Phillips v Police - [2013] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2013] SASC 118
Judgment of The Honourable Justice Gray
25 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
Appeal against conviction - defendant convicted of two counts of indecent assault against one complainant following a trial before a Magistrate - alleged offending occurred while the complainant was trying on clothing at a store owned by the defendant - whether the Magistrate failed to have sufficient regard to the defendant's good character and cooperation with the police investigation in assessing his credibility - whether the Magistrate erred in having regard to the defendant's occupation in assessing his credibility - whether the Magistrate erred in concluding that the defendant had told the complainant she looked "lovely" in a dress despite thinking the dress was too tight - whether the Magistrate erred in requiring the defendant to "explain away" the circumstances in which he hugged the complainant.
Held: Appeal allowed - the Magistrate had regard to an irrelevant consideration in assessing the defendant's credibility - the Magistrate had insufficient regard to the defendant's good character and cooperation with police - the Magistrate erred in requiring the defendant to explain the circumstances in which he hugged the complainant - conviction recorded by the Magistrate set aside and proceeding remitted for retrial.
Criminal Law Consolidation Act 1935 (SA) s 56(1), referred to.

PHILLIPS v POLICE
[2013] SASC 118
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Craig Allen Phillips, was charged on Information with two counts[1] of indecent assault against the one complainant. Both offences were said to have occurred at Adelaide on 5 February 2012. Both counts alleged an offence against section 56(1) of the Criminal Law Consolidation Act 1935 (SA). Neither count provided any further particularity. On 17 December 2012, the defendant entered a plea of not guilty to both counts. On 1 February 2013, the defendant was found guilty of both counts following a trial before a Magistrate.
[1] The defendant was initially charged with four counts of indecent assault, but evidence was not led with respect to two of those counts.
Both counts arose out of an incident that occurred at a Rundle Street clothes shop during the afternoon of 5 February 2012. On that occasion, the complainant, a 20 year old female university student, had attended the defendant’s clothes shop. Later that afternoon, the complainant was to meet friends at a nearby hotel to celebrate a birthday. The complainant spent almost one hour and three quarters at the shop. The defendant was the only person on duty in the shop at the time.
It was the prosecution case that after the complainant and the defendant had been in conversation for about one hour and 20 minutes, the complainant decided to try on a dress. This led to the complainant being in an area of the shop behind frosted glass, an area that included a separate change room. The complainant was in this area for about 20 minutes. It was during this period that the complainant alleged that the two acts of indecency occurred. The first act asserted was that the defendant kissed the complainant on her neck. The second act, following soon after the first, was that the defendant pulled down the top of the dress that the complainant was trying on and groped the complainant’s left breast.
The complainant gave evidence that when these acts occurred, she froze and did not know what to do. She said that she tried not to show her distress and, as soon as she could, she dressed in her own clothes and left. The complainant gave evidence that while she was in the process of leaving, she stopped to thank the defendant and he then approached and gave her a hug. It was the complainant’s evidence that the defendant initiated the hug and that she responded.
The complainant then left the shop and went to the nearby hotel. Shortly after her arrival, she complained to two of her friends that she had been molested by a shopkeeper. Her friends confirmed that they met with the complainant and that they observed the complainant exhibiting signs of distress. That evening, the complainant spoke to her family and the following day, she made a report to the police.
Some 17 days later, on 22 March 2012 at about 5.45 pm, the police went to the defendant’s store. The defendant was not present, but immediately went to the store following a telephone request from the police. On his arrival, the defendant was arrested and was provided with only a general description of the allegations. The defendant was cooperative with the police and provided them with access to the CCTV recordings from 5 February 2012. Later that evening, the defendant was interviewed by the police. He indicated that he did not wish to engage a solicitor and he then answered all the questions asked by the police. He emphatically denied the complainant’s allegations. He was not evasive in the interview. The defendant confirmed the complainant’s account of events in many respects, but at all times he denied any acts of indecency on his part.
The trial proceeded in mid-December 2012 and extended over three days.
The prosecution led evidence from the complainant and her two friends, whom she had met at the nearby hotel following the incident. Affidavits of Constable Glenn Considine, an investigating police officer, were tendered by consent. Annexed to one affidavit was a record of interview of the defendant. Affidavits from other investigating officers were also tendered. An audio record of interview was tendered. It was agreed that the written record of interview was an accurate transcription from the audio. The CCTV footage from 5 February 2012 was also tendered.
The defendant gave evidence. His partner of more than 29 years also gave evidence.
On 1 February 2013, the Magistrate delivered her verdict and provided considered reasons for her finding that the defendant was guilty on both counts.
The Magistrate’s reasons were lengthy. In the course of those reasons, reference was made to agreed facts and the Magistrate then set out what she described as preliminary findings of fact. The Magistrate then embarked on an examination of disputed evidence, which she discussed under seven sub‑headings.
First, the Magistrate addressed a dispute as to “[w]hy [the complainant] entered the shop”. Her Honour resolved this dispute by concluding that there was no inconsistency in the complainant’s evidence on this topic. In short, the complainant entered the store because a t‑shirt caught her attention. Having entered the store, the complainant’s attention then turned to the dresses.
The Magistrate next addressed a dispute concerning a “[c]onversation of a sexual or intimate nature prior to the dress being tried on”. The Magistrate did not reach a conclusion as to which version of the evidence should be accepted.
The Magistrate then considered a dispute concerning the time at which the defendant showed the complainant how to wear her t‑shirt correctly. On the complainant’s account, the conversation about the t‑shirt occurred prior to her trying on the dress. On the defendant’s account, the conversation about the t‑shirt took place after the dress had been tried on. The Magistrate accepted the complainant’s evidence on this topic.
The Magistrate then addressed a dispute concerning the behaviour while the complainant and the defendant were in the red carpet area. This was an area of the store that was behind frosted glass panelling. The complainant gave evidence that the defendant kissed her on the left side of the neck. Shortly following this incident, the defendant assisted the complainant in adjusting the dress. Following this adjustment, the complainant said that the defendant pulled the left side of her dress down just under her breast and groped her breast. As he did this, he said how “nice and erect” her breast was. The defendant, both in his police interview and in his sworn evidence, denied that these acts took place or that he made any statement as alleged.
A dispute arose as to the substance of a conversation while the complainant changed out of the dress. The complainant gave evidence that as she changed, the defendant walked into the change room and lifted her bra up by the underwire onto her chest. She said that she threw his hands away and that he walked away, saying he would leave her to get dressed. The defendant denied these allegations, both in his interview and in evidence.
The next dispute concerned a conversation after the complainant emerged from behind the frosted glass. The complainant gave evidence that she said that she could not afford the dress and gave the dress back. The complainant then thanked the defendant for his assistance. The defendant then left to put the dress away and came back and said to the complainant that she should pleasure herself more often and that she should buy sexy lingerie as it would make her feel better about herself. A few seconds later, the defendant said that the complainant should come back with her friends. The defendant then hugged the complainant goodbye and she left. The defendant did not give evidence disputing this conversation. He claimed in his record of interview that she had stayed in the store for a significant amount of time before leaving. The Magistrate accepted the complainant’s evidence on these topics.
The final dispute concerned the circumstances of the hug. In his police interview, the defendant recounted that the complainant had initiated the hug. He confirmed this understanding in evidence. The complainant gave evidence that the defendant had initiated the hug. The CCTV evidence showed that the defendant initiated the hug and in cross-examination the defendant accepted this to be correct. The footage showed interaction consistent with the conversation. The defendant stepped close to the complainant and, with his right arm, initiated the hug. The complainant responded by placing her right arm on the defendant’s left shoulder. The CCTV footage depicted the defendant giving the complainant a peck on her right cheek. The Magistrate concluded that the defendant initiated the hug.
The Magistrate discussed the evidence of recent complaint and distress, concluding that this evidence bolstered the complainant’s credibility. The Magistrate then discussed the credibility and reliability of the complainant. Her Honour concluded that the complainant was a highly impressive witness. The Magistrate placed considerable weight on the complainant’s demeanour. The Magistrate concluded her review of the complainant’s testimony by finding that there was little or no possibility that the complainant could have been mistaken about the kiss or the touching of the breast. It would appear that at this point in the Magistrate’s reasons, each of the elements of the offence had been established beyond reasonable doubt.
Having reached these conclusions, the Magistrate turned to her assessment of the defendant. At the outset of her reasons, the Magistrate addressed the defendant’s good character and observed:
The defendant gave evidence of his good character, namely that he had no relevant prior convictions. I also heard evidence that the defendant was involved in community activities, doing volunteer work with the Variety Club children’s charity. I direct myself that I should bear in mind the defendant’s good character in assessing his credibility and in assessing the likelihood of the defendant having committed the offences charged.
When coming to her assessment of the defendant, the Magistrate first addressed submissions made by the defendant in the following terms:
In assessing the defendant, I take into account all of the submissions made by Defence Counsel which included the following:
1    There was nothing evasive about the defendant’s interview and dealings with the police. He helped police recover the relevant footage, he was prepared to answer questions, he was not evasive and indeed in the interview he built up Ms G’s credibility.
2    The defendant immediately and emphatically denied the allegations.
3    What more can an innocent man do than say he did not do it, both when interviewed and in evidence?
4    To do as was alleged would be unlikely because it would be against the rules the defendant had established for his business and would be harmful to his reputation.
5    The defendant proclaimed both in interview and in evidence that Ms G was just a kid. He was unlikely to approach her in the manner alleged.
6    His good character means that he is unlikely to have committed the offences and he is likely to be truthful in giving evidence.
7    His behaviour at the time is not indicative of someone who has behaved inappropriately. He did not threaten Ms G, he did not rush to see where she had gone, there were no signs he was concerned, he was cooperative with the police and he did not destroy the footage even though he had the opportunity.
8    His memory of his dealings with Ms G was not perfect, but in evidence he readily admitted he was mistaken when shown the CCTV footage.
9    Were I to find his description of the hug was incorrect, this does not mean that he was untruthful, as he merely misinterpreted Ms G’s actions.
10    If I do not know where the truth lies, I should acquit the defendant on the Calides principle. Even if I prefer the evidence of Ms G over that of the defendant, I should still acquit because in the circumstances of this case the prosecution cannot exclude the reasonable possibility that Ms G’s memory is inaccurate and that she thinks something worse happened than actually did.
Later in her reasons, the Magistrate addressed several of these considerations as follows:
I do not consider the matters raised in submissions 1 and 7 of paragraph 64 impact upon my views of the credibility of Ms G and the defendant. Whilst the defendant did help the police recover the footage they were seeking, the defendant would have known that any incident in the red carpet area or change room would not be shown on the footage. Because of Ms G’s behaviour as she left, the defendant might not have thought that Ms G would make a complaint to the police hence he may well appear unconcerned, that there was no need for a threat, and he might not consider destroying footage that did not show the incident anyway.
Defence counsel submitted that the defendant’s conduct and, in particular, his immediate and emphatic denials, his cooperation with the police over the CCTV footage, his preparedness to answer questions and the fact that he was not evasive in any way showed a consistency of conduct on his part that supported his credibility. It was pointed out that that conduct included statements in which he built up the complainant’s credibility. On this topic, the Magistrate observed:
[The defendant] was co-operative with the police and gave a detailed version of the events. Whilst I will later examine certain portions of the interview, the defendant readily answered all questions. He provided detail of his interaction with Ms G much of which confirmed Ms G’s account, but denied any indecent touching of Ms G whilst in the red carpet area.
In the same way as the complainant’s conduct in making the complaint and exhibiting distress may support her credibility, conduct by the defendant as outlined above may also support his credibility. Although in the passage cited above the Magistrate said she took these matters into account, it is difficult to determine how she did so. The contrast between the Magistrate’s consideration and in-depth treatment of the complainant’s credibility and her consideration of the defendant’s credibility is stark.
As noted above, the Magistrate considered that there was nothing in the presentation of the defendant’s police interview or his evidence that led her to believe that he was untruthful. In my view there is nothing to suggest that his demeanour was in any way unsatisfactory. The record of interview suggests a preparedness to directly answer all questions in a helpful way. The video recording of the interview confirmed his good demeanour. The Magistrate does not explain why she was not assisted by the defendant’s demeanour. The contrast between her Honour’s treatment of the complainant’s demeanour and that of the defendant is also stark.
Earlier in these reasons, I have set out the Magistrate’s observation when dealing with the defendant’s credibility. On the appeal, counsel for the defendant submitted that there were two serious errors in this paragraph. Both errors arise in the following sentence:
... On the other hand, I remind myself that as a salesman, the defendant is used to hiding his real thoughts and emotions, as he demonstrated when he told Ms G that the dress looked lovely even though he thought it was too tight.
The first error concerns the assertion of the attributes of a salesman. Counsel for the police conceded that there was no evidence on this topic and further, that such an assertion was not put to the defendant. It is to be accepted, however, that there was evidence about the defendant emphasising the positive and not the negative aspects of a customer’s physical appearance.
The second error concerns an assertion that the defendant told the complainant that the dress looked “lovely” even though he thought it was too tight. Both counsel agreed that there was only the one reference to the word “lovely” in the transcript. That reference arose in the defendant’s examination in chief as follows:
Q: Did she make any comment about the dress before she went into the change room?
A: She said it was lovely. I remember thinking that I had the sale.
Counsel for the police accepted that the Judge had misapprehended the evidence. Counsel submitted, however, that there were other passages in the evidence in which the defendant had told the complainant that the dress suited her, despite having thought that the dress was too tight or too small. One example is to be found in the following passage:
QThe dress that you picked for her, did you think that that was a dress that would show off her personality.
AIt was bright, bubbly, off the shoulder and longer than most of the other dresses in the shop.
QAnd in your view was that a conservative dress.
AAs conservative as I do.
QDid you really think that it would suit her.
AIt did.
QIt did suit her.
AYes.
QI’m sure that’s not what you said in your evidence. That it didn’t look right on her.
AIt was too small. The style did suit her.
QSo did you give her an opportunity to try on another dress.
AI would have offered. I actually did think that she wanted to purchase that.
As earlier noted, the Magistrate recorded at the outset of the reasons her findings in regard to the good character of the defendant. Nowhere later in her reasons did her Honour bring into account this finding or discuss its relevance as supporting the credibility and reliability of the defendant. When discussing the complainant’s evidence, however, the Magistrate considered her background in some detail and how, given those features of her character, she would have reacted at the time of the alleged incidents.

The Magistrate’s reasons addressed the circumstances of the hug in considerable detail. Her Honour described the evidence about the hug as being critical to the assessment of the defendant’s credibility and reliability.
This finding has an impact on the defendant’s reliability and general credibility. In addition the circumstances of the hug wherein the hug was initiated by the defendant, not by any actions of Ms G, tend to bolster the prosecution case. As already mentioned, the defendant and Ms Gikas understood the need to maintain professional distance. Along with the defendant’s evidence that he only touched customers between the elbow and shoulder blades, the defendant was very careful when describing in evidence how he help up Ms G’s hair and how he helped tuck in the shoulder straps. Ms Gikas’ evidence was that a hug or a peck occurred where such contact was initiated by the customer. The hug shown on the CCTV footage was not initiated by Ms G and thus the hug was contrary to the defendant’s own rules of professional conduct. I do not consider the hug can be explained away as being appreciation for Ms G’s thanks of assistance; given the amount of time the defendant had spent engaging Ms G and providing her with advice, gratitude would not be unexpected. The hug and kiss on the cheek suggests that the defendant felt more affection towards Ms G than he would for an ordinary first time customer and it tends to support Ms G’s allegations.
[Emphasis added.]
It is to be recalled that the complainant gave evidence that she did not make any protest or complaint to the defendant about his conduct. She said that she was frightened by what had occurred. She agreed in evidence that she acted as though nothing untoward had occurred and accepted that she returned the defendant’s hug and left the store smiling. As the Magistrate concluded, it was unsurprising for the complainant to show gratitude to the defendant as he had spent a significant amount of time engaging with the complainant and providing her with advice. It was the defendant’s evidence that the hug occurred in circumstances in which the complainant was expressing gratitude for the defendant’s assistance. This was the defendant’s explanation for why the hug occurred.
The Magistrate was obliged to consider whether, in all the circumstances, the defendant’s explanation of the hug was a reasonable possibility. Although the defendant was found to be untruthful about who initiated the hug, it does not follow that his explanation for why the hug occurred should be rejected as a reasonable possibility. This is particularly so as the Magistrate found, as discussed above, that the complainant did thank the defendant and left the store smiling, as depicted in the CCTV footage. However, rather than addressing the question of a reasonable possibility, the Magistrate approached the topic by concluding that the defendant had not explained away the hug. To my mind, this was an error. It was for the prosecution to establish that the defendant’s explanation was not a reasonable possibility.
The defendant, a man of relevantly good character, the proprietor of a clothing store, conducted himself in a manner consistent with innocence. He protested and maintained his innocence. He cooperated fully with the police. He assisted in the recovery of CCTV evidence. He cooperated in a full interview, answering questions without evasion. The Magistrate appears to have given these matters little or no weight. The Magistrate has used a finding of untruthfulness to bolster the Crown case and it appears that the Magistrate has required the defendant to explain away the hug, rather than provide an account that the Magistrate was prepared to accept as a reasonable possibility.
These matters compound the earlier referred to misapprehensions of fact. These misapprehensions were directly relevant to the Magistrate’s assessment of the defendant’s lack of credibility. It follows that the exercise of the Magistrate’s fact finding discretion miscarried in that regard was had to irrelevant considerations. These misapprehensions, of themselves, require that the finding of guilt be set aside. As discussed above, the Magistrate failed to properly weigh the evidence of good character, reversed the onus of proof on an important issue and, it would appear, treated her finding that the defendant was untruthful in his explanation of the hug as being a matter that bolstered the prosecution case. These additional matters support the conclusion that there should be a retrial.
Conclusion
The conviction of the defendant is set aside. The sentence imposed by the Magistrate is set aside. The proceeding is remitted for retrial before a differently constituted court.