R v Yousef - [2004] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v YOUSEF
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Smith
18 August 2004
CRIMINAL LAW
Accused charged with False Imprisonment and Indecent Behaviour - accused pleaded guilty to False Imprisonment and not guilty to Indecent Behaviour - Trial by Judge without Jury - disputed fact hearing in relation to charge of False Imprisonment - allegations that accused taxi driver drove female passenger into deserted backstreets and was sexually provocative culminating in a later indecent exposure - accused denied allegations but accepted that he became angry with passenger and took her off route in order to remonstrate with her and frighten her - held that Crown did not negative as a reasonable possibility the accused's explanation - verdict Not Guilty of Indecent Behaviour - discussion of disputed facts hearing when Crown fails to prove aggravating circumstances and defence fails to prove mitigating circumstances - ruling that sentence to be imposed on "bare bones" of particulars of charge.
Summary Offences Act s23(1)(b) ; Juries Act 1927 (SA) s7; Evidence Act 1929 s13, referred to.
Hardman v Mineham (2003) 57 NSWLR 390; R v Calides (1983) 34 SASR 355; R v Anderson (1992-93) 177 CLR 520; R v Olbrich (1999-2000) 199 CLR 270; R v Lobban (2001) 80 SASR 550, considered.

R v YOUSEF
[2004] SADC 113
Introduction

The accused Basil Yousef is charged with:
First Count
False Imprisonment. (Common Law)
Basil Yousef on the 6^th January 2003 at Gilles Plains, unlawfully imprisoned Michelle Lee Astley and detained her for about 10 minutes against her will.
Second Count
Indecent Behaviour. (Section 23(1)(b) of the Summary Offences Act)
Basil Yousef on the 6^th January 2003 at Gilles Plains, behaved in an indecent manner in a place, other than a public place or police station, namely a motor vehicle so as to offend or insult another person.
On the day of trial, namely the 26^th July 2004, before the accused was arraigned, counsel for him, Ms O’Connor, intimated that the accused would plead guilty to Count 1 and not guilty to Count 2. Ms O’Connor said that there was a dispute of facts in relation to Count 1. She then made an out of time oral application for the accused to be tried by a Judge without a Jury (see s(7) Juries Act 1927 (SA)). The Crown did not oppose the application. I allowed it.
The accused then pleaded guilty to Count 1 and not guilty to Count 2. So both the trial as to Count 1 and the Disputed Facts Hearing as to Count 2 proceeded before me over a period of eight days from the 26^th July 2004 to the 3^rd August 2004. On the afternoon of Tuesday the 3^rd August 2004 I adjourned to consider my verdict.
I turn to the evidence.
Evidence
The Crown case consisted of oral evidence from:
·Michelle Lee Astley – the alleged victim
·Przemek Grobelski – forensic analyst, Savings & Loans Credit Union
·Beverley Kaye Pinnegar – foster mother of Ms Astley
·Graham Dean Stewart - neighbour
·Sheila Diane Price – police officer
·Tom Gaitatzis – Call Centre Supervisor, Adelaide Independent Taxis
·Amanda Jayne Smith – police officer
The declarations of David Finlay of Optus and Michael Talbot-Wilson a forensic scientist were agreed and tendered.
The accused gave evidence in his own defence. He denied the offending the subject of Count 2 and deposed to his own good character. His wife Maha Yousef gave evidence of what the accused told her happened on the 6^th January 2003. Her evidence was hearsay but was admitted on the basis that its purpose was to rebut recent invention. She also gave evidence of her husband’s good character.
I now turn more particularly to the evidence. What follows is a summary of the evidence of Prosecution and Defence. I will not canvass inroads made by cross-examination.
Prosecution Case
I start by setting out some background matters about which there was not much controversy.
Michelle Lee Astley is 19 years old. She has a child, a boy, aged 3½ years (14). As at the 6^th January 2003 she lived at 16 Ayredale Avenue, Clearview with her partner Aaron Jaede and her son (15). She was in receipt of sole parent benefit and rent assistance from Centrelink which was paid directly into an account held by her with Savings & Loans Credit Union.
Ms Astley’s mother lived at 14 McKinlay Avenue, Gilles Plains and she there cared for four sometimes five children who are the siblings of Ms Astley. Ms Astley “never had a close relationship with her mother” and was reared by the Pinnegar family for a goodly portion of her young life (16, 17). Nonetheless she frequently loaned money to her mother to assist her with the cost of caring for her brothers and sisters (17).
As at the 6^th January 2003 Ms Astley did not own a motor vehicle and would travel about in taxis and buses (18).
I now turn to the more controversial evidence of Ms Astley about the events of the 6^th January 2003.
Ms Astley said that her mother had rung her asking to borrow money (20). She had only $5 on her and so at about 2pm she left home with the intention of going to the automatic teller machine (ATM) at the Gilles Plains Shopping Centre in order to withdraw money from her account, some of which she proposed to lend to her mother (20). Her mother, brothers and sisters lived near to the shopping centre in McKinlay Avenue, Gilles Plains (15, 16). Ms Astley left her son in the care of her partner and walked to nearby Hampstead Road in order to catch a bus to the shopping centre (21). It was a hot afternoon (21). She went to the wrong bus stop and after a wait she saw a taxi on Hampstead Road and decided to catch a taxi to the shopping centre (22). She agreed that she waved a taxi down and the driver executed a U-turn on Hampstead Road pulling into a street off Hampstead Road (22). She said that she put the following to the taxi driver before getting in:
“I said to him that I didn’t have any money on me at the time but I would go to the ATM and withdraw money and pay the fare that way ...” (22)
According to her the taxi driver said in reply “... that’s alright” (22). There is no dispute that the taxi driver was the accused.
She added that she told the accused that she wanted to go to the Gilles Plains Shopping Centre. She said that the accused asked her where it was. She said she told him that it was on Sudholz Road, just down by the police station. He replied, according to her, that he knew where it was (23). She got into the front seat (95). She said that the accused drove north on Hampstead Road to the intersection with Grand Junction Road and turned right into Grand Junction Road (23). She said she noticed the accused “... pulling out his t-shirt, just in the lower stomach area or below the stomach, below the bellybutton ... “ (24, 25). She said he was wearing a yellow shirt (26). She said that she did not think anything was amiss when he was pulling at his shirt (25). She said that as they were driving on Hampstead Road and Grand Junction Road there was conversation between them “... just generally cabbie conversation, just weather and just stuff like that ...” (24). She said that he mentioned that he was Spanish (25).
The most direct route to the shopping centre was via Sudholz Road and so according to Ms Astley she expected the accused to turn right from Grand Junction Road onto Sudholz Road. However, according to her, the following happened at the traffic light controlled intersection of Grand Junction Road and Sudholz Road:
"AWe come towards Sudholz Road and he drove past and I said ‘We were supposed to go down there’ and he says ‘I know’ and then he said to me – he goes ‘I want to take you somewhere where you can go and swim naked’.
QWhen he said that, what did you think.
AI didn’t know what to think. I sort of froze, didn’t know how to take it.
QDid you say anything.
AI just sort of – like, I looked, I was just – I didn’t know what to say, because I didn’t know if I said one thing it would put me in a bad position, or if I said another thing it would put me in a worse position.
QYou said you just looked; what do you mean by that.
AI sort of looked (INDICATES) and sort of looked away, sort of like ‘What are you talking about?’”
(26)
She said that it was at this time that she noticed that the radio was not on and nor was the little screen that sits above the steering wheel (24). She said that she then “started getting suspicious ...” (24).
Then, according to Ms Astley, the accused turned right into Blacks Road. Blacks Road all but directly links Grand Junction Road with the shopping centre (see Map Exhibit P1) and so to some extent she was relieved (27). But then she said that the accused turned left into another street, either Dally Road or Swanson Avenue and then there commenced a journey around some back streets of Gilles Plains, including McKinlay Avenue where her mother lived (27, 28). Ms Astley said that she was “shocked and frightened”. According to her the accused said “I am going to take you somewhere” (28). Ms Astley said that at the time the taxi passed her mother’s house she said to the accused “This is my mum’s street. You can drop me off here but he just kept driving” (29).
She said that eventually the accused stopped in Grant Avenue near a park and a large area of vacant blocks. There she said he made sexually suggestive comments to her such as:
“Can I touch your legs. You’ve got nice long legs.”
“Do you fantasise about threesomes”
“Do you wake up horny”
and at the same time he started touching himself in the groin area (30, 31).
Ms Astley said that she said “No” to all these suggestive comments and also said that she was not that type of girl (31). She said when stationary in Grant Avenue she went to take off her seat belt and get out of the car but the accused drove off (31). She said she was frightened (32). She said that he then drove back onto Lurline Avenue and a second time drove past her mother’s house. The taxi then proceeded to the shopping centre via Glenroy Avenue (32). She said that she then said to him “Do you talk to a lot of girls like this?” and he responded that he did talk to a lot of girls (33). Ms Astley insisted that she offered the accused no encouragement to behave in such a sexually provocative way. The accused drove into the shopping centre car park and parked near to one of the two mall entries near to Mac’s Liquor Store (34; see also Exhibit D3).
According to Ms Astley the parking spot on her side of the vehicle was vacant and then a 4wd vehicle pulled into the spot, which according to her, provoked the accused to say “What did you do that for” (34). The driver of that vehicle alighted and walked off (35). Ms Astley said that she took off her seatbelt and was about to turn to tell the accused that she would get the fare but as she looked around to him she saw him handling his exposed penis. According to her he asked her to touch it and said “Just touch it. It will explode if you touch it” (34). Ms Astley said that she said in response “No”. She said that she felt scared and intimidated. However, she told the Court that she decided not to let the accused get away with such behaviour and so she handed to him her bus time table and said to him “We are in a car park, give me your number, I’ll call you, it’s more private then” (35). According to Ms Astley he put his mobile number and a name on the timetable and returned it to her. She said she put it in her handbag. At about this time Ms Astley said that the accused said, referring to his penis, “I’d better put it away before I go crazy” (39). She said that as she got out he asked her twice for a kiss to which she replied “No” (39). He then said, according to her, that he would buy her a pizza after “we finish if you like” (39).
She did not pay him any money.
Ms Astley walked to the ATM at the other end at the mall and saw the accused’s taxi drive out of the parking area (40).
She then made two withdrawals from her account; the first for $200 and then the second for $160 (41). She explained that two withdrawals were made because the first produced a receipt which enabled her to see what remained in the account. She then withdrew almost all of what remained on the second occasion (41).
She then said that she walked to her mother’s place and gave her mother about $100 (41). She said that she complained about what had happened to her to her mother. However, there was no complaint evidence from Ms Astley’s mother. Senior Constable Amanda Smith said that Ms Astley’s mother refused to cooperate (310). Ms Astley then caught a bus home. On arrival she complained to her partner, Aaron Jaede. Again there was no complaint evidence from him. Mr Jaede and Ms Astley separated after this incident. Constable Smith again explained that the police made some limited enquiries about his whereabouts. Ms Astley said that when she recounted to her partner what had happened he reacted violently towards her. There being no evidence from Aaron Jaede there was no explanation of this violent response to what Ms Astley told him. In the end result, she became so stressed that she at one stage was vomiting in the front yard (58). Ms Astley complained to her neighbour Graham Dean Stewart.
Mr Stewart was called. He said that about mid afternoon he heard a commotion next door and saw Ms Astley vomiting on the front lawn. He spoke with her over the fence. He said that Ms Astley said “... she caught this taxi. The taxi driver took her behind the shopping centre and he popped it out ...” (173). Mr Stewart took Ms Astley and her partner Aaron Jaede to the Holden Hill Police Station that afternoon. Constable Sheila Price took a statement from Ms Astley at about 7.30 pm on the 6^th January 2003. She could not say precisely when Ms Astley arrived at the station.
Finally, Mr Stewart said that the next day he drove Ms Astley at her request to her mother’s place because she wanted to get away from Aaron (174).
Beverley Pinnegar, who was Ms Astley’s foster mother, over objection by defence counsel gave character evidence for Ms Astley. She also said that Ms Astley telephoned her upset and angry and told her about the matter before the Court (191). Ms Pinnegar in cross-examination revealed that she knew very few of Ms Astley’s friends, much less knowing what view any such friends had of Ms Astley’s reputation (196). In cross-examination she agreed that Ms Astley had deceived her about a relationship she had with the father of her son - a relationship which began when she was under age (197, 198). Having extracted these concessions from Mrs Pinnegar counsel, Ms O’Connor, withdrew her objection to the character evidence which I took on the voir dire.
Senior Constable Amanda Smith said that notwithstanding that Ms Astley had reported the alleged offending on the afternoon or the evening of the 6^thJanuary 2003 the investigation of the matter did not commence until the 16^thJanuary (287). Indeed, it was not until the 6^th March 2003 that the accused was interviewed (see video taped interview Exhibit P2; 289). In an awkwardly structured interview the accused effectively denied the allegation. Further, he declined to participate in an identification parade.
Accordingly, Senior Constable Smith arranged a photo array. On the 24^thMarch 2003 Ms Astley attended the Holden Hill Police Station and identified the accused from the array (292; video tape Exhibit P5).
At trial the identification of the accused was not an issue.
The timetable on which Ms Astley said the accused wrote the name and his mobile telephone number was handed by Ms Astley to constable Sheila Diane Price on the evening of the 6^th January 2003 (203; see also Exhibit P2). Handwriting samples were taken from the accused and compared with the writing on the timetable. The comparison was the subject of the report of the forensic scientist Mr Michael Talbot-Wilson. His declaration, as indicated, was agreed. Discussing his report is unnecessary. The accused agreed that he wrote the name and the mobile phone number on the timetable.
The evidence of David Finlay the support liaison officer of Optus to the effect that the mobile telephone number written on the timetable was in the name of the accused, again was agreed. His declaration was placed before me by consent. The accused in his evidence agreed that it was his number.
Przemek Grobelski who is a forensic analyst with the Savings & Loans Credit Union said that the computer generated records showed that there were two withdrawals from Ms Astley’s account from an automatic teller machine on the 6^th January 2003, namely:
• at 14.27:01 hours $200 was withdrawn; and
• at 14.27:59 hours $160 was withdrawn.
(156-160; Exhibit P10)
The Crown called Thomas Gaitatzis. He is the Call Centre Supervisor at Adelaide Independent Taxis. He explained the operational technology used in the accused’s taxi as at January 2003, and by reference to the computer generated records was able to track and fix the time of the movements of the accused’s taxi on the afternoon of the 6^th January 2003.
I summarise his evidence as follows:
Role of Adelaide Independent Taxis
•      Adelaide Independent Taxis is a booking service. It does not operate taxis itself but rather taxis become part of the fleet used by Adelaide Independent Taxis upon payment of a weekly fee.
•      The accused’s taxi, number 2066, was part of the fleet serviced by Adelaide Independent Taxis.
•      Taxis such as the accused’s are not compelled to accept fares offered by Adelaide Independent Taxis and are free to pick up fares from the street.
Security Camera
•      By January 2003 taxis, including the accused’s taxi, were equipped with a security camera mounted near the rear view mirror.
•      The camera films the interior of the cabin of the taxi (see photo Exhibit D6).
•      The filming is activated by the opening of the door of the vehicle. There is no “on and off” switch. Filming will continue for half an hour after the motor is switched off or the door closed.
•      The film lasts for three hours and then commences to record over itself thereby commencing to obliterate the previous three hours.
•      The film will only be preserved if the driver presses an alarm button. That will have the effect of preserving the film taken over a period of time just before and after the pressing of the alarm. If that occurs then the film can be accessed by having the film removed by an authorised downloading station. In the event that the alarm is so activated the taxi cannot continue to ply for business but must be effectively recommissioned by a download station.
•      In this case, the film of the time during which Ms Astley was in the accused’s taxi was obliterated after three hours of further filming occurred and rerecording began. A prompt report to the police of the alleged offending followed by a prompt investigation would have resulted in the film of the half hour or so between 2.00 pm and 2.30 pm being available as evidence.
Global Positioning System (GPS)
•      As at January 2003 taxis, including the accused’s taxi, were equipped with a GPS device.
•      The GPS is used not only to locate the taxi in situations of emergency but also is utilised by the dispatch system to enable speedy responses.
•      The computerised dispatch system fixes the position of a particular taxi by reference to a map within the system, namely the map used in the UBD street directory by using coordinates (ie northings and eastings).
•      The metropolitan area of Adelaide is divided into 62 zones plus the city and North Adelaide.
•      When a taxi enters a zone it will automatically be recognised by the system. If there is a job in that zone and the particular taxi is the only one in the zone or the top of the queue that driver will be offered that job.
•      The job will be offered to the particular taxi via a small computer screen called a Mobile Data Terminal (MDT) which is mounted on the dashboard over the steering wheel. If the driver wishes to accept the job he or she will press a button on the MDT (ie the star button) and then details of the job will be displayed on the screen. On completing the job or near to doing so the driver can then register his availability for another job or log on by pressing two other buttons on the MDT (ie the M and S1 buttons). If the driver does not want the job then he can reject it by simply not responding within 10 seconds of the offer. The MDT will beep continuously for 8 seconds during the offer of a job to alert the driver. The beep cannot be turned off or down.
•      There is a radio in the taxis connected to the Call Centre but the primary method of communication is the data channel to the MDT. The voice channel is used only on rare occasions.
•      The taxis also have a fare metre which displays the fare as the taxi proceeds to its destination.
•      The GPS aided computerised dispatch system used by Adelaide Independent Taxis can produce an activity report for a particular taxi within the fleet. Such a report was prepared for taxi 2066 relating to a period from about 10.00 am to 4.00 pm and was the basis of Mr Gaitatzis’ evidence, (see Exhibit P11)
Some of the movements or activity of Taxi 2066 on the 6.01.03 at about 2.00 pm and thereafter
•      At 13:54.57 the accused’s taxi is near to the junction of Ayredale Avenue and Hampstead Road (241). This must have been about the time that the accused picked up Ms Astley.
•      At 14:02.02 the accused’s taxi is on Grand Junction Road in the vicinity of the Women’s Prison (243). Clearly the accused’s taxi with Ms Astley as a passenger is at that time proceeding east on Grand Junction Road approaching the intersection with Sudholz Road.
•      At 14:17.12 the accused’s taxi is positioned on Grant Avenue near a reserve (see M9 on the map 95 Exhibit P1 and D11; 244). This is consistent with Ms Astley’s evidence. The accused agrees that he stopped in this area.
•      At 14:21.51 the accused’s taxi is in the vicinity of Milbank and Lynton Avenues “behind the Gilles Plains Shopping Centre” (246). So at this time the taxi is either arriving at or leaving the shopping centre.
Radio and MDT Communications
•      In the time during which Ms Astley was in the taxi the radio was not used (see Exhibit P11).
•      In the time during which Ms Astley was in the taxi the MDT was active and beeped a number of times (276).

Such is a summary of the Prosecution evidence.
Defence Case
The accused Basil Yousef’s evidence commenced with some background personal particulars and history. This background is not contentious.
The accused is almost 40 years old. He is married and has a child who is 20 months old. His wife is soon to have a second child. He has been a taxi driver for five years and now rents his plates.
The accused is a Palestinian. He was born in the West Bank. His family moved to Kuwait after the 1967 war and then moved to Jordan after the first Gulf War in 1991. He completed his high school education in Kuwait but it was difficult for foreigners to gain admission to University in Kuwait so his family sent him to University in Manila in the Philippines. There he completed the degree of Bachelor of Science in Electrical Engineering in 1990. In 1992 he came to Australia as a skilled migrant. In 1994 he was made an Australian. His tertiary qualifications were not recognised in Australia. He sends money back to Jordan to his family there.
I now turn to the accused’s evidence as to the events of the 6^th January 2003.
The accused started his evidence as to the 6^th January 2003 by producing a work sheet for the day which showed only three jobs, namely:
•      Kensington to the City.
•      City to Clearview; and
•      Dernancourt to Parafield Gardens
(see Exhibit D9; 363).
He said that the second job was a certain Mrs Battersby (363). He said that he dropped her on the western side of Hampstead north of the centre and that he then headed back south on Hampstead Road and turned into a side street either Windsor Avenue or Sarnia Avenue to await a fare (395, 396). According to him he was stationary with the engine off when Ms Astley approached (395). The accused said the following exchange took place:
"QDo you recall what the very first thing was she said to you.
AThe very first thing she said that she was waiting for the bus and the bus didn’t come, it was late, and she left her son with a friend, and she was late, she want to, you know, go and pick him up – or her, I can’t remember if she said ‘her’ or ‘his’, and that she have only $3 something, $3.40, or 60, I think.
QWhat did you say.
AI told ‘That’s fine, I’ll take you’.
QWhy did you do that.
AI felt sorry for the child, because she looked young to me and to keep her child with someone else, I wouldn’t do it with my son and at that time I had a son just two months.
QDid she say where she had to go.
AShe said Gilles Plains.
QDid she say where in Gilles Plains.
AThe first – now, as I remember, I understood it’s Gilles Plains, the suburb. She didn’t say – well, what I understand at the beginning she was going to pick her son up, and Gilles Plains that’s where her son is.
QIn Gilles Plain there a number of streets.
ANo, she didn’t say a street.
QDid you negotiate that with her.
ANo, I didn’t negotiate, she had $3, I’m not going to negotiate $3 to Gilles Plains, it’s not a negotiation, really.
QDid she get into the car.
AYes.
QWhich seat.
AFront seat.”
(transcript 396, 397)
Ms Astley got in the front seat. The accused then drove north on Hampstead Road and turned right into Grand Junction Road. The accused said that on the journey he and Ms Astley talked about such matters as safety and cameras (397). He denied he said he was Spanish and further said he did not own, let alone, wear a yellow shirt.
The accused said that after crossing the intersection with Sudholz Road Ms Astley said “Why did you cross Sudholz, because the shopping centre is on Sudholz Road” (397, 400). He said that this annoyed him. He explained that what annoyed him was that Ms Astley who was travelling for nothing now suddenly wanted to go the shopping centre (401). He said he was particularly annoyed because he considered that she thought “... I’m stupid, she can really, you know laugh and get a free ride ... well, if somebody doesn’t have any money, and she left her son with somebody to look after, and she is rushing to go and pick him up, what is she going to do in the shopping centre? ...” (400). The accused went on to say that he considered that if she wanted to go to a shopping centre then she could pay the fare (401). He turned right into Blacks Road. It is also a route to the shopping centre. But the accused did not drive Ms Astley to the centre. He agreed that he drove off into a number of backstreets of Gillies Plains before going to the shopping centre. He explained doing this in the following terms:
“A ... we don’t get out money from all the customers, so I thought, you know, I don’t want her to do it again, and I was pissed off, just to scare her and not do it again and be honest, and that’s why I didn’t go to the shopping centre straightaway.
Q You say you were going to scare her.
AYes.
QWhat were you going to do to scare her.
AI did mention to her ‘Look, I will call the police’ and this and that, so that she – you know, see her reaction, see if she gets scared, she might think about it, even though I wasn’t going to call the police, because I know the procedure, but she will keep it in mind and she will not – maybe she will think ‘Next time I might get a crazy driver who does something to me’, so that’s all.”
(402)
He agreed that he stopped in Grant Avenue (403). He said that there was an argument and he stopped. He said that she promised to pay him when she had the money and he suggested $10.00 (406). He later suggested the promise by Ms Astley to pay might have been made later though before arriving at the shopping centre (422). He agreed that Ms Astley was scared and upset. He drove her to the shopping centre. He denied that she tried to get out and in particular he denied that he talked about sexual matters at any time (405, 406).
Finally he agreed that at the shopping centre he wrote a name Michael and his mobile telephone number on her bus timetable to enable her to pay him (407). He said he decided not to go to the nearby police station because it involved too much trouble for such a small return (408).
He said that he did not know Ms Astley was going to the ATM and if he had known then he would have insisted on being paid (415). He then collected the customer at the Dernancourt Shopping Centre and took the fare to Salisbury.
He said that later in the afternoon he received an abusive call over his mobile (416).
The accused also gave evidence as to his own good character (385‑392).
The accused’s wife Maha Yousef was the only other witness for the Defence. She commenced her evidence by testifying to the good opinion of the accused held by people whom she knew (519, 520). She also gave evidence to the effect that her husband was faithful and true and that she was not suspicious that he “has seen other women or had relationships with other women” (521). Finally she confirmed that he sent “around $1,000- $1,200 mostly $1,000” to his family in Jordan every three months (522).
She recounted in evidence what her husband told her of this incident on the day of the incident, namely the 6^th January 2003 (520). This evidence was admitted on the basis that the truth of what he said from the mouth of his wife though hearsay was admissible to rebut recent invention.
She said that on the day of the incident the accused came home and told her that a woman who had no money asked him to take her to pick up her son from some friend’s but then wanted to go to a shopping centre (520, 521).
The statement of Christopher Hanley of Bank SA was agreed and tendered. The statement makes it clear that the withdrawals from Ms Astley’s account on the 6^th January 2003 as detailed in the transaction log relied upon by the witness Grobelski were logged at local time not Eastern Standard Time.
Such was a summary of the Defence evidence.
Some matter of law – Directions
First of all I direct myself as to the elements of the contested Count 2. There was considerable debate about the elements.
Section 23(1)(b) of the Summary Offences Act provides as follows:
“23. Indecent behaviour and gross indecency
(1) A person who behaves in an indecent manner –
(a)in a public place, or while visible from a public place, or in a police station; or
(b) in a place, other than a public place or police station, so as to offend or insult any person,
is guilty of an offence.”
(The italics are mine and are the material portion of the Section)
In my view there are four elements and they are as follows:
1.     That the accused intentionally behaved in the manner alleged, namely by exposing or masturbating his penis in the taxi.
2.     That the alleged behaviour was indecent.
3.     That the behaviour took place in other than a public place or police station.
4.     That at the time of the behaviour the accused either intended to offend or insult Ms Astley or was reckless as to whether the behaviour offended or insulted Ms Astley.
In my view a taxi is not a “public place” as defined by s4 of the said Act (see Hardman v Mineham (2003) 57 NSWLR 390).
If I accept Ms Astley’s evidence and reject the accused’s evidence as not having raised a reasonable possibility that the exposure as alleged did not happen then I would find the above elements proven beyond reasonable doubt.
A screen was in place for the evidence of Ms Astley and whilst giving evidence she was accompanied by a Court Companion. Accordingly, I direct myself in accordance with s13 of the Evidence Act 1929.
In connection with the onus of proof I remind myself of what was said in R v Calides (1983) 34 SASR 355 per Wells J at 358.
I direct myself that the complaint evidence of the neighbour Mr Graham Stewart is not evidence of the truth of the subject of the complaint but is to be used by me in assessing the credibility, believability or consistency of the complainant’s evidence.
In assessing the circumstantial evidence part of the Crown Case I remind myself of the principles applicable to weighing up such evidence and in particular I remind myself that any inference or guilt must reasonably arise from proven circumstances.
As to the Defence Case I direct myself as follows:
•      that nothing adverse is to be inferred against the accused for declining to answer questions of the interviewing police officers or for declining to take part in an identification parade;
•      that the accused was not obliged to answer the charges by giving evidence but has done so thus exposing himself to cross-examination and so his evidence is to be considered by me on the same basis as other evidence in the trial; and
•      that I have evidence before me of the accused’s good character and so I direct myself in accordance wit the principles set out in R v Trimboli (1979) 21 SASR 577).
Finally, I alert myself to the fact that the exercise is not to evaluate the respective versions but rather to determine whether or not the Crown has proved the elements of Count 2 beyond reasonable doubt.
Arguments - Credibility – Reliability
Counsel for the Crown, Mr Hinton, contended in summary as follows:
•      that Ms Astley’s evidence broadly speaking was internally consistent in the sense that there were no material inconsistencies in what she said both inside and out of court;
•      further, Ms Astley’s evidence was consistent with other incontrovertible evidence in the case such as:
-the known activities of the vehicle both as to place and time; and
-the timing of the two ATM withdrawals at the Gilles Plains Shopping Centre;
•      Ms Astley’s failure to notice the live MDT screen and hear the beeping which plainly did occur was explicable given the fearful experience she was being subjected to;
•      that in general terms the accused’s evidence was a cunning untruthful tale which was woven around the unassailable evidence of for instance the route taken by his vehicle; and
•      that his return to the Clearview area later in the afternoon was a sinister indication that he was seeking to make contact with Ms Astley in the belief that she was sexually interested in him.
Counsel for the accused, Ms O’Connor, made an attack on Ms Astley’s credibility and reliability (624-698). I set out what I regard as the most compelling of her many contentions:
•      that she has failed sufficiently to account for the time between arriving at the shopping centre (say approximately 2.30pm) and the time of giving her statement to the police (say 7.30 pm);
•      that the first two people she complains to, namely her mother and her partner have not come to court to give evidence of the complaint;
•      that notwithstanding the proximity of the police station to the scene of the indecent exposure and she does not report the matter for some five hours;
•      that the fact that the meter was not running is more consistent with the accused’s evidence that this was a free ride;
•      that contrary to her evidence the MDT screen was alive and there was the beeping noise deposed to by Mr Gaitatzis in the course of the journey;
•      the turn off Blacks Road into the backstreets is at least equally consistent with his account, namely that at the intersection there is conversation about the destination being the shopping centre which angers him and he decides to frighten her;
•      the time spent in the backstreets of Gilles Plains is no more consistent with sexual grooming than with the accused remonstrating with Ms Astley about her behaviour;
•      it is highly improbably that he would expose himself in a public car park of a shopping centre as opposed to for instance in Grant Avenue;
•      if Ms Astley’s account of what happened up to the arrival at the shopping centre is correct why did she not direct him to park near the ATM’s rather than at the other end of the centre;
•      that Ms Astley was about to leave to get the fare from the ATM is improbably because there was no fare on the meter or agreed according to her. How much was she going to pay;
•      that Ms Astley awaits the departure of the 4wd vehicle before leaving the taxi why wouldn’t she hurriedly leave the taxi immediately;
•      Ms Astley takes his mobile phone number with the intent of reporting him yet does not do so despite the proximity of the police station; and
•      the accused driving off immediately from the shopping centre is more consistent with his account, namely that she has no money but will ring later and pay the $10.00 agreed.
Credibility – Reliability - Findings
I turn to my findings as to the evidence.
Ms Astley appeared to me to be a straightforward and honest witness. The accused was not so impressive. He was occasionally antagonistic and angry. He was disparaging and condescending of Ms Astley. However, I consider that demeanour can be an elusive indicator of credibility and reliability and I would not therefore accept Ms Astley’s evidence in preference to the accused’s evidence on such a slender basis. Rather, consistency and intrinsic probability bearing in mind the onus of proof are more reliable indicators of what has been proved.
The Crown Case of indecent behaviour is wholly dependent on the evidence of Ms Astley. I accept the complaint evidence of Graham Stewart as showing consistency. There is, however, no corroborative evidence.
So the guilt of the accused beyond reasonable doubt is dependent on myself as the tribunal of fact:
• accepting the evidence of Ms Astley that the accused exposed himself as alleged; and
• accepting also that there is no reasonable possibility that the accused’s denial is true.
Whilst I do not reject the evidence of Ms Astley I am unable to find that she has satisfied me beyond reasonable doubt that the accused was indecent as alleged. I am not satisfied because of:
• firstly, the accumulation of the matters highlighted by me from defence counsel’s arguments; and
• secondly, the evidence of denial from the accused which raises as a reasonable possibility that no such indecency occurred.
The Crown have not negatived as a reasonable possibility that the sexual misbehaviour culminating in the handling and exposure by the accused of his penis in the car park, did not happen.
Put succinctly I consider that what Ms Astley said probably happened, but I am not satisfied that it has been established beyond reasonable doubt to have happened.
Verdict – Findings in disputed fact hearing as to Count 1 – False Imprisonment
Accordingly, I am not satisfied that the Crown have proved beyond reasonable doubt the elements of Count 2. Therefore my verdict in respect of Count 2 is not guilty.
I turn to the disputed fact hearing.
The defendant bears the burden of establishing circumstances of mitigation on the balance of probabilities and the Crown bears the burden of establishing beyond reasonable doubt circumstances of aggravation; (see R v Anderson (1992-93) 177 CLR 520; R v Olbrich (1999-2000) 199 CLR 270; R v Lobban (2001) 80 SASR 550).
The Crown therefore bears the onus of establishing that the purpose of the imprisonment was to curry sexual favours. It is an aggravating circumstance and therefore must be proven beyond reasonable doubt.
The accused contends that the purpose of the imprisonment was to merely frighten Ms Astley and deter her from in the future deceiving taxi drivers like him into giving free rides. This amounts to a mitigating circumstance and must be proven on the balance of probabilities.
In accordance with my findings the Crown have not proven the aggravating circumstance and nor has the accused proved the matter of mitigation. Accordingly, I will sentence the accused for the offence of False Imprisonment on the basis of the bare particulars on the Information. I will give counsel and opportunity to address me on this matter.