Muench v McCue
[2019] ACTSC 20
•12 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Muench v McCue |
Citation: | [2019] ACTSC 20 |
Hearing Date: | 27 August 2018 |
| Submissions last received: Decision Date: | 10 September 2018
|
Before: | McWilliam AsJ |
Decision: | (1) The appeal is dismissed |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal against conviction 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 – whether magistrate erred in findings made concerning sound in change room cubicles – whether denial of procedural fairness – whether verdict unreasonable or unsupported by the evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 61B |
Cases Cited: | Barca v The Queen (1975) 133 CLR 82 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | Dane Christian Muench (Appellant) James Christopher McCue (Respondent) |
Representation: | Counsel Mr K Ginges (Appellant) Ms M Kent (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 20 of 2018 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Morrison Date of Decision: 6 April 2018 Case Title: McCue v Muench |
McWilliam AsJ
On 6 April 2018, the appellant was found guilty in the ACT Magistrates Court of attempting to capture visual data in circumstances of indecency or invasion of privacy, an offence under section 61B(1) of the Crimes Act 1900 (ACT) (the Act).
The appellant has appealed that finding, with a conviction yet to be entered. The sentencing of the appellant has been adjourned, pending the outcome of this appeal.
Hearing in the court below
The hearing in the court below occurred over 23-24 October 2017 and 16 February 2018.
It was not disputed that a person engaged in conduct amounting to commission of the offence under s 61B(1) of the Act. The issue was whether the evidence proved beyond reasonable doubt that the person who engaged in such conduct was the appellant.
The prosecution case was that between approximately 4.40pm and 5pm on 26 October 2016, in the change rooms in the Kmart store at the Tuggeranong Hyperdome, there were attempts made by a person to film the complainant whilst she was trying on clothes in a change room cubicle. The attempt at filming was made by a person in the adjoining cubicle holding a mobile phone camera under the partition so as to film the cubicle occupied by the complainant.
When the complainant realised what was happening, she used her own mobile phone camera to record the mobile phone being held under the partition, and the feet and black unlaced shoes of the person doing the recording. She spoke to that person, saying, according to the parties’ submissions which were accepted by the magistrate, ‘I’ve got this on [camera]’. The video footage actually records the words, ‘I’ve got this on tape’, although this does not alter the meaning.
It was not disputed that the appellant was present at the store at the relevant time, or that he entered and exited the cubicle from which the filming had been attempted. The appellant’s case was that some person other than him had entered the change room adjacent to that of the complainant and attempted to film her. It was that other person who was spoken to by the complainant through the partition when she became aware that someone was attempting to film her.
The defence contended that after that occurred, the person who had held the mobile phone camera under the partition left the change room. The appellant then entered that same cubicle. The complainant opened the door to the cubicle she was in and sought help from a member of staff. When the appellant later emerged from the cubicle, the complainant confronted him, mistaking him for the person who had used the mobile phone camera.
The appellant submitted that this was a reasonable hypothesis, inconsistent with the guilt of the appellant.
10. The appellant exercised his right to not give evidence.
Findings of the magistrate
11. In reasons for decision delivered on 6 April 2018 (Reasons), the magistrate was satisfied that the evidence established the following facts.
12. The appellant was present at the Kmart store in the Tuggeranong Hyperdome.
13. At some time the appellant entered a change room cubicle next to the one in which the complainant was present when she was filmed.
14. The complainant was filmed with a mobile phone camera held under the partition between her cubicle and the cubicle which was entered by the appellant.
15. The complainant spoke the words (as found by the magistrate) ‘I’ve got this on camera’. After saying those words, the complainant did not hear any noises indicating that any person had left or entered the adjoining cubicle.
16. The appellant left the cubicle from which the complainant had been filmed after she had been filmed and after she had left the cubicle where she was trying on clothes.
17. The appellant spoke to the persons present outside the cubicle when he left, and what he said amounted to a denial of any wrongdoing.
18. The critical question was whether there was a reasonable hypothesis inconsistent with the guilt of the appellant. The magistrate treated the case as one where the particular facts or circumstances relied upon by the prosecution were properly described as ‘strands in a cable’ rather than ‘links in a chain’, referring to Shepherd v The Queen (1990) 170 CLR 573 (Shepherd), so that while the magistrate was required to find the facts relied upon to establish the guilt of the appellant as having been established by the evidence, individual facts need not be proved beyond reasonable doubt (Reasons at [16]).
19. The magistrate made a number of findings about different aspects of the evidence relied upon by the prosecution (which were set out in the Reasons at [15]).
20. Relevant to this appeal are the magistrate’s findings with regard to the following three aspects of the prosecution’s circumstantial case (Reasons at [27]):
(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 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;
(c) Neither Ms Clarke (a customer in the store standing at the fitting room waiting for her friend to try on clothes, and who saw the complainant come out of her cubicle after the attempt to film her had occurred) nor Ms Bateup (a sales person who was stationed at the fitting room, although not present there continuously at the relevant time) observed anyone leave the change rooms prior to the complainant exiting her cubicle as they stood outside.
21. The magistrate found (Reasons at [41]) 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 the appellant entered it before Ms Clarke and Ms Bateup took up positions adjacent to the fitting room.
22. At [45]-[47], the magistrate stated:
[45] The Complainant’s evidence about what she heard, and did not hear, is important. In her testimony the Complainant said that she had not heard anything coming from outside the cubicle she was in, and in particular heard nothing from the adjoining cubicle by way of footsteps or doors opening or closing. The physical layout of the cubicles is apparent from the images in evidence. They have dividing partitions which do not extend to floor or ceiling. I infer that sounds emanating from the adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear.
[46] The Complainant was understandably upset by what she had seen of the unlawful filming of her, but there is no suggestion that her upset manifested itself in any way which affected her hearing. She had had a verbal exchange with whoever occupied the next cubicle. As a matter of common sense she would have been sensitive to further sounds emanating from it.
[47] Her testimony must be viewed against the background that, had it been some other person filming her that person may well have left the cubicle as quickly and quietly as possible to avoid being caught. Insofar as the Defence hypothesis is concerned, that observation of course applies only to the departure of another person from the cubicle and not to what is suggested as to the Defendant’s subsequent innocent entry.
23. The magistrate went on to state at [49]-[53]:
[49] Whether the Defence hypothesis is reasonably open on the evidence goes beyond acknowledging that those possibilities cannot each be excluded and calls for consideration of all of the evidence.
[50] What is pressed for by the Defence as the reasonable hypothesis inconsistent with guilt, must be considered having regard to all of the evidence.
[51] The evidence that the complainant did not hear anything coming from outside the cubicle she was in, and in particular nothing from the adjoining cubicle by way of footsteps or doors opening or closing, is highly persuasive. The design of the cubicles (as seen in the video evidence) is such that sounds emanating from an adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear.
[52] In addition there is the evidence that no other male person was seen in the area of the change rooms. The weight of that evidence is affected by the observations made earlier but those observations do not justify the dismissal of the evidence altogether.
[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 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.
24. The magistrate then made some closing observations dealing with particular issues not relevant to this appeal, and found the offence proved.
The appeal
The grounds of appeal, as set out in the amended notice of appeal filed on 10 August 2018, raised a number of complaints:
(a)The verdict of guilty was unreasonable or not supported by the evidence (Ground 1).
(b)Error in finding that, on the whole of the accepted evidence, the only rational inference available was that it was the appellant who committed the offence against the complainant (Ground 2).
(c)Error in findings in respect of the capacity of a person in one cubicle to hear footsteps or door movement in an adjoining cubicle, in that:
(i)Such findings were not the subject of argument, and
(ii)The appellant was not provided with an opportunity to make submissions on matters that the Magistrate considered important, but which had not been the subject of prosecution submissions, including the physical layout and design of the cubicles (Ground 3).
(d)Error in finding that the complainant would have heard any footsteps or opening of a door in the adjoining cubicle had there been any (Ground 4).
(e)Error in reversing the onus of proof (Ground 5).
(f)Error in findings of fact regarding the capacity of sound in one cubicle to be heard in an adjoining cubicle (Ground 6).
(g)Error in appearing to take judicial notice of the design and layout of the cubicles in making findings of act relating to sound and hearing (Ground 7).
(h)Error in giving 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 the appellant (Ground 8).
26. Ground 5 was ultimately not pressed by the appellant.
27. During the hearing, the appellant also challenged the primary judge’s approach to the circumstantial case as a ‘links in a chain case’. The appellant argued the primary judge ought to have approached one aspect of the complainant’s evidence (concerning the capacity of certain sounds from one cubicle to be heard in an adjoining cubicle, discussed below) as an intermediate fact necessary to prove the appellant’s guilt. Accordingly, a Shepherd direction should have been given, namely that this aspect of the evidence was required to be proven beyond reasonable doubt (Ground 9).
28. As grounds 1 and 2 rely in part on other grounds, they will be addressed after the complaints about specific findings of the magistrate have been considered.
Principles applicable on appeal
29. The appeal is brought pursuant to s 208(1)(b) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Such an appeal is by way of rehearing and the applicable principles were set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 (Peverill) at [24] as follows:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
30. These principles have been cited in a number of authorities since, including Greenwood v Barlee [2018] ACTCA 62 at [7], and Holloway v Thurgar [2016] ACTSC 32 at [4].
31. More recently in Ryan v Vizovitis [2017] ACTCA 3 at [132], the Court of Appeal, constituted by Murrell CJ, Penfold and Perry JJ, discussed the applicable principles on an appeal against a conviction and the principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge. It is not necessary to repeat them in their entirety here. In essence, an appellate court is in as good a position as the magistrate to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by findings of the magistrate: Warren v Coombes (1979) 142 CLR 531, 551.
32. As to the advantage of the magistrate, in Faris v Coulon [2017] ACTSC 114, Murrell CJ stated at [9]:
There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge’s factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find that the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.
33. To similar effect is Connelly v Allan [2011] ACTSC 170, where Refshauge J stated at [12] that ‘facts found based on the assessment of witnesses will not be lightly overturned.’
34. In this case, the real criticisms were directed to the magistrate’s reasoning processes and inferences to be drawn, rather than facts found that were dependent upon the assessment of witnesses or resolving conflicting oral evidence. On that basis, the magistrate did not have any particular advantage with regard to the evidence that is traversed in the various grounds of this appeal.
35. If I am wrong, and the critical finding challenged regarding what the complainant heard while in the change room did depend in part on the magistrate’s perception of the complainant in the witness box and under cross-examination, then I would defer to the magistrate’s advantage at trial. However, it makes no difference in the outcome of this appeal, given the findings made below.
Evidence on appeal
36. The entirety of the evidence before the court below was ultimately before this Court on appeal. This included the transcripts of the hearing over three days, the video footage of the appellant entering and leaving Kmart, photographic stills of the Kmart store and fitting room layouts, the complainant’s recording of the mobile phone camera being passed under the partition, and the prosecution’s witness statements.
37. Although it was not specifically commented upon by the magistrate, there was also evidence before the Court of an exchange of text messages between the appellant and his ex-girlfriend, Ms Melinda Harrison. The prosecution did not rely upon the evidence of Ms Harrison as noted by the Magistrate at [11] of the Reasons. However, the text messages sent by the appellant were relied upon and these are discussed below as part of the evidential matrix before the Court.
38. It also included the evidence obtained on voir dire, which (by consent) the appellant was granted leave to adduce as further evidence on this appeal, pursuant to s 214 of the Magistrates Court Act. The submissions of the parties in the court below were also provided.
Ground 3 – denial of procedural fairness
39. It is appropriate to deal with an alleged denial of procedural fairness separately first. The principles relevant to the consideration of this ground were not addressed by the parties, but they are well-established. An accused person is entitled to procedural fairnessduring criminal proceedings including, upon conviction, during the proceedings on sentence: Pantorno v R(1989) 166 CLR 466, at 473 - 474, per Mason CJ and Brennan J; at 483 per Deane, Toohey and Gaudron JJ; Weir v R[2011] NSWCCA 123 at [64].
40. Fairness is not an abstract concept. It is essentially practical and the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) HCA 6; 214 CLR 1 at [37] per Gleeson CJ (Lam). In a different statutory context, the High Court in Lam was considering what must be demonstrated to establish a denial of procedural fairness. Relevantly for the present appeal, the appellant must demonstrate that he was deprived of an opportunity to advance submissions so as to result in unfairness in the procedural sense: see generally Lam at [29] to [34] per Gleeson CJ. Lam was recently applied in this jurisdiction in the criminal context: see NE v Pruckner [2018] ACTSC 212 per Mossop J at [19].
41. The prosecution’s closing submissions at [246] state as follows (footnote omitted):
[The complainant] did however indicate that she was conscious of listening for noises coming from the adjacent cubicle as she ‘wanted to keep tabs of where he was so that if he was still in there when I got out I could see him and identify him’. She did not hear any noises, be they doors, footsteps or otherwise indicating that the male had left the adjoining cubicle. The court is also furnished with the approximate noise level in her change room at the time (courtesy of the recording ‘Exhibit P1’) which provides an indication of her ability to accurately hear any noises coming from the adjacent cubicle.
42. The prosecution’s closing submissions in the court below later note at [262]:
…
(g) [The complainant] did not hear any noises indicating that 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 the same cubicle; …
43. The appellant takes issue with the magistrate’s finding at [51], set out above at [23] of these reasons. In particular, the appellant submits that the finding was the product of error and was unfairly prejudicial as the appellant was not put on notice of this fact being so material to his decision.
44. It can be seen from the extract of the prosecution’s closing submissions that this complaint has no substance. What could be heard from the complainant’s change room cubicle, and the lack of any noise that might indicate someone left and another person entered the adjoining cubicle, were issues fairly raised. The magistrate was entitled to evaluate the complainant’s evidence as to what she heard by reference to what was observed on the video footage, being Exhibit P1, which was specifically drawn to the magistrate’s (and the appellant’s) attention by the prosecution’s closing submissions. That included observing the design of the cubicles.
45. In a different context involving an administrative tribunal, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48] held that ‘procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.’
46. Although the context here is a criminal offence, the same principle applies more generally to decision-makers and to the argument being put by the appellant. Procedural fairness in the circumstances of this case did not require either the prosecution or the magistrate to put the appellant on notice that when watching the video evidence, an inference might be drawn from the design of the cubicles that sounds emanating from the adjoining cubicle would not be difficult to hear, nor that what was observed on the video in combination with the complainant’s oral evidence might be given great weight.
47. The findings of the magistrate reflect an obvious and natural evaluation of the material before the court below. The design of the change rooms was plainly relevant to what weight to give a complainant’s statement that she was specifically listening for anyone leaving the adjoining cubicle as she intended to identify the person when he came out, and that in effect, she did not hear any noise that suggested to her that this had occurred while she was putting her clothes back on in order to leave the cubicle and fulfil that intention.
48. The fact that the appellant, through his counsel, did not address matters of evidence that were relevant to known issues before the Court (whether by forensic choice or by oversight) does not mean that there was any unfair prejudice or practical injustice to the appellant. Accordingly, Ground 3 is not made out.
Grounds 4 and 6 – challenges to findings of fact
49. The appellant and the respondent addressed these grounds together as they again relate to the magistrate’s finding at [51] of the Reasons.
50. In relation to Ground 4, namely that the magistrate erred in finding, inferentially, that the complainant would have heard any footsteps or opening of a door in the adjoining cubicle had there been any, the appellant relies on the following:
(a) There was sworn evidence before the magistrate on the voir dire that ‘it was hard to hear because of the separation of the cubicles.’
(b) There was no evidence by Ms Bateup (who had worked for Kmart for 30 years) as to the sound-deadening or otherwise of the cubicles or any other physical aspect of the cubicles or cubicle area relating to capacity of sound to emanate from one cubicle to the next.
(c) There was no evidence by the complainant as to her hearing ability in October 2016;
(d) There was no objective evidence, such as by testing, that determined whether some or all sounds emanating from one cubicle would not be difficult to hear.
51. Ground 6 is really the same complaint put a different way, alleging an insufficiency of evidence to make such a finding.
52. There is force in the appellant’s submission that the receipt of further evidence removes the need to establish error before the Court may intervene on appeal, and grounds 1 and 2 effectively invite the Court to form its own conclusion about however I have dealt with the grounds for completeness as the parties devoted full argument to them. None of the arguments raised with respect to grounds 4 and 6 establishes error, for the following reasons.
Evidence on the voir dire
53. During the hearing, the complainant gave evidence as follows:
After I stopped recording and said, “I’ve got you on tape,” I could hear very vaguely him saying, “What do you mean? I didn’t do it,” and then I walked out. I didn’t hear anything else further.
54. The evidence relied upon during the voir dire, between counsel for the appellant in the court below and the complainant, was follows:
Counsel: When you are giving your evidence about the exchange in the cubicle earlier you did say something about the voice. … I think your words were you vaguely heard. “I could hear vaguely ‘What do you mean? I didn’t do it.’” Do you remember giving that evidence this morning?
Complainant: Yes.
Counsel: Does that mean that it was spoken in a relatively hushed tone those words?
Complainant: No, that’s not what I meant by that.
Counsel: What did you mean when you said you could vaguely hear?
Complainant: I believe it was hard to hear because of the separation of the cubicles but it didn’t sound like he was in a hushed tone at all.
Counsel: All right, but you difficulty discerning what was being said, did you?
Complainant: No. It’s just difficult to remember the exact words because it was so long ago.
Counsel: But, you see, you didn’t indicate in your evidence earlier that you had difficulty remembering the exact words. You said you heard vaguely some words?
Complainant: Yes
Counsel: That’s what you meant, wasn’t it that it was difficult to hear what was being said?
Complainant: I’m sorry, is that a question?
Counsel: Yes. I’m suggesting to you that when you said earlier you could vaguely hear the words, “What do you mean? I didn’t do it,” spoken within seconds, what you were seeking to convey on your oath to tell the truth was that it was difficult to make out the words?
Complainant: Yes, I guess so. I’m not sure what I meant by the word “vaguely”. I definitely heard him say something along the lines of, “What do you mean? I didn’t do it.” I could hear it clearly enough, yes.
55. The appellant placed emphasis on the complainant’s evidence that the separation of the cubicles made it hard to hear the exact words said by the person in the cubicle next door, and submitted that such evidence tells against the conclusion by the magistrate at [51] that sounds emanating from an adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear.
56. Noting that there is no requirement to establish error, given that the evidence on the voir dire was not before the court below, that submission nevertheless fails because the appellant has taken the complainant’s evidence on the voir dire out of context, which I have extracted above.
57. The complainant was giving voice identification evidence on the voir dire, which was ultimately rejected. What she said she vaguely heard was directed to the words used by the person in the adjoining cubicle.
58. Her evidence was not directed to hearing sounds of movement generally, such as unlocking a cubicle door, exiting the cubicle and walking out, following by a different person walking in very soon after. It was directed to identifying the exact words spoken. On the contrary, even at its most favourable to the appellant, the complainant’s evidence on the voir dire was that she could hear words clearly enough.
59. That evidence says nothing about what the magistrate was considering at [51]. It is a leap in logic to argue that because a complainant’s evidence about the exact words spoken by someone was to be approached with caution, such evidence somehow prevented a conclusion that other sounds of movement from an adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear.
60. The result is that while the additional evidence on the voir dire was admitted on the appeal, it does not affect the conclusions of the magistrate or my own separate conclusions about what inferences to draw with regard to sounds of movement of a person leaving or entering the adjoining cubicle.
Allegations of no evidence
61. The next three arguments are all directed to a lack of evidence. It is important to understand two things. First, what was before the Court was a variety of evidence before the magistrate about the layout and design of the change room area. It included digital images of the change room cubicles and their layout. The types of locks on the doors (metal locks which turn to lock each door) are visible. The open space under and above each cubicle where the doors and the partitions between cubicles are located is clearly visible. The thin hard nature of the material used to create the partitions and the doors, as opposed to fabric curtains, for example, is visible. The hard floor surface is also on plain view, as opposed to carpet that might deaden the sound of footsteps.
62. Second, the magistrate was not assessing varying degrees of noise levels, such that expert evidence might have been required about sound-deadening, testing, or the capacity of sound to travel between cubicles.
63. The magistrate was considering whether there was any noise indicating movement at all, and whether the complainant in the adjoining cubicle could hear that noise. Given that air could travel freely through the substantial gaps under and above each door and each cubicle, it was entirely unnecessary to call any expert evidence about the ability of noise to travel between cubicles.
64. Further, there is nothing in the evidence to cast any doubt on the complainant’s hearing. She was examined and cross-examined about what she did and did not hear and things that might have affected her ability to hear. For example, counsel for the appellant in the court below had the following exchange with the complainant:
Counsel: 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?
Complainant: 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.
65. Contrary to the submissions of the appellant, the magistrate’s conclusion about the capacity of sound or ability to hear sounds of movement was both open on the evidence and in my view, well-founded and plainly correct.
66. The appellant raised matters such as the lock on the door possibly having felt attached to it so that it would close silently, and, the complainant putting her dress over her head in the process of getting dressed again which would affect her ability to hear and suggested that the complainant was more likely to hear the rustling of her own clothes and movement before any external sounds. In my view, these suggestions are possible, but highly unlikely. That the ‘rustle’ produced by a person momentarily passing a garment over her head would drown out the sound of footsteps and a door opening and closing with a lock stretches believability in light of what I consider to be strong evidence that the complainant was taking particular care to listen for the door in the next cubicle opening, and that she did not hear that sound. The argument becomes even more implausible when one takes into account the fact that on the appellant’s hypothesis, the complainant’s hearing would have had to have been affected twice – once when the door opened for the person to leave the cubicle, and once for the appellant to arrive in the cubicle. Add to this the complainant’s evidence of not hearing any footsteps (on what appears from the photographs to be a lino surface) and the evidence is sufficient to establish the factual findings made by the magistrate.
67. Accordingly, grounds 4 and 6 are not made out.
Ground 7 – whether the magistrate impermissibly took judicial notice
68. Ground 7 again challenges the magistrate’s finding at [51], alleging that the magistrate erred in appearing to take judicial notice of the design and layout of the cubicles in making findings of fact relating to sound and hearing. The appellant relies on s 144 of the Evidence Act 2011 (Evidence Act), which is in the following terms:
Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is—
(a) common knowledge in the place in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge mentioned in subsection (1) in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) must take knowledge mentioned in subsection (1) into account.
(4) The judge must give a party the opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge mentioned in subsection (1) that is necessary to ensure that the party is not unfairly prejudiced.
69. A number of principles and authorities were relied upon by the parties, but it is not necessary to refer to them in order to resolve this ground of appeal. I accept that the design and layout of change room cubicles is not something that could be described as ‘common knowledge’ or as being capable of verification by reference to a document the authority of which cannot reasonably be questioned within s 144 of the Evidence Act. However, the entire argument is misconceived, as the magistrate’s findings did not take judicial notice of anything. They were simply findings based on evidence that was before the court below.
70. As set out in relation to grounds 4 and 6, there was a variety of evidence before the magistrate about the layout and design of the change room area. It included digital images of the change room cubicles and their layout. The types of locks on the doors (metal locks which turn to lock each door) are visible. The open space under and above each cubicle where the doors and the partitions between cubicles are located is clearly visible. The thin hard nature of the material used to create the partitions and the doors, as opposed to fabric curtains, for example, is visible. The hard floor surface is also on plain view, as opposed to carpet that might deaden the sound of footsteps.
71. Added to this are the extra images and the sound recorded on the video camera footage taken by the complainant. The prosecution also drew attention to the oral evidence given by witnesses about what they could see and hear from inside and outside the cubicles.
72. All of this is evidence from which the magistrate was entitled to make findings about the layout and design of the change rooms, as part of testing the reasonableness of the appellant’s hypothesis that someone else silently exited the relevant cubicle and within a short space of time of that departure, the appellant entered the same cubicle and closed the door without the complainant hearing him, in circumstances where she was specifically listening for any such sounds.
73. To the extent that the appellant makes an alternative argument that there was not a proper evidential basis upon which to make those findings, the brief description of the evidence above demonstrates why that aspect of the argument must also be rejected. Even applying a cautious approach to visual evidence such as photographs and video footage, all that the magistrate relied upon for his Honour’s reasoning at [51] were the obvious physical features of the change rooms.
74. Ground 7 has not been made out.
Ground 8 – the possibility of a different person committing the offence
75. Ground 8 is a complaint about the magistrate’s comment at [55] of the Reasons:
I place on record that I have also considered the evidence about a similar offence or offences having been committed at the same place by a person who was obviously not the defendant but that does not affect my conclusion on the evidence which is before me.
76. The appellant submitted that the magistrate failed to consider the possibility, reasonably open on the evidence, of similar conduct close in time perpetrated by an offender which his Honour accepted was not the appellant.
77. The appellant relied upon Barca v The Queen (1975) 133 CLR 82 at 104, per Gibbs, Stephen and Mason JJ (citations omitted):
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused…. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstance would enable them to draw… .
78. Referring to that passage in The Queen v Baden-Clay [2016] HCA 35 (Baden-Clay), the High Court stated at [47] (citations omitted):
For an inference to be reasonable, it “must rest upon something more than mere conjecture. 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” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
79. The appellant argued that it was clearly open on the evidence before the magistrate to find that the appellant was not the person who entered the adjacent change room at Kmart, and ultimately submitted that Ms Bateup and the complainant recast their evidence in light of seeing the appellant leave the change room.
80. The appellant submitted that while the magistrate appropriately identified the dangers of identification evidence, and could not exclude the window of time within which some other person could have exited the change room and the appellant entered it, the magistrate did not address the possibility that the offender was someone else entirely.
81. The respondent prosecution did not address this ground at all. However, the appellant’s submission ought to be rejected for the same reasons as those outlined in respect of grounds 1 and 2 below, and 4 and 6 discussed above. The fact that it was possible there was someone else in the change room, because there was a very small window of time when no one had their eye on the relevant cubicle door to prove by direct observation that no other person exited it, was ultimately excluded as not being a reasonable possibility or hypothesis due to the remainder of the evidence before the magistrate. This included, but was not limited to, the fact that no one else saw any other male in the vicinity at the time the offence occurred, that the sales assistant was in the vicinity of the change rooms and that she came back to her station in the change room before the complainant opened her cubicle door, reducing further the amount of time for someone to leave and someone else (the appellant) to enter unseen.
82. It does not matter whether someone else may also have been alleged to have conducted himself in the same manner on a different occasion. The totality of the evidence excluded the possibility that such person was the person in the change room next to this complainant. That is why the magistrate recorded that such evidence did not affect his conclusion, and why the magistrate was entitled to deal with the argument in a succinct fashion.
83. As I have not been able to discern any error with respect to the finding at [55] of the Reasons, Ground 8 has similarly not been made out.
Shepherd direction ought to have been givenGround 9 – whether a
84. The prosecution case was one based on circumstantial evidence, that is, acceptance of the evidence establishes facts from which further inferences must be drawn if the appellant’s guilt is to be established. The appellant complains about the following passage in the magistrate’s decision (Reasons at [16]):
This is a case where the particular facts or circumstances relied upon by the Prosecution are properly described as “strands in a cable” rather than “links in a chain”. It follows that I am required to find the facts relied upon to establish the guilt of the Defendant as having been established by the evidence but individual facts need not be proved beyond reasonable doubt.
85. The appellant initially agreed with the magistrate’s approach both in the court below and on appeal. However, the appellant altered his position during the hearing and now contends that the magistrate should have given himself a ‘Shepherd direction’. The appellant’s position is that the complainant’s evidence that she did not hear anyone leave or enter the change room next to her in the relevant time period, should have been seen as an intermediate fact, which needed to be proved beyond reasonable doubt before the appellant’s guilt could be determined. That is, the appellant submitted this is a case of ‘links in a chain’, not strands in a cable.
86. The respondent submitted this is not a case where it was appropriate for a ‘Shepherd direction’ to be given, as there are multiple strands of circumstantial evidence relied upon by the Crown to prove the appellant’s guilt. Further, if a Shepherd direction were appropriate for the evidence of the complainant, any consideration of her evidence still leads to the conclusion that it can be proved beyond reasonable doubt.
Applicable principles
87. Where a case involves circumstantial evidence, it may be necessary for a direction to be given that guilt should not only be a rational conclusion, but also the only rational conclusion that can be drawn from the circumstances. There is no requirement that such a direction must be given in every case relying on circumstantial evidence. Rather, the question is whether, in the circumstances of the case, such a direction is necessary to enable the fact finder (whether it be a judge or jury) to properly execute their role and avoid a miscarriage of justice: Shepherd at 579.
88. Where a prosecution case relies upon circumstantial evidence and an intermediate conclusion of fact constitutes ‘indispensable links in a chain of reasoning towards an inference of guilt’ such a fact must itself be proved beyond reasonable doubt: Shepherd at 579. In this case, it may be necessary to direct the jury where an intermediate fact must be proved beyond reasonable doubt: Shepherd per Dawson J at 585 (Mason CJ, Toohey and Gaudron JJ agreeing).
89. In R v Zaiter [2004] NSWCCA 35 at [8], per Ipp JA, formulated a test for determining whether a piece of evidence constitutes an indispensable intermediate fact. His Honour considered that if one particular factual matter was withdrawn from the Crown case, and what was left was an ‘empty shell’, then that evidence is such to warrant a direction concerning an indispensable intermediate fact. This test was supported in Davidson v The Queen [2009] NSWCCA 150, 75 NSWLR 150 (Davidson), where Simpson J held at [74] that:
Whether a fact on which the Crown relies as part of a circumstantial case is
or is not ”indispensable” may be tested by asking whether, in the absence of
evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable.”
Finding with regard to Ground 9
90. I am not persuaded that the complainant not hearing anyone leave or enter the change room next to her in the relevant time period was an indispensable fact such that the magistrate should have directed himself in accordance with the principles in Shepherd.
91. It is not enough that a case be considerably weakened if a particular fact is not found to exist. In the present case, the complainant not hearing any noises indicating that the person next to her had left the cubicle or that another person had entered was highly persuasive, but it was not so critical that without the evidence, there was no case. That aspect of the evidence was but one of a number of separate facts of varying degrees of probative force.
92. There was evidence of other witnesses that the store was not busy and they did not see anyone leave the change rooms prior to the complainant coming out of her cubicle and telling them what had happened.
93. There were the similar shoes worn by the appellant, captured in the video footage taken by the complainant and by CCTV footage of the appellant walking through Tuggeranong Hyperdome shopping centre after leaving the Kmart store. The appellant left the store with both his shoe laces undone, with such untied shoelaces of a length consistent with those captured in the complainant’s footage. A further available inference of the appellant’s failure to do up his shoes was that it was indicative of a hurried exit.
94. There was the evidence that the appellant left his wallet in the pile of clothes he dumped on the change room desk and had to return to get it. Again, an available inference was that the appellant was distracted and in a hurry to leave Kmart.
95. The appellant had an aggressive demeanour and denied involvement when he came out of the cubicle. An available inference was that such behaviour was consistent with a guilty conscience.
96. There were also the text messages sent by the appellant to his ex-girlfriend about the event, where the appellant says ‘it wasn’t like that’ when accused by Ms Harrison of involvement, and a further text message where the appellant states ‘sick’, which the prosecution argued was an implied admission of the appellant’s involvement in the offence. The magistrate may have mistakenly believed that the prosecution was not relying on these text messages sent by the appellant, because they were sent to Ms Harrison (the ex-girlfriend), whose evidence was not relied upon. However, they are a separate piece of evidence relevant to the question of whether it was the appellant who committed the offence.
97. The above are enough to demonstrate that there were indeed numerous separate facts of varying degrees of probative force, so that the single fact as to what the complainant heard or did not hear at the critical time was not ‘indispensable’. That the magistrate clearly gave this particular fact as to what the complainant heard significant weight in his reasoning does not elevate it to a fact without which there is no case. Nor did the magistrate treat it as such, as is clear from the express words of the magistrate at [51] and [52] of the Reasons, which are extracted above at [23].
98. For these reasons, it was not incumbent upon the magistrate to apply a Shepherd direction. The prosecution made an alternative submission that even if a Shepherd direction should have applied, so that the fact finder had to be satisfied of the complainant’s evidence as to what she could hear beyond reasonable doubt, the evidence did establish such a fact to the requisite standard. In light of my findings, it is unnecessary to deal with that further submission. Ground 9 has not been made out.
Grounds 1 and 2 – whether the verdict was unsafe and unsatisfactory
99. The appellant addressed these two grounds together, accepting that they rely upon the Court’s determination of earlier grounds. The complaint is that the verdict of guilty was unreasonable or not supported by the evidence. To similar effect, the appellant argues in Ground 2 that the magistrate erred in finding on the whole of the accepted evidence that the only rational inference available was that it was the appellant who committed the offence.
100. Subsections 37O(2)(a)(i) and (iii) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) allows the Court to allow an appeal against conviction if the verdict is unreasonable or cannot be supported, having regard to the evidence, or on any other ground there was a miscarriage of justice.
101. The test for what constitutes an unsafe and unsatisfactory verdict is whether the court on appeal believes that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [51], citing Baden-Clay at [65]–[66]. Alternatively, as Murrell CJ and Ross J outlined in Thomson v The Queen [2015] ACTCA 16 at [17], ‘…Another way of putting the test is whether, after reviewing all the evidence, the appellate court has a reasonable doubt about the guilt of the accused.’.
102. In Cruz v The Queen [2017] ACTCA 48, the Court of Appeal said at [38]:
… A key qualification to that ordinary basis for finding that a jury ought to have shared the appeal court’s doubts is when the advantage that the jury enjoyed in seeing and hearing the evidence at trial would have been such as to overcome the appeal court’s doubt…
103. The same principle applies in this case, notwithstanding that the fact finder was a magistrate rather than a jury.
104. Throughout the course of considering the other grounds of appeal, the various items of evidence have been noted. The magistrate gave them various degrees of weight and considered that on their own, certain pieces of evidence were equivocal. However, the whole of the evidence includes:
(a) the appellant’s aggressive manner and immediate denials upon leaving the cubicle, followed by a hurried exit from the store and forgetting his wallet, consistent with a guilty conscience;
(b) the very similar shoes on the video footage to those captured on camera by the complainant, and the similarly untied shoelaces evidencing a hurried exit and guilty conscience;
(c) the text messages after the event where the appellant stated ‘it wasn’t like that’ and ‘sick’ consistent with an admission of involvement;
(d) the absence of any other male person seen at the relevant time by a number of witnesses who could possibly have had time to enter and leave a change room cubicle;
(e) the complainant’s very persuasive evidence as to her confidence that she did not hear any doors opening next to her cubicle while she got changed, as she made sure to remember to see if the person had left because she wanted to identify that person; and
(f) the nature and design of the cubicles as demonstrated on the video footage and photographic stills.
105. The inferences available from the evidence outlined above (such as the inference of a guilty conscience and of an admission of involvement) are ones that I am satisfied should be drawn in light of the other evidence. The various strands of evidence combine to leave me in no doubt that the appellant was the person who held the mobile phone under the cubicle partition and therefore committed the offence.
106. Accordingly, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty and no error has been established.
107. Further, having reviewed the whole of the evidence for myself, rather than for the purpose of identifying error, I do not consider there to be reasonable doubt about the guilt of the accused, in the sense that I do not consider there was an alternative rational hypothesis inconsistent with guilt. It is a possibility that some other mystery person that no one saw or heard was able to unlock and open a cubicle door of the type seen from the photographs in evidence in a manner that prevented that person’s movements from being detected by the complainant. It is also a possibility that the appellant silently and innocently entered the same cubicle, and that these two actions occurred in the space of 2 to 5 minutes. However, in circumstances where the complainant was specifically listening for any person leaving while she was getting changed for the purpose of identifying the person next door to her, combined with the totality of the evidence outlined at [104] above, I consider that possibility to be ‘mere conjecture’, or, as the prosecution submitted, fanciful.
Whether there was a miscarriage of justice
108. As to whether there was a miscarriage of justice under subsection 37O(2)(a)(iii) of the Supreme Court Act, the appellant relied upon grounds 3, 4, 6, 7 and 8 as the basis for their submission that a miscarriage of justice had occurred. However, I have not found any of those grounds established and I do not consider that, independent of those grounds, there was any other matter that could be said to give rise to a miscarriage of justice.
109. The result is that grounds 1 and 2 have also not been made out.
Conclusion
110. As none of the grounds of appeal have been established, the appeal will be dismissed. I make the following order:
(1) The appeal is dismissed.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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