Marysej v McCullough

[2018] TASSC 40

[2018] TASSC 40

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Marysej v McCullough [2018] TASSC 40

PARTIES:  MARYSEJ, Justin Rodney
  v
  McCULLOUGH, Julie

FILE NO:  3494/2017
DELIVERED ON:  30 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  15 August 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Assault, indecent assault and trespass – Whether magistrate could not reasonably have found guilt.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  J Munro
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Munro & Associates
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2018] TASSC 40
Number of paragraphs:  26

Serial No 40/2018

File No 3494/2017

JUSTIN RODNEY MARYSEJ v JULIE McCULLOUGH

REASONS FOR JUDGMENT  BLOW CJ

30 August 2018

1. This is a motion for the review of a determination by which the Deputy Chief Magistrate, Mr M Daly, found three charges proven. Those charges related to an incident that was said to have occurred in the early hours of 27 November 2016 in the bathroom of a house in Kingston during a party. It was alleged that the applicant in these proceedings, Justin Marysej, assaulted a young woman by pushing her to the upper chest with both hands; that he then indecently assaulted her by reaching under her dress, taking hold of her pants with his hands, and pulling them down to her ankles while saying, "I'm going to eat your pussy"; and that he thereafter remained on the premises without the consent of the owner, occupier or person in charge, and without any reasonable or lawful excuse. He was charged with assault contrary to s 35(1) of the Police Offences Act 1935, indecent assault contrary to s 127(1) of the Criminal Code, and trespass contrary to s 14B(1) of the Police Offences Act. At the end of a defended hearing, the learned magistrate found the three charges proved.  The applicant has sought a review of that determination.

2. The notice to review contains three grounds of review. Two of them were abandoned.  The surviving ground reads as follows:

   "That the learned magistrate erred in fact and or in law in holding that, upon the whole of the evidence, the complaint was proved beyond a reasonable doubt."

3. This motion to review cannot succeed in relation to any charge unless I am satisfied that no magistrate acting reasonably could have found that charge proven beyond reasonable doubt: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46].

4. The complainant's evidence as to what happened in the bathroom was to the following effect.  She had been upstairs, but came downstairs to return a hat to another man.  At the bottom of the stairs she saw the applicant, who pulled her by the hood of her jacket into the bathroom.  The lights in the bathroom were off.  The applicant closed the door once they were in the bathroom.  She told the applicant that she was planning to go home. He then pushed her up against the wall with both of his hands against her chest, above the breasts.  He started to kiss her forcefully and aggressively.  She was trying to pull her head away.  Her mouth was closed.  She fell to the ground. She landed on her bottom. Then the applicant was on all fours in front of her, facing her.  He said, "I'm going to eat your pussy."  She said, "No."  He said, "I know you want me to."  He grabbed her by the ankles, pulled her towards him, put his hands up around her waist, and pulled her underwear down.  They were "tug-of-warring" over her underwear when another woman, Jasmine Hayers, came into the room. The complainant's pants were around her ankles.  Ms Hayers turned the lights on.  The applicant got up and backed away.  The complainant pulled her underwear back on, stood up, went upstairs, got her bag, and went outside.

5. The complainant gave evidence that, once outside, another young woman, Caitlin Eberhart, asked her what was going on.  The complainant said she told Ms Eberhart, in the presence of Ms Hayers, that the applicant had tried to pull her pants down, and that Ms Hayers had walked into the bathroom just in time.

6. Ms Eberhart gave evidence.  She said that the complainant told her that the applicant "had gotten her into the bathroom, and turned the lights off, and proceeded to pull down her underwear, and she said she'd told him to stop, but he wouldn't".

7. Ms Hayers also gave evidence to the following effect.  She was "really heavily intoxicated" on the night in question.  She remembered opening the bathroom door, that she saw the complainant and the applicant, that they were "on the ground", and that she felt like she had interrupted something.  She remembered the complainant saying something when Ms Eberhart was present, but did not remember what was said.  She and the complainant slept in the same bed that night. The complainant explained that something had happened in the bathroom with the applicant, but she did not remember the details of what she said.

8. Another witness, Kim Grout, gave evidence to the following effect. She was at the party. She was upstairs. She saw the complainant go downstairs. She saw the applicant following her.  Maybe five or ten minutes later she saw the complainant come back with Ms Hayers.  The complainant's mood had changed. She seemed afraid.  She said something like, "I have to leave. I have to get out of here." She left after that.

9. The occupants of the house in question were a woman named Lucille Pitt, who was the daughter of the owners of the house, and two of her friends.  Ms Pitt gave evidence to the following effect.  She was told something by Ms Eberhart about what had happened between the complainant and the applicant. She decided that she did not want the applicant there. She sent him a text message saying words to the effect of, "Get the fuck off my property you cunt."  She saw the applicant sitting in a bedroom, grabbed him, and said words to the effect of, "Get the fuck out."  He collected his possessions off a bench and went out.  He shut the door. She called the police because she was not certain whether he was going to leave.  She subsequently realised that he had not left the premises. She thought he was in his car, which was parked in the yard. She phoned the police a second time. Police officers subsequently arrived.  Once they arrived the applicant left, with the police driving his vehicle.

10. Two police officers, Senior Constables Steven Bomford and Chloe Carr, gave evidence that they went to the premises in question at 2.37am.  They found the applicant in his vehicle on the property at the bottom of the driveway. He explained that he did not want to drive because he was over the alcohol limit, and did not want to leave his vehicle unattended in case it was damaged. Arrangements were made for Senior Constable Bomford to drive his vehicle.  He and his vehicle were taken to a car park in Kingston, where the officers left him.

11. Senior Constable Carr gave evidence that she phoned the complainant after Senior Constable Bomford and the applicant had left the property.  Her evidence as to what the complainant told her was to the following effect.  She had been followed into the bathroom by the applicant. He had forced her underpants off.  There was a struggle over the underpants around her ankles. He was saying things like, "I want to have sex with you. You know you want to." She said, "No. Stop. I don't want to." Those events stopped when Ms Hayers happened to enter the bathroom.  At that point the applicant stepped away from her, and put his hands up in a sort of defensive motion as if to say, "I haven't done anything."

12. Senior Constable Carr continued with evidence to the following effect. She asked the complainant if she and another officer could come and see her. The complainant said that she just wanted to go to bed. She sounded emotional. She asked the complainant to put her underpants in a sealed container or a brown paper bag in case the police needed them later, and said that she would call the following day.  She rang the complainant on Wednesday, 30 November. The complainant came to the Kingston Police Station that day and made a statement. She arranged for other officers to collect the underpants.

13. The complainant put the garment in question, which she described as a lacy G-string, in a ziplock bag.  A police officer, Senior Constable Kregor, gave evidence that she collected that garment from the complainant on 30 November.  Two swabs from the surfaces of the garment were subjected to DNA analysis.  Each swab revealed a mixed DNA profile from four contributors.  There was expert evidence that one of the swabs, from the inner and outer surfaces of the left side of the garment, contained DNA matching that of the applicant. 

14. The applicant gave evidence. He denied the allegations of assault and indecent assault. His evidence as to the bathroom incident and its aftermath was to the following effect.  Initially he was in the bathroom alone. He was urinating. The door was ajar. The bathroom door opened. He turned his head and saw the complainant.  He said, "Don't you knock?" She did not respond. She was washing her hands. She asked him if he could come back home with her. She had asked him this earlier. He said, "No." She grabbed his right hand, put it to her waist, and kissed him. He backed off and said, "Stop." He raised his hands and said, "I'm sorry." Ms Hayers entered the room when he was saying that.  He left the room.  He went to the room of one of the occupants of the house, Mr Davie.  Whilst in that room he heard Ms Pitt yell out, "What?"  He thought that odd because she had gone to bed.  He sent her a text message saying, "WTF".  She responded with a message saying, "Get off my property cunt."  She came in and accused him of sexually assaulting her friend. She scruffed him by his T-shirt, pulled him upwards, and said, "Get out of my house."  He went upstairs, collected some things from the refrigerator, placed them in his car, and entered his tent, which he had erected earlier.  He was more than happy to leave the property, but did not want to break the law by drink-driving. He phoned the police. He told them he was attending a party in Kingston, that he had been asked to remove himself, that he had been drinking, and that he did not want to leave.  The officer replied to the effect of, "It's okay to stay there. Ring back if things get worse."  Subsequently two police officers attended. He told the police that he had been drinking. They performed a breath test that returned a reading of .073. Arrangements were made for a police officer to drive him to another location in his vehicle.  The male officer drove his vehicle to Kingston, and told him to go to sleep and wait a couple of hours before driving. 

15. Counsel for the applicant made submissions to me to the effect that the evidence of the complainant was unreliable.  It is true that there were inconsistencies between the evidence of the complainant and the evidence as to what she said to Ms Eberhart and Senior Constable Carr.  There were inconsistencies between the complainant's evidence and that of other witnesses as to how much interest the complainant showed in the applicant before they met in the bathroom.  There was a body of evidence that the complainant had sat on the applicant's lap on a couch before the bathroom encounter, and that she had kissed him there, but the complainant said she did not recall those things.  However those sorts of inconsistencies were to be expected. The complainant and various other witnesses had had a great deal to drink before the events in question. They gave their evidence nearly 12 months after the party.

16. There was evidence that the complainant had flirted with the applicant before the encounter in the bathroom.  In particular, there was evidence that she had kissed him on a more than one occasion, that she had sat on his lap, and that she had danced with him.  She herself described that dancing as "slutty dancing".  However it would be wrong to infer that, because of that flirting, the complainant's version of the events that occurred in the bathroom lacked credibility.  This was not a case about whether the complainant consented to being touched and to having her pants pulled down.  It was a case about whether the events in the bathroom described by the complainant occurred or not. 

17. Counsel for the applicant relied on the absence of any evidence that the complainant sought help when Ms Hayers entered the bathroom, and the absence of any evidence of a complaint to Ms Hayers or the police. However the victims of sexual assaults cannot be expected to react in any particular way. It is by no means uncommon for them not to make prompt complaints. If the complainant's evidence was true, the applicant's advances were successfully repelled by her.  There was evidence that she got upset and walked home.  If she did not complain to Ms Hayers or phone the police, that is unremarkable. 

18. The DNA evidence was not conclusive.  Since there was evidence that the complainant had sat on the applicant's lap at one point, one could not rule out the possibility that his hand had come into contact with the outside of her pants, and that that resulted in a deposit of DNA that was detected when the garment was examined.  However, as the learned magistrate rightly concluded, if it was true that the applicant pulled the complainant's pants down with his hands, the deposit of his DNA on the garment would have been much more likely. It follows that the DNA evidence was a piece of weak circumstantial evidence that tended to confirm the complainant's version of events.

19. The evidence of Ms Eberhart of the complainant's account of the applicant trying to pull her pants down was evidence of the truth of the complainant's assertions: Evidence Act 2001, s 66(2); Papakosmas v The Queen [1999] HCA 37, 196 CLR 297. On the same basis, the evidence of the assertions in the conversation with Senior Constable Carr was also evidence of the truth of the facts asserted unless the complainant said what she did for the purpose of indicating the evidence that she would be able to give in a court proceeding: Evidence Act, s 66(3). I think the only reasonable inference was that at the time of that conversation Senior Constable Carr was trying to find out what had happened, and that the complainant was enlightening her, rather than outlining the evidence she could give. It follows that the evidence of the descriptions of events given by the complainant to both Ms Eberhart and Senior Constable Carr was evidence of the truth of the facts asserted.

20. The complainant's account of events was also corroborated by evidence of her distress given by Ms Eberhart, Ms Hayers, Ms Grout and Senior Constable Carr.

21. In assessing the applicant's credibility, the learned magistrate noted an inconsistency between his evidence and that of other witnesses as to the extent of his sexual interest in the complainant.  Prosecution witnesses gave evidence about him commenting on the complainant's bottom, but he denied making any such comments.  He gave evidence that the complainant twice asked or suggested that he go home with her, and that he refused both times.  There was the evidence that the applicant had kissed the complainant on a number of occasions and engaged in "slutty dancing" with her. There was unchallenged evidence from a Mr Davie, who lived in the house, that the applicant had remarked that the complainant and another of the women present were "easy", or said something to that effect. Under cross-examination the applicant denied that he enjoyed the attention that he was getting from the complainant and her contact with him. The learned magistrate concluded that the applicant had a sexual interest in the complainant, and that he downplayed the "sexual tension" between him and her because he was trying to distance himself from the complainant and his sexual interest in her.

22. The learned magistrate had the advantage of seeing and hearing the complainant, the applicant, and the other witnesses when they gave their evidence. He had the advantage of being able to observe the applicant throughout the hearing.

23. The complainant's fundamental assertion that the applicant had reached under her dress and pulled her pants down was unshaken, and supported by the evidence of other witnesses, as I have said.  Although there were inconsistencies in the evidence, there was a strong body of evidence that tended to prove that the complainant had been indecently assaulted as alleged.  It was reasonably open to the learned magistrate, having seen and heard the witnesses and carefully assessed their evidence, to find the indecent assault charge proven. 

24. Only the complainant gave evidence of the indecent assault having been preceded by an assault by the applicant pushing her to the upper chest.  However, having regard to the state of the evidence in relation to the indecent assault charge, it was reasonably open to the learned magistrate to accept the complainant's evidence as to that assault, and to reject the applicant's evidence that it did not happen.

25. In relation to the trespass charge, there was no dispute as to the facts. It was common ground that the applicant had remained on the premises without the consent of the person in charge of them, and without any lawful excuse. The only issue was whether he had a reasonable excuse. When that issue arises, s 14B(1) of the Police Offences Act expressly places the burden of proof on the defendant.  The applicant's excuse was that he thought, correctly, that it would be unlawful for him to drive his car; that he did not want to leave his car and tent there unattended; and that a police officer had advised him to stay there.  He lived at Mt Stuart. It was in the early hours of the morning that he was told to leave. It would have been a very long walk home.  But, in deciding whether the applicant had a reasonable excuse, the learned magistrate was entitled to take into account his finding that the applicant had committed an indecent assault, as well as the evidence that he had been asked to leave because of that indecent assault. In assessing the weight to be given to the police officer's advice to stay where he was, the learned magistrate was entitled to take into account the fact there was no evidence that that officer had been told anything about an indecent assault.  Having regard to all the evidence relating to the applicant's excuse, it was reasonably open to the learned magistrate to conclude that, as the applicant had committed an indecent assault and been required to leave the premises as a result, it was unreasonable for him not to comply by walking off the property.  That is what his Honour concluded.

26. For these reasons, I am not persuaded in relation to any of the three charges, that no magistrate acting reasonably could have found the charge proven beyond reasonable doubt. I have therefore decided to dismiss the motion to review.