R v Vikas

[2024] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:

R v Vikas [2024] NSWDC 177

Hearing dates:

14 May 2024

Date of orders:

17 May 2024

Decision date:

17 May 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Order]

Catchwords:

CRIME — Child sex offences — Intentionally sexually touch child >= 10 yrs & < 16 yrs

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001.

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD

McNabb [2021] NSWCA 298

Allesch v Maunz (2000) 203 CLR 172.

Liberatov The Queen (1985) 159 CLR 507

Category:

Principal judgment

Parties:

Rex (The Crown)
Anthony Vikas (The Appellant)

Representation:

Stephenson for The Director of the Office of Public Prosecutions
McMillan for The Appellant:

File Number(s):

2021/00016297

Publication restriction:

NA

JUDGMENT

Introduction

1. Anthony Vikas, the appellant, appeals his conviction in the Local Court of the offence provided for by section 66DB(a) of the Crimes Act 1900 that he did on 5 December 2020 intentionally sexually touch CH, a child 10 years or older and under 16 years, CH then being 13 years of age.

2. The appellant has a right to appeal by section 11 Crimes (Appeal and Review) Act (CARA). By section 18 of CARA such an appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings subject to any fresh evidence permitted by section 18(2) or as provided by section 19 with the recalling of a witness. No such applications were made in this case.

3. The approach to take in respect to an appeal under section 18 CARA has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach I take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows:

4. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001.

5. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18].

6. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24].

7. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

8. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

9. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

10. Fairly recently the approach was, with respect, well put by Bell P as he then was from the case of McNabb [2021] NSWCA 298 at [25]:

“the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance.”

11. His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit “some legal factual or discretionary error” citing Allesch.

The issue

12. The appellant’s argument is that the verdict of the magistrate was unreasonable. The appellant has detailed in his written and oral submissions with appropriate references to the transcript of the evidence and the magistrate’s reasons a series of what are said to be inconsistencies in the evidence of CH and her father and also the evidence given by CH’s mother. The appellant then argues that because of these inconsistencies, when the evidence is considered overall, it should be found that the evidence is unreliable with the result that there must necessarily be reasonable doubt as to one or more of the elements of the offence.

The facts

13. The alleged facts can be stated broadly. The need to consider the evidence challenged by the appellant will necessarily consider the evidence in more detail.

14. CH’s evidence in chief was in the form of a recorded interview with police. CH gave evidence that she was at the police station to tell the police about someone who had touched her inappropriately. She said that one of her father’s friends touched her on the upper leg. There is no issue that the friend is the appellant.

15. CH said it occurred in the garage, saying “and we were watching TV and I was sitting in the middle of dad and Anthony and Anthony touched me on the upper leg, in my crotch” (A79). CH said she was sitting on her own chair and that she was sitting on the appellant’s right side. There were photos in evidence which showed individual chairs and a seating arrangement. There is no issue that those chairs were the chairs in question, though the appellant argues they were not as they are arranged in the photo on the day in question; the appellant suggests there had been a degree of staging of the chairs for the purpose of the police photographs.

16. CH said it was the right hand of the appellant that touched her left leg which I would note is consistent with her sitting to his right.

17. When asked exactly where on her leg did he put his hand she said “like on like my crotch”; A87.

18. The next question Q88 was “Yeah. So was it on your leg or was it sort of up more on your crotch area?” And she answered “yeah so it was on my upper leg, like, there”. Based on the transcript of the interview it was apparent the appellant may have been gesturing to a part of the body at that point. The court requested to see the video. Regrettably all that can be seen is CH placing her hand below the edge of the table behind which she is sitting gesturing towards or placing her hand on what I would infer is the top of her leg and it does not advance matters beyond the oral description.

19. In that regard there was a description of a similar type given at the Local Court hearing when CH was cross-examined. The parties agree that CH was asked to physically indicate what she considered to be the lower hip area at transcript page 20 line 45 on 4 April 2023. The description placed on the record of what CH indicated is that at T21 and is to ask her “did you just put your open hands on the top of your upper leg” to which she answered “yes”.

20. Unusually in cases of this type the Crown put forward the father of CH as an eyewitness. The father was sitting on the other side of CH at the time this is alleged to have occurred. At Q97 CH says that just as the appellant touched her, her father turned around and he saw it and her father then told her to go to her room and told Anthony to go home.

21. In the interview at Q103 it was restated that CH had referred to being touched on her upper leg and she also mentioned her crotch and she was asked “what area of your body do you use to describe your crotch?” CH answered “the top of, like, the top of my leg”. She said she could feel his hand and his fingers and that he wasn’t doing anything and it was just like sitting there. When asked if the appellant had touched her anywhere apart from her upper leg she said no.

22. It is agreed that CH was wearing bike pants at the time. There is no allegation that the appellant’s hands touched any part of CH’s body other than the top part of her leg as she indicated. The allegation is the appellant’s hand was on top of the bike pants for about four or three seconds. CH said she felt scared and didn’t know what to do and felt uncomfortable. CH said the appellant did not say anything when he did this.

23. At Q131 she was asked what Anthony did at a time when she thought her father had seen it and she said “Um, Anthony took his hand away, and mum was sitting on the table; she just come out, though, because we getting Chinese for dinner…. and there was a Chinese menu and he just turned around and looked at the Chinese menu and pretended that he didn’t do, that he didn’t do it, and Mum didn’t know what was going on”.

24. CH’s evidence was that she made an immediate complaint to her father telling him that the appellant had put his hand on her and that the father had turned around and saw it. She said she told her father that the appellant put his hand on her upper leg near her crotch. She also told her mother while she, CH, was in the garage with her mum and dad, I infer after CH came back out of her room. She said that occurred the same day of the event.

25. The prelude to these events is that there had been significant drinking by both the appellant and CH’s father. The garage being referred to is the garage of the home of the CH and her family including her father. To that garage the appellant and the father regularly retired to have a drink and catch up, and more recently at that time, to also watch television. On this particular day that had happened earlier followed by CH, her sibling and her parents attending at the appellant’s house not far away for a swim and more drinking by the father before returning to CH’s home where the events described above allegedly unfolded.

26. The above is a summary of the evidence in chief led by the Crown. What occurred in the cross examination is set out below when dealing with the appellant’s submissions.

The magistrate’s reasons

27. There is no challenge to any of the legal directions given by the magistrate. As noted at the outset the issue in this case is whether the verdict was reasonable in light of what are argued to be a series of inconsistencies in the evidence relied upon by the Crown.

28. Relevantly the magistrate’s reasons included the following:

1. That it was not in dispute that the gathering in the garage ended quite suddenly with the father turning off the television and saying to the appellant “did I just see what I think I just saw?” The father accused the appellant of touching CH’s thigh.

2. CH immediately complained to her father and not long after that to both her father and her mother in words to the effect that the appellant placed his hand on her upper leg. It was about seven weeks later that she gave the account referred to above to police in her recorded child interview.

3. It is not contested that in an interview with police the appellant said he may have accidentally brushed up against CH’s leg. At the hearing he said no physical contact occurred.

4. The magistrate accepted the appellant’s submission that the case comes down to whether the court can be satisfied the appellant touched CH at all and if so whether it was intentional and if so whether it was sexual in nature. Each one of these matters is an element of the offence and thus must be proved beyond reasonable doubt.

5. The magistrate then further recounted the evidence of CH. He described her as quite clear that the appellant only touched her once and she could feel his fingers and hand on her body. His hand was simply placed on her crotch and lasted three or four seconds. She denied that the touching was to the top of her thigh or lower hip. She was adamant it could not be accidental and she disagreed that it did not occur at all.

6. At judgment transcript page 4 at about line 30 there is reference to cross-examination about matters such as where everyone was sitting and about whether her father would have to turn his head to see what happened. The magistrate described these as primarily clarifying questions. In relation to the issue of the father turning his head the magistrate stated “ultimately though that seems to be of little relevance because the court has photographic evidence as to the approximate location of the table and chairs. Even if the defendant did have to turn his head slightly to potentially see what was going on, it is really of little moment” I wholeheartedly agree with these observations yet it is minor differences in the evidence as to matters such as this on which the appeal rests.

7. The magistrate said his initial assessment of CH’s evidence was it was clear and cogent. It was consistent without any hint of exaggeration.

8. The magistrate set out the relevant evidence of the father. The challenge to his ability to see CH’s lap from where he was seated was noted and again as to the location of the chairs. When cross-examined he maintained his version 100% that he saw the appellant’s hand on CH’s thigh and crotch and not on her hip. The magistrate noted the father’s evidence of the appellant’s hand being open and resting palm down on his daughter’s body and his description of the appellant’s little finger being only 1 inch away from CH’s vagina.

9. The magistrate noted the father was very adamant that by speaking the words in the form of a question “did I just see what I think I saw?” he was not expressing uncertainty.

10. The magistrate assessed the father’s evidence as very clear and consistent on all relevant points. The father did not seem to be exaggerating whatsoever. A point made here by the appellant is the attempt in evidence by the father to add a second allegation.

11. The evidence of the mother included that she confirmed that the words used by CH in her complaint was that the appellant touched her on the crotch. She gave evidence that CH showed her where she had been touched and that it was about 5 cm from CH’s vagina.

12. There was reference to the investigating officer SC Deaves who gave evidence that he had taken a photograph of the tables and chairs in the exact spot that they were sitting when he arrived at the house. This may not accurately reflect the evidence in this regard and this is addressed below.

13. The magistrate then considered the evidence of the appellant. The magistrate did not consider it particularly relevant as to how the parties ultimately ended up in the particular garage. The appellant said that the question “did I just see what I think I saw” was completely out of the blue. He said he could not touch CH as he was holding the Chinese take away menu in both hands.

14. The magistrate noted that the appellant conceded the cross-examination that when he was interviewed by the police he had not made a complete denial as to touching CH, conceding he had told the police he might have accidentally brushed his hand on her leg. The magistrate said this was of great relevance because it was in contrast to his evidence in court and contrary to his evidence of holding the menu. The magistrate said it created the impression that when the appellant spoke to the police he was trying to set up a defence of accidental contact.

15. The magistrate also noted the evidence of the appellant as to the state of intoxication of the father, something supported also by the father of the appellant.

29. In making his determination that the offence had been established the magistrate:

1. Referred to the clear and cogent evidence of CH not only as to her description of what occurred but her feelings of shock and being frightened by being touched.

2. CH making an immediate complaint.

3. The consistency of CH’s evidence under cross-examination.

4. That the physical contact was seen by the father as reflected by his immediate reaction. His consumption of alcohol was noted but the magistrate held that clearly did not affect the cogency of his evidence because it was quite clear in court. He was not cross-examined about inconsistencies with his police statement. Furthermore the magistrate noted he was not being asked to recount a complicated series of events.

5. The father’s description of CH’s level of upset.

6. A high degree of corroboration and consistency between the evidence of the father and CH.

7. The fact the complaint occurred so quickly after the alleged event meant there was no time to make up some false allegation.

8. The emotional reactions immediately by CH and the father.

9. Against these favourable matters for the police case there was on the other hand concerns as to the appellant’s evidence. The magistrate properly recognised that the appellant bears no onus but considered it troubling that his police interview allowed for a possible accidental touching which was a position different to what he said in court.

30. For those reasons the magistrate was satisfied beyond reasonable doubt the appellant touched Chloe in her crotch, that is her upper inner thigh.

The appellants submissions

31. Commencing at paragraph 11 of the written submissions the appellant sets out those matters which are submitted to have not been considered by the magistrate, being the evidence relied on by the Crown generally and of CH in particular. Those matters, and with reference also being made to what was submitted orally, together with my view of the matter are as follows.

32. (1) Firstly the location of where CH alleges she was touched. The submissions referred to the different descriptions that were given as to the location of the touching. The submissions refer to CH saying it was her upper left leg which she described as her crotch. That she considered her upper thigh to be her crotch. It is said that because she also agreed to it being her lower hip area that two different places were being referred to. Reference was made and reliance placed on the fact that she gave evidence she did not consider her crotch to be her genital area. The submission was it was an affront to common sense to accept a 13-year-old girl confuses the anatomical location of her upper thigh and her crotch.

33. The agreement of CH to the area being her “lower hip area” is at T20.29, to the question putting that any touch by the appellant was to “the very top of your thigh perhaps even properly referred to as you lower hip area”. The answer is therefore as much to agree to the previously referred to thigh as it is to the hip. Tellingly, shortly before this question and answer, at T18.15, when put more clearly, CH expressly denied the touch was “near your hip really”.

34. The submissions make no reference to the two occasions where CH sought to gesture to the area she was referring to. What was recorded on the recorded interview is of little if any assistance due to the interference of the table. The description given at the hearing was of putting her open hand on the top of her upper leg.

35. There is no evidence of what a crotch is. It is really a matter of the application of common sense. The reference to a person’s crotch in my view is interchangeable with the groin area. A reference to the crotch of a person is not interchangeable with a reference to genitals. It needs to be remembered that what occurred, occurred when CH was sitting down. For my part I have no difficulty in accepting that the placing of a hand on the top of the upper leg when sitting down is to place the hand upon the crotch albeit at its outer limit and furthermore I have no difficulty in accepting that to do so by dint of its very location is sexual in nature. It is true that different terms have been used by CH but those terms are all apt to describe the same area. I would also note that my assessment of CH’s evidence was favourable, including the directness of her frank denial of being touched elsewhere. She was not a witness who embroidered in any way.

31. It is said that the father’s evidence referring to the touch being on the crotch is also inconsistent. For the reasons just given I would reject that submission

32. (2) The next point was to argue CH placed her mother at the table when the touching occurred. This was contrary to the mother’s evidence. The basis for this submission is question-and-answer 131 of the recorded interview. I have set out that question-and-answer and the following question-and-answer above. For this submission to have any substance the appellant’s interpretation of those answers needs to be accepted. The competing interpretations are the Crown's that the evidence concerning the mother should be seen as occurring after the event because the answer states “Anthony took his hand away, and mum was sitting on the table; she just come out, the, because we getting Chinese for dinner”. The Crown argues that the reference to “she just come out” shows that CH is referring to her mother being there after the incident. That is an open interpretation of that evidence. CH would appear to be referring to the actual event alleged involving the appellant and then making a reference to the mother being interwoven with that which she has sought to place in time by stating “she just come out, though”. In any event one would hardly discount the entirety of the evidence of CH on this one matter which is really of little consequence. In saying that I accept the appellant’s submission that the appeal is based on the concept of a number of matters all being considered together and that it is not just a case of one inconsistency making the point. For present purposes I do not think there is that inconsistency here but will nevertheless bear in mind that I may be wrong about that when determining the ultimate question having considered the other alleged inconsistencies.

33. (3) It was submitted that the father had staged the setting of the alleged offence by arranging the chairs in a certain way for the police photographer. It is true that they do appear to be in different locations on the different photographs that were in evidence though it is difficult to be too certain about that given the different angles. It is also true that the evidence of CH was that the chairs were exactly as they are “now” which I take to be a reference to the photographs. The appellant then relies on the father’s evidence that the chairs had been moved back from the table when photographed in Exhibit 2. That is not clearly what the evidence says at T34, which actually suggests the chairs were further out at the time of the alleged offending. The answer to this submission however is from SC Deaves. He was asked about the position of the chairs and whether the photo shows them as they were when he arrived and he answered “yes. Or they were, they were more tucked in but they were in that position yes. The chairs were moved by Mitch Harrison after I got there to untuck them from the table”.

34. What has occurred is that upon the attendance of the police officer the chairs had been tucked into the table and moved out by the father in an attempt to re-create how they had been at the time. The photos were taken on 7 April 2021 and the events in question occurred on 5 December 2020. It is unavoidable there will be some re-creation of the scene. Certainly the denial of moving the chairs to where they were in the photos is supported by the officer's evidence. The possible inconsistency, again in my view of no moment whatsoever, is that it appears that the father is denying moving them out from having been tucked in. This was evidence being given two years after the photos were taken. Nothing turns on this.

35. (4) It was submitted that there were differences in CH’s evidence as to where the appellant was looking when he allegedly touched her as compared to the evidence of the father as to where the appellant was looking when he allegedly touched CH. The appellant correctly identifies a difference in their evidence in that the evidence of CH was that at that time the appellant was looking up at the screen at the TV whereas the father says he saw the appellant looking down. This is one of those matters that arguably should be taken into account though it must be said it is a matter of very small moment in all of the circumstances. It is not inconceivable that the evidence can be viewed as consistent in that it may be that at the moment of initial touching the appellant was looking at the TV and then when the father looked over the appellant had looked down. Nevertheless I accept that it can be viewed as an inconsistency.

36. (5) The appellant also correctly identifies an inconsistency between the evidence of CH and the father as to what was on the table. The evidence of CH was that there was nothing at all on the table. The father said there was a big bag of dried banana chips as well as beers on the table. That a 13 year old girl (and 15 at the time of hearing) does not recall what was on the table in front of her when a 35 year old places his hand on her upper leg is hardly surprising.

37. (6) The appellant contends that the evidence is inconsistent as to where the appellant and the father would sit watching television in the garage. The evidence of CH at T 15.35 does suggest that. That said the question is a rolled up one with three propositions. It is also relevant to note the previous question which seems to be answered in a way that suggests that the father would face his chair towards the television. The next question which is relied upon is “he would have done what, this is where it’s always positioned, he always sits in this chair and looks to his right”. The answer was yes; so is that agreement to the chair always being in that position, the father always sitting there or the father always looking to his right?. Plainly the appellant’s interpretation is a likely one but it is not conclusive and suffers because of the multifaceted nature of the question. The evidence of the mother that is relied upon is at T48.13 and she agreed that they would sit in whatever chair was available but she did preface that by saying as to whether they had a particular chair “no not that I recall” so again hardly a crystal-clear situation, though she did ultimately accept the proposition that they would sit wherever a chair was available. As to the father’s evidence that is at T31.9 where the father agreed that they just sit wherever you sit. The question again suffers because it is again more than one question. It is “so you don’t have designated chairs? You know how people have their favourite chairs. You guys just sit wherever you sit?”. To which the answer was “that’s correct” to which the reader/listener might ask, what is correct?; that they don’t have designated chairs or that he knows how some people do have favourite chairs or that they just sit wherever they sit. That last question is not inconsistent with sitting in the same position.

38. My view on this is that it is open to find it is variable evidence between three witnesses. The quality of the evidence due to the style of question however I consider to be poor and the issue I consider to be insignificant. Significantly this is another example of a variation, of what might be called an external inconsistency, that is different things being said by different witnesses, as opposed to an internal inconsistency where the same witness is saying different things at different times.

39. (7) The appellant relies on a variation on the evidence of the father and CH as to the response by the appellant after the father stated “did I just really see what I just seen” (appellant version; per the father it was “Did I just see what I thought I just saw” and per CH “Did I just really see what I just seen”). The evidence of CH is that the appellant said “no you saw wrong”. The evidence of the father was that the appellant said “‘I don’t know what you’re talking about Mitcho everything is okay I don’t know what you’re talking about everything is good’ something along them lines”.

40. The appellant says the magistrate ought to have mentioned this. That may well be right. Nevertheless, it is understandable if the witness’ recollection differed in the manner it does here. Significantly the evidence of the father is that his evidence was his recollection of “something along them lines”; he is not saying that it is exactly what was said. The gist of the evidence from both prosecution witnesses is the same. The explanation for it not being mentioned by the magistrate is that for the reasons just outlined he did not consider it to be an inconsistency, an approach that I would agree with.

41. (8) The appellant also argues that the Crown case was somehow weakened because of the evidence concerning the positioning of the father when the incident occurred. The submission of the appellant is that it is far more probable that all parties seated around the table were facing the television as they watch it. With respect whilst there was a concession by the father that he was possibly facing the television the assumed premise of this argument by the appellant is unsound. These are not people sitting at the cinema watching a dramatic film. They are people who have been drinking all afternoon watching TV content of the nature of dirt bike racing and sitting around a table talking and socialising. I consider it equally if not more probable that they would be arranged in a way other than looking directly at the television. In my view this is a matter of no significance.

42. (9) It is plain that both the appellant and the father had consumed significant alcohol that afternoon. It is not expressly clear but presumably the point is that the intoxicated father is unreliable due to his state of intoxication. It was the evidence of the appellant’s father suggesting the effects of intoxication were showing. Yet there is no evidence from the appellant of the father not making sense whilst they were enjoying a social drink and conversation nor does the evidence of the way the father reacted to what he saw reflect the conduct of somebody who is inebriated; to the contrary he plainly believed he saw something and is able to articulate himself very clearly immediately thereafter.

43. (10) A further submission is made based on the response of the appellant to the question asked of him by the father. The appellant's evidence in this regard is consistent with the Crown case in that he gives evidence that the father said “did I just see what I seen?” The appellant's evidence is that he then said “what are you talking about?” And the father then tells him to get out of the garage. The evidence of CH was that the appellant had said “no you saw wrong” and the father’s evidence was that the response was something along the lines of “I don’t know what you’re talking about Mitcho everything is okay I don’t know what you’re talking about everything is good”. The appellant argues this response of the appellant is one of surprise and astonishment consistent with the denial. If the appellant’s version is accepted, that is correct. However on the version of either CH or her father there is about the response a sense of pretense or defensiveness. The magistrate observed these witnesses and rejected the evidence of the appellant and accepted the evidence of CH and her father for reasons summarised above and with which I agree. In my view this aspect of the evidence assists the Crown and not the appellant.

44. (11) The appellant argues the father sought to exaggerate. The basis for this is at T38. The father was asked about his conversation with CH when she had come back out of her room and into the garage. In his evidence in chief he had simply said that when CH came back out she was absolutely a mess and he and his wife comforted her and that CH said she wanted to talk to the police. In cross examination an open question was asked as to what was said in that conversation and the father offered up that he had asked CH if it had happened before and she said that he had done it once before. Understandably that was not pursued, and the cross examiner should not be criticised for leaving the matter there. It is also correct that it is something that was not said in chief. Whether it was in the statement of the father cannot be determined. As already noted the evidence in chief was fairly general and it was not in direct speech. I do not rule out the possibility that something may have been said by CH along those lines though on balance I think it should be accepted to be something that was added to the evidence by the father. It could be inferred that if there were allegations of this having happened on another occasion that would be something led in chief and indeed something the police may take action about. It is another matter to take into consideration but I would also say that it has not been demonstrated to be something that is false. Favourable to the appellant however it is something that I think should be taken into account.

45. In conclusion the appellant made two points; firstly what was to be gained by the appellant by this alleged conduct? The answer to that is fairly plain, namely a form of sexual gratification. That he may have been seen does not rule out him being a risk taker. Secondly the appellant challenges the finding of the touching being sexual. In my view the asserted, and established, location of the touch of a young female wearing bike shorts and occurring in the way described by CH plainly allows for the inference that the touching was sexual touching, being in the area variously described as her crotch/upper leg. The conclusion that such touching was sexual by the magistrate was clearly correct.

Determination

51. It can be seen from the foregoing paragraphs that the submissions of the appellant are for the reasons given largely rejected. Some of the inconsistencies argued for have been established to varying degrees, namely those numbered in parentheses 3 (moving of chairs), 4 (where the appellant was looking at the time of alleged offending), 5 (what was on the table), 6 (seating positions), 7 (appellant’s response) and 11 (father asserting further offending)   . I have also indicated that I would bear in mind the appellant’s view as to point (2), despite my own view that the interpretation of the appellant is incorrect. In that regard I would also note that the position argued for there has the mother present at the time of the alleged offending which in my view of the evidence is contrary to the evidence of the mother, the father and CH. No submission was made in the appeal about it and it is perhaps just a curiosity, but the accused’s version of what occurred at T67.41 and following has the mother present. Yet when the mother was cross examined she said she was not in the garage at the relevant time and she was not challenged about that. Indeed the evidence at T48 where the mother is cross examined seems to accept the position to be as the mother stated it, with her evidence plainly being a reference to not being in the garage at the time of the alleged event. This adds support to my interpretation of CH’s evidence concerning her mother. This point does not assist the appellant’s position.

52. Taking into account the matters which have been identified as having to some extent an inconsistency as explained above along with all the other evidence the view I reach having reviewed the evidence is that the appeal argued in the way it has been by the appellant must fail. That is the inconsistencies argued for do not result in the evidence of CH or her father being considered to be unreliable. Individually the inconsistencies relied upon are minor. When taken as a whole as argued by the appellant my view is that they still remain insignificant.

53. The appeal was not argued any other way, but if one was to take the approach that the appropriate Liberato direction was given then for the reasons identified by the magistrate the version of the appellant would be rejected. The variation in his evidence to the police compared to at trial as to the possibility of an accidental touching was telling in this regard. My assessment of the evidence leads me to agree with the magistrate that the version of events given by the appellant should be rejected.

54. It remains of course to then put aside what the appellant said occurred and assess the evidence relied upon by the prosecution. That evidence clearly makes out the elements of the offence beyond reasonable doubt. The insurmountable difficulty in this case for the appellant is the compelling evidence of CH and the fact that, unusually in cases of sexual offending, there was an eyewitness to the event other than the complainant, whose evidence was also compelling in vital respects. Added to that is the evidence of immediate complaint. That evidence remains compelling even allowing for the inconsistencies argued for in other aspects of the evidence. Indeed in some ways the inconsistencies bear out a lack of collusion between the witnesses and add to their credibility as showing the independence of their recollection. When the inconsistencies are as minor as the ones sought to be relied on here that view has some weight.

55. To hark back to the words used to describe the appropriate approach to a section 18 appeal, making my own assessment of the evidence the decision made by the magistrate was correct.

Order

56. The appeal is dismissed.

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Decision last updated: 17 May 2024