RV (A Child) v Charlesworth
[2022] WASC 238
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RV (A CHILD) -v- CHARLESWORTH [2022] WASC 238
CORAM: CURTHOYS J
HEARD: 27 MAY 2021
DELIVERED : 26 JULY 2022
FILE NO/S: SJA 1002 of 2021
BETWEEN: RV (A CHILD)
Appellant
AND
MICHAEL STUART CHARLESWORTH
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S DEWSBURY
File Number : JO 188 of 2020, JO 189 of 2020, PE 4220 of 2020
Catchwords:
Criminal law ‑ Appeal against conviction ‑ Indecent assault ‑ Whether magistrate erred in fact in finding appellant guilty ‑ Whether verdict unreasonable or unsupported by evidence - Credibility of witnesses - Inconsistencies in evidence - Finding that inconsistencies attributable to alcohol consumption
Legislation:
Criminal Code (WA), s 323
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A E Eyers |
| Respondent | : | G Beggs |
Solicitors:
| Appellant | : | Equus Chambers |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
B v Coan [2021] WASC 127
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dayananda v The State of Western Australia [2021] WASCA 11
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jago v The State of Western Australia [2022] WASCA 2
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
MEN v The State of Western Australia [2020] WASCA 118
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27
CURTHOYS J:
Introduction
On 14 February 2020, the appellant, RV, attended a surprise 18th birthday party in Mindarie. During the course of the party, the appellant is alleged to have had a number of physical interactions with two teenage girls, ALM and EHS (the complainants). The appellant was aged 17 at the time. The appellant was subsequently convicted after trial in the Children's Court of three charges of unlawful and indecent assault against the complainants, contrary to s 323 of the Criminal Code (WA). The appellant now seeks leave to appeal against the conviction.
The appellant applies for an extension of time in which to appeal.[1] The respondent did not oppose the application. I am satisfied that it is in the interests of justice that the extension of time in which to appeal be granted.
[1] Application for extension of time dated 13 January 2021.
The appellant appeals against his conviction on two grounds. First, that the learned magistrate erred in fact when finding the appellant guilty of all charges when the verdicts of guilty were unreasonable or unsupported having regard to all the evidence. Second, that the learned magistrate erred in fact when attributing inconsistencies between the complainants' evidence as to the existence of key events during which the offending conduct was said to have occurred, to their alcohol consumption, making them honest but genuinely mistaken witnesses.
For the following reasons, I have determined that leave to appeal is refused and the appeal is dismissed.
Children's Court proceedings
On 14 April 2020 and on 20 October 2020, the appellant was charged that on 14 February 2020, he unlawfully and indecently assaulted the complainants, contrary to s 323 of the Criminal Code.[2]
[2] Prosecution notice lodged 14 April 2020, charge numbers JO 188 - 189/2020; Prosecution notice lodged 20 October 2020, charge number PE 4220/2020.
The appellant pleaded not guilty to all charges and stood trial between 21 and 23 October 2020 and on 26 October 2020. Closing addresses occurred on 2 November 2020.
On 6 November 2020, the learned magistrate convicted the appellant of all charges. The appellant was placed on a six-month community-based order with program and supervision requirements.
The prosecution case
The prosecution case was that on 14 February 2020 a surprise 18th birthday party was held at a residential address in the suburb of Mindarie. The party was arranged by DP for his friend, TH. The appellant was an invited guest to the party as he was a school friend of TH, DP and others, including XB. The initial surprise occurred on the ground level of the address before the celebrations proceeded to an upstairs living area that adjoined a balcony. The complainants attended the party with XB. The complainants knew XB and DP through their shared employment. The complainants were school friends with another of the party attendees, ES.
At around 8.00 pm, ALM was sitting beside the appellant on a couch on the upper floor balcony. The appellant moved his hand on ALM's upper thigh or buttock area. ALM attempted to move away by sitting on the couch opposite them but the appellant moved to sit beside her. The appellant leant on AHS and placed his hand on her thigh. At a later point, when ALM and EHS were inside the address, the appellant approached ALM from behind and placed his hand on her right buttock. The prosecution relied on these acts as one continuing assault (the first assault).[3]
[3] Charge number JO 188/2020.
Later in the evening, ALM, EHS, ES and the appellant left the party on foot intending to walk to EHS' house. EHS and ES were walking slightly ahead of ALM and the appellant. The appellant placed his hand down the back of ALM's skirt and firmly grabbed her left buttock over her underwear. ALM tried to pull the appellant's arm away and asked him what he was doing. The appellant told her to 'just let it happen'. ALM tried to move forward but the appellant placed his left arm across her front and grabbed her right breast, digging his fingers into her side. ALM told the appellant to stop but he did not until she managed to step back (the second assault).[4]
[4] Charge number PE 4220/2020.
ALM and ES then began walking ahead of EHS and the appellant. EHS stopped due to a pre-existing injury with her foot. The appellant placed his left arm around EHS ostensibly to assist her. The appellant then reached down the front of EHS' shirt and placed his left hand on her bare left breast. The appellant applied firm pressure with his hand. He then slid his hand over her right breast and squeezed his hand such that it hurt her. EHS said words to the effect of 'what are you doing' and the appellant replied, 'it's okay, you want this'. EHS said 'No, I don't. Get off me. Please stop'. The appellant then removed his left hand from her shirt and placed it under her skirt onto her left buttock. The appellant moved his hand to the centre of her buttocks and tried to move it forward underneath her, towards her vaginal area, but his hand did not go between her legs.
The appellant also placed his right hand over EHS' breast then moved it up towards her face. The appellant's hand slipped, and his finger entered EHS' mouth. EHS attempted to make noise to get the attention of ES and ALM but her voice was muffled by the appellant's finger. EHS eventually managed to pull free from the appellant and run towards ES and ALM (the third assault).[5]
[5] Charge number JO 189/2020.
The prosecution evidence
The prosecution called nine witnesses at trial being ALM, EHS, ES, ALM's mother, XB, DP, TH, JB and Senior Constable Michael Charlesworth.
The prosecution also tendered 12 exhibits. These exhibits relevantly included photographs taken by ALM,[6] photographs of EHS taken by police[7] and the skirt worn by EHS on the night of the alleged offending.[8]
[6] Exhibit 1 (1.1 - 1.6).
[7] Exhibit 4 (4.1 - 4.4).
[8] Exhibit 5.
The evidence of some of the witnesses was extensive. I have summarised the relevant testimony of the four main prosecution witnesses: ALM, EHS, ES and XB.
ALM
ALM gave evidence that she arrived at the party with EHS and XB at approximately 7.30 pm.[9] She had had one standard drink prior to her arrival.[10] ALM stated that she felt completely fine.[11] When ALM, EHS and XB arrived at the address they made their way to the balcony to see DP.[12] ALM sat on a couch to the right of the door to the balcony. EHS was seated to the right of ALM and the appellant to the left.[13] While ALM was speaking with EHS and DP, the appellant placed his hand under ALM's thigh and buttock.[14] ALM stood up and sat on the opposite couch where TH was sitting.[15] The appellant moved to sit to the right of ALM. The appellant leant on ALM so she pushed him off with her elbow.[16] The appellant sat up but again returned to leaning on ALM.[17] ALM told the appellant to get off her then stood up and asked EHS to go to the bathroom with her.[18] ALM and EHS walked inside.[19]
[9] Trial ts 18 (21/10/2020).
[10] Trial ts 19 (21/10/2020).
[11] Trial ts 21 (21/10/2020).
[12] Trial ts 22 (21/10/2020).
[13] Trial ts 24 (21/10/2020).
[14] Trial ts 25 - 26 (21/10/2020).
[15] Trial ts 27 (21/10/2020).
[16] Trial ts 27 - 28 (21/10/2020).
[17] Trial ts 25 - 26 (21/10/2020).
[18] Trial ts 28 - 29 (21/10/2020).
[19] Trial ts 29 (21/10/2020).
ALM stated that she waited outside the bathroom with EHS. By that point in the night she had had one drink at the party and was feeling fine.[20] While she was standing there she felt someone place a hand on her right buttock.[21] ALM turned around and saw the appellant standing behind her with his hand on her buttock.[22] She moved his hand away.[23] ALM told EHS in the bathroom that the appellant had 'grabbed my bottom'.[24] After leaving the bathroom ALM and EHS danced with a group of people.[25] ES arrived at the party between 9.00 pm and 9.30 pm. After greeting ES, ALM remained upstairs talking to people.[26]
[20] Trial ts 32 (21/10/2020).
[21] Trial ts 29 (21/10/2020).
[22] Trial ts 30 (21/10/2020).
[23] Trial ts 31 (21/10/2020).
[24] Trial ts 31 (21/10/2020).
[25] Trial ts 32 (21/10/2020).
[26] Trial ts 33 (21/10/2020).
Later in the night ALM said that she went on a walk with ES and EHS. By this point ALM had had two drinks at the party and was feeling fine.[27] The appellant asked ES if he could join the walk and ES said that he could.[28] During the walk, while the appellant was standing to the right of ALM, the appellant placed his hand down the back of her skirt and firmly grabbed her left buttock.[29] The incident lasted about two to three seconds and it took ALM 20 to 25 seconds to pull the appellant's hand out of her skirt.[30] EHS and ES were walking ahead of ALM and the appellant at the time.[31] ALM asked the appellant what he was doing. The appellant told her to 'just let it happen'.[32] The appellant then walked to ALM's left side and placed his left arm in front of her and grabbed her right breast, digging his fingers into her side for about four to five seconds.[33] ALM told the appellant to stop then moved away and walked towards EHS and ES.
[27] Trial ts 36 (21/10/2020).
[28] Trial ts 34 (21/10/2020).
[29] Trial ts 36 - 37 (21/10/2020).
[30] Trial ts 38 (21/10/2020).
[31] Trial ts 35 (21/10/2020).
[32] Trial ts 38 (21/10/2020).
[33] Trial ts 39 (21/10/2020).
ALM stated that she 'mucked around' with ES on the pavement while EHS fell behind and was alone with the appellant.[34] About five minutes later, EHS returned upset and in tears. EHS told ALM that the appellant had grabbed her and that she tried to call out but that he had placed his hand over her mouth.[35] EHS then sat down in a park while ALM called XB and asked him to meet them.[36] After meeting them at the park, XB and ALM walked back towards the party and waited outside for XB to collect their things so that ALM could take them to EHS.[37]
[34] Trial ts 40 (21/10/2020).
[35] Trial ts 41 (21/10/2020).
[36] Trial ts 42 (21/10/2020).
[37] Trial ts 43 (21/10/2020).
ALM said that she received bruises from the incident of which she had taken photographs.[38]
[38] Trial ts 55 - 57 (21/10/2020).
In cross-examination, ALM said that when the appellant touched her outside the bathroom, she told the appellant to 'get off' and moved his hand away.[39] She agreed that if she had previously said in her statement to the police that she told EHS that the appellant had 'grabbed her bum cheek' then that would be correct.[40] ALM stated that when she said that her and ES were 'mucking around' she meant having fun.[41] She also agreed that she had previously said in her statement to police 'I told [EHS] that [the appellant] kept grabbing me. I didn't go into detail as we couldn't talk privately'[42] and that if she had said that back then, it would have been more accurate and accepted that that is what in fact happened.[43]
EHS
[39] Trial ts 110 (21/10/2020).
[40] Trial ts 72 (21/10/2020).
[41] Trial ts 82 (21/10/2020).
[42] Trial ts 82 (21/10/2020).
[43] Trial ts 83 - 84 (21/10/2020).
EHS gave evidence that she arrived at the party with ALM and XB at approximately 7.00 pm. Prior to her arrival she had just over one and a half standard drinks of cider, half a bottle of a premixed vodka drink and a small sip of a sweet liqueur.[44] EHS started drinking at her house about 5.00 pm and finished drinking at about 5.45 pm to 6.00 pm. She stated that she felt fine and was not really feeling drunk at all.[45] Over the course of the party, from about 7.00 pm to 10.00 pm, EHS drank about half a bottle of the sweet liqueur and one and a half bottles of premixed vodka. She stated that at no point did she feel drunk or even tipsy although at some points she 'felt a little bit buzzed'.[46]
[44] Trial ts 120 (22/10/2020).
[45] Trial ts 121 (22/10/2020).
[46] Trial ts 125 (22/10/2020).
EHS corroborated ALM's evidence as to the order in which her, ALM and the appellant sat on the couch on the balcony.[47] She said that while sitting on the couch she mostly spoke to ALM and the appellant. EHS recalls ALM leaving the balcony after about 20 minutes and later returning to sit with TH on the opposite couch.[48] At that point the appellant was still sitting next to EHS so she went inside as she had nothing to talk to him about.[49] After being inside for a while she returned to the balcony to ask if ALM needed to go to the bathroom. She found ALM on the first couch sitting quite close to the appellant.[50] EHS asked ALM if she wanted to go to the bathroom and ALM 'jumped up straight away'.[51]
[47] Trial ts 123 (22/10/2020).
[48] Trial ts 126 (22/10/2020).
[49] Trial ts 127 (22/10/2020).
[50] Trial ts 128 - 129 (22/10/2020).
[51] Trial ts 129 (22/10/2020).
EHS stated that she waited with ALM outside the bathroom. The appellant approached and stood with them. EHS was facing a mirror hanging on the wall and ALM stood facing EHS with her back facing the wall. The appellant stood to the left of EHS and stood almost pressed up against ALM between her and the wall. EHS could see the appellant place himself in the gap between ALM and the wall. The appellant was next to ALM for about two to three minutes before ALM and EHS entered the bathroom.[52] EHS cannot recall having a specific conversation with ALM in the bathroom and said that ALM was very quiet.[53]
[52] Trial ts 130 (22/10/2020).
[53] Trial ts 131 (22/10/2020).
EHS stated that, after the bathroom, she assisted someone who was being sick on the couch inside. She did not see where ALM went after the bathroom. After assisting the sick person for about 10 minutes, she found XB. EHS and XB remained inside dancing for about 20 to 40 minutes.[54] EHS recalls that ALM then came inside from the balcony and told EHS that ES had arrived.[55] After collecting ES, EHS and ALM returned with ES to the balcony. ES remained leaning against the wall while EHS and ALM sat on the first couch where the appellant was already seated. ALM was closest to ES with the appellant to right of ALM and EHS to the right of the appellant.[56] While ES was talking to the appellant, the appellant repeatedly leaned across ALM's lap and placed his hand above her breast and below her collarbone and sometimes on her face.[57] EHS did not see ALM react too much apart from her swatting the appellant's hand away from her face.[58]
[54] Trial ts 131 - 132 (22/10/2020).
[55] Trial ts 132 (22/10/2020).
[56] Trial ts 133 (22/10/2020).
[57] Trial ts 133 - 136 (22/10/2020).
[58] Trial ts 137 (22/10/2020).
At some point, EHS and ES went inside to find XB while ALM remained outside. EHS decided to walk to her address with ALM and ES to get some more alcohol. The appellant asked EHS if he could join them and EHS said that he could because it was only going to be a quick walk.[59] EHS corroborated ALM's evidence that ALM and the appellant dropped behind EHS and ES on their walk. When ALM joined EHS and ES about one to two minutes later, she did not engage in conversation and EHS does not recall her saying anything.[60]
[59] Trial ts 138 (22/10/2020).
[60] Trial ts 140 (22/10/2020).
EHS stated that when she stopped to take off her shoe, ES and ALM walked ahead of EHS and the appellant.[61] When EHS resumed walking, the appellant placed his left arm around her upper shoulders as a sort of crutch for support. EHS said to the appellant words to the effect of 'I'm okay. I don't need help'.[62] The pair walked for about a further 10 metres at which point the appellant placed his left hand down her shirt and over her left breast.[63] The appellant then moved his hand over EHS' right breast and firmly squeezed it.[64] The touching lasted approximately 10 to 15 seconds. EHS asked the appellant what he was doing, and he responded with words to the effect of 'It's okay. Don't worry'. EHS said words to the effect of 'No, it's not okay. Get off me'.[65] The appellant said something to the effect of 'It's okay. You like it' and EHS again asked him to stop.[66] The appellant removed his left hand from her breast and then placed it up EHS' skirt over her left buttock where it remained for a few seconds.[67] The appellant attempted to move his hand towards her vagina. As he did so, he moved his right hand towards EHS' face and his finger slipped into her mouth.[68] EHS attempted to pull away and made a muffled noise to alert ALM and ES.[69] EHS eventually managed to push the appellant away with her right arm and ran towards ALM and ES.[70]
[61] Trial ts 141 (22/10/2020).
[62] Trial ts 142 (22/10/2020).
[63] Trial ts 142 - 143 (22/10/2020).
[64] Trial ts 143 (22/10/2020).
[65] Trial ts 144 (22/10/2020).
[66] Trial ts 144 - 145 (22/10/2020).
[67] Trial ts 145 - 147 (22/10/2020).
[68] Trial ts 147 (22/10/2020).
[69] Trial ts 148 (22/10/2020).
[70] Trial ts 149 (22/10/2020).
ES asked EHS something to the effect of 'Did I see what I thought I saw?' and EHS replied 'Yes'. EHS tried explaining to ALM what had occurred with the appellant but ALM said that EHS did not have to explain, and that the appellant had done the same to her.[71] EHS overheard ES telling the appellant to 'leave them alone'.[72] ALM later called XB and asked him to meet them at the park.[73]
[71] Trial ts 149 (22/10/2020).
[72] Trial ts 150 (22/10/2020).
[73] Trial ts 151 (22/10/2020).
EHS said that she received injuries from the incident in the form of bruises and scratches.[74] She had taken photographs of her injuries prior to giving her statement to police on 18 February 2020. When she gave her statement the police officer took further photographs of her injuries.[75] EHS also gave evidence that she noticed a rip in her skirt when she changed clothes at the park.[76]
XB
[74] Trial ts 152 - 156 (22/10/2020).
[75] Trial ts 153 - 154 (22/10/2020).
[76] Trial ts 156 (22/10/2020).
XB gave evidence that he arrived at the party with ALM and EHS at approximately 7.00 pm.[77] Prior to his arrival, he had half a Vodka Cruiser.[78] XB corroborated the evidence of ALM and EHS that when they all arrived they made their way to the balcony. He confirmed that ALM, EHS and the appellant were seated on the couch to the right of the balcony entrance although he could not recall the order in which they sat.[79] XB was sitting on the couch opposite the one on which ALM, EHS and the appellant were seated and was sitting closest to the balcony entrance. He could not see what ALM and EHS were doing because he was talking to other people.[80] XB left the balcony before ALM and EHS.[81]
[77] Trial ts 265 - 266 (23/10/2020).
[78] Trial ts 264 (23/10/2020).
[79] Trial ts 267 (22/10/2020).
[80] Trial ts 268 (23/10/2020).
[81] Trial ts 269 (23/10/2020).
XB stated that at a later point in the night he saw ALM, EHS, ES and the appellant leave the party. He subsequently received a call from ALM asking him to meet her at the park because the appellant had 'done something'.[82] XB left the party and ran to the park. He first saw ALM and EHS walking ahead with ES and the appellant walking behind them. They were walking towards XB. XB attempted to talk to ALM and EHS but they were very quiet.[83] XB followed them to the park and remained with them. He stated that ES said to the appellant that they were going back to the party and appeared very angry.[84] XB attempted to start a conversation with ALM and EHS but they 'just didn't really say anything'.[85]
[82] Trial ts 269 (23/10/2020).
[83] Trial ts 270 (23/10/2020).
[84] Trial ts 271 (23/10/2020).
[85] Trial ts 271 - 272 (23/10/2020).
XB subsequently returned to the party to collect their belongings. He told DP that the appellant had done something and that ALM and EHS did not want to come back.[86] The appellant said to XB that he wanted to apologise for what happened. XB told the appellant to 'fuck off' and said that he did not want to hear what he had to say. When XB left the party, he saw the appellant leaning on a pillar outside the house with ALM standing off to the side.[87] XB later received a message from DP stating that they could all return to the party as he had kicked the appellant out.[88]
ES
[86] Trial ts 272 (23/10/2020).
[87] Trial ts 273 (23/10/2020).
[88] Trial ts 274 (23/10/2020).
ES gave evidence that he arrived at the party at approximately 9.45 pm.[89] After being greeted by ALM, EHS and XB outside the address, they went to the balcony where ES was greeted by TH and DP.[90] ES stated that ALM and the appellant sat on the couch to the right of the balcony closest to the door. The appellant had his right hand over her shoulder feeling ALM's breast. The left hand was under ALM's skirt on her inner thigh.[91] The appellant grabbed ALM's breast multiple times.[92] ALM tried to shrug the appellant off and repeatedly said 'no'.[93] After approximately 10 minutes, ALM threw the appellant off her and then walked with EHS to the bathroom.[94] Once they had left, the appellant said to ES, 'Yo, help me get her in my pants' and 'I just really want a wristy from her'.[95] ES then walked over to XB who was in the area near the toilet door. The appellant also walked away but ES did not know where.[96] ES spoke to XB for a couple of minutes before ALM and EHS came out of the toilet.[97]
[89] Trial ts 199 (22/10/2020).
[90] Trial ts 199 - 201 (22/10/2020).
[91] Trial ts 203 (22/10/2020).
[92] Trial ts 204 (22/10/2020).
[93] Trial ts 204 - 205 (22/10/2020).
[94] Trial ts 205 (22/10/2020).
[95] Trial ts 206 (22/10/2020).
[96] Trial ts 206 - 207 (22/10/2020).
[97] Trial ts 207 (22/10/2020).
ES stated that he then went for a walk with ALM, EHS and the appellant. He could not recall if anyone asked the appellant to come along for the walk or whether he joined himself.[98] As they left the address and headed towards the roundabout down the road, the appellant had his arm over ALM's shoulder but ES did not see anything happen between them.[99] At one point, ALM walked ahead leaving EHS and the appellant behind. ALM was visibly upset and crying but was not speaking.[100] ES then turned around to see the appellant standing to the left of EHS with one hand over her mouth and the other squeezing her breast.[101] ES saw the appellant in that position for one to two seconds before EHS 'let out a little bit of a yelp'. EHS ran to ES and said 'Help, get him away from me' before grabbing ALM's hand and running to the park.[102] EHS sat in the park while ALM stood beside her. When the appellant approached EHS, she screamed 'Get him away from me' and ALM said 'Take him back to the party. Just get him away from us'.[103]
[98] Trial ts 207 (22/10/2020).
[99] Trial ts 208 (22/10/2020).
[100] Trial ts 208 - 209 (22/10/2020).
[101] Trial ts 209 (22/10/2020).
[102] Trial ts 210 (22/10/2020).
[103] Trial ts 213 (22/10/2020).
ES stated that he and the appellant walked back towards the party. On the way back, ES questioned why the appellant 'would do that'. The appellant responded that he did not 'know what [ES was] talking about'.[104] ES said that the appellant needed to apologise to ALM and EHS. When they returned, the appellant went inside the address while ES remained outside.[105] ALM messaged ES stating that EHS was still sitting at the park. ES walked back to the park to see EHS. On the way, ES came across ALM walking towards the party to find XB. When ES arrived at the park, he saw EHS sobbing and crying.[106]
[104] Trial ts 213 (22/10/2020).
[105] Trial ts 214 (22/10/2020).
[106] Trial ts 215 (22/10/2020).
The defence case and evidence
The defence case was that none of the alleged assaults occurred. The appellant denied ever sitting next to ALM on the couches and denied that he ever left the house to go with ALM, EHS and ES. The appellant said that he did not see ES that night and did not think that ES was at the party. The appellant said that other than making a phone call from the front of the house at the end of the night, he did not leave the party at all. The appellant said that he was downstairs talking to DP's brother and parents when the incidents are alleged to have occurred outside the house. The defence case was that the complainants, ES and XB colluded about their evidence and lied about the events of the evening, seemingly because they took offence to the appellant teasing them during the party.
The defence called three witnesses, including the appellant, and tendered three exhibits, being various photographs.
The appellant had participated in a video record of interview with police some five weeks after the night of the party. The appellant gave evidence at trial consistent with the version of events he provided to police.
The magistrate's reasons
The magistrate delivered her decision on 6 November 2020.
Before proceeding to summarise the evidence of the individual witnesses, her Honour made the following findings about any inconsistencies in the evidence:[107]
Evidence was given by all of the witnesses as to their own and others' varying degrees of intoxication. In this situation it is inevitable that each witness will remember things differently and that their versions of events, who said what and where things took place will differ. Inevitably, each person's recollection will be different from another's.
In making my decision I must consider all of the evidence before me. It is not in dispute that by the time [ALM], [EHS] and [XB] arrived at the party it was already in full swing, with a large number of people upstairs both inside and on the balcony and with people participating in drinking games, such as beer pong and snorkelling. In relation to the first incident involving [ALM], each of the witnesses with the exception of [XB] and [ES] gave evidence of having consumed a number of alcoholic drinks that night.
The perceptions and recollections of the witnesses inevitably differ and it is natural that each person's memory of the events of the evening, who sat where and what they saw and heard will differ. There were a number of inconsistencies among the witnesses as to who sat where, who was talking to whom and their positions on the sofas or couches as they were variously referred to. There were also different memories of whether or not certain conversations took place and of what may have been said.
[107] Reasons for decision ts 10 - 11 (6/11/2020).
Her Honour comprehensively summarised the evidence of each of the main prosecution witnesses and the appellant.[108]
[108] Reasons for decision ts 10 - 23 (6/11/2020).
Her Honour found ALM and EHS to be credible witnesses who gave evidence in accordance with their recollection of events on that night.[109]
[109] Reasons for decision ts 13 (6/11/2020).
In respect of ES' evidence, the magistrate made the following finding:[110]
I find that [ES] did attend the party after he finished work at the Festival Fringe as he described. I find, however, in a general sense that I could not rely upon the details of his versions of his evidence of what took place. I find that he was present having arrived at the party and I find that he, [ALM], [EHS] and [the appellant] left the house together.
I do not believe that [ES] was intentionally misleading and I believe he did not deliberately lie, but I find that he had a tendency to exaggerate and embellish the detail of what he saw. For that reason I find his evidence in relation to the detail of what he described to be of limited assistance and I put his evidence largely to one side.
[110] Reasons for decision ts 14 (16/11/2020).
Her Honour did not make specific credibility findings about XB's evidence.[111]
[111] Reasons for decision ts 20 (6/11/2020).
Her Honour did not find the appellant's evidence to be credible and put his evidence to one side.[112]
[112] Reasons for decision ts 23 (6/11/2020).
After summarising the testimony of the witnesses, her Honour turned to consider the exhibits.[113]
[113] Reasons for decision ts 24 - 37 (6/11/2020).
In respect of EHS' skirt, her Honour found as follows:[114]
It was put to me by counsel in closing that it looked as though the seam had been unpicked as there was nothing to indicate force. I note that the fabric is light, the seam is not tight, but I completely reject the suggestion that it was unpicked. It was put to me that the rip is nowhere near the area where [the appellant] is alleged to have gone up her skirt. I note that the rip is on the left-hand side of the skirt and [EHS'] evidence was that [the appellant] put his hand on to her left bum cheek and he moved her skirt up.
He was still on the right side of her but he used his left hand to the bottom of her left bum cheek. [EHS] did not say how the rip had occurred, merely that it was not ripped when she left the house, but that she saw it was ripped when she changed on her way home. I find that she was restrained in giving this evidence. It is, however, open to me to infer that it may have occurred when she sat in the park on the ground. I cannot find the only inference I can draw is that it was ripped by [the appellant] in the course of him putting his hand up her skirt.
[114] Reasons for decision ts 24 - 25 (6/11/2020).
Her Honour found that the photographs of the complainants' bruises were 'powerful corroborative evidence' of their respective accounts of where the appellant touched and grabbed them.[115] Neither ALM nor EHS were found to have exaggerated their injuries.[116] In respect of the scratch to EHS' thigh, whilst the magistrate had a strong suspicion that it might have occurred during the appellant's assault upon her, her Honour could not exclude an inference that it occurred when EHS was sitting in the park. Her Honour could therefore not find that the scratch was directly attributable to the assault and put it to one side.[117]
[115] Reasons for decision ts 26 - 27 (6/11/2020).
[116] Reasons for decision ts 27 (6/11/2020).
[117] Reasons for decision ts 27 (6/11/2020).
Her Honour then turned to elaborate on her finding that the complainants were credible witnesses:[118]
[ALM] was not evasive and she was clear and firm in the manner in which she gave her evidence. It is clear that [ALM] and [EHS] have not colluded in relation to their evidence in court. If they had colluded I might well have expected them to have had far greater consistency in the detail of their evidence. I find that the differences in their recollection of what took place and of conversations, and of who said what, support my assessment that each of them was an honest witness who gave credible evidence about what she remembered.
I turn to [EHS]. I also find that [EHS] was a good witness who gave a credible account of her memory of what took place that night. She gave explanations in cross-examination about why her evidence differed in some respects from what she told police. She explained in relation to saying, 'I didn't tell him that', about not needing help when they were on Bellport Parade and she stopped to take off her shoe, that she had meant she didn't tell [the appellant] she needed help.
Secondly, she was cross-examined about telling the police that [the appellant] had put his hand down her skirt. In cross-examination she explained that she did say down the skirt, however her evidence on oath was that it was not down her skirt but up as she had said in her evidence-in-chief. I accept [EHS'] evidence on oath about that. I have noted that in some respects her version of events differed from [ALM's] and as I have indicated this lends weight to my finding that the two girls did not collude to make up, or to ensure, that their evidence was consistent with each other.
The fact that they are not identical in their recollections lends their evidence the ring of truth. It is natural that two people have a different memory of what occurred and their differences support my finding that they have not colluded. The differences in their accounts lend weight to my assessment that they have not lied and that they were honest witnesses. They did not recall details of what they said to each other on the night or when they said it.
This lends weight to their credibility and suggests they did not compare their evidence or try to make it consistent. The evidence of [EHS] and [ALM] is cross-admissible. Their evidence was consistent in what I regard to be material aspects of what took place. In relation to each of them it is material in that [ALM] and [the appellant] were sitting on the sofas on the balcony in the earlier part of the evening. At some stage later [ALM] was on the balcony again sitting next to [the appellant]. He was leaning over her and she was acting in some manner to move him away from her.
[ALM] and [EHS] went to the toilet together where they waited outside for someone to come out. [The appellant] was standing behind [ALM] very close to her. They both went to the toilet together. Sometime after that [ES] arrived and they went downstairs to let him in. They decided to return to [EHS'] house to get more alcohol. [XB] remained at the house. [EHS], [ALM], [ES] and [the appellant] left the house and started to walk to [EHS'] house. [EHS] and [ES] were slightly ahead of [the appellant] and [ALM].
[ALM] came up to where [EHS] and [ES] were walking. [EHS] stopped and [the appellant] stopped too. A short time later [EHS] came up to [ES] and [ALM] and she was upset. [EHS] and [ALM] went into Halmstad Park. [EHS] was very upset. [ALM] said, '[EHS] was trying to get her breath. She was very upset.' She told her [the appellant] had grabbed her and as she tried to call out to them [the appellant] put his hand over her mouth. [EHS] said she tried to explain what happened but couldn't get the words. [ALM] told [EHS] that [the appellant] had done something to her too.
[EHS] sat on the ground at the park and sat in the water under the sprinklers. [ALM] rang [XB] on her phone and asked him to meet them. [ALM], [EHS], [ES] and [the appellant] started walking back towards [DP's] house. [ALM] and [EHS] walked separately from [ES] and [the appellant]. [ES] waited with [EHS] at Avondale Park while [ALM] returned to [DP's] house. [XB], [ALM], [EHS] and [ES] then all returned to [EHS'] house to stay the night.
[118] Reasons for decision ts 27 - 29 (6/11/2020); see also reasons for decision ts 11, 13 (6/11/2020).
In summary, each of the complainants were found to be honest, credible and convincing witnesses. Their evidence was cross‑admissible and supportive of each other.[119]
[119] Reasons for decision ts 31 (6/11/2020).
In relation to the differences in the accounts as to times, her Honour said:[120]
As I've stated previously, I find that most of the partygoers were intoxicated. I find that their own assessments of what constituted being drunk underestimated the effect of the alcohol upon them. It is inevitable that they would all, in those circumstances, have different recollections of the details of what happened at a party seven months ago. No-one could give an accurate time at which things occurred or where they were at different times throughout the night.
[120] Reasons for decision ts 29 (6/11/2020).
Grounds of appeal
On 4 January 2021, the appellant filed a notice of appeal against conviction on the following two grounds:[121]
[121] Appeal notice dated 28 December 2020.
Ground 1
The learned Magistrate erred in fact when finding the Appellant guilty of all charges when the verdicts of guilty were unreasonable or unsupported having regard to all of the evidence.
Particulars
1. The Appellant gave evidence at his trial denying the offending conduct as alleged.
2. The offending conduct was said to have been as follows:
a.Indecent assault against ALM by groping her on her body at the party house on the balcony and outside the bathroom;
b. Further indecent assault against ALM by groping her during a walk; and
c.Indecent assault against EHS by groping her during the same walk as ALM.
3.Having directed herself in accordance with Liberato v The Queen [1985] HCA 66, the learned Magistrate was obliged to put the Appellant's evidence to one side and consider whether the Respondent had proved its case beyond reasonable doubt.
4.It was critical to therefore consider the credibility, in particular, the truthfulness of the victims ALM, EHS and their witnesses.
5. It was unsafe or unsatisfactory to accept the evidence of ALM, EHS and their witnesses as truthful when:
a. There were major inconsistencies between ALM, EHS and Mr ES as to [the] existence of key events during which the offending conduct against ALM was said to have taken place;
b. The offending conduct against ALM as described by her was irreconcilable with evidence from other witnesses who made no observations as such;
c. There were other established facts irreconcilable with the evidence of Mr ES and Mr [XB] affecting any assessment of their truthfulness when it came to placing the Appellant at a place during which offending against EHS and further offending against ALM was said to have taken place;
d. Evidence from ALM and EHS by way of photographs were adduced in support of their contention that they had suffered from bruising following the indecent assault when on their own evidence, any touching that had occurred was not with sufficient force to have objectively caused any bruising;
e. Evidence from EHS by way of oral testimony and a ripped skirt as an exhibit was adduced to support the contention or the inference that the Appellant had ripped [EHS'] skirt during the course of the offending, when on … [EHS'] own evidence, the Appellant could not have ripped her skirt;
f. Both ALM and EHS were inconsistent in their evidence about matters the subject of recent complaint.
Ground 2
The learned Magistrate erred in fact when attributing inconsistencies between ALM and EHS as to the existence of key events during which offending conduct was said to have occurred, to their alcohol consumption making them honest but genuinely mistaken witnesses.
Particulars
1.It was the evidence of both ALM and EHS that although they had drunk at the party, they were not intoxicated and had a clear memory of events.
2. In having to reconcile established inconsistencies in the evidence between ALM and EHS and also the evidence of ES, the learned Magistrate found that due to alcohol consumption on the evening, everyone was bound to have been mistaken about various details.
3. There was no basis upon which the learned Magistrate could make such a finding, when the witnesses considered themselves to have had a good and clear memory of the evening and were not mistaken about such events.
4. Further, the inconsistencies related to major events said to have taken place, not the subject of minor detail.
5. If not mistaken about such inconsistencies, the only other findings to be made were that EHS and ES had embellished their evidence or that ALM's memory was so unreliable that she had completely missed key events said to have occurred.
In relation to ground 1, the appellant submitted that the miscarriage of justice complained of is that the verdicts of guilty were unreasonable having regard to all the evidence.
In relation to ground 2, the appellant submitted that the magistrate erred in seeking to explain inconsistencies by reference to alcohol consumption.
This is essentially an appeal against the credibility and factual findings of the magistrate.
Leave to appeal
As an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), leave of the Supreme Court is required for each ground of appeal.[122] Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.[123]
[122] Criminal Appeals Act 2004 (WA) s 9(1).
[123] Criminal Appeals Act 2004 (WA) s 9(2).
Whether a ground has a reasonable prospect of succeeding will depend on whether the ground has a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.[124]
[124] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
General principles
The principles governing an appeal on the ground that the verdict is unreasonable or cannot be supported by the evidence are well settled.[125] In Wells v The State of Western Australia,[126] the Court of Appeal summarised the principles by reference to the leading High Court decisions as follows:
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (citations omitted)
[125] See, for example, MEN v The State of Western Australia [2020] WASCA 118 [403] - [410]; Dayananda v The State of Western Australia [2021] WASCA 11 [43] - [53]; Jago v The State of Western Australia [2022] WASCA 2 [144].
[126] Wells v The State of Western Australia [2017] WASCA 27 [13].
The principles applicable to whether a jury verdict is unreasonable or unsupported by the evidence apply by analogy to a trial before a magistrate.[127]
[127] The State of Western Australia v Olive [2011] WASCA 25 [44].
The court must not discount that the primary court is entrusted with the primary responsibility of determining whether the prosecution has established the accused's guilt and that that court has the benefit of having seen and heard the witnesses.[128] The High Court elaborated on this principle as it relates to the role of a jury in Pell v The Queen:[129]
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v R spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citations omitted; emphasis added)
[128] Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 [81].
[129] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] - [39].
The High Court makes it clear that the assessment of the credibility of a witness by reference to the manner in which it was given by a witness remains the province of the primary court and not of the appellate court.[130] The appellate court performs its function on the assumption that the evidence of a complainant was assessed by the primary court to be credible and reliable.
[130] Pell v The Queen [37] - [38].
However, the advantage of the primary court in seeing and hearing the witnesses does not preclude this court from undertaking its task under s 30(3)(a) of the Criminal Appeals Act. Nor is it decisive of the outcome of that assessment.
The approach required of an appellate court in determining challenges to findings of fact was set out by the High Court in Fox v Percy,[131] as cited in Nationwide News Pty Ltd v Rush.[132] The High Court relevantly observed that in conducting an appellate review of a trial judge's findings of fact:[133]
The mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
[131] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] - [29].
[132] Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 [89].
[133] Fox v Percy [28] - [29].
The findings of a primary court that depend to any substantial degree on the credibility of witnesses may be disregarded by an appeal court if the primary court 'has failed to use or has palpably misused' its advantage or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or has made a decision that was 'glaringly improbable' or 'contrary to compelling inferences'.[134]
[134] Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] (Kirby J).
A trial judge is not obliged to make findings about inconsistencies in evidence in respect of peripheral matters which throw no light on the real issues in the case.[135] Not all inconsistencies need to be resolved. It is inevitable that when a number of witnesses are describing an event witnessed by them there will be some inconsistencies in what they state they observed and can remember. This is because different people perceive things differently and memories fade over time.[136]
[135] Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349, 351 (McHugh J; Brennan, Deane, Dawson & Toohey JJ agreeing);
[136] B v Coan [2021] WASC 127 [143].
The critical question for this court is whether, paying full regard to the advantage the primary magistrate had in seeing and hearing the witnesses, it was open to her Honour, acting rationally, to be satisfied beyond reasonable doubt as to guilt.[137]
[137] MEN v The State of Western Australia [2020] WASCA 118 [408] - [410].
Merits of the appeal
Before turning to an analysis of the grounds of appeal it is useful to make a general comment about the appellant's submissions. The appellant appears to have proceeded on the unusual basis that each witness should be believed and that inconsistencies between them provided a basis for an unreasonable verdict. However, it is clear from the magistrate's reasons that her Honour did not believe all the evidence of all of the witnesses. In particular, she did not give weight to the evidence of ES.[138] As a result, his evidence can effectively be disregarded.
[138] Reasons for decision ts 14 (6/11/2020).
The appellant has not made any submissions as to why the magistrate's findings in relation to ES should be overturned. The magistrate had a significant advantage in seeing and hearing the witnesses, including ES; an advantage I do not have sitting on a single judge appeal.
Ground 1
By ground 1, the appellant asserts that the magistrate erred in fact when finding the appellant guilty of all charges when the verdicts of guilty were unreasonable or unsupported having regard to all the evidence.
This ground of appeal can only succeed if the appellant demonstrates that the magistrate's acceptance of the complainants' evidence, and the finding that they were credible and reliable witnesses, was 'inconsistent with facts incontrovertibly established by evidence', 'glaringly improbable' or 'contrary to compelling inferences' in the case.[139]
[139] Devries v Australian National Railways Commission (479) (Brennan, Gaudron and McHugh JJ); Fox v Percy [66] (McHugh J); CSR Ltd v Della Maddalena [21] (Kirby J).
The appellant particularised six matters in support of ground 1 which the appellant submits renders the verdict unreasonable:
(1)there were major inconsistencies between ALM, EHS and ES as to existence of key events during which the offending conduct against ALM was said to have taken place;
(2)the offending conduct against ALM as described by her was irreconcilable with evidence from other witnesses who made no observations as such;
(3)there were other established facts irreconcilable with the evidence of ES and XB affecting any assessment of their truthfulness when it came to placing the appellant at a place during which offending against EHS and further offending against ALM was said to have taken place;
(4)evidence from ALM and EHS by way of photographs were adduced in support of their contention that they had suffered from bruising following the indecent assault when on their own evidence, any touching that had occurred was not with sufficient force to have objectively caused any bruising;
(5)evidence from EHS by way of oral testimony and a ripped skirt as an exhibit was adduced to support the contention or the inference that the appellant had ripped EHS' skirt during the course of the offending, when on the EHS' own evidence, the appellant could not have ripped her skirt; and
(6)both ALM and EHS were inconsistent in their evidence about matters the subject of recent complaint.
I will deal with each of these matters in turn.
Inconsistencies between ALM, EHS and ES
The appellant submits that there are key differences between the evidence of ALM, EHS and ES as to the 'existence of key events' during which the offending conduct against ALM was said to have taken place.[140]
[140] Appellant's submissions filed 19 April 2021 [25] - [26] (Appellant's Submissions).
The appellant identified several purported inconsistencies in the evidence of ALM, EHS and ES.
The first alleged inconsistency concerns the evidence of EHS and ALM as to how the pair left the balcony for the toilet. The appellant submitted:[141]
a)[EHS] testified that after being inside for some time, she went to the balcony to ask [ALM] if she needed to go to toilet. [ALM] was no longer on the second couch, but back on the first couch alone with the Appellant and with no one else seated on the couch. They were seated close together. She thought it was strange. She asked [ALM] if she wanted to go to the toilet, and [ALM] 'jumped up straight away'.
b)This evidence absolutely contradicts the evidence of [ALM]. On both of their testimony, there was only one attendance upon the toilet together where they then both describe the Appellant being near [ALM] outside the toilet. Yet, they both contradict each other about how they got to the toilet, having each been very precise and detailed about how they came to go to the toilet together.
[141] Appellant's Submissions [18].
Even if there is an inconsistency it does not necessarily follow that neither party can be believed. It was open to the magistrate to believe some of the evidence and none of the evidence or all of the evidence. The evidence is collateral to the material facts relating to the offending.
The second alleged inconsistency concerns the evidence of EHS and ALM as to the assault against ALM outside the toilet. The appellant submits that EHS describes this incident in detail which differs from the evidence of ALM. EHS stated that she was standing facing a mirror hanging on the wall. ALM stood facing EHS and the appellant stood pressed up against ALM between her and the wall. EHS could see the appellant place himself in the gap between ALM and the wall.
The appellant contends that on EHS' own evidence, she was consequently in a good position to watch the appellant's actions. She did not describe seeing anything happen between ALM and the appellant.[142]
[142] Appellant's Submissions [19].
The appellant appears to proceed on the premise that because a witness did not see something happen it did not happen. It does not follow that because a witness did not give evidence of something occurring that it did not happen. There are all sorts of plausible explanations for why a witness may not have seen something. A witness may not have been paying attention or was distracted.
In any event, EHS' evidence was 'that she could see [the appellant's] face still' and when asked what part of his body was pressed against ALM she replied that it was 'hard to say exactly'.[143] The submission that EHS was in a good position to watch the appellant's actions simply does not stand up to scrutiny.
[143] Trial ts 130 (22/10/2020).
The third alleged inconsistency concerns the evidence of ALM and EHS as to what ALM said to EHS in the toilet. ALM's evidence was to the effect that she told EHS that the appellant had 'grabbed her bum' but that she did not go into detail about it. EHS' evidence was to the effect that she could remember a specific conversation occurring and that ALM was 'very quiet' and 'didn't really want to talk'.
The appellant submitted that the discrepancy between the evidence of ALM and that of EHS about the conversation in the toilet must have diminished the credibility of the complainants as honest and reliable witnesses.[144]
[144] Appellant's Submissions [20b].
The respondent submitted that an inability to remember whether something was said is not the same as an assertion that something was not said and does not automatically lead to the conclusion that either complainant's credibility was adversely affected.[145]
[145] Respondent's outline of submissions filed 12 May 2021 [27] (Respondent's Submissions).
The appellant appears to proceed on the premise that because a witness does not remember a conversation it did not happen. It does not follow that because a witness did not remember a conversation or part thereof that it did not happen. Still less does it follow that another witness giving evidence of that conversation should be disbelieved. A conversation that looms large in importance for one witness may be of lesser importance to another witness.
Further, and in any event, any inconsistency between ALM and EHS' evidence as to the conversation in the toilet concerns a peripheral matter that throws no light on the real issues in this case. A trial magistrate is not obliged to make findings on such matters.[146]
[146] Jones v Hyde (351) (McHugh J; Brennan, Deane, Dawson & Toohey JJ agreeing).
The fourth alleged inconsistency relates to the evidence of EHS and ES of a further touching of ALM in the presence of ES of which ALM gave no evidence. EHS gave evidence that when ES arrived, EHS, ALM and ES made their way to the balcony. EHS said that ES leant against the wall while EHS and ALM sat on the couch where the appellant was seated. It was during this sitting that the appellant repeatedly leant across and touched ALM. ES gave evidence that generally corroborated that of EHS with the exception of the order in which EHS, ALM and the appellant sat on the couch, specifically, who was seated closest to ES and the times at which people left the balcony and who they left with. ES also gave further detail of the touching than that provided by EHS and recounted an exchange between him and the appellant that occurred once ALM and EHS left the balcony in which the appellant made foul comments about ALM.
The appellant submitted that the above evidence of EHS and ES is in stark contrast to that of ALM in which she described no such sitting with the appellant once ES had arrived at the party.[147] Further, that there is an inconsistency between the evidence of ES that he remained with the appellant once EHS and ES left the balcony when the evidence of EHS is that ES left with her to find XB.[148]
[147] Appellant's Submissions [21f].
[148] Appellant's Submissions [21g].
In respect of ES' evidence, the magistrate found that, in a general sense, she could not rely upon the details of his version of events because he had a tendency to exaggerate and embellish the detail of what he saw. For that reason, her Honour found ES' evidence to be of limited assistance and put his evidence largely to one side.[149]
[149] Trial ts 14 (6/11/2020).
The magistrate did not place any weight on ES' evidence. His evidence can therefore be disregarded.
In relation to the inconsistencies between the evidence of ALM and that of EHS relied upon by the appellant, her Honour found that such inconsistencies did not affect her view about the veracity of ALM's evidence. As the respondent submitted, her Honour found that:[150]
[ALM] gave evidence that there was more than one incident on the sofa. She said that [the appellant] lent across her and she brushed him away. The behaviour [ALM] described with [the appellant] leaning on her, then falling on to her, is also consistent with the substance of the evidence given by [EHS] about this. [EHS] gave more detail about [the appellant's] actions but said that this occurred later after she and [ALM] had already been to the toilet.
[EHS'] evidence of [the appellant] leaning over [ALM] was said by [EHS] to have occurred when [ES] had arrived at the house and when they were all back out on the balcony. Any inconsistencies about the detail of their positions on the couches or about the timing of the incident does not affect my view about the veracity of what [ALM] said about [the appellant's] actions. I find that sometime after the first incident with [ALM] on the sofa, [ALM] and [EHS] went to the toilet. They waited outside the door for someone to come out.
[150] Reasons for decision ts 11 - 12 (6/11/2020).
The respondent submitted that her Honour's findings were rationally open to her given the dynamic nature of the party and the consumption of alcohol. The inconsistencies in the account were not of a type as to adversely impact upon the complainants' reliability or credibility and do not lead to the conclusion that either of the complainants were lying.[151]
[151] Respondent's Submissions [31].
I agree with the respondent's submission. The inconsistencies were not of a type as to adversely impact upon the complainant's reliability or credibility. It is a very long bow drawn by the appellant to allege that any of the prosecution witnesses were lying. The magistrate did not make such a finding.
The fifth alleged inconsistency concerns the evidence as to how the appellant came to join EHS, ES and ALM on the walk to EHS' house. EHS' evidence is that she invited the appellant to come for the walk because it was going to be a quick one.[152] ES' evidence is that he could not recall if anyone asked the appellant to join them on the walk or if he joined himself.[153]
[152] Trial ts 138 (22/10/2022).
[153] Trial ts 207 (22/10/2022).
The appellant submitted that on ALM's evidence of the appellant's prior assaults, it would have been internally incoherent if she had asked the appellant to join the walk. Further, it would have been implausible for EHS to have invited him because, on ALM's account, ALM had already complained to EHS about the appellant. Accordingly, the appellant asserted that the only reasonable inference to draw from ALM's evidence is that both EHS and ALM lied or that EHS was mistaken.[154]
[154] Appellant's Submissions [22c].
The respondent submitted that the appellant's assertions are inaccurate and identified three rational inferences that would be open from the evidence:
(1)that ALM did not in fact tell EHS that the appellant had 'grabbed her bum' whilst they were in the toilet;
(2)that ALM did tell EHS but EHS did not appreciate the gravity or full extent of the appellant's offending, or did not absorb what ALM told her, such that she believed the touch was a 'one off' or momentary behaviour; or
(3)that EHS, or ALM, believed that the presence of ES and the shortness of the walk would deter the appellant from further offending against ALM.[155]
[155] Respondent's Submissions [32].
ES' evidence can be disregarded given the magistrate's reasoned finding on credibility.
The appellant does not explain why it would have been internally incoherent for ALM to ask the appellant to join the walk nor why it would have been implausible for EHS to invite him because ALM had allegedly made a prior complaint to EHS. The days when there was an assumption that following a sexual assault the victim would have nothing to do with the perpetrator are surely long past. The fact the assaultor, the appellant, continued to be in the presence of the assaultee, ALM, is simply neutral. No inference, adverse or otherwise, can be drawn.
In any event, the evidence is not as to contradictory statements but rather that ES could not recall.
The inference that the appellant invites the court to draw, that the complainants lied, is completely without substance.
The sixth alleged inconsistency concerns ALM's interaction with EHS and ES after the assault by the appellant during the walk. EHS' evidence is that when ALM caught up to her she was not engaging in conversation and does not recall her saying anything.[156] ES' evidence is that although ALM did not say anything once she had caught up to him, she was visibly upset and crying.[157] The appellant submitted that this evidence is irreconcilable with the evidence of ALM, specifically of her 'mucking around', which the appellant further submitted was itself internally incoherent with her version of events.[158] The appellant argues that ES' evidence was in total contradiction with the evidence of EHS and ALM.
[156] Trial ts 140 (22/10/2022).
[157] Trial ts 208 (22/10/2022).
[158] Appellant's Submissions [24b].
As already noted, ES' evidence can be disregarded. It therefore provides no basis for impugning the credibility of either ALM or EHS.
None of the inconsistencies identified above demonstrate that her Honour erred in her assessment of the complainants' credibility.
Offending described by ALM not witnessed by others nearby
The appellant submits that the offending conduct that occurred on the balcony, as described by ALM, was irreconcilable with the evidence of other witnesses, namely DP and TH, which is to the effect that they did not see the appellant's offending conduct.
In respect of the assault on the first couch to the right of the balcony door, DP gave evidence that ALM sat closest to the door, followed by the appellant to her right, then EHS. ALM was seated on the edge of the couch while the appellant laid back. DP relevantly stated that he did not have a clear view.[159] DP spoke to ALM and the appellant for approximately 10 to 15 minutes. He stated that he did not really see any physical contact but that the appellant seemed a bit close. He could not see what was happening behind ALM.[160]
[159] Trial ts 310 (23/10/2022).
[160] Trial ts 316 (23/10/2022).
In respect of the assault on the second couch to the left of the door, TH gave evidence that he was seated on the couch with the appellant when ALM sat next to them. That was the only conversation that TH had with ALM that evening.[161] TH did not give any evidence of the appellant leaning over ALM or ALM resisting the appellant in the way she described.[162]
[161] Trial ts 292 - 294 (23/10/2022).
[162] Trial ts 296 - 297 (23/10/2022).
Again, the appellant appears to proceed on the premise that because a witness did not see something happen it did not happen. It does not follow that because a witness did not give evidence of something occurring that it did not happen. There are all sorts of plausible explanations for why a witness may not have seen something. Not paying attention to what was occurring around them or being distracted are just some such explanations.
The evidence of DP and TH was reconcilable with ALM's evidence and does not give rise to a reasonable doubt about the appellant's guilt.
Evidence of ES and XB regarding the appellant's presence on the walk
The appellant submits that there were 'other established facts' irreconcilable with the evidence of ES and XB affecting any assessment of their truthfulness when it came to placing the appellant at a place during which offending against EHS and further offending against ALM was said to have taken place.
Again, ES' evidence can be disregarded.
XB's evidence is that when he received a phone call from ALM to say that the appellant had done something, he ran to the park. He first saw ALM and EHS walking ahead and ES and the appellant walking behind them. XB followed them to the park and remained with them.[163] XB subsequently returned to the party to collect their belongings.[164]
[163] Trial ts 271 (23/10/2020).
[164] Trial ts 272 (23/10/2020).
ALM's evidence was that after XB met her and EHS at the park, XB walked back towards the party to collect their belongings. ALM also made her way back towards the party and waited outside for XB.[165] One of the attendees at the party, JB, gave evidence that ALM messaged her asking to be let into the house as the front door was locked. When JB opened the front door, ALM appeared upset. JB let ALM inside the house.[166] ALM gave evidence that she had a conversation with JB at the house.[167] I do not agree with the appellant that ALM's evidence was contradicted by JB and, in any event, whether ALM entered the house or remained outside was not material to the issues at trial.
[165] Trial ts 87 (21/10/2020).
[166] Trial ts 302 - 303 (23/10/2020).
[167] Trial ts 87 (21/10/2020).
As to the evidence of XB, the magistrate made the following findings:
[XB] said he ran to the park to meet them. The defence says that he was lying when he saw [EHS] and [ALM] walking ahead with [ES] and [the appellant] about 10 or so metres behind them. [ALM] had said they were walking towards the park. [ES] was ahead of them and [the appellant] had gone back to the party. [ES] gave evidence that he and [the appellant] walked along Seville Crest and [the appellant] returned to the party. It's consistent with [ES'] evidence to that extent, that [the appellant] was seen outside the house on his phone at the end of the night.
It's also consistent with [ALM's] evidence that [ES] went to Avondale Park to be with [EHS] while [ALM] was returning to meet [XB]. I do not find that [XB] was lying as it's conceivable that as [XB] came from Seville Crest towards the roundabout [EHS] and [ALM] were heading to Avondale Park while [ES] and [the appellant] were walking to the house. In any event, I do not determine that it's material to the issues which need to be determined.
I find that it's not necessary for me to make specific findings about [XB's] credibility. He does not add to the State's case in a material respect. He did not witness any of the incidents. I have made my findings based on all of the evidence but primarily upon the evidence of each of the complainants and the independent corroborating evidence.
I agree with her Honour's findings.
XB further testified that, after leaving the party, he received a message from DP stating that they could all return to the party as he had kicked the appellant out.[168] Although DP gave no such evidence, XB's evidence was not contradicted by DP and, in any event, was not material.
Photographs of bruising
[168] Trial ts 274 (23/10/2020).
The appellant submits that the photographs adduced in support of ALM and EHS' contention that they had suffered bruising following the incidents is inconsistent with their own evidence which suggests that any touching that occurred was not of sufficient force to have objectively caused bruising.
ALM gave evidence that she took photographs of her injuries. These photographs were tendered as exhibits at trial.[169] The appellant contends that three of these photographs do not accord with the evidence given by ALM.[170]
[169] Exhibit 1 (1.1 - 1.6).
[170] Appellant's Submissions [33].
In respect of the first photograph (exhibit 1.1), ALM's evidence is that the photograph shows a bruise she received to her buttock outside the bathroom. The appellant submitted that it is implausible that someone could cause a bruise to another when, on ALM's evidence, the force with which the appellant placed his hand was that he 'kind of placed [his] hand around the cheek, and then just left it sitting there'.[171]
[171] Trial ts 29 (21/10/2020).
In respect of the second photograph (exhibit 1.2), ALM's evidence is that the photograph shows a bruise she received to her right armpit from when the appellant dug his fingers into her side.[172] The appellant submitted that it is implausible that fingers digging into ALM's side could have caused only one mark.
[172] Trial ts 39 (21/10/2020).
The third photograph (exhibit 1.3), shows a bruise on ALM's right hip which, according to ALM, lasted for about a week.[173] The appellant contended however that ALM gave no evidence about the appellant grabbing her hip.
[173] Trial ts 56 (21/10/2020).
EHS also took photographs of her injuries which were tendered at trial.[174] She gave evidence that she did not have any of these injuries before the party and only noticed them in the park when she changed clothes.[175] The appellant again took issue with some of these photographs because of purported inconsistencies.
[174] Exhibit 4 (4.1 - 4.4).
[175] Trial ts 152 (22/10/2020).
The first relevant photograph (exhibit 4.1), shows a small bruise to the bottom of EHS' breast below her nipple.[176] The appellant submitted that it is implausible that EHS would have received a bruise below her nipple when her evidence was that the appellant's palm was over her nipple and that he had applied 'firm pressure'.
[176] Trial ts 154 - 155 (22/10/2020).
The second relevant photograph (exhibit 4.4), shows a scratch to EHS' left thigh. The appellant submitted that it is 'remarkable' that this scratch is scabbed over when the photograph was taken more recent in time to another photograph of the same injury taken by police two days later, which is not scabbed over (exhibit 3.2). The appellant further submitted that EHS gave no evidence that the appellant assaulted or scratched or touched anywhere near her thigh.
The respondent submitted that no medical evidence was adduced about the degree of force required to cause bruising or about the formation of bruises.[177]
[177] Respondent's Submissions [38].
In essence, the evidence of the complainants was that the photographs depicted bruises that they did not have before the party and they had them afterwards - it is no more than that. The appellant's submissions as to how long a scab would have taken to form and how much force would be required to cause a bruise are nothing more than speculation. As the respondent submitted a bare assertion that the force alleged to have been used by the appellant would not cause bruising does not reveal a flaw in the magistrate's reasoning.
The ripped skirt
EHS' evidence was that she discovered a rip in her skirt when she changed clothes at the park. The ripped skirt was tendered as an exhibit.[178] The appellant submits that the evidence of EHS was adduced to support the contention or inference that the appellant had ripped EHS' skirt during the course of the offending when, on EHS' own evidence, the appellant could not have ripped her skirt.
[178] Exhibit 5.
As the respondent properly submitted, the magistrate disregarded the evidence concerning the ripped skirt.[179] I accordingly find that this aspect of the appellant's submissions has no bearing on the determination of the appeal.
[179] Trial ts 25 (6/11/2020).
In any event, it is clear from EHS' evidence that she never sought to attribute the torn skirt to the appellant's actions. The magistrate appropriately acknowledged the same during EHS' cross‑examination.[180]
[180] Trial ts 194 (22/10/2020).
EHS' evidence was largely confined to the time and the circumstances in which she discovered the rip in her skirt and last saw the skirt fully intact.[181] She confirmed in cross‑examination that she could not recall any incidents that may have caused her skirt to rip.[182] She further stated that she could not recall the moment that the skirt ripped.[183]
[181] Trial ts 157 (22/10/2020).
[182] Trial ts 193 - 194 (22/10/2020).
[183] Trial ts 194 (22/10/2020).
The appellant further asserted that the ripped skirt was provided to police and ultimately tendered at trial to provide physical evidence of a struggle occurring.[184] However, the appellant submitted that it is 'utterly implausible' that a rip could have occurred when EHS' evidence is that his hand went up her skirt which was a flowy type skirt with easy access to her bum cheek.[185] I do not understand this submission. If it was a 'flowy type skirt' then one assumes that it was not a particularly strong fabric. Who knows? The appellant is speculating and stating it as fact.
[184] Appellant's Submissions [39].
[185] Trial ts 146 (26/10/2020); Appellant's Submissions [40].
Further, as the respondent submitted, the actions of the police in seizing the clothing as part of their investigation, or the prosecution in adducing the evidence as part of their case, has no bearing upon EHS' credibility.[186]
Inconsistencies of ALM and EHS regarding complaint
[186] Respondent's Submissions [40].
The appellant's submissions in support of this particular have already been set out in respect of the first particular.
Accordingly, I repeat my earlier findings.[187]
Conclusion
[187] See [73] - [102].
It is important to bear in mind that when witnesses are describing an event they have witnessed it is inevitable that there will be some inconsistencies in what they state they observed and can remember. There are innumerable variables which affect a person's memory such as the time that has elapsed since an event, the proximity of the witness to the accused, or the differences in how that event is perceived.
I do not accept that the particulars of ground 1, either solely or in combination, give rise to the inconsistencies contended by the appellant. They are peripheral matters which throw no light on the real issues in the case when regard is had to the magistrate's overall findings, particularly as to the credibility of the complainants.[188]
[188] Trial ts 27 - 29 (6/11/2020).
Her Honour's assessment of the credibility of the witnesses was of critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness was the province of her Honour. The evidence of the complainants was assessed by her Honour to be credible and reliable. The question for this court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that her Honour, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
Due respect must be given to the advantage of the magistrate who saw and heard the witnesses. There is nothing in the evidence to suggest that the magistrate's findings are 'glaringly improbable' or 'contrary to compelling inferences'. Indeed, the appellant's submissions do not begin to approach that standard for the reasons stated above.
Having undertaken my own assessment of the sufficiency and quality of the evidence, in all the circumstances, it would not be dangerous to permit the verdict to stand. The evidence does not establish that her Honour must have entertained a reasonable doubt about the accused's guilt. Upon the whole of the evidence, it was open to her Honour to be satisfied beyond reasonable doubt that the appellant was guilty.
Ground 1 is not made out.
Ground 2
By ground 2, the appellant contends that the magistrate erred in fact, and thereby occasioned a miscarriage of justice, by finding that inconsistences between the accounts of the witnesses, particularly the complainants, was attributable to their consumption of alcohol when the evidence of the witnesses was that they were not intoxicated.
I repeat the findings made by the magistrate with respect to the consumption of alcohol at the party:[189]
It is not in issue that by the time they got to the party most people had already consumed quite a degree of alcohol. Evidence was given by all of the witnesses as to their own and others' varying degrees of intoxication. In this situation it is inevitable that each witness will remember things differently and that their versions of events, who said what and where things took place will differ. Inevitably, each person's recollection will be different from another's.
In making my decision I must consider all of the evidence before me. It is not in dispute that by the time [ALM], [EHS] and [XB] arrived at the party it was already in full swing, with a large number of people upstairs both inside and on the balcony and with people participating in drinking games, such as beer pong and snorkelling. In relation to the first incident involving [ALM], each of the witnesses with the exception of [XB] and [ES] gave evidence of having consumed a number of alcoholic drinks that night.
…
It is, as I have indicated, inevitable in the context of a large 18th birthday party with multiple people who had nearly all been drinking alcohol throughout the night that different people will remember things occurring at different times. (emphasis added)
[189] Trial ts 10, 13 (6/11/2020).
Similarly, as to the inconsistencies in times between witnesses, the magistrate said:[190]
As I've stated previously I find that most of the partygoers were intoxicated. I find that their own assessments of what constituted being drunk underestimated the effect of the alcohol upon them. It is inevitable that they would all, in those circumstances, have different recollections of the details of what happened at a party seven months ago. No-one could give an accurate time at which things occurred or where they were at different times throughout the night. (emphasis added)
[190] Trial ts 29 (6/11/2020).
The appellant submitted that in making these findings the magistrate did not attempt to reconcile the evidence of ALM, EHS, ES and XB,[191] which was to the effect that they were not intoxicated or at least consumed minimal alcohol.[192] In failing to do so, the appellant contended that the magistrate essentially substituted the evidence of the witnesses with facts that were not in evidence.[193]
[191] Appellant's Submissions [43].
[192] Trial ts 21, 32, 36 (21/10/2020); Trial ts 125 - 126, 137 (22/10/2020); Trial ts 264 (23/10/2020).
[193] Appellant's Submissions [48].
I again disregard the evidence of ES. It is difficult to understand why the appellant has consistently referred to ES' evidence in light of the magistrate's finding.
The respondent submitted that it is inevitable that there would be inconsistencies between witnesses in the circumstances of a large social gathering with multiple conversations taking place in different locations at different points in time. That potential is magnified where the witnesses are young adults who were consuming alcohol at the time.[194]
[194] Respondent's Submissions [20] - [21], [44].
I agree with the respondent.
It is notorious that people who have consumed alcohol are poor judges of how much they have consumed and its effect on them, particularly when they are teenagers.
It was therefore open to the magistrate to view the evidence of the witnesses that they were not intoxicated with a degree of scepticism.
Further, as the respondent noted, the magistrate did not base her findings as to credibility solely on the consumption, or otherwise, of alcohol.[195]
[195] See reasons for decision ts 27 - 29.
I do not accept that the particulars of ground 2, either solely or in combination, give rise to the inconsistencies contended by the appellant. They are peripheral matters which throw no light on the real issues in the case.
As discussed above in relation to ground 1, the appellant has not identified anything in the evidence that suggests that the magistrate's findings were 'glaringly improbable' or 'contrary to compelling inferences'.[196] I am not satisfied that the magistrate must have entertained a reasonable doubt about the appellant's guilt.
[196] See [134] - [136].
Ground 2 is not made out.
Orders
I accordingly make the following orders:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
26 JULY 2022
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