Passmore v R

[2023] NSWCCA 65

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Passmore v R [2023] NSWCCA 65

Hearing dates:

7 March 2023

Date of orders:

24 March 2023

Decision date:

24 March 2023

Before:

Payne JA at [1]
Garling J at [78]
Yehia J at [83]

Decision:

(1) Appeal allowed.

(2) Quash the appellant’s conviction.

(3) Enter verdict of acquittal on count 1 in the indictment.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether jury verdict unreasonable— where appellant convicted of one count of making an indecent communication to a person under 16 — Crown case that indecent words were spoken in a phone call on one particular date — Crown required to prove beyond reasonable doubt that offending occurred on that date — whether jury must have had doubt that the words were spoken in a call on that date — where evidence of date of call was inconsistent — where complainant’s evidence of date of call was unreliable

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Criminal Code Act 1995 (Cth), Schedule, Criminal Code

Telecommunications Act 1997 (Cth)

Cases Cited:

Dansie v R (2022) 403 ALR 221; [2022] HCA 25

Douglass v The Queen (2012) 290 ALR 699; [2012] [2012] HCA 34

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v McDonald; R v Deblaquiere (2013) 233 A Crim R 185; [2013] ACTSC 122

R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Category:

Principal judgment

Parties:

Mark Passmore (Appellant)
Crown (Respondent)

Representation:

Counsel:

B Cochrane (Appellant)
J Single SC; S Love (Respondent)

Solicitors:

CB Criminal Law (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2019/58598

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the complainant’s name or any identifying or potentially identifying information is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 November 2021

Before:

Priestley SC DCJ

File Number(s):

2019/58598

HEADNOTE

[This headnote is not to be read as part of the judgment]

After a jury trial in the District Court, Mark Passmore (the appellant) was convicted of one count of using a carriage service to transmit an indecent communication to a person under the age of 16, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The complainant was 15 at the relevant time. Initially, the Crown’s case was that the appellant said indecent words to the complainant in a phone call at some time between 7 February and 12 February 2019. Midway through the trial, the Crown amended the indictment to allege that the words were spoken in a phone call on 12 February 2019. At trial and on appeal, the Crown accepted that the effect of the amendment was that it had to prove, beyond reasonable doubt, that the date of the relevant call was 12 February 2019.

At trial, the evidence included a record of the complainant’s police interview, notes the complainant had written around the time of the alleged offending, and a record of calls made between the appellant and complainant’s phones. The complainant was cross-examined over three days. At different points in her evidence, the complainant said the relevant call happened on each of 5, 7, 11 and 12 February 2019; at other points, she denied that the call took place on 12 February 2019; she admitted to confusion about dates and difficulties remembering when events occurred. The jury returned a verdict of guilty.

The appellant appealed on a ground of fact or mixed fact and law. The trial judge certified that the appellant’s case was fit for appeal, meaning no grant of leave from the Court of Criminal Appeal was required: Criminal Appeal Act 1912 (NSW) s 5(1)(b).

The sole ground of appeal was:

(1) The jury’s verdict was unreasonable and could not be supported by the evidence.

The appellant argued that the complainant’s evidence was unreliable and could not support a finding beyond reasonable doubt that the indecent words were spoken in a call on 12 February 2019. The Crown argued that it was open to the jury to find the words were spoken in a phone call on 12 February 2019 as well as on other days; and that the jury was better placed than the appeal court to assess the complainant’s evidence.

The Court held (Payne JA, Garling and Yehia JJ agreeing), allowing the appeal and quashing the conviction:

1. When a jury verdict is challenged as unreasonable, a court of criminal appeal must independently assess the evidence to determine whether the verdict is unsafe, notwithstanding that there is evidence on which the jury might convict. Put another way, the question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt: [17]-[23].

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v R (2022) 403 ALR 221; [2022] HCA 25 cited.

2. If the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal, the court may conclude that no miscarriage of justice occurred: [19]

M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 cited

3. In this case, the jury were in no better position that this Court to assess the complainant’s reliability. The weight of internal inconsistencies in the complainant’s evidence, including the directly contradictory evidence given about the date the indecent words were said, was too great for the jury properly to accept that evidence as sufficiently reliable to prove beyond reasonable doubt that the words were spoken in a call on 12 February 2019: [74].

JUDGMENT

1. PAYNE JA: On 21 November 2021, a jury sitting in the District Court at Coffs Harbour convicted the appellant, Mark Passmore, of one count of using a carriage service to transmit an indecent communication to a person under the age of 16, contrary to s 474.27A(1) of the Commonwealth Criminal Code.

2. On 16 November 2022, the trial judge issued a certificate under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), certifying that Mr Passmore’s case was fit for an appeal on a question of fact or mixed fact and law. The effect of the certificate is that Mr Passmore does not require a grant of leave from this Court. For that reason Mr Passmore will be referred to as “the appellant” in these reasons.

3. On 18 November 2021, the appellant lodged a notice of appeal containing one ground:

The verdict is unreasonable and cannot be supported by the evidence.

4. The appellant’s case on appeal relies on the precise date identified in the indictment, which required the Crown to prove beyond reasonable doubt that a telephone call containing the indecent words alleged took place on 12 February 2019. The appellant submits that the evidence, especially the complainant’s evidence, was so unreliable that the jury could not properly be satisfied beyond reasonable doubt that a call containing the indecent words alleged took place on that date.

Background facts

5. In 2018 and early 2019 the complainant was aged 15 and the appellant was aged 66. The complainant’s parents separated when the complainant was a young child and the complainant and the appellant did not communicate for some years. In about September or October 2018, the appellant’s wife ran into the complainant and her mother at a shopping centre. Following this meeting the families reconnected.

6. In late November 2018, the complainant rang the appellant’s wife and arranged for her to visit. The appellant and his wife took the complainant to lunch. Before 17 December 2018, the complainant visited the appellant and his wife at their house. There may have been another visit in early January 2019.

7. On about 22 January 2019, the complainant slept at the appellant’s house. On another occasion the appellant provided the complainant with transport. In February 2019, the complainant attended karate lessons with the appellant, who was an instructor at his own dojo.

8. During January and February 2019, a good deal of electronic communication passed between the complainant and the appellant, including mobile phone calls, Facebook Messenger calls and texts. It is the content of one of those calls which is at the heart of this appeal. I will examine the details of the complainant’s evidence about the various electronic communications when considering the merits of this appeal.

The Crown’s case at trial

9. The indictment presented by the Crown initially charged that:

Between about 7 February 2019 and 12 February 2019 at Boambee East and elsewhere in New South Wales, Mark William Passmore, being 66 years of age, used a carriage service to transmit a communication to the recipient, being [the complainant], being someone who was under 16 years of age, namely 15, which included material that is indecent.

Contrary to subsection 474.27A(1) of the Criminal Code (Cth)

10. In opening the case to the jury, the Crown particularised the indecent words spoken by the appellant during the call as “My cock is hard and my pants got wet”. There is a debate between the parties to the appeal about whether, as the Crown submits, the Crown gave effective notice during the trial that the only words relied upon as being spoken on the relevant date were “my cock is hard” or whether, as the appellant submits, the entire phrase was identified by the Crown and the trial judge as the particularised indecent communication throughout the trial. I will return to this issue later in these reasons.

11. In opening, the Crown case was that that the indecent words were spoken during one of seven phone calls made between the appellant and the complainant between 7 and 12 February 2019.

12. On 18 November 2021, after the complainant’s second day of cross-examination, the Crown applied, without objection, to amend the indictment to allege:

On 12 February 2019 at Boambee East and elsewhere in New South Wales, Mark William Passmore, being 66 years of age, used a carriage service to transmit a communication to the recipient, being [the complainant], being someone who was under 16 years of age, namely 15, which included material that is indecent.

Contrary to subsection 474.27A(1) of the Criminal Code (Cth)

13. The appellant was rearraigned and confirmed his plea of not guilty. The parties agreed, and the trial judge directed to the jury, that this amendment to the indictment made time of the essence, and that it meant that Crown must prove beyond reasonable doubt that the relevant indecent words were said during a phone call on 12 February 2019.

14. As will become clear, one critical issue on appeal was whether the indecent words were spoken on a Facebook Messenger call on 5 February 2019 and not a mobile telephone call on 12 February 2019. In oral submissions in this Court Ms Single SC for the Crown nonetheless focused on 12 February 2019 because a Facebook Messenger call was, on her instructions, not within the meaning of “carriage service”:

SINGLE: [I]n case your Honour was also wondering as to why the original indictment was 7 to 12 February and we’re now talking a lot about the 5th February call it’s an unusual feature of the Commonwealth Code that this offence was using a carriage service, Facebook Messenger is not a carriage service and so if the jury had been satisfied of a call on Facebook Messenger on 5 February the charge would not have been satisfied

15. Whether the Crown submission about the meaning of “carriage service” is correct may be open to doubt, although expert evidence may be necessary to determine the issue: see Criminal Code Dictionary definition of “carriage service” and Telecommunications Act 1997 (Cth) Dictionary definition of “carriage service”; see also R v McDonald; R v Deblaquiere (2013) 233 A Crim R 185; [2013] ACTSC 122 at [22].

16. What is not in doubt for the purposes of this appeal is that the Crown was required to prove beyond reasonable doubt that the identified indecent words were communicated by the appellant to the complainant in a mobile telephone call on 12 February 2019. While the date upon which indecent communications are made may in most cases be determined on a broad basis, at some time between dates identified in the indictment, in this case, by reason of a deliberate forensic choice made by the Crown, one date, 12 February 2019, was critical.

Principles to be applied

17. The principles that are applicable to an appeal on the ground that a verdict is unreasonable or cannot be supported having regard to the evidence were identified by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at [6]-[7]. There Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated:

[6] Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.

…

[7] Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (Footnotes omitted.)

18. Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, a case that actually concerned the prosecutor’s alleged misconduct in the course of a criminal trial, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for an intermediate appellate court when considering whether the convictions sustained below were unreasonable in the following terms:

[113] [T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. (Footnote omitted; emphasis in original.)

19. The principles in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

…

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53], the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.’ (Footnotes omitted.)

20. At [22], their Honours said:

[22] On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. There is no doubt that the Court of Criminal Appeal was not bound by the ruling of the trial judge concerning the date of the 2006 offences. However, the Court of Criminal Appeal was required to form an opinion as to the date of the 2006 offences in order to weigh the whole of the evidence. The reasons for judgment by Simpson J do not disclose that the Court of Criminal Appeal made an independent assessment of the evidence concerning the 2006 offences, and therefore the Court could not weigh the competing evidence to determine whether the verdicts of guilty could be supported.”

21. The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:

[45] As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying that it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M. (Footnote omitted.)

22. In Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34, a case bearing some limited similarities to the present, a grandfather’s conviction of indecently assaulting his three-year-old granddaughter was quashed. The granddaughter was the only witness. The High Court found that there were inconsistencies and confusions in the complainant’s evidence, and that the only statement said to prove the offending was elicited by a leading question: at [46]. The trial judge and the intermediate appellate court both found the complainant to be truthful and reliable, despite acknowledging difficulties with her evidence. The High Court held that, in the circumstances, it was an error to find the complainant’s evidence was sufficiently reliable so as to conclude that the grandfather was guilty beyond reasonable doubt: [48].

23. Dansie v R (2022) 403 ALR 221; [2022] HCA 25 is the most recent confirmation by the High Court of the continuing authority of M as the test for unreasonableness:

[12] The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the ‘test set down in M’ required a court of criminal appeal to undertake an ‘independent assessment of the evidence, both as to its sufficiency and its quality’ and that consideration of what might be labelled ‘jury’ questions does not lie beyond the scope of that assessment.

Appellant’s submissions

24. The appellant’s case was a relatively simple one. The indictment charged that the indecent words alleged were spoken in a phone call on 12 February 2019. To prove the charge, it was essential that the Crown prove beyond reasonable doubt that the words alleged were spoken on that date.

24. No attack was made on the credibility of the complainant. It was submitted, however, that the complainant’s evidence about the date of the communication where the indecent words were said was so unreliable that the jury’s conclusion that it was proved beyond reasonable doubt that the words were spoken on 12 February 2019 was unreasonable.

25. It was submitted that the “height” of the complainant’s evidence was that she was “pretty sure” that the indecent words were said to her in an electronic communication on 12 February. The “low points” of the complainant’s evidence were said to be her evidence that:

1. “I think it’s on the fifth or the 12^th, I’m not quite sure”;

2. “I don’t know what he said. I don’t remember”;

3. “There were so many calls I don’t remember what happened exactly; and

4. “He literally said so many different things so I can’t remember which call it was”.

27. The appellant submitted that the Crown’s reliance on other evidence about the credibility of the complainant and evidence of complaint was not probative on the critical question of the complainant’s reliability about the date on which the indecent words were spoken.

Respondent’s submissions

28. Much of the Crown’s written and oral submissions concentrated on the credibility of the complainant and may be put to one side as the complainant’s credibility is not in issue in this appeal. It is the reliability of the complainant’s evidence which was squarely challenged.

29. The Crown accepted that its amendment of the indictment made time “of the essence” and that it was required to prove beyond reasonable doubt that the indecent words were spoken in a phone call on 12 February 2019.

30. The Crown submitted a finding of guilt was open to the jury so long as the jury was satisfied the words were spoken at least in a call on 12 February 2019. The Crown submitted that the jury may have further been satisfied that the words or words to that effect were spoken on more than one occasion. This, the Crown said, was made clear to the jury.

31. The gist of the Crown’s submissions was that, on the complainant’s account about the timing and place of the call, the indecent words must have been spoken in a phone call on either 5 February or 12 February 2019. The Crown initially contended that, because a record of phone calls between the appellant and complainant (Exhibit G) proved there was no phone call on 5 February, the jury could be satisfied beyond reasonable doubt that the call occurred on 12 February.

32. In oral submissions, the Crown conceded that the complainant’s evidence was that a Facebook Messenger call took place on 5 February 2019. Such calls were not recorded in Exhibit G. The Crown case on appeal became that it was open to the jury on the evidence to find the indecent words were said in calls on both 5 February and 12 February.

33. The Crown conceded that in a number of places the complainant gave evidence inconsistent with the Crown case. For example, the Crown was asked what should be made of the complainant’s evidence in cross-examination to the following effect:

Q. I’m not asking you about what you wrote. I’m asking you did Mr Passmore or didn’t he ring you up after one of your karate lessons and say, “My cock got hard, my pants get wet”?

A. No.

Q. You think you might have that wrong now?

A. Yeah.

Q. When you said to the police in your recorded interview on 19 February that he said that the day after your first karate lesson, that’s just wrong?

A. I got confused.

34. The Crown submitted:

SINGLE: Yes. It’s difficult. The cross-examination then continued and she then did say--

GARLING J: ‘It’s difficult’. You mean by that it’s inconsistent with the Crown’s case.

SINGLE: It is.

35. The Crown submitted that the jury was entitled to assess the complainant’s reliability, since they had the benefit of seeing how she gave evidence and understood the “subjective factors”, such as the complainant’s young age, her shyness and history of disability, that affected how she gave that evidence.

Leave to appeal

36. As I earlier noted, on 16 November 2022, the trial judge issued a certificate under s 5(1)(b) of the Criminal Appeal Act, effectively granting leave to Mr Passmore to appeal on a question of fact or mixed fact and law.

37. Reasons were given by the trial judge for that decision. I have taken into account the fact that the trial judge granted the appellant leave to appeal, but I have not had any regard to his reasons which are irrelevant to, and so of no weight, to the determination of the appeal in this Court. It is true that s 11 of the Criminal Appeal Act empowers the trial judge to furnish this Court with a report:

11  Judge’s notes and report to be furnished on appeal

The judge of the court of trial may, and, if requested to do so by the Chief Justice, shall, in case of any appeal or application for leave to appeal, furnish to the registrar the judge’s notes of the trial, and also a report, giving the judge’s opinion upon the case, or upon any point arising in the case

38. In this case, the learned trial judge made no report under s 11. Even if his Honour’s reasons should be understood as constituting a report under s 11, I would not be prepared to give them any weight. In R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188 at [10]-[14] Wood CJ at CL (Studdert and Bell JJ agreeing) found, relevantly, that the function of a s 11 report was to inform the appeal court of problems that were not apparent on the transcript of the trial. In this case, all relevant issues emerge from the transcript.

Consideration

39. The central question on this appeal is whether the jury were entitled to convict the appellant of having said the words alleged during a telephone call on 12 February 2019. That question may be expressed in another way, namely, having made my own independent assessment of the evidence, I should determine whether, notwithstanding that there is evidence upon which a jury might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand.

40. One issue on the appeal was the precise content of the indecent words allegedly spoken by the Crown. The appellant’s position was that the Crown’s case had at all points required it to prove the appellant used the whole phrase “My cock is hard and my pants get wet” or words to that effect. The Crown submitted that, during the trial, it had successfully changed the particulars given in opening and that the case was left to the jury on the basis that all they had to be satisfied about the words said was that that, on 12 February in a phone call, the appellant used the word “cock” and said that it was “hard”.

41. I reject the Crown’s submission. The case was clearly opened by the Crown and summed by the trial judge as being that the relevant indecent phase said by the appellant was “My cock is hard and my pants get wet”.

42. Without having made any application to amend the particulars, the Crown in its closing address told the jury the following:

You may find he talked about his cock being hard. Separately, you might find he said that “My pants got wet”. If you were to find “My cock got hard”, but did not find beyond a reasonable doubt, “My pants got wet”, you still have to be satisfied beyond a reasonable doubt that the accused said, “My cock got hard”. And you have to find that those words were indecent.

43. In his summing up, the trial judge said this:

The Crown fairly made the point that you need to be satisfied beyond reasonable doubt that the words, “My cock gets hard”, were said on 12 February, the whole words alleged were the “Cock gets hard” and “Pants get wet”. You need to be satisfied that the “Cock gets hard” was said that that was indecent.

44. This direction, about which no complaint was made by the Crown, makes it clear that “the whole words alleged” by the Crown were and remained “Cock gets hard” and “Pants get wet”. The jury were told that they needed to be satisfied that the appellant said “cock gets hard” and that this was indecent. It is not correct that the jury were told that they could ignore the question of whether the appellant said “pants get wet” during a communication on 12 February. Given, however, that the critical issue in the appeal is the date that any indecent words were said I will proceed on the assumption, favourable to the Crown, that all that needed to be proved beyond reasonable doubt was that the appellant said “my cock gets hard” in an electronic communication on 12 February.

45. To answer the critical question in the appeal it is necessary to consider in detail all of the evidence and, in particular, the complainant’s evidence about what was said on 12 February.

46. The complainant’s evidence in chief commenced on 16 November 2021 and involved playing her record of police interview recorded on 19 February 2019. In that interview, the complainant said that she went to karate classes taught by the appellant for about three weeks, but that she was not “100 per cent” sure when she started doing so. The complainant said that the indecent words (“cock gets hard” and “pants get wet”) were said in a call the day after her first karate lesson. It was established in evidence that the first karate lesson was on 4 February.

47. Accordingly, the principal evidence in chief given by the complainant related to a communication on 5 February:

Q341   Did he say anything to you?

A   The next day he did, like, after my first lesson.

….

Q353   Thank you. All right. So you said the next day he contacted you. How did he contact you the day after that happened?

A   Um, he, he, like, phone called.

…

Q380   OK. So, um, you’ve written here in pen, in your Texta, um, My cock is hard and my pants got wet.

A   Yeah. That’s exactly what, like he said.

…

Q382   And then that’s on the same time he called you after the karate class?

A   Yeah. Something like, yeah.

48. The complainant said in her recorded police interview that she had difficulty speaking all of the words spoken, so the interviewer gave her writing materials. She wrote “My cock is hard and my pants got wet”. The note was marked Exhibit A in the trial.

49. The complainant also stated during the recorded interview that the appellant “used to call me everyday”. When asked if a particular call stood out, she told the interviewer:

Q442   OK. Is there one particular day that you haven’t already told me about that stands out more than others? …..

A   The last one, well that I told you the one that I wrote down. That’s the worst one.

…

A   And that was like, that was like, that happened, like, last Tuesday.

50. The Tuesday immediately prior to the complainant’s police interview was 12 February 2019. The Tuesday before that, the day after the first karate lesson, was 5 February 2019. The complainant later stated in her recorded police interview that the call was at lunchtime and that she was at ‘Key’ (Key Employment, where she worked) on her lunchbreak. It was established in evidence that the complainant worked at Key Employment on both 5 and 12 February.

51. The police interviewer asked the complainant if the appellant said “anything that was as bad but not as bad as that or worse than” what she wrote in Exhibit A. The complainant responded “Oh, that’s probably, that was bad … and it was basically the first phone call. I was like, shaking, like, I get excited from it”.

52. The complainant stated during that recorded interview that she was sometimes confused with respect to dates and times. She said “I’m not really good at remembering that much,” and “I’m getting mixed with them … It’s really hard, … confusing”.

53. During the remainder of the examination in chief, the prosecution tendered some handwritten notes made by the complainant. The complainant had provided some of these notes to the police or to Ms Jodie Wood of Key Employment. At various points in the notes the complainant attributed words, in several slightly different forms, to the appellant to the effect of “My cock is hard and my pants got wet”. On appeal, the Crown attached particular importance to Exhibit C, a note the complainant wrote on 14 February 2019, before she had made her complaint to the police. On 15 February 2019, she handed Exhibit C to the police. Relevantly, it read:

3. on Tuesday the 12^th February 2019 he called me when I was at Key employment at about 12 noon I was outside and he phoned me and he said his cock was so hard it hurt I said why does that happen he said he doesn’t know and he asked what I was wearing [sic]

54. Pausing there, the evidence in chief of the complainant, particularly Exhibit C, provided some evidence that the indecent words relied upon by the Crown were said in a communication on 12 February, although much of that evidence was confusing and apparently related to a different communication occurring on 5 February.

55. Cross-examination of the complainant commenced on 16 November 2021. The complainant agreed that her first karate lesson was 4 February 2019, and that the appellant had said something about “getting hard” in a call on the following day, 5 February 2019:

Q. So my question to you then is on 5 February the day after your first lesson at karate, Mark called you, you think but you’re not sure, and you spoke to him on the phone, right so far?

A. Yes.

Q. In that conversation, he said he’s getting really hard and all that.

A. Yes.

Q. Did he say he’s “getting hard and all that” or is “and all that” just your shorthand for you’re not sure exactly what he said?

A. Yep.

56. As the cross-examination progressed, it became clear that complainant was unsure about whether the indecent words alleged by the Crown were spoken on 12 February or 5 February or, perhaps, on both days:

Q. Ma’am, are you saying to us that Mr Passmore said to you these words “My cock got hard, my pants get wet” on 5 February and 12 February?

…

A. I don’t know, I think, I think it’s on the 5^th or the 12^th I’m not quite sure.

Q. You think it was on the 5^th or the 12^th but you’re not quite sure?

A. I said that a few times, I’m trying to remember which day he first said it.

Q. So he said it a few times, and you’re trying to remember which day he said it?

A. I know he said it after a karate day, I remember that part.

…

Q. Did he say those words “My cock gets hard, my pants get wet” in more than one phone call?

A. Yes.

Q You’re telling us that he said it in the phone call on the 12^th?

A. He said it a few times.

Q. Can you answer my question, did he say it to you in the telephone call on the 12^th or are you not sure?

A. I don’t remember.

Q. Did he say it to you in the telephone call on the 5^th, or are you not sure?

A. On the 5^th.

Q. Definitely on the 5^th?

A. Yes.

Q. Let’s be clear. You think he said it more than once. You’re not sure if he said it on the 12^th. He definitely said it on the 5^th. Correct?

A. Yep.

57. The complainant was then taken in cross-examination to Exhibit G, an agreed record of telephone communications between the appellant and the complainant’s phones. A potential curiosity in the case was that Exhibit G did not show a telephone call on 5 February. It was explained by the complainant in her evidence, and it is now common ground between the parties, that there were electronic communications on 5 February by the Facebook Messenger application and also common ground that no record of those communications exists in the trial records.

58. The complainant was then asked in cross-examination about records relating to “calls of non-trivial lengths” on 7, 8, 10, 11 and 12 February 2019, and whether the appellant had spoken the key words during any of them. The complainant responded equivocally about calls on 7, 8 and 10 February, but then stated the words may have been spoken on 11 February and, with greater confidence, on 12 February 2019:

Q. Then we’ve got 11 February at 10.35 in the morning. You called him for about half an hour. Did he say it in that call?

A. I think so, but I’m not 100% sure.

…

Q. Then we get 12 February at 12 minutes past noon, you rang him for about 11 minutes. Did he say those words in that call?

…

Q. From the calendar, 12 February is a Tuesday, do you understand?

A. Yes.

Q. My question is: on that date, is that when he said it to you?

A. I’m pretty sure ‘cause it was, it was on the day I was at Key Employment which was a Tuesday.

Q. Pretty sure?

A. Yeah.

59. After being taken through Exhibit G, the complainant remained unsure about what date it was that the indecent words relied upon by the Crown were spoken:

Q. What you told us is that in nearly every call he said these words to you, isn’t it?

A. Well not that part, but he said he got really hard in most of the calls, so he didn’t say that word in every call.

Q. But when we go through all of the calls between the 29^th and the 12^th, you really can’t say which one, can you?

A. No.

60. Cross-examination continued on 18 November 2021 and the complaint gave clear evidence that the indecent words relied upon by the Crown were spoken during a Facebook Messenger call on 5 February:

Q. So you’re telling us that over the Facebook Messenger system, it’s possible for Mr Passmore to also call you in a telephone call?

A. He did sometimes call me on Messenger as well.

Q. So is that a yes to my question, he can use Facebook Messenger to make calls to you where he speaks down the line and you speak back?

A. Yes.

Q. He did that sometimes?

A. Yes.

Q. Okay. So you’re telling us maybe he did call you on the 5^th and we just don’t have the records, because it was on Messenger?

A. Yes.

Q. So now what you’re saying to the jury is that maybe on 5 February he really did call you, just on Messenger, and say “My cock got hard and my pants get wet” through Facebook Messenger?

A. Yes.

Q. Are you just guessing about that?

A. No.

Q. Do you actually remember it happening in that way?

A. Yes.

Q. You remember it now?

A. I had time to think over it more.

Q. Did I ask you about five minutes ago about 5 February and you said you didn’t remember?

A. Yes.

Q. So when did you remember? Just now while I’ve been talking to you, is it?

A. I was just couldn’t remember.

…

Q. So now you have a clear memory do you that in fact on 5 February he did call you but it was on Facebook Messenger?

A. Yeah.

61. The complainant then accepted that the relevant call where the indecent words alleged by the Crown were said may have taken place on 7 February:

Q Did you go to karate on the evening of the 6^th, the Wednesday night?

A. I’m pretty sure I did. I don’t remember that far back.

Q. If you went to karate on the night of the 6^th, the next day would be the 7^th, wouldn’t it?

A. Yeah.

Q. If you have a look at the phone log, there are some calls on the 7^th, aren’t there?

A. Yeah.

Q. Is it possible that what you remember as the first call where Mr Passmore said to you, “My cock gets hard, my pants get wet” wasn’t on 5 February but maybe it was in the call on the 7^th?

A. I think so. I don’t really remember what happened in each call.

62. Further confusion emerged in the complainant’s account relating to the date the communication was made:

Q. [B]asically what you’re saying is you’re really not sure which day he made the calls and said those words to you?

A. All I know, I was at Key Employment that day; that’s all I remember. Yeah.

Q. What does that mean about what you said to the police in your interview about him speaking to you on the phone the day after karate the first time? Are you telling us now that’s wrong?

A. I don’t remember when I wrote back again, that’s all.

Q. I’m not asking you about what you wrote. I’m asking you did Mr Passmore or didn’t he ring you up after one of your karate lessons and say, “My cock got hard, my pants get wet”?

A. No.

Q. You think you might have that wrong now?

A. Yeah.

Q. When you said to the police in your recorded interview on 19 February that he said that the day after your first karate lesson, that’s just wrong?

A. I got confused.

63. In re-examination the Crown took the complainant to Exhibit G and asked the following leading questions:

Q. Do you see there the entry on 12 February at 12.12?

A. Yep.

Q. Is that the call when Mr Passmore said to you, “My cock is hard and my pants got wet”?

A. Yes.

64. As the Crown essentially accepted on appeal, those leading questions do not take the matter very far given the confusion which emerged in cross-examination of the complainant. The situation in that respect is similar to that addressed by the High Court in Douglass at [46].

65. I have carefully considered any remaining evidence which may support 12 February as the date that the indecent communication took place. The first is that the complainant said the call took place on a Tuesday, the day after one of her karate lessons, while she was on her lunchbreak at Key Employment. Having looked at all of the evidence, these matters are neutral as between 5 and 12 February as the date for the communication. There were karate lessons on 4 and 11 February and the complainant worked at Key Employment on 5 and 12 February.

66. There is also the evidence of complaint, to Ms Bray of Headspace on 12 February 2019 and internet searches conducted by the complainant on 15 February about “inappropriate” conduct by men. As the Crown correctly conceded on appeal, this complaint evidence throws no light on whether the indecent communication took place on 5 or 12 February.

67. The evidence as a whole leaves me with a significant doubt that the relevant indecent communication took place on 12 February 2019. It is a doubt the jury should have shared.

68. On the evidence it was not open to the jury to find that the relevant words were spoken on both 5 February and 12 February 2019. At best the evidence showed it was possible that there were calls on both dates. However, that possibility must be assessed in context of the complainant’s denials that the call took place on 12 February and her general confusion about the dates. There was real doubt that 12 February 2019 was the date of the call, and that doubt is not overcome by the possibility that the communication containing the indecent words could have occurred on 12 February 2019.

69. Exhibit G, it is now common ground, does not establish that 5 February is excluded as a possible date for the communication. The complainant asserted, in cross-examination, that there had been a Facebook Messenger call between her and the appellant on that date, and that that call had contained the indecent words.

70. The better view of the complainant’s evidence as a whole is that it showed that she believed the indecent words were likely spoken in a call on 5 February 2019. Certainly, the evidence does not prove beyond reasonable doubt that the indecent communication took place on 12 February.

71. The complainant’s initial position in her police interview was that the communication containing the indecent words took place after her “first” karate lesson, which took place on 4 February 2019. In cross-examination, she agreed she had a “clear memory” that the communication occurred on 5 February 2019.

72. The complainant’s response to the Crown’s leading evidence in re-examination should properly have been afforded little, if any, weight by the jury. That evidence does not affect the doubts that I have arising from the obvious and clear confusion about dates that emerged from the complainant’s overall account.

73. Exhibit G revealed a call made around midday on 12 February 2019, which was consistent with the complainant’s assertion in her complaint that the call occurred at lunchtime. However, Exhibit G also revealed that the complainant had called the appellant and not vice versa. The complainant alleged that the indecent words were spoken in a call made by the appellant. This matter, by itself, was not critical but adds to my overall sense of doubt that the date of the communication was proven to be 12 February.

Conclusion and orders

74. I have concluded that the jury, acting reasonably, should have had a doubt about the appellant’s guilt on the only count upon which he was convicted. The jury were in no better position that this Court to assess the complainant’s reliability. In this case the weight of internal inconsistencies in the complainant’s evidence, including the directly contradictory evidence given about the date the indecent words were said was simply too great for the jury properly to accept that evidence as sufficiently reliable to find the appellant guilty beyond reasonable doubt. The matters I have identified, working together, should have left the jury with a doubt about whether the Crown had established that the appellant was guilty beyond reasonable doubt of making the indecent communication on 12 February.

75. Making my own independent assessment of the evidence I have determined that notwithstanding that there is evidence upon which the jury might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies and otherwise lacks reliability in such a way as to lead me to conclude that, even making allowance for the advantages enjoyed by jury, there is a significant possibility that an innocent person has been convicted. It follows that the appellant is entitled to be acquitted of the only charge he faced.

76. For the foregoing reasons, I propose that the appeal should be allowed and the appellant’s conviction quashed. A verdict of acquittal should be entered.

77. I propose the following orders:

1. Appeal allowed;

2. Quash the appellant’s conviction;

3. Enter verdict of acquittal on count 1 in the indictment.

78. GARLING J: I am grateful to Payne JA for setting out the relevant facts and circumstances for this appeal. I do not need to repeat that material.

79. I have formed the view that the appellant’s conviction must be quashed and an acquittal entered on the basis that, having assessed the entirety of the trial record independently, I have formed the view that, having regard to doubts in my mind about the accuracy and reliability of evidence of the complainant to support the Crown case put to the jury, there is a real possibility that the appellant is an innocent man who has been wrongly convicted.

80. The reasons and conclusions of Payne JA which are set out in his judgment are those which led me to the conclusion set out above.

81. It was an important matter in my discernment that the Crown chose to formulate the case against the appellant on the basis that the indecent words were spoken during a telephone call which happened on 12 February 2019 and not on any other day. Whilst the evidence in the trial may have been capable of supporting a conclusion that indecent words of the kind alleged may have been said at some point in time, and perhaps on more than one occasion, there was considerable doubt in the evidence, as Payne JA’s judgment pellucidly demonstrates, that the Crown proved its case that the words were spoken on the day it alleged.

82. I agree with the orders proposed by Payne JA.

83. YEHIA J: Having conducted my own independent assessment of the sufficiency and quality of the evidence, I have determined that, even making allowance for the advantages enjoyed by the jury, the verdict is unreasonable. I agree with the orders proposed by Payne JA.

**********

Decision last updated: 24 March 2023