MM v Police - [2021] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MM v POLICE
[2021] SASC 1
Judgment of the Honourable Auxiliary Justice David
21 January 2021

MAGISTRATES – APPEAL AND REVIEW – SOUTH AUSTRALIA – APPEAL TO SUPREME COURT
CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – FOR PARTICULAR PURPOSE – SEXUAL OFFENCES
CRIMINAL LAW – EVIDENCE – COMPLAINTS – GENERALLY
APPEAL AND NEW TRIAL – APPEAL – POINTS AND OBJECTIONS NOT TAKEN BELOW
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – BURDEN OF PROOF
Appeal against conviction by a Magistrate of two counts of indecent assault upon two separate females, TW and LT, on two different occasions, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The two counts were joined and tried together on one Information. The Magistrate refused an application for separate trials on the basis that the evidence on each count was cross-admissible.
The appellant was an Uber driver and the complainants were, on these occasions, his passengers. The allegations concerned non-consensual touching at the end of their respective journeys, which the appellant denied at trial. Both complainants made immediate complaints following the incidents and subsequently reported the conduct to Uber.
The appellant appeals his convictions on eight grounds:
1.The trial miscarried as a result of the Magistrate’s decision to jointly try Counts 1 and 2 based on a finding that the evidence of each complainant was cross-admissible;

2. The Magistrate erred in his treatment of the complainants’ evidence of distress;
3.The Magistrate erred in his approach to the evidence of the complainants’ out of court statements;
4.The trial miscarried as a result of the wrongful admission of, or use by the Magistrate of, irrelevant and/or inadmissible out of court statements;

5.      The Magistrate erred in his treatment of the appellant’s evidence and the burden of proof;
6.      The Magistrate erred in his approach to the elements of the offence;
7.      The Magistrate’s reasons are inadequate; and
8.      The Magistrate erred in finding the offences were proved beyond reasonable doubt.
Held, dismissing the appeal on both counts:
1.The similarities between the evidence of one complainant in relation to the other amounted to strong probative value, justifying the Magistrate’s finding of cross-admissibility pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA).
2.The Magistrate’s dealings with the complainants’ evidence of distress were adequate in that he inferentially and clearly dealt with, and rejected, the alternative reasons for distress suggested by counsel.
3.While the subsequent complaints made to Uber were inadmissible, they took the matter no further than the original spontaneous complaints.
4.The message LT sent to her boyfriend en route in which she described the appellant as a “creep” was admissible.
5.Looking at the whole of the Magistrate’s summing up of the appellant’s evidence, he clearly directed himself as to the proper onus.

6. The Magistrate clearly identified and found proved the elements of the offence.
7.The Magistrate discharged his obligations to resolve the critical and contested issues; any imperfections in his reasons and findings would have made no difference to his final assessment.
8.The Magistrate took into account a number of inconsistences in the evidence of both complainants, and any inconsistencies in which he did not deal, in light of the evidence, would have made no difference to the Magistrate’s decision.

Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) ss 34M, 34P, referred to.
R v C, CA [2013] SASCFC 137; R v Schlaefer (1984) 37 SASR 207, discussed.
Hoch v The Queen (1988) 165 CLR 292; R v Hendrie (1985) 37 SASR 581; R v Wallace (2008) 100 SASR 119; R v Walton (1987) 46 SASR 553, considered.

MM v POLICE
[2021] SASC 1

Criminal: Magistrates Appeal
DAVID AJ.
Introduction

The appellant was convicted by a Magistrate of two counts of indecent assault upon two separate females on two different occasions, contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).
The allegations concerned two separate incidents, approximately six weeks apart.
At the time, the appellant was an Uber driver and the complainants were, on these occasions, his passengers. The allegations concerned non-consensual touching at the end of their respective journeys. That behaviour was denied by the appellant at trial.
The two counts were joined and tried together on one Information. The Magistrate refused an application for separate trials on the basis that the evidence on each count was cross-admissible. That refusal is one of the principal grounds of appeal.
The charges and the evidence
I set out the Information in full:
Offence details:
1.On the 9^th of January 2017 at HACKHAM WEST in the said State,

indecently assaulted [TW].

Section 56(1) of the Criminal Law Consolidation Act 1935.

This is a basic offence.

This is a minor indictable offence.
2.On the 19^th of February 2017 at ROSSLYN PARK in the said State,

indecently assaulted [LT].

Section 56(1) of the Criminal Law Consolidation Act 1935.

This is a basic offence.

This is a minor indictable offence.
I will refer to the first complainant as TW and the second as LT. On 9 January 2017, the appellant was working as an Uber driver. At that time, TW was 21 years of age. She gave evidence that she and a female friend, TA, had been drinking at the Adelaide Casino for over five hours. She gave evidence that during that period she had consumed between six and 10 drinks of bourbon and Coke. Both of them then walked to McDonald’s restaurant on Hindley Street where TW used her Uber application on her phone (the Uber app) to book an Uber vehicle to take her to the address of 32 Italia Crescent, Hackham West.
The Uber, driven by the appellant, arrived to collect both TW and TA in Hindley Street. TW gave evidence of a discussion with the appellant that instead of booking the fee on her account through Uber she would pay him $60 in cash. This was agreed. TW sat in the front and TA in the back. On the journey, at one stage, the appellant stopped the car because TA was smoking and he demanded that she stop. TA began screaming and behaving in quite a psychotic manner. TW gave evidence that she apologised and pacified the situation and the appellant asked TA for $20, presumably for some type of penalty for smoking. When they arrived at the destination, TW gave evidence that the appellant asked, “Do you want to go around the corner?”. She took this as a gesture of him wanting to have some form of sexual activity. She then gave evidence that he grabbed her jumper and her pants. She then pushed herself away from him and got out of the car. The grabbing of the pants and the jumper are the basis of the charge on Count 1. She described it as follows:
QAt that point in time what did you think was occurring.
AI thought I didn’t know, that’s why I ran out the car because I was already out the car. That’s when I just scadooded you know like I pushed away because I didn’t know and now that I think about it that’s a grope like that is grabbing someone where they don’t want to be that’s a grabbing.
QWhen you say pushed away how would you describe that you pushed him away.
AWell because he already had touched my clothing I swung around and I got out the car and I shut the door but it was lucky it was just my clothing and not neck.
QAnd when he grabbed you with the jumper did he touch you anywhere else.
AJust the pants.
QYes but in relation to the grab on the jumper.
AJust skipped but he got the jumper so he brushed and then jumper because the jumper was bigger.
QWhen you say he skimmed where would you say he skimmed.
AMy chest, collar bone up there because I was wearing layers so I would’ve had a top probably like this my jacket and my top and he would’ve just skimmed my collar bone.
QWas there any contact with the breast area.
AMight have bumped it but he didn’t actually skin to skin contact. Because it was so long ago that I can’t give you a good description of his face and all that but I know he was dark.
QWhat happened after got out of the vehicle.
ASorry
QWhat happened when you left the vehicle.
TA had got out of the car before this incident took place. When TW was moving towards the house, TA emerged and threw something at the appellant’s vehicle. He then took off straight away.
The prosecution at trial called evidence of an immediate complaint made to TA by TW of the indecent assault. However, this came out in the evidence of TA, not TW.
TW then gave evidence of contacting Uber making a complaint about the appellant’s behaviour, which resulted in Uber contacting her by telephone. She also contacted the police and eventually gave a police statement. She gave evidence that she never consented to the appellant touching her in the way she has described or at all.
She was extensively cross-examined over a long period of time due to various interruptions in the trial. For the purposes of this judgment, there is no need to go into detail other than in relation to the more salient points. It was put to her in cross-examination that there were two stops on the way to the ultimate destination, Hackham West, not one. It was put to her that TA, on the first of the two stops, asked the appellant whether he wanted “a happy time”, denoting some form of sexual activity. TW denied any such conversation or denied stopping on a second occasion. She agreed, however, in cross-examination that at the end of the journey she discovered that TA had put bubble gum on the back of the driver’s car seat and this led to a conversation about the appellant being compensated for the car to be cleaned and added to aggravation in the car. The following was put in cross-examination:
QMs [W] do you think he maybe grabbed your top and pants because you’d taken your seatbelt off and was starting to get out while he was discussing with you a cleaning fee.
ANo.
TA was called, she gave evidence of agreeing to pay a monetary fee for the Uber rather than using an account. She agreed that she smoked in the back of the vehicle and that she was extremely intoxicated. She also agreed that the Uber driver (the appellant) wasn’t happy and pulled the car over to presumably kick them out. She said that in her state and being unhappy with the threat of being kicked out of the car, she put some chewing gum on the back of the seat and there was some discussion about a cleaning fee. She said that when the Uber stopped at the destination, she got out of the car and went inside quickly to see a friend called J. She said that TW was still in the vehicle. She was chatting to J and then she saw TW get out of the car, quite distressed and in tears. She gave evidence that TW said to her, “He’s just grabbed me on the boobs and my leg, inner thigh”. She gave further evidence that TW then said, “I don’t know what to do” and TA further said, “I think you need to call the cops”. This evidence was led by way of complaint. It is to be noted that TA also had given evidence that on the journey TW sat in the front passenger seat and she was in the rear seat.
In cross-examination, it was put to TA that there were two occasions when the vehicle stopped and that on the first occasion she said to the driver (the appellant), “Do you want a happy time?”. TA denied that she made any suggestion to the driver to that effect.
The prosecution at trial led evidence of a complaint made by TW on the Uber app. The contents of that complaint were not in dispute and the message was: “He touched my crotch and chest after telling my friend to get out”.
The evidence at trial on Count 2
LT gave evidence that on 19 February 2017, she was 18 years of age. During the previous day and evening she had been out with friends at dinner, and then went to a bar in Bank Street in the city, called Bank Street Social. She arrived at the bar at approximately 1.30 am and then, after about an hour, ordered an Uber to go home, using the Uber app. She then gave evidence that an Uber car arrived. There is no dispute that the appellant was the driver. She said in evidence that she tried to get in the back of the car, but the door would not open, so she got in the front. She gave evidence that there was some uncontroversial conversation between she and the driver, and at the time she did not feel the effects of the alcohol she had consumed. When they arrived at the street of her destination, namely, Park Avenue, Rosslyn Park, the appellant stopped the vehicle short of the house to which he intended to go. As LT was getting out of the car, she gave evidence that the appellant told her to put his phone number in her phone so that if ever she needed a ride again she would be able to call him. At that stage, she thought he was being friendly and allowed him to put the number in her phone. He then said he needed her phone number. She thought this request was a little strange and gave him an incorrect number, which he phoned and found to be incorrect. He gave her his phone again to put in the right number, which she did, because she was starting to feel concerned. She then gave the following evidence:
QWhat happened after you did that.
AI said – well then I started to act like I was going to leave again, then he then said that he wanted a kiss and started to reach out to hug me.
QAre you still seated in the vehicle at this time.
AYes.
QIs the door open or closed.
AIt’s closed.
QWas your seatbelt on or off.
AIt was off.
QYou said that he said that he wanted a kiss and reached over to hug you, what was your reaction to that.
AI did not know what to do. I was very shocked and very scared so I was kept my shoulder towards him. I wasn’t – I was quite frozen I didn’t really know what else I was suppose to do.
QDid he hug you.
AYes and he grabbed me and was pulling me towards him.
QDo you know whether he had his seatbelt on or off at this time.
AHe had it off.
QWhen you said he hugged you did he use one hand or two hands.
ATwo. He put one hand around my back and the other hand to reach across me to my arm on the other side.
QSo the way that you’ve just described it would you say that both arms were around your back at that time.
AYes, one around my back one around the front.
QIs anything being said at this time.
AYes he just kept saying either you need to kiss me or give me a kiss, give me a quick kiss.
QWhere was his face in relation to your face at that time.
AI was facing ahead he was facing me trying to pull me closer towards him.
QWhen you say you were facing ahead do you mean you were facing the windscreen or you were facing him.
AThe windscreen.
QDid you say anything in response to him.
AI just would say no.
QWhat happened after that.
AI was just saying no, still quite calmly I just didn’t want to aggravate the situation as I wanted to get out of there and then he was forcefully pulling me towards him and then used one his hands to start touching my breast.
QDo you know which hand he used to touch his breast.
AHis right hand.
QJust so I’m clear where was his left hand at that time.
AAround my back still.
QCan I ask where on the breast he touched you.
AI guess just all over if that makes sense.
QIs that on one breast or two breasts.
AJust on, the left.
QWhen you say that he touched your breast could you describe the way in which he did that.
AWhat do you mean in terms of hard or soft?
QYes that’s right.
AI mean more soft, it wasn’t very forceful.
QWhen you say that wasn’t very forceful was the hand around your back forceful or not forceful.
OBJECTION: MR RICHARDS OBJECTS
QUESTION REPHRASED
XN
QThe other hand that was around your back how did that feel at that time.
AFirm.
QJust so the court can understand when he used his right hand to the left breast could you just indicate the sort of area that he touched you on the breast.
AI don’t exactly understand I mean he grabbed it. I don’t know what the exact part.
QWhen you say he grabbed it, could you feel what part of his hand he was using whether he was using the whole hand or not the whole hand.
AYes the whole hand.
QWhat happened when that occurred.
AWell I was trying to use, attempting to use my kind of shoulder to push away or using my arm to kind of grab his arm to stop it.
QDo you recall whether you said anything at that time.
AYes I was saying ‘Stop I need to go, I need to get out, I need to get home’.
QDid he respond at all.
AYes, he said again ‘Just give me a quick kiss’ but there wasn’t any conversation I was just sitting silently like frozen.
QWhat happened after you were trying to use your shoulder to push him away.
AWell I was just thinking that I needed to get out of the there I was saying I need to go home but he clearly didn’t have any intention of stopping what he was doing so I quite forcefully then pushed him off of me and grabbed my bag really quickly and then opened the door and got out.
LT then gave evidence that she walked quickly up the street towards her home and whilst doing so phoned her boyfriend who was at the house, asking him to meet her at the front door. She then said that she went inside the house and explained to him what happened. The boyfriend, DC, phoned the number of the appellant, which was in LT’s phone. LT said that, other than her boyfriend, she told her mother about what happened and one of her closest family friends, and the next day reported the matter to the police. A complaint was also made by DC to Uber on LT’s Uber app.
In cross-examination, it was put to LT that on the journey she spoke to the appellant about her relationship with her partner. She denied that suggestion. It was also put to her that she told the appellant that her partner was oversexed and demanding of her. Once again, she denied that allegation and said nothing like that was ever said. It was also put in cross-examination that she was smoking on the journey. She said that she could not remember whether, when approaching the car, she had a cigarette, but denied having a cigarette whilst in the car. The following cross-examination took place:
QI suggest to you that you asked him afterwards, these words, ‘Have you forgiven me’.
ANo.
QI suggest to you that you said to him ‘If you forgiven me give me a hug’.
ANo.
QAnd that you leaned over and hugged him.
AThat is in no way possible.
QI suggest to you that you said to him you gave him a kiss on the cheek.
AThere is no way that happened.
QAnd I suggest you asked him to give you a kiss afterwards.
ANo.
QAnd that you said to him ‘It’s okay it’s not sexual, it’s just polite’ or words to that effect.
ANo.
QI suggest to you that you then said to him ‘Give me your number so I can call you if I need a ride again’.
ANo.
QI suggest to you that you then had him prank call you or you gave him your number so he could call you and give you his.
ANo.
QI suggest to you that the number you gave him was out by a single digit and you then correct it and had him call.
AWhat do you mean?
QYou corrected the number and had him call again so you would have his phone number.
AI didn’t want his phone number.
QAnd this was the last thing that happened before you got out of the cab blew him a kiss and walked off.
ANo.

As can be seen, the defence case as put to the witness was that no non‑consensual touching had taken place.
The prosecution called LT’s partner at the time, DC. He gave evidence that, on the evening in question, LT was out and he was at home. He said that before LT got home she sent him a message to say that she had arrived and in that message his evidence was that she said, “my Uber driver’s being a creep or something”. As she had not rung the doorbell, and after DC got the message, he ran downstairs to check where she was and saw her walking along the road about two houses away. He saw the car which presumably dropped her off do a U-turn and speed off. He then asked LT what happened and his evidence of that was as follows:
AShe said that he touched her boob and he tried to kiss her. She also said – I said like remember then because at that point in time she was very fragile and she couldn’t really talk properly and I didn’t really know how to approach it I didn’t want to ask her the full thing so we went up to my room and then we spoke about it more and she said that when she went to get in the cab the Uber sorry she went to get in the front seat – sorry the back seat and he said sorry the back doors aren’t working something’s wrong with the car. So then she got in the front and then she said when she got to my place that he asked for her number and when he asked for her number she gave him a false number which wasn’t the correct number and then he called her straight away and said that’s not your number. Obviously he knew that she would most likely not give her his number and proceeded to do the check. She didn’t know what to do she panicked and she gave her real number then she went to get out the car and the guy he asked can I have a hug and she said ‘No’ and then he proceeded to ask her if he could have a hug. She told me she was scared because she wouldn’t know what would happen if she didn’t cooperate. She went to get out the car -
OBJECTION: MR RICHARDS OBJECTS AS TO THE HERESAY
DISCUSSION
ANSWER ALLOWED
AShe said she went to get out the car but the car was actually locked and she gave him a hug and when she was giving a hug she [sic he] grabbed her boob and then after that tried to kiss her. She liked pushed him off and then got out the car.
That evidence was led by way of recent complaint. DC gave further evidence that after LT said those things, she started crying. He then messaged Uber. He then phoned the appellant using the number that was in LT’s phone. He then reported the incident to Uber on LT’s phone, saying on behalf of LT, “My Uber driver groped me”.
As can be seen, on the first count, the prosecution case depended upon evidence of TW supported by a complaint made almost immediately to TA. On the second count, the prosecution case relied upon the evidence of LT supported by an immediate complaint made to DC. I will deal further with the complaint evidence when discussing the grounds of appeal.
The appellant gave evidence on oath. He told the Court that he was 43 years of age and that he was born in Pakistan. He further outlined that he came to Australia in April 2013. In 2017, he was working as an Uber driver. He denied the allegations on oath in relation to both counts. He said that on 9 January 2017, he got a job via the Uber app to go to Hindley Street, which he did, and he picked up TW and TA. He agreed there was a discussion about paying him cash rather than by Uber account. He said that initially they were both in the rear seat, but once the Uber account had been cancelled he asked one of them to sit in the front passenger seat to guide him on his journey, as he would not be using the Uber app to do so. He gave evidence that on the way to Hackham West the girl sitting in the back, presumably TA, asked him whether he wanted to have a “happy time”. He then said he stopped the car and said that he was not going to move anymore. This was on Marion Road near Park Holme. He then gave evidence that the person sitting in the back started screaming and scratching her hair, and the person in the front asked him to just take them home. He said he just wanted to drop them at home and get rid of them. After driving a little further, he saw that the girl in the back was smoking and he stopped the car for a second time. There was an argument on that topic. He said the girl in the back was behaving quite irrationally, but the one in front was behaving normally. He then gave the following evidence:
QWhen you got to your destination can you tell the court briefly what happened.
AFirst of all the lady who was sitting at the rear seat she suddenly opened the door and left and the lady who was sitting at the front she said ‘I bring the cash’ but after that I heard these two ladies started screaming, those two ladies started from their house so I didn’t know what’s happened but the lady who was sitting at the front when she was coming out of the house I just stretch myself like this and there was a chewing gum at my back which was stuck with my jacket and the seat and when she sat in the car I said ‘You just spoiled my shirt and you’ve just ruined the car seat. You’ve just ruined my shirt and the car seat so I’m going to charge you $100 for this because it’s not easy to take this thing off.’
QAt that stage had you exchanged phone numbers.
ABefore I already knew about the chewing gum she said that ‘Give my phone number and I’ll pay you $20 after two weeks.’
QWhen was that in relation to pulling up at the address.
AWhen we stopped she said ‘I’m going to bring $20’ and at that time we exchanged – she gave me the number.
QWas there a reason she went inside to get money that she told you.
AFirst she said ‘Give my number I’ll give you $20 after two weeks’ but she said ‘Just let me check inside the house whether I have some money or not.’
QWhen she went into the house you mentioned you heard voices. Can you tell us what your heard.
AI just heard the two females were shouting and fighting but I didn’t understand exactly they’re saying.
QYou’ve told us that she came back to the car and as she did so you stretched and felt something at your back.
AYes there was a chewing gum at the back.
QWhich of the two women came back to your car
AThe one who was sitting at the front seat.
QYou’ve told us when she came back you said you wanted $100.
AYes because before that I didn’t know about the chewing gum, it was a new car so that’s why my jumper and the car seat was ruined, that’s why I asked her. The car was for 2012 but the mileage was just 20,000 km.
QWhen you told her that what happened.
AThen she started showing her pictures on the mobile, she was lying on a pool table, snooker table and she had snooker balls on her private parts and she said that ‘I am a model and I am a sex worker, come with me inside and I’ll give you a happy time’ but when I refused she said ‘Give my number to other taxi drivers and I will give you commission for this.’
QWhere was she when you had this conversation with her.
AShe was at the passenger seat, front passenger seat but when I refuse her she low down her shirt and show her breast. I stopped her and during this the other girl who was sitting in the back she came out of the house and she was about to throw something on my car and the lady who was about to throw something on my car and the lady who was sitting with me on the passenger seat she came out to stop her but I just start my car and just left.
QDid the lady who came out of the house, was that a lady you’d given a lift to or was it some other lady.
AYes, yes sir the one who was mentally upset and who was sitting at the rear seat.
QDid you say that the one that was in the front seat with you got out to try and stop her.
AYes sir, she was screaming – the other lady was screaming so that’s why she came out of the car to stop her.
QWhen the other lady got out of the car you said you drove off.
AYes sir because of the bad experience and of the scenario I just felt that I need to leave.
QWas anything else said or done prior to you leaving.
AWhen she was trying to show her boobs she said – her breasts she said that ‘I know my word because I’m a sex worker.’
QWhen you say she showed her breasts, was it one breast, two breasts.
ANo sir not the proper – she didn’t properly pull down the shirt but just halfway and I just saw and turned my face, she was wearing a T-shirt so just lower a little down.
QYou mentioned she said about whether you could talk to other cab drivers and she’d give you a commission, was that before or after showing her cleavage.
AYes sir after she lowered the T-shirt then she said that ‘I’ll pay you the commission if you give my number to other taxi drivers.’
QDid you say anything in answer to that.
ANo sir I said ‘I’m not like that.’
QWas there any further conversation before the other woman came out.
AI don’t remember sir.
The appellant was also asked whether he had touched TW at all and he replied:
ANo sir I didn’t touch any part of the body. There is a difference between in their statement as well because sometimes they said that he in context ‘touch me’ what they’re saying, that ‘he touched me at the legs’ sometimes they said ‘he touched me on other parts of the body’ so they are lying, I didn’t touch any part.
As can be seen in relation to Count 1, there is a clear dispute between the evidence of TW and the evidence of the appellant. The appellant’s evidence is clearly that he did not touch her at all.
In relation to Count 2, the appellant said he could remember picking up LT on 19 February 2017 at about 3.00 am. This was from the intersection of Bank Street and Hindley Street in the city. Once again, he had received information on the Uber app to pick her up. He gave evidence that LT approached the car and tried to open the rear door, but it was locked. He said she was smoking and he requested that she throw her cigarette away. He then told her to sit in the front. He was informed that she wanted to go to Rosslyn Park. He said that whilst on the journey she lit another cigarette. He asked her not to smoke and she threw the cigarette away. He gave evidence that on the journey there was talk about her boyfriend and that he was sexually demanding. The appellant gave evidence that he told her that he wasn’t concerned about that and not to talk about it. He said she was talking and not talking whilst on the journey and appeared to be drunk. He said that before they reached the destination he heard her telling her boyfriend on the phone that she was four minutes away. He gave evidence that she directed him to stop the car. He told her not to smoke in the car again or she would be fined by Uber, and she laughed and apologised and said to him to please forgive her. He said they shook hands and there was an exchange of mobile numbers, but she gave the wrong number. He gave evidence that she said that next time she travels by Uber she will ask for the same driver because his car was neat and clean and the driver was very safe.
The appellant then gave evidence that after they had shaken hands, LT moved forward and hugged him and kissed him. This was at the same time that she said she would ask Uber to give her the same car again because it was clean and the driver was safe. She then got out of the car and blew a kiss and walked away. He said that when she hugged him, she kissed him on the cheek. He did not ask her to do that and he never forced himself upon her as she alleged in her evidence. He then gave evidence that eight or nine minutes after leaving, he received a phone call from an unknown number, presumably DC. He gave evidence that he kept on saying “What did I do wrong?” and “Who are you?”. He said that the person who phoned him was swearing and abusing him.
The appellant at trial called a number of witnesses of character. Their evidence is not disputed, nor is there any appeal in relation to the Magistrate’s directions on that evidence.
The Magistrate’s decision
The Magistrate found the appellant guilty on both counts. He gave detailed reasons for his decisions and analysed the evidence very carefully. He found that the prosecution proved beyond reasonable doubt that both TW and LT were giving truthful and accurate evidence, and he disbelieved beyond reasonable doubt the version given by the appellant. He found that the evidence, which he accepted beyond reasonable doubt, clearly made out both charges. In the course of his reasons he dealt with the questions of complaint and cross-admissibility. I will deal with those reasons when considering the grounds of appeal.
I point out at the outset that, in a case such as this, the Magistrate is the finder of fact, and is in a peculiarly advantageous position to establish whether the charges have been proved or not. This case in particular depends upon his assessment of the credibility and reliability of the three main witnesses, and although that is not conclusive of my decision, that advantage is a factor I must clearly bear in mind.
Appeal
As amended there are eight grounds of appeal. I set them out in short form:
1.cross-admissibility;
2.the evidence of distress;
3.complaint evidence;
4.the reception and use of inadmissible evidence;
5.the Magistrate’s treatment of the burden of proof in relation to the appellant’s evidence;
6.the elements of the offences;
7.inadequate reasons; and
8.proof of the offences beyond reasonable doubt.
I deal with each in turn.
Ground 1 – Cross-admissibility
The appellant argues that the Magistrate erred in finding that the evidence of each complainant was cross-admissible. He further argues that it was not open to the Magistrate to conclude that the evidence of each complainant was admissible in the case involving the other. If the appellant is right in his argument, and as I indicated during argument, the appeal will be allowed and a re-trial will be ordered on both counts to be tried separately. The joinder of actions could not be justified if the evidence of each complainant was not cross-admissible. Therefore, the question of cross-admissibility is vital to the case.
The basis upon which the Magistrate found that the evidence was cross‑admissible concerns an application of the principles applying to a case where there are multiple victims and one defendant, and the identity of the defendant is not in dispute.
The test for admissibility in such circumstances is governed by s 34P(2)(a) of the Evidence Act 1929 (SA) (the Evidence Act):
34P—Evidence of discreditable conduct
…
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
…
In applying that test, one must apply the common law in relation to improbability reasoning. Those principles are clearly set out in a number of cases, in particular, Hoch v The Queen,[1] and more recently in R v Wallace[2] and R v C, CA.[3] In the latter case, on the question of the improbability of persons independently concocting stories with a high degree of similarity of detail, Kourakis CJ said the following:[4]
The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
[1] (1988) 165 CLR 292.
[2] (2008) 100 SASR 119.
[3] [2013] SASCFC 137.
[4] R v C, CA [2013] SASCFC 137 at [58].
The Magistrate found the following aspects of similarity satisfied the test of cross-admissibility:
1.each complainant was a young woman catching an Uber late at night and after attempting to sit in the rear of the vehicle, for one reason or another, was requested to sit in the front;
2.each complainant was invited to put the appellant’s number into their phone for future use;
3.each complainant was alone with the appellant in the vehicle after they had reached their destination, and on each occasion the appellant made suggestive remarks;
4.the appellant, after making suggestive remarks of physical attraction, placed his hands on the complainants in the way described;
5.that behaviour is restricted to touching of the breasts and legs;
6.the appellant did not use force or threats to commit the offences; and
7.the offences were possible only because the complainants had complied with the appellant’s directions to sit in the front.
Mr Handshin, for the appellant, argues that each of those items of similarity are of themselves benign, if not common place. They are not of such a similarity as to be sufficiently probative; he described them in his thorough argument as being “illusory”. In other words, he argues that those similarities were not of such quality as to permit the conclusion that the probative value of the evidence of one complainant substantially outweighed its prejudicial effects.
Having looked at the evidence carefully, I find that the evidence of Count 1 serves sufficient probative value to be cross-admissible pursuant to s 34P(2)(a) of the Evidence Act. I agree with the submission of Ms Cairney, counsel for the respondent, that the following factors make a compelling case justifying admission of the evidence of one complainant in relation to the other, and that the Magistrate did not err. She rightly points out the following factors:
1.the offending occurred only six weeks apart;
2.it was in relation to two young women, both intoxicated, in approximately the same area and was opportunistic and late at night;
3.the appellant took advantage of his position as an Uber driver;
4.the offending occurred while each complainant was sitting in the front of the appellant’s vehicle at the end of the trip. Whether a complainant got into the front either fortuitously or at the request of the appellant it so happens that the offending was committed while both complainants were seated in the front;
5.each complainant was invited to exchange telephone numbers;
6.the appellant was, for a period of time, at the end of the journey alone with each complainant; and
7.the nature of the touching.

In my view, the similarities amounted to strong probative value that justified the Magistrate’s finding of cross-admissibility.
I dismiss this ground of appeal.
Ground 2 – The Magistrate’s treatment of the evidence of distress
Evidence of distress was led from TA, who was the other passenger in relation to Count 1, and DC, the partner of LT, in relation to Count 2. TA said in evidence that she went back out into Italia Crescent to look for TW, who was quite distressed and was in tears. Shortly after that observation, TW complained about the behaviour of the appellant. In relation to Court 2, DC gave evidence that LT looked shocked and did not speak to him for some time after coming inside, and she looked very fragile when she made a complaint also about the appellant’s behaviour. The appellant concedes that the evidences of distress were admissible. However, he argues that the Magistrate in his reasons failed to exclude alternative explanations for the distress. The principle test as to how evidence of distress is to be treated in a sexual case was set out in R v Schlaefer when King CJ said:[5]
… whether an inference which the jury could reasonably draw is that there was a causal connexion between the alleged assault and the distressed condition. This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with the sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred. …
[5] (1984) 37 SASR 207 at 216.
Mr Handshin, for the appellant, argued that the Magistrate does not address that principle because he has not considered an alternative explanation for the distress in each case. In his reasons, the Magistrate said the following concerning distress:[6]
Mr Richards suggested L.T’s apparent distress was explicable on the basis she was intoxicated, very late getting home, tired and emotional and knew she had been caught out on the smoking issue.
I accept the submissions of Ms Ballans that the evidence of distress of each complainant – as supported by observations of T.A. in the case of the first complainant, and D.C. in the case of the second complainant – is admissible as capable of constituting corroboration of their accounts.
…
I have already commented in these reasons as to the basis upon which such evidence could be admitted. I am satisfied that in respect to the first complainant, the evidence of T.A. is highly corroborative of the fact that T.W. was genuinely distressed. I accept she was distressed because the defendant had touched her inappropriately. I accept the account she gave to T.A. was an honest account of what had occurred. A complaint was made immediately and the complaint to Uber immediately and followed through with a more extensive complaint within 18 or so hours of the event occurring. She also reports the matter to police contemporaneously with the events. A police officer declined to take a further statement at the time, but she gave a statement to police the following day.
With respect to the second complainant, I accept that she made a contemporaneous complaint of the actions of the driver within minutes of the event occurring. Her distress supports her state of mind that something inappropriate, disturbing and frightening has just happened to her.
[6] Reasons for Decision of Magistrate K.A. Millard at [426], [427], [433], [434].
In my view, although not specifically dealing with each category, the Magistrate has inferentially and clearly dealt with each alternative category relating to distress, and rejected the alternative reasons for distress as suggested by defence counsel at the time. In relation to the distress of TW, on the evidence, there could appear to be no other obvious reason for such distress, nor does it appear that one was suggested by counsel.
I find that the Magistrate’s dealings with that topic were adequate. I dismiss this ground of appeal.
Ground 3 – Complaint evidence
The appellant argues that at the trial there was evidence admitted of out of court statements, which were inadmissible. The evidence was treated by the Magistrate as exceptions to the hearsay rule because they amounted to complaint evidence, whereas in fact they were not. Ms Cairney for the respondent concedes that a number of these out of court statements admitted by way of complaint were, in fact, not complaints and the Magistrate erred. However, she argues that because these inadmissible complaints took the matter no further than the original spontaneous admissible complaints, their admission could not have affected the Magistrate’s verdict. It is important to set out the evidence on this topic in relation to each count.
Complaint evidence in relation to Count 1
As set out above, TW complained to TA when she walked inside her house and said, “He’s just grabbed me on the boobs and my leg, inner thigh”. That was admissible evidence of complaint and was properly regarded by the Magistrate as showing consistency of behaviour. Following on from that, the Magistrate allowed evidence of a recorded message sent from TW’s phone at about 2.23 am on 9 January 2017 that said, “He touched my crotch and chest after telling my friend to get out”. This may have been drafted by TA and not TW. Further, TW had a subsequent conversation with an Uber representative on 9 January 2017, in which, among other things, she said, “he groped me boob”. Those two statements to Uber, although led by way of complaint and accepted by the Magistrate as such, were clearly not, and that was conceded by the respondent in argument before me.
Complaint evidence in relation to Count 2
DC gave evidence that immediately after LT got out of the car she said the following:
She said that he touched her boob and he tried to kiss her. She also said – I said like remember then because at that point in time she was very fragile and she couldn’t really talk properly and I didn’t really know how to approach it I didn’t want to ask her the full thing so we went up to my room and then we spoke about it more and she said that when she went to get in the cab the Uber sorry she went to get in the front seat – sorry the back seat and he said sorry the back doors aren’t working something’s wrong with the car. So then she got in the front and then she said when she got to my place that he asked for her number and when he asked for her number she gave him a false number which wasn’t the correct number and then he called her straight away and said that’s not your number. Obviously he knew that she would most likely not give her his number and proceeded to do the check. She didn’t know what to do she panicked and she gave her real number then she went to get out the car and the guy he asked can I have a hug and she said ‘No’ and then he proceeded to ask her if he could have a hug. She told me she was scared because she wouldn’t know what would happen if she didn’t cooperate. She went to get out the car -
That evidence was clearly admissible within in the meaning of s 34M of the Evidence Act and was used by the Magistrate as evidence of consistency. Further evidence was led of a message that was sent via the Uber app on LT’s mobile phone to the effect “my Uber driver groped me”. The evidence was clear that it was DC who sent that message. That was treated by the Magistrate as evidence of complaint. Further, LT had a subsequent phone conversation with an Uber representative on 19 February 2017, which consisted of a narrative of events and included her saying, “the driver like gave me a hug and was like grabbing my boob and trying to make me kiss him”.
In relation to both counts, the Magistrate erroneously took the view that the subsequent out of court statements made by TW and LT to Uber representatives and messages sent by TW (or TA) and DC amounted to complaint evidence showing consistency.
As I have indicated, the respondent concedes that the subsequent “complaints” set out above, other than the original spontaneous complaints were inadmissible. She suggests that one of the phone calls from TW to Uber may have amounted to an elaboration of her initial complaint because she tells the operator that the appellant said to her, “we’ll go round the corner and I’ll give you another $20 for suck or sex”. That was not mentioned in the original complaint. However, that really is of no moment because I agree with the argument of Ms Cairney that the subsequent inadmissible out of court statements took the matter no further. They merely reiterated to other parties what was said in the original spontaneous complaints. Once that was admitted showing consistency, it was not enhanced or effected by the subsequent statements to Uber.
I dismiss this ground of appeal.
Ground 4 – Reception and use of inadmissible evidence
This ground involves what I describe as the “creep” message. As set out in the narrative of the evidence, LT sent DC a message in which she referred to the appellant as a “creep”. This was whilst en route. LT herself did not give evidence of the “creep” message. The Magistrate in his reasons treated that evidence in the following way. He said that he formed a negative view of the truth and accuracy of the appellant’s account of events, and one of the items he pointed to was the message sent to DC suggesting that the driver was a creep. In other words, he used it as an item undermining the appellant’s evidence. Ms Cairney concedes the evidence of that message was inadmissible and should not have been led and the Magistrate erred in referring to it in his reasons. However, she argues that it would have made no difference to his decision and to his assessment of the credibility of the appellant.
This ground gives me certain difficulties. The first difficulty is that the “creep” message was not objected to at the time, therefore, I have not had the benefit of any form of reasoning process or argument before the Magistrate as to why it should not be used and, if it is going to be used, how it should be used. I also have a little difficulty with the concession by Ms Cairney that it is inadmissible. I do not want to indulge in an argument that was not presented at trial, but it occurs to me that a proper permissible use of that evidence would be that it is evidence of LT’s state of mind about her attitude to the appellant whilst on the journey. That could be led to assist in deciding the question of who to believe when the appellant says that shortly after that message was received LT was affectionate to him and wanted to hug him and kissed him before she left. In other words, it was an application of the principles concerning a victim’s state of mind and their intentions, as described in R v Walton[7] and R v Hendrie.[8] In my view, it goes clearly to the question of LT’s attitude towards the appellant, and whether that was consistent with her behaviour as described by the appellant in his evidence at trial.
[7] (1987) 46 SASR 553.
[8] (1985) 37 SASR 581.
I dismiss this ground of appeal.
Ground 5 – The Magistrate’s treatment of the burden of proof
In his reasons, the Magistrate said the following:[9]
I have already commented upon the clear obligations on the prosecutor to establish each of the charges beyond reasonable doubt. The defendant has no obligation of proof and is entitled to have evidence assessed against the background of that onus and against the background of his positive good character. Having elected to give evidence the defendant’s evidence is treated in the same way as other witnesses – Maxwell v DPP [1935] AC 309.
I recognise that a favourable impression of a complainant as a witness of as to truth is not conclusive of a matter See R v Pell [2020] HCA 12.
Prosecution must prove touching of each complainant occurred, and in indecent manner. The prosecutor must further prove each assault occurred, without consent of the complainant. I must first identify whether on the discrete evidence pertaining to each charge I am satisfied that the offence, is proven beyond reasonable doubt. In considering these matters I also have particular regard to the following from Doyle J.’s remarks in DES v The Queen [2020] SASFC 32; - at para 83-
‘It is important not to lose sight of the fact that the ultimate question is not whether it was never the less possible that the alleged offending did occur as alleged by the complainant; rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that that there was a reasonable doubt as to the defendant’s guilt’
[9] Reasons for Decision of Magistrate K.A. Millard at [454].
He also went on to say:[10]
Mr Richards, in his final submissions, said this; -
‘Mr M comes before the court as a man not just with no prior record, but of positive good character and your Honour heard evidence from a raft of witnesses, including various community members who have known him for a lengthy period of time and been involved with him in terms of both his local community and community service that has been performed by him and others to the benefit of the rest of the South Australian community … the effect of the evidence of those people goes to his positive good character and that is a matter that we ask your Honour to weigh in the balance when looking at the matter.’
I accept that is so, but as a witness his evidence attains no special status. It is to be considered and scrutinised in the same way as any witness who gives evidence in a criminal proceeding. The acceptance of his evidence will however be conclusive of the case, because it means prosecution must have failed, on its fundamental obligation, to prove beyond reasonable doubt, all required elements of the charge. Rejection of the defendant’s evidence on important factual disputes does not however mean prosecution succeeds. It may still fail if it does not discharge the onus of proving all elements, particularly the absence of consent.
[10] Reasons for Decision of Magistrate K.A. Millard at [463]-[464].
Mr Handshin argues that by referring to the fact that the acceptance of the appellant’s evidence will be conclusive of the case, because it means the prosecution must have failed, the Magistrate had inferentially or inadvertently reversed the onus of proof. At the very least, he argues that such a reference indicates that the Magistrate has not applied the full proper onus. I find there is no merit in the argument. If one looks at the whole of the summing up of the Magistrate, including the passage quoted, he has clearly directed himself as to the proper onus.
I dismiss this ground of appeal.
Ground 6 – The elements of the offence
The Magistrate identified the elements of the offence of indecent assault in the following terms:
1.The accused applied force, directly or indirectly.
2.The force was applied intentionally.
3.The force was accompanied by circumstances of indecency.
4.The complainants did not consent to the touching.
5.That the accused did not know the complainants were not consenting, or was recklessly indifferent whether there was consent.
The appellant now argues that the Magistrate did not turn his mind to the question of whether, on each count, there was the reasonable possibility that the appellant had a reasonable belief that either complainant consented to sexual contact. The appellant argues that, on the first count, the Magistrate did not consider the question as to whether the appellant had a reasonable belief that TW was consenting to sexual contact, as on the appellant’s version she had offered sex to him. Similarly, he argues that, on the second count, the Magistrate did not consider the question of whether there was a reasonable possibility that LT consented to sexual contact, consistent with the appellant’s version of events. In not considering those scenarios, the appellant now argues that the Magistrate has erred.
I find the submission is misplaced because the Magistrate clearly found it proved that TW was telling the truth and there was no offer of sex to the appellant. He also found it proved beyond reasonable doubt that LT’s version of events was the truth and was accurate, and that she had not instigated any physical contact. On those findings, there was no room for the alternative scenario that the appellant had a reasonable belief that either complainant was consenting.
I dismiss this ground of appeal.
Ground 7 and 8 – Inadequate reasons and proof of the offences beyond reasonable doubt
I have looked at all of the evidence very carefully and I have carefully considered the Magistrate’s detailed reasons. There can be no criticism or suggestion that the Magistrate did not discharge his obligations to resolve the critical and contested issues. As I indicated earlier, he was in a particularly advantageous position to assess the witnesses. Any imperfections in his reasons and findings, especially in relation to the acceptance of inadmissible complaints as discussed above, would have made no difference to his final assessment.
I also find that the Magistrate took into account a number of inconsistencies in the evidence of both complainants, which was pointed out both at trial and on this appeal. In dealing with the question of inconsistencies the Magistrate said in relation to Count 1:[11]
I have had opportunity of reviewing the evidence that was given by all witnesses in this case and I have carefully considered the submissions made by counsel with respect to count 1. I have reflected on Mr Richards’ extensive submissions on the issue of inconsistencies and discrepancies in the accounts of T.W. and T.A.
The most obvious inconsistency is as to the point of time T.W. may have become aware of the bubble gum and whether she discussed the issue with the defendant and who told her he was seeking money for the damage. T.W.’s recollection in chief and cross examination was she was unaware of any additional claim being made to compensate that damage at the time she alighted from the vehicle.
T.A. said in cross examination -at page 175 transcript – that T.W. said; -
‘I was only trying to work out the bubble gum incident.’
T.W. said in evidence she had not read her statements to SAPOL since making those statements. She also said she was starting to forget some details. I believe her, and in fairness to her, neither counsel invited her to review the statements, to refresh her memory – albeit Mr Richards did quote selected portions to her.
I agree with Ms Ballans’ submission at paras.90 and 91 – however that the inconsistencies are of minor importance. I agree also with Ms Ballans’ submissions that any inconsistency between T.W. and T.A.’s accounts does not damage the essential credit of the complainant on the critical matters in issue in each charge. I have absolute confidence that she is a witness of truth with respect to all critical issues with respect to the prosecution case, namely whether the defendant did reach out, take hold of her shoulder, put his hand on her upper chest, breast and on her upper thigh and did so without her consent.
[11] Reasons for Decision of Magistrate K.A. Millard at [455]-[459].
Further, in relation to Count 2, it is argued that there were a number of inconsistencies between the evidence of LT and that of DC in which the Magistrate did not deal. This included whether LT’s description of events is inconsistent with DC’s “complaint” that the appellant “groped” her when he made the complaint on her behalf to Uber. It is argued that the description of non-consensually touching her breast is not consistent with the description given by DC of “groping”. It was put that this affects her credibility and should have been referred to by the Magistrate. Mr Handshin also refers in argument to the inconsistency between LT’s description of her left breast being touched when giving her evidence-in-chief, as distinct from her “breasts” being touched when being cross-examined.

In the light of her evidence, and looking at it objectively in the course of the incident, whether she described it as one breast or both breasts being touched would have made no difference to the Magistrate’s decision. It is to be borne in mind that there was no question of a misunderstanding, as the versions of the event were totally different. I also find that DC’s categorisation of what LT told him is of no moment.
I dismiss these grounds of appeal.
Conclusion
I dismiss the appeal on both counts.