This is not of course an inconsistency; rather, the implication is that it is a subsequent invention.
As against that, there is the sworn evidence of the complainant and that she had said that the statement had been prepared by the police whilst she was emotional. Furthermore, her evidence was consistent with that of her friends. She also said in re-examination that additional details had come back to her when she had reflected on what had happened subsequently.
The third alleged inconsistency is that the complainant had referred to a 'Sat Nav' in her statement but had conceded in evidence that she did not know what a 'Sat Nav' was. This was not in reality an inconsistency at all. It is clear from her evidence that she had told the police that she had seen the appellant type an address into something whilst in the cab. She was later told by her friends that he had a GPS and she had assumed that that is what it was. She had, however, no understanding of what a Sat Nav was. She explained herself at page 37 of the transcript in re‑examination in these terms:
I would have said 'GPS' but because I didn't know what a Sat Nav was, the police that wrote the statement must have just put in the fancy words for it, but I think, yes, he - that was referring to him. He said that.
Nothing whatsoever turned on this in any event.
The fourth matter is that it is alleged that in her statement the complainant said that the appellant touched her and then gave her his card, whereas in evidence she said that he gave her the card first. This is in fact correct. However, the complainant said in evidence that she was sure the events occurred but may have got the order wrong. Nonetheless, her evidence at trial was clear, that she was given the card first. Her evidence regarding what occurred was clear and detailed, whatever view one takes of the order in which those events happened.
The fifth matter is that it was suggested that the complainant's statement was inconsistent because it did not clearly state that she had been touched. This suggestion was entirely without merit. The parts of the statement read out at the hearing were as follows:
I began reaching for my bag and he reached across with his right hand and made a conscious effort to cup his hand on my crotch and squeeze. He then let go and wrote his name and number on the Swan Taxi business card.
The only reasonable interpretation for this passage is that contact as described had occurred. There was no inconsistency with the complainant's sworn evidence in that regard.
The sixth matter is that it was submitted that Ms McCarthy and Ms Ventrelli were inconsistent in their descriptions of the second photograph that they say they saw. This is said to be because Ms Ventrelli said that the appellant had an erect penis and Ms McCarthy said it was flaccid. I cannot accept that there was anything significant in this at all. In fact Ms McCarthy said she only glanced at the photograph and could only see the penis vaguely and was not sure whether it was flaccid or not.
The seventh alleged inconsistency is that in her statement Ms Ventrelli said that the appellant had said, 'You know how men like to have their cock sucked', but that she had not given this evidence at trial. In fact there is no inconsistency here because what Ms Ventrelli said in evidence was that she accepted that this was in her statement but had no present recollection and could not say now whether he had said those words or not.
The eighth alleged inconsistency was that in her evidence Ms McCarthy said she heard the appellant say something about a head job for a free ride as she was getting out of the car, but this was not referred to in her statement. Ms McCarthy accepted that this was not in her statement and she could not say why. She could not remember whether she had told the police this and said it could have been left out because everything happened so quickly. In any event, I note that in this regard the magistrate said that he could not accept that she did hear such words on the evidence that he heard.
The ninth matter is that there were some suggestions of inconsistency regarding at what point in the journey conversations with the appellant had commenced. In my view, if there was any such inconsistency it was immaterial. That was not something that the witnesses could reasonably be expected to have been certain of.

The magistrate's reasons

The magistrate in this case gave comprehensive and clear reasons for his decision to convict the appellant. He identified the proper tests and also recognised that it was obligatory for him not only to consider the evidence of the defence, but if he rejected the defendant's evidence he was obliged to go on to consider whether the prosecution evidence was such as to satisfy him beyond reasonable doubt. He set out the evidence and also recognised that as to the elements of the offence; that is, the indecent assault, the appellant and the complainant were the only relevant witnesses.
There was some reference to discrepancies between the complainant's evidence and her statement and the magistrate then went on to consider the evidence in some detail. On page 20 he also referred to the evidence of Ms Ventrelli, one of the friends of the complainant. He referred to what she said she had heard in the car and also in particular that there had been a complaint made by the complainant to her within a short time of them leaving the taxi in Greenwood.
His Honour then said:
In assessing the evidence I must take into account the fact that each of the women had consumed alcohol that evening. The evidence suggests the drinking had started early in the evening and at least in relation to [the complainant] and McCarthy, continued until towards the end of the evening.
The evidence in relation to Ventrelli is different. I accept her evidence that she made a decision to cease consuming alcohol in the hour before she left the Elephant and Wheelbarrow and she had consumed considerable water as well that evening. Her recollection of events did seem to me to be clearer compared to, for example, the witness McCarthy (ts 20).
His Honour then makes a number of findings. In particular he said:
I am satisfied of the following things. The accused passed his mobile phone to the rear passengers on two occasions and one of those photos was a photo of him naked. I particularly rely upon the evidence of Ventrelli in reaching this conclusion, given the fact that she has consumed relatively less alcohol and save in one respect, there is no serious attack on any inconsistency between her evidence and her police statement.
I am also satisfied that the accused made the comment about licking pussies that was attributed to him by all three women. I repeat my observation about the reliability of the witness Ventrelli. I also satisfied that it was the accused who made a comment about a blow job, as was attributed to him by the witness Ventrelli. The accused omitted any mention of the explanation for that in his evidence to the - sorry, in the video record to the police. The accused omitted any explanation of the words which he gave in evidence in his video to the police (ts 21).

Did the magistrate fail to address the credibility of the complainant?

It has been suggested on this appeal that the proper interpretation of his Honour's words are that he was accepting Ms Ventrelli as the only reliable witness and that it was only where her evidence on a matter was clear that he could make a finding. That is said to flow from the fact that he specifically referred to Ms Ventrelli and only made findings where evidence had been given by her. That, however, does not flow through to the ultimate act of indecent assault because only the evidence of the complainant was relevant in that regard. His Honour did accept the evidence of the complainant on that issue, but I am asked to infer that his Honour's course of reasoning was such that he considered the complainant to be an unreliable witness except where corroborated by Ms Ventrelli and that having come to that conclusion it was not open to his Honour to reach a conclusion that the complainant's evidence should be accepted in regard to the indecent assault.
To recognise that a witness is likely to be more reliable than another witness does not mean that other witnesses are necessarily unreliable. I do not accept that his Honour was forming the conclusion that but for the witness Ventrelli he would not or could not make findings of fact. Indeed, his Honour goes on to consider, at page 22 of the transcript, the complainant's evidence. He does express some matters, properly so, that he has to take into account that count against the credibility and reliability of the complainant. He said this:
The complainant's evidence was in some respects clear on details which in my view are accurate. I have made reference to the findings already about words that I have used. [The complainant] was not clear on details on other matters. She made no reference, for example, to having been at the Paddo Hotel. She was in some respects careful about her evidence. In other respects, she was not careful. For example, she changed her position about the seating of the passengers behind her.
As the accused's counsel said, she denied having a conversation about the evidence with the other women on the same morning, where it is inherently likely that she did so. An attack is made on the discrepancies between her evidence and things that were said to the police and recorded in her statement. That attack does not of itself give rise, in my view, to doubts about her credibility or reliability. That is because those discrepancies, and there are a number of them, are explicable.
In some cases, it is a matter of language or semantics. In some cases, she was wrong in her evidence on matters of detail that are not significant in my assessment of her credibility. I refer, for example, to whether or not the phone was passed back once or twice, to whether or not she received a business card or was touched or the order of those things. It is significant that she said to Ventrelli within half an hour of the alleged incident, a statement which was consistent with her account of what happened, to the effect that she was touched between the legs.
When I weigh all of those matters in my assessment of [the complainant], I have formed the view that she is on balance a reliable witness. I am satisfied beyond reasonable doubt that the accused placed his hand over her clothing over her vagina on one occasion and squeezed. I am satisfied that this was done without consent. I am also satisfied that it was not inadvertent; also that it was not by accident.
His Honour properly took into account those matters which were discrepancies. It might be suggested, with some merit, that it would have been desirable, in referring to the inconsistencies, if rather than giving examples his Honour had explained how he rationalised those inconsistencies with a finding that he accepted the evidence of the complainant and was able to find that the offence was proven beyond reasonable doubt.
Nonetheless my task, given the nature of this appeal, is not to assess the magistrate's findings and reasons with a fine‑tooth comb but to consider the evidence as a whole and determine whether the finding of guilt beyond reasonable doubt is one that was reasonably open on the evidence. In that regard I think it important that one of the matters that seems to have borne significantly on the magistrate's reasons, and properly so in my view, was that the complainant had made a complaint as to the incident to the witness Ventrelli within half an hour of the alleged incident.
I turn to the question of the law in relation to an appeal of this nature. The relevant law is that set out by the High Court in M v The Queen (1994) 181 CLR 487 and I quote from the reasons of their Honours Mason CJ and Deane, Dawson and Toohey JJ at page 493 and 494:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
On page 494 their Honours said:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

Conclusion

In my view, the inconsistencies asserted in this case were not such, either individually or in combination, as to mean that a verdict of guilty could not be reached. The findings made by the magistrate were reasonably open to him. I do not accept that the evidence was insufficient for a finding of guilt beyond reasonable doubt. I have read the entire transcript of this trial and it is not my view that a reasonable doubt should have been entertained by the magistrate. The prosecution case, indeed, appears to me to have been a strong one. Accordingly, the appeal is dismissed.