McFarlane v Van Eyle
[2022] ACTCA 68
•9 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | McFarlane v Van Eyle |
Citation: | [2022] ACTCA 68 |
Hearing Date: | 15 August 2022 |
DecisionDate: | 9 December 2022 |
Before: | McCallum CJ, Mossop and Kennett JJ |
Decision: | 1. Appeal allowed. 2. The orders made by the Supreme Court on 13 January 2022 are set aside and the proceedings remitted to the Supreme Court to be determined according to law. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – General principles – nature of appeal from magistrate to Supreme Court – appeal to Supreme Court against finding of guilt – whether appeal judge correctly applied the test in M v The Queen (1994) 181 CLR 487 – whether there was a logical difficulty with appeal judge’s factual analysis – appeal allowed – proceedings remitted to the Supreme Court to be determined according to law |
Legislation Cited: | Crimes Act 1900 (ACT), s 60(1) Criminal Appeal Act 1912 (NSW), s 6 Supreme Court Act 1933 (ACT), ss 37E(2)(a), 37O(2) |
Cases Cited: | Allesch v Maunz [2000] HCA 40; 203 CLR 172 Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Van Eyle v McFarlane [2022] ACTSC 1 |
Parties: | Amy McFarlane (Appellant) Timothy Van Eyle (Respondent) |
Representation: | Counsel S Drumgold SC (Appellant) P Edmonds (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Canberra Criminal Lawyers (Respondent) | |
File Number: | ACTCA 4 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 13 January 2022 Case Title: Van Eyle v McFarlane Citation: [2022] ACTSC 1 |
McCALLUM CJ:
I have had the benefit of reading the judgment of Mossop J in draft. I agree that the appeal should be allowed but for different reasons from those that have persuaded his Honour. Mossop J’s comprehensive treatment of the issues permits me to state my reasons relatively briefly.
The ground of appeal upheld by the appeal judge was framed as a complaint that “the verdict was unsafe and unsatisfactory”, which her Honour took to be a contention that the verdict was unreasonable or could not be supported having regard to the evidence. Both formulations echo the language of the statutes that confer a right of appeal to a court of criminal appeal from a verdict entered following a trial on indictment, such as an appeal under s 37O(2) of the Supreme Court Act 1933 (ACT) or an appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW). For my own part, I have some doubt as to whether that is an appropriate formulation of a ground of appeal from a conviction for a summary offence entered by a magistrate. Such appeals, while sharing some incidents of appeals following a trial on indictment, are of a different kind. Most significantly, an appeal from a conviction entered following a trial on indictment is not a rehearing.
However, that issue was not raised in the present appeal.
In any event, I am able to determine the appeal by a different path. In my respectful opinion, there is a logical difficulty with the appeal judge’s factual analysis, as contended by ground (iii). For that reason, I would uphold that ground. The difficulty is considered by Mossop J at [71]-[76]. In short, the appeal judge accepted that the first three elements of the offence were proved beyond reasonable doubt. Specifically, her Honour found at [194]: “first, that an act occurred, involving the breasts, second, that the act of coming into contact with the breasts, is indecent, and third, that there was no consent.” That left the fourth element, which was whether the respondent was reckless as to whether there was consent to “coming into contact with the breasts” in a way that was indecent.
That issue stood to be determined in circumstances where the appeal judge was not satisfied beyond reasonable doubt “that the [respondent] deliberately touched the complainant’s nipples”. There is some ambiguity in that finding. First, it is not clear whether her Honour’s doubt related to the issue whether the respondent touched the complainant’s nipples at all or to the question whether he did so deliberately (or both). Secondly, if the former, it is not clear whether her Honour was referring to the whole area of the nipple including the areola or was drawing a distinction between the nipples and the areolae.
Ultimately, however, the ambiguity does not matter because, as Mossop J has noted at [76], the appeal judge’s finding that element 2 was satisfied necessarily meant that, whatever touching occurred, it had a sexual connotation. That left no room for doubt as to the element of recklessness. There was no suggestion of consent to any sexual as opposed to therapeutic touching. Once it was accepted beyond reasonable doubt that the touching had a sexual connotation, the six reasons provided by the appeal judge at [199]-[204] of her judgment for entertaining a doubt did not logically sustain any doubt as to the element of recklessness.
The six reasons are set out in Mossop J’s judgment. The first was that the complainant said “sure” to the question whether she wanted the respondent to “massage [her] whole chest” or the “rest of [her] chest”. On no view could that be taken to be consent to indecent touching of the breasts.
The second reason appears to be a credit point relating to the evidence of the complainant. That was irrelevant to the issue of the respondent’s recklessness. If I have misunderstood the appeal judge’s reasons and the point was rather that the massaging of her breasts may have been as short as 5 minutes, I do not think that is capable of informing the question of the respondent’s awareness of consent.
The third reason also related to the complainant’s evidence of the relevant act (as to whether her nipples and areolae were touched). That was irrelevant to the issue of the respondent’s recklessness.
The fourth reason rebutted a credit finding made by the magistrate concerning the respondent’s evidence in relation to his reluctance to use the word “breasts” during the massage. The appeal judge did not think that evidence was implausible. However, that is incapable of addressing the objective element of the recklessness test. As already indicated, I do not think consent to massaging the “chest” could reasonably be taken to be consent to indecent touching of the breasts.
The fifth reason was “the importance of the prior good character of [the respondent] in his criminal trial”. It is difficult to see how good character could assist the respondent on the issue of recklessness, in light of her Honour’s findings as to the first three elements of the offence.
Finally, the appeal judge noted that the case was one in which the respondent’s conduct was “susceptible to misinterpretation”. Her Honour considered that it was reasonably possible that the complainant and the respondent may both have been honest but held different perceptions of the treatment. So much may be accepted. The difficulty is, as already indicated, that the element of recklessness has an objective element. I do not think the possibility of different perceptions can sit logically alongside her Honour’s acceptance beyond reasonable doubt that the touching was indecent.
For those reasons, I agree with the orders proposed by Mossop J.
MOSSOP J:
Introduction
The respondent was found guilty by a magistrate of one count of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT). The act of indecency that was found to be proved was the touching, by a masseur, of the breasts and nipples of a client during the course of a massage.
The respondent appealed against his conviction to a judge of the Supreme Court (the appeal judge) on the ground that the magistrate had given insufficient reasons and the verdict was “unsafe and unsatisfactory”. The latter ground was understood by the appeal judge as an allegation that the verdict was unreasonable or could not be supported having regard to the evidence. The appeal judge rejected the claim of inadequate reasons but allowed the appeal on the ground that the verdict was unreasonable or could not be supported. The appeal judge entered a verdict of not guilty and ordered the appellant to pay the respondent’s costs of the proceedings in the Magistrates Court.
The appellant has appealed from that decision. The grounds of appeal are:
(i)Her Honour erred in allowing the appeal, absent any finding of legal, factual or discretionary error on the part of the magistrate.
(ii)In determining the appeal, her Honour erred by failing to apply, or in misapplying, the test in relation to an assertion that a finding of guilt is unreasonable or cannot be supported by the evidence.
(iii)In determining the appeal, her Honour erred by making findings of fact which were illogical and unreasonable having regard to the evidence before her.
For the reasons which follow, ground (ii) has been established and the decision of the appeal judge must be set aside and the matter remitted for rehearing.
The nature of the appeal from the magistrate
The appeal before the appeal judge was brought pursuant to s 208(1)(b) of the Magistrates Court Act1930 (ACT) (MC Act). Such an appeal is governed by the provisions in Div 3.10.2 – Appeals in criminal matters (ss 208-219). The appellant submitted that it was well accepted that such an appeal is by way of rehearing and required the demonstration of error on the part of the magistrate. The appellant referred to what Rares J said in Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [18]:
[T]he appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error.
The submissions of the respondent involved an acceptance of the proposition that on the appeal from the magistrate it was necessary to establish error.
The decision in Lukatela involved a conclusion that the provisions of Div 3.10.2 provided for an appeal by way of rehearing of the same nature as that described in Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] as requiring the establishment of error. That involved not following the earlier decision of Gallop J in Fleury v Madden (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 21 November 1988) in which his Honour had described the rehearing as being “a new trial of the issue raised by the Notice of Appeal using the evidence in the Court below with the discretion to receive further evidence” and said that “the onus of establishing facts that support the conviction will remain upon the prosecution … and of establishing those facts to the usual criminal standard of proof beyond reasonable doubt”. Gallop J’s decision had been largely based upon the decision of the Full Court of the Supreme Court of the Northern Territory in Messel v Davern (1981) 9 NTR 21. That was a decision in which Gallop J (as a judge of the Northern Territory Supreme Court) had participated and from which he quoted (without attribution) in Fleury. In Fleury his Honour found that the relevant provisions of the Magistrates Court Ordinance 1930 (ACT) (as the MC Act then was) had their derivation in the Justices Act 1928 (NT) which in turn was derived from the Justices Act 1921 (SA). The interpretation of the relevant Northern Territory provisions in Messel resulted in Gallop J himself conducting the appeal from the magistrate in Messel as a rehearing involving the rehearing of viva voce evidence: see Davern v Messel (1984) 155 CLR 21 at 27 and the summary in May v Helicopter Resources [2022] ACTCA 15; 17 ACTLR 295 at [87].
As both parties accepted the approach in Lukatela and there was no contention that an approach like that adopted in Fleury was the correct one, I adopt the same approach as the Court of Appeal did in Roberts v Rhodes [2014] ACTCA 20 and address this appeal on the basis that it was necessary before the appeal judge for error to be established.
The nature of the appeal to the Court of Appeal
The appeal from the appeal judge is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). It is an appeal by way of rehearing. In order to succeed, the appellant must establish error on the part of the appeal judge: Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5].
The decision of the magistrate
The proceedings before the magistrate took place over two days on 22 February 2021 and 22 March 2021. Evidence was heard on the first day and submissions on the second day. The magistrate reserved her decision and gave it orally on 8 April 2021.
In her reasons, the magistrate first recited the basic facts. On 21 January 2019 the complainant attended Spa Mint in Canberra City to have a full body massage and facial. The respondent was the massage therapist who conducted a massage and his employer then conducted a facial following the massage.
The alleged act of indecency related to the respondent’s conduct during the massage.
Following the massage, the complainant made a complaint to her boyfriend who immediately attended the Spa Mint and spoke to the manager. The complainant called the police that evening and participated in an evidence-in-chief interview the following day. The respondent was contacted by his employer on the evening of 21 January and was notified of the complaint. He participated in a taped record of interview with police the next day.
The magistrate gave herself directions relevant to the determination of a criminal trial.
The magistrate then summarised the evidence of the complainant and the respondent. She described that at one point during the massage the respondent said “do you want me to do the rest of your chest?”. The complainant was unsure what this entailed but she said “yes”. The defendant moved the sheet down and uncovered her breasts. He started touching her breasts, fondling them in a sexual manner. He was cupping her breasts and had his hands on her nipples or around the area of her nipples. This made her feel uncomfortable. He moved his hands down towards her stomach and her hips and then back up to her breasts and then back down again. He pushed the sheet further down to her hips. He had not mentioned anything about taking the sheet down that far or doing anything to her stomach. Apart from saying “turn over” he had not said anything else during the massage. The complainant had understood the question about her chest as being about a deeper pectoral or chest massage. She understood that the respondent would ask because he was going close to her breasts but did not expect him to touch the breasts
The magistrate identified the main differences between the evidence of the complainant and the respondent as follows:
(a)Whether the respondent had said “do you want me to massage the rest of your chest?” as claimed by the complainant or “do you want me to massage the whole of your chest?” as claimed by the respondent.
(b)Whether or not the nipples were touched.
(c)The manner in which the respondent was touching the complainant’s breasts.
The magistrate reminded herself that the question was, having regard to the respondent’s sworn denials, she could be satisfied beyond reasonable doubt of the complainant’s allegations. She also gave herself a Murray direction. She identified the elements of the offence.
She referred to the decision in R v Schippani [2012] ACTSC 108; 265 FLR 197 which was relied upon by the respondent and the explanation by Penfold J of circumstances in which “the conduct complained of is inherently highly susceptible to misinterpretation, and it is possible that the two participants in an incident of this sort could quite honestly report entirely different perceptions of how the beauty treatment was administered”: Schippani at [55].
The magistrate indicated that if she accepted the respondent’s evidence that he only touched the complainant’s outer breast area and in between the breasts, she needed to consider whether the prosecution had proved that the respondent’s conduct was performed for his own sexual gratification. On the other hand, if she accepted the complainant’s evidence that the respondent did touch her nipples and areolae then the respondent accepted that such conduct would be considered unequivocally sexual and hence she was not required to find that the act was done with the intention of gaining any sexual gratification.
The magistrate then turned to determining what conduct occurred. She first considered the evidence of the complainant and set out extracts from the transcript of the evidence‑in‑chief interview and cross-examination. The extracts involved the complainant describing the respondent “fondling” and “cupping” her breasts, “moving them, like sort of groping”. It was done in “more of a sexual way than any kind of muscular massage” and “it didn’t seem to be targeting anything”. It felt like “feeling me up from my hips and up to my breasts”, “feeling my entire breasts including the nipple”. He was “definitely lingering in the area” and not “touching in passing”. In her evidence-in‑chief interview she had used the expression “my nipples or the area with the nipples…” and it was suggested to her in cross‑examination that she was unsure whether the defendant had touched her nipples. The magistrate referred to her explanation: “I was more trying to indicate that his hand had been on that area and it is very hard to distinguish nipple and areola in that if you are touching one you’re most likely touching another”. She had agreed that she did not see him touching her nipples and said “but I felt it, so I can’t 100 percent confirm that I saw his fingers touch my nipples but I felt it and that’s my recollection”.
The magistrate then turned to the evidence of the respondent. In his interview with police, he said he had exposed the complainant’s breasts but had “no like sexual interest in doing that”. He said he was using standard techniques of “effleurage and petrissage” he worked on the “side of her ribs, so under the breast tissue, sort of pressing through the ribs” and then re-draped her. He described effleurage as flowing long strokes and petrissage as “kneading”. He also described “myofascial release”. The respondent was asked how he knew how to conduct a massage of the breasts and said:
I guess that’s more like, it’s like intuitive use of the techniques I have learnt. Um, yeah, they never told, taught us to treat breasts so I use like a conceptual learning to just apply that knowledge to treat the area, to treat the breast area. Kind of the same way you would treat a scalp I guess.
He said he went to her breast area “probably four times”. He described the process of performing effleurage then petrissage on one side, then the other and then going down to the ribs and back towards the side of the neck or the shoulders.
He specifically denied touching her nipples at any point with his fingers or his hands. He said this was “[b]ecause touching the nipples or that specific areola area is, I believe sexual”. He denied cupping the complainant’s breasts at any stage “[b]ecause that’s sexual”. He said he had not used myofascial release on the complainant’s breast tissue.
The magistrate then assessed the witnesses. She described the complainant as “a very impressive witness”, answering questions “directly” and being “frank that her perceptions of the incident relied on what she felt … and that she could not see anything”. She said that the complainant “did not appear to be exaggerating any aspect of her account and was honest about her feelings immediately after the incident and as to her uncertainty about what, in fact, had happened”. She recorded that the complainant had maintained a consistent account in her evidence and had “withstood vigorous cross‑examination and was definite that her nipples and areola had been touched and that the massage of her breasts felt purposely sexual and not like the massage of other parts of the body”.
She referred to the evidence of the complainant’s boyfriend whose statement had been tendered. He gave complaint evidence. The magistrate said that the complaint evidence provided some evidence of the allegations made by the complainant and that his observations of the demeanour of the complainant could be relied upon to support the credibility of the complaint. The magistrate appropriately directed herself that a false statement did not become more reliable because it was repeated on more than one occasion.
In relation to the respondent, the magistrate recorded that he “presented very well in court”, “listened to questions asked and … attempted to answer all questions”. She did record that at times he did not directly answer questions and appeared “evasive or obtuse” but the magistrate did not consider this was significant and thought that “it may be explained by him trying to be as accurate as he could in his explanations or answers”. However, her Honour identified aspects of the respondent’s evidence that gave her “concern as to his honesty and reliability”.
Firstly, the respondent had described the myofascial release technique and said that he performed this on her ribs. However, the complainant did not describe any touching consistent with that type of massage having occurred.
Secondly, the respondent stated that the reason he massaged her breasts was because she wanted him to do so and had suggested this by exposing part of her breast. He thought that the sheet had moved down and exposed the very top of her nipple on the left side. He thought it must have been deliberate. The complainant had denied any movement of the sheet. The respondent described an incident during his training where a woman had deliberately moved the sheet down to expose her breasts. He found this action quite bizarre and immediately grabbed the sheet and brought it back up to cover her breasts. The magistrate said that she found the respondent’s account that the complainant’s possible deliberate exposure of her breasts was meant to indicate that she wanted her breasts massaged was “implausible”. That was because the respondent “was unable to explain why this incident was different to the previous incident in training where he had just moved the sheet back to cover the client’s breasts”.
Thirdly, the respondent had stated that he asked her the question about massaging her whole chest because he thought that was what she wanted and that it would relax her. He had said that she had been “twitching” and “moving around a little bit” before the treatment of her breasts and when her breast was exposed he had thought that maybe she wanted treatment there and that it would relax her. He said that once “I got her consent and started she just started to relax”. When giving evidence in court he said that he had asked her if she was okay because she “seemed just like too still”. The magistrate said “[t]he fact that she became so still so as to alert the [respondent] that she may be uncomfortable is also inconsistent with what he had said in his taped record of interview; that is, that she had become more relaxed once he started the breast massage.” The magistrate found it implausible that when the breast massage began the complainant “would have appeared more relaxed or more sleepy”.
Fourthly, the magistrate pointed to the fact that the respondent had no training in breast massage and that this suggested that it was not usual practice of massage therapists. She found it implausible that in those circumstances, and the respondent’s admitted awareness that breasts are an intimate or erogenous zone, that he had thought that it was okay to touch her breasts just because he had asked the question about massaging her “chest”. The magistrate found that the word “chest” would not ordinarily convey the meaning that the breasts would be touched.
Fifthly, she referred to the respondent’s evidence that he did not want to say the word “breast” because that would make the situation too sexual and possibly trigger “a fight or flight response”. The magistrate found that this evidence demonstrated his own awareness that breasts are not part of a massage and are considered sexual parts of the body. The magistrate found it implausible that the respondent would think that the word “breast” would make the situation sexual, but would then proceed to expose the complainant’s breasts and touch her breasts.
Sixthly, the magistrate referred to the “new consultation form” which drew a distinction between breasts and chest. She relied on this to conclude that the difference between breast and chest was understood by the massage therapist. She did not accept that the complainant’s agreement to the touching of her chest included her breasts.
The magistrate then turned to consider the respondent’s good character. He had no offences of similar nature. He had remained employed in the same business for the last two years. He had taken action to ensure that clients of the business understood consent to the touching of specific areas. She gave herself an appropriate direction about the ways in which good character could be used: as going to whether a person of such character would have committed the offence as well as being used to support his credibility. However, in relation to the first way in which character might be used, she pointed out that the respondent had limited experience and had only been employed as a masseur for two to three weeks. Prior to that, while training at the Canberra Institute of Technology, he would have been supervised. The magistrate said that “the good character evidence does not assist me in considering the likelihood of him having committed the offence alleged”. So far as the second use of good character was concerned, she said “everyone is initially a person of good character until they are not” and did not give much weight to his good character and supporting the proposition that he was less likely to give a false account when talking to police.
Insofar as the respondent relied upon having made admissions against his own interests when talking to the police, the magistrate said that the fact that he told the truth about his lack of training did not indicate that he must be telling the truth about the particular incident.
The magistrate recorded that “after careful consideration of the [respondent’s] evidence” she rejected the following aspects of his evidence:
(a)that the complainant was fidgety during the first part of the massage;
(b)that she moved the sheet deliberately to expose her breasts;
(c)that this was done to indicate that she wanted her breasts massaged;
(d)that he did not touch her nipples or areolae;
(e)that the complainant became more relaxed once he started to massage her breast area;
(f)that he asked her whether she was okay; and
(g)that he had used myofascial release techniques on her ribs.
Having rejected those parts of his evidence, the magistrate considered whether the prosecution had proved the offence beyond reasonable doubt based solely on the complainant’s account. She referred to the cross‑examination of the complainant about actions that she might have taken such as removing her eye mask, telling the respondent to stop or pulling up the sheet. She referred to the complainant’s explanation about why she felt unable to do that and accepted her reasons as “plausible reasons”. She also referred to the statutory direction in s 80C of the Evidence (Miscellaneous Provisions) Act1991 (ACT) that a person is not to be regarded as consenting just because they did not say or do anything to indicate that the person was not consenting or that they did not protest or physically resist.
The magistrate said that she found the complainant to be an honest and reliable witness and accepted her evidence. She was satisfied beyond reasonable doubt of following:
(a)the respondent touched the complainant’s breasts in a sexual manner;
(b)that the touching was deliberate and not just in passing in massaging other areas of her body;
(c)that the respondent touched her nipples and areolae with his hands;
(d)that he removed the sheet to her stomach and then pushed it further down to her hips as he was moving his hands down to that area; and
(e)that he left her breasts exposed for this part of the massage.
As to consent, the magistrate referred to the evidence of the complainant that she never gave consent for this type of touching and the evidence of the respondent that his question seeking permission was only for the outside areas and in between the breasts. The magistrate said that “having rejected that this was the action performed, the question cannot be seen as seeking consent for the type of touching that occurred.”
In relation to recklessness, the magistrate referred to the lack of training that the respondent had in this area and his own admission that touching the nipples and areolae and cupping the breasts would be considered sexual. The magistrate was satisfied that the defendant knew or was at least reckless that the complainant had not consented to this type of touching. She therefore found each element proved beyond reasonable doubt and the respondent guilty of the offence.
Two points should be noted about the reasoning of the magistrate. First, it was based upon a finding beyond reasonable doubt that the act in question involved the touching of the complainant’s nipples and areolae. Second, that conclusion was reached after a detailed examination of the evidence given by the complainant and the respondent and careful consideration of the credibility and reliability of their evidence. Detailed reasons based upon particular aspects of the evidence were given by the magistrate for rejecting the evidence given by the respondent on the critical issues and for accepting the evidence of the complainant. Those conclusions were clearly influenced by the impressions of the witnesses when giving oral evidence before the magistrate.
The decision of the appeal judge
The reasons of the appeal judge comprised 214 paragraphs. Her Honour summarised the evidence given in the proceedings below at [9]-[84]. The reasons of the magistrate were summarised briefly at [85]-[87]. The submissions made by the parties on the appeal were summarised from [88]-[174]. At [175]-[179] her Honour considered and rejected the contention that the magistrate had given insufficient reasons. At [180]-[189] her Honour extracted passages from authorities relating to verdicts which are alleged to be unreasonable or cannot be supported and the principles applicable to an appeal by way of rehearing derived from Fox v Percy [2003] HCA 22; 214 CLR 118.
The reasoning of the appeal judge in relation to the contention that the verdict was unreasonable or cannot be supported appeared between [190]-[209]. The reasons were as follows:
Elements of the offence
190.The elements of the offence of act of indecency are as follows:
(1)That a person commits an act on another person;
(2)That the act is indecent according to the standards of morality and decency held by ordinary members of the community;
(3)That the other person does not consent to the act; and
(4)That the person was reckless as to whether that other person consented.
191.Proof of knowledge or recklessness is sufficient to establish the element of recklessness: s 60(3) Crimes Act.
192.Further, if the assault alleged:
…is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification. [R v Schippani at [56] quoting R v Harkin (1989) 38 A Crim R 296 at 301.]
193.It was conceded by the appellant that if it were found beyond reasonable doubt that the appellant had deliberately touched the complainant’s nipples, something he denied, then the Court would be satisfied that his actions had been with the intention of obtaining sexual gratification: R v Schippani. On all the evidence, I do not find it established beyond reasonable doubt that the appellant deliberately touched the complainant’s nipples.
Conclusion of Consideration
194.Having made my independent assessment of the evidence, I am satisfied beyond reasonable doubt of the first, second, and third elements of the offence. In summary, that is, first, that an act occurred, involving the breasts, second, that the act of coming into contact with the breasts, is indecent, and third, that there was no consent. Therefore, the issue in this case is whether the fourth element of recklessness is established, that is, whether the appellant was reckless as to whether the complainant was consenting. Is recklessness proven beyond a reasonable doubt?
195.In assessing the evidence I have taken into account the advantages of the trial judge: see Pell v The Queen; Coughlan v The Queen [2020] HCA 15; 256 CLR 654; Fennell v The Queen. See also Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91. Having considered all the evidence at trial, I am left with a reasonable doubt as to the guilt of the appellant.
196.At this juncture, I note the decision of R v Schippani. In R v Schippani, the Court dealt with a charge of act of indecency arising out of a beauty treatment or procedure known as a “Brazilian Wax”. Justice Penfold stated, at [55]-[56]:
This is a case in which the conduct complained of is inherently highly susceptible to misinterpretation, and it is possible that the two participants in an incident of this sort could quite honestly report entirely difference perceptions of how the beauty treatment was administered. This gave rise to various difficulties.
197.These observations are, to my view, relevant and apposite to the facts of this case.
198.In my view, the reasonable doubt concerning recklessness arises from the combined force of the following six matters of evidence.
199.First, the appellant asked the complainant “do you want me to do the rest of your chest?” or “do you want me to massage your whole chest?”. It was conceded there was no material difference between the phrases “massage your whole chest” or “rest of your chest” (T26.25-30).The complainant said “sure” (QA4, pg 2).
200.Second, the complainant said that the period of time from when she was exposed to when she was covered again was approximately 10 to 15 minutes, however, the complainant also stated that she did not have a very strong awareness of time. In cross‑examination, the complainant agreed that her memory of the event is not 100%, but that she could recall the major aspects. She later clarified that her memory was probably 80 or 90%. The complainant agreed that the appellant did not massage her breasts for 10 to 15 minutes, and that this time estimate included the massaging of her stomach and her hips. The complainant agreed that an estimate of 5 minutes, in total and combined, could be accurate for the massaging of her breasts.
201.Third, in the pre-recorded interview with police the complainant said that the appellant touched “my nipples or the area with the nipples” (QA4, pg 3). In cross-examination, there was no “or”. The evidence was therefore unclear in this regard.
202.Fourth, the evidence of the appellant in relation to his reluctance to use the word “breasts” during the massage was not implausible and did not in my view adversely impact his credibility.
203.Fifth, the importance of the prior good character of the appellant in his criminal trial.
204.Sixth, this is a case in which the conduct is susceptible to misinterpretation. It is entirely reasonably possible on examining all the evidence that the complainant and the appellant have both honestly reported different perceptions of the treatment. In my view, that is a reasonable possibility in this case.
205.That is, it is a reasonable possibility that the appellant was giving truthful evidence when he testified that he believed the complainant had indicated consent to the massage he undertook.
206.Finally, were the standard of proof the civil law standard of the balance of probabilities, the prosecution may arguably have succeeded; I am not called to make that determination. The criminal standard of proof beyond reasonable doubt is a higher standard. It is the highest standard of proof. The prosecution bears the burden of proving the case against the accused to the criminal standard. The prosecution has not met the requisite criminal standard.
207.In determining this case, the presumption of innocence must not be lost sight of. It is the principle that a person is presumed to be innocent unless and until the prosecution proves guilt beyond reasonable doubt. In a criminal case, the prosecution is required to prove the case beyond reasonable doubt and, if there is reasonable doubt, the accused cannot be convicted. The prosecution is not required to prove the guilt of the accused “beyond any possible doubt” but beyond reasonable doubt: R v Sutton [2021] ACTSC 37 at [395] (R v Sutton).
208.Suspicion must play no part in my function as a judge of the facts. If a fact-finder feels that the accused may be guilty and even if a fact-finder feels that the accused probably is guilty, as long as the fact-finder has a reasonable doubt about the accused’s guilt on a particular charge, that fact-finder, be it a jury or a judge, must return a verdict of not guilty on that charge, according to law: R v Sutton at [396].
209.On the evidence, I must return a verdict of not guilty.
(Emphasis in bold text added.)
Her Honour then upheld the appeal, overturned the finding of guilt and awarded costs to the respondent.
The decision in M v The Queen
The function of the court when addressing a ground of appeal asserting that a verdict is unreasonable or cannot be supported by the evidence was authoritatively described in M v The Queen (1994) 181 CLR 487 at 492-495:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe”, or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s. 6(1) [of the Criminal Appeal Act 1912 (NSW)]. The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King [(1919) 27 CLR 13 at 23], Isaacs J said:
“If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”
And as the Court observed in Davies and Cody v. The King [(1937) 57 CLR 170 at 180], the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
"not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
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.
It was with those considerations in mind that some members of this Court have thought it necessary to qualify the statement by Barwick CJ in Ratten v. The Queen that: "It is the reasonable doubt in the mind of the court which is the operative facto". Barwick CJ went on to say:
"It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration”
The qualification was that no circumlocution was involved in speaking of a doubt which a reasonable jury ought to have entertained because account must be taken of the advantage which a jury has in seeing and hearing the witnesses. To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(Emphasis added, footnotes omitted.)
The appeal judge quoted from the first highlighted passage in this extract but not from the second.
As pointed out by McCallum J in R v Bragias [2016] NSWCCA 219 at [5]:
In its application of the test stated in M, which has since been consistently reaffirmed, the appellate court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality". The test is not to be confused with the legal question whether a verdict of guilty was open on the evidence. But nor is it to be confused with the function of the jury at trial of determining whether the offence has been proved beyond reasonable doubt.
(Footnote omitted.)
McCallum J also articulated (at [8]) that there is a difference between a doubt experienced by the appellate court (as a subjective event) and a doubt the jury should have experienced (a normative proposition). In moving from the first step (doubt experienced by the appellate court) to the second (the jury should have experienced that doubt), the critical question will normally be whether the difference of view can be explained by the jury’s advantage in seeing and hearing the evidence as it unfolded.
The significance of the independent review of the evidence by the appellate court was emphasised by the High Court in Dansie v The Queen [2022] HCA 25; 96 ALJR 728. Where the trial has been by judge alone, the appeal court must treat the trial judge’s findings of fact “with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence”: at [16]. That is because the independent review of the evidence “required more than mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt”: at [37].
The Court in Dansie also recognised that “[t]he advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”: at [17].
The emphasis required by Dansie upon the evidence rather than the findings of the trial judge is consistent with the appeal judge’s recital of the evidence and her only limited reference to the reasons of the magistrate. However, the significance of the independent review does not detract from the obligation of the appeal judge to give reasons that explain how the test in M has been applied and error on the part of the finder of fact established.
The appellant’s complaint
Although articulated by reference to three different grounds of appeal, the fundamental complaint made by the appellant is that the appeal judge did not perform the task that was required in an appeal asserting an unreasonable verdict. Rather, the appeal judge approached the matter on the basis that if, having regard to the evidence, she had a reasonable doubt as to the guilt of the accused then that of itself was sufficient to require the decision of the magistrate to be overturned.
It is obviously necessary to be cautious in reaching such a conclusion in circumstances where the appeal judge has, in her reasons, made reference to the authorities relevant to setting aside decisions on the basis that they are unreasonable or cannot be supported having regard to the evidence.
Notwithstanding that caution, the appellant is correct when she asserts that the appeal judge did not perform the necessary task of determining whether her doubt as to the guilt of the respondent meant that it was not open to the magistrate to convict him. There are three features of the appeal judge’s reasons which, directly or indirectly, give rise to this conclusion:
(a)Some of the language used by the appeal judge in the reasons was consistent with the appeal judge having approached the matter as an original trier of fact or hearing an appeal de novo rather than involved in the exercise required by M. So too was her finding that touching of the complainant’s nipples was not proved beyond reasonable doubt.
(b)The reasons for concluding that recklessness had not been established beyond reasonable doubt were dependent upon the factual finding in relation to the touching of the complainant’s nipples. This factual conclusion, which differed from the basis upon which the magistrate decided the case, was unexplained. The appeal judge failed to address the evidence relied upon by the magistrate. The factual conclusion was one in relation to which the magistrate had a very significant advantage over the appeal judge and the failure to address the evidence relied upon by the magistrate is consistent with a failure to undertake the exercise required by M.
(c)Having formed the view that she had a reasonable doubt as to the respondent’s guilt because she had a reasonable doubt about the recklessness of the respondent’s conduct, the appeal judge did not then expressly or impliedly consider whether or not it was open to the magistrate to have been satisfied of the guilt of the respondent beyond reasonable doubt.
Each of these points is elaborated upon below.
Original trier of fact?
Two features of the appeal judge’s reasons suggest that her Honour, notwithstanding accurate references to the principles in M and the subsequent High Court authorities, treated the exercise as one in which she was an original finder of fact or hearing the appeal as an appeal de novo.
Language: At a number of points, the language used in the reasons is consistent with the appeal judge being involved in making original findings of fact. The parts of the reasons are:
(a)[193]: “I do not find it established beyond reasonable doubt that the appellant deliberately touched the complainant’s nipples.”
(b)The references at [207] to [209] to directions which would be appropriate to a trial by judge alone. The statements at [207] and [208] were reproduced from the reasons in the judge alone trial of R v Sutton [2021] ACTSC 37.
(c)[209]: “On the evidence, I must return a verdict of not guilty.”
These could be characterised as mere infelicities of language but they must be understood in the context of the other aspects of the appeal judge’s reasons which suggest a misapplication of the decision in M.
Finding in relation to nipples: The conclusion at [193] of the appeal judge’s reasons that it had not been established beyond reasonable doubt that the respondent had touched the complainant’s nipples was one which was of central importance to the approach taken by the appeal judge. Having regard to the evidence that was given, the finding should be understood as relating to both the nipples and the areolae. The finding was central to identifying the act that was the subject of elements 1 and 2 of the offence. As a result, it was central to the consideration of recklessness (element 4) which must have been based upon the proposition that there had been touching of the breasts but no touching of the nipples.
The magistrate had engaged in a detailed assessment of the evidence in order to reject the evidence of the respondent and accept the evidence of the complainant. While the appeal judge was not required to defer to findings of the magistrate or to find specific error in her approach, the complete absence of reasons for the conclusion reached by the appeal judge at [193] means that it is not possible to say what evidence was relied upon, how that evidence related to the evidence relied upon by the magistrate or assess in any nuanced way the significance of the advantage held by the magistrate as a result of having conducted the hearing and seen and heard the witnesses.
Having regard to the different evidence given by the complainant and the respondent on this issue and the way in which that was addressed by the magistrate, any independent review of the evidence would need to address the evidence considered by the magistrate and was an area where the magistrate was likely to have a very significant advantage over the appeal judge. Having regard to the nature of the complainant’s evidence, which was of deliberate touching of the nipples and the cupping of the breasts on multiple occasions, a conclusion that any touching of nipples was not deliberate must have involved rejection of the credibility or reliability of the evidence of the complainant. The express findings of the magistrate concerning the credibility and reliability of the complainant indicated that this was a case in which the advantage of the magistrate from having presided at the trial was significant. The magistrate said:
The complainant was a very impressive witness. She answered each question directly and was frank about her perceptions of the incident relied on what she felt rather than – and that she could not see anything. She did not appear to be exaggerating any aspect of her account and was honest about her feelings immediately after the incident and as to her uncertainty about what, in fact, had happened.
The complainant maintained a consistent account in her evidence in court to that given in her evidence-in-chief interview. She withstood vigorous cross-examination and was definite that her nipples and areola had been touched and that the massage of her breasts felt purposely sexual and not like the massage of other parts of her body.
The appeal judge’s reasons did not address the significant advantage that the magistrate had over the appeal judge in relation to the assessment of the evidence of the complainant and respondent when determining this issue.
Because of its centrality in defining the acts that were the subject of the charge, the conclusion of the appeal judge at [193] was a significant step along the way to her Honour’s ultimate conclusion that the decision of the magistrate should be set aside. If it was to be relied upon, there needed to be an adequate articulation of why the doubt arose in the mind of the appeal judge in order to enable consideration of whether or not the verdict reached by the magistrate was open to her. The difficulties created by the absence of reasons did not manifest themselves in the judgment because, as pointed out below, the appeal judge did not, in terms, go on to consider whether the verdict was open to the magistrate, being the second and normative stage of what was required by M, as explained in Bragias.
A precondition to a finding of indecency is that the act had a sexual connotation arising from the part of the body involved or because the touching was accompanied by some intention to obtain sexual gratification: Harkinv R (1989) 38 A Crim R 296 at 301. Necessarily implied in the appeal judge’s finding that element 2 was satisfied was the conclusion that the touching of the breasts other than the nipples or areolae would have a sexual connotation. This differed from the way in which the respondent had run the case before the magistrate. The respondent had contended that if the touching did not involve the nipples or areolae then it would be necessary to establish an intent to obtain sexual gratification from the touching. It also differed from the approach taken by the magistrate: see [32] above. However, the approach necessarily implied by the appeal judge’s conclusion that element 2 was satisfied was consistent with the decision in Harkin which recognised female breasts generally as one of the areas of the body giving rise to a sexual connotation. Nothing turns, in this appeal, on the difference between the approach impliedly adopted by the appeal judge and that which had been contended for by the respondent before the magistrate.
Reasons on recklessness
The appeal judge advanced six reasons which by their “combined force” gave rise to her reasonable doubt concerning recklessness, element 4 of the offence. Although not expressly stated, the appeal judge’s consideration of recklessness must have occurred in the context of her earlier finding that it had not been established beyond reasonable doubt that the appellant deliberately touched the complainant’s nipples.
The reason for listing the six points appears to be that they allowed the appeal judge to reach the conclusion that she did at [205], namely, that “it is a reasonable possibility that the [respondent] was giving truthful evidence when he testified that he believed the complainant had indicated consent to the massage he undertook”. The notable point about the appeal judge’s reasons on recklessness is that none of the six points expressly engage with the factual matters referred to by the magistrate in relation to the credibility of the respondent or the complainant. They identify factual matters affecting the subjective state of satisfaction of the appeal judge. Thus, they address the first component of the test in M as explained in Bragias (the subjective event) rather than the second (the normative proposition). However, even insofar as they go to the appeal judge’s subjective state of satisfaction, they provide only a limited basis for the conclusion reached and are very much dependent upon the earlier finding, contrary to the conclusion of the magistrate, that the complainant’s nipples had not been deliberately touched. To illustrate this, some comment on each of the six matters is appropriate.
First, the asking of the question “do you want me to do the rest of your chest?” or “do you want me to massage your whole chest?”: The asking of the question and the complainant’s answer would be a matter of significance to the question of recklessness if the magistrate’s finding that the nipples had been deliberately touched was departed from. In that context it would be harder to establish recklessness as to consent relating to the incidental touching of the breasts during the performance of the massage. The significance of this factor is therefore dependent upon the earlier conclusion of the appeal judge that touching of the nipples had not been established.
Second, the period of time during which the massage occurred: The appeal judge set out various aspects of the evidence in relation to the timing of this part of the massage. The reasons do not explain, and it is not clear, how the issue of timing was related to the question of recklessness. This point is not articulated as a matter going to the credibility or reliability of the complainant’s evidence. It is not clear how it could have been a credibility or reliability point. The evidence of the complainant was that the respondent touched her breasts for approximately five minutes out of the 10 to 15 minutes during which that part of the massage occurred and the respondent’s evidence was that he massaged that area of her body for four to six minutes and massaged the breasts for one and a half to two minutes during that period. In the context of the case generally, or in relation to recklessness specifically, the difference in the evidence was not of significance. The length of the massage might have been relevant to whether it was carried out for the purpose of sexual gratification, a longer lingering massage being more consistent with that purpose. However, as pointed out above (at [76]), the approach to this issue apparently taken by the appeal judge did not require consideration of whether the acts were carried out for the purpose of sexual gratification.
Third, the suggested lack of clarity in the complainant’s evidence: This is said to arise because the appellant said that the respondent had touched “my nipples or the area with the nipples”. The contention of the respondent in cross‑examination and submissions, accepted by the appeal judge, was that there was, as a result of this answer, uncertainty as to whether the complainant asserted touching of the nipples or only some other part of her breasts. The appeal judge’s reasons do not attempt to place the evidence of the complainant in its context in the evidence-in-chief interview or her oral evidence. The reasons do not address the alternative reading of the answer given by the complainant which was that she was referring to the whole area of the nipples and areola and not expressing any uncertainty as to whether her nipples were touched. That is certainly an understanding which is open when her statement to police is read in context and consistent with the oral evidence that she gave. While the appeal judge might form a subjective doubt based upon a non-contextual reading of her evidence, it was ultimately necessary to consider whether the alternative, contextual reading was open. The reasons of the appeal judge do not indicate that such a consideration occurred.
In any event, it is not clear why this issue is relevant to the question of recklessness having regard to the earlier conclusion that deliberate touching of the complainant’s nipples had not been established beyond reasonable doubt. If that was the case, then consideration of recklessness must have been on the basis that there was no intentional touching of that area and hence that the areas of the breast involved did not include the nipples. It would therefore not be a matter which had any force when considering the recklessness of the respondent. If the consideration of the issue was solely directed to the credibility of the complainant, then that was not explained in the appeal judge’s reasons.
Fourth, the significance of the reluctance of the respondent to use the word “breasts” during the massage: The appeal judge considered that the reluctance of the respondent to use the word “breasts” during the massage did not adversely affect his credibility. This statement was relevant because the reluctance of the respondent to use the word “breasts” was relied upon by the magistrate as one of six matters which gave her “concern as to his honesty and reliability”. The only reason given for the conclusion was that the appeal judge said that his explanation “was not implausible”. Once again, the conclusion on this issue was probably significantly influenced by the appeal judge’s factual conclusion that it had not been proved beyond reasonable doubt that the complainant’s nipples were deliberately touched.
Fifth, the significance of good character: It may be accepted that good character was relevant. It was considered in some detail by the magistrate. Once again, any consideration of good character would have occurred in the context of the appeal judge’s finding as to what touching was proved beyond reasonable doubt to have occurred.
Sixth, the possibility of misinterpretation of what had been consented to: This was recognised in Schippani from which the appeal judge had quoted (at [196]). The significance of this factor is very much dependent upon the physical acts which occurred and hence significantly influenced by the appeal judge’s finding that it had not been proved that the respondent deliberately touched the complainant’s nipples.
As will be apparent, a number of these findings are dependent upon assessing the issue of recklessness on a different factual basis to the basis upon which it was assessed by the magistrate. That is, the appeal judge proceeded on the basis that there had been no deliberate touching of the nipples, whereas the magistrate had proceeded on the basis that there had been. The close relationship between the reasons on recklessness and the doubt about whether there had been deliberate touching of the nipples draws attention to the failure by the appeal judge to give express consideration to whether or not the magistrate’s conclusion that deliberate touching had occurred was one which was open to her. That is the issue considered next.
The ultimate question in M
As pointed out earlier, the ultimate question which M requires to be answered is whether “upon the whole of the evidence it was open to the [magistrate] to be satisfied beyond reasonable doubt that the accused was guilty”: M at 494-495. This was described in Bragias as a normative proposition.
Having reached the conclusion that she had a reasonable doubt about the recklessness of the respondent, the appeal judge simply concluded “I must return a verdict of not guilty”. There was no express consideration of whether her own doubt about whether the respondent deliberately touched the complainant’s nipples or her conclusions in relation to recklessness meant that the doubt was one that ought to have been experienced by the magistrate and hence that the verdict reached by the magistrate was unreasonable. In other words, there was no express consideration of the ultimate question required by M to be answered. Such consideration cannot be implied in circumstances where the reasons given by the appeal judge did not grapple with the factual matters referred to in the magistrate’s reasons in relation to the touching of the complainant’s nipples or the issue of recklessness. No reasons were given which would explain that the evidence below lacked credibility, contained discrepancies, displayed inadequacies, was tainted or lacked probative force in a way that allowed the court to conclude that the verdict arrived at was not one which was open to the magistrate.
It is true that the appeal judge had, prior to announcing that she was left with a reasonable doubt and identifying her six reasons for having a reasonable doubt concerning recklessness, recited that she had “taken into account the advantages of the trial judge”: [195]. The respondent contended that the appeal judge’s statement should be read as if it contained the word “still” so that it was to the effect that “having taken into account the advantages of the trial judge and having considered all the evidence at trial, I am still left with a reasonable doubt as to the guilt of the [respondent]”. Having regard to the context of the reasons overall and, in particular the unexplained conclusion as to the touching of the nipples, it would not be safe to interpret the reasons in a way which read into them consideration of the ultimate question required by M, namely whether the conclusion reached was one which was open to the magistrate.
Conclusion
For the reasons given above, the consideration of the appeal by the appeal judge miscarried. Ground (ii) in the Notice of Appeal is made out. The appellant was entitled to have the appeal determined in a manner consistent with the decision in M. That did not occur. It is unnecessary in those circumstances to reach conclusions in relation to ground (i) and (iii).
The appeal should be allowed. Contrary to the submissions of the respondent, it is appropriate that the matter be heard by a different judge in order that there be no perception that the conclusion reached by the appeal judge, based upon what has been found to be an erroneous application of the decision in M, will not be completely reconsidered when the remitted appeal is determined. It is therefore appropriate to set aside the appeal judge’s decision and to remit the matter to the Supreme Court, differently constituted, in order to hear and determine the respondent’s appeal to that court.
Orders
The orders that I propose are:
1. Appeal allowed.
2. The orders made by the Supreme Court on 13 January 2022 are set aside and the proceedings remitted to the Supreme Court to be determined according to law.
KENNETT J:
The respondent appealed from his conviction on the ground that it was “unsafe and unsatisfactory”. Before the appeal judge, that ground was treated as a contention that the verdict was unreasonable or could not be supported by the evidence and, therefore, as calling for application of the principles set out in M v The Queen. The case was argued before us on the same basis. I agree with the careful analysis of Mossop J as to how the appeal judge erred in the application of those principles.
Appeals are creatures of statute and, therefore, the circumstances in which an appeal court is required or permitted to set aside a conviction depend on the particular terms of the statute under which the appeal is brought.
M v The Queen involved an appeal from the verdict of a jury in the District Court of NSW, where s 6 of the Criminal Appeal Act 1912 (NSW) as then in force empowered the Court of Criminal Appeal to set aside the conviction if it concluded that the conviction was “unsafe and unsatisfactory” or there was otherwise a “miscarriage of justice”. In Dansie v The Queen [2022] HCA 25; 96 ALJR 728, the test enunciated in M was treated as applicable to an appeal from a judge alone; however, that appeal had come to the Court of Criminal Appeal of South Australia under s 158 of the Criminal Procedure Act 1921 (SA), which is framed similarly to s 6 of the NSW statute (but using the more modern language of “unreasonable or cannot be supported by the evidence”). Section 37O(2) of the Supreme Court Act 1933 (ACT), which applies to an appeal brought to this Court from a conviction entered in the Supreme Court, is also in similar terms. The test in M has thus been treated as applicable to appeals to this Court from convictions entered in the Supreme Court: eg Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91, [149] (Murrell CJ), [225]-[226] (Loukas-Karlsson J), [271] (Charlesworth J).
Section 214 of the Magistrates Court Act 1930 (ACT), which governed the appeal from the magistrate in this case, uses different language. It does not limit the power to set aside a conviction to cases where the verdict is unreasonable or involves a miscarriage of justice. Instead, it requires the Supreme Court to have regard to the evidence given below and empowers the Court to draw inferences of fact. It confers a qualified power to receive fresh evidence. This form of appeal can be placed within the category of appeals by way of rehearing (in that it is clearly neither a hearing de novo nor an appeal in the strict sense). That categorisation does not of itself answer questions as to the available grounds of appeal or the function to be performed by the Supreme Court (which must depend on construing the particular statutory language in its context), although it points to certain “ordinary incidents”: Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541, [29]-[31] (Gageler J). One such ordinary incident is that the appeal is a process for the correction of error. An appeal under s 214 has been held to be an appeal of that kind (Lukatela v Birch [2008] ACTSC 99 at [17]-[24]; assumed to be correct in Roberts v Rhodes [2014] ACTCA 20 at [10]). The same view was reached, in relation to the comparable statute in New South Wales, in McNab v Director of Public Prosecutions [2021] NSWCA 298; 106 NSWLR 430 at [24]-[27] (Bell P), [89]-[90] Basten and McCallum JJA).
For my part, I do not think it follows that the contention that a verdict was unreasonable or not able to be supported by the evidence is not a proper ground of appeal from that verdict to the Supreme Court. To conclude that it is not a proper ground would contradict the basis on which many decisions of the Supreme Court and at least two decisions of this Court have proceeded (Muench v McCue [2020] ACTCA 17 at [109]-[110]; KA v Linden [2021] ACTCA 22 at [65]-[70]). In my view, unreasonableness of the result or lack of a sufficient basis in the evidence is a species of error that would justify setting the conviction aside in an appeal governed by s 214.
However, it does follow from what I have said above that, while the respondent alleged that the verdict against him was “unsafe and unsatisfactory”, he did not need to make out a ground pitched at that level in order to succeed. It would have been sufficient to establish some material legal, factual or discretionary error on the part of the magistrate.
As a result, to the extent that the appeal judge formed and acted on her own conclusion that there was a reasonable doubt as to the respondent’s guilt rather than engaging in the further reasoning required by M, that was not in itself inconsistent with the function of the Supreme Court under s 214.
It does not follow, however, that ground (ii) in the present appeal is to be rejected or that the appeal should be dismissed. The reasoning of the appeal judge in effect upheld a ground of appeal that had not been pleaded and departed from the basis upon which the parties had argued the appeal. That allows the feature of her Honour’s reasoning about which ground (ii) complains to be regarded as involving error. Further, and more simply, I agree with McCallum CJ that part of the appeal judge’s reasoning involves a logical difficulty which calls for ground (iii) to be upheld.
Normally it is preferable for this Court, where it can properly and efficiently do so, to make orders that dispose of a case rather than remitting it for further hearing. However, there are at least two reasons why remitter is the appropriate order in this case.
One reason is that argument before us focused on whether the appeal judge had properly performed the appellate function and we have not heard detailed submissions on the merits. The other reason is that the way the case was presented below directed the appeal judge’s attention to the test in M, and her Honour set out to apply that test. The first level of appeal therefore proceeded in a way that, on the view that I take, involved a misunderstanding of what the present respondent needed to establish. The parties may not have put all the arguments they would have wished to put on the question whether the judgment of the magistrate was liable to be set aside; and the record of the appeal and its outcome therefore may not provide a sound foundation for this Court, at the second level of appeal, to determine what the result should have been. If the case is to be decided differently from the way it was argued in the Supreme Court, fairness to both parties calls for full argument to occur in that Court.
I therefore agree with the orders proposed by Mossop J. I would add that, if the test in M did need to be met, I would allow the appeal for the reasons given by his Honour at [68] to [91].
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 9 December 2022 |
15
16
9