Phillips (a pseudonym) v Burton
[2024] ACTSC 127
•30 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Phillips (a pseudonym) v Burton |
Citation: | [2024] ACTSC 127 |
Hearing Date: | 26 March 2024 |
Decision Date: | 30 April 2024 |
Before: | Berman AJ |
Decision: | See [89] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from Magistrates Court –appeal against conviction – whether finding that the offence was proved was unreasonable – whether Chief Magistrate erred in failing to properly apply Liberato direction – consideration of whether onus of proof was reversed – whether Chief Magistrate engaged in inappropriate tendency reasoning – each ground not established – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Inglis v Adamson [2024] ACTSC 4 |
Parties: | Zachary Phillips (a pseudonym) ( Appellant) Leigh Michelle Burton ( Respondent) |
Representation: | Counsel J White SC ( Appellant) K L McCann ( Respondent) |
| Solicitors Kamy Saeedi Law ( Appellant) Director of Public Prosecutions (Respondent) | |
File Number: | SCA 50 of 2023 |
Decision Under Appeal: BERMAN AJ: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 15 August 2023 Case Title: The Police v Zachary Phillips Court File Number: CAN 8933 of 2022 |
Introduction
On 15 August 2023, the appellant, who I will refer to by the pseudonym “Zachary Phillips”, was found guilty by the Chief Magistrate of an offence of committing an act of indecency on a person under 16 years of age, contrary to s 61(3) of the Crimes Act 1900 (ACT). He appeals against that conviction.
The evidence before the Chief Magistrate was summarised by the respondent to the appeal in an annexure to their Summary of Argument, filed 25 March 2024. This was based on the summary of the evidence to be found in the Chief Magistrate’s judgment. There was no criticism of that summary by the appellant. Accordingly, that summary is relied on in this judgment.
Background
Briefly, the complainant, who I will refer to as “Alisha Edwards”, was a friend of one of the appellant’s daughters. The friend’s parents had separated, and she spent 50 percent of the time living with her mother and 50 percent of the time living with her father. On the evening of 27 November 2021, Miss Edwards went to a sleepover at the appellant’s home. The appellant went out to a party, leaving the children in the care of a babysitter. With the agreement of the appellant, the babysitter left before the appellant returned home. None of this evidence was disputed.
However, what occurred after the appellant arrived home was disputed.
Miss Edwards gave evidence that she and the appellant’s daughter went to bed on a double mattress on the lounge room floor. The appellant’s daughter was asleep when the appellant returned. Miss Edwards gave evidence that the appellant laid down next to her and touched her on her vulva and bottom. In order to stop him doing what he was doing, Miss Edwards got up off the mattress and went to the kitchen for a glass of water. She waited for the appellant to leave and then went back to the mattress and went to sleep.
The appellant gave evidence. He said that when he came home from the party, he saw the two girls apparently asleep on the lounge room floor and he went to bed. He suggested that Miss Edwards had a motive to make false allegations against him. That purported motive was that he had been having an affair with Miss Edwards’ mother and her husband, Miss Edwards’ stepfather, had found out about it. Since then, Miss Edwards’ stepfather had become obsessed with him and wanted to harm him.
At the hearing of the appeal, I admitted new evidence in the form of an extract of call charge records as I was satisfied it was expedient in the interests of justice to do so: Magistrates Court Act 1930 (ACT) s 214(3)(a). These call charge records related to the use of the appellant’s phone on 27 November 2021. The records showed that two messages sent by the appellant to the babysitter’s phone at 11:35pm were sent through a mobile phone tower in the same suburb as the accused’s home, and that earlier messages to the babysitter’s phone were sent through a mobile phone tower in the suburb where the party the appellant attended was held.
Of perhaps more importance is material I was provided with after the hearing of the appeal with the consent of both parties, being further extracts of the appellant’s call charge records. That material showed that before 11:35pm on 27 November 2021, the appellant’s mobile phone ‘pinged’ mobile phone towers in the vicinity of the party, but after 11:35pm, those pings came from towers near his home. This suggests that, as the appellant said in his evidence, he arrived home at 11:35pm, which was well after the babysitter left.
Other aspects of the evidence will be referred to in dealing with the various grounds of appeal.
The grounds of appeal
The nature of an appeal of this type was outlined by Baker J in Inglis v Adamson [2024] ACTSC 4, as follows:
[48] An appeal under ss 207 and 208 of the Magistrates Court is by way of rehearing: Alexander v Bakes [2023] ACTCA 49. On this rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the Magistrates Court Act. This task requires that the Court undertake a “real review” of the evidence: Alexander v Bakes at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
[49] The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19].
The grounds of appeal on which the appellant relies are as follows:
(a)the finding that the offence was proved was unreasonable;
(b)the learned Chief Magistrate erred in failing properly to apply the Liberato direction;
(c)the learned Chief Magistrate erred in reversing the onus of proof;
(d)the learned Chief Magistrate erred in relying on evidence of communications between the defendant and the babysitter as founding an inference that the defendant was “inappropriate” and evinced “a degree of disinhibition”;
(e)the finding of the learned Chief Magistrate that the defendant evinced “a degree of disinhibition” constituted inappropriate tendency reasoning; and
(f)the learned Chief Magistrate erred in excluding evidence of the dispute between the defendant and the stepfather of the complainant.
The parties sensibly addressed ground (a) last. I will follow that order in this judgment.
Ground (b) – the Liberato direction
The first nine pages of the Chief Magistrate’s judgment summarised the evidence. Her Honour then briefly summarised the parties’ submissions, before turning to the directions of law that her Honour applied. At T 10.30-36, her Honour said:
The defendant has no obligation to prove his innocence. If he raises an explanation consistent with his innocence, he is not required to prove it. It is for the prosecution to disprove it or demonstrate its irrelevance. If I believe the defendant’s evidence or accept the possibility that it might be true, I must acquit him of the charge. Even if I do not believe the defendant, I must still be satisfied, on the prosecution case, that each and every element of the offence is established beyond reasonable doubt.
In the appellant’s written submissions, this was described as “a rather truncated version of the Liberato direction”. However, no deficiency in the direction itself was identified and stripping the Liberato direction (see Liberato v The Queen (1985) 159 CLR 507) to its essential elements is scarcely a criticism when the direction is being applied by a judicial officer familiar with the principle.
Perhaps if this were a direction to a jury, some elaboration and even repetition might be appropriate, but given this principle is applied by a magistrate every time an accused person gives evidence in a trial before them, the brevity of her Honour’s direction to herself in this case can scarcely be criticised.
Next, complaint is made that the Chief Magistrate “only considered the evidence of the appellant in the context of having already accepted the complainant’s evidence”. That is an accurate reflection of the structure of her Honour’s judgment. At T 13.13-14, her Honour accepted Miss Edwards’ evidence as “reliable and credible”. Then, later in the judgment at T 14.16, her Honour found that the appellant’s evidence was “unreliable”.
In the appellant’s written submissions, it was submitted that “the Magistrate would have had to reject the appellant’s evidence before she could move onto considering the prosecution case” (emphasis added).
It is in the nature of a written and oral judgment that findings have to be explained in some sort of order, they cannot all be explained at exactly the same time. It is often the case that findings as to the reliability of evidence are made in the same order in which the evidence was given. But that does not mean in this case that the Chief Magistrate found that Miss Edwards’ evidence was credible without any consideration being given to the evidence of the appellant.
It could scarcely be the case that her Honour was required to consider the reliability of the appellant’s evidence first, without any consideration being given to the evidence in the prosecution case.
In its written submissions, the respondent puts the matter very well:
That the rejection of the appellant’s evidence, in part, occurred as a consequence of the magistrate’s acceptance of the prosecution case does not reveal a misapplication of the burden of proof, or an error in approaching her task. Rather, it reflects the reality that the evidence of the prosecution witnesses was diametrically opposed to that of the appellant who denied the offending had occurred. Her Honour was obliged to consider the whole of the evidence before making her findings. Her Honour’s acceptance of the prosecution case required rejection of the appellant’s evidence since they could not stand together.
I accept what the respondent says about this issue.
It is then submitted by the appellant that the Chief Magistrate never actually rejected the appellant’s version of events in the evidence he gave, and her Honour never considered whether his evidence “might” be true. The appellant’s written submissions say:
A simple finding that the appellant’s evidence, when considered in the context of her preference for the complainant’s evidence, was “unreliable” did not exclude the possibility that his evidence might be true.
Her Honour ultimately found that she was satisfied beyond reasonable doubt of the accused’s guilt. At T 10.26-28 of her Honour’s judgment, her Honour reminded herself “of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offence as charged beyond reasonable doubt”. Her Honour later found that:
(a)the appellant touched Miss Edwards inappropriately in the region of her genitals and on her buttocks;
(b)he was aware that the child he was touching was Miss Edwards; and
(c)that conduct was indecent.
Given those findings by the Chief Magistrate, it follows that her Honour was satisfied that there was no reasonable possibility that the appellant’s evidence before her “might” be true, and that his version of events was not a reasonably possible account of what occurred that evening.
It is clear that the Chief Magistrate assessed the defence case, and the prosecution case too, in coming to the conclusion that her Honour was satisfied of the accused’s guilt.
This ground fails.
Ground (c) – the purported reversal of the onus of proof
In order to understand this ground, there needs to be some reference to the evidence of the babysitter. Her only relationship with the appellant was a professional one, as a babysitter to his children. They had no personal relationship.
The babysitter gave evidence that during the night, she received a telephone call from the appellant. She said that he was “intoxicated” and very complimentary of her. He called her “gorgeous” or “beautiful”. He told her that she could leave before he returned.
After she had left the house, she received messages on her phone from the appellant, one of which said, “come around”, and the other, “Thank you for letting been an advantage your n [sic]”.
The criticism made by the appellant of her Honour’s judgment, as far as this ground is concerned, relates to the following passage at T 14.4-14:
I am satisfied that he sent the text messages to [the babysitter] after returning home. The messages were odd, inappropriate and incoherent. His inability to explain the messages evidences a degree of disinhibition attributable to his level of intoxication. His inability to recall them is consistent with his otherwise sketchy recollection of events of the evening, such as his telephone conversation with [the babysitter] before he went home. Further, the defendant has a very selective memory of events from the evening, only really of matters which were exculpatory to him, with no apparent reason for this selectivity in his recall; for example, he claimed to have recalled turning on a light and getting a bottle of water, but not making a telephone call or sending text messages.
The appellant submits that this passage demonstrates that the Chief Magistrate reversed the onus of proof.
I do not agree. Sometimes there is evidence which tends to suggest a particular conclusion, but when an explanation is given, that conclusion is harder to draw. If a person leaves a locked room carrying a smoking gun, immediately after a loud bang is heard, a conclusion may be drawn that the person fired a shot from the gun. But if an explanation is offered by the person holding the gun in their hand, perhaps that they picked up the gun soon after another person fired it, then that same conclusion is harder to draw.
Although there must always be caution exercised before drawing inferences, it remains the case that when looking at whether an inference can safely be drawn, the presence or absence of evidence to support or contradict the inference is something which must be considered.
The absence of an explanation is thus important in determining the weight to be given to particular evidence.
None of the above analysis in any way places any onus of proof on an accused person. Nor would it be to reverse the onus of proof to observe that particular evidence was uncontradicted by evidence from the accused.
Similarly, when the Chief Magistrate refers to “his inability to explain the messages”, his “inability to recall them”, and “no apparent reason for this selectivity”, her Honour was merely observing the absence of evidence that would explain or contradict certain things: see T 14.5-12. Given that the Chief Magistrate was required to consider all the evidence before her, and to draw inferences where appropriate, it was appropriate that her Honour observe the absence of evidence about particular matters. This is not reversing the onus of proof.
Accordingly, this ground fails.
Ground (d) – reliance on evidence of communications to found inference
Although the appellant argued grounds (d) and (e) together, I prefer to keep them separate. This enables a bit more precision of approach to the arguments advanced.
As the evidence was at the trial, the accused had had a phone call with the babysitter, in which he called her “gorgeous” or “beautiful”, and then sent her two messages, one saying “come over” and another which was incoherent (the new evidence on the appeal goes some way to suggest that the text messages may have been sent to the babysitter by mistake).
As noted above, the Chief Magistrate said that the messages were “odd, inappropriate, and incoherent”: see T 14.5. Given the state of the evidence before the Chief Magistrate, and her Honour’s ability to see the apparent age of the babysitter (something denied to me, although it was agreed on the appeal that she was a “late teenager”), it has not been demonstrated that her Honour was wrong to give the messages that description.
It is hard to see how calling your children’s babysitter “gorgeous” or “beautiful”, inviting her to “come over” late at night and then sending her a message which reads, “Thank you for letting been an advantage your n [sic]”, in circumstances where the only relationship between you and the babysitter is a professional one, could be described as anything other than “odd, inappropriate, and incoherent”.
Contrary to the contents of this ground of appeal, her Honour did not find that the communications suggested “a degree of disinhibition”. Her Honour’s finding was that it was his “inability to explain the messages” which evidenced “a degree of disinhibition attributable to his level of intoxication” (emphasis added): see T 14.5-7.
All her Honour was saying was that there was evidence before her that the appellant was intoxicated when he communicated with the babysitter, that evidence partly coming from the appellant’s inability to say why it was that he told her she was “gorgeous” or “beautiful”, why he invited her to “come over”, and why he sent her an incoherent message. On the state of the evidence before her, that finding could not be seriously challenged.
The above analysis demonstrates why this ground must fail.
Ground (e) – inappropriate tendency reasoning
Part of the appellant’s complaint under this ground refers to the submissions made by the prosecutor in the court below, and the prosecutor on this appeal, as to the use to which the finding that the appellant evinced “a degree of disinhibition” could be put. What is more important is what the Chief Magistrate said in her Honour’s judgment.
The relevant passage has been quoted above at [30]. The Chief Magistrate refers to the appellant exhibiting “a degree of disinhibition”. In his written submissions, counsel for the appellant, Mr White SC, asks rhetorically, “what… is the relevance of this supposed disinhibition?”, and in the absence of any better answer suggests that “it can only be a disinhibition toward sexually assaulting the complainant”. He suggests that it was “inappropriate tendency reasoning”.
In truth, all her Honour was doing was linking the appellant’s “degree of disinhibition” with “his level of intoxication”, saying that the former is attributable to the latter. And that is exactly what her Honour said at T 14.5: “His inability to explain the messages evidences a degree of disinhibition attributable to his level of intoxication”.
It is notorious that intoxicated people do things they would not do while sober. The appellant’s disinhibition, attributable to his intoxication, could have led to him telling his children’s babysitter that she was “gorgeous” or “beautiful” and to send a text message to her inviting her to “come over”. Although new evidence suggests the possibility that that invitation was meant for someone else, the Chief Magistrate’s finding was open on the evidence before her, and the finding remains a valid one on the basis of the telephone call alone in which the accused flattered the babysitter on her appearance.
The relevance of the accused’s disinhibition was not as tendency evidence, which both the prosecutor and the Chief Magistrate disavowed, but as evidence pointing to the accused’s intoxication, a highly relevant matter when a person with no prior convictions for sexual assault is alleged to have indecently assaulted a 10-year-old girl. That is a matter which was accepted by counsel for the appellant at trial when she raised objection to a question asked by the prosecutor, saying at T 175.42-43 that the evidence “may indicate his – you know, that he’s intoxicated”.
The evidence was not tendency evidence. The degree of the appellant’s disinhibition was relevant to the level of his intoxication, which in turn was relevant because it:
(a)corroborated the babysitter’s evidence that the appellant was intoxicated;
(b)was relevant to the reliability of the appellant’s memory of the events of that night; and
(c)perhaps most importantly, rendered it more likely that the offending occurred.
It has not been demonstrated that the Chief Magistrate engaged in inappropriate tendency reasoning, either deliberately or accidentally. Accordingly, this ground fails.
Ground (f) – exclusion of evidence of dispute
The evidence clearly established a significantly high level of animosity between the complainant’s stepfather and the accused, arising from the fact that he had caught his wife, the complainant’s mother, and the accused out in an affair. The complainant’s mother gave evidence that the complainant’s stepfather became obsessed with the appellant. There was evidence that the complainant’s stepfather may have referred to the appellant as a “sexual predator” and an “alcoholic”. He even went to the extent of seeking that his son be moved out of the sports team in which the appellant’s son played.
The accused gave evidence that he was aware that an allegation was going to be made against him even before police turned up at his home. He had been told by his ex-partner, who had been told by the complainant’s stepfather’s ex-wife, that the allegation was going to be made. One of the first things he said to police was “this is to do with [the complainant’s stepfather]”.
However, there was evidence as to the unlikelihood of the complainant becoming aware of her stepfather’s attitude towards the appellant, and a complete absence of evidence that, if she had become aware, that would have motivated her to make a false allegation against the appellant.
It was in this context that the counsel for the appellant at trial sought to adduce evidence of text messages the appellant had received from the complainant’s stepfather on 22 March 2022, the day he discovered his wife’s affair, and evidence concerning interactions the appellant had with the complainant’s stepfather on the weekends of 28 May 2022 and the following weekend. Her Honour rejected that evidence on the basis that counsel had not established that the evidence went to the issue of potential contamination.
Counsel renewed her application. She sought to have evidence admitted from the appellant “as to [sic] extent of any conflict with [the complainant’s stepfather] so that the Court could infer that [the complainant’s stepfather] transferred that level of antipathy in his communications with his wife on his visits to the house” (T 164.32-34), and from that, “ask the Court to infer that that may have been heard by” the appellant: see T 164.38-39.
The Chief Magistrate held at T 169.24-29 that:
The fault with the logic that is put forward by the defence, it seems to me, is that nothing Mr Phillips’ can say about what occurred between him and [the complainant’s stepfather] could rationally affect, directly or indirectly, the assessment of the probability of any of the facts that the defence seeks to rely upon. The missing links in that train of logic cannot be filled by the defendant’s evidence and I therefore continue to uphold the objection.
The submission put on by the appellant at appeal is:
There was enough evidence to raise squarely the issue of contamination, and denying the defence the opportunity to pursue this issue resulted in a miscarriage of justice.
It is tolerably clear that the “missing links” to which the Chief Magistrate referred are anything which would suggest that the obvious animosity between the complainant’s stepfather and the appellant could somehow lead to contamination of the complainant’s evidence or provide a motive for her to lie.
This matter will be developed in more detail under the next ground of appeal, which asserts an unreasonable verdict, because what was said to be the motive for the complainant to make a false allegation against the appellant was an important plank in the case for the appellant. It is enough to note at this stage that the suggestion that the complainant’s stepfather’s hatred of the appellant would somehow motivate the complainant to lie was pure speculation, even assuming she became aware of what the complainant’s stepfather thought about the appellant.
The man who developed the obsession was not her father. He was her stepfather. At the time the complainant told her mother about what the appellant did to her, her stepfather was not living in the house, having separated from the complainant’s mother. The complainant and her stepfather did not have a close relationship: see T 93.26, T 46.41, T 76.36. In such circumstances, the Chief Magistrate was correct to find that nothing the appellant could “say about what occurred between him and [the complainant’s stepfather] could rationally affect, directly or indirectly, the assessment of the probability of any of the facts that the defence seeks to rely on”: see T 169.25-27.
Accordingly, the Chief Magistrate was correct to exclude evidence of the dispute between the appellant and the complainant’s stepfather, and so this ground fails.
Ground (a) – the finding that the offence was proved was unreasonable
Ordinarily, when fresh evidence is admitted on an appeal, the question before the Court is whether there was a significant possibility that the jury, judge or magistrate, acting reasonably, would have acquitted the applicant had the fresh evidence been presented at trial: see Tiriaki v R [2023] NSWCCA 73.
However, under this ground, the appellant asserts that the Chief Magistrate’s finding of his guilt was unreasonable. Given that I have admitted new evidence, the task before me now is to conduct my own independent assessment of the evidence both before the Chief Magistrate and admitted before me on the appeal and decide whether the prosecution has proved beyond reasonable doubt that the accused is guilty.
As I’ve mentioned earlier, the accused has no previous convictions for an offence of sexual assault, and indeed the only matter on his criminal history is a drink-driving matter. Accordingly, he is entitled to rely on his good character, which makes it less likely that he committed an offence, and more likely that he is telling the truth when denying committing an offence. On the other hand, everyone who has been convicted of a criminal offence involving the indecent assault of a child has been, at some stage, a person with no convictions for such an offence.
I take into account that it is much harder to be satisfied of the guilt of an accused in a case where there is a single witness upon whom the prosecution can rely. I must therefore examine the evidence of the complainant in this matter very carefully in order to satisfy myself that I can accept it to the high standard required by the criminal law, namely proof beyond reasonable doubt.
The accused gave evidence at the trial. He did not have to, and by doing so he did not take upon himself any burden to prove his innocence. He does not have to prove that he is not guilty. He does not have to prove that he is innocent. It is up to the prosecution to prove his guilt if it can.
If I find that his evidence is accurate, or that it might be true, I must find him not guilty. Even if I reject his evidence completely it does not follow that he must therefore be guilty. The onus remains upon the prosecution to prove his guilt.
There is a gap of some seven months between when the offence was allegedly committed and when the complainant first told her mother about it. That delay may affect the complainant’s reliability, but in that regard, I do note that there was an explanation offered by the complainant for that delay. Although her relationship with her mother was a close one, and she could confide in her, the complainant said that it was not until shortly before she complained to her mother that she realised just how wrong the appellant’s behaviour had been: see T 63.41-44. Although she saw her father regularly, theirs was not the sort of relationship where they talked about “emotions and stuff”: see T 64.14-16.
The appellant suggested that the complainant may have had a reason to make a false allegation, namely that she was aware that her mother had had an affair with the appellant, which caused her stepfather to hate the appellant and exhibit that hatred in a number of ways.
In assessing the motive raised by the appellant, I note the following matters:
(a)the man was not her father, rather he was her stepfather;
(b)he had not been involved in any way in her upbringing;
(c)at the time the complainant told her mother about what the appellant did to her, her stepfather was not living in the house, having separated from the complainant’s mother;
(d)the complainant’s stepfather usually visited the home where the complainant lived when she was not present;
(e)the uncontradicted evidence was that the complainant, “just didn’t really like” her stepfather (T 46.42-43);
(f)the complainant and her stepfather did not have a strong relationship (T 93.26);
(g)the complainant never heard her stepfather say anything bad about the appellant, and never even heard her stepfather talk about him (T 52.10); and
(h)it is difficult to imagine any reason the complainant would want to assist her stepfather in the first place as his entry into her life effected the close relationship she had with her mother. Before he commenced a relationship with her mother, the complainant used to sleep in her mother’s bed. That stopped when he moved in, but recommenced once he moved out.
For those reasons, I reject as not being reasonably possible the suggestion that the complainant’s stepfather’s hatred of the appellant, arising out of his discovery that the appellant and his wife were having an affair, motivated the complainant to make a false allegation of indecent assault against the appellant.
That rejection of the motive offered by the appellant does not mean that the complainant is necessarily telling the truth. After all, she might have a reason to lie which is not apparent. The appellant cannot be expected to see into her mind and discover whatever motive there may be for her to make a false allegation against him. Absence of evidence of a motive to lie adds nothing to the prosecution case.
The new evidence admitted before me makes two things more likely. The first is that the accused was correct when he gave evidence that he arrived home at around 11:35pm on 27 November 2021. This is relevant because it was the complainant’s evidence that he came home two minutes after the babysitter left. It is also relevant to an assessment of the reliability of the appellant’s evidence. Any suggestion that he was lying or mistaken about the time he said he returned home after the party could no longer be made. It makes more likely his evidence that his daughter and the complainant were apparently asleep.
On the other hand, the complainant may well have made a mistake about the time between the babysitter leaving and the appellant returning, perhaps because she was, without realising it, asleep in the interim.
The experience of criminal courts is that it is not uncommon for children to be imprecise about time (see AS v R [2022] NSWCCA 291 at [109]-[111]), something which is well understood in the community generally. So, although it is likely that the complainant made a mistake about how long it was between the babysitter leaving and the appellant coming home, not too much should be made of this when assessing the reliability of the complainant’s evidence that she was indecently assaulted by the appellant after he came home. It is one matter that has to be considered amongst other matters.
The complainant was accurate in saying that the children being babysat that night were, along with her, her friend, who is one of the appellant’s daughters, and her friend’s sister, but not her friend’s brother who was at a sleepover. When the appellant gave evidence, he confirmed that that was the case: see T 149.14-21.
She was also accurate about the layout of the room. She drew a diagram during her evidence-in-chief interview which proved to be accurate. She was cross-examined in a way which suggested that she had made a mistake about the layout of the lounge room, but she would not accept that she had made a mistake: see T 54.19-25, 57.5. In asking those questions, the cross-examiner was labouring under a misapprehension, as she, very appropriately, admitted as soon as she became aware of that fact: see T 83.14. The appellant himself confirmed the accuracy of the diagram that the complainant drew when he gave evidence.
Not only does this suggest the accuracy of her memory, but also demonstrates that she is not likely to adopt suggestions made to her by adults, even those suggestions which are made repeatedly by adults in a position of authority.
Perhaps, more importantly as regards the actual allegation of indecent assault, the complainant said that when the appellant was behind her touching her on her vulva and bottom, she could smell beer and deodorant. It is accepted that the appellant was intoxicated when he returned home, and it is likely therefore that he did smell of alcohol. He gave evidence that he was drinking champagne not beer, but this difference is immaterial – one could not expect a 10-year-old girl, even perhaps an adult, to be able to distinguish whether someone smelt of beer or champagne.
This is a very powerful detail in favour of the prosecution case. Even without evidence that the appellant was in fact intoxicated, it would be a matter significantly pointing to the evidence of the complainant being a recounting of an experience she actually experienced. If she was making all this up, she would be much more likely to respond to the question put to her during her evidence-in-chief interview “could you smell anything?” by answering “no” or “I don’t remember”. That the complainant was able to give this detail, and that it proved to be accurate, is powerful support for the honesty and reliability of the complainant’s allegation that she was indecently assaulted by the appellant in the way she described.
Also compelling were the descriptions given by the complainant as to how she was feeling, “scared “and “uncomfortable”, and how she managed to bring the incident to a conclusion (“I went to the kitchen and got a drink and then I waited for him to leave”).
Certainly, the appellant is entitled to rely on the fact that the complainant went to a sleepover at the appellant’s home, perhaps more than one, after 27 November 2021. However, it is well understood by courts that victims of sexual assault, even adults, do not always act in the way logic would suggest they should act. I accept the prosecution’s submission, quoting Maughan v R [2020] NSWCCA 51 per Ierace J at [99] (R A Hulme J agreeing at [2], Adamson J agreeing at [8]) that:
It is now well understood that “behaviours that may not seem sensible, logical or otherwise plausible to those who have not enjoyed that experience may not necessarily be indicated if of implausibility or inconsistency” with an allegation.
After all, the complainant had a strong friendship with the appellant’s daughter and a desire to continue to act as normal would not be unnatural.
As far as the appellant’s evidence is concerned, as already noted, he has proved to be accurate in a number of respects. There is nothing that the prosecution can point to in his evidence alone which is indicative of his guilt. But that does not mean that his evidence must necessarily be accepted. Nor does it mean that his evidence might be true.
What I have to do is evaluate the whole of the evidence, the evidence given by the witnesses and the exhibits in the Court below, together with the new evidence admitted on this appeal and decide whether, after examining the evidence of the complainant with great care, the evidence satisfies me beyond reasonable doubt that the complainant gave an honest and accurate account of what the appellant did to her on 27 November 2021.
In performing that function, I must recognise that the Chief Magistrate had advantages which are denied to me. Her Honour was able to see the witnesses as they actually gave their evidence. There are many things which would have been apparent to the Chief Magistrate which are not apparent to me, relying, as I must, on the written transcript. I must therefore pay due deference to her Honour’s advantaged position in assessing the reliability of witnesses, including by examining the way they gave their evidence: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at 31-35.
Having done what I am required to do, I am satisfied beyond reasonable doubt that the complainant has given an honest and accurate account of what happened to her on 27 November 2021. Her evidence was compelling, particularly her description of what she smelt, how she felt, and how she brought the incident to an end. I am satisfied beyond reasonable doubt of the guilt of the accused and therefore dismiss this appeal.
Orders
For those reasons, the following orders are made:
(1)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the appellant in proceedings SCA 50 of 2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by the pseudonym “Zachary Phillips”.
(2)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the complainant in proceedings SCA 50 of 2023 be referred to in the proceeding (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by the pseudonym “Alisha Edwards”.
(3)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it is ordered, until further order, that the disclosure (by publication or otherwise) of information or particulars that might enable the persons referred to in Orders 1 to 2 above to be identified or that would reveal their identity, other than by use of their pseudonyms, be prohibited save for:
(a)in any subpoena for production and/or attendance or notice for non-party production, in which it is reasonably necessary to identify the persons referred to in Orders 1 to 2 above by their true name;
(b)in communications between the legal representative for the parties, in which it is reasonably necessary to identify the persons referred to in Orders 1 to 2 above by their true name;
(c)in communications necessary for the conduct of the proceedings between the legal representatives for the parties and any party, witness or other person(s), in which it is reasonably necessary to identify the persons referred to in Orders 1 to 2 above by their true name, provided that:
(i) all such communications are conducted on a strictly confidential basis; and
(ii) a copy of these orders is provided to any witness or other person(s) with whom such communications are conducted.
(4)The appeal is dismissed.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: |
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