Police v Scheving - [2011] SASCFC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v SCHEVING
[2011] SASCFC 155
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)
19 December 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - NECESSITY FOR FINDING TO BE CLEARLY WRONG
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - PRIOR INCONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - FAILURE TO PUT MATTER TO WITNESS
A Magistrate found the respondent guilty of the offence of indecent assault – the respondent appealed against the conviction and sentence to a single Judge of the Supreme Court of South Australia, who allowed the appeal against conviction, set aside the conviction, and substituted a verdict of not guilty – the Informant, the Police, was granted permission to appeal to the Full Court against the decision of the single Judge.
The victim was a beauty therapist who provided waxing and other services – the respondent engaged the victim for her waxing services – during the course of the waxing treatment, the respondent touched the victim twice down the side of her body, made a sexually provocative suggestion and was seen by the victim to be masturbating – the victim complained to a man working in an office next door to her salon – the victim complained to police the same day.
The issues on appeal were: (1) whether the Judge was correct in his finding that the Magistrate made an error of law in the manner in which he dealt with the evidence of the complaint by the victim, and with her upset demeanour, when she spoke to the man occupying the office next door immediately after the incident; (2) whether the Judge was able to draw an adverse inference about the reliability of the victim on appeal using an inconsistency between the contents of her appointment book, a price list and the victim’s statement to the police tendered on appeal (3) whether it was open to the Judge to draw other adverse inferences in relation to the victim’s credibility; and (4) whether the Judge’s conclusion that the conviction was unsafe and unsatisfactory was sustainable.
Held: (1) it was open to the Magistrate to conclude that what the victim said to the man next door, and her demeanour at the time, were consistent with the evidence she gave about what the respondent did; (2) the Judge could not use the inconsistency that he found to make an adverse finding about the victim’s credit when the inconsistency had not been put to her at trial; (3) the negative credit findings were based on adverse inferences that were not open to the Judge to draw; and (4) the conclusion that the conviction was unsafe and unsatisfactory was based on impermissible reasoning.
Appeal allowed.

POLICE v SCHEVING
[2011] SASCFC 155
Full Court: Doyle CJ, Vanstone and Blue JJ

DOYLE CJ: A Magistrate found Mr Scheving guilty of the offence of indecent assault committed on 30 January 2010. The victim was Ms O. The Magistrate found Mr Scheving not guilty of a charge of behaving in an indecent manner. The two charges arose from a single incident involving Ms O and Mr Scheving.
Mr Scheving appealed against the conviction and sentence. A Judge of this Court allowed the appeal against conviction, set aside the conviction, and substituted a verdict of not guilty.
The Informant now appeals to the Full Court against the decision of the Judge. A differently constituted Court granted permission to appeal.
I would allow the appeal. I would set aside the Judge’s orders. I would substitute an order dismissing the appeal against the Magistrate’s decision. That leaves outstanding an appeal by Mr Scheving against his sentence. The appeal against sentence should be remitted to a single Judge. It would be convenient to remit the sentence appeal to a member of the Full Court. My reasons follow.
Evidence
Ms O carried on business as a beauty therapist at premises in an Adelaide suburb. At the relevant time she was the only person employed in the business. Mr Scheving made a telephone booking with her for a Saturday morning in January 2010. Ms O said that Mr Scheving made the appointment for “waxing”, which is the removal of body hair using wax strips. She said the booking was for waxing of the back and bottom. When Mr Scheving arrived she said that he asked for waxing of the chest as well. Waxing required that Mr Scheving remove his clothing. He did this. Ms O gave him a towel to cover himself. Mr Scheving lay flat on his stomach on a treatment table, and Ms O carried out the back waxing. She had placed the towel over the lower half of his body. Ms O then asked Mr Scheving to turn over. She held up the towel while he did so, then she placed the towel over his lower body. She waxed the tops of his shoulders and his chest. She began to wax his abdomen area. She then noticed a change in his demeanour. She said:
He sort of started – his eyes started to move around the room quite a lot and I noticed he was shifting on the bed a lot as well so he was just laying there as he was when I was waxing his back. He was moving around slightly as well.
Ms O felt anxious. She continued waxing Mr Scheving’s stomach. She was getting to the end of the treatment and thought she would complete it. While she was waxing his abdomen she noticed that Mr Scheving had pushed the towel down exposing his genitals. She said “… he was touching around the area at that stage …”. When asked what area he was touching she said:
Around his penis however you know you never want to jump to conclusions about anything and I wasn’t hundred percent certain at that stage so I just continued finishing the wax. If it was at the beginning of the treatment I’d definitely perhaps would have you know perhaps been lot more wary but we were to the end of the treatment I turned around at one stage and I needed to get something and I felt something go down the side of my body and I thought oh.
She said that the touch felt like “… somebody’s hand going down the side of my body”. She thought that perhaps the contact was inadvertent. She then said:
… however when I turned around again for the last time because it was the end of the treatment I turned off my magnifying lamp which we have in our beauty salon and I turned back and he was masturbating with his left-hand and he then touched me again down exact same part of my body and then proceeded to ask me if I would take my top off for him.
She said that his penis was erect. She said that she told him to stop it, and to put his clothes back on. She immediately left the room. She went to an office next door occupied by Mr Craig, whom she knew because he had worked next door for some time. She said that she was very upset and was crying. She told Mr Craig there was a man in the treatment room who was masturbating and that she was scared and that he was touching her. She asked Mr Craig to deal with him, and he went to her premises.
Mr Craig gave evidence. He said that Ms O came into his premises crying, and was very distressed, and told him that a client had masturbated and had asked her to remove her clothes and had touched her. He said that Ms O asked him to take the payment for the service that she had performed. When he entered Ms O’s premises, Mr Scheving was already clothed and at the front reception area. He asked him for $50, which he understood was the amount payable. Mr Scheving paid then left.
Ms O complained to the police later that day. She made a statement to the police.
Mr Scheving was not interviewed until 1 May 2010. There is no suggestion that he attempted to evade the police. He answered their questions.
Mr Scheving gave evidence. He said that he made a booking for waxing of his back, bottom and stomach. He denied that he asked to have his chest waxed, and denied that Ms O waxed it. Mr Scheving said that Ms O waxed his back and bottom, and that while she did that he had a towel over the lower part of his body. He then turned over, and while he was doing so Ms O held up the towel. He said that Ms O then waxed his stomach area, but not his chest. He said that while Ms O was doing this, he asked her if she did “triple X” waxing, and she said that she did that. He then asked her to provide that service. He said that involved “removing the towel, exposing my genitals, and waxing the basis (sic) of my penis”. He said that this “… felt quite awkward and painful on this occasion”. He denied touching Ms O at all. He denied that he was masturbating, or playing with his penis with his left hand. He said he did not touch his genitals at all. He said:
I felt quite awkward and the triple X treatment was painful and felt awkward and that may be related to what she was describing before that she did not feel at ease. I felt quite anxious and it was painful and awkward and I made a stupid comment to her out of sheer anxiety and awkwardness stupid comment where I said to her something to the effect of “I’d love you to take your top off” which obviously is rude and I apologise for that, of course.
He said that Ms O seemed to take offence at this, stopped the treatment and told him to get dressed. She left the room. Mr Scheving said that a man whom he now knew to be Mr Craig came in the front door, and asked for $50 payment. Mr Scheving paid him and left. He said:
… I accept that I offended the lady. I made an inappropriate comment at an awkward moment. I didn’t mean any harm. It was to me was meant to be humorous but clearly not seem humorous to her and again I apologise for that otherwise I did not behave indecently in any way.
When Ms O was cross-examined by counsel for Mr Scheving, she maintained that she did wax his chest. She also agreed that one of the services that she offered was triple X waxing, and that she told Mr Scheving that in general conversation. But she denied that he asked for triple X waxing, or that she provided that service to Mr Scheving.
The Magistrate’s reasons
The Magistrate summarised the evidence given to him. The Magistrate found Ms O to be “an impressive witness who gave her evidence without exaggeration”: [11]. He found Mr Scheving to be unimpressive. He said at [12]:
The defendant did not impress me as a witness of truth …
He commented in particular that Mr Scheving’s attempt to explain his suggestion that Ms O take her top off was unconvincing.
The Magistrate commented that Ms O’s evidence about Mr Scheving masturbating was “remarkable for its lack of detail”: [13]. He said at [13]:
It was unusual that the prosecutor did not question her further as to the precise movements that she had observed.
The Magistrate referred to Mr Scheving’s evidence that he might have scratched himself in the region of his penis, and said that in the circumstances (that is, Ms O not having been asked to explain or expand on what she saw) there was a reasonable possibility that Mr Scheving was merely scratching himself. In his statement to the police, tendered at the trial, Mr Scheving said that he might have scratched himself briefly. This was not raised in his evidence.
The Magistrate found the charge of indecent assault to have been proved. That is, he found that Mr Scheving touched Ms O in the manner described by her, and that he did so in circumstances of indecency. He found the charge of indecent behaviour not proved, but it is clear that the reason for so finding was the lack of detail about the act of masturbation.
The appeal to the Judge
Although Mr Scheving was represented before the Magistrate, he appeared unrepresented on the appeal.
In his reasons the Judge examined in some detail the evidence before the Magistrate. The Judge also attributed considerable significance to certain documents that were admitted on appeal. Counsel for the Informant did not oppose them being admitted. There is no record of anything being said about how they might be used. First, two character references that Mr Scheving wished to put before the Judge. These were prepared only a day or two before the appeal hearing. Next, a price list relating to the business conducted by Ms O. The period for which the price list was current was not explained. However, Mr Scheving told the Judge that his lawyer had the document at the time of the hearing before the Magistrate. It was not referred to at that hearing. Third, and more significantly, a copy of a statement that Mr Craig made to the police on 10 May 2010, and a copy of Ms O’s statement to police on 30 January 2010. The statement by Mr Craig was taken by telephone, and was unsigned.
The Judge found that the Magistrate erred in law in the manner in which he used the evidence of the complaint by Ms O to Mr Craig. He found that the Magistrate had used this evidence not merely as evidence of consistency (in what she said and how she appeared) on the part of Ms O, but that the Magistrate had used the evidence as tending to prove that Mr Scheving had in fact “done something”: Scheving v Police [2011] SASC 121 at [69]. The Judge was critical of the manner in which the Magistrate had assessed certain aspects of the evidence. In particular, the Judge gave significant weight to inferences that he drew from the statements of Ms O and Mr Craig tendered on appeal. The Judge summarised his conclusion as follows:
[75]I consider, for all of the reasons stated above, that the learned Magistrate:
·    failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation;
·    failed adequately to scrutinise the evidence of Ms O generally;
·    failed adequately to appreciate the strengths of the defence case;
·    erred in his approach to the complaint evidence as a matter of law; and
·    would likely have come to different factual conclusions in favour of the appellant had he been made aware of the further evidence I have received on appeal.
The Judge then went on to say at [79] that while he made due allowance for the advantage that the Magistrate had in seeing and hearing the witnesses, the Judge had “reached a different view on the evidence”, and considered that there were “very real residual doubts”: [79]. On this basis the Judge found that the conviction was not supported by the evidence because the charge was not proven beyond reasonable doubt. The Judge also found at [80] that the conviction was “unsafe and unsatisfactory”, giving the same reasons as he gave at [75].
The appeal to the Full Court
I will deal with the matters relied on by the Judge to reach these conclusions.
I do not agree that the Magistrate’s reasons indicate an error of law in the manner in which he dealt with the evidence of the complaint by Ms O to Mr Craig, and with her upset state when she spoke to Mr Craig immediately after the incident. The Magistrate was entitled, and obliged, to have regard to what Ms O said to Mr Craig by way of complaint, and to her appearance or demeanour at the time. It was open to the Magistrate to conclude, as he did, that what Ms O said to Mr Craig, and her appearance or demeanour at the time, were consistent with the evidence that she had given about what Mr Scheving did. Of course, I agree with the Judge that this evidence could not be used as evidence of the truth of what Ms O alleged against Mr Scheving. The distinction is well known. If the Magistrate had said that Ms O’s statement and her appearance were consistent with the evidence that she had given about what Mr Scheving did, there could be no argument that the Magistrate had erred. But I am satisfied that this is what the Magistrate intended. He used the word “consistent”. The distinction between the permissible and impermissible use of such evidence is well-established. I am not persuaded that the Magistrate overlooked this well known distinction. The most that can be said is that the Magistrate has expressed himself in a manner that could raise a doubt about his use of the evidence. But, as I have said, I am not persuaded that the Magistrate expressed himself in a manner that reflects or indicates an error of the kind identified by the Judge. I respectfully disagree with the Judge. This Court is as well placed as the Judge to decide this issue.
The Judge found that Mr Scheving’s version of events was supported by an inconsistency between the contents of Ms O’s appointment book, and her evidence: [24]. In evidence Ms O said that Mr Scheving booked in for a back wax and a bottom wax, and that the appointment was not for a stomach or chest wax. It was after Mr Scheving arrived that he asked for and was given a chest or stomach wax. The Judge pointed to the fact that in Ms O’s statement to the police, tendered on the appeal, she said that Mr Scheving had booked in for a “back, bottom and stomach wax”: [22]. The Judge said that this portion of Ms O’s statement appeared to have been based on her appointment book, and that there was a “marked inconsistency as to the contents of the appointment book”: [24].
The appointment book had not been called for or produced at the trial. Ms O’s statement to the police was not raised at the trial. It follows, that the suggested inconsistency was never put to Ms O.
It was one thing for the Judge, there being no objection, to receive Ms O’s statement on appeal. But it is another thing, in my respectful opinion, to use the statement to draw an adverse inference about the reliability of Ms O, bearing in mind that neither this part of the statement, nor the particular issue, had ever been put to her. In my opinion it was not right to do this in those circumstances.
The Judge then referred to the price list that Mr Scheving had tendered. The Judge said at [26]:
It is to be noted that in fact the price at that time for a back wax and chest wax was $60 whereas the price for a back wax and stomach wax was $50. On Ms O’s version, she had completed the back and chest and had started on the stomach but if the uncompleted area (on her version, the stomach) was to be “written off”, the price would have been $60. However, on the appellant’s version, she had completed the back and stomach and had started on the triple X and so, if the uncompleted area (on his version, the triple X) was to be “written off” the price was $50. This was indeed the price requested of him by Mr Craig on the instructions of Ms O and was the price that the appellant paid.
In my opinion this aspect of the Judge’s reasoning is speculative. Once again, none of this was put to Ms O. The basis for charging $50 was not raised at trial. I consider that this manner of reasoning was not open to the Judge in the circumstances.
Then at [27] the Judge made the following observations, referring to the two matters just considered:
These matters by themselves may not be determinative, but their cumulative effect is not insubstantial. Indeed in the light of those matters, one can discern a touch of defensiveness in Ms O’s evidence on precisely what type of service she was providing.
I cannot discern any defensiveness in the relevant part of Ms O’s evidence. The Full Court is in as good a position as the Judge to make the assessment of her evidence. Nor do I think it right to draw what appears to be an adverse inference in relation to Ms O’s credibility on such a basis, no such adverse inference having been suggested at trial. Indeed, the Magistrate had found her to be an impressive witness. In my opinion there is no basis, in the matters identified by the Judge, for rejecting that finding by the Magistrate.

In the statement by Ms O that was tendered on appeal, she says:
I was very angry and surprised that this has happened [the incident involving Mr Scheving] and also by [Mr Craig’s] flippant way he treated the incident. [Mr Craig] had stated that I was an attractive woman and should not be surprised. [Mr Scheving] made me feel dirty.
Counsel for Mr Scheving before the Magistrate must have had a copy of this statement, because in the course of his cross-examination of Ms O he put the substance of that comment to her. Ms O said:
Of course, I mean whether somebody joking or not about you know whether their surprised or not yeah it can make you angry however because we share a building together I have to stay on good terms with [Mr Craig] so if he has a personal opinion about what’s happened that’s his opinion but he definitely was concerned for me and he you know he helped me out in that situation and I’m very lucky that he was there that day.
Referring to that evidence the Judge said at [39]:
The learned Magistrate does not advert to this matter in his judgment but it is actually quite important for a true appreciation of the strength of the defence case. The general effect of the appellant’s submissions is that if Ms O was in fact performing “triple X” waxing as he insisted that she was, she could well have misinterpreted the appellant’s discomfort and movements during that time as sexual arousal and have overreacted to the inappropriate comment that the appellant has always agreed that he did make. If in such circumstances she left the room in high dudgeon, but then met with a somewhat flippant response from Mr Craig, this may have set the scene for contamination of evidence. If Ms O were met with a reaction by Mr Craig which she perceived (rightly or wrongly) as conveying a belief that she was being silly or over-reacting, a subconscious tendency for her to justify her concern may have arisen, the effect of such process possibly leading to the solidification of allegations and a degree of unreliability in the subsequent trial evidence.
In my respectful opinion it was not open to the Judge to reason in this way. First, the Judge’s reasoning begins with a hypothesis based on the evidence by Mr Scheving, evidence that the Magistrate rejected. Second, none of this was put to Ms O.
The reference by the Judge to “contamination of evidence” appears to be a reference to the next part of his reasons.
The Judge referred to some submissions that Mr Scheving had put to him suggesting inconsistencies between the evidence given to the Magistrate by Ms O and Mr Craig, and the contents of the statements tendered on appeal. Mr Scheving also submitted that at trial Ms O and Mr Craig “gave well aligned versions” of the complaint to Mr Craig.
The Judge commented that although there was no cross-examination before the Magistrate as to conversations between Ms O and Mr Craig, relating to the event in question, between January and May 2010, nevertheless, the Judge said at [44]:
[44]… it is highly unlikely that none took place since the evidence was that they saw each other on virtually a daily basis.
Once again, nothing like that was suggested at trial, and in my opinion it was not appropriate for the Judge to make that finding. In the end, in relation to this topic, the Judge’s conclusion was that it was “unfortunate” that the arguments Mr Scheving wanted to put were not pursued in cross-examination at trial. But the fact is they were not pursued at trial, and in my respectful opinion that was the end of it. Nothing could be made of this on appeal, except, possibly, in support of an argument for a re-trial based on a complaint of injustice due to inadequate representation, an argument not advanced to this Court.
The Judge then found that the Magistrate’s finding of not guilty on the charge of behaving in an indecent manner was a finding “… which severely impinges upon Ms O’s credibility and/or reliability”: [53]. I respectfully disagree. In my opinion the Magistrate made it clear that it was the prosecutor’s failure to elucidate any details of what Ms O said she observed that led to his conclusion that the second charge was not made out. The Magistrate’s decision in no way reflected on Ms O’s credibility or reliability.
I refer again to the Judge’s conclusions at [75], set out above. As to the first three of the reasons given by the Judge, in my opinion the Judge has taken an approach on appeal which was not properly open to him. I refer in particular to the manner in which the Judge has used the statements tendered on appeal, and not the subject of cross-examination, to support criticisms of the prosecution case. As to the fourth reason, I disagree as a matter of law. As to the fifth reason, in my opinion it is not open, on an appeal of the kind before the Judge, to conclude that the Magistrate would have come to a different factual conclusion in relation to matters not raised before the Magistrate, nor with the relevant witnesses.
It follows from this that I disagree with the observation made at [79] that “very real residual doubts” remained. That conclusion is based on impermissible reasoning. For similar reasons I do not agree with the Judge’s conclusion that the conviction is “unsafe and unsatisfactory”.
In the circumstances, it is not necessary to deal with the Judge’s conclusion that a re-trial should not be ordered, and that a verdict of not guilty should be substituted.
Disposition of appeal
I would allow the appeal. I would set aside the order allowing the appeal to this Court, and the consequential orders made by the Judge.
I would substitute an order dismissing the appeal to this Court against conviction. I would order that Mr Scheving’s appeal against sentence be remitted to a single Judge for hearing.
VANSTONE J: I agree with the orders proposed by the Chief Justice. I agree with the reasons he has written.
BLUE J: I would allow the appeal. I agree with the reasons of and the orders proposed by the Chief Justice.