R v Schippani
[2012] ACTSC 108
•July 13, 2012
R v JOHANN ARNOLD SCHIPPANI [2012] ACTSC 108 (13 July 2012)
CRIMINAL LAW – PARTICULAR OFFENCES – act of indecency without consent –nature of act of indecency where physical contact acceptable in the circumstances – accused providing Brazilian wax procedure to complainant – whether consent relates to the physical act or to the act of indecency – where act “objectively does not unequivocally offer a sexual connotation” – requirement of evidence of accused’s intention to obtain sexual gratification.
CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – act of indecency without consent – complainant’s failure to assess duration of events accurately, or minor discrepancies in evidence relating to insignificant or peripheral matters, need not damage credibility – later additions to detail of complainant’s complaint, possibly with knowledge that police were “underwhelmed” by initial complaint, may damage credibility – accused’s failure, at police interview about alleged act of indecency, to be precise about business arrangements between him and his partner not relevant to credibility.
STATUTES – ACTS OF PARLIAMENT – interpretation – irregularity in treatment of consent in sexual offences against young people under s 67(1) of the Crimes Act1900 (ACT) – whether s 67(3) of the Crimes Act limits s 67(1) to cases of knowledge of, rather than recklessness as to, lack of consent.
Evidence Act 1995 (Cth)
Defence Force Discipline Act 1982 (Cth)
Crimes Act 1900 (ACT), ss 54, 55(3), 60, 61(3), 67, 67(1), 67(3)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, s 40
Supreme Court Act 1933 (ACT), s68C
Criminal Procedure Act 1986 (NSW), s 33(2)
The Criminal Code (WA), s 324D
Fleming v The Queen (1998) 197 CLR 250
Ibbs v The Queen [1988] WAR 91
Jones v Chief of Navy [2012] ADFDAT 2
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
R v E (1995) 89 A Crim R 325
R v Harkin (1989) 38 A Crim R 296
R v Pahuja (1987) 49 SASR 191
R v Prasad (1979) 23 SASR 161
ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001)
No. SCC 348 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 13 July 2012
IN THE SUPREME COURT OF THE )
) No. SCC 348 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
JOHANN ARNOLD SCHIPPANI
ORDER
Judge: Penfold J
Date: 13 July 2012
Place: Canberra
THE COURT FINDS THAT:
On the charge of committing an act of indecency without consent, Johann Schippani is not guilty.
THE COURT ORDERS THAT:
Appendix B of these reasons is not to be published except to the prosecution and the accused.
Background
The accused was arraigned before me on the charge that:
On the 11th day of December 2008 at Canberra in the Australian Capital Territory JOHANN ARNOLD SCHIPPANI committed an act of indecency upon [the complainant], without her consent, and being reckless as to whether she consented.
The charge arose under s 60(1) of the Crimes Act 1900 (ACT), which at the time of the alleged offence was as follows:
A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
The accused pleaded not guilty to the charge.
Information identifying the complainant
This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.
In these reasons, therefore, I do not refer to the name of the complainant, or to the name of her friend who gave evidence, because publication of the friend’s name might identify the complainant. I have added an appendix identifying those witnesses (Appendix B) to these reasons, which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.
Trial by judge alone
Election
The accused elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone.
The judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts (s 68C(1)).
At the time of this trial, s 68C(3) required the judge to take into account any warnings, directions or comments that would, under a Territory law or the Evidence Act 1995 (Cth), have had to be given or made to a jury in the case.
The judge must provide a judgment setting out the principles of law she applied and the findings of fact on which she relied (s 68C(2)). In Fleming v The Queen (1998) 197 CLR 250, the High Court considered s 33(2) of the Criminal Procedure Act 1986 (NSW), which was in relevantly identical terms to s 68C(2), and said at [28] that:
whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
As noted, in a judge-alone trial the judge must now give herself certain directions equivalent to those that would be given to a jury. Those directions include general directions relating to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and specific directions that may be required in the particular trial. The general directions I have given myself in this trial are set out in Appendix A, while directions specific to this trial are mentioned at the appropriate point in this judgment.
Background to the charge
On 11 December 2008, the complainant, an existing customer of the Aviva Beauty Salon in Gungahlin, went to the salon for treatment including a Brazilian wax. On that evening the treatment was provided by the accused, who was the partner of the salon owner and regularly worked in the salon. On her return home that night the complainant contacted a friend and described her experience at the salon. About a month later she made a complaint to the police about the accused’s behaviour in the salon, and in due course the current charge was laid.
General comments about evidence
The complainant gave evidence for several hours over two days. Her evidence was clear and concise and she did not appear to be exaggerating her experience. She impressed me as an honest witness doing her best to give accurate evidence, and maintained that presentation throughout extensive cross-examination about the incident giving rise to the charge, as well as much cross-examination about associated issues such as her reporting of the incident. She answered questions readily (except on the few occasions when she did not recognise a statement made to her by counsel as a question), gave no impression that she was assessing the import of her answers before giving them, and resisted the temptation at many points to claim a clearer recollection than she really had, or to embroider the details of her encounter with the accused in response to persistent questioning. She became distressed at one point in her evidence, but she showed no signs of frustration, resentment or anger at defence counsel’s repeated challenges to her recollection.
At the end of the prosecution case, counsel for the accused asked me to give myself a Prasad direction on the ground that “the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it” (R v Prasad (1979) 23 SASR 161 at 163 per King CJ). I declined because at that point I had heard nothing that appeared to undermine the complainant’s credibility or reliability to the extent described in R v Pahuja (1987) 49 SASR 191 at 218, by Cox J as follows:
The typical occasion for [a Prasad direction] in a sexual case will be the discrediting of the complainant in the witness-box – admitted lies or plain contradictions or vacillations – or important contradictions with other Crown witnesses.
In the defence’s closing submissions more specific challenges were made to the complainant’s credibility, and the reliability of her evidence was challenged in several ways (discussed at [37] to [51] below).
The accused gave sworn evidence, which of course he was not obliged to do. He admitted to a vague recollection of the complainant when he saw her give evidence, but denied any recollection of providing the relevant treatment to her on the night of the incident. This was understandable, given that the accused did not become aware of the complaint until some five weeks after the incident complained of. For that reason, however, most of his evidence was to the effect that particular events alleged could not or would not have happened because that was not his practice or because he had never done such a thing. Despite this unsurprising vagueness, the accused also gave evidence in a clear and straightforward manner.
The evidence
The undisputed evidence in this trial, including from the accused and a beautician experienced in providing, and training others in the provision of, Brazilian waxes, was that a Brazilian wax is a very intimate procedure, closer to a medical procedure than to most forms of beauty treatment. It involves the removal of hair from the area of the vulva, including any hair growing on the labia majora and the labia minora, and from the perineum. Most of the hair removal is achieved through waxing, but tweezers may be used for stray hairs. Waxing may cause temporary skin irritation, and it is common for the beautician to apply some kind of soothing lotion after the waxing, using his or her hands to do so. Clients are usually offered a disposable G‑string to wear, which the beautician pushes aside as necessary for each part of the treatment. The accused said that 90% of his clients used the disposable G-string, while the remainder either wore their own underwear or dispensed with any form of underwear.
The complainant’s evidence
The complainant’s evidence at trial was of two kinds. Her specific complaint was that, at two stages of the procedure, the accused had rubbed parts of her genital area for longer than was required for the procedure being administered. Other evidence was of incidents during the procedure that were said to have created a sexual undertone to the procedure, a sense of fear on the complainant’s part, and a sense that she was vulnerable to the intentions of the accused. The matters alleged included that:
(a) the accused asked her to remove the disposable G-string “as he found it easier to perform the wax without it”;
(b) the accused stated that “he preferred women to be bald in [the pubic] region”;
(c) the accused asked her about whether she had participated, or would participate, in a “threesome”;
(d) the accused left the room during the procedure and told her, on his return, that he had locked the door so no-one could get in (the complainant already believed that they were alone in the salon) and this made her feel nervous, and “like anything could happen to me”;
(e) the accused complemented her on the beauty of her vagina (which made her feel very uncomfortable) and said he wished he had a camera so that he could take photos so that she could see its beauty too;
(f) while she was on her hands and knees towards the end of the procedure, the accused rubbed her from her perineum up to her labia minora (the complainant had a captioned diagram on which she marked the relevant area; that marked diagram became an exhibit); she said that she had never experienced that kind of touching in that kind of area in the context of the Brazilian procedure;
(g) the rubbing was “like he was caressing it ... for an extended period of time, like he was enjoying it”;
(h) she then turned onto her back, and the accused put lotion or cream on her pubic region; he continued to rub it “for an extended period of time”, which she clarified as “a few minutes”, and she felt “he was trying to get a reaction from me ... like he was attempting to stimulate me”;
(i) while the application of lotion at the end of waxing was usual, it would usually involve “a quick rub that would be no more than a few seconds”;
(j) when she got onto her hands and knees, the accused told her not to tell his partner what he had done because he wouldn’t do “this” for her; no attempt was made in examination in chief to clarify what the complainant understood by this remark, but in cross-examination the complainant agreed that she believed it was an attempted cover-up: that, in counsel’s words, “he had done something to [her] that was wrong and that he wanted [her] not to speak to [his partner] about it because it would cause him embarrassment or get into trouble”;
(k) at the end of the procedure, the accused recorded the complainant’s next appointment using a term of endearment derived from her name (I refrain from using the particular word because the complainant’s first name would be readily identifiable from that word), and said that he felt that there was “a connection”, and a “new friendship formed”, between them; and
(l) she made the later appointment, for an underarm wax, without any intention of keeping the appointment but because she didn’t want the accused to think that she was frightened or scared and she was pretending that everything was fine.
The complainant said that when she got home after leaving the salon, at about 9.30 pm, she rang a friend, K, and told her what had happened and that she (the complainant) was very shocked.
The complainant did not approach police until mid-January 2009 (nearly five weeks after the waxing treatment).
In cross-examination the complainant remembered, prompted by counsel about whether the accused had removed any clothing or shown her any part of his body, that early on during the procedure he had pulled his shorts down a centimetre or so to show her that he also waxed “in that area”, and that she had mentioned this to her friend K. The complainant explained that she had not mentioned this to the police because she had only recalled it when counsel had asked her the question mentioned above.
The complainant said that, when she left the salon, the front door was not locked.
Other prosecution witnesses
The prosecution called three other witnesses, being K (a friend of the complainant), Kate Larkham (a beautician), and the police officer who had taken the complainant’s statements.
The complainant’s friend K
K said that she had been friends with the complainant for six or seven years before the trial, that the friendship was “quite good” and that they were “reasonably close”. K confirmed that the complainant had telephoned her about 9.30 pm on the evening in question, and said that the complainant was in shock and had described her experience at the beauty salon. K said that the complainant had mentioned the accused playing loud dance techno music in the salon and telling her he had locked the door to the main street, causing the complainant to panic because she was alone “in the middle of nowhere with this man” and with loud music. K said that the complainant had reported that:
(a) the accused had said that he and his partner were “into threesomes” and implied that the complainant would be welcome to have one with them; and
(b) he had shown her that the top of his pubic area had been waxed.
K also said that the complainant had told her that what would normally have taken 30 to 40 minutes had taken roughly an hour and a half. K agreed that the complainant had told her that the accused had pulled his pants down “to the top of it” but that the complainant had not seen his penis. K did not report any mention of a tattoo.
Kate Larkham
Kate Larkham described herself as a beauty school educator and co-ordinator. She taught at the Canberra Beauty Academy in Mitchell. She claimed to be an “advanced beauty therapist” qualified by the Elleebana School of Beauty Therapy in Phillip in the ACT. She said she had been practising as a therapist since 1999, and also had a Certificate IV in training and assessment. The Academy at which she taught was a registered training institution (although she was vague about the nature of that registration) that offered a Certificate IV in beauty therapy or a Diploma of Beauty.
Ms Larkham’s notes on Brazilian waxing were admitted into evidence without objection.
Ms Larkham described the procedure she recommended for removing hairs from the anal region, which involved the client lying on one side with one leg pulled back towards the chest area. A client who was “very hairy” might need to lie flat on his or her stomach.
Ms Larkham said that she did not teach the technique that involved the client being on all fours, including because there were “more dignifying” techniques, but she conceded that others in the business did use that method. She said that the time involved in applying lotion to the genital area would be “30 seconds maximum”, and that this was done with “just a quick wiping motion ... It’s more just to pop on the skin and allow the skin to stop stinging”. The only reason she could think of for taking longer than 30 seconds would be if some wax had been left behind. Ms Larkham said that the training she provided included appropriate topics of conversation with clients, which did not include politics, religion or sexual activities.
Constable Byrne
Constable Erin Byrne, who took the complainant’s statements, collected a copy of the salon’s appointment book, which became evidence in the trial. That book showed an appointment for the complainant at 8.00 pm on 11 December 2008, and an appointment at 7.30 pm on 23 December 2008 for a client identified only by the term of endearment that the complainant said the accused had used to record her next appointment. The same word was also used against the complainant’s appointment for 11 December, but in a far right column of the page that appeared not to be used at all in relation to most appointments.
Constable Byrne was asked about the description in the 11 January 2009 statement of the act complained of by the complainant, which was read onto the record as:
He then proceeded to use a lotion on my pubic and vagina area. The use of this lotion is standard procedure but when he was putting it on he began rubbing my vagina. He was doing this quite firm. He was masturbating me. He did this for several minutes.
Constable Byrne was cross-examined as follows:
Now, did you, during either meeting with [the complainant] ‑ that is on 11 or 16 January ‑ press her for detail in relation to that touching of the vagina that went on for a couple of minutes, the passage I’ve just read?‑‑‑Yes.
Did you press her for detail?‑‑‑I asked her to explain what she meant.
Right, and that was the best that you got, so far as the statement was concerned?‑‑‑Yes.
So you asked for detail, as much detail as she was prepared to offer and you faithfully recorded everything that she said and that was the best that you got?‑‑‑Yes.
The accused’s evidence
In his evidence, the accused:
(a) denied that he ever asked customers to remove their G-strings;
(b) denied having clients on all fours for any part of the Brazilian waxing procedure;
(c) denied any inappropriate touching of the complainant;
(d) could not recall whether he applied lotion to the complainant, saying that 90% of his clients would get lotion;
(e) did not dispute any of Ms Larkham’s evidence (at [29] above);
(f) denied asking the complainant about participation in “threesomes”, asserting that he had never engaged in a “threesome” himself;
(g) denied making comments about the beauty of the complainant’s vagina and his alleged wish to take a photograph of it, saying: “everybody has a mobile phone these days. I could have taken a photo like that if it was ... applicable”;
(h) denied locking the door, and said that the outside door, once locked, had to be unlocked before it could be opened;
(i) demonstrated to the court that he had a distinctive green tattoo running down his torso from about his waist, and said that it ran down his leg towards his knee;
(j) denied that he asked the complainant not to tell his partner what he had done for the complainant, and denied the prosecutor’s suggested explanation for making such a request (that his partner would not have approved of the technique he had used); and
(k) explained that he often abbreviated clients’ names, pointing to “Jess”, “Sam” and “Mar” in the appointment book.
The accused said that he did not have a criminal record, and that he had never been the subject of another complaint about inappropriate touching during the administration of a Brazilian wax.
Assessment of the evidence
This trial is one in which the complainant’s claims made in sworn evidence have been unconditionally denied by the accused, also in sworn evidence.
In a case of “oath against oath”, I remind myself, the question is not who I believe, but whether, having heard the accused’s sworn denials, I can remain satisfied beyond reasonable doubt about the claims of the complainant. In R v E (1995) 89 A Crim R 325, Hunt CJ at 330 said:
It is commonplace for the issue in cases such as the present to be described as one of word against word. Sometimes it is unavoidable. But it is essential that, when such a description is given, the judge ensures that the jury understands that it is not a question of making a choice between the evidence of the Crown’s principal witness and that of the accused. The best approach, in addition to saying just that, is to tell the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding the (sworn) denial by the accused, and that they do not have to believe that the accused is telling the truth before he is entitled to be acquitted. (emphasis in original)
Challenge to the complainant’s credibility
The complainant’s credibility was challenged in several ways. Some of those challenges seemed to me to have little substance.
Incorrect estimates of the duration of events
For instance, the complainant’s story was challenged by reference to the timing that she alleged for her treatment at the beauty salon.
In her initial evidence she said that the waxing procedure (including underarms) had taken about an hour and 15 minutes, while her usual experience for the two procedures was about 40 to 45 minutes.
External evidence seemed to leave a maximum of about an hour for the procedure, between the complainant’s evidence of arriving for an 8.00 pm appointment and electronic records showing that the till had been closed and the day’s takings balanced at 9.07 pm, at a point when the accused appeared on the complainant’s evidence to be the only person in the salon.
It was not clear how the complainant had reached her original estimate, but her own evidence of having done some grocery shopping at a large supermarket after she left the salon, and driving 4 or 5 km home, arriving in time to telephone a friend at about 9.30 pm, is in fact consistent with her having left the salon around 9.00 pm.
Given her basic complaint that certain aspects of the waxing procedure had been inappropriately prolonged in an environment sexualised by the accused’s comments, her initial claim that the procedure took far longer than usual had some evidentiary significance. However, the specific claims that the accused had prolonged some parts of the procedure related to periods of up to a couple of minutes. Even the roughly 50 to 60 minutes available by reference to the objective evidence would have allowed plenty of time for the procedure to have been undertaken inappropriately as the complainant alleged. That is, there would have been no benefit to the complainant in deliberately exaggerating the time taken by the procedure, especially given that her own evidence of the grocery shopping and the 9.30 pm phone call would have called such an exaggeration into question. It is far more likely that, having experienced a procedure that does seem to have taken longer than usual, she had miscalculated the relevant period by failing to take account of other events during the period.
It is hard to see why the complainant would have bothered to exaggerate or lie about relatively unimportant matters that might have been the subject of independent evidence, instead of focussing on the central allegation of inappropriate behaviour during the waxing procedure, an allegation that could have been far more easily embellished without risking the production of objective evidence to the contrary.
Alleged discrepancies in evidence about insignificant or peripheral matters
The reliability of the complainant’s evidence was also challenged by reference to discrepancies in her evidence about insignificant or peripheral matters, such as initial events when she first visited the police station (for instance, at what points during the visit her mother was with her, which police officers she spoke to, and how many different rooms she was taken into). The complainant’s evidence that her mother was with her while the police officer was taking notes but not while she made her statement, and the police officer’s evidence that the complainant’s mother was with her when the police officer first met the complainant but not when the complainant first made her statement, was described in submissions by defence counsel as the complainant saying her mother “was in the room” but the police officer denying that. That description is not in my view accurate or fair.
In any case, any “discrepancies” of this kind that could be identified on a proper analysis of the evidence might reflect a poor memory for unimportant matters, or might in fact simply reflect inadequate or confusing cross-examination. They would not in my view establish either that the complainant was at any point deliberately not telling the truth or that her memory for important things was unreliable. If anything, a challenge based on such matters suggested a degree of desperation in the defence.
Additions to complainant’s story
On the other hand, the development of the details of the complainant’s complaint does raise questions about her credibility.
In cross-examination, the complainant initially said that after making her original complaint on 11 January 2009, she had returned to the police station on 16 January to sign the statement, but she denied that she had added to her statement at that point, in particular denying that she had added details to her allegations after the police were, in defence counsel’s words, “somewhat underwhelmed” by her initial complaint. However, when shown two separate witness statements made by her and dated several days apart (the second statement being an expanded version of the first statement), she had to concede that the later statement contained some material that was not in the earlier statement. For instance, only the later statement contained the claim that the wax usually took 30 minutes and on this occasion had taken one and a half hours. The claim that the accused had written in the salon appointments book a term of endearment based on the complainant’s name was also added in the second statement; on the other hand, the use of the particular word, at least in the appointments book, was confirmed by the evidence of the appointments book itself, and there was no evidence suggesting that the complainant had acquired this information by the time of her second statement otherwise than by remembering it.
Constable Byrne gave evidence that the complainant had contacted her after making the first statement to say that she had recalled some details she would like to add into her statement. In cross-examination, Constable Byrne agreed that at some unspecified time she had formed the view that there was not sufficient evidence to proceed against the accused, and that she had then put the matter in for review by senior officers. She further agreed that she might have communicated those facts to the complainant.
Conclusions
I do not consider that, separately or even taken together, either the complainant’s overestimate of the time taken by the procedure or her confusion over certain peripheral details of her dealings with the police operated to damage her credibility.
However, her evidence about the making of two police statements, and about the contents of those statements, is more concerning, especially in the context of the chronology of the complaints process, which was as follows:
(a) the complainant’s first witness statement was made late on 11 January 2009 and signed shortly after midnight (that is, on 12 January);
(b) on 15 January 2009 police interviewed the accused;
(c) at some point the complainant told the investigating police officer by phone that she had remembered more details of the incident complained of, and on 16 January she went to the police statement to make an amended statement; and
(d) at some point the complainant may have become aware that police were concerned about the insufficiency of the evidence that she would be able to give.
It is possible that the complainant genuinely remembered extra details of her encounter with the accused in the days after she made her initial police statement, and that her denial of making two statements reflects nothing more than the passage of time (more than two years) between the making of the statements and the trial. On the other hand, it is also possible, given the chronology set out above, that defence counsel’s suggestion is correct that the complainant had expanded the details of her allegations only after believing that the police were, in defence counsel’s words, “somewhat underwhelmed” by her initial complaint.
Challenge to the accused’s credibility
It is appropriate to record that an attempt by the prosecutor to damage the accused’s credibility came to nothing. The prosecutor extracted specific evidence from the accused about the structure under which he and his partner Rebecca operated the beauty salon concerned, and compared this with the information he had given about that matter when he was interviewed by police after the complaint was made to them. At an early stage in the police interview, there were the following exchanges:
Q36 Your occupation?
A36 A business developer in the beauty salon.
Q37 And what salon is that?
A37 Aviva Beauty Salon.
Q38 And your marital status?
A38 is it called de facto?
Q39 De facto, you’re living with a partner for more than twelve months.
A39 Actually four years.
Q40 And her name?
A40 Rebecca HOWARD. We own the shop together.
...
Q49So, you—as you stated previously to me Johann, that you’re currently employed by Aviva Beauty Salon and Solarium.
A49 We own the shop.
Q50 How long have you worked there?
A50 In that particular shop over a year.
Q51 What is your job title?
A51My job title is, I’m a business owner and we do everything from a spray tans, to, you know spray tans, waxing, eyebrows, facials, massages, et cetera.
In court, the prosecutor cross-examined as follows:
In 2009, January 2009, Rebecca Howard was the only person registered as the owner of Aviva Salon?—Yes, because she had the Aviva Beauty Salon, I had the other business, and that’s how we split it up for taxation purposes.
Right, but you said that you were an owner of that business to police, didn’t you?---Yes, but because she’s my partner. She was owner of my other business too, that was—we have—if you have a look we have a shared bank account.
Yes?---We don’t—everything goes into one thing.
All right, but you weren’t entirely accurate were you when you told police that you were the business owner?
...
I’m asking you now why is it that you had not had your name put on the business if you owned it jointly with her?---It’s like the car, we own the car together but my name is not on her car and her name is not on my car, but she drives it whenever I want to drive it and it’s the same thing.
In summary, in answer to contextual questions being asked by police, the accused did not go into details about the exact arrangements for the ownership of the business in which he was working, but gave some answers that from a particular technical perspective were inaccurate. He was, however, being questioned by police investigating a sexual assault allegedly committed by him while working in the business, not by the tax office or the corporate regulator. The implication that his imprecise answers about the business structure damaged his credibility seemed to me to be far-fetched at best, certainly time-wasting, and possibly unfair. His answers about this issue did not in my view provide any reason at all for rejecting his evidence about events in the beauty salon.
Nature of act of indecency
This is a case in which the conduct complained of is inherently highly susceptible to misinterpretation, and it is possible that the two participants in an incident of this sort could quite honestly report entirely different perceptions of how the beauty treatment was administered. This gave rise to various difficulties.
The physical contact complained of in this case was apparently acceptable in the circumstances, except that it went on for what seemed to the complainant to be longer than necessary. The prosecutor quoted from R v Harkin (1989) 38 A Crim R 296 (Harkin) at 301 (Lee J, with whom Wood and Mathews JJ agreed), that:
if the assault alleged is one which objectively does not unequivocally 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.
The prosecutor then submitted, however, that in this case the allegedly extended intimate touching could be, in effect, separated from the routinely intimate but non‑sexual Brazilian waxing procedure so as to constitute an act that unequivocally had a sexual connotation, meaning in turn that there was no need for the prosecution to establish an intention to obtain sexual gratification.
I am not convinced that such a separation can be achieved where the legitimate duration of the intimate procedure is so difficult to pin down and where, in normal circumstances, the assessment of the actual duration of the relevant steps in the procedure is likely to be entirely subjective rather than measured in any reliable way. Even where an unusually extended process could be objectively established, it might be necessary for the prosecution to negate any non-sexual explanation for that process being conducted in that way.
The complainant’s subjective evidence that parts of the waxing procedure went on too long, and her necessarily subjective description of the accused’s touching as “caressing” her, are not in this case sufficient to establish that there was, quite separate from the waxing procedure, an act that carried “unequivocally” sexual connotations.
In this case, only the allegation that the accused repeatedly introduced topics with sexual content into the conversation during the beauty treatment (including by turning his shorts down about a centimetre to show that he also waxed “in that area”), if established, could have provided any basis for the claim that the touching complained of constituted an act of indecency because it involved an intention by the accused to obtain sexual gratification.
For two reasons, I am not satisfied that the complainant’s evidence of the alleged sexualisation of the procedure is sufficient to establish the necessary intention on the part of the accused.
First, even if I accepted that all the comments were made exactly as described by the complainant, the resulting creation of an undoubtedly sleazy atmosphere, in the circumstances of her undergoing an intimate procedure in an otherwise deserted salon, would not necessarily have provided the accused with any sexual gratification as such. I do not think it can be said that every instance in which one person makes another person feel uncomfortable by making a comment of a sexual nature involves an intention by the first person to obtain sexual gratification. The person making the comment may have no idea that his or her words make the other person feel uncomfortable; alternatively, he or she may be trying to make the other person uncomfortable, but for reasons quite unrelated to sexual gratification (for instance, a simple dislike of the other person, a non-sexual liking for making other people feel uncomfortable, or a wish to establish a position of superiority in a context such as the workplace).
In my view, even if the accused said exactly what the complainant reported, it would not be enough, having regard to the very limited and subjective evidence of what the accused did (apart from what he was properly doing), to establish an intention to obtain sexual gratification rather than, for instance, simple insensitivity on the accused’s part.
Nor am I satisfied to the required degree that the accused did say everything the complainant asserts.
The accused’s possession of a distinctive green tattoo that would have been revealed by any exposure of his skin around the pubic area was not mentioned by the complainant (of course, the tattoo could have been obtained since the alleged offence, but there was no cross-examination about the age of the tattoo). This casts doubt on the claim that the accused said, while demonstrating the assertion, that he also waxed his pubic area.
The accused’s comment in evidence, that had he really wanted to take a photograph of the complainant’s vagina a mobile phone would have been available, is hard to dispute; on the other hand, it would also be hard to dispute the proposition that men bent on seduction of any kind do not always confine themselves to strictly rational comments.
However, I also have some doubt that, if the accused had wished to compliment the complainant on the appearance of her genitalia, he would have used the word “vagina”. Whatever other parts of her anatomy the accused was observing during the waxing, it seems unlikely that he was observing the complainant’s internal organs such as her vagina. It is apparent from the complainant’s police statement (at [31] above) that she used the word “vagina” to describe her genital area more generally, but there is no evidence before me of such usage by the accused. Indeed, the transcript of the accused’s police interview suggests that “vagina”, and other explicit descriptions of the female genitalia, are not words he routinely uses. Despite the repeated use of “vagina” in the questions put by police officers, the accused clearly, at least in that context, preferred euphemisms such as “private parts”, “you know what I mean”, and “there”. The following exchange, when the accused has been asked by one of the interviewing officers, to describe the waxing process, is a striking example of this:
A65: ... We then apply the wax, first baby powder because otherwise it sticks then we apply probably around five to six centimetres strips. It’s a soft wax and then we lift it with the finger or with the stick if it can’t be lifted and it gets ripped off. And we do the one side, then it gets pushed over to the other side. She does the same thing with the other leg. We do the inside, we do the sides and then she has to [sic] disposable, she will move it down to approximately the line where the female, what do you call it, the ---
Q66: You’re telling the story.
A66: I know, I don’t want to say it, it sounds a little bit rude, where the ---
Q67: It’s an investigation and we need to know ---
A 67: Where the lips starts, the lip line starts, they push it down to that line, we have to ...(indistinct)... wax on there and with two, three strips on there and it takes between twenty to thirty minutes to do and it’s done.
These circumstances cast doubt on the claim that the accused told the complainant that she had a beautiful vagina and that he wished he had a camera so that he could take a photograph of it.
I cannot be satisfied beyond reasonable doubt that the accused made the comments of a sexual nature alleged by the complainant.
Conclusions
Most of the attacks on the complainant’s general credibility were insubstantial. Even the more significant challenge based on her making of a second witness statement with new allegations after the accused was interviewed by police and possibly after the complainant had been told that police considered that there was insufficient evidence against the accused is not conclusive in painting her as a witness without credibility. On the other hand, the fact that the complainant has not been comprehensively discredited is far from establishing beyond reasonable doubt that the accused committed an act of indecency on her, especially given my doubts about particular parts of her evidence (at [65] to [68] above).
It may well be that, by the time the complainant returned home after her beauty treatment, she genuinely felt that she had been in some way inappropriately treated by the accused. However, for the reasons set out at [56] to [69] above, and noting also:
(a) the substantial potential for misunderstanding in the administration of the Brazilian waxing treatment;
(b) the accused’s sworn denials of the accusations made by the complainant;
(c) the prosecutor’s unsuccessful attempt to damage the accused’s credibility; and
(d) the accused’s good character as evidenced by his lack of a criminal record and his unchallenged assertion that he has never been the subject of a complaint about inappropriate touching during the administration of a Brazilian wax or more generally;
I cannot be satisfied beyond reasonable doubt that the accused committed an act of indecency, and therefore cannot be satisfied beyond reasonable doubt that he committed the offence with which he has been charged.
Because I have not been satisfied beyond reasonable doubt that the accused committed any act of indecency, I have not needed to address the other elements of the offence, namely whether the complainant consented to an act of indecency and whether the accused was reckless as to whether she consented.
Issues relating to consent
Because I have not needed to consider issues of consent, I have not had to reach any conclusions about s 67 of the Crimes Act, which was mentioned at some length in submissions. However, there are several comments that should be made about that section, which provides that a consent to sexual activity is “negated” in certain circumstances seen as affecting the nature of the consent. Section 67 was at the time of the alleged offence (and is still) as follows:
(1)For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
(a)by the infliction of violence or force on the person, or on a third person who is present or nearby; or
(b)by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
(c)by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
(d)by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
(e)by the effect of intoxicating liquor, a drug or an anaesthetic; or
(f)by a mistaken belief as to the identity of that other person; or
(g)by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h)by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
(i) by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j)by the unlawful detention of the person.
(2)A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3)If it is established that a person who [sic] knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
The sections referred to in s 67(1) deal with the following offences:
(a) sexual intercourse without consent (s 54);
(b) sexual intercourse with a person under the age of 16 (s 55), if the person was at least 10 years old and the accused person was no more than two years older than the person (s 55(3)(b));
(c) an act of indecency without consent (s 60); and
(d) an act of indecency on or in the presence of a person under the age of 16 (s 61), if the person was at least 10 years old and the accused person was no more than two years older than the person (s 61(3)(b)).
No negation of consent where accused believed complainant to be over 16
I note first a curiosity in the treatment of the sexual intercourse and act of indecency offences in relation to persons under the age of 16. Section 67 is relevant to those offences because consent is a defence to a charge in limited circumstances, one of which is where the complainant was over the age of 10 and there was no more than a two‑year age gap between the complainant and the accused (these are the cases covered by ss 55(3)(b) and 61(3)(b)). The other circumstance in which consent is a defence is where the accused believed on reasonable grounds that the complainant was over the age of 16 (ss 55(3)(a) and 61(3)(a)) – but s 67 does not apply in those cases to “negate” a consent or ostensible consent given in the circumstances specified in s 67(1). It is hard to see why an accused whose defence is a belief on reasonable grounds that the complainant was over 16 may be able to rely on a “consent” of a kind that would have been “negated” by s 67 if the complainant had in fact been over 16.
What does consent relate to?
Defence counsel submitted that, in a case such as this, the question was whether the complainant consented generally to the physical act that was said to constitute the act of indecency, and that the nature of the particular act (that is, whether it constituted an act of indecency because of the purpose or intention with which it was done) was irrelevant to consent. The proposition seemed to be that, in relation to a charge of committing an act of indecency without consent, the test for consent is whether there was consent to the act as such rather than whether there was consent to the act of indecency. Counsel did not cite any authority for the proposition.
Having found (at [71] above) that no act of indecency has been established beyond reasonable doubt, there is no need to resolve this question for present purposes.
However, I note that counsel’s proposition seems to be inconsistent with the words of ss 60, 61 and 67(1). In each case the consent required is to the committing of an “act of indecency”, not to the committing of a particular act that may or may not be an act of indecency depending on context and purpose.
The prosecutor referred me to the case of Ibbs v The Queen [1988] WAR 91, in which the Western Australian Court of Appeal considered the case of an accused charged with sexual penetration without consent. The evidence raised the possibility that the complainant had initially consented to sexual penetration but had then withdrawn her consent, and the Court (Burt CJ, Brinsden and Smith JJ in separate judgments) considered the issues arising from a withdrawal of consent during sexual penetration. Their Honours noted that the then relatively recent amendments of The Criminal Code (WA) had inserted s 324D, which created an offence of sexual penetration without consent, and held that an offence would be committed if an initial consent to penetration was withdrawn after penetration had been achieved and the accused had not withdrawn immediately after becoming aware that there was no continuing consent. However, I do not see that this decision has any direct relevance to the issue raised by defence counsel, which is not whether a consent can be withdrawn at any point but whether a consent to an act that is not inherently an act of indecency is or includes a consent to the act being done or continued in circumstances that render it an act of indecency.
I am not convinced that, in relation to an act which “objectively does not unequivocally offer a sexual connotation” (Harkin at [56] above), consent to the ostensibly non-sexual act itself, by law, includes consent to whatever sexual gratification the person performing the act may obtain from it (although clearly, if a person can obtain sexual gratification from an ostensibly non-sexual act without this becoming apparent to anyone, then the law is unlikely to have a role in the matter).
Operation of s 67(3)
Finally, I note the question that also arose in this trial about the operation of s 67(3) in relation to consents “negated” by s 67(1).
One intended effect of s 67(1) seems to be that an ostensible consent to the relevant sexual activity is not a real consent if the giving of that ostensible consent is caused by any of the actions or circumstances described in paras 67(1)(a) to (j). Section 67(1) thus enables the requirement of an absence of consent to be established, despite an ostensible consent, in appropriate cases.
In 2001, the ACT Law Reform Commission (LRC) considered s 92P of the Crimes Act (now s 67) in its Report on the Laws Relating to Sexual Assault (Report No 18 (although incorrectly printed as No 17)). The LRC noted at [184] that the section may also enable an “actual consent” to be deemed not to have been given in the circumstances covered by the section, but that the intended meaning of “negating” consent appears to be different for different paragraphs of s 67(1) – for instance, the LRC said, the reference to force and threats (s 67(1)(a), (b), (c) and (d)) may suggest negation of what was only ever an apparent consent (because it was not free or voluntary), but the reference to the abuse of a position of trust (s 67(1)(h)) suggests negation of an actual consent.
The question that was raised in this trial, however, was whether s 67(3) confines the operation of s 67(1) to cases in which the accused can be shown to have known that the ostensible consent was caused by one of the actions or circumstances described in paras 67(1)(a) to (j) (and is therefore deemed to know that the complainant did not consent), or whether s 67(1) also applies where an accused person may have been reckless about consent. That is, does s 67(1) apply where any ostensible or actual consent would have been negated under that provision (thus establishing the objective absence of consent) but where the accused’s state of mind cannot be shown to have involved knowledge so as to invoke the operation of s 67(3). If s 67(1) still applies in such a case, this would leave the question of the accused’s state of mind (specifically, whether he or she was reckless about consent) to be addressed by other evidence, rather than by a legislative presumption such as is provided by s 67(3) in relation to knowledge. Otherwise, s 67 only protects a complainant whose “consent” has resulted from one of the circumstances described in that subsection if the accused knows that this was the origin of the consent, but not if the accused was reckless about the origin of the consent.
The LRC in its 2001 Report criticised s 92P (the forerunner of s 67) on several grounds, and said relevantly (at [191]):
Subsection 92P(3) is, of course largely dependent upon subsection (1). It also gives rise to further and obviously unintended complication. Sections 92D and 92J prescribe alternative mental elements of knowledge or recklessness as to consent but the deeming provision in this subsection applies only to knowledge. This may suggest that an accused could be convicted if he had known that [the complainant’s] consent had been due to a belief that he was another person but could not be convicted if he had been reckless as to whether she had consented for that reason. This is a further instance of the incongruity and confusion that seems to characterise this section.
Sections 92P, 92D and 92J are now ss 67, 54 and 60 respectively. The problem identified by the LRC may have been compounded by the fact that ss 54 and 60 have now both been amended to specify the mental element of recklessness as to consent. There is a separate provision to the effect that recklessness can also be established by proof of knowledge. It is not clear to me what the effect of s 67(3) would be in relation to an offence that is now likely to be charged as involving recklessness as to consent, even where the evidence suggests knowledge of an absence of consent.
No judicial consideration of s 67 since the LRC made these comments was drawn to my attention by counsel, but since the accused’s trial, in Jones v Chief of Navy [2012] ADFDAT 2, the Defence Force Discipline Appeal Tribunal (Tracey J, White JA and Mildren J) considered the applicability of s 67 in a proceeding under the Defence Force Discipline Act 1982 (Cth). The Tribunal commented on the operation of s 67(3) as such, saying (at [73]):
As to s 67 (3), in our opinion it does not create a statutory fiction. As a matter of logic and common sense, knowledge of circumstances which negate consent means that not only was there no consent at all, but the accused knew there was no consent. Section 67 (3) is merely a provision for the removal of any doubt on that subject: see Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 (per Gleeson CJ). This subsection also makes clear that honest and reasonable mistake of fact is not available as a defence in the circumstances to which s 67 (3) applies, (although as a matter of logic, if the fault element is knowledge, it is difficult to see how one could be mistaken about something when it was proved that the accused had the relevant knowledge).
The Tribunal did not apparently need to consider the question raised in this case, namely whether the existence of s 67(3) excluded the operation of s 67(1) in a case where the charge relied on recklessness rather than knowledge as to consent, but the description of s 67(3) as “merely a provision for the removal of any doubt” does not suggest that the Tribunal saw the provision as confining the operation of s 67(1).
As noted at [72] above, since I did not find beyond reasonable doubt that an act of indecency had occurred, I have not had to decide on the effect of s 67 in a trial in which recklessness as to consent may be in issue. It is unfortunate, however, that s 67, which was presumably intended to be an element in the protection of the vulnerable against sexual assault, has for so long been left in a state in which its operation in various respects seems to be quite unclear.
Verdict
For the reasons set out above, I find that the accused is not guilty of the offence charged.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Rik Sutherland
Date: 13 July 2012
Counsel for the Crown: Ms M Hunter
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: AB Vincent Northside Solicitor
Date of hearing: 31 January, 1, 2, 3 February 2011
Date of judgment: 13 July 2012
Appendix A – Directions for judge-alone trial
General directions
I set out first the general directions I have given myself.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation that is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression that the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
The accused gave evidence, and I am to treat his evidence in exactly the same way as any other witness called to give evidence and I should take his evidence into account in exactly the same way.
Evidence given by audiovisual link
Section 43(2) of the Miscellaneous Provisions Act requires that, unless the court otherwise orders, the evidence of a complainant in a sexual offence proceeding must be given by audiovisual link from a place other than the courtroom, if such an audiovisual link is available. There was no request that I order otherwise, and the evidence was accordingly given by the complainant by audiovisual link from a place other than the courtroom. I also made an order under s 44(3) of the Miscellaneous Provisions Act specifying that, while the complainant gave evidence from the remote witness room, the only people who could be present with her in that other place were a witness assistant from the DPP, and one Sheriff’s Officer. The order was later varied to refer to a Court Official rather than a Sheriff’s Officer.
Section 46 of the Miscellaneous Provisions Act requires a jury to be warned that an inference adverse to an accused should not be drawn from the fact that a witness is giving evidence from a place other than the courtroom, so I give myself an equivalent warning.
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