Scheving v Police
[2011] SASC 128
•12 August 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHEVING v POLICE
[2011] SASC 128
Judgment of The Honourable Justice Peek
12 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
Appeal against conviction for one count of indecent assault – appellant acquitted at trial of separate charge of act of indecency – appellant attended beauty therapy premises for a waxing service – the sole proprietor who performed the waxing service alleged that the appellant began to masturbate (charge of indecency) and then touch her on the outside of her clothing (charge of indecent assault) – proprietor made complaint to Mr C, the proprietor of the adjacent business premises.
Whether charge is proven beyond reasonable doubt – whether conviction is unsafe or unsatisfactory having regard to the evidence and all the circumstances – whether Magistrate erred in the way he used evidence of complaint to Mr C.
Held: appeal allowed – charge not proven beyond reasonable doubt – conviction was unsafe and unsatisfactory – Magistrate failed to appreciate the diminished credibility of Ms O – no mention of the alleged touching, masturbation or of the appellant’s alleged comment to Ms O in the police statements of either Mr O or Mr C – Magistrate erred in law in using evidence of Ms O’s complaint to Mr C as evidence that the appellant had “done something” – not appropriate to order retrial – appellant acquitted and Information dismissed.
Magistrate Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) ss 34M, 34M(4), referred to.
T v The Medical Board of South Australia (1992) 58 SASR 382; R v Szejnoga (1998) 199 LSJS 97; R v Amjad [2010] SASCFC 68; Taylor v Hayes (1990) 53 SASR 282, applied.
Laurie v Nixon (1991) 162 LSJS 16; Burlinson v Police (1994) 75 A Crim R 259; Jones v Dunkel (1959) 101 CLR 298; R v S, G (2011) 109 SASR 491; R v Dolan (1992) 58 SASR 501; R v K (1997) 68 SASR 405; R v Hansen (2002) 84 SASR 54, considered.
SCHEVING v POLICE
[2011] SASC 128
PEEK J. This is an appeal against conviction for indecent assault.
Background and overview
The appellant, Mr Egil Scheving, now aged 44, was born in Iceland on 31 May 1967. Arriving in Australia in 1998, he has worked here ever since and has never previously been convicted of a criminal offence in Australia or elsewhere.
The appellant is a person conscious of his appearance and has had a practice of having excessive hair removed from various parts of the body about three times a year. In cross-examination he was asked why he did that and replied:
It’s something that I’ve come use[d] to from where I come in Iceland. I guess we’re quite fashion kind of orientated people over there being a minority group similar maybe to the Japanese so this is quite a common treatment and it’s increasing commonly here as part of what people refer to as metro-sexual culture.
In January 2010, he happened to notice an advertisement for hair removal services by a business named Cheeky Skin on a general advertising internet site Gum Tree Internet and telephoned to make an appointment. As at the relevant time, Cheeky Skin offered a range of services including various types of massages, various types of skin treatments and a range of waxing services which all had set prices except for “Brasilian Waxing” as to which price was “POA”.[1] He attended at the business premises at the appointed time and met the sole proprietor, Ms O. Treatment started uneventfully but precisely what then occurred is disputed.
[1] Details appear in the price list tendered by the appellant on appeal and received by consent as exhibit A3.
The prosecution case was that towards the end of the session the appellant began to masturbate and while doing so with his left hand, lightly touched Ms O on the outside of her clothing with his right hand and suggested that she take her top off. The prosecution case is that Ms O then left the room and made complaint to Mr C, the proprietor of the adjacent business premises. Mr C was called to give evidence of the making of that complaint by Ms O.
The appellant left the premises peacefully, paying the amount requested. The appellant in no way avoided police about this matter and had left his correct name and contact details in a client form he had filled out on arrival.[2] He was not approached by police for about three months, until shortly before his lengthy interview with police on 1 May 2010. He then voluntarily attended by appointment, without a lawyer, and answered all questions (although some of them would have been objected to by a lawyer) in a polite and restrained fashion. He was emphatic and unequivocal in his version of the facts. His reaction to the charges may be summarised in his own words in the interview when he said that he was “surprised about this allegation, very dumbfounded actually”.
[2] Received in evidence as Exhibit P2. The police no doubt located him on the basis of these details. They would also have had the information to which Ms O referred in evidence, namely that the appellant had mentioned to her during the early part of the consultation that he worked for the Salvation Army.
The Information
The alleged touching is alleged to constitute an indecent assault and forms the subject of count 1. The alleged masturbation is alleged to constitute an act of indecency and forms the subject of count 2. The information was as follows:
1.On the 30th day of January 2010 at GOODWOOD in the said State, indecently assaulted Ms O.
Section 56(1) of the Criminal Law Consolidation Act, 1935. …
2.On the 30th day of January 2010 at GOODWOOD in the said State, behaved in an indecent manner in a place, other than a public place or police station, namely CHEEKY SKIN so as to offend or insult another person.
Section 23(1)(b) of the Summary Offences Act 1953. …
The course of the trial
The trial was brief. The evidence commenced at 11.36am on 10 January 2011 and his Honour reserved judgment at 2.49pm that same day after having heard all of the evidence and final addresses and having had a full luncheon adjournment. The entire trial transcript of the evidence comprises 32½ pages, the trial being significantly shorter in duration than the appeal hearing. Brevity has its place, but I observe in defence of the learned Magistrate that he (and the appellant for that matter) received little assistance from the solicitor then representing the appellant. This is exemplified by the superficial nature of the cross-examination that he did undertake and the absence of cross-examination that he should have undertaken as is highlighted by the further evidence received on appeal to which I will presently refer.
His Honour promptly delivered his judgment on 17 February 2011. He acquitted the appellant on count 2 but convicted on count 1. The approach that his Honour took and his reasons for the different verdicts are discussed in detail below.
Following submissions on sentence, his Honour on 17 February 2011 sentenced the appellant to a period of eight months imprisonment, suspended upon him entering into a bond of $500 to be of good behaviour for two years and delivered brief sentencing remarks. This disposition is also the subject of an appeal which, for reasons that will become apparent, need not be dealt with.
The grounds of appeal
The appellant was unrepresented on the hearing of the appeal. The original grounds of appeal against conviction comprised grounds 1.1 and 1.2 but during the course of the hearing the further grounds 1.3 to 1.5 were added without objection. Thus the grounds became as follows:
1.1His Honour erred upon the evidence in finding the appellant made physical contact with the complainant in any sense relevant to the charge;
1.2His Honour erred as to law in finding that such physical contact as the appellant may have had with the complainant was made in circumstances which were capable of constituting indecent assault.
1.3The learned Magistrate erred in that his Honour misdirected himself, and/or failed adequately to direct himself, as to the making of complaint by Ms O and its surrounding circumstances.
1.4The learned Magistrate erred in that his Honour failed adequately to direct himself as to the requirements of proof of the offence of assault as stated in s 20 Criminal Law Consolidation Act 1935.
1.5The conviction is not supported by the evidence and/or is unsafe and unsatisfactory in all of the circumstances including, but not limited to, fresh[3] evidence admitted on appeal.
[3] The word “fresh” was intended to include “further” and I treat it in this way.
Evidence received on appeal pursuant to s 42 Magistrate Court Act 1991 (SA)
The unrepresented appellant invited me to receive a number of documents which had been in the possession of his previous solicitor. He also proffered some pages from a dictionary as to the meaning of a number of terms used in the evidence below relevant to the appeal and two letters prepared subsequent to the trial and sentencing by witnesses as to his good character. After discussion, counsel appearing for the respondent very properly consented to all of the documents being received on the appeal pursuant to s 42 Magistrate Court Act 1991 (SA) which documents were admitted and are as follows:
Exhibit A1: Letter of Ms Laufey Thorardottir dated 29 June 2011.
Exhibit A2: Letter of Ms Tania Sharp dated 28 June 2011.
Exhibit A3: “Cheeky Skin” price list.
Exhibit A4: Statement by Mr C to police dated 10 May 2010 (unsigned).
Exhibit A5: Statement by Ms O to police dated 30 January 2001.
Exhibit A6: Bundle of dictionary entries from Collins Australian Dictionary.
The general approach to the appeal
In approaching this appeal, I bear steadily in mind that the purview of a Supreme Court “Magistrates Appeal” (or “Justices Appeal” as it was previously known) has always been broader than the ambit of an appeal against a jury verdict. Thus Perry J stated in Taylor v Hayes:[4]
While it is the responsibility of the Court of Criminal Appeal independently to assess the evidence (see Morris v The Queen (1987) 163 CLR 454), in doing so the function of the court is clearly quite different from that imposed upon a judge hearing a justices appeal.
It follows from the above observations that the scope of an appeal under the Justices Act is ‘not less but larger’ than the scope of an appeal under the Criminal Law Consolidation Act: see Ghys v Crafter (supra) per Napier J at 32.
…
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence.
[4] (1990) 53 SASR 282, 291.
The appellant is unrepresented in this Court. He fully co-operated with the police and gave evidence at trial consistent with his lengthy police interview. His case was, in my view, inadequately presented at trial and the Magistrate was deprived of the advantage of certain further evidence I have received on appeal. The Magistrate convicted the appellant but did so after acquitting him of another charge which depended on the credibility and reliability of the same complainant. The appellant is a man with no previous convictions who had, prior to this conviction, held a responsible position with a very worthy organisation whose members deeply regret the loss of his services. In such a case, it is well to closely bear in mind the words of King CJ (with whom Duggan and Zelling JJ agreed) in Laurie v Nixon:[5]
... When such momentous consequences may result from a conviction based upon findings of fact by a magistrate sitting alone, the need for a critical and thoroughgoing scrutiny by the appellate court should need no emphasis. It involves no disrespect to the competence of the magistrates to recognise the existence of the risk of mistake by an individual magistrate as to matters of fact including the assessment of the credibility of witnesses.
Ground 1.5 of appeal: The conviction is not supported by the evidence and/or is unsafe and unsatisfactory in all of the circumstances including, but not limited to, fresh evidence admitted on appeal.
[5] (1991) 162 LSJS 16, 19. In Burlinson v Police (1994) 75 A Crim R 259, 263 Nyland J held that the precepts in Taylor v Hayes and Laurie v Nixon equally applied to s 42 Magistrates Court Act 1991 (SA) as they had to the previous provision in the Justices Act.
I propose to consider this ground of appeal by reference to an examination of the circumstances leading up to the subject incident, the evidence in relation to the subject incident itself and circumstances subsequent to that incident that may have resulted in unreliability of the evidence of the complainant at trial. I will also consider the judgment of the learned Magistrate against the background of the above matters.
The circumstances leading up to the subject incident
Ms O stated that she took a telephone booking from the appellant and that “he booked in for a back wax and a bottom wax and at that stage that’s all he asked to be booked in for.” She stated that when he arrived at the premises, she took him into the treatment room and talked about the back wax and that at that time he said “Okay I’d also like to have my chest done as well”.
Ms O gave evidence of the uneventful waxing of the back and bottom, the appellant turning over and the commencement of chest waxing. She states that after chest waxing she started waxing the abdomen area and it was then that the first sign of anything untoward occurred (and not, as the appellant states, during “triple x” waxing in the genital area). She stated:[6]
A:I did notice his demeanour begin to change as I started waxing his abdomen area. …
A:At first I thought he was a very nice person made me feel quite comfortable. I was aware that I was there on my own that day and no I didn’t get any ill feelings from him whatsoever but yes about halfway through he stopped talking as much as what we were. He sort of started – his eyes started to move around the room quite a lot and I noticed he was shifting on the bed a lot as well so he was just laying there as he was when I was waxing his back. He was moving around slightly as well.
(Emphasis added)
[6] T9.
The appellant gave a version of events leading up to the subject incident with differences which, on close analysis, are quite important.
He stated that in the original telephone conversation with the complainant he had ordered waxing to his “back, bottom and stomach” and that the treatment at the premises began with his back and bottom and then, after he had turned over, Ms O went straight to waxing the stomach area with no waxing on the chest. He was adamant that he did not want his chest done and had never requested that it be done.
He further said that close to, or at, the completion of the stomach waxing, he asked Ms O if she could also do “triple X” waxing, that she agreed and began that process in the genital region. He said that he was lying down and was still. He specifically denied any masturbation. He stated: “I did not touch my genitals at all”. It was the appellant’s case that he made an inappropriate remark concerning the possibility of Ms O taking off her top subsequent to turning over (his back and bottom completed) and after a further period of waxing of about the same duration as asserted by Ms O but in the quite different context as stated above.
The appellant points to a number of matters that support his version of the events. First, the proposition that the appellant made a telephone booking for stomach rather than chest waxing was clearly put to Ms O in cross-examination:[7]
Q:The defendant says that he made a booking to have his stomach and back waxed as well as his bottom but certainly not his chest. Can you respond to that? Is that your recollection at this point?
A:That is – well my recollection of it was that he did book in for a back wax and a bottom wax. It was not in the appointment book for a stomach or chest wax …
(Emphasis added)
[7] T12-13.
Ms O’s assertion in emphasis merely repeated what she had said in examination-in-chief. However, what is important is that this assertion is clearly inconsistent with her statement at page 1 of her statement to police (exhibit on appeal A4) where she had stated:
On Saturday, 30th January, 2010 at 11.00am I had a client named GILL SCHEVING booked in for a back, bottom and stomach wax. The whole treatment takes approximately forty-five minutes.
(Emphasis added)
That passage in her statement (which was not drawn to the Magistrate’s attention by the appellant’s solicitor) would appear to have been based on an appointment book and, indeed, in the passage in her evidence immediately above, such an appointment book is referred to by Ms O but none was produced at trial or on appeal.
This marked inconsistency as to the contents of the appointment book is not unimportant. The appellant maintained in both his police interview and in his evidence in Court that he had not ordered and not received a chest waxing but only a stomach waxing, drawing a clear distinction between those two services. He appears to be correct in drawing that distinction in that Ms O was also clearly aware of it: in the Cheeky Skin price list (exhibit on appeal A3), the available variations of male waxing services were specifically set out in detail as follows:
Male Waxing
Eyebrow $16
Ear/Nostrils $13ea
Chest $30
Chest and stomach$35
Stomach $20
Neck $15
Underarm $16
Back $30
Back and shoulders $35
Half Leg $38
Full Leg to bike short $60
Full Leg to brief line $65
Half Arm $30
Full Arm $38Brazilian Waxing POA
(Emphasis added)
There was clearly a significant difference between a booking for a stomach waxing and a chest waxing since the latter was 50% more expensive than the former. This brings me to the appellant’s further point, that Ms O stated in evidence in Court:[8]
Q:What did [Mr C] do?
A:So I went across the hallway into the bathroom and closed the door and [Mr C] went out into the reception area and waited for him. Mr Scheving then came out with his belongings including like his motorcycle helmet and [Mr C] said to him ‘That will be $50 because that’s how much it cost for a back wax and chest wax at that particular time and then Mr Scheving gave him the money and then he left.
(Emphasis added)
[8] T11.
It is to be noted that in fact the price at that time for a back wax and chest wax was $60 whereas the price for a back wax and stomach wax was $50. On Ms O’s version, she had completed the back and chest and had started on the stomach but if the uncompleted area (on her version, the stomach) was to be “written off”, the price would have been $60. However, on the appellant’s version, she had completed the back and stomach and had started on the triple X and so, if the uncompleted area (on his version, the triple X) was to be “written off” the price was $50. This was indeed the price requested of him by Mr C on the instructions of Ms O and was the price that the appellant paid.
These matters by themselves may not be determinative, but their cumulative effect is not insubstantial. Indeed in the light of those matters, one can discern a touch of defensiveness in Ms O’s evidence on precisely what type of service she was providing. I note that at the beginning of her evidence-in-chief Ms O was asked “What type of services do you offer at your salon?” to which she replied “At my salon we offer all aspects of beauty therapy so ranges from waxing, facials, nail enhancements, body massage, tinting, eyelash extensions.” She later stated “It’s just a beauty salon.” I suppose it depends somewhat as to the precise meaning of a “beauty salon” and what such an enterprise might be thought to usually provide, but it is clear from the Cheeky Skin price list tendered on appeal that massages and “Brasilian” waxing were items that were available. Whether they are available at every beauty salon, I would not presume to know.
The incident the subject of the charges
Ms O stated that while she was momentarily turned away, the appellant ran his right hand very lightly down the outside of her clothing from a point level with her breastbone down to a point level with the buttock; she looked back and observed that he had lowered the towel, his penis was erect and he was masturbating with his left hand. She purported to give clear and precise evidence as to the performance of masturbation by the appellant. Thus she stated, in circumstances where the two people were literally within touching distance, that:[9]
… I turned back and he was masturbating with his left hand and he then touched me again down [the] exact same part of my body and then proceeded to ask me if I would take my top off for him.
[9] T10.
The following passage appears shortly thereafter:[10]
Q:Was his penis erect?
A:Yes.
Q:What did you say to him after he asked you to take your top off?
A:I said ‘Stop that. What are you doing’ and he actually thought it was very funny he had a big smile on his face. I just said ‘Put your clothes back on’ and just leave.
Q:Did he say anything else to you?
A:Not from memory and as I exited the room I turned to close the door inwards and he was continuing to masturbate with a smile on his face.
[10] T11.
Ms O proceeded to give evidence that she was distressed, left the room and went to the adjacent business premises where she made a particular complaint to Mr C. This evidence will be considered below in the context of the examination of the complaint evidence.
The evidence of the appellant as to the subject incident
The appellant gave clear evidence at trial that he had not intentionally touched Ms O and had not masturbated. He stated that he had made an inappropriate comment but that it was made during triple X waxing which felt painful and awkward (and not during stomach waxing as stated by Ms O). It is to be noted that this was consistent with the appellant’s police interview and could well have caused the appearance to which Ms O refers above: “his eyes started to move around the room quite a lot and I noticed he was shifting on the bed a lot as well.” I will discuss the matter of triple X waxing below but as to the inappropriate remark itself, the appellant stated:
A:I felt quite anxious and it was painful and awkward and I made a stupid comment to her out of sheer anxiety and awkwardness stupid comment where I said to her something to the effect of ‘I’d love you to take your top off’ which obviously is rude and I apologise for that, of course.
Q:What was her response to that comment?
A:She – on my part this was meant to be humour but obviously it wasn’t. She seemed to take offence stopped the treatment and said this is it you can get dressed.
Q:What did she do having said that?
A:Left the room.
At the end of his examination-in-chief appears the following passage:
A:… I guess what I’ve got to say about this is this kind of waxing treatment for men is quite a kind of sensitive, personal area and an awkward one. I accept that I offended the lady. I made an inappropriate comment at an awkward moment. I didn’t mean any harm. It was to me was meant to be humorous but clearly not seem humorous to her and again I apologise for that otherwise I did not behave indecently in any way.
The conversation between Ms O and Mr C on 30 January 2010
It was a significant part of the prosecution case to assert that Ms O had made immediate complaint of both the alleged assault and the alleged masturbation to Mr C, a person working in an adjacent office whom she knew.
The evidence of complaint given at trial
Ms O’s evidence-in-chief, as to which she was not cross-examined, was stark and clear and was as follows:
Q: What did you say to [Mr C]?
A:Well he actually asked me to begin with what was wrong and I stated that there was a man in that treatment room who was masturbating and that I was scared and that he was touching me and that I didn’t know what to do.
(Emphasis added)
Mr C in turn gave similar evidence, as to which he was also not cross-examined, as follows:
Q:Do you recall an incident that happened on Saturday, 30th January last year?
A:I do.
Q:What can you tell the court about that incident?
A:Primarily [Ms O] came in crying and very very distressed and told me that a gentleman client had masturbated and asked her to remove her clothes and had touched her and that she asked me to see him out and to basically make sure he left the premises.
(Emphasis added)
However, there are a number of things in this area of the evidence that need to be carefully considered.
A flippant reaction by Mr C?
At the end of her police statement Ms O stated:
[Mr C] told me that Gill did not seemed [sic] concerned about the incident.
I was very angry and surprised that this has happened and also by [Mr C’s] flippant way he treated the incident. [Mr C] had stated that I was an attractive woman and should not be surprised. Gill made me feel dirty.
During her cross-examination at trial Ms O was asked about this matter and gave the following evidence:
Q:There’s a statement from you saying that is to the police that your very angry and surprised that this has happened and that [Mr C] treated this incident in a flippant way and that made you angry?
A:Of course, I mean whether somebody joking or not about you know whether their surprised or not yeah it can make you angry however because we share a building together I have to stay on good terms with [Mr C] so if he has a personal opinion about what’s happened that’s his opinion but he definitely was concerned for me and he you know he helped me out in that situation and I’m very lucky that he was there that day.
The learned Magistrate does not advert to this matter in his judgment but it is actually quite important for a true appreciation of the strength of the defence case. The general effect of the appellant’s submissions is that if Ms O was in fact performing “triple X” waxing as he insisted that she was, she could well have misinterpreted the appellant’s discomfort and movements during that time as sexual arousal and have overreacted to the inappropriate comment that the appellant has always agreed that he did make. If in such circumstances she left the room in high dudgeon, but then met with a somewhat flippant response from Mr C, this may have set the scene for contamination of evidence. If Ms O were met with a reaction by Mr C which she perceived (rightly or wrongly) as conveying a belief that she was being silly or over-reacting, a subconscious tendency for her to justify her concern may have arisen, the effect of such process possibly leading to the solidification of allegations and a degree of unreliability in the subsequent trial evidence.
The possibility of such a process occurring may be considered in conjunction with a comparison between what Ms O and Mr C said in evidence about the matter of complaint by Ms O on the one hand and what they had originally said in their police statements on the other hand.
The further evidence relating to complaint received on appeal
It is important to appreciate the context in which Ms O’s police statement dated 30 January 2010 (exhibit on appeal A3) and Mr C’s police statement dated 10 April 2010 (exhibit on appeal A4) had come to be given.
The incident occurred on 30 January 2010 and Ms O gave her statement to police that day. She said that she had been distressed but did not say anything about making the complaint to which she later deposed at trial. The only conversation with Mr C she then recounted in her statement was the following:
… I asked [Mr C], the owner of the business [next door], to take Gill’s payment and escort him out of the premises, which he did.
On 1 May 2010 the appellant was interviewed by police and gave a full explanation of what had occurred. He made it quite clear that he was the one who had made the inappropriate comment about Ms O removing her top and he apologised for doing so. He denied that he had masturbated or that he had intentionally touched Ms O, but there was no prevarication as to him being the person in question. No one could possibly have thought by the end of that interview that identity could be in issue.
It was on 10 May 2010, shortly after the appellant’s interview, that Mr C first gave a statement to police, over four months after the event. There was no cross-examination at trial as to conversations he had had with Ms O during that four month period, but it is highly unlikely that none took place since the evidence was that they saw each other on virtually a daily basis.
Senior Constable Kilsby (who was not called at trial) took the statement from Mr C. He was obviously tasked to do so as a result of the appellant’s interview. It must have been quite clear to him that identity was not disputed and that the critical aspect of Mr C’s statement was the precise content of any complaint made to him by the complainant. The relevant portion of Mr C’s statement (exhibit on appeal A4) reads as follows:
1.I provided this statement to Senior Constable Damien KILSBY at about 5.00pm on Monday 10th May 2010 via the telephone.
2.I am the owner of NEUTEX at 514 Goodwood Road, GOODWOOD, which is just behind a business called CHEEKY SKIN.
3.During the middle of day on Saturday 30th January 2010 I was at my business premises when the owner of CHEEKY SKIN, [Ms O] approached me. She was crying and told me that there was a male at her business premises who was touching himself and getting aroused. She seemed very upset. She told me she did not want to see him again and asked if I would take the male’s payment.
4.I entered her business premises and took a payment of $50 from a male. The male left.
The contrast between the evidence received at trial and on appeal
On appeal, the appellant tendered the police statements of Ms O and Mr C. He made submissions to this effect:
·As to the alleged touching by the appellant of Ms O, there is no mention of it by either Ms O or Mr C in their police statements.
·As to the alleged masturbation, there is no mention of it by Ms O in her police statement and no mention of it by Mr C who only refers to Ms O describing the action of the appellant to him as “touching himself and getting aroused”.
·As to the request by the appellant for Ms O to remove her top, there is no mention of it by either Ms O or Mr C in their police statements.
The appellant proceeded to submit that the above is to be contrasted to the position at trial in January 2011, almost a year after the alleged events, when both witnesses gave well aligned versions of Ms O specifically complaining to Mr C of both the alleged assault (touching) and of masturbation.
I consider it unfortunate that these various matters were not pursued in cross-examination of both Ms O and Mr C. The learned Magistrate was deprived of the opportunity of considering what impact this further evidence, in conjunction with the apparently flippant initial reaction of Mr C and the consequences that may have flowed therefrom, had on his assessment of the credibility and reliability of Ms O.
The police interview with the appellant on 1 May 2010
On 1 May 2010 the appellant was subjected to a long police interview. As stated above, there is certainly no suggestion that the delay was in any way his fault or that he knew of any possible charge against him before that time. The whole of the typed record of the interview with the appellant was received at trial as exhibit P1. Near the start of the interview it was suggested to the appellant that he had behaved “in an indecent way” at the Cheeky Skin premises. He readily agreed that he had been there and had made an inappropriate comment to the proprietor but his answers are certainly consistent with not then knowing what was to be alleged against him in relation to indecency:
A:I’ve been there once for waxing, in terms of indecent, what are you referring to there? …
Q16:Okay. Gill just talk through with me, you said you’ve just been there once, can you explain to me how that went. Like when you first got there, can you just run through with me what actually happened while you were there?
A:Well I had the waxing and the person was doing that. I think I made a funny comment of ‘I’d rather you take your top off’ or something like that. If that’s what you’re referring to, because she seemed to get offended. …
Later the following passage appears:
Q53:So you made the comment to her, what was her reaction to that?
A:She seemed to get offended and indicated the treatment was finished. Well I’m assuming she got offended, because yeah it was a pretty abrupt completion of treatment.
Q54:Yep?
A:I got dressed. She had an assistant who took my payment and I left.
The interview was lengthy, and the cross-examination therein quite skilful, with questions of the “Why would she lie?” variety prominent.[11] I have read it several times and can see nothing suggestive of prevarication or consciousness of guilt. The interview as a whole could well be the reaction of an innocent man; I note that the prosecutor at trial, who is well experienced, asked not one question about the interview in cross-examination of the appellant.
[11] Such passages could have been objected to at trial but, in the particular circumstances here, the appellant was not prejudiced since he did himself justice in the way that he answered them.
The Magistrate’s findings
His Honour stated that he regarded Ms O as “an honest and impressive witness who gave her evidence without exaggeration”. However, this would appear to be highly discordant with his decision not to accept what was, on its face, her quite unequivocal evidence that she saw the appellant masturbating. His Honour found that what occurred may in fact have simply been scratching by the appellant.
The fact of the matter is that Ms O specifically asserted that she and the appellant were within touching distance, in the day time, and that there was no doubt that he clearly masturbated. The appellant, on the other hand, specifically stated that he did not touch his penis at all. The charge of indecent behaviour was clearly made out if one did accept the version given by Ms O and, in my view, his Honour’s dismissal of that charge cannot be characterised as other than a finding which severely impinges upon Ms O’s credibility and/or reliability.
The Full Court decision in T v The Medical Board of South Australia[12] presents a very close analogy to the present case. In that case a doctor was charged with engaging in three acts of sexual intercourse with a patient on separate occasions. The doctor denied each act. The Tribunal found counts 1 and 3 proven on the basis that they preferred the evidence of the complainant to that of the doctor but in relation to count 2 (an allegation of fellatio), it acquitted the doctor on the basis of the possible unreliability of the complainant as to that occasion. The Tribunal stated that “the patient might in some way be mistaken about the true course of events on the occasion in question”.
[12] (1992) 58 SASR 382.
The Full Court set aside the findings of the Tribunal in relation to counts 1 and 3 and entered verdicts in favour of the appellant. Matheson J stated:[13]
… I find utterly unsatisfactory both the reasons given by the Tribunal for it entertaining a doubt on the second charge and its apparent decision not to be influenced by that doubt in considering the other two charges. …
If, as the Tribunal found, Mrs H “was not suffering from any abnormal mental condition at the time and that, in general terms, she was not in any sense out of touch with reality”, I simply do not accept the Tribunal’s reasoning that she might have misconstrued the particular allegation made against Dr T. Further, in my opinion, any doubt about the second charge should have, in the circumstances of this case, gravely affected Mrs H’s credit generally.
(Emphasis in original)
[13] Ibid 395.
Similarly, Olsson J observed:[14]
The obvious fallacy in the line of reasoning is crucially important. A dismissal of the second ground of complaint, in all of the relevant circumstances revealed by the evidence, could only logically have been based upon the premise that the Tribunal was not satisfied that the complainant was a credible and reliable witness as to this incident. There is simply no other rational basis for the decision to which the Tribunal came on that score.
Once such a situation be accepted then it followed, as night follows day, that a very serious question mark immediately arose as to the degree of reliability which could fairly be placed upon the evidence of the complainant concerning the other two alleged incidents.
[14] Ibid 418.
It seems to me that the making of the suggested error by the complainant in the present case is of an order of improbability very similar to that in T v The Medical Board of South Australia. In my view, the learned Magistrate has failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation.
The appellant made several further complaints about the terms of the Magistrate’s judgment. He drew attention to the following passage:
There was a salacious element about the manner in which he described the engagement. He tried unconvincingly to trivialise the comment which was offensive to her with respect to the removal of her top.
Amongst the dictionary definitions with which the appellant was armed was that of “salacious”. I agree that his Honour’s use of that word is strange in that the appellant in his evidence clearly described a non-sexual encounter and there is nothing about his language that could answer the description “salacious”. Perhaps his Honour is in some way referring to the matter of the comment about the removal of the top, although that seems to be separately dealt with in the following sentence. In any event, I disagree with what his Honour says in that following sentence. The appellant in no way “minimised” this matter in his evidence and nor was he salacious about it. He made it very clear that he had been completely in the wrong and apologised in sincere terms. He stated (and some passages are reproduced above) that his comment was “stupid”, “obviously is rude” and “was meant to be humour but obviously it wasn’t”.
There is some force in the appellant’s complaints. Indeed, there may be a hint here of an approach by the Magistrate along the lines that one should take the appellant’s words about the top to have been meant seriously unless the appellant convinces one to the contrary. That would a serious error but I do not find it to be sufficiently established.
The appellant also drew attention to his Honour’s description of Ms O’s evidence as being “his hand touching her body and rubbing down her left side …”. He pointed out that her evidence was plainly that the alleged touch down her left side was very, very light and that “rubbing” significantly overstated the effect of her evidence. At the hearing, I thought that submission to be correct, but on writing this judgment it has occurred to me that the word “rubbing” might be a typographical error for the word “running”. That would in fact accord with the evidence and I therefore think that it would be unfair to the Magistrate to proceed on the basis that he intentionally used the word “rubbing”.
The complaint evidence
The present trial was governed by s 34M of the Evidence Act 1929 (SA).However, while this provision has significantly altered the law in relation to complaint evidence in a number of respects, the use to which such evidence may, and may not be, put remains very similar to the position as it was at common law.
The Magistrate’s approach to the complaint evidence as a matter of law
I have above referred to the factual background of the asserted complaint and the matter of the police statements. However, quite apart from those matters, I am also of the view that the learned Magistrate erred in his general approach to the use of complaint evidence as a matter of law. My reasons follow.
Admissibility at common law and under s 34M Evidence Act 1929 (SA)
Complaint evidence was admitted at common law because of its tendency to prove consistency of behaviour of the complainant and not as evidence of the truth of what was alleged against the accused. Thus Doyle CJ stated in R v Szejnoga:[15]
The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.
[15] (1998) 199 LSJS 97, 102.
This was the position at common law and it is also explicitly stated to be the position under s 34M Evidence Act 1929 (SA). Thus s 34M(4) provides:
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; …
(Emphasis added)
The Magistrate’s approach infringed s 34M(4)(b) Evidence Act 1929 (SA)
In my view the approach taken by the learned Magistrate in the present case infringed s 34M(4)(b). His Honour reasoned as follows:
It is significant that Ms O made an immediate complaint to Mr C about the defendant touching her and about him masturbating. Mr C went to Ms O’s shop and received payment from the defendant and saw him off the premises. Later on the same day Ms O reported the incident to the Sturt Police Station. Her actions and her presentation to Mr C are consistent with the defendant having done something to upset her. …
(Emphasis added)
His Honour here first identified what appeared to him to be significant about the complaint, namely the aspects of “the defendant touching her and about him masturbating”. His Honour a little later said: “Her actions and her presentation to Mr C are consistent with the defendant having done something to upset her”. (The words “her actions” refer to the making of complaint to Mr C, the words “her presentation” refer to the apparent distress of which Mr C gave evidence and the words “having done something” refer to the subject matter of her complaint to Mr C.)
The important point is that his Honour proceeded to interpret the “significance” of those actions of making complaint to Mr C as lying in the fact that they were “consistent with the defendant having done something to upset her” as distinct from the sole legitimate purpose of complaint evidence, namely to establish consistency of conduct by the complainant in the sense referred to by Doyle CJ in R v Szejnoga[16] above and as set out in ss 34M(4)(a)(i) and (ii).
[16] (1998) 199 LSJS 97, 102.
In other words, his Honour, contrary to the express prohibition in s 34M(4)(b) (that such evidence “is not admitted as evidence of the truth of what was alleged”), has impermissibly relied on complaint evidence as tending to directly establish that the defendant had “done something” as distinct from the only permissible purposes of such evidence which are set out in ss 34M(4)(a)(i) and (ii). His Honour’s approach is in error. While it would have been legitimate to direct himself that evidence of Ms O’s apparent distress was “consistent with the defendant having done something to upset her” such was not a permissible direction in relation to the use of complaint evidence. His Honour has erred in bundling the two different matters of distress evidence and complaint evidence together and thereby failed to appreciate that the former may have a broader purview than the latter.
The decision of the Court of Criminal Appeal in R v Amjad[17] strongly supports this conclusion; in fact, it dictates it. (The case was decided under the common law but, once again, the present matter with which we are concerned is treated the same way under ss 34M(4)(a)(i) and (ii) and s 34M(4)(b).)
[17] [2010] SASCFC 68.
In R v Amjad, the prosecutor at trial had made certain comments in his address to the jury as to the use of the complaint which were incorporated by the trial Judge as part of his summing up and which were as follows:
A legitimate question you might ask yourselves is, was that a spontaneous complaint to the boyfriend and of course then to [M]. You might ask yourselves members of the jury if the occasion was a perfectly innocent occasion, nothing of a sexual nature or nothing untoward happened, why did she make any phone call? Why would she make a phone call to her boyfriend at all? But why would she make any phone call to [M]?
Duggan J stated in relation to these remarks:
[21]… It is argued that these comments are inconsistent with the other directions on complaints and would be understood by the jurors as permitting them to use the evidence of the complaints as directly relevant to proof of the facts of the alleged incidents.
…
[23]In my view, the trial Judge’s remarks in the impugned passage related the complaints directly to the core issue in the case, namely, whether sexual misconduct had taken place. The remarks left it open to the jury to reason from the fact that the complaints were made that sexual misconduct took place. The suggestion was that, if the conduct did not take place, the complainant would not have been complaining in the way in which she did.
The suggested use of the evidence in this way was contrary to the directive that evidence of complaint could not be used as part of the evidence to establish the circumstances of the alleged offence. The questions which the trial Judge raised invited reasoning which is in conflict with the direction given on a number of occasions throughout the summing up that the complaints could not be used as evidence of the facts.
Duggan J subsequently concluded:
[72]The case against the appellant depended upon the evidence of the complainant. The assessment of her credibility was fundamental to the jury’s consideration of the charges. It was essential for the jury to understand the precise way in which the evidence of the complaints could be used in the assessment of the complainant’s credibility. Unfortunately, the trial Judge suggested a line of reasoning to the jury which was contrary to the otherwise unexceptionable directions on this topic. …
With respect, Duggan J’s analysis is clearly correct and directly applies to the position here. I therefore find that ground of appeal 1.3 is made out.
Conclusions as to the disposition of the appeal
I consider, for all of the reasons stated above, that the learned Magistrate:
·failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation;
·failed adequately to scrutinise the evidence of Ms O generally;
·failed adequately to appreciate the strengths of the defence case;
·erred in his approach to the complaint evidence as a matter of law; and
·would likely have come to different factual conclusions in favour of the appellant had he been made aware of the further evidence I have received on appeal.
The cumulative effect of all of these matters is clearly that the conviction must be set aside.
I refer again to Taylor v Hayes[18] and note that it was not a circumstantial evidence case but rather a straight forward factual dispute between the police witnesses and the defendant (and his witnesses) and therefore directly comparable to the present case. There is, of course, no Jones v Dunkel[19] point here, as there was there, but in my view that is more than offset here by the matter of the acquittal on count 2 and all of the other matters to which I have referred. (I might also add that there was no further or fresh evidence in Taylor v Hayes as there is here.) Perry J there stated:[20]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[18] (1990) 53 SASR 282.
[19] (1959) 101 CLR 298.
[20] Taylor v Haynes (1990) 53 SASR 282, 291-292.
Another way of formulating Perry J’s route to a dismissal of a complaint is in the words of Olsson J in T v The Medical Board of South Australia[21] where Taylor v Hayes was approved. In dismissing the complaint, Olsson J stated:[22]
It was quite unreal, on the state of the evidence, to conclude, as the Tribunal did, that the two charges had been established beyond reasonable doubt. At the end of the hearing very real residual doubts clearly remained.
In such circumstances there is simply no justification for exposing the appellant to double jeopardy.
[21] 1992) 58 SASR 382.
[22] Ibid 423.
In the present case, while I give full and due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, I have reached a different view on the evidence. I consider that, at the very least, very real residual doubts clearly remained. I give effect to that view by substituting my view for that reached by the Magistrate. I find that ground 1.5 of appeal is made out in that the conviction is not supported by the evidence and that the charge is not proven beyond reasonable doubt. Accordingly, the information is to be dismissed.
In addition or in the alternative, I find that ground 1.5 of appeal is made out in that the conviction is “unsafe and unsatisfactory” for the joint and several reasons that the Magistrate:
·failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation;
·failed adequately to scrutinise the evidence of Ms O generally;
·failed adequately to appreciate the strengths of the defence case;
·erred in his approach to the complaint evidence as a matter of law; and
·would likely have come to different factual conclusions in favour of the appellant had he been made aware of the further evidence I have received on appeal.
I further find that ground 1.3 of appeal (erroneous approach to the complaint evidence) is made out as a distinct error of law which of itself independently requires that the verdict be set aside.
The alternative discretion to dismiss rather than order a retrial
My decision above is that it is appropriate for me to substitute my view for that of the Magistrate and dismiss the Information without order for a retrial. I add, though it is unnecessary to do so, that if I had allowed the appeal because of an error, or aggregation of errors, by the Magistrate I would then have proceeded to exercise the very broad discretion reposing in a Judge hearing a Magistrates appeal to dismiss the Information rather than order a retrial. I will briefly explain why this is so.
The unlikelihood of a finding of guilt on a retrial
One important matter when considering whether a retrial should be ordered is the likelihood of a retrial resulting in a conviction. In the present case, the Magistrate at a retrial would have an appreciation of the relative strengths and weaknesses of the prosecution and defence cases quite different to that of the trial Magistrate as a result of the present examination of relevant matters and the additional evidence and submissions that would be before the Court on a retrial. Some only of such matters are as follows.
First, the acquittal on count 2 is an important factor. The appellant has been acquitted of the allegation of masturbating in the presence of Ms O which formed the subject matter of count 2 but which, on correct analysis, also underpinned count 1. When properly assessed, the acquittal has far greater implications for the credibility and reliability of Ms O than was appreciated by the learned Magistrate. Second, the matter of Ms O’s and Mr C’s police statements and the other evidence received on appeal is important per se and also by reference to other matters which were touched on but not developed at trial. Proper deployment of such matters at a retrial would very likely have a significant effect on a Magistrate’s perception of the general credibility and reliability of Ms O for obvious reasons, some of which I have referred to above. Third, a different and correct approach would be taken to the complaint evidence as required by the success of ground 1.3 of appeal herein. Fourth, the appellant would likely call strong character evidence on a retrial which would also increase the level of improbability of a conviction being secured.
I consider that the likelihood that the appellant would be found guilty at a retrial if defended by competent counsel is very low. Further, it is very difficult to imagine that a safe verdict of guilty could ever be arrived at in all of the circumstances of this case.
Possible deprivation of the forensic benefit of the acquittal on count 2
Because the acquittal on count 2 would stand and not be re-litigated, there is a danger that the appellant might be deprived of the full benefit of that acquittal. The position here is very similar to that in T v The Medical Board of South Australia[23] where the appellant had been acquitted of the second charge of three charges. The Court decided that this was a factor strongly militating in favour of a final dismissal of the proceedings. Thus Matheson J stated:[24]
[I]t would not be appropriate to order any rehearing of the second charge, and that would mean that, upon a rehearing, the Tribunal, however constituted, would be deprived of the opportunity of taking into account the unfavourable impression Mrs H has already made in her evidence as to that.
[23] (1992) 58 SASR 382.
[24] Ibid 395.
This factor is not uncommonly referred to by Courts of Criminal Appeal. In R v S, G[25] I took it into account in ordering that a judgment of acquittal be entered and referred to some previous decisions in South Australia where the same course had been taken.[26]
[25] (2011) 109 SASR 491.
[26] Ibid 514-516. See R v Dolan (1992) 58 SASR 501, 506, R v K (1997) 68 SASR 405, 411, 415, R v Hansen (2002) 84 SASR 54, 71.
The staleness of the charge and the circumstances of the appellant
Count 1 is now very stale, being alleged to have occurred more than 1½ years ago. The matter has been hanging over the head of the appellant since his police interview on 30 January 2010. His conviction has led to his loss of his previous employment as a counsellor and team leader with the Salvation Army. He has suffered the real punishment of attaining the status of a person who has had a sentence of imprisonment passed upon him, although suspended, and has thus far successfully completed almost a quarter of the two year period of the bond. The cumulative effect of such matters is not to be minimised when considering whether it would be oppressive to order a retrial.
Loss of forensic evidence
The unrepresented appellant mentioned in passing on the hearing of the appeal (unprompted by myself) that if the police had approached him earlier he could have showed them the then state of his pubic hair which, he says, would have been consistent with his story as to how events developed and inconsistent with the contrary version of Ms O who asserted that she had performed no “triple X” waxing. This is actually a fair point and not, in my view, an ex post facto rationalisation. The appellant had in no way avoided the police and was not responsible for their delay in contacting him. When he was contacted, he fully co-operated and engaged in a lengthy interview which included his specific assertion that he had had waxing in the genital area performed by Ms O. If approached earlier, he may well have suggested such an examination; after all, one can hardly argue that he is excessively shy about such matters. I am not at all suggesting that it should have led to a stay of proceedings, but the loss of such evidence in the present circumstances is not insignificant and would require directions by the Magistrate at a retrial which, of itself, would further militate in favour of an acquittal.
The good character evidence tendered on appeal
There is clearly no suggestion by the prosecution that (putting aside the present allegation) the appellant is other than a man of good character but no evidence of his good character was led at the trial or on sentencing submissions. The appellant attended at the hearing of his appeal against conviction and sentence with a number of documents to which he wished to refer, amongst them being some very impressive statements about his good character for the sentence appeal. It was quite clear that he had no idea that evidence of good character could have been admitted on the actual trial and that this matter had not previously been raised with him.
I admitted the documents on both appeals pursuant to s 42 Magistrates Court Act 1991(SA) since I then envisaged the possibility of an argument that the trial had miscarried due to the failure of the appellant’s solicitor to advise the appellant of his right to call evidence of his good character on the trial proper. Having regard to the success of the appellant on other grounds, it seems pointless for that matter to be pursued. However, I see no reason why that material could not be taken into account in relation to the exercise of the broad discretion to dismiss the Information. It appears relevant to that discretion in at least three areas.
The first area of relevance is in relation to a matter already mentioned, the improbability of a conviction being secured at a retrial having regard to all of the circumstances then pertaining. The likelihood of strong character evidence being tendered on behalf of the appellant is a relevant circumstance although, of course, the permitted ambit of such evidence at trial is fairly narrow.
The second area of relevance to the question of whether a retrial should be ordered is in relation to the likely sentence that would be imposed on conviction at a retrial having regard to all of the circumstances then pertaining. Here again the likelihood of strong character evidence being tendered on sentence is a relevant circumstance. The sentence imposed by the learned Magistrate at the trial was a period of eight months imprisonment, suspended upon him entering into a bond of $500 to be of good behaviour for two years. In my view, even taking his Honour’s findings at their highest as against the appellant, this sentence was clearly manifestly excessive and there is no doubt that I would have allowed the appeal against sentence. The position is made even the more stark because I have the advantage of the good character evidence that was not before the learned Magistrate and which could be used on sentencing submissions in a much more extensive way than on the trial proper. Taking that into account, there would be a real question as to whether a conviction should be recorded but I do not need to resolve that matter.
The third area of relevance is the question of whether the public interest requires a retrial in all of the circumstances of the case and whether it would be excessively oppressive to order a retrial. Again, the matter of the good character of the appellant is relevant to this issue.
Conclusion as to the disposition of the appeal
In my view, if a discretionary decision were involved, the combination of all of the above considerations would lead to the conclusion that the preferable order would be that the information be dismissed without an order for a retrial.
However, as stated above, I proceed by reference to the first alternative procedure in Taylor v Hayes and I determine that the appeal be allowed, the appellant be acquitted and the information be dismissed without order for a retrial.
Since it may be important to the appellant, I record that the effect of this judgment is that I find the appellant not guilty of count 1 and acquit him of that charge. His previous acquittal of count 2 by the Magistrate stands. The result is that he has now been acquitted of all charges against him.
Orders
1. That the appeal be allowed and both the finding of guilt and the conviction recorded on count 1 of the Information be set aside and the Information be dismissed.
2. That the sentence imposed and the bond entered into by the appellant be set aside.
3. That all other orders made by Mr F R Field SM in relation to the finding of guilt on count 1 be set aside.
4. That all amounts of money that have been paid by the appellant pursuant to orders made by Mr F R Field SM including Court fees, levy and prosecution costs be refunded to the appellant forthwith.
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