RKF v Scott - [2016] TASSC 42

[2016] TASSC 42

COURT: SUPREME COURT OF TASMANIA

CITATION: RKF v Scott [2016] TASSC 42

PARTIES:  RKF
  v
  SCOTT, Senior Constable

FILE NO:  1958/2015
DELIVERED ON:  29 July 2016
DELIVERED AT:  Hobart
HEARING DATE:  6 May 2016
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Obligation to provide sufficient reasons for decision – Duty to deal with counsel's submissions.

Aust Dig Magistrates [1348]
Australian Securities Commission v Schreuder A79/1994; James v Eyles [2007] TASSC 55, applied.

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  S Thompson
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 42
Number of paragraphs: 31

Serial No 42/2016
File No 1958/2015

RKF v SENIOR CONSTABLE SCOTT

REASONS FOR JUDGMENT WOOD J

29 July 2016

The applicant was charged with one count of indecent assault. He pleaded not guilty and a hearing was conducted before Deputy Chief Magistrate Daly. His Honour found the charge proved and delivered written reasons. The applicant seeks a review of the decision on the basis that the learned magistrate gave inadequate reasons in three respects.
The particulars of the charge are that the applicant touched the complainant on her breast and her groin. The prosecution case is that on 21 March 2014 the complainant was sleeping on a couch when she woke to find the applicant lying beside her. The complainant gave evidence that the applicant had his hand in her underpants, touching her vagina. His other hand was underneath her bra, rubbing her breast. The complainant tried to remove his hand from her pants and threatened to call out to his wife. He persisted and said to her, "She won't hear you". The complainant managed to move his hand away and get away from the applicant, bringing an end to the assault.
The complainant was aged 17 and was at college. The background to the incident was that she was living with the applicant and his then fiancé (now wife). The complainant had had an argument with her parents and moved out of home. She knew the applicant's wife and also the applicant as he had been married to her aunt. The applicant's wife offered that the complainant live with them.
The prosecution case consisted of:
·The complainant's evidence of the incident.
·The complainant's early complaint to her school principal and a police officer and evidence of her distressed state at the time of making her complaints.
·Forensic evidence of a DNA profile detected on the inner surface of the right cup of the complainant's bra. There was a mixed DNA profile and there was male DNA present from at least two contributors. There was a major and minor contributor and the major profile matched the Y chromosome profile obtained from the applicant. It was 140 times more likely that the applicant or a relative from his male line was the source of that DNA than an unrelated male selected randomly from the Tasmanian population.
·The applicant's record of interview, in which he admitted lying next to the complainant on the couch and putting his arm around her. His explanation was that the complainant was crying and talking in her sleep and that he was consoling her. He admitted that after the complainant woke she "flew up off the couch".
·Sexually explicit text messages that had been sent from the applicant's phone to the complainant's phone several days prior to the incident.
The defence case relied on exculpatory statements that the applicant made in his police interview denying the allegations of indecent assault and denying that he had sent the sexually explicit text messages. The applicant did not give evidence at the trial but adduced evidence from his wife.
The defence challenged the prosecution case on a number of fronts and sought to elicit support for the applicant's version of events recounted in his interview. The applicant's submissions at the hearing of the review maintained that the applicant's case at trial rested on four bases. These are worth mentioning as they provide a convenient summary of some of the key issues and a context for the grievance about the reasons. The first base was that the applicant had been comforting the complainant and not indecently assaulting her. The second base was that the applicant had not sent the complainant text messages showing a sexual interest in her. The defence adduced evidence that the applicant had been at a netball match during the time when the messages were meant to have been sent and that other people often used his phone while he was playing netball. The defence focussed upon the complainant's evidence that, at the time the messages were received by her, she and the applicant were sitting together on a sofa, and evidence which emerged during cross-examination that she recalled seeing him using his phone. The third base was that the complainant's evidence of the physical mechanics of the alleged incident was vague and demonstrated a lack of recall of how the indecent assault had occurred. The fourth base was that there was a reasonable explanation, consistent with innocence, for the presence of a DNA profile matching that of the applicant on the complainant's bra.
The ground of review asserts that the learned magistrate failed to give sufficient reasons for finding the complaint proven in that he failed to give sufficient reasons for accepting the evidence of the complainant. At the hearing of the review, the applicant submitted that having regard to the conduct of the defence case, both in the way evidence was adduced and in the matters raised in closing submissions, the learned magistrate was obliged to state reasons on three issues, namely:
·The "failure of the complainant to give evidence of the physical mechanics" (ie actions) involved in the indecent assault.
·The "about face" in the complainant's evidence of whether she saw the applicant using his phone at the time she received the first of a series of sexualised text messages.
·The acceptance of the complainant's version of what had occurred, as against the exculpatory account given by the applicant in his record of interview.
It was submitted that the reasons were deficient on these three issues. The magistrate's reasons are lengthy. Later, I will set out in context some of the relevant parts of the reasons. In essence, the learned magistrate's reasons for finding the complaint proved beyond reasonable doubt were:
·The complainant was a credible witness and he had no difficulty accepting her account of the incident.
·A finding that the complainant made the complaint to the school principal and police, occurring within hours of the incident the subject of the charge.
·The complainant's version of events was corroborated by complaint evidence; the complainant acted in a way that was consistent with her evidence being true.
·There was a consistency between the making of her complaint to the school principal and police and her evidence of what occurred.
·The evidence that she was distressed and frightened at the time of making her complaints supported the prosecution case.
·The applicant's interview with police, his answers to police questions and his wife's evidence did not cause his Honour to doubt the complainant's version.
·The applicant made admissions to police about certain aspects of the alleged conduct, in that he lay beside her and cuddled her while she was asleep. These admissions were consistent with aspects of the complainant's account.
·The applicant's exculpatory account to police had not been given on oath and was untested by cross-examination, which affected the weight to be given to it.
·The learned magistrate rejected any suggestion that the applicant was consoling the complainant and that she misunderstood what was happening.
·The magistrate found the applicant's wife to be generally an unsatisfactory witness. He referred to an instance of exaggeration, and matters which impacted on her reliability and an instance of "mistaken certainty". His Honour stated: "For these reasons I did not feel comfortable accepting her evidence."
·The magistrate was satisfied that the applicant sent the text messages. Further, the content of the messages showed beyond any doubt that the defendant had a sexual interest in the complainant. This interest was demonstrated 10 days prior to the commission of the alleged offence.
·The magistrate did not accept as a reasonable possibility that a male relative of the applicant had touched the complainant's bra. In the context of all the other evidence, the learned magistrate was satisfied beyond reasonable doubt that the presence of the DNA was a consequence of the applicant touching it. Furthermore, he was satisfied that the presence of the applicant's DNA was not the result of any accidental contact or because of an innocent explanation. The DNA evidence was another circumstance supporting the complainant's version of events.
His Honour concluded that the evidence on the prosecution case established beyond reasonable doubt that intentional touching occurred as alleged, without the complainant's consent, and that the applicant had an indecent intention or purpose, namely to arouse or gratify his sexual interest in the complainant, when he touched the complainant in that manner. His Honour found the charge proved beyond reasonable doubt.
The notice to review concerns the obligation to give reasons and, in particular, the need to deal with submissions made by counsel. In Australian Securities Commission v Schreuder A79/1994, it was stated by Underwood J (as he then was) at 6:
"In the present case, the judicial duty required the learned magistrate, with respect to each count, to at least:
1 Make findings with respect to the essential facts relied upon by the complainant and the defendant relevant to the elements of the charge.
2 Where the evidence with respect to those facts was in dispute or unclear, state the basis for making such findings.
3 Where appropriate, state what inferences he drew from the facts found and where necessary, the basis for drawing such inferences.
4 To expose the reasoning process which resulted in the orders made to the scrutiny of the parties and any appellate court."
Relevantly, his Honour stated (at 11) that "there is a clear obligation upon a judicial officer to deal with relevant submissions made by parties to litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done." The obligation to give reasons dealing with submissions, as stated by Underwood J, was dealt with by Crawford J (as he then was) in James v Eyles [2007] TASSC 55 at [27]:
"I agree with two reservations. The first is that the submissions must be material and not merely relevant. The duty to give reasons does not impose an obligation to deal with every argument or to discuss all possible permutations of fact or law to which the magistrate could have adverted. Kain v Glamorgan Spring Bay Council A19/1996 at 13. The second is that a failure to deal expressly with such a submission may not breach the requirement to state reasons. So long as the reason for rejecting a material submission can be found upon a consideration of all of the reasons for the decision, that will be sufficient. Further, a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process is not required. Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259."
It is worth returning to Schreuder and the context of the statement as to the court's obligation to deal with submissions. In that case, there was a failure to make any findings of fact with respect to a critical aspect of the charges in question being the falsity or misleading nature of particularised statements. His Honour noted:
"The falsity or misleading nature of the particularised statements was a critical aspect of counts 1-6 inclusive. Not only did the learned magistrate fail to make any findings of fact with respect to this matter, but he failed to express any view at all on the submissions made to him by the prosecutor with respect to this essential issue. Again the learned magistrate referred to the defendant's honest and reasonable mistake of fact, but he did not state what facts he found relevant to that issue. Further there is no reasoning process to show why the failure to exclude an honest and reasonable but mistaken belief was exculpatory." (At 11.)
What is sufficient to fulfil the obligation to give reasons in a given case will always depend on the circumstances of the case (R v Arnold [1999] 1 VR 179 at 181-182 [8]; James v Eyles at [28]).
It is submitted that the reasons were deficient in view of the clear obligation to deal with relevant submissions. Even adopting the less onerous approach in James v Eyles, it is submitted that the obligation was not fulfilled and there was a failure to deal with submissions that were "material".
I turn to consider the reasons in more detail with reference to the asserted deficiencies.
The first asserted deficiency in the reasons is said to be that the reasons did not address the "failure of the complainant to give evidence of the physical mechanics" involved in the indecent assault. The evidence of the complainant about what transpired is set out in the learned magistrate's reasons as follows. She woke to find the assault taking place. The applicant was touching her groin and moving his hand further down between her legs. The contact with her breast was described as "full on grabbing and rubbing it". The complainant also described that the applicant had an erect penis against her buttocks and she could feel "like he was humping me kind of". The complainant said she thought "what the hell" and tried to move his hand from her pants, but he was too strong and she could not do that. She grabbed onto the side of the couch and tried a couple of times to pull herself up, but she did not succeed. The complainant gave evidence that she told the applicant, "if you don't stop, I'll call out to A". He replied, "she won't hear you". The complainant said, "I got his hand away from my vagina and grabbed the side of the couch and jumped off the couch."
The submission was made before the learned magistrate that the inability of the complainant to fully articulate the mechanics of how the indecent assault had occurred meant that her evidence was "lacking in fundamental aspects", and "should give the Court serious concern about accepting her evidence beyond reasonable doubt". The "fundamental aspect" said to be lacking is that the complainant could not describe where the applicant's right arm was, relative to the complainant's body. It was pointed out in submissions before the learned magistrate that she could not say whether his arm was over her or under her body.
The learned magistrate's reasons relevant to this submission are as follows:
"I found the complainant to be a credible witness. I had no difficulty whatsoever accepting the idea that [the defendant] lay down on his right side behind the complainant, who was also lying on the couch on her right side. I had no difficulty accepting the proposition that he might place his right hand around her shoulder in order to reach her right breast and then to place his left hand down her pants. I am content to make this finding regardless of whether the complainant has a specific memory the whether [sic] the defendant's right arm was around her shoulder or neck – or that she had no memory of the defendant placing his arm there. It must be recalled that the complaint's [sic] evidence was that she woke to find the defendant's right hand on her right breast." (At [62].)
These remarks are responsive to the submissions and reveal the magistrate's reasoning. His Honour could see no difficulty in the complainant's account of how the indecent assault occurred. It is apparent that he considered that the complainant's lack of memory about the placement of the applicant's right arm was not significant and did not have any implications for whether he accepted the complainant's account. He was mindful of her circumstances and that she had woken to find the applicant's right hand on her right breast. It is not in the least surprising that the complainant could not remember such a detail in the circumstances she found herself in, having just woken. The situation was not static, the applicant was moving his hands, and she was making other observations: his penis was pressing against her, she was engaged in trying to move his hand, and he was not desisting. In light of the stressful situation that the complainant found herself in, the matter of where the applicant's right arm was placed was, at most, a peripheral detail.
It was submitted that the reasons referred only to a finding that the complainant was a credible witness, but did not express a finding about whether she was a reliable witness in view of her lack of recall about the placement of the applicant's right arm. However, it is apparent from his Honour's reasons that her lack of memory on this point did not impact on his Honour's finding about the applicant's conduct. It is plain that, in the learned magistrate's assessment of the evidence, the complainant's lack of memory on this point was immaterial.
In conclusion, the reasons are expansive given the weak nature of the submission made before the learned magistrate.
The second asserted deficiency in the reasons was his Honour's treatment of evidence given by the complainant during cross-examination. It was submitted before the learned magistrate that he could find that the complainant had reconstructed her evidence because of an "about face" in her evidence as to her observations of the applicant at the time she received the first of the text messages. At first the complainant said she did not remember the applicant holding his phone when she received the text message. After some further cross-examination she said she could recall that.
The passages of evidence referred to are as follows:
"And where was [the defendant] when that text message was received by you?......Like on the other side of the couch.
Who else was on the couch, if anyone?......I can remember [A] being on the couch.
Yes……But I don't remember if there was any kids.
[…]
MR CANGELOSI: (Resuming): You didn't see [the defendant] holding his mobile phone, did you?......On the couch?
Yes……I don't remember.
Okay. So, going back in your recollection of it, you see the text message come in on your phone, do you look over at [the defendant]?......Yes, actually, yes.
Right. And when you looked over at [the defendant] he didn't have his phone in his hand, did he?......Yes, he did.
Oh, he did have his phone in hand?......Yes.
Okay. So a minute ago when I just asked you if he had his phone and you said he didn't or you didn't recall –
HIS HONOUR: No that's – no, she said she didn't remember –".
The magistrate then questioned the fairness of the questioning, and after an exchange about that, cross-examination proceeded as follows:
"MR CANGELOSI: (Resuming): So, the recollection that you've just described of seeing [the defendant] holding a mobile phone, that is one hundred percent certain?......Can you please tell me what recollection means?
Okay. Do you – you just say that you remember seeing him holding his mobile phone?......Yeah.
Okay. And your memory of that is one hundred percent certain?......Yes.
Right. And so this one hundred percent certain memory that you have, you did not have a few minutes ago when I asked you a different question?
[…]
WITNESS: Okay. Because when you first asked me I understood the question but then when you said to me, 'Do you – did you receive the text message from [the defendant] and then look over to him?' that reminded me that when I received that text message I did look straight over to [the defendant] because we were next to each other.
MR CANGELOSI: (Resuming): Right……So you jogged my memory of that time by putting it into the words that you did."

In closing submissions before the learned magistrate the evidence was highlighted and it was submitted that the complainant appeared to be reconstructing her memory during the course of the evidence.
The learned magistrate's conclusions regarding the text messages include the following:
"In my view, the evidence so strongly supports the version given by the complainant – that the defendant was the author of the messages – that it is the only finding reasonably open. The complainant was not clear about precisely who was where at the time she received and subsequently responded to the messages. However, the evidence so strongly supports the inference that it was the defendant who sent those messages that it would, in my view, be perverse to find otherwise. There is no other person than the defendant who, in my view, may have sent those messages to the complainant using the defendant's phone. I find, beyond reasonable doubt, that the entire exchange set out earlier in these reasons was between the complainant and the defendant. Further, the content of the text messages shows beyond any doubt that the defendant had a sexual interest in the complainant. Those messages included references to her vagina and joining her in the shower. There was a temporal connection between those texts on 11 March 2014 and the date of the alleged indecent assault on 21 March 2014."
Notably, in the above paragraph the learned magistrate stated that, "The complainant was not clear about precisely who was where at the time she received and subsequently responded to the text messages". This encapsulates the occasion which is the subject of submissions on review. The learned magistrate did not ground his conclusion that the applicant sent the text messages on the observations that the complainant made during the incident in question. Independently of her evidence, he found that the applicant sent the text messages. It is also apparent that he did not regard the complainant's recall during cross-examination as undermining her credibility. At an earlier stage of his reasons, his Honour expressed the finding that the complainant was a credible witness. The learned magistrate was urged by defence counsel to regard the answers as a reconstruction. Of course, they could also be regarded as genuine recall triggered by cross-examination.
The so-called "about face" is not a point which objectively had to be viewed as raising a material matter needing to be addressed by the learned magistrate in his reasons. The fact that it was perceived as so by counsel is not determinative of the obligation to provide reasons. Clearly, judicial officers are not required to slavishly address all issues raised by counsel and characterised by counsel as significant or telling. The interests of justice would not be served by such an obligation. The submission made was merely potentially relevant, depending on the magistrate's view of the evidence, to the material question of the credibility of the complainant. The learned magistrate's reasons on the material issue were adequate.
The third deficiency in the reasons was said to be that the learned magistrate did not explain why he accepted the complainant's version of what occurred, as against the exculpatory account given by the applicant in his record of interview. It was submitted before the learned magistrate that the account given by the applicant in his record of interview, that he had comforted the complainant whilst she was crying in her sleep, was capable of causing a reasonable doubt as to whether an indecent assault had actually transpired. It was argued that the learned magistrate accepted the competing account given by the complainant and failed to give adequate reasons for doing so. At the hearing of the review, it was argued that the learned magistrate did not expressly find the complainant believable or expressly accept her evidence because she was telling the truth. The argument was said to have added force because of the other two deficiencies in the reasons as to the "mechanics" of how the assault occurred and the "about face".
The reasons, as summarised at [8], reveal that the learned magistrate found the complainant to be a credible witness and it is apparent that he accepted her evidence about the assault. It is implicit that the learned magistrate's assessment of the complainant was that she was a believable witness who appeared to tell the truth. Otherwise, he could not have found her to be a credible witness. He made express findings regarding the text messages, complaint evidence and the DNA evidence, which supported her version of events. He addressed defence criticisms of her evidence and rejected the submission that those criticisms were telling. He expressly rejected the exculpatory account given by the applicant that he was comforting the complainant. Whether his Honour rejected it because it was unconvincing, inherently improbable, or inconsistent with an account which he accepted, or a combination, is not apparent. It is clear from the reasons that the learned magistrate did not consider that the exculpatory explanation given to the police during the applicant's interview raised a reasonable doubt. It is understandable that he focussed on the prosecution evidence rather than dwelling on the applicant's account. Rejection of an accused's account does not relieve the prosecution, in any way, of the burden to establish guilt beyond reasonable doubt. There is no merit in the criticism of the reasons with regard to this third issue. The learned magistrate adequately exposed his reasoning as to why he accepted the complainant's account.
The ground of appeal fails as the learned Deputy Chief Magistrate gave sufficient reasons for accepting the evidence of the complainant. It can be seen how the magistrate reached a finding of guilt. The motion to review is dismissed.