Nicole Linden v KA
[2020] ACTMC 2
•12 March 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nicole Linden v KA |
Citation: | [2020] ACTMC 2 |
Hearing Date(s): | 8 November 2018, 26 February 2019 and 27 February 2019. |
DecisionDate: | 12 March 2020 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [174] - [217] |
Catchwords: | CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Indecent Assault, Consent, Recklessness, Advertent and Inadvertent Recklessness, Complaint Evidence. |
Legislation Cited: Cases Cited: | Evidence (Miscellaneous Provisions) Act 1991(ACT) Crimes Act 1900 (ACT) Banditt v The Queen (2005) 224 CLR 262 DPP v Walker [2011] ACTCA 1 at 53 Liberato v the Queen (1985) 159 CLR 507 Parkinson v Alexander [2017] ACTSC 201 at 84 R v DM [2010] ACTSC 137 R v Court [1989] AC 28 R v Elrick [2011] ACTSC 66 R v Harkin [2011] SASCFC 24 R v Manson (New South Wales Court of Criminal Appeal, Gleeson CJ, Clark JA, Sully J, 17 February 1993) R v McDonald; R v Deblaquire (2013) 223 A Crim R 185 R v Morton (1990) 143 FLR 268 R v Murray (1987) 11 NSWLR 12 Rhodes v Roberts [2013] ACTSC 145 Sims v Drewson [2008] ACTSC 91 |
Parties: | Nicole Linden (Informant) KA (Defendant) |
Representation: Solicitors: | Ms K McCann (Prosecution) Mr J Lawton (Defence) ACT Director of Public Prosecutions (Informant) Aulich (Defendant) |
File Number(s): | CC 6673 of 2017 |
SPECIAL MAGISTRATE HUNTER OAM:
The Defendant, KA, is charged pursuant to section 60(1) of the Crimes Act 1900 with one count of an act of indecency committed without consent on the complainant BW (Charge 6673 of 2017).
This matter was heard before me over three days on 8 November 2018, 26 February 2019 and 27 February 2019.
I heard evidence from the following witnesses:
(a) AD in Court before me (with the assistance of a Mandarin interpreter);
(b) The Complainant, BW, in Court before me;
(c) NM in Court before me;
(d) Mr Peter Hendricks in Court before me;
(e) Constable Nicole Linden in Court before me, and
(f) The Defendant in Court before me (with the assistance of a Mandarin interpreter).
I also had the following materials exhibited before me:
(a) P1 - Rental Agreement between the Defendant and the Complainant;
(b) P2 – Map of kitchen drawn by the Complainant;
(c) P3 – Printed text messages between the Complainant and NM;
(d) P4 – A copy of the ‘Notice to Vacate Premises’ by the Complainant;
(e) P6 – Email from Defendant to Mr Swan of the DPP;
(f) P7 - Affidavit of the Defendant dated 21 June 2018;
(g) P8 – Affidavit of the Defendant dated 3 August 2018, and
(h) D1 – Map of kitchen drawn by the Defendant.
Prosecution Case
AD
Examination in Chief
AD gave evidence in Court before me on 8 November 2019. AD had been studying at university in Australia but was originally from China. She had been living in shared accommodation with the complainant BW in April 2017, and they both lived on the ground floor. AD said she had met their landlord KA on the first day she moved in.
AD said that on the night of 11 April 2019 she was at the house playing games on her phone, and that at one point she went into the larger kitchen to get something, and then returned to her room. She could not recall the exact time she went to the kitchen as it had been over a year ago, but agreed it was about 6.30pm, at dinnertime. At that time, she saw BW and KA in the kitchen sitting at the table eating together. AD recalled the two were talking but could not recall their conversation and was only in the kitchen for half a minute before returning to her room. AD did not see BW or KA again that day.
AD said that a few days later BW knocked on AD’s door, rushed in, and said the landlord had assaulted her. She said BW then gave her a telephone number and said, ‘If you also need help’. AD said BW said to her that the landlord did something bad to her, and asked if AD had heard anything, but she said no. AD said that at first she had not understood what the complainant had meant by ‘done something bad’ and asked BW to explain and BW said, ‘the landlord touched her and kissed her’, or something like that. AD said that is all BW said because it seemed like she didn’t want to talk about it.
AD said she thought all this happened on a Saturday but could not be sure as it was a year ago. AD said that at the time of her conversation with BW, BW was, ‘quite sad and there were tears in her eyes’. AD confirmed this was the only conversation she had with BW about that incident.
Cross-examination
In cross-examination AD agreed that her statement to Police included information about Police coming to her door on 18 April 2017, and that she had seen the Defendant and BW together on 11 April 2017. AD reiterated that she did not recall exact dates at the time of the hearing. Defence Counsel put to AD that there was nothing in her statement to Police about the conversation she had with BW in her bedroom. AD said that when the Police came to her home she had told them everything, but they later invited her to the station and that is what appeared in the statement. AD clarified that what appeared in her Police Statement was what the Police provided to her when she attended the station. When asked again whether she had told Police of the conversation between herself and BW, AD said, ‘I’m not quite sure, but I think my roommate have told the Police Officers similar things’. Defence Counsel asked if it was the case that AD was not sure if she had told Police about the conversation. AD replied, ‘Because it is one year ago and I am not quite sure, but I think I told everything I know to the Police Officer and also my roommate’. AD also said that she and her roommate had been to see their school Dean to see if they could move out.
BW
Examination in Chief
The complainant in this matter, BW, gave evidence in Court before me on 26 February 2019. BW was 25 years old and was studying at a University in Canberra. At the time of the incident she had been studying at University and living in a share accommodation property in Braddon, where she had lived since August 2016. She said she thought she had been living with about 7 people and that those she had met were students. A signed rental agreement was tendered in relation to that property.
BW said that she could not recall the exact date she met the Defendant, but that she first found out he was living at the property when he told her on 31 December 2016. BW said she would have seen the Defendant roughly monthly when he came to collect rent in cash, but that it wasn’t a scheduled visit.
BW said that on 31 December 2016 the Defendant came to her door with a plate of fruit and mentioned going on a walk to see the fireworks, as it was New Year’s Eve, and that she said yes. She could not recall the last time she saw the Defendant prior to that night. BW said the Defendant had come to her door by himself. She said they walked in the direction of the city to see the fireworks and were mostly walking side by side. She said they had general conversation. BW said at one point KA had taken hold of one of her hands for a while, on and off. BW said that while in the city, as it was crowded, they walked in closer proximity. She said she recalled that at some point while in the city the Defendant had his hands on her waist and the sides of her body. BW said that close to the house, on the driveway, the Defendant hugged her and she recalled his face was, ‘very, very, very close’, to her face. BW clarified that the Defendant’s body had been quite close to hers, but that she wouldn’t categorise it as a hug. BW could not recall where exactly the Defendant was standing but presumed it was towards her side.
BW said that the conversation on their walk had been mostly about schoolwork, people they knew, or their hobbies. BW said that neither she nor the Defendant had said anything when he held her hand or touched her waist. She said the Defendant had touched her waist with one hand. BW could not recall whether the Defendant had said anything when he stood with his face close to hers in the driveway. She said they were at the front of the house for no more than ten minutes before going back inside the house, bid each other goodnight, and went to their separate rooms. BW could not recall exactly but presumed this was at about 1:00 am or a bit after. BW said that she could not recall any specific instances when she saw the Defendant after that night but said she must have seen him to pay rent.
In relation to 11 April 2017, BW said that she was still living at the same residence and that she believed the Defendant was also still living there. She said that at about 6:00 pm that night she was in the kitchenette close to her room and had been planning to cook dinner. BW said that the Defendant was in the kitchen (separate from the kitchenette) and she had returned to her room while he prepared his food. BW said that she came back to the kitchen a bit later, they exchanged general greetings and the Defendant suggested they eat together that night. BW said they ate dinner together. During dinner BW said that her conversation with the Defendant was, ‘very benign’. BW could not recall the exact length of the dinner but recalled speaking with the Defendant for between 1 and 2 hours. When finished eating dinner, BW offered to do the dishes but the Defendant said that he would take care of it. BW lingered in the kitchen just in case she could help with chores.
After chores were completed BW and the Defendant continued to converse over coffee places, as BW drinks a lot of coffee. BW recalls that at some point during this conversation the Defendant suggested that she would sleep better if she had someone in bed with her. BW disagreed. A short while later the Defendant brought up the topic again, approached BW, and gave her a hug. BW describes how he wrapped his hands tightly around her waist and her arms were bent, fists clenched, in the front of her chest pointing upwards. Their bodies were close. The Defendant then moved his hands to her face and started kissing BW. The Defendant’s hands were moving on BW’s back, under her shirt and underneath her trousers. BW was wearing a grey T-shirt, grey sweatpants and a cardigan. BW said she was not wearing any underwear. The Defendant was making contact with her skin starting from the top of her shoulders to her buttocks. The Defendant also touched her breasts.
The Prosecution showed BW a map which had been drawn by BW which outlays the house she was living in. BW was asked questions relating to the location of BW and the Defendant in the kitchen during the incident. BW was unable to recall details surrounding how the incident came to an end and was then with leave shown her statement, which was made seven days after the incident. After being directed to her statement, BW then recalled that the incident ended when BW was able to find some space from the Defendant and she ran towards the direction of her room, entered her room, and locked the door.
BW clarified that she was able to run to her bedroom when the Defendant was pushing her towards the Kitchen counter with his body walking towards her. It was in that moment BW was able to pry herself away and go to her bedroom. BW stated that he wasn’t being forceful at this point.
BW was asked by the Prosecutor where the Defendants hands were prior to her leaving to go to her bedroom. BW responded, ‘On my breasts’. The Prosecutor asked whether at this point BW said anything to the Defendant. BW replied, ‘No’. BW said she felt shocked at this point. BW said that she cannot remember the duration of the event.
BW described how when she got to her room, she locked the door and texted a friend in order to make sense of what had happened. That friend was NM. BW did not recall what time she texted NM.
A series of messages was shown to BW by the Prosecutor. The messages show the time that the messages were sent, showing 11 April 9:55 pm. The first message sent by BW reads, ‘I need help’. There were a series of messages between NM and BW that evening. Those messages were tendered as evidence (Exhibit P3). There was also a call made between the two during the text messages. BW said she called NM to try and make sense of what had happened. She told him what had happened and during that explanation she began to have a panic attack. During approximately a one-hour period NM stayed on the phone with BW talking to her, asking how she was feeling and the like.
BW did not see the Defendant again that evening, however she did leave her room approximately 3-4 hours later to have a shower. After BW took a shower she went to bed. The next day, on 12 April, BW did not leave her room until the afternoon after she had called an ANU student helpline in order to make sense of the events of the day before. Dean, Dr Peter Hendricks, told her to come into the University to speak to him.
When meeting with Dr Hendricks BW explained to him what had happen the night before. He advised that it would be unwise to return back to her residence and he organised temporary accommodation at Fenner Hall. BW explained that she did not go to Fenner Hall that first night but stayed at an acquaintances house. BW returned to the property on the Friday after the event in order to get some clothes, books and to talk to her housemate about her post. BW also left a letter of notice to vacate the property on KA’s car windshield. BW did not see KA at this time.
BW stayed at Fenner Hall for the next week and had no contact with KA until the Sunday before she reported the event. KA had called BW and sent her text messages. When she moved her possessions out of the residence, KA returned her bond in person. When KA called, he asked to meet and to talk. However, BW reiterated what she had said in her notice to vacate that she only wished to communicate over email. BW would not entertain the idea of meeting or having a conversation with him.
The witness is unable to remember whether the call, or text, from KA came first. The Prosecutor then showed a screenshot of text messages from KA to BW. BW recognised these screenshots as the messages she received from KA. BW still could not remember when the text message exchanged occurred, however, could recall that it was after she gave notice, about a week later and before BW saw KA again when he returned the bond. BW further recollected that the text messages were made between giving her notice to vacate on the Friday and going to the Police on the Monday. The date that BW went to the Police was 17 April.
BW said she did not consent to what had occurred in the kitchen with KA.
Cross-examination
Defence Counsel questioned BW regarding the New Year’s Eve incident. BW was asked whether it was the case that KA came to her room and invited her to see the fireworks in the City, she replied yes. When it was put to her that her response to that invite was, ‘I’d love to’, BW responded, ‘I don’t think I was that enthusiastic, no’.
BW agreed that she walked in the City along Ijong Street and Lonsdale Street. Defence Counsel suggested that by the time they reached the fireworks there had been physical contact between the two, BW stated that the Defendant held her hand. BW agreed that the Defendant held her hand on the walk to the fireworks. BW agreed that the conversation with the Defendant at the time was about various things and various topics. She described it as, ‘general exchanges’. BW was then asked if she saw any performances when she was in the city before the fireworks, BW responded that she wouldn’t call it watching but that she did pass by some performances.
BW recalled walking with the Defendant down towards the lake. Defence Counsel suggested that there was an understanding between BW and the Defendant that where they had walked to at the lake was not a good place to watch the fireworks. Defence Counsel then suggested to BW that they walked back towards the City, toward the footbridge from Commonwealth Park to the swimming pool. Defence Counsel asks BW if she knew the footbridge and it was suggested to her that was where she watched the fireworks from. BW replied, ‘I think so, yes’.
BW again agreed that she was having general conversation with the Defendant as they were walking around. Defence Counsel then suggested that BW did not want to go home straight away and that she suggested to the Defendant that they should go for a walk. BW said, ‘Yes, we didn’t return back straight away’. [I clarified the question and asked BW whether she suggested that they both go for a further walk. BW responded, ‘I did not make that suggestion, no’. My comment.]
Defence Counsel asked BW for her recollection on the matter, BW stated, ‘He suggested that he’d wanted to stay a bit longer and that he’d appreciate company, I obliged’. Defence Counsel suggested to BW that on KA’s version it was a mutual idea, or BW’s idea, to continue walking after the fireworks. BW said, ‘I don’t think it was a mutual idea or my idea. I believe that it was his idea’.
Defence Counsel suggested that they walked all the way to the Carillion from the footbridge, and that the two of them chatted that whole time. BW agreed and said that they were both very lost at that point in time. Defence Counsel asked BW about the details of their conversation. BW said that she told the Defendant about her family. BW agreed that she told the Defendant that she has a Brother who lives in Hong Kong and that he is quite Chinese in appearance. BW also agreed that she said that her Brother had a similar lifestyle, that he likes Chinese food, and that he has a Chinese girlfriend. BW agreed that she told the Defendant she had lived in Europe for many years and that she described her lifestyle as more European than her Brother’s.
BW agreed that she told the Defendant the type of Boyfriend she was looking for. Defence Counsel suggested her response was along the lines of, ‘I only want a nice guy with no other preference’, BW said in reply that she told KA she wasn’t interested in dating. BW was asked if she had said, ‘just a nice guy’, BW reiterated that she told the Defendant that she wasn’t interested in dating.
Defence Counsel suggested to BW that when they arrived at the Carillion it was around 1:00 am and they stayed there chatting and looking at the stars. BW said that she didn’t think so and that she just remembered being quite lost and trying to find their way back. Defence Counsel suggested they both walked back along the lake up to Commonwealth Bridge. BW said that her sense of direction wasn’t great in that area at that time so she followed the Defendant so that they could get to the city and eventually back home.
Defence Counsel suggested that at times when they were walking by the lake towards the Bridge the two were holding hands. BW agreed and said, ‘He held my hand, yes’. BW also agreed that the two discussed more about her life in Europe and each other’s lives generally. BW denied that she said in Europe there was more physical contact between people such as hugs and kisses.
BW agreed that after the conversation the Defendant put his hand around her waist as they were walking, she also agreed that she didn’t say anything about removing his hand from her waist. BW agreed that at this time they were walking back to the City and they discussed whether to get something to eat.
BW agreed that along this walk they had more general conversation, including about the sports she likes. BW told the Defendant that she had done about five years of boxing training, although denied showing the Defendant any of her boxing technique when they were closer to home.
Defence Counsel asks BW whether the two bid each other good night and whether she recalled a hug or, if not, the Defendant being close to her at the time. BW agreed with both of the propositions.
In relation to the night of April 11, when the incident occurred, it was suggested that where she was cooking, in relation to where the Defendant was cooking, was close in proximity. BW disagreed and explained that they are not close, the kitchenette where she was cooking was closer to her room up one end of the house and the kitchen where the Defendant was cooking was closer to his room, up the other end of the house.
Defence Counsel suggested that even though the two cooking areas were separate, BW still ate dinner with the Defendant. BW agreed. Defence Counsel suggested it was true that a housemate walked past the two having dinner together and the Defendant asked that housemate to join them. BW agreed. It was suggested that during the dinner there was further nice general conversation. BW agreed.
In relation to the washing up after dinner, BW explained that she tried to help the Defendant do the washing up, but the Defendant had told her not to. BW explained that the washing up had been abandoned after conversation continued between the pair.
Defence Counsel suggested a version of the conversation, including whether they were talking about frozen vegetables and about drinking coffee. BW agreed that they were talking about those topics. BW agreed that she told the Defendant that she liked to drink a lot of coffee every day. Defence Counsel then suggested that she told the Defendant that she has trouble sleeping. BW agreed and said she is an insomniac, but she also enjoys staying up at night. Defence Counsel suggested she told the Defendant that sometimes she only sleeps one day per week and the Defendant expressed concerns for her health. BW agreed.
Defence Counsel suggested the Defendant said to her that she should find a boyfriend to look after her. BW did not remember that particular sentence, however agreed that she did say something to the effect of, ‘how can I have a boyfriend with my type of lifestyle and sleeping habits’. BW agreed that she thanked the Defendant for the food he had cooked.
In relation to the incident in the kitchen, Defence Counsel suggested to BW that after she thanked him for the food there was a goodnight hug. BW disagreed with this version stating, ‘I don’t think that’s what happened’. It was then suggested to BW that while they were hugging the Defendant turned his head and there was a connection of their lips. BW denied that version and replied, ‘I believe that he used his hands to push my face towards his’. It was suggested that the Defendant did not use his hands to turn her face and instead he turned his head and there was contact of their lips. BW responded saying, ‘I think there was something moving my face towards – it wasn’t necessarily a natural progression’.
Defence Counsel then suggested to BW that after the initial contact the pair separated, and the Defendant asked if she was okay while holding her hands. BW said she did not recall this happening. Defence Counsel suggested that BW indicated she was okay by saying yes or nodding and that there was a further hug between the pair. BW replied, ‘I don’t recall that happening’. [I then clarified with the witness whether she meant that she didn’t remember or whether she didn’t think it happened, the witness clarified that she didn’t think it happened. My comment.] Defence Counsel then suggested to BW that after the Defendant asked if she was okay and there was a further hug, that she placed her head on his shoulder and the Defendants hands were around her back, that the two then stood there for several minutes hugging. BW replied, ‘I don’t recall placing or resting my head on his shoulders, but if my head was touching his shoulders then that was that’.
Defence Counsel again reiterates that there was a hug between the pair and BW had her face resting on his shoulders. BW interrupted and said that it would be difficult for her to be in that position as they are the same height. Defence Counsel continued to suggest that BW was still hugging the Defendant when he started moving his hand up and down her back between her waist and shoulders. BW disagreed with that proposition. BW agreed that there may have been some contact made by the Defendant with the underside of her breast. Defence Counsel suggested that the Defendant never directly placed his hands on her breasts and squeezed hard. BW disagreed with that proposition. Defence Counsel suggested that the Defendant never placed his hands down the inside of her pants. BW disagreed with that proposition.
Defence Counsel suggested that when there had been the contact with her beast, that was when she moved her hands in front of her and the pair separated. BW said in reply, ‘I believe that my hands were always in front of me’.
In relation to the messages sent to and from NM at approximately 9:55pm. Defence Counsel suggested that BW was confused during this period. BW agreed.
Re-Examination
The Prosecutor asked whether BW recalled a question from Defence while the pair were at the lake about what sort of boyfriend she was looking for. BW said that she didn’t recall that exact conversation. BW also conceded that she does not remember exactly where that conversation took place.
The Prosecutor asked BW why she did not say anything when the Defendant put his hand down and inside her pants. BW replied, ‘Didn’t know what to say, what was appropriate. I dismissed it off as something sort of platonic in that sense and I didn’t feel like being confrontational about the incident’.
NM
Evidence in Chief
NM gave evidence in Court before me on 26 February 2019. NM is a student Nurse studying in Canberra who has known the complainant since about 2016. They were friends online and would meet up occasionally and talk about their lives.
In relation to the incident on April 11. NM recalled that he was at home at the time of the incident and that he had been talking to BW throughout the day. NM confirmed that he was at home the evening when he had contact with BW via text message. NM is then shown the text messages (P3).
NM identified the exhibit as messages between BW and himself on Tuesday April 11 at 9:55 pm. He also identified the line stating, ‘I need help, I think’, as being from BW and the other text stating, ‘Okay, what’s going on’, from himself. NM confirmed that he requested BW call him that evening. He said the phone call lasted approximately one hour.
NM recounted how when the conversation on the phone first started it was difficult to hear BW because she was crying and very quiet. BW was whispering on the phone and he had to ask her to speak up so that he could hear what had happened. NM recounted that BW said that she had been in the kitchen cooking food when she was offered dinner by her landlord. BW accepted the dinner in order to be friendly. After the dinner the landlord attempted to kiss BW. NM said that he was not able to hear the rest because she was crying too much. NM said the next thing he heard on the phone was BW explaining that she had run away to her room and locked herself inside. NM described the tone of her voice as, ‘frequently halting, very distressed, crying quite often, and hyperventilating’.
NM said that he did not remember anything else about the conversation and that they had small amounts of communication for the rest of the evening.
Cross-examination
NM agreed that he recalled speaking to the Police on 18 April. Defence Counsel asked NM whether the statement he gave to Police regarding the telephone call accords with his memory, NM agreed. In relation to his statement to Police regarding the New Year’s Eve incident, where BW told him the Landlord had kissed her, Defence Counsel asked whether that was fresh in his memory at the time. NM agreed.
Defence Counsel then read out part of NM’s statement, where NM said, ‘she felt distressed and violated, she felt guilty because she may have misread his social cues’. NM agreed that is what he put in his statement. NM agreed that was something that BW had told him, that she may have misread his social cues, saying, ‘Yes, that is her words to me’.
Re-examination
The Prosecutor asked NM when it was that he recalled those words were said to him. NM stated that it would have been via text message around New Year’s Day or a few days afterwards.
Peter Hendricks
Examination in Chief
Mr Hendricks gave evidence in Court before me on 26 February 2019. Mr Hendricks is the Deputy Dean of Students at the Australian National University. His primary role is to provide independent and impartial advice to students about matters impeding their studies.
Mr Hendricks was asked if he recalled the first time he met BW, he replied 12 April 2017. Mr Hendricks on how that meeting came about said that it was the middle of the afternoon when he received a phone call from someone on the ANU switchboard who had a distressed student on the line, they put the distressed student through to his office and they initially spoke on the phone.
Mr Hendricks said BW said she had been, ‘approached and touched inappropriately’, by a man living in her house the night before. BW said that the man had put his hands down her clothes, and she hadn’t wanted that, and then she had locked herself in her room. BW said she was still in her room when she called. Mr Hendricks asked BW if she was safe in her room, she replied that she was not sure as the man was still there. Mr Hendricks said he asked BW what he did for work, she replied that he was a public servant. Mr Hendricks said that he was probably at work. Mr Hendricks suggested that she come out of her room and to come and see him on campus. BW then came to Mr Hendricks office.
Mr Hendricks described her demeanour, stating that when she came to his office, she looked very dishevelled as if she had not showered for a while. She may have been wearing pyjamas. She was extremely distressed when she came into the office, curling up on a chair and crying incessantly with snot running down her face and tears running down her face. Mr Hendricks described that he had difficulty getting her to tell him what had happened and that when she did speak, he had difficulty understanding because she spoke very softly.
Mr Hendricks recalled that BW told him again what had happened the night before and as a result of that conversation he was concerned for her safety and considered that she shouldn’t return home. Mr Hendricks recalled BW saying, ‘I should go back its nothing’. Mr Hendricks said he responded by saying that he didn’t think it was nothing and that the University could provide her with emergency accommodation. Mr Hendricks stated that at some point in the conversation it became apparent that BW suffered from social anxiety. Mr Hendricks said it took approximately 2 hours to calm her down and to convince her not to go home.
In relation to his conversation with BW about the incident, Mr Hendricks said that BW told him that a man put his hands under her clothes, and she hadn’t wanted it to happen. BW then said that she put her hands to her face and ran to her room and that was the extent of the interaction as she described it to Mr Hendricks.
Cross-examination
In cross-examination Defence Counsel asked some questions relating to the speed of the incident, Mr Hendricks said that from what he gathered the incident happened in the kitchen quickly and then she ran to her room crying.
Constable Linden
Constable Linden gave evidence in Court before me on 26 February 2019. Constable Linden was attached to City Police Station and was the investigating Officer at the time of the incident. Constable Linden said that she started shift in the afternoon and came into the front office and there was a hand over of Constables in the front office. Constable Linden was told there was a lady in the front office who wanted to make a complaint. Constable Linden then walked out and introduced herself to BW and then took her statement.
Constable Linden said that BW named the Defendant specifically when giving her statement. Constable Linden was not able to locate the Defendant on that initial night but left a calling card. Constable Linden said that she took statements from BW, the Defendant, NM, and Mr Hendricks.
KA
Examination in Chief
KA, the Defendant, gave evidence in Court before me on 26 February 2019 and 27 February 2019. KA was 53, born in China, and had been living in Australia for 20 years. At the time of the incident he was working at the Department of Human Services. KA was living in Braddon and owned the premises where the incident occurred. KA leased out rooms in the premises to students. KA said one of those students was BW.
The Defendant was asked whether he spoke to BW on New Year’s Eve 2016, and if he did, what they spoke about. The Defendant said that he did speak to BW and that he asked her at around 10:00 pm whether she would like to come to the fireworks. The Defendant stated she said, ‘I’d love to’.
The Defendant said they walked into the city where they saw some performers, they then continued their walk to the lake to see the fireworks because the Defendant thought the fireworks may be around the lake area, but now knows they were not. At the lake the Defendant said that they both went back towards the pool to watch the fireworks on the bridge. After the fireworks the Defendant asked BW whether, ‘she will like to stay a little but longer or she like to go home immediately’. BW replied saying that she would love to go for a walk along the lake. The pair, on the Defendants evidence, then walked from the bridge to Aspen Island where the Carillion is located.
The Defendant denied that when they were in the City watching the performers that he touched BW. The Defendant said she had told him a lot about her family, that her Father was from India and her mother was from China. The Defendant said she also told him that she had a Brother who is in Hong Kong and who has a Chinese girlfriend in Hong Kong. BW also told the Defendant that she had been to Europe and had lived there for several years. The Defendant stated that he asked BW about boyfriends because she brought up the fact her Brother has a Chinese girlfriend, so he asked her what type of boyfriend she preferred. When asked that question BW replied that he should be a nice and kind guy.
Defence Counsel asked the Defendant what the pair did when they reached Aspen Island. The Defendant said that they walked around and looked at the scenery such as the library, the lake and the stars. They talked about her university major and the stars. After Aspen Island they both walked to the Commonwealth Bridge. Along this part of the walk there was physical contact, the Defendant held BW’s hand because he could hear noises of animal and was worried that she was afraid. The Defendant then described what the two were talking about as they were walking toward Commonwealth Bridge. They were talking about her living habits in Europe and how to view the stars. That it was better the darker the night sky was.
Regarding Europe, BW said there was a lot of physical contact, ‘for example, when people meet each other they will hug or kiss on the cheeks’. The Defendant said after the conversation about physical contact there was more physical contact between himself and BW and there was further contact with her shoulders and waist because he thought it may make her happier.
The Defendant explained that they walked into the City area and he asked her if she wanted something to eat because people were eating, and she responded by saying that she didn’t want anything to eat because she was on a diet. Then they both continued walking in the direction of home.
The Defendant said on the way home, they had some general conversation and she mentioned that she had five years boxing experience. BW then showed the Defendant some of her boxing techniques because the Defendant was surprised so he asked her to show him some.
The Defendant stated when they got back he was very tired, they both said goodnight and he went to his bedroom to sleep.
In relation to 11 April 2017. The Defendant said the two were cooking dinner when they agreed to eat together. AD also walked into the kitchen area when they both offered for her to eat with them, she said she was busy and could not join them. The Defendant said he and BW had general conversation about travel and work. After dinner the Defendant said that he did the washing up because there were only a few dishes to be cleaned.
In relation to whether they talked about coffee. The Defendant replied yes, BW said she knew many coffee shops and recommended he try them. There was also further conversation where the Defendant stated the he never drinks coffee because he couldn’t sleep if he did so. The Defendant said he asked BW how she could fall asleep if she drinks so much coffee and she said that sometimes she doesn’t sleep for a whole week. The Defendant said he was really surprised, and he said it was really bad for her health.
The Defendant said, ‘maybe you should find a boyfriend to take care of you’. BW responded to this statement by saying that her lifestyle is a bit strange and it wouldn’t allow her to find a boyfriend. The Defendant thought she was talking about her sleeping habit. The Defendant said that he suggested to BW that she should find someone to sleep with. By saying this the Defendant meant to sleep next to, he wasn’t talking about sex, more so to care for her and to help her get to sleep.
The Defendant recalled that BW thanked him for the food. After BW thanked the Defendant, the Defendant said that he felt miserable for her because she had said that she didn’t sleep well or eat well and didn’t have many friends. The Defendant said that he then hugged her to encourage her. He then patted her back. The Defendant then said as they were hugging her head was at the left side of his shoulder.
The Defendant was shown Exhibit D1. He was asked questions about the floor plan which had been marked with numbers to show where physical contact occurred in the kitchen area. In relation to the first time they hugged, the Defendant said that his hand moved to the middle of her back. The Defendant remembers moving his hands while hugging her.
In relation to contact between their faces the Defendant said their lips touched. It was not intentional, that he wanted to let her go and his head turned, and their lips touched. He explained that he was shocked and didn’t know what happened, he thought that BW kissed him.
The Defendant did not say anything to BW at this time. The Defendant said that he moved to position 2 as shown on exhibit D1. They had separated, there was physical distance between their hands. He said that he felt embarrassed at the time, so he took her hands and asked her if, ‘it is okay’. The Defendant said that according to his memory he got, ‘the signal… [that] she was okay’. The Defendant says that he cannot remember clearly what the signal was, but it might have been nodding of the head, saying yes, or okay.
After that the Defendant said he hugged her again. The Defendant said his hands were on her waist and her hands were on his shoulders. The Defendant was asked whether his hands were on top or underneath her clothes at the time. He said he did not think he touched her skin at that time, although her hands were on his shoulders so there may have been bare skin between her shirt and pants. He said this may have been the case, but he did not touch the part where her skin was exposed.
The Defendant stated that they were at position 2 for a few minutes and there was a window, he thought that someone might seem them, so they both moved together from position 2 to position 3 on the diagram. At position 3 the Defendant stated that they hugged for a while. He said that one of his hands was a bit higher and one a bit lower and the lower hand touched her skin because of her posture. The Defendant stated that at first his hands weren’t doing anything and then later he moved his hands around. His hands moved around her back.
The Defendant denied that he put his hands on her breasts and squeezed hard. He said, ‘no, I didn’t do that’. The Defendant denied putting his hands down her pants underneath the fabric. The Defendant also denied putting his hands down the front of her pants near her genitals.
The Defendant denied touching BW’s breast and said that his hands were below her breasts as they separated from the first hug and his hands went from her back to the under part of her breasts. At that time the Defendant said that she did not say anything, but her hands were in front of her with her wrists bent. The Defendant then clarified by saying that while they were hugging her arms were on his shoulders but when they separated her hands were in front of her.
In relation to his view on whether BW wanted to hug him he said that, ‘at position 1 I hug her, but at position 2 her hands were always on my shoulders and I think that she want to hug me’. He explained that they were in the same position at 3 and so he thought that she also wanted to hug him there as well.
After the Defendant made some contact with the bottom of the breasts, he stated that he put his hands down because he wanted to see if she was happy or not. The Defendant said that he did not know and didn’t think if touching the bottom of her breast was deliberate, he thought that she might like someone to touch her, so he touched her. After there was contact with her breast BW said, ‘I’m leaving’, and she left. The Defendant said he didn’t think anything of it, and he went back to his room and to sleep.
The Defendant agreed that he saw a letter from BW on his car about leaving the tenancy and he thought that was several days later, on Sunday evening. The Defendant said that he did not see BW between BW leaving the kitchen and him seeing the letter on his car. The Defendant agreed that he sent BW messages after he received the letter, asking how she was.
The Defendant is then shown Exhibit P5, in relation to a message he sent which reads, ‘How are you? I feel so sad, can’t sleep. Do not want eat anything’. The Defendant said he wrote that because he felt sad. The Defendant said that there were two reasons, the first is like a Chinese goodbye greeting, which is used when someone leaves and you say, ‘I’m sad’. The second reason is that he has lived in many share houses and when he talks to someone a lot and they move out he might be sad.
The Defendant believed BW had consented to him hugging her, saying, ‘Yes, I think so. I think she agreed’.
Cross-examination
The Defendant agreed that he asked BW to go for a walk to see the fireworks. The Defendant said it was his evidence that BW replied to his request by saying, ‘I’d love to’. The Defendant admitted that he had barely spoken to BW before this request but said he asked BW to go and see the fireworks because there was no one else in the house. By this he meant there were no other students in the house that night.
It was suggested that he had not been close with BW, the Defendant agreed with this proposition. The Defendant agreed that was because he was her Landlord. The Defendant also agreed that all of their interaction up to that point had been in relation to the tenancy, such as, paying rent.
The Defendant agreed that he asked BW to stay out because there were still many people around so he asked BW whether she would like to stay on or go home. The Prosecutor asked the Defendant whether he had ever gone out in this manner with other tenants, he said yes but that he couldn’t remember specifically.
In relation to the animal noises that he heard, the Defendant opined that he thought they were ducks and that they sounded frightened as they walked past. He agreed that it was when they heard the animals that BW leaned in towards him. The Defendant also agreed that he thought she was scared so he took her hand. The Defendant denied she screamed but when he held her hand she held his hand in return.
The Defendant agreed that there had been a conversation about physical contact culture in Europe, The Prosecutor asks the Defendant if it was his evidence that he thought physical contact with BW would make her happy. The Defendant replied that at the time of the conversation about physical contact in Europe, yes. That is when he moved his hand to her shoulder. He agreed that he didn’t ask if she wanted physical contact. The Defendant agreed that he just assumed that BW wanted the physical contact because they were holding hands and he thought she liked it. The Prosecutor asked if he had ever held the hand of a tenant previously, he replied no. The Defendant explained that the reason he continued to hold hands with BW was because she was holding his hand in return. The Defendant said that it was late, and he thought that by holding hands it would make them both feel safe and peaceful.
The Defendant agreed that he had his hand on her shoulder, saying this happened by the lake and also on the way home. The Defendant was asked to demonstrate where he was placing his hand on BW and he indicated the upper and lower back area, just above the buttocks [I then clarified to the parties that the place the Defendant indicated is between L1 and S5, the lumbosacral area. My comment.]
The Defendant stated he had not held the waist of a tenant before. The Defendant said the reason why he put his hand on her waist was that he thought she might like it and she had lived in Europe for a long time, that she spoke of a friend from Italy, and this had made him think that she would like it if someone touched her . The Defendant agreed he did not ask whether she wanted to be touched. The Defendant said he assumed she wanted to be touched, explaining that she didn’t tell him or show him any sign that she didn’t like it and told many stories about her personal experiences to him.
The Defendant denied being romantically interested in BW. In relation to how many times between New Year’s Eve and April that they saw each other, he told the Court that they ate together once and she cooked him Indian cuisine on 14 February 2017. No one was initially in the kitchen with them when they were eating dinner but later one male from Taiwan joined in. The Defendant stated that the rest of the time they would just say hello and sometimes they would hug. The Defendant was asked what he meant by saying that they hugged. The Defendant explained that once or twice he saw her, and he told her she looked nice and gave her a hug. He did it because he wanted to make her happy. The Defendant stated that he did not do this to any other tenant but according to his memory BW liked it, so he did it. The Defendant agreed that she hadn’t told him that she liked to be hugged but stated that she looked happy and never told him that she didn’t like it. The Defendant again confirmed that he was not romantically interested in BW.
The Defendant reiterated that he hadn’t done this with any other tenant because they don’t do such things in China. The Prosecutor pressed him by asking him why he did he do it with BW, he responded by saying that it was because of the New Year’s Eve night and that he thought she might like it.
In relation to the incident on 11 April 2017, the Prosecutor, referring to the evidence given by the Defendant in examination and chief, suggested that they were sharing a meal together and had a conversation about coffee and BW’s poor sleeping habits after the meal. The Defendant agreed to these propositions. The Defendant agreed that he suggested, as part of that conversation, that she should find a boyfriend. The Defendant agreed and explained that the reason he suggested this was not only because of her sleeping habits but also because she was not eating well.
The Defendant, in evidence the day before denied saying that BW should find someone to ‘sleep with’ to assist her sleep. The Defendant said that he was definitely telling the truth in his evidence in chief, but if he said something wrong then it was his mistake.
The Prosecutor suggested that the Defendant gave evidence that he said he felt miserable for BW because she didn’t sleep, and she had no friends. The Defendant agreed and added that he felt miserable over her eating habits as well. The Prosecutor asked when it was that BW told him she didn’t have any friends. The Defendant stated that she didn’t tell him, but he had assumed she had no friends as he had never seen her with anyone else and the Chinese tenants did not want to speak to her.
In relation to Exhibit D1, the Prosecutor suggested he felt miserable and gave BW a hug at position 1 on the exhibit, he replied yes. The Defendant agreed that he initiated the hug and patted her back while her head was on his left shoulder; he also agreed that he was moving his hands up down, left and right. It was suggested that there was a kiss in this position, the Defendant said that there was a slight touching of their lips. The Defendant described how the kiss occurred and said her head was on his shoulder, the Defendant then moved his head towards BW, and because they are the same height, they accidentally touched lips. The Defendant agreed that you could describe it as a kiss.
In relation to a question as to why the Defendant was shocked when the kiss happened, he said that it happened all of a sudden and he was shocked for a few seconds. The Defendant said that the kiss went for a few seconds and that he didn’t say anything when it happened, he was shocked and didn’t move and he was still.
When asked if he didn’t want the kiss to happen, he said that he did not want it to happen. The Defendant was asked how long the hug went for and he replied, a few minutes. The Defendant recalled that after the kiss the two separated and BW had lowered her head, and this was when he held her hands and asked if she was okay. The Defendant was asked why he asked BW if she was okay. The Defendant stated because he was embarrassed, that such things shouldn’t happen. When saying such things shouldn’t happen, he was referring to the kiss. The Defendant stated that now he sees the kiss as an accident but at the time he thought she initiated the kiss.
The Defendant agreed that after he asked BW if she was okay, he hugged her again. The Prosecutor then posed the question, why it was that he would hug her again if he wasn’t interested and didn’t want to kiss her again? The Defendant replied that after the close contact with her he thought of it as an upgrade to their relationship, and he didn’t think it was good to leave her like that.
The Defendant clarified what he meant and said that they hugged, and their lips had touched, it would not have been good to suddenly run away. The Defendant explained that he used the term upgrade because they were initially just landlord and tenant but after this incident it was like an upgrade in their relationship.
The Defendant agreed that he said that he had hugged BW a couple of times in the past. The Defendant explained that was just as friends, this time their lips had touched and that was the difference. The Defendant further clarified his evidence by saying that he doesn’t necessarily mean upgrade and that the evidence he is trying to give (through the translator) is that in China when people kiss their relationship or situation changes, as opposed to a hug. The Defendant explained that he felt the need to comfort BW after the kiss. The Defendant said that after the kiss he did not like her any more.
At position 2 of Exhibit D1, the Defendant said he had his hands on BW’s waist. During this second hug nothing was said and there was no kissing according to the Defendant’s evidence. The Defendant gave evidence that the second hug lasted a few minutes and his hands were not moving during this hug. The Defendant agreed that it was his evidence that the reason they moved from position 2 to 3 was because he thought someone would see them through the window. The Defendant thought BW was fine with what was going on and said that they were both agreeing to physical contact. The Prosecutor inquired as to why, if that was the case, he was concerned if someone saw him. The Defendant stated that in China it is not good for other people to be seen hugging. [I then clarified with the Defendant evidence he gave earlier. He said that hugging in China and Australia is okay but not to kiss. The Defendant replied that a hug for a second is acceptable but a hug for a few minutes is different. My comment]. The Defendant opines that the hug for a few minutes was different because the kiss had made it feel more intimate. The Defendant said that he didn’t really think about it at the time but on reflection he can see how it changed.
The Defendant told the Prosecutor moving from position 2 to 3 in Exhibit D1, that they were still hugging when they moved to this position. The Defendant described the pair as suddenly moving to position 3. The Defendant said his hands were on her waist and her arms were on his shoulders. The Prosecutor then asks if the two were hugging in front of the window in position 1. The Defendant agreed although added that he did not notice the window in position 1. The Defendant denied telling BW ‘let’s move’ when he saw the window. The Defendant described how the pair separated to move to position 3 but her hands were still on his shoulders and his hands still on her waist.
The Defendant said that whilst in position 3 they continued to hug, and he at some point moved his hands from her waist around to the front. The Defendant also agreed that when he moved his hands to the front the upper part of his hand touched the bottom of her breast. The Defendant said that his hands were under her clothes. In relation to where his hands were on her back in position 3, he said that at the beginning they were at her waist but then they moved to her shoulders to her lower waist. The Defendant agreed his hands were under her clothing when they were moving in this motion. The Defendant then agreed that they moved backwards, and his hands touched the lower part of BW’s breasts and his hands were under her clothing. To explain why his hands were under her clothing he said that at the beginning her clothes were up a little bit, so his hands were on the skin on her waist. The Defendant agreed that he moved his hands up and down her back under her clothing. The Defendant conceded that he had never hugged a friend with his hands under their clothing, saying, ‘No, never’ .
The Defendant agreed that when he moved his hands under her clothes it was on purpose. In relation to the purpose of his actions he said, ‘When I was young with my girlfriend and we enjoy touching each other on [the] back. When I touched my girlfriend’s back, and she felt happy, and I [thought] maybe [BW] will enjoy it, and if she enjoy[s] it, she might consider finding a boyfriend in future’.
The Defendant conceded that he never asked BW if she would like to be touched in that way. The Defendant denied that he was interested in BW sexually. The Defendant conceded that when he would touch his girlfriend like that it was sexual, replying, ‘sometimes yes, sometimes no’. The Defendant agreed that after he removed his hands (during the third hug) BW left the room and said, ‘I’m leaving’.
In relation to the text messages (P5), said to be text messages the Defendant sent to BW, the Defendant denied he had ever sent a text message with those words. The Defendant agreed that other than the times they had already referred to he had not spoken to BW. The Defendant later explained that he had talked to BW for about 10 hours in a 3-month period which he thinks is a long time. In describing whether his relationship in 2017 was close, the Defendant describes it as a little bit different but nothing special. The Defendant was asked why he sent the messages if he wasn’t close to her. The Defendant said, ‘I didn’t sleep and didn’t eat because of her’ . The Defendant tells the Prosecutor that he just wanted to speak to BW. The Defendant said the reason was that he wanted to talk to her because he was doing night shift and didn’t feel well, but that he didn’t realise she was unhappy. The Defendant said he did not know why she moved out but thought it may have been because she was shy.
The Prosecutor then shows Exhibits P6, P7, and P8 to the Defendant. The Prosecutor first directs the Defendant to look at page two of Exhibit P6, which are emails sent to Mr David Swan of the DPP. The Defendant accepts that the email which is shown to him is what he sent to Mr David Swan. The Prosecutor read parts of the email to the Defendant:
‘The issue is that I did ask [BW] before I hug her. Now she say I did not…and I did’
‘I feel sorry for [BW] and I did believe wrongly she was consent, but no one will believe me’
The Prosecutor asked what was he referring to when he said, ‘I did believe wrongly she was consent’. The Defendant replied, ‘It was obvious, because I thought she agreed to it, but later she reported it to Police and obviously I got in the wrong situation’. The Prosecutor asked the Defendant what he means using the word ‘it’. The Defendant concedes that he was referring to the second hug.
The Defendant was then shown Exhibit P7 which is an Affidavit dated 21 June 2018. The Prosecutor asked whether it was his evidence the day before that he had read the documents and signed it, the Defendant replied yes. He is asked whether he understood what an affirmation to tell the truth was (because the document states ‘do solemnly affirm’). The Defendant replied no, however, the Defendant understood at the start of the Court proceedings when he took an affirmation that he needed to tell the truth.
The Prosecutor referred the Defendant to page 1 of the Affidavit (Exhibit P7). It reads:
‘At about 10:30 pm on 31 December 2016, New Year’s Eve, when I was in the shared kitchen of the boarding house preparing tea, Ms [BW] asked me to accompany her for a walk to watch fireworks in the park around Lake Burley Griffin’.
The Defendant interjected and said this is not correct. The Defendant explains that when he was asked to sign the Affidavit, he didn’t want to sign it. The Defendant said that his Barrister said, ‘if you don’t sign it, I won’t provide service to you’, and that is when the Defendant said he signed the document. The Defendant does agree that the Affidavit is inconsistent with his evidence.
The Prosecutor referred the Defendant to paragraph 11. The Defendant agreed that is not what happened. He was then taken to paragraph 9 of the document which he agreed is not the truth. He is referred to paragraph 21, which he says was not the whole truth. The Defendant was referred to paragraph 26 which he says is the truth, that is, BW is a friendly university student but was not someone who he had time or inclination to be very close to.
The Prosecutor then referred the Defendant to Exhibit P8, which is an Affidavit signed by the Defendant. The Defendant told the Court that he does not remember seeing some of the document but agrees that the affidavit was signed by him. The Defendant said that he was asked to sign the document, so he did. It was suggested that the Defendant remembers the incident in the kitchen, ‘but you can’t remember signing the affidavit’. The Defendant said that he remembered the kitchen incident because he was asked many times. In relation to the Affidavit, the Defendant said that he does not remember because he has signed many documents.
Re-examination
Defence Counsel asks the Defendant when it first became apparent that BW was not happy with what had happened. The Defendant said only after the Police Officer called him. Defence Counsel then sought clarification of the two reasons why the Defendant put his hand on BW’s back when walking back to Commonwealth Bridge. The Defendant said that the first was because he thought it might make her happier and the second because of the story she told him about her Italian friend. Counsel then asked what the two reasons were for thinking that BW did not have any friends. The Defendant said that the first is because he had never seen her with anyone else and because the old tenants said that they did not want to speak to BW. [I then asked the Defendant if he thought BW was shy, he replied a little bit. My comment].
Submissions
Prosecution
The Prosecutor in her submissions submitted that the elements of the offence pursuant to section 60 (1) of the crimes act 1900 are as follows;
(a)the Defendant commits an act;
(b) the Defendant intends to commit an act;
(c) the act is indecent according to the standards of morality;
(d) the act is committed on or in the presence of another person;
(e) the other person does not consent to the act; and
(f) the Defendant is reckless as to whether the other person is consenting to the act.
The Prosecutor set out the evidence in summary including the evidence from the Defendant. The Prosecutor also outlined the defence counsel’s opening which indicated that the factual dispute was about consent or lack of knowledge of that consent.
The Prosecutor also outlined that the issues after the opening by Defence Counsel may be the particulars outlined by the Prosecutor, a factual dispute as to what occurred on 11 April and whether the complainant was consenting to the touching and what was the Defendant’s knowledge or reckless knowledge as to whether she was consenting.
In relation to the particulars having been met the Prosecutor indicated that the evidence given by the complainant was sufficient in that she described being touched under her clothing on the breasts in her pants and on her back.
The Prosecutor indicated that the case against the Defendant was that he behaved in a manner which amounted to an act of indecency and he did so by placing his hands upon the complainant, under her clothing and rubbed his hands up and down her back placing his mouth on her mouth and kissed her. Further he rubbed her breasts as well under her clothing. It was also alleged that he was moving his hands under her trousers which were grey sweatpants. The Prosecutor also indicated that the complainant was not wearing any undergarments that evening. That is the conduct said to have constituted the act of indecency.
The Prosecutor outlined the evidence given by the complainant which, it was submitted was consistent with the Prosecution opening and the charge laid against the Defendant. The Prosecutor submitted that it is a question for the court to decide whether the elements of the offence have been made out beyond a reasonable doubt.
The Prosecutor submitted that in order to do so the court will need to assess the credibility and reliability of each witness who gave evidence. The Prosecutor submitted that the complainant was honest and reliable as a witness. The complainant did her best to recall facts and details which occurred some two years prior, she honestly advised when she could not recall some details and made concessions where appropriate. The Prosecutor submitted she did not attempt to exaggerate the actions of the Defendant. The Prosecutor submitted that her evidence was internally consistent and remained consistent throughout her evidence.
The Prosecutor submitted that the evidence from the other witnesses was reliable and consistent and the court would accept their evidence in its entirety. Their evidence essentially was in respect to firstly the complaint and second the demeanour of the complainant very soon after the event. The Prosecutor submitted that their evidence was consistent with the version of the events given by the complainant in evidence.
The Prosecutor contrasted the Defendant’s evidence and stated that it was neither credible nor reliable. The Prosecutor described the Defendant as being an extremely unimpressive witness who was unresponsive to questions asked of him. The Prosecutor gave examples of when challenged as to his answers the Defendant attempted to change his evidence and accused his interpreter of not interpreting his responses correctly.
The Prosecutor submitted that the Court would draw a reasonable inference from the overall manner in which the Defendant gave his evidence that he was attempting to tailor his evidence and avoid being challenged on his incriminating responses. Further, the Prosecutor submitted that he was internally inconsistent and implausible giving his evidence in chief and in cross examination which was inconsistent with each other. The Prosecutor submitted that the Defendant refused to make reasonable and obvious concessions in relation to his evidence. The Prosecutor characterised his evidence as untruthful and his evidence evolved and changed as his evidence went on.
The Prosecutor submitted that as well as his evidence given in court there were prior inconsistent statements made by him in Affidavits exhibited as P7 and P8. The Defendant conceded in his evidence that some of the material in the Affidavits was untruthful and suggested that he signed the Affidavits and despite his version of how the affidavits was signed he knew that there was parts of it which was not true but nevertheless he signed them.
The Prosecutor submitted that clearly, the evidence of the Defendant would be difficult to accept given the unreliability displayed in his sworn affidavits. The Prosecutor submitted the court would have no difficulty rejecting the Defendant’s version. The Prosecutor further submitted that if the Court accepts the version given by the complainant it would have no difficulty accepting that the behaviour was indecent.
The Prosecutor submitted that an indecent act is one which has to have an unequivocal sexual connotation. Whether an act is indecent is to be judged according to the contemporary standards of ordinary people. The Prosecutor referred to R v Elrick [2011] ACTSC 66 (‘Elrick’) where his honour Justice Refshauge adopted the formulation of Justice Crispin in R v Morton (1990) 143 FLR 268 and said in the context of whether certain acts were indecent:
Depended upon whether the content offended the recognised standard of propriety or good taste according to the contemporary standards of the Australian community, those being judged by reference to standards except by ordinary decent minded but not unduly sensitive people.
The Prosecutor submitted that if the Court accepts the complainant’s evidence the acts complained of are unquestionably indecent. The behaviour said to be indecent was the kissing, the touching of the complainant under her clothing on her back, chest and pelvic areas. These clearly have an unequivocal sexual connotation and are indecent according to a right-minded person.
In relation to consent, on the complainant’s version of events she did not consent to the actions of the Defendant. The Prosecutor submitted that for the Court to be satisfied the offence has been proven beyond reasonable doubt; the Court must be satisfied that the Defendant knew or was reckless as to the Complainant’s lack of consent.
The Prosecutor submitted that at common law there are two ways a person can be reckless as to another person’s consent. The first is advertent recklessness described as where one person realises the risk that another person is not consenting to an act but proceeds nonetheless, or non-advertent recklessness described as where a person failed to consider whether another person consented to the act.
The Prosecutor submitted that the offence encompasses both forms of recklessness and referred to Sims v Drewson [2008] ACTSC 91 at 32 and also DPP v Walker [2011] ACTCA 1 at 53.
The Prosecutor submitted that having regard to the evidence of the Complainant and indeed the Defendant’s own evidence the court would have no difficulty drawing an inference that the Defendant knew or was reckless as the Complainant’s lack of consent in all of the circumstances.
The Prosecutor further submitted that the court should give itself appropriate directions as noted in Parkinson v Alexander [2017] ACTSC 201 at 84 (‘Parkinson’). The following directions would appear to be relevant and appropriate:
- That direction is that the judicial officer should bear in mind that the Crown bears the onus of proof;
- The standard of proof is beyond a reasonable doubt;
- The accused is presumed by law to be innocent until the evidence is proven beyond a reasonable doubt of his guilt;
- Further the fact finder must be open and unbiased and not let emotion enter into the decision-making process;
- The fact finder must determine whether each of the witnesses is a reliable witness;
- The fact finder is to determine the relevant facts according to the evidentiary material, consider it logically and rationally without acting capriciously or irrationally;
- The finder of fact may accept the evidence of a witness wholly or partially or reject it wholly or partially;
- Where an accused gives evidence on oath, his evidence is be considered in the way any other witness in the trial would be considered;
- That because he gave evidence there is no assumption or onus or obligation on the accused to prove anything in the trial.
The Prosecutor also directed me to section 80 C of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That section outlines matters which I must direct myself to when coming to a decision on this matter pertaining to implied consent. I have taken that section into account as I must when making my decision.
The Prosecutor further submitted in relation to complaint evidence, and referring to the New South Wales Bench Books, ‘that where the court finds that a complaint was made substantially to the effect that the indecent act occurred then the court may use that evidence of what was said in the complaint as some evidence that such an indecent act did occur but, also having regard to the time and manner, it would lead the court to accept the evidence of the complainant. It is a matter for the court what weight and use it gives the evidence’.
The Prosecutor then referred to the ‘Murray direction’ (see R v Murray (1987) 11 NSWLR 12) and submitted that I should give myself the ‘Liberato direction’ (see Liberato v the Queen (1985) 159 CLR 507 at 515 per Justice Brennan and Dean (‘Liberato’)).
The Prosecutor ultimately submitted that the Court would have no hesitation in finding the Defendant guilty beyond a reasonable doubt.
Defence
Defence Counsel submitted that the act described to substantiate the offence was hugging, kissing and touching her breasts and buttocks. [I note each those of themselves would constitute the offence. My comment].
Defence Counsel submitted that the Prosecution has failed because they did not prove beyond a reasonable doubt the element of consent, that is, that the Defendant was reckless as to that consent.
Defence Counsel compared the versions from the complaint at transcript pages 12 and 13 which said the complainant was, on her evidence, holding her hands up against her chest. Defence said this was inconsistent with her allegation that the Defendant put his hands on her breasts. Defence Counsel laments the inconsistency and failure to explain how he could touch her breasts. [I note that the Defendant admitted to touching her breasts. My comment].
Defence Counsel submitted that this was a “word on word” case and cited a passage in Rhodes v Roberts [2013] ACTSC 145 at [63] where Chief Justice Higgins referred to ‘Liberato’ (also referred to by the prosecutor):
The jury must be told that, even if they prefer the evidence for the Prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the Defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
Defence Counsel referred to the evidence from NM and Peter Hendricks and submitted that their evidence was not inconsistent with the Defendant’s version and neither referred to being told the Defendant touched her breasts or buttocks. Defence Counsel submitted that the Court would not reject the possibility that the Defendant did not touch the complainant’s buttocks or breasts.
Defence Counsel submitted that in relation to whether the Court, if it accepts the Defendants version, the conduct admitted to (touching her skin on her back and shoulders and touching her lips) would satisfy the elements of an indecent act.
Defence Counsel referred to R v Girvan (No 2) [2013] ACTSC 138 per Justice Refshauge citing his own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent:
The meaning of indecency is now well known. In R v Court [1989] AC 28 (at 42) Lord Ackner said the Judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter-alia, a definition used by Prof Glanville Williams, textbook of criminal law, second edition (1983), p 231. “Indecent” may be defined as “overly sexual”. This is a convenient shorthand expression, since most, not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simple way of putting the matter to the jury is to ask them to decide whether ‘right minded persons would consider the conduct indecent or not’. It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.
Defence Counsel referred to the unreported judgment of R v RL, Nettle JA citing with approval R v Harkin [2011] SASCFC 24 noted:
Even where an assault is not such as unequivocally to offer a sexual connotation, it may still constitute an indecent assault if accompanied by an intention on the part of the silent thereby to obtain sexual gratification.
Defence Counsel submitted that on the Defendant’s version the offence cannot be established as no overt sexual connotation was present. There was no evidence that he was sexually aroused at the time of the incident and there was no evidence that the incident was sexually motivated.
I note that Defence Counsel referred to R v Manson (New South Wales Court of Criminal Appeal, Gleeson CJ, Clark JA, Sully J, 17 February 1993), where Chief Justice Gleeson citing R v Court [1989] AC 28 said inter-alia if the act in question has unequivocal sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. [I note also he went on to say, ‘On the other hand, the purpose for which an act is done may well be regarded by right minded people as relevant to the question whether it is decent or indecent depending upon the circumstances of the particular case’. My comment].
Defence Counsel referred to the Defendant denying he was sexually attracted to her and the Complainant corroborated this by confirming that he had not shown a romantic interest in her. Defence Counsel submitted that to show this lack of intention the Defendant asked another house mate to join them in the meal.
Defence Counsel submitted that the context and circumstances of the act is also relevant in assessing whether it is indecent, referring to R v McDonald; R v Deblaquire (2013) 223 A Crim R 185 where Justice Refshauge held:
What is important is what Campbell JA said in Eades v DPP (New South Wales) (2010) 77 NSWLR 173 (as now reported) at 185, [61]:
There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency. It arises from the test, stated in R v Manson and set out at 180 [39] above [see [20] above] for what is an indecent act. The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether an offence under S61N (one) has been committed.
Defence Counsel submitted that the events of New Year’s Eve can be taken into account when assessing whether the conduct of 11 April 2017 was indecent. Defence Counsel set out a passage of the Complainant’s evidence in relation to New Year’s Eve suggesting that this is not a case where the Complainant and Defendant had no prior physical contact. Defence Counsel noted that on New Year’s Eve the complainant did not protest at the contact. Defence Counsel submitted that the conduct of the Defendant arose out of the conversation with her and he gave her a hug to encourage her because she was sad.
The actions according to the Defendant’s evidence does not constitute an act of indecency, but even if the Court does not accept the Defendant’s version there was no overt sexual connotation, the Court could not be satisfied to the requisite standard, and the Prosecution has failed to prove the Defendant knew or was reckless as to consent.
Defence Counsel submitted that it was the Defendant’s belief that she wanted him to touch her and set out a passage supporting that view. Further, that the evidence of the New Year’s Eve conduct is relevant to the Defendant’s state of mind [I question the efficacy of this assertion as circumstances can change in four months. My comment]. Defence Counsel submitted that Defence Counsel referred to the fact that the Defendant gave his evidence in a nonchalant way which he asserted was indicative of an innocent state of mind and that therefore the conduct on 11 April must be viewed in the context of New Year’s Eve conduct. Defence Counsel submitted that the Defendant cannot expect to be a mind reader [ I note he did not ask her whether he could touch her in that way particularly knowing how shy she was. My comment].
The Law
The Prosecutor set out in her written submission the elements of the offence of an act of indecency. I have set out those elements above.
Essentially there are two limbs to the offence. There needs to be conduct by the Defendant upon the Complainant which in the ordinary standards of morality and decency is indecent. Secondly, the Complainant does not consent to that conduct, or, the Defendant was reckless about that whether the Complainant consents to that conduct.
The Prosecutor referred to ‘Elrick’ and I accept that the context of the conduct needs to be taken into account when assessing whether the conduct is indecent or not.
I also note the Prosecutors’ reference to ‘Parkinson’ and agree with the necessity to warn myself in that regard. I have followed that reasoning and have given myself those warnings summarised below:
(a) The onus of proof always lies on the Crown;
(b) The standard of proof is beyond a reasonable doubt;
(c) The presumption of innocence of the Defendant;
(d) To bring an unbiased and open mind to the evidentiary material;
(e) To evaluate the witnesses;
(f) Determine the facts logically and rationally, without being capricious;
(g) To use common sense and experience;
(h) Accept or reject, either partially or wholly, evidence of witnesses where required;
(i) Consider the Defendants evidence like any other witnesses taking into account the presumption of innocence and the burden which lies upon the Crown.
Consent
The prosecutor referred to section 80C and section 80D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I have set out those sections below:
80CDirections about implied consent
In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that a person is not to be regarded as having consented to a sexual act just because––
(a) the person did not say or do anything to indicate that the person did not consent; or
(b) the person did not protest or physically resist; or
(c) the person did not sustain a physical injury; or
(d) on that or an earlier occasion, the person had consented to engage in a sexual act (whether or not of the same kind) with the accused person or someone else.
80DDirections about mistaken belief about consent
In a sexual offence proceeding, the Judge must, in a relevant case, direct the jury that, in deciding whether the accused person was under a mistaken belief that a person consented to a sexual act, the jury may consider whether the belief was reasonable in the circumstances.
I have considered those provisions and applied them to the factual circumstances as I find them, according to the evidence before me. I note the Prosecutor submitted that to find the offence proven I must be satisfied beyond reasonable doubt that the Defendant knew or was reckless as to the complainant’s lack of consent. The Prosecutor set out in her submissions which I have referred to above in relation to the two ways recklessness can occur. Either, advertent recklessness or non-advertent recklessness.
In Sims v Drewson [2008] ACTSC 91 (‘Sims’) at 23 Justice Besanko said:
Speaking generally, advertent recklessness is where an accused person is aware of the risk that the alleged victim is not consenting but makes a decision to proceed regardless of this fact. Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent.
Further in ‘Sims’ at 29, referring to Banditt v The Queen (2005) 224 CLR 262 (‘Banditt’) where the High Court considered the meaning of recklessness and whether inadvertent recklessness could constitute recklessness, Justices Gummow, Hayne and Heydon said in respect to this issue at 275:
It may well be said that ‘reckless’ is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, reckless may indicate conduct, which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an objective, the latter a subjective, hue.
His Honour Justice Besanko, after considering ‘Banditt’ as well as New South Wales decisions proceeded on the basis that recklessness in section 60 (1) of the Crimes Act 1900 (NSW) includes non-advertent as well as advertent recklessness.
Complaint Evidence
The Prosecutor also referred to the direction in relation to complaint evidence citing the NSW Bench Books on that direction. I have taken those directions into consideration.
The Prosecutor also submitted that I should give myself a ‘Murray direction’. Although the Prosecutor did submit that this case is not exclusively, but largely, based upon the complainant’s evidence. I note that in ‘Murray’, Justice Deane espoused the principle in relation to one-on-one cases, the evidence of the complainant should be scrutinised very carefully. I have given myself that warning and I have very carefully scrutinised the evidence of the complainant.
In Liberato v The Queen (1985) 159 CLR 507 at 515, Justice Brennan in his dissenting judgment (Justice Deane agreeing) said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
I have given myself that warning in relation to this matter when considering my decision.
Decision
Particulars
In relation to the issue of particulars, this issue was not referred to by Defence in their submissions. Having considered the submissions from the Prosecutor and considered the opening and evidence, I am satisfied that the acts said to constitute the offence have been sufficiently particularised so the Defendant knew the case he was to meet. That is evident from the affidavits and emails which are also before me.
Recklessness
In relation to recklessness I am satisfied having considered the decisions to which I have referred, that advertent as well as non-advertent recklessness is part of the elements of the offence pursuant to section 60(1) of the Crimes Act 1900 (ACT).
The witnesses
In relation to the Complainant, I found her to be a very quiet, shy, although well-spoken person, who did not embellish her version. I noted that she conceded where she was unsure of factual matters but was firm in that which she said occurred. I found her to be an impressive witness.
I noted that the Complainant in this matter had no contact other than as a landlord and tenant with the Defendant until New Year’s Eve. The Complainant indicated that it was the Defendant who asked her to attend the fireworks in the city. I note that he brought her some fruit when he came to her door to ask her.
During the course of the fireworks and afterwards there was some handholding, not initiated by her I might add and at one point he did place his arm around her waist. When they arrived back at the home they spoke for a while he came close to her, but she again did not invite his attention and ultimately, they both separately went inside.
There was no contact other than the monthly rent between the pair until some four months later in April. On 11 April 2017 the Complainant said that she was cooking some food for herself, something went wrong with it, and the Defendant invited her to have dinner with him as he was cooking his dinner in the kitchen. The Complainant said she accepted the offer and they had their dinner. The Complainant said during the course of the dinner their conversation was benign. The Complainant offered to wash up. The Defendant insisted that he do the washing up and ultimately, she stayed to do what she could to help.
It was at that point that the Defendant then approached her placing his arms around her. The Defendant then put his hands under her clothing and rubbed his hands up and down her shoulders, back and onto her buttocks. There had been no invitation by the Complainant for him to do so. The Complainant also indicated that he had touched her under her clothing in the pelvic and pectoral region as well. During the course of this conduct the Defendant kissed her on the mouth. It was her evidence that she did not give him any consent, nor did she invite him to touch her in that way.
The Complainant admitted that she said nothing, but she also said she was very scared and shocked by the behaviour and once she had been able to extricate herself from his hold she left and went to her bedroom and locked the door. At that point she contacted a friend, NM, and told him what had happened. The next day the Complainant also spoke to her Dean at the University and was able to leave the property. I note that she had been living at the Defendant’s property for some time and it was only after this incident that she left. Clearly something had happened which upset her to the extent that she did not want to live there anymore.
Her evidence in relation to what happened is to some extent corroborated by the complaint she made to both her friend and the Dean. It is to some extent corroborated by her vacation of the tenancy as well.
The Defendant gave evidence before me and I must scrutinise his evidence as I would any other witness. I can accept or reject his evidence in whole or in part as I would any other witness.
The Defendant gave evidence in respect to the New Year’s Eve fireworks event which painted a picture of the Complainant being the instigator of the suggestion that they go to the fireworks. The Defendant also said that it was the Complainants’ idea to hold hands and when he did, she did not remove her hand. [I note that he said they had discussed how Europeans kiss and hold each other I also note that the Complainant rejected that version of the conversation. My comment].
The evidence that the Defendant gave was clearly designed to give a flavour that she was the instigator of the walk, the touching, and the conversation about how Europeans act with each other. I note that the Defendant stated there was no contact or interaction between the pair from the New Year’s Eve event until 11th of April 2017.
The evidence given by the Defendant of the 11 April incident was that the touching was accidental and that she did not say no when he touched her. The Defendant admitted that he touched her under her clothing but intimated that it was because her top had ridden up. The Defendant stated that he held her because she was sad. The Defendant admitted that he spoke with her about having a boyfriend to sleep with her because she was having trouble sleeping. It was at that point when he spoke to her about sleeping with someone that their lips touched. I note he said that was accidental as well. I find that difficult to believe.
I noted when the Defendant was giving his evidence that he appeared to obfuscate at times and at times the evidence he gave I found implausible. I found it implausible because of the following reasons below.
The interaction they had on New Year’s Eve was for some few hours where they conversed watched the fireworks and walked along the lake. The Defendant held her hand at times and at times placed one hand around her waist. Nothing further occurred. One could assess that behaviour as benign and or protective even on his version of the event.
The next interaction was four months later. The reason for that interaction was because the Defendant asked her to have dinner with him as he was cooking his dinner in the kitchen of the residence.
I note that the Complainant said that she told him that she was not interested in having a boyfriend. That assertion was not contradicted. That should have been a warning to him that she was not interested in him. I also note that the Defendant said that he was not romantically interested in her either. I find his evidence in that regard hard to believe because if that was the case why did he engage in the conduct that he did, rubbing her body, back and front, under her clothing, holding her and kissing her.
In my view, anyone who takes hold of another person and places their hands under their clothing, even on his version of what occurred, that is his hands were placed from her shoulders down her back all the way down to her buttocks, as well as placing his hands on the front of her body touching her breasts, is engaging in sexual conduct.
Further, kissing her on the mouth is not something a person who has no sexual interest does, although, I note he said that it was accidental and that their mouths just brushed past each other. I don’t believe that for a moment given what he had done previously that is putting his hands under her clothing and rubbing up and down her back and front to the extent that I’ve described.
I note that he said the kiss was because she moved her head towards his. I don’t believe his evidence on that point either for the reasons I have already given.
Defence made a significant point of the New Year’s Eve event. However, I find no continuity between that event and the events of 11 April. There had been no contact between the parties in that time at all other than the payment of rent on a monthly basis.
I will now turn to the evidence of the Affidavits which clearly, the Defendant wrote. I reject the assertion he made that he made those Affidavits because he was told by his Defence Lawyer that he would not represent him if he did not sign the Affidavit.
In the Affidavit of 21 June 2018, the Defendant asserted that it was the Complainant who gave him a hug and after the hug they both went to the separate rooms. That is clearly not what happened on any version of the evidence. The Defendant denied approaching her and touching her in any way that could amount to any kind of sexual contact or misconduct, and denied touching her private parts.
The Defendant in his Affidavit also stated that the Complainant was not the kind of person that he was inclined to be close to. The Defendant also asserted that the Complainant was a person who was subject to panic and anxiety attacks, was emotionally unstable, and received medication continuously from physicians for this medical condition. It was his view that she had a mental instability or illness which predates her tenancy at his Braddon residence.
The Defendant further asserted that given she had difficulty in recognising faces it could have been another person who had been responsible for the misconduct she alleged. It appears that his view is that she had a panic attack on 11 April and made up the statements. The Defendant then concluded that she may have a motive for financial gain to invent or fabricate this testimony.
The Defendant further asserted that he had always pleaded not guilty to the charge and asserted that the Prosecutor had dropped the charge because the Complainant was unreliable and untruthful.
In the second Affidavit of 3 August 2018 he asserted that he was coerced to plead guilty by Mr Edmonds and understood that he would be found guilty whether he pleaded guilty or not.
In the second Affidavit he asserted that he believed that the complainant was interested in him in an intimate manner and that she consented to a hug. That is not the evidence he gave before me. The Affidavits were exhibited before me as exhibits P7 and P8.
In the email the Defendant sent to the Prosecutor (exhibit P6), the Defendant suggested that he did ask the Complainant if she was okay with him touching her and that he believed wrongly she was consenting.
The Defendant also said in his evidence that he had hugged her between New Year’s Eve and 11 April. That was never put to the Complainant. I also note that he said in evidence that after he had kissed her, he did not like her any more. That’s completely at odds with him denying that he kissed her at all.
I also noted that as he was giving his evidence in that regard, he was digging himself into a deeper hole as his evidence continued. I formed the view that he was clearly lying, and he was in my view, a most unimpressive witness who had been caught out in a lie by the Affidavits that he produced, and his evidence before me.
I reject his evidence in respect to the New Year’s Eve incident in relation to whose invitation it was, and I prefer the evidence of the Complainant. In relation to whose invitation it was to hold hands I reject his evidence and prefer the evidence of the Complainant. I’m satisfied it was he who instigated the contact that night. I also accept that the Complainant did not tell the Defendant that she did not want him to touch her by holding hands and placing his arm around her waist.
In relation to the evening of 11 April 2017 I prefer the evidence of the Complainant and I am satisfied that the Complainant did not instigate the hug nor did she approve of the Defendant placing his hands on her body under her clothing to any extent. I also accept her evidence that she did not do anything whilst he was touching her on her body under her clothing until she was able to extricate herself from his hold and went to her room, locking the door.
I am satisfied that she was scared and shocked at his behaviour which is why she did not do anything until she got away from him.
On the evidence given by the Complainant the conduct clearly amounts to an act of indecency. Rubbing your hands on one’s person under the clothing particularly when they have no underwear, touching both the breasts, groin area, shoulders, back and buttocks, is in my view indecent unless of course there is consent to such touching.
The Defendant stated at least in evidence before me that it was his view that she was consenting to his conduct. That is despite the fact she did not tell him she wanted him to touch her and indeed had said no to him.
I cannot accept the Defendant’s evidence in relation to what happened on that evening. It seems to me incongruent that the circumstances of the benign conversation during the meal led to his behaviour. There was nothing about the conversation which would give rise to the conduct he engaged in. He denied that he had any interest in the Complainant, but then considered that after he had kissed her he did not like her any more. The Defendant also said that after the kiss he thought this was an upgrade to the relationship. The Defendant cannot have it both ways. The reality is that he tried his luck with her, to engage intimately and in a sexual way with her and failed.
I have found that he was untruthful in expressing what exactly happened that evening and have rejected his evidence in that regard. I find that he did not have consent to do what he did, and I am satisfied having regard to the circumstances of that evening that he was reckless as to whether the complainant consented to that conduct.
Clearly the lack of engagement between the two for the four months between New Year’s Eve and 11 April as well as the inconsistency in his Affidavits and in his evidence before me leads me inexorably to conclude that he was untruthful about what happened on 11 April. He was untruthful because he knew how serious his conduct was. In relation to the circumstances as described by him about his conduct on 11 April 2017 I reject his evidence and prefer the evidence of the complainant for the reasons I have given.
Findings
I find as a matter of fact that on 11 April 2017 the Defendant and the Complainant shared a meal prepared and cooked by the Defendant in his kitchen at the lease house where the Complainant and Defendant lived. I am satisfied that he was the landlord and she was the tenant. I’m also satisfied that he asked her to join him in the meal that evening.
I find that there was conversation over that meal which was benign and there was no context of any intimate or sexual connotation in that conversation.
I find that it was the Defendant who initiated contact with the Complainant. I find that the Complainant did not consent to that contact. I further find that the Defendant was reckless as to whether the complainant was consenting to his advances.
I am also satisfied that the Defendant’s conduct described by the Complainant in her evidence and as described above was indecent by any standard.
I am satisfied that the Complainant did not consent to the conduct of the Defendant as described by her, that is the touching of her body under her clothing, including her breasts and groin area as well as the kiss on her lips. I find the offence proven.
| I certify that the preceding two hundred and seventeen [217] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM. Associate: Monique Marie Munro Date: 12 March 2020 |
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