RST v Lane
[2012] TASSC 40
•28 June 2012
[2012] TASSC 40
COURT: SUPREME COURT OF TASMANIA
CITATION: RST v Lane [2012] TASSC 40
PARTIES: RST
v
LANE, Richard (Sergeant)
FILE NO/S: 175/2011
DELIVERED ON: 28 June 2012
DELIVERED AT: Hobart
HEARING DATE: 1 February 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons – Whether a preference for one witness over another is a sufficient reason for conviction.
Phillips v Arnold (2009) 19 Tas R 21, applied.
Aust Dig Magistrates [128]
REPRESENTATION:
Counsel:
Applicant: B R McTaggart
Respondent: S Nicholson
Solicitors:
Applicant: Jackson Tremayne & Fay
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASSC 40
Number of paragraphs: 60
Serial No 40/2012
File No 175/2011
RST v SERGEANT RICHARD LANE
REASONS FOR JUDGMENT EVANS J
28 June 2012
The applicant appeals by way of a notice to review against his conviction on three charges of assault with indecent intent in breach of the Police Offences Act 1935, s35(3). With the Evidence Act 2001, s194K(1), in mind, I have adopted the following pseudonyms for those involved:
· Jill for the applicant's daughter.
· Mandy Green for the child who is the subject of the only charge in the first complaint.
· Tanya White for the child who is the subject of the two charges in the second complaint.
· Jan West for the school psychologist.
The particulars of the charges against the applicant are that:
· between 1 February 2010 and 14 May 2010 at Hobart in Tasmania, with indecent intent, he assaulted Mandy Green, a child under the age of 14 years, namely 6 years, by touching and squeezing her bottom over clothing.
· between 11 May 2010 and 14 May 2010, at Hobart in Tasmania, he with indecent intent, assaulted Tanya White, a child under the age of 14 years, namely 7 years, by touching her on her bottom over clothing.
· between 11 May 2010 and 14 May 2010, at Hobart in Tasmania, with indecent intent, he assaulted Tanya White, a child under the age of 14 years, namely 7 years, by touching her on her bottom over clothing.
The applicant was tried before Magistrate Mollard. His Honour found the applicant guilty on each charge. The grounds of review include contentions that the learned magistrate erred:
· in finding that, upon the whole of the evidence, the charges were proved beyond reasonable doubt; and
· in failing to give adequate reasons for his decision.
The issue raised by the first of these grounds is whether there was evidence before the learned magistrate upon which he was reasonably entitled to hold that the charges were proved; Australian Securities and Investment Commission v Hosken(No 2) [2000] TASSC 12 pars[7] and [8], Phillips v Arnold (2009) 19 Tas R 21, par[46], and Smith v McDonald [2010] TASSC 26 par[32]. Insofar as each complainant gave evidence which, if not contradicted, reasonably entitled his Honour to hold that the charges were proved, I am not persuaded that this ground is made out. However, the applicant gave evidence refuting each complainant's allegations. In the unusual circumstances of this case I have concluded that the second ground, that is, that his Honour failed to give adequate reasons for convicting the applicant is made out.
This conclusion is not a criticism of the way in which his Honour performed the very difficult task that was before him. It follows from my view that in the circumstances of this case, which include the age of the complainants, it was realistically not possible for his Honour to provide adequate reasons for rejecting the applicant's evidence refuting the charges. It is not sufficient for a judicial officer to identify the evidence of prosecution witnesses that he accepts and, in substance, state that he prefers it to the contrary evidence of a defendant. This is particularly so where the ultimate issue is whether the prosecution has established guilt beyond reasonable doubt, and that issue turns on a preference for the evidence of prosecution witnesses over the contrary evidence of a defendant. See Phillips v Arnold (supra), pars[56], [64] to [66], [71] and [75].
General background
At the relevant time Mandy Green ("Mandy") was aged 6, and Tanya White ("Tanya") was aged 7. They were students in the same primary school class as the applicant's daughter, Jill.
The first charge against the applicant was that between 1 February 2010 and 14 May 2010, he touched and squeezed Mandy's bottom over her clothing. The sole primary evidence in support of this charge was given by Mandy. The touching was alleged to have occurred on an occasion when Mandy was at after school care, together with children who included the applicant's child Jill. The applicant, who was then 37 years of age, on occasions took his children to school and collected them from after school care. He is the father of three children. His eldest child does gymnastics. The applicant and his eldest child had developed an activity in which the applicant swung this child around in a variety of ways. This activity became something that the applicant did with all his children, and he did so sometimes when waiting with a child or children at school or at after school care. On occasions, when other children so requested, the applicant gave them a turn. The children described the activity as "superheroes". As I read the evidence, and in the light of what I observed Mandy demonstrate in an audio-visual record of interview, in her case it involved assisting her to do a back or forward flip by holding her under each arm and flipping her over. On the evidence of the applicant it also involved the applicant flipping a child and in some way lifting the child onto his shoulder, or simply swinging a child around and putting the child down.
On the evidence of Mandy, at its best from the standpoint of the prosecution, on an afternoon of a school day that was not specified, but which could only have been between 1 February 2010 and 14 May 2010, the applicant gave his daughter and two other children superheroes rides, and then, at Mandy's request gave her two rides. This involved holding her arms and flipping her over. On each occasion when he put her down, he squeezed her bottom after she stepped away. On each occasion she asked for another ride.
The applicant was not interviewed by police in relation to Mandy's allegation. In his evidence before the learned magistrate, he said that he had no recall of giving Mandy a superheroes ride, but acknowledged that when at the school, or at after school care, a lot of children had asked for and been given rides, and she may have been one of them. He had no recall of touching any child, to whom he had given a ride, on the bottom, but acknowledged that it was possible that, in picking a child up and putting a child down, he might have touched a child on the bottom. He denied ever having done so deliberately, and was adamant that he had never squeezed a child on the bottom.
The particulars of the second and third charges against the applicant are the same. Each charge alleges that between 11 May 2010 and 14 May 2010, the applicant, with indecent intent, assaulted Tanya by touching her on her bottom over her clothing. The evidence in support of these charges was provided by Tanya. Her evidence, at its highest from the standpoint of the prosecution, was that on two occasions the applicant touched her on the bottom over her clothing. One incident occurred in the bag room at her primary school when she was at her bag prior to the commencement of school. On this occasion Jill came into the bag room, followed by her father. They had to pass Tanya to get to where Jill was going. As Jill's father passed Tanya he touched her on the bottom. The other incident occurred in the classroom of the primary school as Tanya was getting a chair down prior to the commencement of school. As she was doing so she felt a touch on her bottom, and when she looked around she saw Jill's father passing by.
On Thursday, 20 May 2010, the applicant was interviewed by police in relation to Tanya's allegations. He said that, like other parents who took their children to school, he took his daughter Jill through the classroom and into the bag room. He denied ever consciously or deliberately touching any child on the bottom as he did so, but acknowledged that in the course of moving through the classroom or the bag room he may have inadvertently touched a child on the bottom. His evidence to the learned magistrate was to the same effect.
Neither Mandy nor Tanya made any spontaneous complaint about having been touched by the applicant.
No witness gave evidence to the effect that he or she saw any of the incidents that are the subject of the charges, or saw the applicant touch either child on the bottom on any occasion.
The evidence as to what precipitated the investigation of allegations against the applicant is very scant. It seems that the investigation was prompted by another child in the class that included Jill, Tanya and Mandy. All that can be gleaned from the evidence of Jan West, the school's psychologist, is that on Friday, 14 May 2010 a child in that class had mentioned seeing something that involved Tanya, and had said that Mandy had mentioned to someone that she had been touched. This prompted the school to arrange for Ms West to give the class what she described as a protective behaviour lesson. The lesson was given on Monday 17 May 2010. Ms West said that a purpose of the class was to make the children "understand that there are private or bikini parts" and identify them. She told the children that the bottom area was a private part.
The following is the sequence and substance of Tanya's complaints and evidence.
Tanya to Ms West on Monday, 17 May 2010
Immediately following the protective behaviour lesson, Ms West took Tanya outside and had a one-on-one discussion with her. Initially when she asked Tanya if anyone had touched her bikini parts, Tanya said, "No". When Ms West said to Tanya that someone in her class had seen something, Tanya said that Jill's dad had touched her twice on the bottom.
Tanya to her mother on Wednesday, 19 May 2010
On Wednesday, 19 May, Tanya's mother took Tanya to the police station to be interviewed. On their way to the station, Tanya's mother asked Tanya if anything had happened at school the previous Friday. Tanya responded that there had been a school assembly. Tanya's mother then asked Tanya whether anything else had happened and, after further questioning, Tanya said that when in the classroom Jill's father had touched her on the bottom.
Tanya to police on Wednesday, 19 May 2010
Tanya was interviewed by police on Wednesday, 19 May. An audio-visual recording of this interview was put into evidence pursuant to the Evidence (Children and Special Witnesses) Act 2001, s5. I have viewed it.
In order to get Tanya to talk about having been touched by the applicant, the interviewer found it necessary to take Tanya back to what she had talked to her mother about having happened at school on Friday, and what she had talked to Ms West about. Ultimately Tanya said that Jill's father had touched her on the bottom in the bag room when she was at her bag after her arrival at school. When asked to demonstrate by counting to a number for how long his hand had touched her, she counted to three. When asked what his hand felt like she said "he was like touching very hardly" and then explained "he just pushed it a little". She was asked whether Jill's dad had done this to her before, and she replied that it was the second time. From further answers that she gave, it is clear that she was unsure about which incident occurred first. As to this further incident, she said that when she was getting a chair down from a desk in her classroom, Jill's father walked past with Jill, who was on the way to the bag room, and he touched her bottom. As to how hard the touch was, she said it was a bit soft. She initially said the bag room incident had occurred on Friday. However it is clear from what she later said, that she had said it occurred on Friday as this was the day that her mother and the interviewer had asked her questions about. It is also plain from what she thereafter said that she had no reliable idea of the days when the bag room incident or the classroom incident occurred. That she initially said the bag room incident had happened on Friday demonstrates how susceptible she was to adopting suggestions made by others.
Tanya's evidence on 23 February 2011
Tanya gave evidence on the applicant's trial on 23 February 2011. At the outset of her evidence the audio-visual recording of her interview with police on 19 May 2010 was played, and she was asked to listen to it very carefully.
At an early stage in Tanya's evidence she said, with regard to the incident in the bag room, that she was in the that room with another child next to her when Jill came in followed by her father. Jill and her father had to pass Tanya to get to where Jill was going. Tanya said she was sure she felt a touch on her bottom, but did not see anyone touch her as she was looking in her bag for her jumper. She was not sure whether it was Jill's father who had touched her, whether another child had touched her, or whether she was touched by someone's bag. She agreed that the touching may have been accidental. When asked whether there was much room in the bag room, Tanya said "it was a bit squashy" and that you sometimes felt others as they passed. This is clearly correct. A photograph of the room was put into evidence. It is extremely narrow. It would be virtually impossible to walk through it without making contact with any other person who was in it.
With regard to the classroom incident, Tanya said that upon arriving at school in the morning, it was necessary to remove chairs from three rows of desks. She said the touching occurred as she removed a chair from a desk in the second row near the computers. At the time she was close to children playing on those computers, and other children were getting chairs down. There was not a lot of room between the desks. There were other parents in the room and she could see her teacher, "Everyone was there". She had lifted a chair from a desk, taken a step back, and was just going to put the chair down when she was touched on the bottom. The touch was just a brush. She was facing the desk when she felt the touch. She looked round and saw Jill's dad. She had previously seen Jill. She agreed that it may not have been Jill's dad but someone else, or something else, that had touched her. She agreed that the touch could have been accidental.
Following the above evidence, counsel for the applicant moved to questioning Tanya about what she had or had not said to Ms West, her teacher, other parents who were present, and her mother. Counsel for the applicant then suggested to Tanya that she might like a short break, and thereupon his Honour granted a brief adjournment. Following the adjournment, Tanya agreed that standing where she was in the classroom when she felt a touch, a person would have had to push past her in order to get past her, and what she felt was someone pushing past.
The following is the sequence and substance of Mandy's complaints and evidence.
Mandy to Ms West on Friday, 21 May 2010
On Friday, 21 May, Ms West collected Mandy from her classroom and took her outside, where they spoke. She asked Mandy whether anyone had touched her on her bikini parts, and Mandy told her of another child in her class having done so. She asked Mandy if anyone else had touched her and Mandy denied that they had. It was only when Ms West put to Mandy that Mandy had told someone that she had been touched, that Mandy responded that she had forgotten, and that Jill's father had touched her on the bottom and it had happened at after school care.
Mandy to police on Tuesday, 25 May 2010
Mandy was interviewed by police on Tuesday, 25 May 2010. I have viewed the audio-visual recording of the interview which took about 22 minutes. Throughout the interview, notwithstanding reasonably direct questioning, Mandy made no mention of having been touched by the applicant. The only incident she referred to was one which involved another girl in her class touching her on the back of her pants. She went into that incident in considerable detail. She said that it was the only occasion on which it had occurred. When pressed as to whether anything had happened to her at after school care that she did not like, she referred to incidents that involved other children and made no mention of the applicant.
Mandy to her mother on 30 May 2010
On Sunday, 30 May, Mandy told her mother that there was something she wanted to talk to her about. Her mother asked whether it was something to do with what Jan West and police had spoken to Mandy about, and she said that it was. In response to her mother's questions, Mandy said that Jill's dad had been giving other children a ride called "superman" and she had asked for a ride. At one point in her evidence Mandy's mother said Mandy told her that when the applicant "picked her up he touched her on the bottom". At a later point in her evidence Mandy's mother said Mandy told her that "as she was being put down that's when she was touched". Mandy told her mother that the touching had occurred twice at after school care, once near the gate and once near the toilet. At the time her friends were also playing the game. A little later, when describing what had occurred Mandy said, "And he squeezed me on the bottom", and when her mother asked how, Mandy demonstrated two squeezes. In response to her mother's query as to why she had not said anything about this to police, Mandy said, "I didn't want to make Jill and her mum sad if I got their dad into trouble". Mandy was reluctant to be re-interviewed by police but finally agreed to a further interview.
Mandy to police on 29 June 2010
Mandy was re-interviewed by police on 29 June 2010. I have viewed the audio-visual recording of this interview. She initially denied remembering anything, but following fairly direct questioning agreed that she did not want to get Jill's dad into trouble. In response to a question as to why he would be in trouble she said, "Because he did something to me". She said that it had happened at after school care near the toilet and near the gate, and that he did it two times. She said that she would have to show the police officer what he had done, as her mother had told her to. She then stood and demonstrated that Jill's father had placed his right hand on her right buttock. She said his hand had been outside her clothing and she could feel his hand because, "He like pushed down really hard". She initially said it had occurred, "Two days ago". When asked whether she was sure about that she said, "I think six days ago", and finally added, "I can't remember". She said that at the time she had been playing a game of superheroes which involved Jill's father flipping her over and putting her down. She said that Jill and three other children had been watching, that she liked superheroes, and had played four games, two near the gate and two near the toilet.
Towards of the end of the interview Mandy was asked to use a doll to demonstrate how superheroes was played and how she had been touched on the bottom. When announcing his reasons for convicting the applicant, the learned magistrate said of this portion of Mandy's interview that it stood out, he found it credible and he believed it. He read out part of it. The relevant portion is:
"Q So the times that he touched you, is that when you were playing the game?
A Yes.
…
QWould you mind showing me with dolly this game …?
A Okay.
…
Q Do you want to pretend this is you?
A Yes.
Q Okay. So this is you –
A Yep.
QCan you show me how this touching on the bottom happened? How did it all happen?
A You mean the game?
Q Yeah?
A Well he flipped me over like that and then –
Q Oh wow, a backward somersault?
A - stand me like that.
Q Okay. So how –
A But that flip was up in the air.
Q So where were his hands?
…
A His hand were there.
Q There?
A On the bottom.
QSo he flipped you upside down. Show me how he did it if he's flipped you upside down, you show me what you mean, 'cause I wasn't there so you have to show me?
AHe flipped me upside down like both, he holds my arms and flips me over and then he quickly holded onto me like that.
QOkay. So how did his hand end up up here?
AWell then he puts me down and then I just took one step and then he did that.
QDid he?
AYeah.
QDid that happen the same the second time?
ATwo times, yeah.
QIt happened exactly the same both times?
AYeah.
QSo after he put you down you walked away, he touched you like that?
AYeah.
QDid he say anything?
ANo.
QDid you say anything?
AI said can I have another ride?
QYeah?
AAnd that's all."
During this portion of the interview when Mandy first used the doll to demonstrate what had occurred, she held it by each arm and flipped it over backwards. When the interviewer described this as a backward summersault Mandy corrected the interviewer saying it was a flip in the air. As demonstrated the doll's bottom was not touched. When the interviewer asked Mandy, "So where were his hands?", Mandy responded by touching the doll's bottom with one hand and said, "His hands were here". As this did not explain how the applicant's hand or hands touched Mandy's bottom whilst playing superheroes, the interviewer again asked Mandy to show how it had happened. On this occasion Mandy held the doll by each arm and flipped it over forwards not backwards. Again the demonstration did not show the doll's bottom being touched. So the interviewer pointed to the doll's bottom and said to Mandy, "So how did his hand end up up here?" Mandy responded, "Well then he puts me down and then I just took one step and then he did that". As Mandy said this she pinched the doll on the bottom between her right thumb and index finger. A little later in the interview when again asked, "Where did he put his hand?" Mandy pinched or squeezed the doll on the bottom between her right thumb and fingers.
Mandy's evidence on 22 February 2011
Mandy gave evidence on the applicant's trial on 22 February 2011. At the commencement of her evidence, the audio-visual recordings of her police interviews were played, and she was asked to listen to them very carefully.
As to the occasion of the superheroes rides, she said that Jill had one, and as it looked like fun she asked for one. She felt the touch on the bottom when she had been put down, not as she was being picked up. The touch was for a short time. It was put to her that the touch was not a squeeze and she said, "I can't remember". She gave the same answer to a number of questions, including questions as to whether Jill's father had touched her on the bottom in order to hold on to her for the purposes of the superheroes ride, whether he had accidentally touched her, and whether the touch had occurred while he was putting her down after the ride.
The applicant's interview and evidence
As already mentioned the applicant was not interviewed by police in relation to Mandy's allegation, but was interviewed by police in relation to Tanya's allegation. He gave evidence on his trial. In the interview and his evidence he denied ever consciously or deliberately touching any child on the bottom. In his evidence on his trial he acknowledged that in the course of giving a child a superheroes ride he might have accidentally touched a child on the bottom.
His Honour's reasons for convicting on the charge which relates to Mandy
When announcing his reasons for convicting the applicant, the learned magistrate dealt first with the allegation involving Mandy. His Honour found that the touching occurred on a day that could not be specified when Mandy was on her way to after school care. At Mandy's request the applicant gave her several superheroes rides, and, on two occasions he put his hand on her bottom while putting her down. His Honour said that Mandy and the applicant's descriptions of what was involved in superheroes rides were vague, but the rides clearly involved tumbling or rotating the child's body around the applicant's right arm.
His Honour did not consider that Mandy's reluctance to tell the police about the applicant's conduct detracted from her credit.
His Honour inferred, from Mandy's requests for more rides after being touched, that she did not appreciate the significance of the touching. His Honour said that the process which resulted in Mandy making a complaint may have caused her to think that something untoward had happened, and the reliability of a history from someone who did not appreciate that something untoward had happened maybe of less weight than the reliability of a history from a person who knew at the time that it was untoward.
His Honour said that the obvious differences between what Mandy's mother said she was told about the details of what had occurred and Mandy's account or accounts did not discredit Mandy.
As mentioned in par[29], his Honour read from the portion of Mandy's interview there set out and said that it stood out, he found it credible and he believed it. His Honour said that insofar as her version at interview was diminished by her evidence in Court, and she appeared to have problems with her memory, his Honour paid regard to the delay between the occasion of the touching and the hearing. His Honour said the portion of Mandy's interview that he read from made it clear that the touching took place after she was back down on the ground and after she had taken a step. His Honour said the touching was not and could not have been an accident. The bottom of a human being is a sexual place and it is a taboo area. Having found that the touching was not accidental, his Honour said he was compelled to infer that indecency was the applicant's intent. His Honour convicted the applicant on charge 1, which relates to Mandy.
In order to convict the applicant on this charge his Honour had to reject the applicant's evidence denying that he had ever consciously or deliberately touched any child on the bottom when giving a child a superheroes ride. His Honour did not expressly reject this evidence. What he said of the applicant's evidence is that the applicant did not deny putting his hands on Mandy's bottom and that the events described by Mandy were, "I repeat, not denied in the specifics of the allegations although in another sense and more broadly they are".
Conclusions in relation to the conviction on the charge which relates to Mandy
His Honour said that the obvious differences between what Mandy's mother said she was told about the details of what had occurred and Mandy's account or accounts did not discredit Mandy. His Honour did not better identify those differences. In the course of his decision he said that the only evidence of the applicant squeezing Mandy's bottom came from the evidence of Mandy's complaint to her mother. If that was a difference that his Honour had in mind, it was a mistake. In her interview with police on 29 June, Mandy twice demonstrated the manner in which she was touched with a pinch or squeeze. The conflicts with this portion of her interview come from an earlier demonstration she gave of the touch, which did not involve a pinch or squeeze, and an earlier statement in the interview that she could feel his hand because, "He like pushed down really hard". Some doubt is cast on her demonstrations of having been squeezed or pinched, by her evidence at trial that she could not remember whether "the touch was not a squeeze". With regard to this evidence it should be kept in mind that the occasion when the touching involving Mandy is alleged to have occurred is between 1 February 2010 and 14 May 2010. The police interview which includes the portion of her evidence that was accepted by his Honour was on 29 June 2010. She was shown an audio-visual recording of that interview at the commencement of her evidence on 22 February 2011.
A difference of some significance between Mandy's complaint to her mother and the portion of her police interview that his Honour accepted is when it was in the course of the superheroes rides that she was touched on the bottom. The timing of the touch is of significance because if, as his Honour found, it occurred after Mandy was placed on the ground and had taken a step, there was a reason to infer that it was deliberate and not accidental, and it was indecent.
At one point in her evidence, Mandy's mother said that Mandy told her that she was touched when the applicant picked her up and, at a later point in her evidence, Mandy's mother said Mandy told her she was touched as she was she was being put down. At no point did Mandy's mother say that Mandy complained of being touched after she had been put down and was walking away. Mandy's mother said that Mandy told her she had been touched twice at after school care, once near the gate and once near the toilet, that is, at two separate locations. In her police interview Mandy twice demonstrated what had occurred without touching the bottom of the doll. It was only when the interviewer queried how the applicant's hand had touched her bottom that Mandy said that he put her down and she took a step and then (as demonstrated by Mandy) he pinched her. With respect, this smacks of reconstruction. The reliability of her evidence in this regard was further diminished by her inability, when she gave evidence on the trial, to remember whether Jill's father had touched her on the bottom in order to hold onto her for the purposes of a superheroes ride, whether he had accidentally touched her, or whether the touch had occurred while he was putting her down after the ride.
In order to convict the applicant his Honour had to reject the applicant's evidence. The clear effect of his evidence was that he gave his children and other children superheroes rides on occasions when at after school care. He had no recall of giving Mandy a ride, but acknowledged that a lot of children had asked for and been given rides and she may have been one of them. He had no recall of touching any child on the bottom when giving a ride, but acknowledged that, it was possible that in picking a child up and putting a child down, he might have touched the child on the bottom. He denied ever having done so deliberately, and was adamant that he had never squeezed a child on the bottom. His evidence was about incidents that were alleged to have occurred on an unspecified day between 1 February 2010 and 14 May 2010. To my mind, there is nothing inherently improbable about the applicant being unable to specifically recall having given Mandy a superheroes ride, or his denial that he had ever consciously or deliberately touched a child on the bottom as he gave a ride.
With regard to the applicant's evidence, his Honour, at one point said that the applicant did not deny putting his hands on Mandy's bottom, and at a later point said that the events described by Mandy were, "I repeat, not denied in the specifics of the allegations although in another sense and more broadly they are". With respect, this understates the effect of the applicant's evidence. Whilst he acknowledged that he may have given Mandy a superheroes ride and that it was possible that in giving a ride he may have accidentally touched a child on the bottom, he specifically denied ever having done so deliberately. He was also adamant that he had never squeezed a child on the bottom. If the applicant genuinely had no recall of having given Mandy a superheroes ride, it is difficult to see what more he could have said by way of a denial of the allegations based on her evidence.
The applicant was not interviewed by the police in relation to Mandy's allegations, but was interviewed in relation to Tanya's allegations. With regard to that interview, his Honour said that when it began, Tanya's allegation was explained to the applicant, but when some eight pages later he was asked about touching Tanya, the applicant reacted as if surprised. His Honour said that except for this possible instance of feigned surprise, there was little or nothing adverse to the applicant that was worthy of mention that arose from his demeanour during the interview.
I have viewed this portion of the applicant's interview. After the applicant was asked about the names of his daughter's friends and was asked whether he knew Tanya, which he denied, he was asked, "Okay, has there been um ever a situation where you've touched any of the children on the bottom?" He said that he had not consciously done so, but the classroom was a bit pokey and he may have touched a child when passing. I am unable to draw any adverse inference from my observations of the applicant's reaction to this question. With regard to the applicant's evidence on the trial, his Honour said that he thought his demeanour was perhaps less compelling than it was in the interview.
In summary, in the course of his Honour's reasons for decision, he identified the portion of the evidence of Mandy that he accepted, and said it stood out, was credible and he believed it. His Honour also referred to matters that might be thought to diminish Mandy's credibility and in substance said that they did not. However, his Honour gave no substantive reason for rejecting the applicant's evidence denying that he had ever touched a child on the bottom deliberately. His Honour gave no reasons to explain why he was satisfied beyond reasonable doubt that Mandy's evidence should be preferred over that of the applicant. This is why, as foreshadowed in pars[4] and[5], I allow the notice to review the first conviction. The applicant's conviction on charge 1 is quashed.
His Honour's reasons for convicting on the charges which relate to Tanya
After dealing with the charge that relates to Mandy, his Honour dealt with the evidence on the two charges that relate to Tanya.
His Honour briefly, but sufficiently, summarised the evidence in relation to these incidents in terms that are not inconsistent with that set out in pars[18] to [22] of this decision.
His Honour concluded that Tanya had been touched on the fleshy part of her bottom outside her clothes. He commented that whilst in her interview, Tanya said she was very sure about the days of the incidents, "She … certainly didn't end up making it very clear either to me, or I think to her interviewer".
With regard to the applicant's police interview in relation to Tanya's allegations and his evidence to the court, his Honour commented that except for the possible instance of feigned surprise in the police interview to which I have referred in par[45] of these reasons, there was little or nothing adverse to the applicant that was worthy of mention that arose from his demeanour during the interview. With regard to the applicant's evidence in court, his Honour said his demeanour was perhaps less compelling than it was in the interview.
As to the applicant's interview, his Honour said, it comes down to the applicant not admitting any actual contact, conceding possible contact when trying to push past a group of children in a confined space, but saying that if his hand touched the bottom of a child it was not intentional. His Honour noted that when the applicant was asked about the height differential between his hand and that of a child, the applicant pointed out that his height was five feet six inches.
With regard to Tanya's evidence to the court, his Honour said that some inroads were made in Tanya's cross-examination, but she was 7 and her ability to remember events nine months later was therefore limited. His Honour noted that she tired easily and that her concentration had wandered to the extent that he had granted an adjournment at one stage. He said that it was at such times that her responsiveness was greatly diminished and, "This naturally influences the weight that should be given to the evidence overall, but far more so to … the weight that I might give the concessions or doubts in cross-examination". His Honour continued:
"The evidence in the interviews at the time was compelling and one could not doubt that the events took place if that was all that one listened to, and I repeat, the allegations are – and never were denied.
So again I conclude that Tanya was touched on the bottom on both these occasions. Was it an accident? I think not. I note the following dot points:
· The relative likely heights of hand and bottom.
· That moving through a crowded space one turns, avoids contact as much as possible. Sometimes if necessary one lifts one's arm or arms.
· One will always say, 'Excuse me' and ask the person to move or even go another way.
· This is the same child in similar circumstances within days.
The whole business of an adult making his way through a class situation like this troubles me. It shows a willingness to create the near certainty of actual physical contact in my opinion."
His Honour convicted the applicant on both of the charges that relate to Tanya.
Conclusions in relation to the convictions on the charges which relate to Tanya
There was good reason for his Honour to provide detailed reasons for why he preferred the evidence of Tanya over that of the applicant. When Tanya was cross-examined significant inroads were made into the allegations based on her evidence. Referrable to the bag room incident, she said she did not see anyone touch her, and she was not sure whether she was touched by Jill's father, another child, or someone's bag. With regard to the classroom incident she agreed that standing where she was a person would have to push by in order to pass, and that it may not have been Jill's dad but someone else, or something else that had touched her. With regard to both incidents she agreed that the touching could have been accidental.
In relation to these inroads his Honour referred to Tanya having been tired, and having lost concentration, and said that this naturally influences the weight that should be given to her evidence, but far more so the weight that should be given to the concessions she made when cross-examined. His Honour did not further explain this comment. With regard to it I make the observation that insofar as tiredness or lack of concentration impacts on evidence, it impacts similarly on evidence whether the evidence is for or against a particular proposition. I add that there is nothing in the transcript of Tanya's evidence to indicate that when she made the concessions mentioned she was tired or not concentrating.
I am not persuaded by his Honour's view that an adult who makes his way through a primary school class in the circumstances in question shows a willingness to create the near certainty of actual physical contact with children, and this, coupled with the reasons set out in the four dot points quoted in par[53], shows that that the applicant's touching of Tanya was not an accident. The undisputed evidence is that other parents took their children through the classroom and into the bag room. Tanya said that when she felt the touch as she removed a chair from a desk, there were other parents in the classroom and in her words, "Everyone was there". The presence of other parents in the classroom casts doubt on the inference drawn by his Honour from the applicant's willingness to enter that room. Moreover, the finding that the applicant deliberately touched Tanya on the bottom finds no support in her evidence that she did not see who touched her, and could not say whether she was touched by the applicant or another child, or something else, or by accident.
In order to convict the applicant, his Honour had to reject his evidence. My observations in relation to the applicant's evidence refuting the allegations based on Tanya's evidence are much the same as those that I have made about his evidence refuting the allegations based on Mandy's evidence.
There is nothing inherently improbable about the applicant having been unable to specifically recall pushing past Tanya and touching her in the process. He acknowledged that he may have done so, but denied ever having done so deliberately. With this in mind I consider that his Honour understated the effect of the applicant's evidence with regard to the allegations arising from Tanya's evidence when his Honour said, "I repeat, the allegations are – and never were denied". Whilst the applicant acknowledged that it was possible that he may have accidentally touched a child on the bottom when passing through the classroom or the bag room, he specifically denied ever having done so deliberately. If he genuinely had no recall of having done so, it is difficult to see what more he could have said by way of denying the allegations based on Tanya's evidence.
I conclude that his Honour's reasons for rejecting the applicant's evidence denying that he had ever touched a child on the bottom deliberately are insufficient. They do not adequately explain why his Honour was satisfied beyond reasonable doubt that Tanya's evidence should be preferred over that of the applicant. It is for these reasons that, as foreshadowed in pars[4] and [5], I allow the notice to review the second and third convictions. The applicant's convictions on charges 2 and 3 are quashed.
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