R v Ashcroft

[2024] NSWDC 603

District Court

New South Wales

Medium Neutral Citation:

R v Ashcroft [2024] NSWDC 603

Hearing dates:

18 December 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph [113]

Catchwords:

CRIME – appeals and reviews – two convictions in the Local Court of sexual touching against a child aged between 10 and 16 – three acquittals of same offence against three other complainants – the Magistrate made findings of probability of sexual touching concerning two of the other complainants, but was not persuaded of proof to the criminal standard – additional evidence of uncharged acts - tendency evidence and its significance to the charges giving rise to the two convictions – whether in the case of one complainant, non-disputed touching by the appellant of her breast was intentional or ‘accidental’ – whether in the case of the other complainant, there was touching by the appellant of her breast at all – the significance, in the case of the latter complainant, that there was an absence, when the complainant made her initial complaint, of specific reference to touching of her breast – whether Magistrate erred by placed disproportionate weight on positive finding of complainant’s demeanour

Legislation Cited:

Crimes Act 1900 (NSW), s 66DB

Criminal Procedure Act 1986 (NSW), ss, 161A, 293A, 294

Evidence Act 1995 (NSW), s 78

Cases Cited:

Gautam v Health Care Complaints Commission [2021] NSWCA 85

R v Scott [2023] NSWDC 271

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr Roger Ashcroft (Appellant)
Office of the Director of Public Prosecutions (ODPP) (Respondent)

Representation:

Counsel:
Mr R El-Choufani for the Appellant
Mr D Rainey (Solicitor Advocate) for the Respondent

Solicitors:
Hugo Law Group
ODPP

File Number(s):

2022/00082239; 2022/00385054

Publication restriction:

Non-publication of the complainants’ names and the names of others who might tend to disclose the complainants’ name.

 Decision under appeal 

Court or tribunal:

NSW Local Court

Jurisdiction:

Criminal

Date of Decision:

28-29 November 2023

Before:

Barlow LCM

File Number(s):

2022/00082239; 2022/00157435; 2022/00333488; 2022/00385054

REASONS FOR JUDGMENT (revised after delivery of oral reasons)

Introduction

1. In reasons for decision given over 28 and 29 November 2023, Mr Roger Ashcroft (‘the appellant’) was found guilty in the Parramatta Local Court (Magistrate Barlow) of two offences of sexual touching of a child aged between 10 and 16 years of age, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The learned Magistrate acquitted the appellant of three other charges under the same offence. These results occurred after three days of hearing. The appellant was sentenced on 13 February 2024.

2. The appellant now appeals his conviction of the two offences.

3. The appellant was a school teacher at the material times. The two incidents in which convictions were entered concerned two different complainants, one of them being MR which was alleged to have occurred on 17 February 2022 at the Nepean Creative and Performing Arts High School (‘Nepean’).

4. The other complainant was JW, when the offending conduct was alleged to have occurred between 14 February 2021 and 24 March 2021 at the Gateway Community High School (‘Gateway’) at Carlingford.

Elements of the offence

5. The elements of this offence are:

1. The accused intentionally touched the complainant;

2. The touching was ‘sexual’; and

3. The complainant was aged between 10 and 16 years of age.

6. In relation to the interpretation of these elements, some of them bear comment.

7. First, the slightest contact with the complainant is enough to amount to touching. It must, however, be an intentional touching; not an accidental touching.

8. Whether conduct (in this case, the asserted touching) is ‘intentional’ is a conclusion to be inferred or deduced from the circumstances in which the conduct occurred. In some cases, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where they deliberately do that act, it may readily be concluded that they did that act with the intention of achieving that specific result.

9. Secondly, sexual touching means touching another person with any part of the body, in circumstances where a reasonable person would consider the touching to be sexual. In determining whether a reasonable person would consider the touching was sexual, the trier of fact should consider everything that it regards as relevant, but there are some particular matters that are required to be taken into account. They are:

• The part of the body touched, or doing the touching. Was it the genital or anal area or the breasts; whether or not the breasts are sexually developed, and regardless of the person’s gender or sex?

• Whether the person doing the touching did so for the purpose of obtaining sexual arousal or sexual gratification.

• Was there any other aspect of the touching (including the circumstances in which it was done) which made it sexual?

10. The Crown is not required to prove any particular one of these matters. They are matters the trier of fact is required to take into account, along with anything else considered to be relevant when the trier of fact decides whether or not the Crown has proved that the touching was ‘sexual’.

11. Given the nature of this particular offence, absence of consent, and the accused’s knowledge of that, are not elements of the offending.

Approach to conviction appeals

12. In R v Scott [2023] NSWDC 271, at [5]-[6], I outlined my approach to appeals against convictions from the Local Court as follows:

“2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo.

3. The court must give the judgment which, in its opinion, ought to have been given in the first instance.

4. The appellant must demonstrate factual, legal, or discretionary error to succeed.

5. That said, the term ‘error’ has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of ‘error’ in the ordinary meaning of that term.

6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant’s guilt beyond reasonable doubt.

7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt.”

However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind:

there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunneyv DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and

the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73];

in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a ‘he said, she said’ type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32].”

The issues

13. In an early part of the learned Magistrate’s reasons, it was noted that the ‘battleground’ issues were, whether in the case of each complainant: (a) there was any ‘touching’ by the appellant; (b) whether such touching was ‘intentional’ and (c) whether (assuming there was intentional touching in each case), the touching was ‘sexual’.

14. There was no dispute that the age element of the offence was made out in the case of each complainant.

15. As will become apparent, at the hearing of this appeal, the issues were even more refined.

The Crown case

General

16. For both relevant charges, the Crown relied primarily upon the evidence of the respective complainants. However, the Crown relied additionally upon complaint evidence. Further, (in addition to the conduct relied upon in relation to both complainants) the Crown relied upon evidence of uncharged acts by a Crown witness (PD), another student from Gateway, as tendency evidence.

The complainant MR

17. MR was 14 years of age in February 2022. She gave evidence that the appellant, then a substitute teacher, touched her breast during a mathematics class. The Magistrate alluded to her having demonstrated the way in which that occurred. The Magistrate eventually found the touching as comprising “a firm touch with the palm of (the appellant’s) hand and the fingers of the hand at a horizontal, with the fingers pointing to the sternum. The hand was placed over the full area of the breast and was not above or below the breast. The palm was centred around what would be the nipple area, with the fingers extended towards the sternum”. The complainant had said that she thought it was the appellant’s left hand and the touching went on for a couple of seconds.

18. The school bell went shortly after the incident. MR immediately rang her mother (LR), and also spoke with her sister (JR) and another teacher (Fiona Connor). Ms Connor observed MR crying; so took her to see the Deputy Principal (Natalie Isakov). All of these people gave evidence as complaint witnesses.

Complaint witnesses

19. The complainant’s mother, LR, said that on the date of the alleged offending, around 9:40am, she received a phone call from her daughter. She told LR that a relief teacher had touched her on the breast after having gone to her towards the end of the class to check on her work. MR told her that she did not know whether this was accidental or not.

20. The complainant’s older sister, JR, was in Year 12 at the school. She said that her mother had called her and informed her of MR’s state of distress. JR went to find MR and found her in Ms Isakov’s office. She said that MR told her that the teacher had come to her, asked her if she was doing her work and he went and touched her on the breast and held it. Doing her best to recall what it was that MR precisely told her, JR said that he (the appellant) had reached out or reached down and touched my (MR’s) breast.

21. Fiona Connor was a classroom teacher. She gave evidence of observing MR on the grass with her phone, looking distressed, and indeed appearing inconsolable. She recalled MR saying to her “I don’t know if it was an accident, but a casual teacher touched me on the breast.” Ms Connor then escorted the complainant to Ms Isakov’s office.

22. Ms Isakov was the Vice or Deputy Principal. She recalled MR telling her words to the effect that the appellant had stood to the side of her when he asked and then reached out and touched her left breast, once before walking away.

HP’s note

23. A student in MR’s class, HP, prepared a note on 18 February 2022 (Exhibit 5 in the Local Court); the day after the incident. The Crown emphasised that this supported the complainant’s account that she had put up her hand and the teacher (the appellant) had approached the complainant. Further, it indicated that after the bell had rung, she had seen MR on her mobile phone, crying; and later, she saw the complainant’s sister arrive to inquire into the complainant’s whereabouts.

The complainant JW

24. The complainant was 14 years of age in February and March 2021. She gave evidence of one occasion at Gateway when she was seated at a table by herself in the classroom. There were 3 or 4 other students in the room. The appellant was teaching at the time.

25. She said she asked the appellant to come and look over her work. She said he stood behind her, on her right side. She said that he put his arm on her shoulder and started to go down near her breasts, grabbing and feeling around that area. She said the incident lasted only a few seconds and after his touching her, the school bell rang. She said she pushed or palmed him away with her right hand. She said she then went to the library to work and did not tell anyone that day.

26. She disclosed the incident to Nicole Broudou, a support officer of the school and recalled telling her that the appellant had been ‘feeling me elsewhere’, but she did not inform Ms Broudou that he had touched her on her breasts. She explained that she had not even disclosed this aspect to her mother and felt disgusted and uncomfortable telling her at the time. She later accepted that the first time she alleged that her breasts were touched was in a statement to police on 22 September 2023. She further explained that the incident had badly affected her; causing her to turn to drugs. When demonstrating upon Ms Broudou where she said the appellant had touched her, she did not touch Ms Broudou on her breasts; explaining that she did not feel comfortable doing so.

27. The prosecution called Ms Broudou who gave evidence of JW coming into her office after leaving her classroom in a distressed state. This meeting was not planned. Ms Broudou observed JW appearing teary, shaking and very upset. She recalled JW telling her that the appellant had touched her, demonstrating upon herself where she had been touched; which was along her back.

28. Ms Broudou decided to see Jo Wooster, a senior staff member. JW attended the meeting. This was about a week after the first meeting that JW had with Ms Broudou. According to Ms Broudou, JW’s body language was still ‘revolting’. Ms Broudou asked JW to demonstrate where she had been touched. JW stood behind Ms Broudou going across the latter’s back with her hand and ‘sort of’ down the side but JW paused, saying “I can’t go – I can’t do any more”. Ms Broudou interpreted this as meaning that JW did not wish to ‘invade’ Ms Broudou’s body. She said JW stopped when she got to Ms Broudou’s armpit area, toward the shoulder blade at bra level.

29. Ms Wooster thereafter prepared a handwritten report. This was Exhibit 16 in the Local Court hearing (a more legible version of that report was Exhibit 1 on this appeal). That report was received by Theresa Collignon, the CEO of Gateway. Ms Collignon said she could not investigate the matter as she was unable to speak with the appellant.

30. A feature of the complaint evidence was that the complainant did not specifically advert to the appellant touching her on her breast.

Tendency evidence

31. The asserted tendency in the appellant was to have a sexual interest in 13 to 15 year old females and to act on that sexual interest by initiating physical contact with young females under 16 who were school students.

32. The learned Magistrate referred to the evidence of uncharged acts from PD. She gave evidence that when, in 2021, and when she was in Year 11 at Gateway, the appellant was the principal of the school. She recalled two occasions when during lunch or recess breaks, the appellant came up from behind her, and had grabbed her shoulder. PD described feeling “uncomfortable” on one occasion and said she recalled telling the appellant not to touch her on another.

33. The Crown had also relied upon the evidence of the other complainants, NS, AS and ES who had given evidence sustaining the other charges in respect to which the appellant was found not guilty. Commonly, the alleged conduct the Crown relied upon to sustain those charges was the appellant touching each of those girls on the thigh.

34. It is pertinent to note certain findings that the learned Magistrate made in relation to those other complainants.

1. In the case of NS, his Honour accepted the complainant’s evidence that the appellant touched her thigh in a grab and brush motion and that such contact was not accidental. His Honour even found that it was more probable than not that the touching was ‘sexual’, but ultimately was not persuaded to the requisite standard (29/11/23, T 11);

2. In the case of AS, similarly, his Honour accepted the complainant’s evidence that as she was on her way to the library, the appellant intentionally grabbed her thigh as she was leaving the kitchen area and that it was highly probable that the touching was ‘sexual’ but ultimately was not persuaded to the requisite standard (29/11/23, T 11-12);

3. In the case of ES, his Honour found that it was highly probable that the appellant had used his thumb to touch the inside of her thigh and moved his hand up and down on the inner thigh in the direction of the vagina. Nevertheless, his Honour was not satisfied beyond reasonable doubt of his having done so (29/11/23, T 13); and

4. All of the complainants were 14 years of age at the time of the incidents that gave rise to the charges.

The appellant’s case

35. The appellant agreed to participate in an ERISP on 15 March 2022, however that only concerned the incident concerning MR. This was because, at that stage, only MR had provided a JIRT. Later, the Magistrate gave himself a (limited) Liberato direction.

36. In the ERISP, the appellant gave what the Magistrate described as a ‘mixed’ version. He denied that he could have touched MR on the breast. He did not recall any accidental brushing; although he said the following:

“..I’m not sure if I’ve put my hand on her shoulder whether I’ve, you know, a finger has like touched the side of her breast or something like that.”

37. The Crown emphasised that the appellant had denied being aware of allegations of a like kind being previously made against him in circumstances where Ms Collignon gave unchallenged evidence about JW’s complaint. The Crown relied upon this as evidence of lies. The learned Magistrate gave himself a Zoneff direction about lies; although his Honour’s reasoning in relation to MR did not indicate any material reliance upon them.

38. The appellant elected not to give evidence in the Local Court hearing. The Magistrate gave himself the conventional direction regarding the consequences of that election in terms of his right to silence.

39. The appellant tendered certain written character references (without objection).

40. The Crown conceded that the appellant had no prior convictions, and the Magistrate gave himself a good character direction, relating not only to the question concerning the likelihood of his guilt but also for the purpose of his credibility when giving the account in the ERISP.

The Magistrate’s reasoning

41. I have already noted some directions that the learned Magistrate gave himself.

Other directions

42. In addition to those that I have already referred to, the Magistrate directed himself in conventional terms as to the presumption of innocence, the Crown’s onus of proof and the standard of proof, the form of the complainant’s evidence via CCTV/AVL and inferences. His Honour gave himself a Ewen direction and the two uses to which the prosecution relied for complaint evidence (going as to the truth and also the credibility of the relevant complainant). Further, his Honour directed himself as to the significance of delayed complaint (under s 294 of the Criminal Procedure Act 1986 (NSW) (‘the CP Act’)) and, in the context of the prescribed sexual offences, gave himself the warning prescribed by s 293A of the CP Act.

Alleged offending against MR

43. As to the complainant MR, his Honour summarised the complainant’s evidence and that of the complaint witnesses. His Honour also referred to the material part of the appellant’s evidence in his ERISP. Ultimately, the Magistrate found the alleged offence against MR proven beyond reasonable doubt.

44. The critical part of his Honour’s reasons (29/11/23, T 9-10) were then as follows:

1. He felt that MR presented as a rather shy and unsophisticated teenage girl who made a genuine effort to tell the truth;

2. Although she was uncertain whether or not the touching was accidental, her immediate response to the touching was consistent with a young teenage girl trying to rationalise what had happened, who was in shock and who was struggling to accept the true nature of what had occurred and she may have hoped for, or wanted to believe, that the contact was accidental;

3. In determining the ‘mechanism’ or way in which the touching occurred, as earlier described, and having regard to the inherent implausibility of the suggestion that it was accidental, his Honour was satisfied beyond reasonable doubt that there was touching and that it was not accidental;

4. The appellant’s evidence that he did not or could not sexually touch her was not accepted and was not possibly true; and

5. The touching of a 14 year old’s breast, even if clothed, was inherently sexual.

Alleged offending against JW

45. After summarising this complainant’s evidence and the complaint evidence, the critical parts of his Honour’s reasons (29/11/23, T 15-16) were as follows:

1. JW’s explanation for why she did not specifically complain about being touched on her breast, or physically demonstrate (on herself or others) the touching of her breast, to other staff was explicable in the circumstances;

2. JW was willing to make concessions ‘against (her) interest’. That was consistent with his Honour’s view that she made a genuine effort to give truthful evidence. Indeed, his Honour considered her a ‘particularly compelling witness’.

3. JW’s delay (of 2 years) in specifically complaining to police about being touched on her breast was for a significant period but (reminding himself about the general direction he earlier gave about the significance of delay) did not mean her evidence was unreliable; and

4. Her account of being touched on her breast was ‘unshaken’ in cross-examination, accurate, reliable and honest.

The significance of tendency evidence

46. His Honour made it clear that he reached his verdicts independently of consideration of tendency evidence; his Honour said he was “confident” in reaching his findings without it (29/11/23, T 16-17). But, tendency reasoning fortified conclusions he had already reached. That is to say, the evidence of MR was cross-admissible as tendency reasoning for the Crown’s case concerning JW. He also alluded to evidence from PD which he characterised as ‘inappropriate’ touching.

The appellant’s submissions

The MR conviction

47. I note that, with some reservation, and the encouragement of the Crown (and absence of objection on behalf of the appellant) I watched the demonstrations by MR of the touching that occurred in the JIRT interview.

48. Counsel for the appellant in this hearing complimented MR for being a good witness. He did not dispute her evidence that the appellant touched her on the breast; although there was a question as to precisely which part of the breast was touched (he suggested it was the upper breast).

49. Further, Counsel for the appellant accepted that if the touching of the breast was intentional, then it was also touching of a ‘sexual’ character.

50. Counsel identified as the sole issue whether or not the Crown proved beyond reasonable doubt that the touching was intentional. He argued that there was a reasonably arguable alternative hypothesis, not disproven by the Crown, that the appellant’s touching of MR’s breast was ‘accidental’.

51. First, MR’s evidence regarding her beliefs itself enlivened the real possibility that the appellant had touched her breast inadvertently, ie accidentally. Her perception that it was accidental, although not conclusive, was highly relevant. This was indicated through her various complaints to her mother, Ms Connors and Ms Isakov; and thereafter again in her JIRT interview.

52. The appellant challenged the Magistrate’s reasoning which ‘discounted’ the complainant’s perceptions given her limited life experience and expressed ‘hopes’ that contact was only accidental.

53. Secondly, MR’s evidence describing the manner and duration of the touching did not eliminate the possibility of inadvertent touching. In this regard, it was suggested that the Magistrate placed disproportionate weight upon the complainant’s physical demonstration during her JIRT interview. That demonstration needed to be assessed with reference to her narrative account of the touching, including the complainant’s choice of the word ‘tap’. Further, it was argued that the actual physical demonstration was itself unclear. The appellant challenged the eventual finding that the Magistrate made as to how the touching occurred; saying it was not open to make it. Finally, the complainant’s physical demonstration indicated that different parts of her breast were touched.

54. At the hearing, Counsel for the appellant drew my attention to the diagram (Exhibit 1 in the Local Court) setting out the layout of the classroom.

55. Thirdly, the Magistrate’s inference of deliberate touching from the extent or nature of the complainant’s distress was not available. It was neutral.

56. Fourthly, the appellant pointed to what he contended were a range of objective circumstances enlivening a reasonable possibility of accidental touching. They furnished support for MR’s suggestion in her JIRT interview that the appellant may simply have been attempting to contact her shoulder for the purpose of congratulating her on her work but in the process, inadvertently contacted her breast.

57. Fifthly, it was inherently implausible that the appellant would deliberately touch her breast. He was a substitute teacher, with little or any rapport with MR or any of the other students. The touching was said to have occurred in a classroom where there were other students and must necessarily have been brazen. The complainant herself was seated at the front of the class. The front of her body was seated in a diagonal direction directly opposite her and another student was seated immediately to her right. Any touching by the appellant would give rise to an inevitable risk of detection.

The JW conviction

58. The appellant submitted that the dispositive question was whether the Crown proved beyond reasonable doubt that the appellant had grabbed JW’s breasts. Counsel for the appellant conceded that if this element was proved, there was no issue that such touching was both (a) intentional and (b) would be properly characterised as being ‘sexual’ in nature.

59. The appellant argued that the Magistrate should have been left with doubt about his guilt from this complainant’s evidence.

60. Counsel for the appellant drew my attention to the procedural chronology (which was Annexure ‘A’ to his written submissions, being MFI 2 at the hearing of this appeal). He pointed out that JW only made complaint to police about the appellant touching her breasts on 21 September 2023. This was a good 7 months after the other charges against the appellant had been set down for hearing. It was also two and a half years after the date the alleged incident occurred. Counsel also pointed out that it was only in the middle of the Local Court hearing that Ms Broudou, a ‘support person’ for JW at the hearing, had disclosed that she was a ‘complaint witness’.

61. The appellant argued that JW gave different accounts to the Crown’s complaint witnesses as to where she was touched. To Nicole Broudou, in the first meeting (said to have occurred on or about the day of the incident), and who was a trusted confidant to the complainant, she only said she had been touched on her back. A note of her meeting with Ms Broudou and Ms Wooster (said to have occurred about a week after the incident) recorded her complaining that the appellant’s hand was on her shoulder and went down the back of her waist. In her verbal account, the written report (Exhibit 16 in the Local Court) and demonstrations, there was no indication of the appellant touching her breast.

62. The first time she made a report of touching of her breast was two and a half years after the alleged touching (and after earlier complaints to Ms Broudou and Ms Wooster) in a context where police had informed her that other girls had made allegations of inappropriate conduct to them. This gave rise to concerns of her credibility and reliability.

63. JW then gave evidence in the hearing of how she was touched on her breast that was different to earlier accounts. In her evidence in chief, contrary to the content of her complaints to Ms Broudou and Ms Wooster, she omitted reference to the appellant touching her on her back. But in her re-examination, she said she remembered in her demonstration upon Ms Broudou how she touched the latter on her back and shoulder and said that she refrained from touching Ms Broudou on her breasts since she was uncomfortable in doing so. There were other differences with respect to her evidence and what appeared in Exhibit 16 regarding how the appellant stopped touching her and conversation she had with the appellant. Counsel for the appellant rhetorically asked, which version of JW’s was right?

64. The appellant’s Counsel argued that it was inadequate for the Magistrate to minimise these inconsistencies and the circumstance of her delay in complaining, specifically, about a touching of her breast, by resorting to general observations about typical concerns about the evidence of sexual abuse complainants.

65. Secondly, the complainant’s evidence of the circumstances of the appellant touching her was implausible. If her account was true, there was much that the appellant had done, including massaging her shoulders, grabbing and feeling around her breast for a period and stopping only because of her pushing his hand away. All the while he remained mute. This all occurred in the middle of a classroom in the presence of other students.

66. Thirdly, the appellant argued that the Magistrate placed undue weight upon positive findings of the complainant’s demeanour. Reference was made to observations upon the limitations of demeanour findings made by Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [25]. The inconsistency between contemporaneous complaints and the evidence, the delay in making the critical allegation of touching of the breast and its implausibility amounted, collectively, to ‘incontrovertible’ facts which necessarily overwhelmed positive views of the complainant’s demeanour.

The Crown’s submissions in response

The MR Conviction

67. The Crown submitted that the complainant gave consistent accounts as to how the appellant touched her on her breast. This included several physical demonstrations indicating where and how she had been touched.

68. She was a credible witness.

69. What the complainant said about her beliefs as to what the appellant was doing was not determinative of whether any touching was intentional or accidental. What was material was the clear description of the manner of touching which was inconsistent with inadvertent touching. The appellant was standing side-on to the complainant, facing her left side, in between his desk and her desk. Inadvertent touching was not a rational alternative hypothesis.

70. It was open to the Magistrate to form a view of her personality (being shy) and infer a limited degree of life experience. The Magistrate gave appropriate weight to her demeanour.

71. The complainant’s evidence was materially supported by contemporaneous complaint evidence. It was unremarkable, as the Magistrate had observed, that it was given in a somewhat generalised state or that additional details were supplied to police after she had processed the incident in her mind.

72. That the touching was sudden, or brief, did not preclude a finding that it was intentional. To the contrary, its brevity and the opportunistic way in which it occurred was suggestive of intention and offset, or at least reduced, the risk of detection. The absence of rapport or personal connection between the appellant and complainant was also illustrative of opportunism and similarly would reduce the risk of detection.

The JW conviction

73. The Crown endorsed the Magistrate’s view of this complainant as giving evidence that was both coherent and compelling. Contrary to the appellant’s characterisation, the ‘evolution’ of her complaints featured the assertion of additional, not inconsistent, detail. She did not, in particular, resile from asserting that the appellant had also touched her back and shoulder, even if she did not refer to that in her evidence in chief. By the time she gave evidence, Mr Crown submitted, it was understandable that she was focussed upon the more serious aspect of the appellant’s conduct (generating the charge) in which, according to her, he had touched her on her breast.

74. It was unremarkable that a 14 year old girl may hesitate to fully disclose the more intimate parts of an incident even to a person whom she trusted, like Ms Broudou. The trauma or embarrassment was not necessarily cured by adopting the expedient of getting the complainant to physically demonstrate the touching on herself, much less upon Ms Broudou. Her explanation that she was uncomfortable to do so was cogent and understandable. Further, her conduct in leaving the classroom was also consistent with her account of the incident.

75. The complainant’s delay in complaint did not necessarily make it unreliable.

76. The Magistrate was entitled to place significant weight upon the complainant’s demeanour. Emphasis was placed upon his description of the ‘unvarnished’ way in which she had given her evidence. It was clear, however, that the learned Magistrate did not, as the appellant would have it, base his reasoning solely upon being impressed by JW’s demeanour.

77. That the complainant knew that other girls had made allegations did not assume any significance when there was nothing to suggest her awareness that MR had made allegations.

78. The complainant’s evidence withstood cross-examination. It was not implausible.

Generally

79. The Crown recognised it was open to the Magistrate to find that the appellant was a person of good character, but that did not provide him with any defence. Experience showed that persons in positions of authority, such as school teachers, may abuse their position in this way.

80. The Crown did not dispute the appellant’s argument that tendency evidence was largely immaterial to the Magistrate’s findings. The Crown did, however, argue that this Court, on the rehearing, could engage in tendency reasoning at least on the basis that evidence of the appellant’s conduct towards each complainant was cross-admissible. I will return to the Crown’s submissions about tendency evidence later in these reasons.

Consideration

MR conviction

81. The Magistrate properly gave himself a Liberato direction, taking into account the appellant’s ERISP version, as well as his (prior) good character. The highest that his evidence went was his assertion that he would not have touched the breast of a 14 year old school girl. In effect, that rises no higher than saying that he was not the type of person who would do that. That has the same forensic value as the good character direction. But as I have pointed out, on his own evidence, the appellant did not discount the possibility of accidental contact.

82. The Magistrate patently scrutinised MR’s evidence. His Honour found her both credible and reliable – findings that, as I have said, were scarcely challenged in this Court. Indeed, they were effectively adopted. Counsel for the appellant relied upon her willingness to concede as to doubt as to whether the touching was accidental manifested a witness who neither sought to embellish her own evidence or cause harm to the appellant.

83. The Magistrate recognised that her evidence of doubt about the extent or nature of touching was not determinative. Counsel for the appellant noted that her evidence of what she perceived was admissible (under s 78(a) of the Evidence Act 1995 (NSW)). This was true. However, that does not say anything in itself about the weight to be ascribed to it.

84. In my view, her statements about the appellant’s state of mind had little weight. This was so even if it had been contemporaneous – when talking to her mother and sister, or 5 days later when talking to police. It substantially involved an exercise in speculation of an incident that occurred quickly in circumstances where the complainant would have been preoccupied with her own thoughts as to what had occurred. Actions tend to speak louder than words and especially when weighing her accounts to her mother and sister, she was in a clearly distressed state: behavioural reactions more in keeping with a sense that her bodily integrity was deliberately infringed; rather than only accidentally so.

85. His Honour was well placed to weigh the complainant’s evidence as to how the touching physically occurred. I am not persuaded that he was wrong in making the finding that he did about how the appellant touched the complainant.

86. I have also considered Exhibit 1 that was in the Local Court. Paradoxically, after having been invited by Counsel for the appellant to look at it closely, Counsel later suggested that I not ‘over-analyse’ it.

87. As I look at what was Exhibit 1 in the Local Court, and consider what was said about it, it has something for both the appellant and the Crown. On the one hand, and beneficial to the appellant, it indicates the real possibility that other students in the classroom could have been looking towards the appellant and complainant seated or situated in the front row of the classroom (looking at the front wall). However, this benefit was somewhat neutered in the circumstances that I have found, that the appellant not only had a tendency to have a sexual attraction to teenage school girls but also one to act on it opportunistically, in public places, where the risk of detection may be significant.

88. On the other hand, Exhibit 1 depicted the appellant, who was then standing, being positioned at a perpendicular angle on the complainant’s left side. If, as the complainant gave evidence, he used his left hand to touch her breast (which was furthest away from her) rather than his right hand (which was closest to her), it would likely have meant a level of effort on his part to touch her breast from his standing position – much more than simply tilting his head downward to observe her work. That would be inconsistent with the hypothesis, raised on the appeal, that he might, in the course of trying to pat her on the back, or shoulder, inadvertently brushed her left breast. Further, if the intention was to pat the complainant on the back, as if to congratulate or encourage her, that could most easily have been accomplished by the appellant using his right hand. Finally, short of physically correcting work himself, there was no other apparent reason (other than a pat on the back or shoulders) for the appellant to use his hands at all but that hypothesis was not suggested.

89. Further still, although it is not conclusive, the demonstrations MR gave in her JIRT interview as to how the appellant placed that hand on her left breast was inconsistent with the notion of an inadvertent brushing on the way to touching the complainant’s back or shoulders. Having viewed that part of her JIRT, I agree with the Crown that her demonstrations as to how and where he placed his hand on her breast were remarkably consistent and therefore cogent.

90. For these reasons, I reject as far-fetched the notion that the appellant’s touching of the breast was inadvertent.

81. His Honour alluded to the complaint evidence. It substantially aided the prosecution case in the two senses his Honour had identified: for the truth of the complaint made and for what it said about the complainant’s credibility. There was consistency in the complaint of touching of the breast. Allied to this, as noted, was the evidence of the complaint witnesses about their behavioural observations of MR and the nature of her distress.

82. In the circumstances, and subject to what I say later on the significance of tendency reasoning, his Honour was entitled to reject the appellant’s denial of touching MR’s breast as both untrue and not possibly true; notwithstanding his prior good character.

Tendency evidence

93. I have noted the findings made by the Magistrate in the course of his determining that the appellant was not guilty of the charges concerning the other complainants. In this appeal, the appellant did not cavil with the Magistrate’s findings not only that the appellant touched NS and AS, respectively, on their thigh; but also that it was “highly probable” that, in each case, the touching was ‘sexual’ in nature.

94. I have also noted the evidence of PD. In her case, the learned Magistrate did not appear to make a finding, one way or the other, about whether to accept her evidence of the appellant having touched her on the shoulder on at least two occasions. But as I read the evidence of that Crown witness, it appeared that this witness’ evidence, in that regard, was not seriously challenged. It was certainly not squarely put to her that she was either lying or was mistaken. At the hearing in this appeal, Counsel for the appellant accepted that the appellant had touched PD on her shoulders.

95. His Honour correctly noted that it is unnecessary, for the purpose of finding tendencies in the appellant, to make that finding or findings beyond reasonable doubt (CP Act, s 161A).

96. Counsel for the appellant submitted that particular care needs to be exercised in accepting that the conduct of the appellant gave rise only to the inference of sexual interest in teenage school girls; rather than an alternatively available inference that he touched school students (female or male) as a means to build rapport with them.

97. At the hearing of this appeal, the Crown submitted that part of the probative value of this evidence, aside from what it said about the appellant’s state of mind and conduct, was that these (other) charged acts and the uncharged acts occurred at school in public places where there was a plain risk of detection by others. This, it was emphasised, undermined the force of the contention raised on the appellant’s behalf concerning the inherent implausibility of the appellant intentionally touching MR and JW because of the appellant’s likely consciousness that his conduct may be detected. In addition, although the touching of the other complainants (NS and AS) was on a different part of a female student’s anatomy to the area of the female body of the complainants, MR and JW, said they were touched – the breasts – the conduct proved the appellant’s sexual attraction to teenage schoolgirls. In this way, the inference of sexual attraction, rather than an inappropriate or misguided attempt to build rapport by physical touching, is the inference to be preferred.

98. I am comfortably satisfied, having regard to the evidence of MR, the additional complainants and PD that the prosecution proved the asserted tendencies in the appellant, regarding his sexual interest in teenage school girls and tendency to act upon that interest by initiating physical interactions with them when presented with the opportunity. In particular, it is immaterial that the area of the anatomy in which he touched NS and JS was the thigh; and thereby different to the area in which it is said he touched MR. Further, in relation to PD, considering her reactions, the conduct was more likely to have been motivated more by sexual attraction rather than an inappropriate attempt to build rapport.

99. Like the learned Magistrate, in respect to the Crown case concerning MR, tendency reasoning – that the appellant was sexually interested in teenage schoolgirls and had an associated tendency to opportunistically act on it – reinforces my view that the appellant’s touching of her breast was intentional.

100. I find no error in the Magistrate’s determination that the touching of MR’s breast was not accidental but rather was intentional.

101. This being the sole issue on appeal, the appellant’s appeal against the MR conviction fails.

The JW conviction

102. It is patently clear that insofar as the complaint evidence was concerned, JW did not disclose the touching of her breast at least until she provided her statement to police; and further, that statement to police was supplied two and a half years after the incident giving rise to the charge.

103. It is also patently clear that when carefully scrutinising JW’s evidence as he did, his Honour directed himself in terms of s 294 of the CP Act. In the circumstances, and when assessing the credibility of her evidence, his Honour indeed found that there were ‘good reasons’ why the complainant omitted to disclose to Nicole Broudou and/or Jo Wooster the touching of her breast when bringing her complaints to them at or soon after the date of the incident.

104. In doing so, and contrary to the appellant’s submission, as the trier of fact, the learned Magistrate was entitled to apply his life experience and, indeed experience as a judicial officer, when considering JW’s explanation for omitting to disclose that detail. JW indicated that the incident badly affected her. Imprudently, she said she took to drugs. His Honour displayed, with respect, a high level of sensitivity when contemplating the difficulties a 14 year old school girl may have when demonstrating how she was touched on her body by a male teacher to two women. A mature, even prudent, 14 year old girl might, objectively, have told the complaint witnesses of the specific detail of the appellant’s touching her breast. But as recent legislative provisions and case law authority has posited, a trier of fact has to take care not to be swayed by stereotypical misconceptions as to how a complainant of child sexual abuse is supposed to react; including the extent to which they may be expected to provide specific or complete details of the complaints of what they say occurred when presented with the opportunity. There was a suggestion that JW might have been in some way influenced by awareness of other complaints made against the appellant. However, there was no suggestion she was aware of the content of other complaints, most notably that of MR (who also said she was touched on the breast) which would have been indicative of the real possibility of ‘copycat’ behaviour.

105. There is, moreover, force to the Crown’s contention that JW did advert to the touching of her breast when she spoke to police in preparation for her witness statement; at a time when she understood the significance of her statement and the importance of telling police the truth. As the learned Magistrate noted, it is not uncommon in cases before the Local Court (and I would interpolate, this Court) where complainants “have to wait years and decades to tell others about being sexually touched…”. The delay in the circumstances was not very significant. (It was not suggested that the appellant incurred some forensic disadvantage as a result of it). It was not the case of complaining to police about some aspects of avowedly sexual misconduct, and at a subsequent time, adding other allegations of sexual misconduct.

106. It is not the case that the complaint evidence could be used for the purpose of proving the touching of her breast and the Magistrate did not so conclude. The complaint evidence did, however, provide a limited measure of support for her credibility and aided the prosecution case in that way. It was also significant that Ms Broudou supported JW’s own description of her behaviours around the time of complaint and opined on her discomfort. Such reactions were more consistent with touching of the breast in comparison to the excuse of incidental touching of the back and shoulders.

107. Further, to the extent that there were differences in detail as to how JW described in Court and in her police statement the precise way in which she was touched, and as his Honour had earlier directed himself in accordance with s 293A of the CP Act, these were not fatal to the prosecution’s obligation to prove all of the elements of the offence. I agree with the Crown’s submission that the complainant’s reference to being touched on her breast was supplementary to earlier allegations she had made about his touching her back or shoulders.

108. It can be accepted that the complainant’s account posited that the appellant had brazenly and opportunistically offended in a public space. I reiterate what I said about tendency evidence which nullified the weight to be accorded to the appellant’s submission about its occurrence being inherently improbable.

109. Further, although to differing degrees, the evidence of MR (that she was touched on her breast) and the two other complainants (that they, respectively, were touched by the appellant on their thighs) was circumstantial evidence that aided the Crown case. They manifested a tendency, in particular in the appellant, to touch intimate parts, or other parts of the body near intimate parts, of the female teenage anatomy. As I explained earlier, after considering the evidence as a whole in relation to this charge and being satisfied that I am that the touching of MR and the other complainants occurred, I use the tendencies to further reinforce my view that the appellant had grabbed JW on her breast; recognising that the tendencies alone are insufficient to prove that guilt.

110. The appellant emphasised the way that the prosecutor had opened in the Local Court hearing, that he was alleged to have grabbed JW’s breast. It is true that this is an allegation of a different level than a relatively fleeting (but intentional) touching of it (such as the Crown’s case in relation to the offending against MR). But it was not clear to me how this was material in circumstances where it was not suggested, at least in this appeal, that the complainant had given different accounts of precisely how the appellant had touched her breast.

111. The learned Magistrate was also entitled to form firm and positive views of the complainant’s demeanour and general presentation. Contrary to the appellant’s submission, I do not find the suggested criticisms raised on his behalf as attaining the level of “incontrovertible facts, undisputed facts and other relevant evidence”. I do not agree that, in reasoning which spanned multiple pages, the Magistrate allowed himself to be overwhelmed by a positive view of this complainant’s demeanour so as to impede the reasoning process.

112. I do not consider that error has been demonstrated in the Magistrate’s acceptance that the Crown proved touching of the complainant’s breast beyond reasonable doubt. Given the way the appellant fought this case, it follows that the charge concerning JW was also made out to the requisite standard of proof.

113. The Court orders that the appeal against convictions be dismissed. The convictions are confirmed.

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Decision last updated: 19 December 2024