Oakley v Lockley
[2018] TASSC 37
•16 August 2018
[2018] TASSC 37
COURT: SUPREME COURT OF TASMANIA
CITATION: Oakley v Lockley [2018] TASSC 37
PARTIES: OAKLEY, Kerry Robin
v
LOCKLEY, Andrew
FILE NO: 3227/2017
DELIVERED ON: 16 August 2018
DELIVERED AT: Hobart
HEARING DATE: 31 July 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Conviction for assault with indecent intent – Whether magistrate could not reasonably have found guilt.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: J Crotty
Respondent: S Nicholson
Solicitors:
Applicant: Crotty Legal
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 37
Number of paragraphs: 23
Serial No 37/2018
File No 3227/2017
KERRY ROBIN OAKLEY v CONSTABLE ANDREW LOCKLEY
REASONS FOR JUDGMENT BLOW CJ
16 August 2018
This is a motion for the review of a conviction imposed by the Deputy Chief Magistrate, Mr M Daly, in respect of a charge of assault with indecent intent. The charge concerned an incident that was said to have occurred on 13 November 2015 in the Muslim prayer room at the University of Tasmania. The applicant in these proceedings, Kerry Oakley, was found guilty of that offence by the learned magistrate. On the day in question he was working at the university as a security guard. It was alleged that he indecently assaulted a woman who also worked at the university "by groping her breasts and fondling her buttocks over her clothing". At the end of a defended hearing, the learned magistrate found the charge proved and convicted the applicant. He has sought a review of that conviction.
The applicant contends that, on the evidence that was before the learned magistrate, no magistrate acting reasonably could have been satisfied beyond reasonable doubt that he was guilty of the offence charged. This motion to review must fail unless I am satisfied of that: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 per Crawford CJ, with whom the other members of the Full Court agreed, at [46].
The complainant's evidence as to what happened in the prayer room was to the following effect. The applicant was alone with her in a computer room area. He asked if she had been to the prayer room. She explained that she had not, because it was a place for men. He asked her to go into the room to look at the effects of a flood. The carpet had been lifted. When she was in the room, she saw that the door was closing and that the applicant was walking towards her. He then proceeded to grab her breasts. While doing that, he was "making sexual growling noises". He had one hand on each breast. He lowered his hands as if to try to get them under her top, but did not get "skin to skin". She stepped around him to go out of the room. She went straight past him saying, "No, we're just friends, you have got the wrong idea. We're just friends."
In her evidence-in-chief, the complainant said nothing to support the allegation about the touching of her buttocks. However, in the course of her cross-examination, she said that after stepping around the applicant and heading towards the door to go away from him, he grabbed her hips and was grinding against her "with those grunting animal noises that he was making".
During the cross-examination of the complainant, counsel for the applicant tendered a copy of a statement made by her three days after the day in question. It had been prepared by a police officer and signed as a statutory declaration. It contained the following description of the events in the prayer room:
"As he was walking towards me for some reason as the light was leaving the room from the closing door, I just had the feeling from his head being on an angle that he was going to kiss me and I then felt his hands on my shoulders which caused alarm bells. This was the first point that I actually became very uncomfortable. I said 'no it's not like that we are just friends'. He then put both hands onto my breasts making that sexual groaning noise again. I recall constantly repeating, 'no this isn't happening' and 'we're just friends'. He then moved his hands to under my breasts, still on the outside of my clothing, which caused my bra to then lift up slightly to the middle of my breasts. I went to step around him to get away from him and he then grabbed me around the waist from behind me and then felt my backside, again being over my clothing. He was grinding against me from behind continually making his groaning sexual noises. I again said to him that we were just friends, to which he replied in his groaning type of voice 'really good friends' which creped [sic] me out. I couldn't say if Kerry had an erection at this point. All I was thinking was to escape and go towards the door.
I remember then getting to the door and opening it and leaving. We were in there for around 2 minutes. I stayed outside the area and for reasons that I can't explain where I stood there and talked to him for a few minutes. I remember looking at him and constantly saying in my head 'you're my friend ... you're my friend'."
A number of other prosecution witnesses gave evidence before the learned magistrate. The complainant's partner gave evidence that he received a telephone call from her on the afternoon in question when he was in either Burnie or Devonport; that she was hysterical and crying; and that she told him what had happened. He said that his memory was "not that crash hot". He said he remembered her telling him that she was "touched on the backside and hip". Under cross-examination, he accepted that he told the police, "She told me he grabbed her near the privates." He gave evidence to the effect that by "privates" he meant the vagina, and that "privates" was his word, not the complainant's.
The complainant's supervisor, Clinton Foster, gave evidence to the following effect. The complainant phoned him on the day in question and told him that she had been sexually assaulted. She was crying and upset. He asked her to come to his office in Bellerive. She arrived and spoke to him together with his boss, Wayne Males. She said she was asked to go into an underground area with a security guard. He thought the complainant said that that man touched her breasts, but it was hard to remember. As far as he could remember, she said that he grabbed her around the hips. Mr Males jotted down notes during the conversation.
Mr Males gave evidence about that conversation, to the following effect. The complainant told him and Mr Foster that she was touched by a security person named Kerry on her breasts. She was obviously distressed, upset, very emotional, shaking, crying, and "just generally not very well". He wrote things down on a piece of paper. After taking advice from his line manager in Melbourne, he typed up a summary of events, which the complainant signed as a true summary, and sent it through to him.
That document, which was entitled "RECORD OF INTERVIEW", was tendered as an exhibit. It contained the following description of events:
"Kerry then started to grope at [the complainant], touched her breasts then put his hands up her top and tried to kiss her. [She] immediately pushed Kerry away and asked him what he was doing? She reiterated that they are only friends and this should not be happening. [She] walked past Kerry to leave the room as she was now scared. As she walked past Kerry, he grabbed her from behind and started to rub up against her. [She] forced herself out of the room and sat outside in complete shock as to what had happened."
The last prosecution witness was Keith Steedman. He was the operations manager of the company that employed the applicant. He produced two CCTV recordings that showed the complainant and the applicant on the day in question. He also produced a report which showed the times that the applicant used a swipe card to open the prayer room door on the afternoon in question.
The applicant gave evidence before the learned magistrate. He said that the complainant did not enter the prayer room, and that he did not place his hands upon her, touch her, or bump into her. Those assertions were not shaken in cross-examination.
A security technical officer from the university named Mark Vass gave evidence as a defence witness. He produced reports, generated from the university's computerised records, relating to the opening of the prayer room door on the day in question and to the use of the complainant's swipe card on the day in question.
In both her statutory declaration and her evidence-in-chief the complainant said that she and the applicant first went to an underground computer lab, and then went to the Muslim prayer room. In her statutory declaration she said that they then went their separate ways, and that she went next to her office and then to her car. In her evidence-in-chief, she said that after leaving the prayer room she stood outside in the sun speaking to the applicant, then went to her office, and then went to her car. She was demonstrably wrong about going to the underground computer lab before the prayer room. The reports produced by Mr Steedman and Mr Vass establish that the applicant used his swipe card to open a door of the prayer room first at 1.44.37pm, and then at 1.46.41pm, and that he then used the card to open the door of the underground computer lab at 1.47.06pm. There is CCTV footage which shows the applicant and the complainant entering the underground computer lab at 1.47.10pm and leaving at 1.47.40pm.
The fact that the complainant made a mistake as to the sequence of events was of course relevant to the assessment of her credibility. However that mistake was consistent with her having been so upset by an indecent assault that she became confused as to the order in which she and the applicant went to various places.
The CCTV footage showed the complainant in the applicant's presence on three occasions after their visit to the prayer room. The first occasion was when they visited the underground computer lab. Next, they can be seen outdoors, walking along a pathway from 1.52.27pm to 1.52.38pm, with the complainant walking behind the applicant. Finally, they can be seen talking together at the same place and then going their separate ways between 2.07.42pm and 2.07.57pm. The complainant showed no sign of distress, hostility or any unusual or emotional behaviour in any of this footage. Counsel for the applicant argued to the effect that her demeanour tended to cast doubt on the assertion that she had been indecently assaulted. Her demeanour in the two pieces of CCTV footage was of course relevant to the assessment of her credibility, but it was important to make allowance for the fact that victims of an indecent assault cannot be expected to react in a particular way. In this case, the complainant described her reaction in her evidence in these words:
"I just remember my brain completely, sort of shutting down and all I kept saying over and over in my head is, 'We're just friends, we're just friends, we're just friends'. I just couldn't believe what had just happened."
There was evidence that the underground computer lab had a carpeted floor, and that a cleaner had cleaned that floor by mopping it, rather than vacuuming it. In her statutory declaration the complainant described a conversation with the applicant when they were together in that lab. She said:
"We were joking about how the cleaner mops the carpet rather than vacuuming, and how we thought it was odd."
Under cross-examination she agreed that there was conversation in the computer lab about the cleaner mopping the carpet, but did not accept that she was joking about that. However she subsequently accepted that she must have said she and the applicant were joking when she spoke to the police and made her statutory declaration. If the complainant engaged in light hearted conversation with the applicant in the computer lab, that of course was relevant to the assessment of her credibility. However there remained a possibility that, having been indecently assaulted, she initially behaved as if nothing had happened, before having a strong emotional reaction.
There was a significant inconsistency between the version of events that the complainant's partner said that she provided to him and other versions of events. In his evidence, there was no suggestion that the applicant had put his hands on the complainant's breasts but, unlike all other versions of events, the version he attributed to the complainant included a reference to the applicant grabbing her near the "privates" or vagina. As the learned magistrate observed, the complainant's partner was not asked what words were actually said to him by the complainant. There was also evidence that the complainant's partner said in a police statement that she told him that she got away from the applicant "by pushing and shoving him away". The complainant told Mr Males and Mr Foster, but apparently not the police, that she pushed the applicant away after he had touched her breasts, but before he grabbed her from behind. However there was no suggestion anywhere else in the evidence that she had got away from the applicant by pushing him or shoving him away.
The version of events recorded by Mr Males in the "record of interview" concluded with the complainant and the applicant sitting and talking outside the prayer room, and the complainant then starting to cry and running to her car. That is inconsistent with the evidence as to the short visit to the computer lab, the CCTV footage, evidence from the complainant that she did not start to cry until she was in her car, and a statement to that effect in her statutory declaration.
I do not think I need catalogue every inconsistency between the various accounts of what happened that were given by, or said to have been given by, the complainant. In some instances, the recollections of others may have been inaccurate. Be that as it may, all such inconsistencies may well have been the result of distress and consequent confusion.
The learned magistrate had the advantage of seeing and hearing the complainant and the applicant when they gave their evidence. He had the advantage of being able to observe them throughout the hearing. In his reasons, he considered the applicant's evidence to the effect that he had spoken to the complainant about flood damage in the prayer room, together with his evidence that she would not go inside the prayer room after he had opened its door. He concluded that that evidence was illogical and unconvincing.
The complainant's fundamental assertions that the applicant had placed his hands on her breasts and that he had grabbed her below the waist were unshaken. The evidence as to her complaints to her partner, Mr Foster, Mr Males and the police was all admissible as evidence of the truth of the facts she asserted: Evidence Act 2001, s 66(2); Papakosmas v The Queen [1999] HCA 37, 196 CLR 297. The evidence of the complainant's distress that was given by herself, her partner, Mr Foster and Mr Males was also relevant as it tended to corroborate her assertions as to the applicant's conduct.
Counsel for the applicant submitted to me that no magistrate acting reasonably could have been satisfied beyond reasonable doubt of his client's guilt because of the various inconsistencies in the evidence, the complainant's mistake as to the sequence of events, and the evidence of her demeanour after leaving the prayer room. I disagree. Despite those factors there remained a strong body of evidence that tended to prove that the complainant had been indecently assaulted. It was reasonably open to the learned magistrate, having seen and heard the witnesses and carefully assessed their evidence, to find the charge proven.
The motion to review is dismissed.
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