S, N v Police - [2021] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
S, N v POLICE
[2021] SASC 49
Judgment of the Honourable Justice Lovell
7 May 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
In the early hours of 8 September 2018, the appellant, an Uber driver, picked up the complainant from the Adelaide CBD. The complainant alleged that on the way to her house the appellant stopped the car and sexually assaulted her by kissing her, touching her breasts and moving her hand onto his penis. The appellant was convicted of one count of indecent assault following a trial in the Magistrates Court. He appeals the conviction.
Held, allowing the appeal:
1. The Magistrate erred in failing to consider the complainant's change in evidence as to how the first sexual contact began.
2. The Magistrate erred in failing to consider the appellant's state of mind as to whether the complainant was consenting.
3. The conviction is quashed and the matter remitted to the Magistrates Court for a retrial before a different Magistrate.
Criminal Law Consolidation Act 1935 (SA) ss 20 & 56; Magistrates Court Act 1991 (SA) s 42, referred to.
Fitzgerald v Kennard (1995) NSWLR 184; Fox v Percy (2003) 214 CLR 118; Le Cornu v Thomas (2019) 134 SASR 421; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Parish v Director of Public Prosecutions [2007] 17 VR 412; Pell v The Queen (2020) 376 ALR 478; Pol v City of Port Adelaide Enfield [2017] SASC 116; R v Baden-Clay (2016) 258 CLR 308; R v Baden-Clay [2015] QCA 265; R v Bonara (1994) 35 NSWLR 74; R v JGS [2020] SASCFC 48; R v Livingstone (2011) 109 SASR 380; R v Moss [2011] SASCFC 93; R v Rendell (2018) 131 SASR 201; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, considered.

S, N v POLICE
[2021] SASC 49

Criminal – Magistrates Appeal
LOVELL J:
Overview

In the early hours of 8 September 2019 the appellant, an Uber driver, picked up the complainant and her friend from the Adelaide CBD. Her friend was dropped off first. The complainant alleged that the appellant, having stopped the car near her house, sexually assaulted her before completing the journey to her house. The appellant was charged with one count of indecent assault. The matter proceeded to trial in the Magistrates Court. On 12 August 2020, the Magistrate convicted the appellant of indecent assault. The appellant appeals the conviction.
Principles on appeal
The right of appeal against conviction arises pursuant to s 42 of the Magistrates Court Act 1991 (SA) and is by way of a rehearing. The court is required to conduct a real and independent review of the evidence before the Magistrate and come to its own conclusions.[1] However, due allowance must be made for the advantage the Magistrate had in seeing and hearing the evidence at trial. This case depends on the credibility and reliability of the complainant and the Court should not interfere with the Magistrate’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or are “glaringly improbable” or “contrary to compelling inferences.”[2] As the plurality stated in Fox v Percy:[3]
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.
(citations omitted)
[1] Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38]-[39]; Pol v City of Port Adelaide Enfield [2017] SASC 116 at [15].
[2] Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 (French CJ, Bell, Keane, Nettle
and Gordon JJ).
[3] Fox v Percy (2003) 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ).
Extension of time
The notice of appeal was filed out of time and an affidavit provided setting out the reasons for this. The respondent does not oppose the granting of an extension of time. I grant the extension.
Grounds of appeal
There are three grounds of appeal. Ground 1 alleges the Magistrate erred in finding that the complainant was a credible and reliable witness. Ground 2 complains that the Magistrate’s reasons, on certain topics, are inadequate. Ground 3 alleges that the Magistrate erred in failing to properly direct himself on the elements of the offence.
For the reasons that follow, I allow the appeal on Ground 3.
Review of evidence
The prosecution case relied upon the credibility and reliability of the complainant. The prosecution called the complainant, her friend, ER, her friend’s father, MR and her friend’s mother (for the purpose of complaint evidence) and the investigating officer. A record of interview of the appellant was also tendered. The appellant called two character witnesses. He did not give evidence at trial.
Evidence of the complainant
The complainant gave evidence that the night of Saturday, 7 September 2019, she went into the city with her cousin. They went to a tavern and a couple of clubs, meeting up with friends along the way. The complainant consumed approximately 12 alcoholic drinks over the course of the evening.
As the night progressed, she became separated from her cousin. At around 3.40am, she ordered an Uber with a male friend to take them to their respective homes. She used her friend’s Uber account but paid with her credit card. The appellant was the Uber driver. The complainant said she was beginning to feel sober when the Uber picked her up. She stated that she was well aware of what was happening. She had not had any drinks prior to going into town.
The appellant picked her and her friend up from Currie Street. The complainant got into the front seat and her friend sat in the backseat directly behind the appellant. Her friend’s address was keyed into the Uber application. The complainant said that her friend fell asleep almost instantly after they got into the car. The complainant chatted to the driver about her work and asked him general questions about his life and work. She was doing a lot of the talking. He asked her if she was drunk and she said, “No, I’m getting sober now.” They arrived at her friend’s house. He woke up and got out of the car.
The complainant did not recall telling the appellant her exact dress but assumed that her friend entered both his address and her address when booking the Uber ride. The appellant started driving to Craigmore, where the complainant lived. The complainant said that the conversation died down because she had already asked so many questions. As they approached the Craigmore shops she said, “This is my area, this is where I live” to give the appellant an indication of where her house was located. He pulled over to the curb and turned off the engine. They were about a two-minute drive from her house. She did not ask him to stop and he did not tell her that he was going to pull over. It was dark and the appellant switched the headlights off. He said to her, “I don’t normally do this but you’ve made me feel really comfortable. Do you mind if I have a cigarette?”. The complainant assumed that he had seen her extinguish a cigarette before she hopped into the car as she had not told him she was a smoker. She said, “Yes” and they both had cigarettes while seated in the car with the windows wound down. Their seatbelts were both on. The complainant felt a “bit uncomfortable” as she did not consider it was appropriate for an Uber driver to stop and ask for a cigarette. The complainant said she just wanted to get home but was feeling intimidated. She did not say this to the appellant. It took about five minutes to smoke the cigarette and she did not recall any conversation while this happened.
After she finished the cigarette, she thought the appellant asked to kiss her. He was saying, “Please, please, give me a kiss.” She said, “Yes, when I get home” because she was afraid and just wanted to get home. The complainant could not recall if he responded. The appellant moved from his chair and leaned over to her, his chest was on her upper part of her body. The complainant said that she “froze”. The appellant kissed her with an open mouth. At one point, the complainant had her hands facing upwards and outwards at chest level but the appellant was not stopping so she put her hands to her side because there was “nothing else [she] could do.” She could not recall if she told him to stop. He kissed her “pretty vigorously” and then he pulled her shirt up. He started playing with her breasts somewhat roughly and then lifted her shirt up with her bra and touched her breasts. She was wearing a loose, high neck shirt with no buttons. The appellant touched her on top of the shirt and then underneath when he lifted it up with her bra. She did not say anything and could not recall him saying anything. The appellant was still sitting in the driver’s seat, his upper half pressing against her upper half.
The complainant said that the appellant pulled the lever on the car seat and the car seat moved back to a more reclined position. She later described this movement as being “launched back”. The appellant then “was more on [her].” She was wearing her seatbelt but he was not wearing his. The seatbelt did not restrict his ability to lift her shirt. He had both hands on her breasts and was rough, causing her pain. She saw that he was “really excited” by his facial expression and he was saying, “Oh my God, oh my God.” The complainant said that it felt like he touched her breasts for about five to 10 minutes. She thought she was in the car for about 20 to 25 minutes in total but she was not keeping track of the time. After he stopped touching her breasts, the appellant grabbed her hands and wanted her to rub his penis. He kept saying, “Please, just touch it, please”. He moved her hand onto his penis, over the top of his pants. It was erect. The appellant was sitting back in his seat by this stage. The complainant “was refusing” and thought that he must have “felt [her] attitude”. The complainant said that she thought the appellant realised it was “not going to go any further” and he stopped. She said, “he must have known I was uncomfortable”. The complainant was asked:
Q.Did you use any words to try and show you were uncomfortable or scared.
A.I think I might have said ‘No’, but to be honest, I don’t remember fighting that much because I was intimidated and scared.
The appellant started the car and then took her home. He did not say anything after he started the car and she could not remember saying anything to him except giving him directions to get to her house. After two minutes, the car pulled up a few houses down from her house. She thanked him for the ride home. It was not until she got inside the house that she felt really upset about what had happened. After dropping her home, the appellant gave her a five-star passenger rating. When she checked the trip details the next day, the end location was the house closest to where he had assaulted her.
At the time of the offence, the complainant lived with a family consisting of her friend, ER, her friend’s father, MR and her friend’s mother. She considered them family. When she arrived home, no one was awake. She was eventually let into the house and she went straight to her bedroom. At 5.25am she sent a Facebook message to her cousin saying, “Hey, I’m home now” and then another message saying, “I need to talk to you tomorrow”. The complainant said that she struggled to sleep and at about 9.30am went into ER’s bedroom. ER asked, “Did you hook up with anyone last night?” and the complainant started crying. ER asked her what was wrong and she told her about the appellant and said, “I think I was assaulted, sexually assaulted”. She did not go into too much detail; she said, “He grabbed me, he kissed me”. She was crying, shaky and anxious. ER told her father MR about the problem. The complainant did not remember saying anything directly to MR, but gave evidence that both MR and ER kept reiterating to her that she needed to go to the police and tell someone about what had happened. Photographs of bruising to her right thigh were taken later and produced at trial.
Later that day the complainant went to the Elizabeth Police Station with ER. She gave a statement to the police but also signed a SAPOL form indicating that she did not wish to proceed with the matter.
Detective Sarah Munn visited the complainant to follow up her allegation, despite the complainant’s signing of the form. It was from this follow up that the matter proceeded.
The complainant denied in cross-examination that she was making up the incident. The complainant conceded, having been shown a video of how the appellant’s car seat worked, that the seat could not have been put back as quickly as she stated.
Importantly the complainant, when cross-examined on her statement to the police, conceded that she had kissed the appellant first, this occurring after he had asked for a kiss. She said that she had not mentioned this in examination-in-chief because she was not asked. However, as discussed later, this change in evidence as to how the incident in the car began was a matter that required the Magistrate’s careful attention.
Defence case
The appellant did not give evidence at trial. He participated in a record of interview with police on 19 September 2019. The appellant, whilst agreeing with the general details of the complainant’s evidence, denied that there was any sexual contact at all. The appellant admitted there was a stop on the way to the complainant’s house but said that it was at the complainant’s request because she wanted to wait for a friend who was coming to pick her up.
During cross-examination it was suggested to the complainant that she asked the appellant to wait for 10 to 15 minutes and paid him $10 cash. He said that he was going to have a smoke while he waited. She offered him a cigarette. After finishing the cigarette, he did not want to wait any longer and told her that she had to leave or tell him where to take her home. He then dropped her home. The complainant denied this version of events.
Correspondence between the appellant and Uber about the car ride was tendered by the appellant during the trial. The messages align with the case put forward by defence at trial and the record of interview. The appellant also called two character witnesses.
Ground 3
It is convenient to deal with this ground first. The appellant contends that the Magistrate erred in failing to properly direct himself as to the elements of the offence.
The elements of indecent assault
The appellant is charged with indecently assaulting the complainant, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). Section 56 does not provide the elements of the offence. It is unclear whether the elements of assault are to be found in the common law offence or the statutory offence of assault.[4] In deciding this case the differences, if any, are irrelevant.
[4] Section 20 of the Criminal Law Consolidation Act 1935.
An indecent assault is an assault which occurs in circumstances of indecency. There is little authority in South Australia on the mental element required for the charge of indecent assault to be established.[5] In R v Moss,[6] Doyle CJ stated (Anderson and Peek JJ agreeing) that on a charge of indecent assault the prosecution had to establish beyond reasonable doubt that an accused knew the complainant was not consenting to being touched in the manner alleged, or was recklessly indifferent as to whether the complainant was consenting. The point was dealt with succinctly in that case without discussion.
[5] See R v Moss [2011] SASCFC 93; R v Thompson [2018] SASCFC 104.
[6] [2011] SASCFC 93 at [41].
The question of the mental element on a charge of indecent assault has been comprehensively dealt with in New South Wales. An assault requires the application of force to be unlawful. That is, there must be no lawful justification for it. Consent would be a lawful justification or excuse. To establish the guilty mind of an accused the prosecution must prove that not only did the complainant not consent but that the accused also had a guilty mind in that he or she knew the complainant was not consenting or being aware that the complainant might not be consenting nevertheless proceeded to touch the complainant.[7] The NSW position appears to have been adopted by Doyle CJ in R v Moss.[8]
[7] Fitzgerald v Kennard (1995) NSWLR 184; R v Bonara (1994) 35 NSWLR 74; see also Parish v Director of Public Prosecutions [2007] 17 VR 412 where Robson J considers the authorities although based on differently worded legislation.
[8] [2011] SASCFC 93.
The Magistrate was required to consider the question of whether the prosecution had proved beyond a reasonable doubt that the appellant either knew the complainant was not consenting or was aware she might not be but proceeded to touch her in the manner alleged.
The Magistrate’s reasons
The Magistrate found that the complainant was an honest and reliable witness. When discussing the elements of the offence the Magistrate made the following remarks:
The elements of the charge of indecent assault are as follows:
1. The defendant intentionally assaulted the alleged victim [the complainant];
2. The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
…
By her allegations, [the complainant] is clearly demonstrating her lack of consent to the defendant’s action. There is no need to consider the consent issue with respect to the defendant as his case was the assault did not occur.
(citation omitted)
Discussion
The prosecution was required to prove that not only was the complainant not consenting, but further that the appellant knew she was not consenting or was recklessly indifferent to that fact. The Magistrate, while not stating those matters as elements of the offence, correctly identified them as issues and by implication as elements of the offence. However, there are two issues with the Magistrate’s summary that require further analysis. First, his comment that by her allegations[9] the complainant was “clearly demonstrating her lack of consent”. Secondly, the Magistrate, to support his statement that there was no need to consider the issue of the appellant’s state of mind, relied upon the High Court’s decision in R v Baden-Clay.[10] The issues are interrelated.
“Clearly demonstrating her lack of consent”
[9] I assume he meant evidence.
[10] R v Baden-Clay (2016) 258 CLR 308.

Turning to the first issue, the complainant made no mention, in her evidence-in-chief, of her initially kissing the appellant. When cross-examined on her police statement she stated:
Well looking back on it, I remember being in a situation where he asked if he could kiss me. I felt incredibly scared, intimidated and wanted to get home, I said ‘Yes. Yes, I will kiss you’.
She agreed that she leant over to kiss him but stated she did not give him “permission to do anything more”. There are two important aspects to this evidence. First, the appellant asked for permission to kiss the complainant and the complainant gave permission. Secondly, the now acknowledged start of the interaction between the appellant and complainant is different to the complainant’s initial evidence. The complainant’s evidence-in-chief was that the appellant asked if he could kiss the complainant and she said, “Yes, when I get home.” The complainant then stated that the appellant, without warning, leant over and kissed her and that she then froze. The complainant’s evidence, initially, was that after this uninvited kiss the appellant operated her seat causing it to recline quickly. When confronted by evidence demonstrating that could not have happened in this type of car the complainant agreed and stated the seat went back slowly.
The Magistrate was required to assess the complainant’s evidence in the context of the admitted change in evidence, in particular, as to how the incident began. Clearly it began with a consensual kiss, not with the appellant, without warning, kissing her. While the Magistrate correctly acknowledged that the indecent assault alleged occurred after the initial kiss, he did not deal with the problem created by the change of evidence as to how the incident started and the fact that, initially at least, the appellant had permission to kiss the complainant. The Magistrate was required to consider the change of evidence and how, if at all, the change affected his assessment of her evidence, as well as what inferences he could draw, from that evidence, about the appellant’s state of mind. He did not do so.
The Magistrate found that the complainant “tried to push him away and demonstrated that in Court by putting her hand in front of her chest pushing upward and outward”. The transcript does not, if read literally, support the finding. The complainant said that she remembered sitting there “frozen” and having her hands “here”. She demonstrated. The transcript records the Magistrate stating, “I will just indicate that the witness has hands facing upwards and outwards at chest level”. The description is unclear. However, neither the description by the complainant nor the comment of the Magistrate in the transcript contains a suggestion of pushing. The lack of “pushing” is consistent with the complainant’s evidence where she stated, later during the incident, “I think I might have said ‘No’, but to be honest, I don’t remember fighting that much because I was intimidated and scared.”
It is not necessary for me, given my reasons, to resolve this issue. The Magistrate dealt efficiently with the entire matter and it is likely, when writing his reasons, that he would have an actual recall of what the complainant demonstrated when giving evidence. However, the issue demonstrates the difficulty for an appellate court in assessing the credibility of a witness when not having the benefit of seeing and hearing the witness give evidence.
The Magistrate found the complainant to be an honest and reliable witness. He found that at times she had inconsistent and less certain memory and recall of events that preceded the Uber trip. He found she did not embellish any accusation or try to evade and question a topic raised in her evidence. He found she was clearly in error about the passenger backrest but accepted her answer to the issue as reasonable given the flurry of activity in the car. The issue did not cause him to form an adverse view about her credibility or reliability.
It is not every contradiction or proved inconsistency or flaw in a witness’s evidence which will lead a tribunal to doubt the witness’s essential reliability – a question of degree is involved.[11] Further, as was observed in R v Rendell,[12] such inconsistencies or contradictions are matters that “a trial judge is best placed” to resolve.
[11] R v Livingstone (2011) 109 SASR 380 at [23].
[12] (2018) 131 SASR 201 at [90].
However, the Magistrate dealt with the evidence of how the incident started only as an instance of an inconsistency in the complainant’s evidence. In fact, as discussed, there were two aspects of the evidence. First, she was inconsistent but secondly, and more importantly, she changed her evidence and changed it in a material way. The incident began with consent. The Magistrate was required to assess the evidence on the basis that not only did the complainant give permission for the appellant to kiss her, but that she actually initiated the physical act of kissing. The Magistrate, in forming his assessment that the complainant “clearly demonstrat[ed]” her lack of consent has not had regard to the change in evidence. It is clear from the complainant’s evidence that, the initial kiss aside, she, in her own mind, was not consenting. That is a different proposition as to whether she “clearly demonstrat[ed]” her lack of consent.
The appellant’s state of mind
A further problem with the Magistrate’s findings relates to the issue of the state of mind of the appellant. As mentioned, relying on the case of R v Baden-Clay,[13] the Magistrate considered that he did not need to consider the issue at all. In my view, he was in error in not considering the issue and also in relying on Baden-Clay to support his position.
[13] (2016) 258 CLR 308.
In Baden-Clay the accused was charged with the murder of his wife. The accused gave evidence at trial that his wife had left the house after he had gone to bed and that he had not seen her since that time. His wife’s body was not located for approximately 11 days after he had last seen her. The body of the deceased was found in a creek approximately 13 kilometres from her home. The accused was convicted of murder. On appeal to the Queensland Court of Appeal, the appellant submitted that a hypothesis consistent with innocence of murder was open on the evidence. The Court of Appeal identified the hypothesis as:[14]
a physical confrontation between the respondent and his wife during which he delivered a blow to the wife which killed her without intending to cause serious harm, after which he took the body to Kholo Creek in a state of panic and knowledge that he had unlawfully killed her, in the hope that the body would be washed away.
[14] R v Baden-Clay [2015] QCA 265 at [48].
The High Court in response to that hypothesis observed:[15]
The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent's wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.
[15] R v Baden-Clay (2016) 258 CLR 308 at [54].
The High Court observed that the hypothesis was “mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence.”[16] That is, there was no evidence in the case, from either the prosecution or defence, to support such a hypothesis. The High Court’s observations in Baden-Clay do not support the position adopted by the Magistrate. It was still necessary for the prosecution to establish, on the evidence, all the elements of the offence.
[16] R v Baden-Clay (2016) 258 CLR 308 at [55] (emphasis added).
As discussed earlier, the appellant denied, in his record of interview, that any incident of a sexual nature took place. The cross-examination of the complainant was to that effect. However, the appellant did not give evidence. The Magistrate, as he was entitled to do, rejected the entirety of the appellant’s out of court statement as self- serving. However, rejecting the appellant’s self-serving statements did not relieve the Magistrate from his obligation to assess the rest of the evidence in determining whether all the elements of the offence were proved beyond reasonable doubt. Despite the defence proffered by the appellant, the Magistrate was required to assess the evidence at trial and determine whether, on the prosecution case, he could be satisfied beyond a reasonable doubt that the appellant knew the complainant was not consenting or was recklessly indifferent to that fact.
In my view, the Magistrate was in error in not assessing the evidence relevant to the appellant’s state of mind. This assessment, since the appellant did not give evidence, required the Magistrate to consider the complainant’s evidence and draw inferences from that as to the appellant’s state of mind. The fact that he found the complainant credible and reliable, and that she did not consent, says nothing about the appellant’s state of mind. On the facts of this case it may have been a simple step for the Magistrate to take depending on his findings. However, it was a necessary step. And it was a necessary step on the changed evidence of the complainant.
The respondent accepted that the Magistrate did not make findings in relation to the complainant’s change in evidence as to how the incident began. Further, the respondent accepted that the Magistrate ought to have dealt with the issue of the state of mind of the appellant. That said, the respondent submitted it was open to me, on a review of the evidence, to find that the appellant was at least reckless as to whether or not the complainant consented to the activity the subject of the charge.
In Le Cornu v Thomas,[17] Peek J (Bampton J agreeing) in relation to the approach to be adopted in relation to an appeal from the Magistrates Court stated:[18]
[17] (2019) 134 SASR 421.
[18] (2019) 134 SASR 421 at [31] ff.
In 2017 in Police v Rosales, I returned to this matter and stated:
In Theophilus v Police I considered the circumstances in which an appeal under s 42 of the Magistrates Court Act 1991 may be dismissed even though a ground of appeal has been made out. I there followed the decisions of Napier CJ in Pelham v Homes, Bray CJ in Pope v Ewendt, and other later cases, all to the effect that a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
I note the approach of counsel for the respondent in advocating for an approach couched in terms of “miscarriage of justice”, but I prefer the above approach. In part, this is because the term “miscarriage of justice” might be mistakenly thought to connote a de facto importation of “the common form proviso” in s 353(1), Criminal Law Consolidation Act 1935 into the area of Magistrate Court appeals brought pursuant to s 42 of the Magistrates Court Act 1991. That, of course, cannot be lawfully done; s 353(1) of the Criminal Law Consolidation Act 1935 has no application to an appeal brought pursuant to s 42, Magistrates Court Act 1991. Maintaining this distinction may be all the more important since the High Court has commenced to formulate a new approach to the common form proviso commencing with Weiss v The Queen, continuing with a number of more recent decisions and, with all respect, further decisions not being unlikely.
(Emphasis added.)
(footnotes omitted)
The question on appeal from the Magistrates Court is whether the charge is so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
I cannot be so satisfied for a number of reasons. First, as discussed earlier, such an assessment of credibility and reliability is quintessentially a matter for the Magistrate. The problem identified earlier relating to whether the complainant pushed the appellant highlights the difficulty for an appellate court. Further, the findings of the Magistrate do not consider, as discussed earlier, the change of evidence by the complainant as to how the incident commenced. He considered it unnecessary to do so. To decide what inferences are available to assess the appellant’s state of mind requires findings as to how the complainant demonstrated her lack of consent after the initial consensual kiss.
They are matters not capable of resolution on appeal.
I allow the appeal on this ground.
Grounds 1 and 2
The appellant complains about the Magistrate’s reasoning (Ground 1) and the adequacy of his reasons (Ground 2). The distinction between the two grounds was discussed in R v JGS.[19] I stated in that case:[20]
There is however a distinction between a complaint of inadequate reasons and a complaint of inadequate reasoning. The distinction is not always obvious. However, the two concepts should not be conflated. The appellant’s complaints fall more naturally into the concept of inadequate reasoning. That is, the complaint is that the Trial Judge’s reasons, although given, do not rationally support the ultimate finding of facts and therefore the verdicts. The appeal was largely conducted on this basis.
…
In R v Sexton, Kourakis CJ, outlined the distinction between a complaint of inadequate reasons and a complaint that the judge’s reasons do not support the verdict returned (inadequate reasoning). His Honour observed:
… The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict. In the context of a criminal appeal against conviction pursuant to s 353 of the CLCA, the latter complaint may be an appeal on the ground that the verdict was unreasonable or not supported by the evidence, in which case it will result in an acquittal. Alternatively it may be an appeal on the ground that there has been a miscarriage of justice because the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. In such a case, there will ordinarily be an order for a retrial. These grounds might be made good, or shown to be unfounded, by reference to matters of evidence or law which are not dealt with in the judge’s reasons.
(footnotes omitted)
[19] [2020] SASCFC 48.
[20] [2020] SASCFC 48 at [205].
The appellant’s submissions in relation to both grounds suggest there has been a miscarriage of justice. That is, the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. If successful, the appellant would be entitled to a retrial rather than an acquittal. I agree. This is not a case where on my review of the evidence the appellant is entitled to an acquittal. The alleged inconsistencies in the complainant’s evidence are not such that I find there is a solid impediment to a conviction.[21]
[21] Pell v The Queen (2020) 376 ALR 478.
It is unnecessary to decide Grounds 1 and 2 as my findings in relation to Ground 3 entitle the appellant to a retrial.
Order
The appeal is allowed. The conviction is quashed and the matter remitted to the Magistrates Court for a retrial before a different Magistrate.