Muench v McCue
[2020] ACTCA 17
•17 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Muench v McCue |
Citation: | [2020] ACTCA 17 |
Hearing Date: | 6 August 2019 |
DecisionDate: | 17 April 2020 |
Before: | Burns, Loukas-Karlsson and Wigney JJ |
Decision: | See [131]-[132] |
Catchwords: | APPEAL – Where accused was convicted of offence of attempting to capture visual data in circumstances of indecency or invasion of privacy – where conduct occurred between two change room cubicles and identity was in issue – where accused appealed the findings of a magistrate and the primary judge that the offence had been proved beyond reasonable doubt – whether there was a miscarriage of justice – whether finding was not unreasonable and not supported by the evidence – whether it was open, on the whole of the evidence, to find beyond reasonable doubt that the accused was guilty of the offence charged – where evidence, considered as a whole, was capable of supporting a finding of guilt beyond reasonable doubt – where evidence, considered as a whole, was capable of excluding any alternative hypothesis – where it was open to the magistrate and the primary judge to find offence had been proved beyond reasonable doubt – where there was no miscarriage of justice – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) s 61B(1) Magistrates Court Act 1930 (ACT) s 208(1)(b) Supreme Court Act 1933 (ACT) ss 37O(2), 37O(2)(a)(i), 37O(2)(a)(ii), 37O(2)(a)(iii), 37O(3) |
Cases Cited: | Barca v The Queen (1975) 133 CLR 82 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 |
Parties: | Dane Christian Muench (Appellant) James Christopher McCue (Respondent) |
Representation: | Counsel K Ginges (Appellant) M Jones (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 8 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 12 February 2019 Case Title: Muench v McCue Citation: [2019] ACTSC 20 |
THE COURT:
On 2 November 2016, the appellant, Mr Dane Muench was charged with an offence of attempting to capture visual data in circumstances of indecency or invasion of privacy contrary to subs 61B(1) of the Crimes Act 1900 (ACT). It was alleged that on 26 October 2016, Mr Muench attempted to use his mobile phone to film the Complainant while she was trying on clothes in a change room cubicle in a Kmart store in a shopping centre at Tuggeranong in the Australian Capital Territory.
After a three-day hearing in the Magistrates Court of the Australian Capital Territory, which took place in October 2017 and February 2018, a magistrate found that the offence had been proved. Mr Muench filed a notice of appeal against that finding before a conviction was formally entered and before any sentence was imposed. That appeal was brought pursuant to subs 208(1)(b) of the Magistrates Court Act 1930 (ACT). Such an appeal is an appeal by rehearing by a single judge of the Supreme Court.
Mr Muench’s appeal was unsuccessful. On 12 February 2019, the primary judge found that none of the eight grounds of appeal raised by Mr Muench had been made out. Crucially, her Honour reviewed the evidence which had been before the magistrate and rejected Mr Muench’s contention that the magistrate’s finding that the offence had been proved was unreasonable or not supported by the evidence. Her Honour accordingly dismissed Mr Muench’s appeal.
That was not the end of the matter. On 12 March 2019, Mr Muench filed a notice of appeal in this Court appealing the dismissal of his appeal by the primary judge.
As will be seen, while Mr Muench’s notice of appeal contained a number of grounds, ultimately the critical question raised by the appeal was whether it was open, on the whole of the evidence, to find beyond reasonable doubt that Mr Muench was guilty of the offence with which he had been charged. To address that issue, and the other grounds of appeal raised by Mr Muench, it is necessary for this Court to examine in some detail the evidence that was before the magistrate, together with some evidence which was adduced before the primary judge.
Evidence at the hearing
It is useful to provide an overview of the uncontentious facts and an outline of the critical factual issues before descending into the detail of the evidence.
Overview and key factual issues
At about 4.30 pm on the afternoon of 26 October 2016, the Complainant was shopping in the Kmart store at a shopping centre in Tuggeranong called the Hyperdome. She selected some items of clothing and proceeded to the change rooms to try them on.
The change rooms at Kmart consisted of a number of cubicles on the left and right side of an area which was accessible by both men and women. There was a desk usually attended by a Kmart employee at the entrance to the change room area. Each of the cubicles had a lockable door. The walls or partitions between each cubicle did not go completely to the floor. There was a gap of approximately 15 centimetres between the floor and the bottom of the partition.
On the afternoon in question, the Complainant entered one of the cubicles. As she did so, she saw out of the corner of her eye a man enter the neighbouring cubicle. The Complainant was unable to give any detailed description of that man.
As the Complainant was trying on the clothes she had selected in one of the cubicles, she observed a mobile phone being held under the gap between the floor and the partition between her cubicle and the neighbouring cubicle. The Complainant filmed that occurrence on her mobile phone and said “I’ve got this on camera”. The film taken by the Complainant shows that the person in the neighbouring cubicle at the time was wearing black shoes with the shoelaces untied.
The Complainant then put her clothes back on and left the cubicle. She was upset and distressed. She spoke to Ms Anne Bateup, a Kmart employee who was standing near the entrance to the change room area, and Ms Rebecca Clarke, a customer who was waiting near the entrance to the change room area. She told them what had happened and showed them some of the video footage she had captured on her phone. Another customer, Ms Cassandra Buenen, came out of one of the cubicles at about that time.
Shortly thereafter, Mr Muench exited the cubicle which was next to the cubicle in which the Complainant had undressed and tried on the clothes she had selected; that is, from the cubicle which had been occupied by the person who had filmed or attempted to film the Complainant.
As, or shortly after, Mr Muench exited the cubicle, there was a verbal exchange between Mr Muench and the Complainant. The evidence of what was said during that exchange was contentious. It is addressed later in these reasons. Mr Muench then left the area. Video footage of Mr Muench subsequently leaving the Kmart store showed that he was wearing black shoes. The laces of at least one of his shoes were undone.
The Complainant gave evidence about how long she was in the cubicle and what she saw and heard during the time she was there. That evidence was contentious.
Mr Muench was charged by the police on 2 November 2016. The police did not seize or attempt to seize or inspect Mr Muench’s mobile phone.
In the period between the incident and Mr Muench’s arrest, Mr Muench exchanged text messages with his then partner, Ms Melissa Harrison. The relevance and significance of the content of those text messages was a matter of contention.
Mr Muench did not give evidence at the hearing before the magistrate.
The critical factual issue for determination before the magistrate was whether Mr Muench was the person who held the mobile phone under the partition and filmed, or attempted to film, the Complainant as she was trying on clothes. There was no dispute that Mr Muench had been in the cubicle from which the filming had occurred, at least in the period shortly before the Complainant exited the cubicle she had used. The critical question was whether he was in that cubicle at the time of the filming.
The prosecution case that Mr Muench was in the cubicle from which the filming had occurred at the time the filming occurred was circumstantial. The prosecution contended that the only reasonable inference from the evidence was that Mr Muench was the person in the cubicle next to the Complainant’s cubicle at the time of the filming and that he was therefore the person who did the filming.
It was contended, on Mr Muench’s behalf, however, that there was a reasonable inference consistent with innocence. That inference was that some other person was in the cubicle next to the Complainant’s cubicle when the filming occurred. That other person then left the cubicle and Mr Muench entered it.
The critical question, then, was and is whether the evidence was sufficient to prove beyond reasonable doubt that Mr Muench was the person in the relevant cubicle at the time of the filming and was sufficient to exclude the alternative inference advanced by Mr Muench, or demonstrate that it was not a reasonable inference in the circumstances.
The prosecutor called evidence from five witnesses: the Complainant, Ms Clarke, Ms Buenen, Ms Bateup, Ms Harrison and the informant, Constable Allora Szabo. The prosecutor also tendered video and photographic evidence and some documentary evidence, including copies of the text exchanges between Mr Muench and Ms Harrison. Following is a short summary of the important parts of the evidence of each of the witnesses.
Evidence of the Complainant
As was noted earlier, the Complainant was unable to give any real description of the person she saw entering the neighbouring cubicle other than that the person was a male. Her evidence was that, once in the cubicle she was trying on clothes for “maybe five minutes” before she noticed a black phone moving under the cubicle wall between her cubicle and the cubicle on her left. The camera on the back of the phone under the wall was facing her. She saw the phone go down under the cubicle wall and then back up again on about six or seven occasions.
The Complainant said that at one stage she saw the person’s fingers on the phone. She described the fingers as “Caucasian”, but said that she could not remember “how light it was” and that “[n]othing … stood out”. She also said that at one stage she saw the person’s shoes, which were off his feet.
The Complainant took a video of the phone appearing under the cubicle partition. That video was tendered. The Complainant’s evidence was that she said “I’ve got you on tape” or “I’ve got this on camera” to the person in the neighbouring cubicle. Almost instantly, or seconds later, she “could hear very vaguely him saying, “What do you mean? I didn’t do it”. He sounded “hurried” and “kind of defensive and angry”. The Complainant then changed back into her clothes and walked out of the cubicle.
The Complainant’s evidence, at least initially, was that the period of time between when she stopped videoing and the time that she left the cubicle was “[a] couple of minutes. Two minutes maybe”. The Complainant’s evidence in that regard was challenged in cross-examination. She agreed that she could not state the amount of time with great accuracy and could not give “an exact minute”. When pressed as to whether she could actually give a “proper estimate”, as opposed to a guess, she said “I feel like it would have been five minutes”. She was then reminded that she had earlier said that the period of time was two minutes. It was put to her that “both of them are just guesses or estimates”, to which she replied “[t]hey’re estimates, yes”.
The evidence concerning the period of time between the Complainant videoing the incident in the cubicle and her leaving the cubicle was, and is, important in assessing the alleged alternative inference or hypothesis consistent with innocence. That is because, on that hypothesis, it could only have been during that fairly narrow period that the person who took the video left the cubicle and Mr Muench entered it.
Another important piece of evidence in that context concerned what the Complainant heard, or did not hear, during the time she was in the cubicle. When first asked whether, in the period of time between when she stopped videoing the incident and when she left the cubicle, she was able to hear any noise “from other patrons, footsteps, doors opening and closing”, the Complainant’s answer was “[n]ot that I can remember”. In cross-examination, however, the Complainant gave the following evidence:
You were sufficiently upset before you ever came out of that change cubicle that you can’t say, one way or the other, whether the person who’d been attempting to photograph you had already left by the time you came out, can you?---I’m really confident in saying that I didn’t hear any doors opening next to my cubicle. I made sure to remember to see if he had.
When challenged about the fact that she had not told the police that she had not heard anyone leave the cubicle, the Complainant gave the following evidence:
You never told either policemen that you heard no noises consistent with someone leaving that cubicle, did you?---No, because I didn’t think that was anything in question. I would have – if I heard someone leave it then I would have said something.
After the Complainant left the cubicle, she walked towards the desk at the entry to the change area where staff stand to give customers numbers. There was no staff member at that desk when the Complainant had first gone into the cubicle, but there was a staff member (Ms Bateup) there when she came out of the change room area. The Complainant was crying at the time. She spoke to the staff member and showed her part of the video that she had taken. This could have taken up to a minute. Two other women came out of the change room area (Ms Clarke and Ms Buenen) and asked if she was okay. The Complainant also spoke with them and showed them part of the video. The Complainant did not dispute that another minute may have gone by as she did that. The staff member then went and called for the shopping centre security.
Shortly after the staff member returned and said that security were on their way, a man came out of the cubicle from which she had seen the mobile phone being held under the partition. There was no dispute that Mr Muench was the man who exited that cubicle. The Complainant’s evidence about what Mr Muench said and did as he left the cubicle is of particular importance to one of his grounds of appeal. Her evidence was that he was acting “very aggressive”. When questioned about how she came to form that impression, she gave the following evidence:
Can you just, again, explain that and explain why it is that you formed that opinion that he was behaving or appearing in a certain way?---So when he exited the change room he was walking really fast and kind of looked like he was in a rush. His facial expression was very angry. He looked very annoyed, I guess. He was walking fast and he chucked all of his clothes onto the counter and he kind of – while he was doing that he was looking at me and saying things like – can I say?
Yes?---He was saying, “Why would I fucking do that? How dare you say I did that?” and at this stage I hadn’t said anything to him after the recording. So he was just saying, “Why would I fucking do that?” So he threw his clothes on the counter and then he started storming off towards the exit. He stopped and was looking in his pockets and then he turned back and walked towards the counter where he left all the clothes. He went through the clothes and picked up his wallet which he had left in there and then he stormed off through the exit and that’s the last I saw of him.
Now, you mentioned earlier that when he came out and he approached you, when he began speaking at you - - -?---Yes.
- - - that you hadn’t said anything to him since he’d exited the cubicle?---Yes, that’s right.
Had you heard anyone else say anything to him?---It’s possible that they did but I can’t remember. It’s all a bit of a blur just at that moment. I just remember him kind of yelling at me and I was just crying, yes. I can’t remember exactly if anyone said anything to him.
But you remember that you did not say anything to him beyond what you said when you were inside the change room?---Not that I can remember. I may have said something like, “Yes, you did,” but I can’t remember exactly what I said; I’m sorry.
The Complainant was cross-examined about her recollection of what occurred after Mr Muench emerged from the cubicle. Her evidence was as follows:
Now, just before we even get to there. When you say he was exiting the change room did you see him coming out of the door of that change room, did you?---Yes.
Did you point him out to anyone?---Not verbally that I can remember. It was obvious that it was him because I told them which change room he was in.
And did one of them say anything to him?---Not that I can recall.
It’s possible, isn’t it?---It’s possible, yes.
And you don’t recall, with certainty, whether you spoke to him or not, do you, at that stage?---No.
And whatever happened at that point you’ll agree was perhaps seven minutes after you had spoken the words, “Hey, what are you doing? I have this on tape”?---I can’t say an amount of time. Time wasn’t really – like it wasn’t something that I can remember clearly.
No, I understand that but we’ve been through the exercise of doing our best to put time limits on things, haven’t we?---Yes.
And it could be as much as seven minutes after you’d spoken those words that you saw this young man walk out of the change room?---It could have been.
The seven-minute time estimate that was put to the Complainant appears to have been based on the Complainant’s earlier evidence that the time between her ceasing her video of the incident in the cubicle and her leaving the cubicle may have been up to five minutes, together with her evidence that it may have taken her a minute to speak to the staff member and show her the video and another minute to show the video to the other two women. Later in cross-examination, the following exchange occurred in relation to the Complainant’s evidence of what occurred as Mr Muench left the cubicle:
And the man came out of the cubicle and he was accused by you and the other two girls of having tried to photograph you, wasn’t he?---Yes.
MR SWAN: Objection. I don’t think that was this witness’s evidence.
HIS HONOUR: The witness has answered it, yes, in any event.
MR PAPPAS: And having been accused, he looked you in the face and he said, “That’s not what I was doing. That’s wrong,” or words to that effect, didn’t he?---Yes.
Evidence of Ms Clarke
Ms Clarke was shopping with her cousin, Ms Buenen, on the afternoon of 26 October 2016. At about 5.00 pm, Ms Clarke accompanied Ms Buenen to the change room area. Ms Buenen went into a cubicle to try on some clothes and Ms Clarke waited near the entrance to the change room area. Ms Clarke’s evidence was that she observed that the first two cubicles were occupied at the time because their doors were shut. An “older” female member of staff (Ms Bateup) was in the vicinity of the change room area at the time, though Ms Clarke was unable to say whether the staff member remained there the whole time that Ms Clarke was there.
Ms Clarke’s evidence was that a “short time later” a female came out of the first cubicle. There was no dispute that this female was the Complainant. When questioned as to the amount of time that had elapsed from the time she arrived in the change room area to the time she saw the Complainant come out of the cubicle, Ms Clarke said: “I’d be having a guess but maybe three minutes”. In cross-examination, Ms Clarke agreed that this was her “best estimate”. She agreed that it could have been two minutes and that she was “not sure at all”. She agreed it was a “relatively short period” and added “[j]ust a guess, yes”.
Ms Clarke’s evidence that she was waiting near the entrance for a relatively short period, maybe two or three minutes, before the Complainant came out of the cubicle, was and is of some importance. That is because it effectively cut down the window of time during which, on the alternative scenario advanced on behalf of Mr Muench, the person who took the video could have left the cubicle adjoining the cubicle occupied by the Complainant and Mr Muench could have entered that cubicle. Ms Clarke’s evidence was that from the time she was standing near the entrance to the change room area she could not recall “hearing or seeing anything coming from the vicinity of the change rooms at all”. She did not see Mr Muench go into the cubicle.
Ms Clarke said that after the Complainant came out of the cubicle, she, the Complainant, told the staff member that she had been filmed and that she, Ms Clarke, then walked over and comforted her. The Complainant showed her the video she had taken in the cubicle. She then saw a man come out of the cubicle. There was no dispute that this was Mr Muench. Ms Clarke’s evidence was that the man “looked fairly cranky” and said to the Complainant: “You don’t know what you’re talking about. I haven’t done anything”. He then “put a pile of clothes onto the staff desk and headed towards the front doors”. She described Mr Muench as looking “[s]haky” and “[a]ngry in a way”.
Ms Clarke’s evidence initially was that she did not hear anyone “address” or say anything to Mr Muench prior to the time that he spoke. Somewhat confusingly, however, when it was put to Ms Clarke in cross-examination that “the distressed woman [the Complainant] addressed him [Mr Muench]”, she answered “[y]es, I think so”. Ms Clarke was not questioned as to exactly what “addressed” meant in that context; that is, exactly what the Complainant was supposed to have said to Mr Muench. In re-examination, Ms Clarke said that her best recollection was that Mr Muench said “I don’t know what you’re talking about. I didn’t do anything” and that the Complainant said “I’ve got you on camera”. She did not say that the Complainant said anything to Mr Muench before he spoke.
The evidence of Ms Buenen
Ms Buenen’s evidence was that, on the afternoon of 26 October 2016, she attended the change room area of the Kmart store to try on some clothes. She was with Ms Clarke. When she arrived in the change room area she had to ask a staff member to unlock a cubicle door for her. The other doors were closed. She was in the cubicle for a “maximum of five minutes” before she came out to show Ms Clarke what she was wearing.
When Ms Buenen came out of the cubicle she noticed that Ms Clarke was comforting a young woman [the Complainant] who was upset. At that point, she was “confronted” by a male who pushed past her. He “seemed like he was going back into the change room”. She was at the entrance of the cubicle that she was coming out of at the time, which was the first change room on the left. The man said something like: “Get the fuck out of the way” and was “[v]ery aggressive”. She was not sure whether anyone said anything to the man. There was again no dispute that the man who spoke to Ms Buenen was Mr Muench.
In cross-examination, Ms Buenen said that when she “eventually” approached the desk at the entrance to the change room area, the man also approached the desk and said “I didn’t fucking do anything” and then retrieved something from the desk. He then left the area. In answer to questions asked by the magistrate, Ms Buenen confirmed that the sequence of events was that she saw the man [Mr Muench] leave the cubicle and then push past her to re-enter the cubicle he had come out of, at which point he spoke to her, and then approached the desk.
Ms Buenen’s evidence was that she did not hear the distressed woman [the Complainant] say anything to the man [Mr Muench]. She said that she did recall the Complainant say that she had filmed herself being filmed, though she was not sure who it was the Complainant said those words to. Nor was she able to say when she heard the Complainant say those words. She did not recall hearing “any other words spoken towards the male”.
The evidence of Ms Bateup
Ms Bateup was an employee of Kmart who was assigned to monitor the change rooms. She was the only one assigned to the change rooms at the time. She was “mostly” positioned at the desk at the entrance to the change room area when she performed her duties, but she did move away from it from time to time to perform other tasks.
Ms Bateup’s evidence was that shortly before 5.00 pm on 26 October 2016, she saw a woman [the Complainant] go into the first cubicle. She then saw a man go into the second cubicle. She did not recall any of the features of the man she saw go into the cubicle, though in cross-examination she suggested that the man was wearing a black t-shirt and beige pants. That description was consistent with the clothes that were worn by Mr Muench on the afternoon in question. Ms Bateup said that there was a gap of a “few seconds” between the Complainant going into the cubicle and the man going into the neighbouring cubicle.
Ms Bateup said that she also opened the door to a cubicle for another female [Ms Buenen]. Her evidence was that she was tidying up around the desk at the time that those events occurred, though she agreed that she may have left the desk at some stage to return some lingerie or handbags to the nearby racks. On the whole, it would be fair to say that the evidence as to how long Ms Bateup may have been away from her desk was unclear.
Not long after Ms Bateup had seen the Complainant enter the cubicle, she heard someone say “[w]e need a manager” and she then saw two females together, “one very distressed [the Complainant] and one comforting [Ms Clarke]”. According to Ms Bateup, the female who was comforting the young female was the female that she had let into the fitting room. Ms Bateup said that she was around the “desk station” at that time. Ms Bateup had some difficulty recalling or estimating the period between the time the man entered the cubicle and the time she heard someone say “[w]e need a manager”. She ultimately agreed that it was between two and four minutes, though probably closer to four than two. She said that it was not as long as 10 minutes.
Ms Bateup’s evidence was that she went up to the two females and asked what was wrong and the young female said “[s]omeone was filming me”. With that, Ms Bateup immediately went to the phone and tried to call a manager. She then returned to the two women.
Ms Bateup’s evidence of what she saw next was as follows:
So what did you do next?---Once I returned to the two women, at that stage the door to the second fitting room opened and a young man came out and carried – he was carrying three pairs of shorts and as he reached level with the two women he turned and he said, “What’s up with you?” The young one said, “You were filming me,” and he said, “Don’t be stupid,” and then proceeded to walk to the main aisle and head for the front door.
Now, that male, had you seen that male prior to that moment?---Only when he was going in. I didn’t get a good look at him. I got a look. I just got a look at a male going into the second change room.
And from the time that you saw that first male, that you didn’t get a good look at from what you said earlier, to the time that you saw this second male come out had you seen any other males around the area of the change room?---No.
And to your best recollection had you left your station throughout that period, from the time that you saw that male coming towards the change room to the time you saw the male coming out of the change room?---I don’t think so but I’m not absolutely certain that I didn’t go to put something away.
Ms Bateup said that nobody had said anything to the man before he spoke.
When asked to give an estimation of the time between her hearing someone say “[w]e need a manager” and the man coming out of the cubicle, Ms Bateup said: “[i]t probably seemed longer but it was only a matter of a minute or so”. In cross-examination, she appeared to say that it may have been less than a minute and could have been as short a period as 30 seconds.
In cross-examination, Ms Bateup said that there was nothing outstanding about the man’s demeanour and that he was not in a hurry. He was walking at a normal pace.
The evidence of Ms Harrison
The oral evidence of Ms Harrison was lengthy but ultimately of little or no significance. Ms Harrison became aware that the police had issued a photograph of someone who they suspected may have filmed a woman in the Kmart change rooms. That photograph was a photograph of Mr Muench. Ms Harrison was Mr Muench’s partner at the time. The prosecutor tendered a print out of some text messages between Ms Harrison and Mr Muench after Ms Harrison became aware that Mr Muench was a suspect.
The content of the text messages will be considered later in the context of one of the grounds of appeal. It suffices at this point to note that on just about any view the text messages had, and have, little, if any, evidentiary value and were, and are, deserving of little weight. That certainly appeared to be the view of the magistrate, though the primary judge appears to have taken a different view.
Other evidence – Video and CCTV footage and photographs
The video taken by the Complainant was tendered. As well as showing the mobile phone being held under the partition between the two cubicles, the video footage shows that the person in the cubicle from which the mobile phone emanates was wearing very dark or black shoes, though they were not on his feet at the time. The audio on the video footage records the Complainant saying “Hey, what are you doing? I have this on tape”.
Close circuit television footage from the Tuggeranong Hyperdome shows Mr Muench entering Kmart not long before the incident in the change rooms. He appears to be wearing black or very dark shoes, beige pants and a dark or black t-shirt. He is also seen to have a mobile phone. Later footage shows Mr Muench leaving the store wearing black or dark shoes with the shoelaces of one of his shoes undone.
The evidence of Constable Szabo
Constable Szabo gave evidence concerning the investigation, including obtaining the CCTV footage and other similar investigatory steps. It is unnecessary to summarise her evidence in that regard.
In cross-examination, Constable Szabo confirmed that she became aware of a complaint made by another woman in late September 2016 that a person of Indian or Sri Lankan appearance had attempted to use a mobile phone to take an image of her in an adjoining change room at the same store. Constable Szabo also agreed in cross-examination that she was aware that Mr Muench’s legal representative had requested a copy of the complete or unedited CCTV footage from the shopping centre and that nothing was done in that regard. She was also aware that the police did not seize Mr Muench’s mobile phone when he was eventually charged.
Findings by the Magistrate
Before the magistrate, the prosecutor submitted that nine features or aspects of the evidence supported the inference that it was Mr Muench who used a phone to video the Complainant from the adjoining cubicle. Those features or aspects of the evidence, which were also said to exclude the alternative hypothesis raised by Mr Muench in his submissions, were identified in the following terms in the magistrate’s Reasons (at [15]):
(a)No other male was sighted by any of the witnesses in or around the change room area at around that time;
(b)[The Complainant] noted that the male who entered as she did was Caucasian and of average build; being a description not inconsistent with [Mr Muench’s] appearance;
(c)[The Complainant] noted that the skin tone of the fingertips she observed in the change room was light indicating the holder was Caucasian;
(d)Ms Bateup observed a male enter the change rooms ‘seconds’ after [the Complainant] and noted he was wearing a black t-shirt and beige pants. There is no evidence indicating she left her station after returning after making these observations;
(e)The shoes on the footage captured by [the Complainant] are not inconsistent in appearance with those being worn by [Mr Muench] prior to and following the commission of the alleged offence;
(f)The shoes in the footage captured by [the Complainant] have black untied laces. Following the alleged offence [Mr Muench] is seen leaving with black untied shoelaces of a length consistent with those captured in [the Complainant’s] footage;
(g)[The Complainant] did not hear any noises indicating the person in the adjoining cubicle had left after she alerted them that she ‘had [them] on tape’. Furthermore, she did not hear any noises indicating that another person had then, following that, entered that same cubicle;
(h)Neither Ms Clarke nor Ms Bateup observed anyone leave the change rooms prior to [the Complainant] exiting her cubicle as they stood outside;
(i)Despite there being no evidence [the Complainant] or anyone else audibly identified that she had been in the first cubicle on the right side, or that the man she suspected of filming her was in the second cubicle on the right side, the evidence supports that [Mr Muench] came out and addressed the group without having been addressed by any of the women first. Ms Clarke and [the Complainant] recalled that he made denials, Ms Bateup that he asked ‘what’s up with you?’ In addition multiple witnesses made note of the nature of [Mr Muench’s] demeanour as he exited the cubicle;
The magistrate gave little weight to the Complainant’s description of the man who entered the cubicle because she only fleetingly or peripherally observed the man. The magistrate also reasoned that the Complainant’s recollection may have been influenced by her subsequent observations of Mr Muench: Reasons at [18].
The magistrate also, perhaps not surprisingly, gave no weight to the Complainant’s observations concerning the fingertips of the person holding the phone. His Honour was not persuaded that a conclusion that a person was Caucasian could be drawn from the skin tone of fingertips alone: Reasons at [19].
As for Ms Bateup’s evidence that the man she saw entering the cubicle was wearing beige pants and a black t-shirt, the magistrate found that while Ms Bateup was an honest witness, he did not accept that her description of the person entering the change room was reliable: Reasons at [20].
As for the video of the shoes of the person in the cubicle as compared to the CCTV footage showing Mr Muench, the magistrate observed that what could be seen of Mr Muench’s footwear on the store CCTV footage was “not so clear” and that the shoes were, in any event, “somewhat nondescript”: Reasons at [22]. Similarly, while the CCTV footage showed Mr Muench’s shoe to be unlaced as he left the store, and the length of the untied shoe was consistent with the laces shown on the video captured by the Complainant, “there is nothing in particular about the length of the lace which distinguishes it from others in common use”: Reasons at [23].
Importantly, the magistrate rejected the apparent suggestion that Mr Muench’s statements and demeanour when he exited the cubicle showed a consciousness of guilt. His Honour could not “exclude the possibility that what was said by [Mr Muench] on leaving his cubicle was said either in response to some allegation made directly to him when he was outside or in response to what he had heard said outside while in the cubicle”: Reasons at [25]. Equally, the descriptions of Mr Muench’s demeanour were “somewhat equivocal” and were “as consistent with consciousness of wrongdoing as they would be with an innocent person’s reaction to having been wrongly accused”: Reasons at [26].
The three aspects of the evidence that the magistrate ultimately considered to be of particular significance were: first, the evidence that no other male was sighted around the change room area at the relevant time; second, that neither Ms Clarke nor Ms Bateup observed anyone leave the change room prior to the Complainant having exited the cubicle; and third, the fact that the Complainant did not hear anyone leaving or entering the neighbouring cubicle in the short period after she made the person in the next cubicle aware that she had videoed their activities.
As for the first two aspects of the evidence, the magistrate ultimately concluded that he could not “exclude the possibility that there was a window of time (albeit likely to have been short) within which some other person could have exited the change room and [Mr Muench] entered it, before Ms Bateup (and Ms Clarke) took up their positions adjacent to the change rooms”: Reasons at [41] and [43]. The main reasons that the magistrate was unable to exclude that small window were: first, that he did not accept the reliability of Ms Bateup’s estimate of the time between her seeing the man and woman enter the respective cubicles and her being alerted to the incident; and second, the absence of reliable evidence about the period of time that Ms Bateup was absent from her desk station.
As for the Complainant’s evidence that she did not hear anyone leave or enter the adjoining cubicle, it is clear that the magistrate considered that evidence to be particularly important and highly persuasive viewed in the context of the evidence as a whole: Reasons at [45]-[51]. It is important to emphasise, in this context, having regard to one of the grounds of appeal, that one of the reasons the magistrate considered the evidence to be compelling was that he inferred from the layout of the cubicles, as evidenced in the photographs and images in evidence, that “sounds emanating from an adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear”: Reasons at [45] and [51].
The magistrate concluded as follows in relation to the circumstantial case and the reasonableness of the alternative hypothesis proffered by Mr Muench in his submissions (at Reasons [53]):
I have already observed that the evidence is not to be looked at in a piecemeal fashion. Having regard to what is the whole of the evidence in the prosecution case I am satisfied that the only rational inference is that it was the Defendant [Mr Muench] who was present in the cubicle and who filmed the Complainant from under it. It follows that I am not persuaded that the Defence hypothesis is a reasonable one.
The initial appeal and findings of the primary judge
Mr Muench’s notice of appeal from the magistrate’s order that the offence had been proven raised eight grounds of appeal, though one of those grounds (ground 5) was not pressed. A further ground (ground 9) was raised during oral argument. The grounds of appeal can conveniently be grouped into four categories.
The first category, comprising grounds 1 and 2, effectively challenged the magistrate’s ultimate finding on the basis that it was unreasonable or not supported by the evidence.
The second category, comprising grounds 3, 4, 6 and 7, challenged, in various different ways, the magistrate’s findings to the effect that the Complainant would have, but did not, hear anyone leave and enter the adjoining cubicle in the short period after she alerted the person in that cubicle to the fact that she had videoed them trying to video her.
The third category, comprising ground 8, was that the magistrate gave no or limited weight to the evidence of “similar criminal conduct upon an occasion close in time to the alleged offence which he accepted was not the conduct of [Mr Muench]”.
The fourth category, ground 9, was a complaint about one passage of the magistrate’s Reasons which characterised the prosecution’s circumstantial case as being “strands in a cable” rather than “links in a chain”.
The primary judge rejected each of the grounds of appeal.
Grounds 3, 4, 6 and 7 – Sounds from adjoining cubicle
Mr Muench argued that the magistrate erred in making findings concerning the capacity to hear footsteps or door movements in an adjoining cubicle because: first, those findings were not the subject of argument; second, there was sworn evidence on the voir dire that “it was hard to hear because of the separation of the cubicles”; third, there was no evidence from Ms Bateup about the ability to hear sounds emanating from cubicles and no evidence from the Complainant about her hearing abilities; fourth, there was insufficient evidence to support those findings; and fifth, his Honour erroneously appeared to take judicial notice of the design and layout of the cubicles.
The primary judge rejected each of those arguments.
As for the first argument, her Honour found that the prosecutor fairly raised arguments concerning the fact that the cubicles were such that the Complainant could be expected to have heard someone leaving and entering the adjoining cubicle if that had happened, and that her evidence was that she did not hear any such sounds: Judgment at [44]. Mr Muench, through his representatives, was given a fair opportunity to respond to those arguments. The fact that they did not do so did not mean that there was any unfair prejudice or practical injustice: Judgment at [48].
As for the second argument, the primary judge found that the appellant’s judgments mischaracterised and took the evidence given by the Complainant’s evidence in the voir dire out of context. Her evidence was specifically in relation to the difficulty she had hearing the exact words spoken by the person in the adjoining cubicle; that it was difficult to make out those words: Judgment at [56]. As for the third argument, concerning the absence of evidence, the primary judge held that it was unnecessary for the prosecutor to call any expert evidence, from Ms Bateup or anyone else, about the capacity of sound to travel between cubicles and that it was not at any point put to the Complainant that she had any hearing difficulties: Judgment at [63]-[64].
It is plain that the primary judge also rejected the fourth argument to the effect that there was insufficient evidence to support the findings made by the magistrate. As for the fifth argument, the primary judge held that the argument was misconceived because the magistrate’s findings did not take judicial notice of anything: Judgment at [69]. Rather, the magistrate drew inferences from evidence concerning the layout and design of the change room area: Judgment at [70].
Ground 8 – Evidence concerning another complaint
Mr Muench argued that the magistrate failed to consider the possibility, reasonably open on the evidence, that a person, who it was accepted was not Mr Muench, who had previously engaged in similar conduct, was the person who attempted to video the Complainant.
The magistrate had noted the argument concerning the other person and indicated that it did not affect his conclusion: Reasons at [55]. The primary judge held that the magistrate was entitled to deal with the argument succinctly because the totality of the evidence excluded the possibility that a person other than Mr Muench was the person in the change room next to the Complainant: Judgment at [82].
Ground 9 – Shepherd direction
Mr Muench argued that the Complainant’s evidence that she did not hear anyone leave or enter the neighbouring cubicle in the minutes after she was filmed was a case of “links in the chain” in the prosecutor’s circumstantial case; an intermediate fact which needed to be proved beyond reasonable doubt before he could be found guilty. It was submitted on that basis that the magistrate should have given himself a direction in accordance with Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
The primary judge noted that Mr Muench had not put that argument to the magistrate: Judgment at [85]. In any event, the primary judge was not persuaded that the Complainant’s evidence about not hearing anyone leave or enter the cubicle was an intermediate fact which needed to be proved beyond reasonable doubt; rather, it was “but one of a number of separate facts of varying degrees of probative force”: Judgment at [91].
Grounds 1 and 2 – Unreasonable verdict
Mr Muench argued that, upon the whole of the evidence, it was not open to the magistrate, as the tribunal of fact, to be satisfied beyond reasonable doubt that he had committed the offence. It was submitted, on that basis, that the magistrate’s finding that the offence had been proved was unreasonable.
The primary judge reviewed the whole of the evidence and concluded that she did not “consider there to be a reasonable doubt about the guilt of [Mr Muench]” and did “not consider there was an alternative rational hypothesis inconsistent with guilt”: Judgment at [107].
Her Honour reasoned that the “various strands of evidence combine to leave me in no doubt that the appellant [Mr Muench] was the person who held the mobile phone under the cubicle partition and therefore committed the offence”: Judgment at [105]. According to her Honour, the alternative hypothesis that “some other mystery person” filmed the Complainant from the neighbouring cubicle and that Mr Muench later innocently entered that cubicle in the minutes before the Complainant emerged from it, was “mere conjecture” or “fanciful”: Judgment at [107]. A fair reading of the primary judge’s reasons would suggest that, like the magistrate, her Honour’s rejection of the alternative hypothesis was primarily based on the fact that no witness saw anyone leave the neighbouring cubicle in the narrow “window” of time when that could have occurred and, perhaps more significantly, the Complainant’s evidence that she did not hear anyone leave or enter the neighbouring cubicle during that brief period.
Two aspects of the primary judge’s findings concerning grounds 1 and 2 should be noted.
First, in considering those grounds, it is clear that her Honour also had regard to fresh evidence that was tendered on the appeal. That fresh evidence was the Complainant’s evidence given during a voir dire before the magistrate in relation to the admissibility of supposed voice identification evidence. While her Honour did not specifically refer to that evidence in the context of appeal grounds 1 and 2, it was specifically referred to in the context of grounds 4 and 6: see Judgment at [53]-[60].
Second, it would appear that the primary judge, unlike the magistrate, found that the evidence concerning Mr Muench’s “aggressive manner and immediate denials upon leaving the cubicle” gave rise to “the inference of a guilty conscience”: Judgment at [104(a)] and [105]. It is equally clear that her Honour considered that certain text messages that Mr Muench sent Ms Harrison gave rise to an inference of “an admission of involvement”: Judgment at [104(c)] and [105]. That is of some significance because, as will be seen, Mr Muench argues, in support of his appeal to this Court, that her Honour erred in making those findings. It should be emphasised in this context, however, that the primary judge’s findings concerning consciousness of guilt and admissions of involvement did not appear to be matters that were afforded any significant weight.
Grounds of appeal
Mr Muench’s notice of appeal includes the following five grounds of appeal:
1.The learned presiding Judge erred in making findings that alleged post-offence conduct amounted to consciousness of guilt or admission of involvement, in particular that her Honour:
(a)failed properly to apply the directions required when making such findings;
(b)failed to consider other rationally available inferences open on the evidence inconsistent with guilt; and
(c)made such findings when there were equally open inferences inconsistent with guilt.
2.The verdict was unreasonable or not supported by the evidence.
3.The presiding Judge erred in finding, on the whole of the evidence, the only rational inference available was that it was the Appellant who committed the offence against the complainant.
4.The presiding Judge erred in giving no or inadequate weight to the evidence:
(a)Of similar criminal conduct upon an occasion close in time to the alleged offence which was not of the Appellant;
(b)Of the Appellant’s good character, immediate denials and willingness to assist authorities by participating in an identification parade; and
(c)That investigating police did not seize or analyse the Appellant’s mobile phone nor did they provide the full CCTV footage from K-Mart of all relevant times.
It may be observed that none of the grounds of appeal in the Court involve or include the contention that the primary judge erred in determining, adversely to Mr Muench, the grounds of appeal that were before the primary judge which asserted specific errors on the part of the magistrate who heard the case against Mr Muench at first instance. Rather, Mr Muench’s challenge to the decision of the primary judge is essentially a challenge to her Honour’s finding that it was open to the magistrate to be satisfied beyond reasonable doubt about the guilt of Mr Muench.
It is clear that the primary judge reviewed the whole of the evidence which was before the magistrate, together with the fresh evidence. Her Honour concluded that she did not have a reasonable doubt about Mr Muench’s guilt. The grounds of appeal in this Court allege, in effect, that her Honour erred in various different ways in arriving at her conclusion that she did not have a reasonable doubt about Mr Muench’s guilt. While it will be necessary to consider various aspects of the primary judge’s reasoning, ultimately the critical question for the Court is whether it was open to the primary judge to be satisfied beyond reasonable doubt of Mr Muench’s guilt. That requires the Court to review all the evidence, including the fresh evidence, to determine whether it has a reasonable doubt about Mr Muench’s guilt.
It should perhaps be noted, in this context, that the respondent, who was the prosecutor in the court below, contended that it was not open to Mr Muench to contend, on appeal, that the finding of guilt by the magistrate, or the primary judge, was unreasonable or not open on the evidence. That was said to be because subs 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT), which applies to an “appeal against conviction”, refers only to a “verdict of the jury” being set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence”. The prosecutor submitted that there was no verdict of a jury in this case, so subs 37O(2)(a)(i) could not apply. Mr Muench submitted, in reply, that subs 37O(2)(a)(i) applies to a trial by judge alone.
The submissions of both the prosecutor and Mr Muench misconceived the nature of this appeal. It is not an appeal against conviction. The primary judge did not convict Mr Muench. The only order made by the primary judge was to dismiss the appeal. The appeal before the primary judge was an appeal against the magistrate’s finding that the offence with which Mr Muench had been charged had been proved beyond reasonable doubt. The question for this Court is whether the primary judge erred in dismissing the appeal from that finding. While that includes considering whether her Honour erred in concluding that the finding by the magistrate was not unreasonable or unsupported by the evidence, it does not follow that the appeal to this Court is an appeal against conviction for the purposes of subs 37O(2) of the Supreme Court Act.
In any event, the debate concerning subs 37O(2)(a)(i) is a somewhat arid or academic debate. That is because, even if subs 37O(2) is applicable to this appeal because it is an appeal against conviction, subss 37O(2)(a)(ii) and (iii) provide that the Court may allow the appeal if it considers that “the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law” or “on any other ground there was a miscarriage of justice”. Those grounds are sufficiently wide to include Mr Muench’s primary argument that the primary judge’s finding that the offence had been proved beyond reasonable doubt was unreasonable and not supported by the evidence. It should also be emphasised that if this appeal can be characterised as an appeal against conviction, subs 37O(3) of the Supreme Court Act provides that the Court may dismiss an appeal against conviction if it considers that the point raised by the appeal might be decided in the favour of the appellant, but “no substantial miscarriage of justice has actually occurred”.
Ground 1 – Consciousness of guilt and admission of involvement
Mr Muench contended that the primary judge erred in finding, in effect, that his words and demeanour upon leaving the cubicle supported an inference that he had a guilty conscience and that the text messages Mr Muench sent to his then partner in the days following the incident amounted to an “admission of involvement”. In Mr Muench’s submission, the primary judge did not consider, and direct herself in accordance with, the relevant principles that apply to “post-offence conduct”. Those principles, in short terms, require consideration to be given to alternative reasons why the accused person may have said or acted in the way they did. An inference of consciousness of guilt or implied admission should only be drawn if the tribunal of fact is satisfied that there is no explanation for the conduct other than consciousness of guilt: R v Perera [1982] VR 901 at 910; R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 at [20]; R v Melrose [1989] 1 Qd R 572 at 579; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210-211.
Mr Muench also submitted there were alternative rationally available inferences about why he said and acted as he did when he left the cubicle. In his submission, his supposedly aggressive manner and immediate denials could equally be explained by the fact that he was reacting to what he considered to be false accusations about filming the Complainant which were made after he exited the cubicle. In his submission, the evidence as to whether or not he had been accused of filming the Complainant before or after he left the cubicle was, at best, equivocal.
As for the text message, in Mr Muench’s submission, none of the text messages amounted to any admission of guilt or “involvement”.
The prosecutor conceded that the primary judge did not explicitly refer to the “relevant directions” in the judgment, but contended that it was implicit in her Honour’s reasons that “regard was taken of the direction”. The prosecutor also conceded, in oral submissions, that there was “some equivocation” in the evidence as to whether or not Mr Muench had been accused of filming the Complainant after he left the cubicle but before he reacted angrily.
There is merit in Mr Muench’s criticisms of the primary judge’s drawing of inferences of “guilty conscience” and “admission of involvement”. There is nothing to suggest that the primary judge gave consideration to, or directed herself according to, the applicable principles. There is nothing implicit in her Honour’s reasons to suggest that any consideration was given to the appropriate directions or the availability of other inferences. In all the circumstances, it is at best doubtful that it was open to the primary judge to draw the inferences.
100. It will be recalled that the magistrate declined to infer a guilty conscience from the evidence concerning Mr Muench’s actions immediately after he left the cubicle. That was not only because the evidence concerning Mr Muench’s demeanour was somewhat equivocal, but also because he could not exclude that Mr Muench’s words or actions were in response to an allegation that was put to him after he emerged from the cubicle. If that were so, it would be equally consistent with an innocent person’s denial of wrongdoing. The primary judge must be taken to have been aware of the magistrate’s findings in that regard. It is surprising, in those circumstances, that her Honour did not address those findings or explain why or how she had arrived at different findings.
101. The primary judge’s reasoning in respect of this issue is also very brief. Her Honour does not address the evidence that is said to support the inference of consciousness of guilt in any detail. Nor does her Honour give any consideration to possible alternative explanations for Mr Muench’s words or demeanour. It cannot be accepted, in those circumstances, that her Honour had given any consideration to, or directed herself in accordance with, the relevant principles.
102. Perhaps more significantly, when careful attention is given to the evidence, it is not possible to be satisfied that the inference of consciousness of guilt was the only reasonable inference and that there were no other innocent explanations for Mr Muench’s words and demeanour. As the prosecutor properly conceded, the evidence as to whether or not Mr Muench was accused of filming the Complainant only after he left the cubicle was, at best, equivocal. There was certainly some evidence to suggest that he was accused of that conduct after he left the cubicle. If that were so, his angry denial and reaction could equally be taken to be a response to that accusation, as opposed to a consciousness of guilt. The magistrate was right to so conclude.
103. As for the text messages, when read in context, the text sent by Mr Muench which included the words “it wasn’t like that” cannot reasonably or rationally be considered to be an admission of involvement or guilt. Indeed, it could equally be seen to be a denial. As for the text message which included the word “sick”, it would appear that this was a text sent by Mr Muench’s partner, not Mr Muench himself. It could not, therefore, sensibly be considered to be an admission of involvement, let alone guilt. Even if it was in a text sent by Mr Muench, it is difficult to see how it would amount to an admission of involvement. The primary judge did not explain how she arrived at the conclusion that any of the text messages supported an inference or finding of an admission of involvement.
104. There would also appear to be an element of circular reasoning in the primary judge’s findings concerning these inferences. Her Honour appears to reason that the inferences should be drawn “in light of the other evidence”. It is not entirely clear what her Honour meant by this. If, however, the reasoning was that the inferences should be drawn because the “other evidence” established that Mr Muench was the person responsible for the filming, there is an element of circularity involved. It would be somewhat erroneous, if not fairly pointless, to reason that because the evidence established that Mr Muench was guilty, it must follow that his post-offence conduct showed a consciousness of guilt.
105. In any event, for the reasons already given, it must be concluded that the primary judge erred in drawing the inferences of consciousness of guilt and admission of involvement.
106. It does not follow, however, that the appeal should be allowed and the magistrate’s finding set aside. Indeed, the appeal should only be allowed if it can be concluded that, putting the erroneous drawing of those inferences by the primary judge to one side, the finding that the offence had been proved beyond reasonable doubt was unreasonable and not supported by the evidence as a whole. If it was open on the evidence to find the offence proved beyond reasonable doubt, the fact that the primary judge erroneously drew the inferences of consciousness of guilt and admission of involvement is essentially irrelevant. There would, in those circumstances, be no miscarriage of justice.
107. It should also be emphasised in this context that there was no suggestion that the evidence of Mr Muench’s post-offence conduct was wrongly admitted. There was no objection to that evidence at the hearing before the magistrate and Mr Muench did not argue before the primary judge, or on appeal to this Court, that the evidence should have been excluded. It would also appear that, while the primary judge was prepared to draw the inferences from the post-offence conduct, there is nothing in her Honour’s reasons to suggest that she gave those inferences much weight. Indeed, a fair reading of her Honour’s reasons for finding that Mr Muench’s guilt had been proved beyond reasonable doubt suggests that her Honour relied on other matters and would have made a finding of guilt even if the consciousness of guilt inferences were not available.
Grounds 2, 3 and 4 – Was the finding of guilt reasonable and supported by the evidence?
108. It is convenient to consider grounds 2, 3 and 4 together. Ground 3 is, in effect, another way of putting the contention that the finding of guilt was unreasonable and not supported by the evidence. As for ground 4, the contention that certain evidence was given insufficient weight would only be of significance if it could be demonstrated that those items of evidence should have given rise to a reasonable doubt.
109. The approach that the Court should take when faced with an appeal on the ground that the verdict of the jury in a criminal proceeding was unreasonable is well settled. The “ultimate question for the appeal court ‘must always be whether the [appeal] 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’”: The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 at [66], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494-495. The same principles must apply when considering whether a finding of guilt by a magistrate or judge, sitting alone and without a jury, was unreasonable.
110. The setting aside of a jury’s verdict on the ground that it is unreasonable is a “serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”: Baden-Clay at [65]. A court of criminal appeal is “not to substitute trial by an appeal court for trial by jury”: Baden- Clay at [66]. The same principles must again apply when considering whether a finding of guilt by a magistrate or judge, sitting alone and without a jury, was unreasonable and not supported by the evidence.
111. The case against Mr Muench was circumstantial. The principles that are to be applied in cases that turn upon circumstantial evidence are equally well settled. A jury cannot return a verdict of guilty in such a case unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; Barca v The Queen (1975) 133 CLR 82 at 104. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his (or her) guilt should be a rational inference, but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252; Barca at 104; Baden-Clay at [46]. For an inference to be reasonable, it “must rest upon something more than mere conjecture” and the “bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”: Peacock at 661; Barca at 104; Baden-Clay at [47]. The same principles apply where the tribunal of fact is a magistrate or judge sitting without a jury.
112. The critical question in this matter then is whether the evidence which was before the magistrate, together with the fresh evidence tendered before the primary judge, was capable of proving, beyond reasonable doubt, that it was Mr Muench who filmed the Complainant from the neighbouring cubicle. Was that the only rational inference able to be drawn from the evidence, or was there an inference consistent with innocence reasonably open on the evidence? The alternative inference consistent with innocence which was proffered by Mr Muench in his submissions was that another person videoed the Complainant, then shortly afterwards left the cubicle. Mr Muench then entered the cubicle in the short space of time before the Complainant exited the cubicle. The critical question, then, is whether that inference was reasonable, or whether it was “mere conjecture” or a “bare possibility of innocence”?
113. The parties both accepted that to answer those questions this Court was required to review the evidence in its entirety, including the fresh evidence relied on by Mr Muench before the primary judge. Having reviewed the evidence in its entirety, the Court is of the view that it was open to both the magistrate and the primary judge to be satisfied beyond reasonable doubt that Mr Muench was guilty of the offence with which he had been charged. Having regard to the whole of the evidence, there was no inference consistent with innocence which was reasonably open on the evidence. The inference or hypothesis proffered by Mr Muench was not reasonably open on the evidence and amounted to nothing more than mere conjecture.
114. The following features of the evidence compel the conclusion that the finding that Mr Muench was guilty of the offence was not unreasonable and was supported by the evidence.
115. First, on any view the window of time during which it was suggested that the person who took the video could have left the cubicle before Mr Muench then innocently entered it was on any view a very small window. The Complainant’s estimate of the time between her speaking to the person who was taking the video and the time she left the cubicle was initially two minutes, though she conceded in cross-examination that it could have been as much as five minutes. The available window was narrowed further by the evidence of Ms Bateup and Ms Clarke. Ms Clarke was waiting near the entrance to the change room area during the period the Complainant was in the cubicle. She estimated that the time she was waiting there was about two or three minutes. She did not see any man enter the cubicle neighbouring the Complainant’s cubicle during that time. Thus, even if the Complainant’s upper estimate of five minutes is accepted, the window could have been as little as two minutes. Ms Bateup was also at her desk in the vicinity of the entrance to the change room area for at least part of the window of time.
116. While, for the reasons given by the magistrate, Ms Bateup’s estimates concerning time may not have been particularly reliable, the evidence of the Complainant and Ms Clarke alone suggested that the available window during which the offender may have left and Mr Muench entered the window could have been no more than a few minutes.
117. Second, none of the witnesses who were present in the change room area at the relevant time saw any other male person enter or exit the change room area. While Ms Clarke and Ms Bateup may not have been present at the entrance to the change room area throughout the entire window of time, they certainly saw no other man in the vicinity of the area while they were there. Nor was there any other evidence of a man other than Mr Muench being seen in the area. The suggested presence of such a man was mere conjecture.
118. Third, despite Mr Muench’s efforts to discount or impugn the Complainant’s evidence that she did not hear anyone exit or enter the neighbouring cubicle in the minutes after she called out the person who had taken the video of her, that evidence was compelling. It was reasonable and logical and essentially not challenged. It is, at the very least, difficult to accept that the Complainant would not have heard a person leaving and another person re-entering the neighbouring cubicle during that brief period, particularly as the person entering the cubicle would have no particular reason to do so quietly. There was no evidence to suggest that the Complainant had any hearing difficulties, or would have found it difficult to hear anything from the neighbouring cubicle. She had every reason to listen carefully to what was going on in the neighbouring cubicle.
119. The evidence which was originally admitted on the voir dire before the magistrate, and received as fresh evidence on the appeal before the primary judge, established no more than that the Complainant found it difficult to make out the words spoken by the person in the neighbouring cubicle. The inference which the magistrate drew from the photographs and video which showed the layout of the cubicles, which was that “sounds emanating from an adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear” was an inference which was plainly open on the evidence.
120. Fourth, the photographic and video evidence concerning the footwear worn by the person in the adjoining cubicle at the time the video was taken and the footwear worn by Mr Muench on the afternoon in question may not have been decisive or even particularly compelling if considered alone. It was, however, capable of establishing that Mr Muench’s footwear was certainly not inconsistent with the footwear worn by the person who took the video. It was evidence which was deserving of some weight when considered along with all the other evidence.
121. Fifth, for the reasons given later in the context of appeal ground four, the three items of evidence relied on by Mr Muench were deserving of little or no weight.
122. There was ultimately no evidence capable of supporting the alternative inference proffered by Mr Muench. No male other than Mr Muench was seen near the relevant cubicles during the relevant time. The alternative inference in fact involved nothing more than mere conjecture. Perhaps more significantly, the narrowness of the relevant window of time, and the compelling evidence of the Complainant that she did not hear anyone leaving or re-entering the neighbouring cubicle during that time meant that the alternative inference was at best highly improbable and implausible.
123. Mr Muench’s fourth ground of appeal was that the primary judge gave insufficient weight to three items of evidence: evidence of supposedly similar criminal conduct engaged in by some person other than him on an earlier occasion; evidence of his good character and offers to cooperate with or assist the police; and evidence that the police did not seize his mobile phone, or provide his legal advisers with unedited Kmart CCTV footage of the relevant day. Each of the three items of evidence comprised evidence elicited from Constable Szabo in cross-examination.
124. When closely analysed, none of those items of evidence relied on by Mr Muench were deserving of any, or any material weight. Whether considered individually or together, none of them was capable of casting any doubt on Mr Muench’s guilt.
125. In relation to the earlier incident, Constable Szabo agreed in cross-examination that she became aware of a response to an “AFP Facebook request to the public” which suggested that “another young woman had been subjected to an up-skirting incident at the same store”. Constable Szabo obtained a “history of the conduct on that occasion” which indicated that the alleged conduct was “remarkably similar to the conduct alleged by [the Complainant]” and involved an almost identical “modus operandi”. Constable Szabo also agreed that a witness to that incident had described the alleged offender as “approximately 20 years old, with tan skin, of Indian or Sri Lankan background or appearance”. The earlier incident occurred in late September 2016. It would appear that the investigations into the earlier incident did not progress much beyond the taking of a statement from a witness to that incident.
126. The evidence concerning the incident that had occurred in late September 2016 was, and is, deserving of little weight. That is because there was no evidence that any man other than Mr Muench was seen in the vicinity of the cubicle occupied by the Complainant at the relevant time, let alone a man matching the description of the person who was allegedly responsible for the earlier incident.
127. The second item of evidence relied on by Mr Muench concerned his good character and willingness to assist the police. The evidence concerning those matters, however, was limited. As for cooperation, Constable Szabo agreed in cross-examination that she had sent an email to Mr Muench’s solicitor shortly after the investigation commenced to ascertain whether he was willing to take part in an identification parade. She was advised, in response, that Mr Muench was “happy to take part in” an identification parade which was “properly organised”. No identification parade was ever organised. As for Mr Muench’s character, it is not possible to discern from the record any evidence concerning Mr Muench’s good character, though in Mr Muench’s submissions on appeal it was submitted that the prosecutor had conceded that Mr Muench did not have a criminal record.
128. The evidence that Mr Muench was prepared to participate in an identification parade is of relevance, though no identification parade was ever conducted. As for Mr Muench’s character, assuming that it was conceded that Mr Muench had no criminal record, it is also a matter of relevance. An alleged offender’s good character may suggest that they were not the sort of person who would engage in the alleged unlawful conduct. Nevertheless, on the facts of this case, taking into account these matters it was open to the primary judge to be satisfied beyond reasonable doubt.
129. The third item of evidence was the police did not take certain investigatory steps. Constable Szabo agreed in cross-examination that the police did not seize Mr Muench’s mobile phone and did not obtain “unedited [CCTV] footage” from the Kmart store which “might show other people coming and going from the store”, even though Mr Muench’s legal advisers had requested such footage.
130. The evidence which indicated that the police did not take either of those investigatory steps was deserving of little weight. Given the very limited evidence in respect of that issue, no adverse inference could be drawn against the police for not taking either step and, more significantly, it could not be inferred that seizure of the phone or the obtaining of further CCTV footage would have produced evidence that was in any way favourable to Mr Muench. The fact that there was no evidence concerning what data may nor may not have been stored on Mr Muench’s phone and no evidence of CCTV footage showing people entering or leaving the Kmart store on the day in question, other than the limited footage showing Mr Muench, was essentially a neutral consideration.
Conclusion and disposition
131. While the primary judge erred in drawing inferences of consciousness of guilt and an admission of involvement on the part of Mr Muench, it has not been demonstrated that the finding that the offence was proved beyond reasonable doubt was unreasonable or not supported by the evidence. The evidence, considered as a whole, was capable of supporting a finding of guilt beyond reasonable doubt and capable of excluding the alternative hypothesis proffered by Mr Muench in his submissions. It was open to both the magistrate and the primary judge to find that the offence had been proved beyond reasonable doubt. There was accordingly no miscarriage of justice.
132. Mr Muench’s appeal must accordingly be dismissed.
| I certify that the preceding one hundred and thirty-two [132] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 17 April 2020 |
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