Police v Adel Benjamin Abraham
[2011] NSWLC 6
•31 March 2011
Local Court
New South Wales
Medium Neutral Citation: Police v Adel Benjamin ABRAHAM [2011] NSWLC 6 Hearing dates: 11 February 2011 Decision date: 31 March 2011 Jurisdiction: Criminal Before: Magistrate Lerve Decision: There is a prima facie case against the accused
Catchwords: CRIMINAL LAW - prima facie case - indecent assault - elements of offence - requirement of evidence of sexual gratification Legislation Cited: Criminal Procedure Act 1986, s 294A
Evidence Act 1995, ss 60, 66, 108Cases Cited: Crowe v Graham (1968) 121 CLR 375
Fitzgerald v Kennard (1995) 84 A Crim R 333
Graham v The Queen (1998) 195 CLR 606
Harkin v R (1989) 38 A Crim R 296
May v O'Sullivan (1955) 92 CLR 654
Papakosmas v The Queen (1999) 196 CLR 297Category: Procedural and other rulings Parties: Police
Adel Benjamin Abraham (the accused)Representation: Police Prosecutor Sgt. D. Brand
Accused appeared unrepresented
File Number(s): 2010/304823
JUDGMENT
The accused stands charged for that he:
"On 23 December 2009, at Wagga Wagga in the State of New South Wales did assault [the complainant] and at the time of the assault committed an act of indecency on [the complainant], (namely) taking hold of her hand, rubbing her palm stating, 'do you know what this means? It means I want to have sex with you'".
The charge was not brought until 8 September 2010, that being the date on which the Court Attendance Notice was created. According to the Service Copy of the CAN that is with the papers, it was personally served on the accused on that same date.
A plea of Not Guilty was entered on 14 October 2010 when the matter first came before the Court. Because of local administrative arrangements with the Local Court in the area (the regular Magistrate at Wagga Wagga was part heard in a matter at Albury), I heard this matter at the Wagga Wagga Local Court on 11 February 2011. The accused was and remains unrepresented. He lives in Melbourne. At the conclusion of the prosecution case the prosecutor fairly and appropriately indicated (without making any concessions) that there may be an issue as to whether the conduct of the accused, taken at its highest, could amount to an indecent assault. Given the importance of the matter, and the complexity involved I decided to reserve my decision. The accused lives in Melbourne, and Albury is closer than Melbourne. In those circumstances I deemed it appropriate to give my decision in Albury.
The accused was unrepresented at the hearing before me. Conformably with the legislation i.e. s. 294A Criminal Procedure Act 1986, the accused was not permitted to cross-examine the complainant. Ms. J. Mountford, a Registrar with the Court Registry at Wagga Wagga was appointed to assist the accused and cross-examine the complainant. Given the cross examination, it seems that the facts are in relatively short compass. As I understand from what was asked, and from what the accused said to me, he does not dispute the act as alleged in the averment in the Court Attendance Notice. On a number of occasions the accused indicated to me that the complainant "misunderstood" what he was doing and saying.
The prosecutor made an application for the complainant to give her evidence by way of closed circuit television. For reasons given ex tempore before the complainant gave evidence I acceded to that application.
The evidence for the prosecution consisted of oral evidence of the complainant and that of her mother. It seems that as is very often the case in matters of the sought that I am considering the evidence by the informant police officer is of a formal nature as to the charging process, and accordingly, does not advance the prosecution case. I have obtained a transcript of the evidence of the complainant. The evidence of the complainant's mother was relatively brief, and I have a comprehensive note of that evidence.
On the afternoon of 23 December 2009 the complainant attended the professional premises of the accused who at the relevant time was a dentist practicing in Wagga Wagga. She attended for an interview for possible employment as a dental assistant with the accused (see pp. 2-3). The accused answered the door and ushered the complainant to a waiting room. She was provided with a cordial type drink. After waiting some little while the accused returned to where the complainant was seated, and directed the complainant to his office. In showing the complainant to his office the accused placed his hand in the middle of the complainant's back (p. 3 l. 46).
The complainant went on to recount that the accused "talked very vaguely about the position. Then he ...sort of leaned in, moved his chair really close and made a comment about me eyes. He said that I had beautiful eyes..." (p. 4 ll. 40-42). The complainant moved away from the accused (p. 5 l. 14). The complainant had her hands in her lap, and the accused leant over and put his hands on her hands (p. 5 l. 22). The accused rubbed her hands and told her not to be scared of his affection as he is friendly towards his staff and he looks after them - see p. 5 ll. 35-7. The accused made a comment about the complainant being a "good size" and "not too skinny" - see p. 6 ll. 2-5. The accused told the complainant that she would not be able to wear high heels at the work place.
The accused proceeded to show the complainant the examination room. According to the complainant the accused had his hand in the small of her back for about 5 seconds. Her hands were by her side and the accused grabbed one of her hands and lifted it up (p. 7 l. 23). He commenced to rub the hand, "moving his fingers and -like all over my hands" (p. 8 line 1). The accused made a comment about having to order in smaller gloves for the complainant. At p. 8 line 15 the complainant said, "I was scared. I really wanted to - you know, to pull my hand away and so - and leave but I was too scared".
After the complainant had pulled her hand away the accused then asked the complainant to remove her shoes in order that he could see how tall she was. The complainant complied with the request - p. 8 l. 35. The accused then went to the complainant and had one of his arms pressed against her.
The complainant was told to put her shoes back on, and with that she was shown to another room where the accused reclined on a dentist's chair. He was about 2 metres from the complainant. It was obvious to the complainant that the accused had an erection at this point in time (p. 10 lines 10-14). According to the complainant the accused maintained to her that women found his irresistible (p. 11 l. 36).
There was further conversation including that he had attempted to secure the services of a female dentist to assist him (p. 12 l. 10 et seq). After that conversation the accused again took hold of one of the complainant's hands and commented to the effect that it was good that she did not wear much jewellery. He had hold of her hand for about 15-20 seconds. He was rubbing the hand that he was holding. At p. 12 line 50 and continuing the complainant said, "I froze. I was scared, I didn't want him to touch me. And I'm sure he knew that because he kept, like, stating, 'don't be afraid of my affection', you know, 'I'm just a really friendly person".
Shortly thereafter the accused gave the complainant a box of chocolates, at which time the accused wished the complainant Merry Christmas, and indicated that the chocolates had been for another staff member but she did not want them. He also began to discuss a starting date for the complainant. He was going through a diary at this time. The complainant said to the accused, "I don't care, just pick a date. It's fine". She maintained that she had no intention of taking the position, but that she "just wanted to - just get out of here, but I didn't want to say, 'no, I don't want the job".
The accused put his hand on the complainant's thigh (p. 14 lines 40-46) and again said words to the effect of "don't be frightened by my affection".
It was soon thereafter that the act relied upon by the prosecution to ground the charge against the accused occurred. The complainant gave evidence at p. 15 lines 15-21:
"He - he asked me if - he picked up my hand off my lap - my hands were in my lap. He picked up by left hand and was holding it in his hand and he was stroking the middle of my palm with his - like his pointer finger or index finger, or whatever it's called. Then he asked me, you know, 'do you know what this means?' and I said, 'no'. I knew what it meant but I didn't want to go there with that conversation. And he said, 'it means that I want to have sex with you'".
The stroking of the hand went on for about 20 to 30 seconds (p. 15 l. 29). The complainant immediately pulled her hand away.
The complainant conceded that she was at the accused's premises for at least two hours (p. 18 l. 41). She later spoke to her mother about the incident. I will return later to the issue of complaint.
The cross-examination was conducted by a person appointed by the Court pursuant to the provisions of s 294A of the Criminal Procedure Act 1986. The complainant was not shaken in respect of any of her evidence in the course of that cross-examination. She maintained that on the occasions that the accused had his hand on her back it was for 5 to 10 seconds (p. 22 l. 19). When asked why she did not leave she said, "I was scared, and when I was scared I've just froze" (pp 22-3). She denied that the accused indicated that from time to time he might touch her arm at work and further denied that she agreed that this would be "OK" (p. 23 - lines 45 & 48). It was put that the accused said that he was an affectionate person once or twice. The complainant maintained her evidence in chief that it was said a number of occasions (p. 25 l. 29). At p. 27 l. 13 the following was asked:
"Q: I put to you that you have misconstrued this whole event?"
The complainant answered:
"A: That's incorrect".
Immediately thereafter the question "did you invent this statement" was asked. The complainant answered that she did not.
I note also that the accused said a number of times during the proceedings that the complainant misconstrued the events.
I return to the issue of complaint. The complainant maintained that she told her mother about the events, and that at the time of so doing she was upset and crying. There was not a great deal of detail given. That should not be taken as any criticism of the complainant or indeed her mother. The complainant's mother gave evidence that she spoke to her daughter at about 7.45pm on the 23 December 2009, i.e. the date of the alleged incident. The evidence was that her daughter told her that the accused spoke for about 5 minutes about the job, and then spent a lot of time talking about sex and behaved in an inappropriate fashion. The events relied upon by the prosecution to ground the charge of Indecent Assault did not form part of the evidence of the complainant's mother.
The High Court in its decision in Papakosmas v The Queen (1999) 196 CLR 297 approved the decision of the New South Wales Court of Criminal Appeal in R v BD (1997) 94 A Crim R 131. As I understand the judgment of Hunt CJ at CL in R v BD evidence of complaint can be admissible on a number of bases: (i) as to the truth of the contents of the representation - s 66 of the Evidence Act 1995, subject of course, to the requirement of recency ( Graham v The Queen (1998) 195 CLR 606 ) but noting the effect of s 66(2A) of the Evidence Act 1995; (ii) pursuant to s 60 (hearsay evidence for a non hearsay purpose) for e.g. going to consistency of conduct; or (iii) pursuant to s 108(3)(b) of the Evidence Act 1995 - i.e. to re-establish credit where it has been suggested either expressly or by implication that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion. Given the vague nature of the evidence of complaint both from the complainant and her mother I am prepared to admit the evidence of complaint going to consistency of conduct rather than for the hearsay purpose of the truth of the contents of what was said by the complainant. This however, has no bearing on the matter that now falls for me to determine.
The accused is unrepresented, and accordingly, as is invariably the case with unrepresented accused persons, the court cannot receive any meaningful assistance. The prosecutor, however, fairly and appropriately conceded that it may fall for the Court's consideration as to whether the prosecution case that the accused conducted himself in the fashion set out in the averment of the Court attendance notice could amount to an Indecent Assault.
For the purpose of deciding the issue of whether there is a prima facie case, I must take the prosecution evidence at its highest. No one should assume that I have at this stage made any findings of fact. In deciding this issue I must take the evidence of the complainant at its highest.
The High Court in May v O'Sullivan (1955) 92 CLR 654 said at [7]:
When at the close of the case for the prosecution, a submission is made that there is 'no case to answer' the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end.
The prosecution do not have to prove a separate assault and separate act of indecency in order to succeed on a charge of Indecent Assault. The Court of Appeal of NSW considered the provisions of s. 61L of the Crimes Act 1900 in the decision of Fitzgerald v Kennard (1995) 84 A Crim R 333. At 340 Sheller JA said:
In 1925 in Sorlie 25 SR (NSW) 532 at 535, Street CJ with the concurrence of the other members of the court rejected the contention that what was contemplated was not merely an indecent assault but an assault of some kind, and an independent act of indecency. His Honour said:
"...I think that any assault, which of itself amounts to the commission of an act of indecency upon the female assaulted or which of such a character as to involve an act of indecency upon her, comes with the terms of the section, and is a punishable offence".
So the law has stood since.
Kirby ACJ in that same decision said at p. 335:
In Sorlie the court rejected the submission that there must be 'not merely an indecent assault but an assault of some kind and an independent act of indecency'. The authority of this holding has stood for more than 70 years. When s. 61L of the Crimes Act was drafted in like terminology, it must be assumed that the drafter and Parliament were aware of R v Sorlie and intended the same approach to be applied. It is now too late to resurrect the rejected arguments of 1924, to re-dissect the statutory requirements and to oblige the prosecution to prove both an assault and an independent act of indecency.
I therefore agree with the other members of the court that, to the extent that Ireland J concluded that it was necessary for the appellant to prove an assault 'in the customary sense', that is, that he intentionally or recklessly put his victim in fear of immediate physical or other unlawful danger, he erred.
The conduct said to amount to an Indecent Assault in the matter I am considering is the accused taking hold of the hand of the complainant, rubbing her palm with his index finger and saying the words, "Do you know what this means, it means I want to have sex with you". It is difficult in the extreme to perceive of a situation where the taking of the hand and rubbing the palm could amount to an Indecent Assault. In the matter presently under consideration, it is the words spoken at the time that potentially make the alleged actions of the accused indecent.
Whether something is indecent is judged by prevailing community standards. After reviewing the judgments on the concept of indecency in Crowe v Graham (1968) 121 CLR 375, Debelle J in giving the leading judgment in Phillips v South Australia Police (1994) 75 A Crim R 480 said at 485:
Thus all four justices used the same criterion, namely, contemporary standards of the Australian community but that test was used by Windeyer J. to determine both what is indecent and obscene.
Debelle J went on to say at 485-6:
In A-G -v- Huber (1971) 2 SASR 142 at 167, 184 and 205-6 Bray CJ defined indecent behaviour as that which offends to a substantial degree against the recognised standards of common propriety...the requirement in Bray CJ's test that the material should offend to a substantial degree is intended, I think, to convey the view that the standards to be applied are those which ordinary decent minded but not unduly sensitive, people accept.
His Honour also said at 486:
When considering contemporary standards currently accepted in the Australian Community, regard is had to the reasonable, ordinary, decent minded but not unduly sensitive person. As Windeyer J. notes in Crowe -v- Graham , contemporary standards are not the standards of those who peddle obscenities or indecencies nor that of the judge seeking to minimise what is indecent or obscene in order supposedly to show some judicial broadmindedness.
The decision of Phillips v South Australia Police also is authority for the proposition that the words "indecent", "obscene" and "immoral" all have different meanings - see the judgment of Debelle J at pp. 489-90.
The respective positions of the complainant and the accused are relevant. The complainant was a 17-year-old young lady who was attending the professional premises of the accused for a job interview. The accused is a middle-aged man, who in the particular circumstances was in a very superior position to the complainant. One can readily understand the complaint when she said on a number of occasions that she "froze".
In the decision of whether or not the matter is indecent I must be careful to ensure that I apply the contemporary standards of the reasonable, ordinary, decent minded but not unduly sensitive person rather than my own. Magistrates are very much part of the community, particularly in rural areas. Doing the best I can to apply those contemporary standards, noting what I have said above about taking the prosecution case at its highest, while the conduct of the accused in taking the hand of the complainant, rubbing it in the manner alleged, and using the words attributed in the circumstances of the difference in position, applying the test set out above, is indecent for the purposes of the decision that I am making at this stage of the proceedings. The issue of proof beyond reasonable doubt is an entirely different concept to be decided after all of the appropriate warnings and directions. The context of the conduct of the accused is also important. The accused touched the complainant a number of times, and at one stage had an obvious erection.
There is another issue: is there any evidence of intention by the accused to obtain sexual gratification. Lee J (Wood & Matthews JJ agreeing) in Harkin v R (1989) 38 A Crim R 296 said at 301:
The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not equivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.
I do not have a transcript of the prosecutor's comprehensive submissions. However, my notes and recollection indicate that the thrust of the prosecutor's arguments were that intention to obtain sexual gratification can easily be inferred from the actions of the accused for the duration that the complainant was in his company, including having the erection at an earlier stage, and the words used. The issue of consent was also covered in the course of submissions. While the complainant may have acquiesced in the accused taking her hand, for the purposes of determining whether there is a prima facie case the complainant could not be taken to have been consenting to the rubbing of her palm, in particular, in the circumstances of the accused also uttering the words attributed.
The accused's submissions, with respect do not really assist on the issue of whether I find a prima facie case. He submitted that the complainant misconstrued what was said. Further, that he made a lot of comments, and that he did not touch her for long.
I must admit to vacillating on this issue. For the purpose of the decision I am making at this stage of the proceedings, once the finding is made that the conduct of the accused was indecent, then it seems on the decision of Harkin v R I am obliged to find a prima facie case.
However, for these reasons I find that there is a prima facie case.
Gordon Lerve
Magistrate
Albury Local Court
31 Mar 2011
NOTE: After hearing, a verdict of acquittal was entered and the accused was discharged in respect of the charge.
Decision last updated: 04 May 2011
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