Spillane v Director of Public Prosecutions (NSW)

Case •

[2025] NSWCA 130

•

10 June 2025

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Spillane v Director of Public Prosecutions (NSW) [2025] NSWCA 130
Hearing dates: 21 May 2025
Decision date: 10 June 2025
Before: Leeming JA at [1]
Mitchelmore JA at [2]
Adamson JA at [63]
Decision:

The amended summons is dismissed.

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — procedural fairness — where District Court refused application to re-examine complainant on conviction appeal — where prosecution case depended on evidence of complainant — whether refusal amounted to denial of procedural fairness

ADMINISTRATIVE LAW — jurisdictional error —relevant considerations — whether District Court failed to take into account matters supportive of applicant’s case

ADMINISTRATIVE LAW — jurisdictional error — irrelevant consideration — whether District Court incorrectly assumed existence of evidence corroborating complainant’s account — whether District Court failed to take into account evidence inconsistent with complainant’s account

ADMINISTRATIVE LAW — jurisdictional error — whether District Court failed to consider all elements of offence — whether sufficient evidence to find conduct was “towards” another person — whether sufficient evidence to find defendant knew of lack of consent

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 19, 63

Crimes Act 1900 (NSW), ss 61KE, 578A

District Court Act 1973 (NSW), s 176

Supreme Court Act 1970 (NSW), ss 69, 69C

Cases Cited:

Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146

Ewen v R [2015] NSWCCA 117; 250 A Crim R 544

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

R v Murray (1987) 11 NSWLR 12

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

You v R [2020] NSWCCA 71

Category:Principal judgment
Parties: Guy Spillane (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)
Representation:

Applicant (self-represented)

Counsel:
J Davidson (First Respondent)

Solicitors:
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor (Submitting appearance for Second Respondent)
File Number(s): 2024/237168
 Decision under review 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

Nil

Date of Decision:
31 May 2024
Before:
Shead SC DCJ
File Number(s):
2021/00282201

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 June 2023, the applicant, Guy Spillane, was convicted in the Local Court on the charge of carrying out a sexual act towards another person without consent contrary to s 61KE of the Crimes Act 1900 (NSW). The applicant’s appeal against conviction in the District Court was dismissed on 31 May 2024. He applied for judicial review of the District Court’s decision.

The prosecution case was that the applicant boarded carriage 4 of a train at Town Hall Station which was travelling towards Bondi Junction and sat down on the stairs going to the upper level of that carriage. The complainant was a train guard who was working on the same train. He was located in the guard compartment in carriage 5 and could see the applicant sitting on the stairs in carriage 4. The guard alleged that he first saw the applicant vigorously moving his hands under his shorts, and then saw the applicant remove his penis from his shorts and openly masturbate, while staring at him (the guard). The applicant accepted that he was on the train but denied masturbating, giving evidence that he had been massaging a cramp in his thigh. In dismissing the applicant’s conviction appeal, Judge Shead rejected his evidence and accepted the evidence of the guard as truthful and reliable.

The applicant alleged that Judge Shead: (1) denied him procedural fairness in refusing his application to recall the guard to give evidence on the appeal; (2) failed to take into account relevant matters, namely CCTV images and Mr Spillane’s explanation for parts of his evidence; (3) took into account irrelevant matters, namely evidence that the guard had complained at the time, and failed to take into account relevant matters, namely diagrammatic and photographic evidence, CCTV images, and inconsistencies in the guard’s evidence; and (4) concluded, contrary to the evidence, that the applicant directed his conduct towards the guard.

The Court held (Mitchelmore JA, Leeming JA and Adamson JA agreeing), dismissing the application:

  1. As to ground 1: On Judge Shead’s review of the transcript, the guard was challenged sufficiently about the matters that the applicant raised. That her Honour did not take the same view of the guard’s evidence as that for which the applicant contended did not give rise to a denial of procedural fairness: at [44].

    Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63; Ewen v R [2015] NSWCCA 117; 250 A Crim R 544, applied.

  2. As to ground 2: Noting the focus of her Honour’s reasons and her Honour’s earlier references to what the applicant submitted about the CCTV images and what he was watching at the time, the applicant did not establish that her Honour failed to consider that evidence: at [49].

  3. As to ground 3: In circumstances where the guard’s evidence was principally challenged on the basis of its reliability rather than his credit, his evidence about steps that he took to communicate with others and to make an announcement was plainly relevant: at [52]. The contention that her Honour should have given herself a Murray direction was not made out and, in any event, would constitute an error of law on the face of the record which is excluded by s 176 of the District Court Act: at [54]. That her Honour did not refer to the diagrammatic evidence after noting it had been admitted does not mean that her Honour failed to consider it: at [55].

    Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138; You v R [2020] NSWCCA 71; R v Murray (1987) 11 NSWLR 12 applied.

  4. As to ground 4: There was evidence available to Judge Shead supporting a conclusion that the applicant directed his conduct towards the guard: at [57]. There was sufficient evidence to satisfy the element of knowledge that the guard was not consenting: at [59].

    Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146; Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 considered.

JUDGMENT

  1. LEEMING JA: I agree with Mitchelmore JA.

  2. MITCHELMORE JA: On 26 June 2023, the applicant, Guy Spillane, was convicted in the Local Court on the charge of carrying out a sexual act towards another person without consent contrary to s 61KE of the Crimes Act 1900 (NSW) and was sentenced to an 18-month community corrections order. He brought an appeal from that conviction and sentence in the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). On 31 May 2024, Judge Shead dismissed the conviction appeal. The applicant’s appeal against the severity of his sentence was ultimately withdrawn, and the orders of the Local Court were confirmed on 12 June 2024.

  3. There being no right of appeal from the orders of the District Court, on 27 June 2024 the applicant filed a summons in this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). The applicant needed to establish that the decision of Judge Shead to dismiss his conviction appeal was affected by jurisdictional error (s 176 of the District Court Act 1973 (NSW) prohibits review for error of law on the face of the record).

  4. In his further amended summons, the applicant advanced the following grounds of review:

  1. Her Honour denied the applicant procedural fairness in refusing his application to re-examine the complainant, a train guard employed by Sydney Trains, on the appeal (as s 578A(2) of the Crimes Act prohibits publication of any matter that identifies the complainant I will refer to him as “the guard”).

  2. Her Honour failed to properly exercise jurisdiction by failing to take into account evidence which supported the applicant’s case, namely, closed circuit television (CCTV) images and his explanation of a difficulty her Honour perceived with his own evidence.

  3. Her Honour also failed to properly exercise jurisdiction by taking into account irrelevant considerations and failing to take into account relevant considerations, relying upon inconsistencies between the guard’s written statement and his oral evidence, diagrammatic and photographic evidence that the applicant adduced, and the CCTV images.

  4. Her Honour made a finding which was not available on the evidence, namely, that the applicant directed any act toward the guard, thereby falling into jurisdictional error.

  1. At the hearing, the applicant was assisted by his spouse, Stephen Atkins. Mr Atkins made oral submissions on the applicant’s behalf in which he elaborated upon aspects of the applicant’s written submissions in chief and reply in relation to the grounds of review.

  2. For the reasons set out below, the applicant has not established that Judge Shead’s decision was affected by jurisdictional error and the amended summons should be dismissed.

Outline of the prosecution case

  1. Judge Shead summarised the prosecution case against the applicant in her Honour’s reasons for judgment. The prosecution alleged that at about 11.15pm on 15 September 2021, the applicant boarded carriage 4 of a Tangara train at Town Hall Station which was travelling on the T4 line in the direction of Bondi Junction. The guard was working on the train. He was located in the guard compartment at one end of carriage 5, being the end that was adjacent to carriage 4.

  2. In his police statement, the guard alleged that he saw a male board carriage 4 and take a seat on the steps going to the upper level of that carriage, facing towards him. The applicant accepted that he was on the train and that he sat on the stairs in the position the guard identified.

  3. The guard alleged that, a short time after the train departed Town Hall Station, he saw the applicant with his hands down his pants, moving his hands vigorously, while staring directly at the guard. The guard was initially confused as to the actions. The applicant “then pulled out an erect penis from his shorts and was masturbating”.

  4. The guard was shocked and immediately contacted Sydney Trains Security to report the incident. It was suggested that he make an announcement over the speaker system on the train, which he did, indicating that inappropriate behaviour on trains would not be tolerated, the police were being contacted and the person should exit the train at the next stop. The guard estimated a period of perhaps a minute or two between when he first saw the applicant masturbating and when he took action.

  5. A short time later, the train arrived at Kings Cross Station and the applicant alighted from the train. The guard rang security to tell them that the male had exited the train; he informed the Customer Service Assistant what had happened and told them not to approach the person; and he informed the Train Crew Liaison Officer what had happened. The guard also told his shift manager the following day.

  6. The applicant attended at Kings Cross Police Station and was placed under arrest on 1 October 2021. He participated in a record of interview in which he denied that he was masturbating as alleged. He said that he was massaging his inner thigh and hamstring due to severe cramping. He was also watching a documentary about Egypt on his phone. The applicant said that he saw a person in the guard compartment, which he estimated as being roughly 10 metres away. He did not know if it was a man or a woman, simply that whilst he was watching something on his phone, he could see “something in his vision”.

The prosecution in the Local Court

  1. As Judge Shead noted in her reasons, the evidence on the prosecution case in the Local Court comprised a hand-up police brief (Exhibit 1) which contained statements from various individuals including the officer in charge and the guard, colour images of screenshots from CCTV at Kings Cross Station and a transcript of the applicant’s record of interview with police together with colour images he signed; a hand-drawn diagram of the train that the guard prepared (Exhibit 2); and a USB containing the applicant’s recorded interview (Exhibit 3).

  2. The matter was heard in the Downing Centre Local Court over two days, 22 February 2023 and 26 June 2023. On the first hearing date, the applicant was represented by counsel. A fact was agreed on that date, pursuant to s 191 of the Evidence Act 1995 (NSW), that the distance between where the applicant was sitting in carriage 5 and where the guard was located in carriage 4 was “less than 11 metres”.

  3. The guard gave evidence and was cross-examined by the applicant’s counsel. Relevantly to the applicant’s grounds of review, the guard gave evidence in chief that after he first saw the male (being the applicant) with his hands down his pants and looking at him, he (the guard) stepped out of the line of sight for a couple of seconds. When he then stepped back he observed the male continuing to masturbate but with his penis now exposed. The guard also gave evidence that he thought the male might have stood up, but initially he was sitting on the stairs. At all times, the male was staring directly at him.

  4. The guard’s evidence was that he witnessed the male masturbating for about 30 seconds when sitting and for about the same duration when he was standing. In terms of the sequence of events and the stations the train stopped at, the guard gave this evidence:

“A. …I believe at the second - that second stop, he still had his hands in his pants and that’s when I then probably noticed more. Like, I think, when I - you know, like I said, I was shocked, you know. And it was - I wasn’t really understanding what was going on to start with. So, it’s then when I’ve stepped back and come back again, then it’s - that was there for everyone to see. So--

Q. The hands, as you’ve outlined, seeing them down the pants of the person--

A. Yeah

Q. --was that after Martin Place or before, or perhaps both? I don’t--

A. Yeah, it was both. It was just before Martin Place and then I had to go and open the doors, you know, and then after we shut the doors and got going to Kings Cross.

Q. And after Martin Place you’ve seen the person again?

A. Yes.

Q. But the hands are still down the pants at that point?

A. Yes. Yeah, and then I’ve looked at it, step back, step back out. Yeah.”

  1. When asked about the lighting at the time, the guard said that his guard compartment was illuminated. He was able to see through the guard compartment in carriage 4, which was not illuminated, to the vestibule area of that carriage and all the way to the end of the carriage. The guard estimated that the distance between him and the male was no more than six metres, and “[t]hat might even be generous”. There was nothing obstructing his view of the person and he was able to see him clearly, although when he was standing up the guard could see him upwards from approximately his thighs. The guard gave evidence consistently with his statement about reporting the matter to security and making an announcement over the train speaker system, and reporting the matter to his shift supervisor.

  2. In cross-examination, the guard was tested about his evidence that the applicant was standing up at one point, with his attention drawn to the fact that his police statement did not refer to this. He was asked about the number of glass barriers between him and the applicant (three), whether they were angled, and whether there were any labels on them. The guard was also asked about the distance between him and the applicant, and the guard rejected the proposition that the distance between him and the applicant was 11 metres. The guard was also challenged about the presence of glare on the windows and maintained that the light inside his cabin did not cause any glare. The guard said that the person he saw was not wearing a mask. He also disagreed that the person he saw was looking at his phone the whole time, saying that he observed him to react to the announcement the guard made, crossing his legs and looking side to side, and then exiting the train. The guard was challenged about the latter evidence on the basis that it was not mentioned in his police statement, and he rejected the proposition that his memory improved the further away in time the event was.

  3. In re-examination, the guard gave evidence that, when alighting from the train, the applicant “moved quite quickly”. By contrast with most people who sit in the vestibule and “just stroll on and off”, the applicant “wasn’t doing that”.

  4. At the outset of the second day of the hearing, the applicant’s counsel was granted leave to withdraw and the applicant represented himself. The applicant gave evidence and was cross-examined. When asked by the magistrate to give his version, the applicant said:

“All right. I’d, I’d been having – playing with a friend all evening and I had been suffering cramps. That’s why I left cause I had to work the following morning. And when I ran for the train, I got on the train and I had been massaging my inner leg and hamstring cause they had been cramping all evening which is what I was doing on the train when this guard supposedly had seen me doing something which I didn’t know he was there. I knew there were guards on the train but that’s it.”

  1. The applicant also gave evidence that he was wearing a mask and a beanie, had his headphones on, and was watching a documentary about ancient Egypt. He denied hearing an announcement or taking any action in response to it like crossing his legs. He got off the train at Kings Cross because that is where he resided at the time. The applicant also pointed out that the CCTV photos showed him walking up the stairs casually and out of the station, looking at his phone. In cross-examination, the applicant was questioned about aspects of his recorded interview with police, including the answers in which he mentioned he could see the guard. In response, the applicant’s evidence was that he had assumed that somebody was there when he made that statement.

  2. The applicant’s evidence was the only evidence in his case. After a short adjournment, Atkinson LCM delivered judgment, convicting the applicant and sentencing him to serve a community corrections order for a period of 18 months, subject only to the standard conditions in s 88 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the offender must not commit any offence and must appear before the court if called on to do so at any time during the term of the order).

  3. The Magistrate gave herself a number of directions, including a Liberato direction and a Murray direction which, in her Honour’s words, “requires the Court to scrutinise evidence very carefully where the Crown is essentially relying on the evidence of one person”. After describing the evidence of the guard and his cross-examination, the Magistrate noted that he was careful in his evidence and that it did not change through what her Honour described as “quite stringent cross-examination”. Her Honour was “left with an impression of his evidence that it was not only truthfully given but it was also reliable”. Her Honour also noted that he made the report to supervisors and that the police were able to obtain the photos (being the CCTV images), which were shown to the applicant and which he acknowledged were of him.

  1. Her Honour referred to the applicant’s recorded interview and to his denial that he was masturbating, and to his account of that evening. Noting that it was a “word on word case”, her Honour considered it “curious” that the applicant was able during the police interview (which was two weeks after the alleged events) to describe with precision what he was watching on his phone when he was on the train that evening. Her Honour also considered that the evidence the applicant gave at the hearing (two years after the events) was different from what he had said in the interview in terms of whether he was aware that there was somebody in the guard compartment.

  2. Mindful of the Liberato direction that her Honour had given herself, her Honour stated that she had difficulties accepting the applicant’s evidence. Having weighed up all of the evidence, her Honour was satisfied beyond reasonable doubt that the applicant was sitting on the stairs, that he was masturbating, and that he was looking at the train guard and aware that the guard was there. Her Honour found that this was a sexual act carried out towards another person and was “quite clearly” done without the guard’s consent “given how he reacted to what he saw”.

The appeal to the District Court

  1. On 26 June 2023, being the same day he was convicted, the applicant lodged an appeal against his conviction and sentence in the District Court. The appeal was listed for hearing on 27 November 2023 before Judge Shead. On that day, her Honour heard the applicant’s application that the guard attend and give evidence on the conviction appeal, brought pursuant to s 19(1) of the Crimes (Appeal and Review) Act. The applicant was represented on that occasion by Mr Vijay, who relied primarily on written submissions in which he contended that the cross-examination of the guard in the Local Court was insufficient in circumstances where the case against the applicant rested solely on the guard’s evidence. The submissions referred to particular topics about which the guard should have been tested further, including how much of carriage 4 he could see, his evidence that the applicant was staring at him the whole time, the length of time the guard witnessed the applicant masturbating, and for how long he saw the applicant’s hands down his pants. Mr Vijay’s written submissions also emphasised that it had not been put to the guard that he may have been mistaken or that the applicant was watching something on his phone.

  2. The Crown submitted that each of the topics to which the applicant referred in his written submissions had been touched on in cross examination in the Local Court, at a time when the applicant was represented by counsel. By way of reply, Mr Vijay submitted that the application was not to adduce more evidence but rather to clarify the evidence that was given. He further submitted:

“Not every hearing can be run perfectly but there are quite a large number of instances in which things were lingering in the air in terms of things that can be fairly put were not put to the witness and that the Court may be uncomfortable making findings of fact given a lot of propositions and factual issues have not been fully determined.

We’re not seeking to recross-examine every single point, for example, from the witness for instance, it’s only to clarify, not to adduce more evidence but to clarify evidence before the Court can make findings of fact.”

  1. At the conclusion of submissions her Honour dismissed the application, giving brief reasons. Her Honour summarised the application as involving an argument that the guard was “imperfectly cross-examined during the hearing below”. Her Honour noted that there were a number of areas in respect of which the applicant contended that “there was a failure to cross-examine fully, to challenge him in relation to observations he made, to challenge him fully in relation to differences and inconsistencies asserted as between his police statement and his evidence”. Her Honour also summarised the reply submission that I have extracted above. However, her Honour did not accept that there were special reasons why, in the interests of justice, the guard should attend and give evidence on the appeal. Her Honour accepted the Crown’s submission in this respect, stating:

“But even assuming that a Murray direction were given on the appeal, I accept the Crown submission, having reviewed the transcript that the matters that have been raised by Mr Vijay, they were matters that the complainant was taken to sufficiently in the Local Court. He was asked about what he could observe. Matters about which it was sought to challenge the complainant were raised. The applicant’s version was put to him, and the learned magistrate had the opportunity to observe the complainant, who was clear in his expression and certain in his responses to the cross-examination, based on my review of the transcript, such that there were no special reasons why, in the interests of justice, the complainant should attend and give evidence.”

  1. The conviction appeal was adjourned to 11 December 2023 for hearing before Judge Shead. On that occasion, a different legal representative appeared on behalf of the applicant, Mr Blake. The evidence in the Local Court and the transcript of the hearing in that court was Exhibit 1 on the appeal. On Mr Blake’s application, and over the Crown’s objection, Judge Shead admitted a diagram of the Tangara-style train (Exhibit 2) and a document showing the date on which a documentary about ancient Egypt was released (Exhibit 3).

  2. A copy of a document bearing an exhibit label from the District Court which marked it as Exhibit 2 was tendered by the respondent in this Court. The applicant objected to the tender of that document on the basis that it was not the document tendered on his behalf below. Consistently with Judge Shead’s description of the document during the hearing, the first page of the document the respondent sought to tender showed two carriages, the first of which was labelled “control motor carriage” and the second of which was labelled “motor carriage”. The second page showed two control motor carriages, one of which was, as her Honour described it, “flipped” around so that the configuration of the carriages matched the hand-drawn diagram that the guard prepared (which was in evidence in the Local Court). The applicant submitted that the document that his counsel tendered included measurements on the second page to show the distance between the respective locations of the applicant and the guard. Ultimately, however, as Mr Blake focused on the distance between the applicant and the guard by reference to the agreed fact that it was up to 11 metres, the difference on the basis of which the applicant took issue with the authenticity of the document that the respondent sought to tender was not significant.

  3. Mr Blake relied on the guard’s distance from the applicant as giving rise to doubt about the reliability of the guard’s evidence, as well as the three glass panels between them and the sightlines from the particular carriages in question. Mr Blake also took issue with the element of the offence requiring the sexual act be “toward” the guard, submitting that even on the guard’s evidence the applicant had commenced masturbating before they saw each other, and he continued to do so when the guard stepped out of sight (the written reply further developed this argument). In his oral submissions, in addition to the legal issue of “toward”, Mr Blake emphasised:

  1. the effect of the lighting in the compartment where the guard was located and the vestibule where the applicant was sitting, there being no lighting in the intervening guard compartment;

  2. the still photos taken from the CCTV, the timestamps on which showed that the applicant was not in any hurry, contrary to the guard’s evidence;

  3. the applicant’s willingness to identify himself when shown the CCTV stills and the absence of any evasion on his part; and

  4. at least in so far as the guard’s evidence about what he first saw was that the male had his hands down his shorts, that was consistent with the applicant’s evidence that his fingers may have been under his shorts because of cramping, which was a legitimate explanation.

  1. Mr Blake submitted:

“There’s glass, there’s open space, there’s more glass, there’s another room. Then there’s an entire barrier with a glass window. Then there’s more space and then there’s stairs. That sounds like a lot to say but it’s actually all accurate… . That’s a lot of things to look through. Now that’s assuming that the evidence is correct about no tinting. If we take the prosecution case at its highest none of it was tinted, there were no badges or stickers on the windows as he says. Assuming that we still have the problem with the lights, we still have a problem with – these are moving parts too. So this is a train that’s actually in movement. It’s only a period of two minutes in which this incident is alleged to have occurred in.

So we’ve moving parts, we have issues with the lighting and we have impendimenta throughout this and then we have one or two sets of the act, having an explanation which is offered by the complainant quite readily. Within this series of evidence we say there’s significant reasonable doubt was available we found without saying at all that the complainant is lying or anything of the sort. It’s just he might be mistaken because he did say in his evidence that he wasn’t quite sure what was going on at the beginning, the concern grew and then he moved out of the line of sight. This is again two moving platforms connected together, moving at whatever speed trains move at which is fast. So the Court has to be satisfied, we say, given the – there’s some evidence of airs here but the Court has to be satisfied, or should be satisfied that the complainant is so reliable in these circumstances that any of these concerns would not amount to reasonable concerns or just put more formally reasonable doubt.”

  1. On 31 May 2024, Judge Shead dismissed the applicant’s conviction appeal. In summarising the guard’s evidence, her Honour noted that in cross-examination it was put to him “in a clear and consistent way” that he did not have a clear view and he was making observations at some distance and through a number of glass or perspex screens, but the guard maintained that he had a clear view and a clear line of sight through the screens. Her Honour also noted that it was put to him that there was about a metre between the carriages, with which he disagreed, saying it was 60 centimetres. It was also put to the guard that there was about 11 metres between him and the applicant and he said that the distance was in fact less than 6 metres.

  2. Her Honour addressed the applicant’s record of interview, noting that she had “carefully considered the evidence that he gave in describing his version of events to the police”. Particular responses that her Honour noted included: the applicant’s acknowledgement that there was a guard’s compartment in the next carriage and that, when he was watching something on his phone, he could see something “in his vision”, although he did not know whether the person was male or female; his awareness that an announcement had been made over the train speakers, although he was not paying attention because he had his headphones on and was immersed in the program on ancient Egypt; his denial that his hands were down his pants, accepting that perhaps they were going into his shorts when he was massaging his legs; and his denial that he removed his pants at any time.

  3. Her Honour next addressed the applicant’s oral evidence, noting that he was unrepresented at that time. Her Honour referred to his evidence that he was massaging his inner leg and his hamstring because they had been cramping and that was what he was doing on the train when the guard supposedly had seen him doing something. Her Honour noted that the applicant said that he did not know the guard was there. His oral evidence about the message over the speakers was similar to his recorded interview (that he did not hear it because he was watching a documentary about ancient Egypt), as was his evidence that he got off at Kings Cross because that is where he was living at the time. Her Honour also referred to his evidence that he did not run anywhere because he had not done anything wrong, and that “the footage shows him, he says, casually walking out of the station, and he would not have been walking in the way that he did if he had in fact done something wrong”.

  4. Her Honour then moved to the cross-examination of the applicant, referring to his denying that he was sexually frustrated that evening and that he behaved in the way the guard alleged, either with his hands down his shorts masturbating or that he removed his penis from his shorts and was masturbating. Her Honour noted that he also denied directing anything to the guard.

  5. Her Honour gave herself a number of directions, including a Liberato direction and a direction about complaint. Her Honour then paused the giving of her reasons and said:

“Mr Crown, Mr Blake, that concludes the directions I propose to give myself. The learned Magistrate below gave herself a Murray direction. I do not propose to do so. Mr Blake do you want to be heard in relation to that?”

Mr Blake said that he did not.

  1. Her Honour next summarised Mr Blake’s written and oral submissions, noting that the applicant’s position was that, in the absence of any independent evidence to support the guard’s account, the accounts that the applicant gave, first to police and then in evidence, were sufficient to create a reasonable doubt. Her Honour summarised the errors that the applicant submitted the magistrate had made, including that the magistrate “should have been more mindful of what was described as the considerable physical impediments in the sightline as between the complainant and the appellant”. Her Honour noted the submissions about the views through various panes of glass and the lines of sight, together with the lighting and shifting viewpoints, from which Mr Blake posited that the guard might have been honestly mistaken in his evidence. Her Honour also noted Mr Blake’s legal submissions regarding “toward”.

  2. Ultimately, her Honour considered that the guard’s evidence, which she described as clear, cogent, and qualified by appropriate concessions, was true and correct and that he had a sufficient view to see what he had described. Her Honour did not accept the applicant’s evidence because it “did not have the ring of truth” and did not cause her Honour to doubt the guard’s evidence. Her Honour accepted the guard’s evidence about the applicant staring at him, and found that the applicant had deliberately positioned himself on the stairs facing the guard and directed his acts towards the guard. Her Honour found that the act occurred as alleged, that a sexual act was performed and that it was done without the guard’s consent.

  3. After her Honour delivered judgment on the conviction appeal, her Honour granted an adjournment so that the applicant could consider his position regarding the severity appeal. On 12 June 2024, the severity appeal was withdrawn and dismissed and the orders of the Local Court were confirmed. The final determination of the appeal had the effect of lifting the statutory stay of execution of the applicant’s sentence pursuant to s 63 of the Crimes (Appeal and Review) Act: see s 63(5) of that Act. The sentence was therefore to commence on 12 June 2024 and expire on 11 December 2025.

The applicant’s grounds of review

Ground 1: alleged denial of procedural fairness in refusing leave to recall the guard on the appeal

  1. The focus of this ground of review was Judge Shead’s refusal of the applicant’s application to recall the guard to give evidence on his appeal. In his written submissions, the applicant emphasised that the guard had not included in his statement that the applicant stood on the stairs in the vestibule with his shorts down and masturbated openly. The guard’s oral evidence that this happened took him by surprise, and he was unable to appropriately cross examine the guard about this inconsistency.

  2. At the hearing, Mr Atkins emphasised what he contended was another inconsistency between the guard’s police statement and his evidence at trial, namely, that in the former he said that the offending occurred between Town Hall and Martin Place Stations and in the latter he said the offending occurred both before and after Martin Place Station. He also referred to some of the answers the guard gave in cross-examination, including his certainty that the applicant was not wearing a mask or looking at his phone at any stage, which was inconsistent with the CCTV images. Given the seriousness of the consequences of a conviction for the applicant, Mr Atkins submitted that the guard’s departure from his statement and the inconsistencies with other evidence should have been taken into account and there were special reasons in the interests of justice why the guard should have been recalled.

  3. The concern of procedural fairness “is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [59], quoted with approval in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [54]. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, a case to which the applicant drew this Court’s attention, the High Court made a similar observation at [25]:

“Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. As Brennan J said, in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35–6; [1990] HCA 21]:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

It is, therefore, not to the point to ask whether the Tribunal’s factual conclusions were right. The relevant question is about the Tribunal’s processes, not its actual decision.”

  1. I have set out in some detail above counsel’s cross-examination of the guard in the Local Court, and the submissions that Mr Vijay advanced on the applicant’s behalf (mostly in writing) in support of recalling the guard on the appeal. As the respondent submitted in this Court, Mr Vijay did not rely on any element of surprise in relation to the guard’s evidence at the hearing. Rather, as Judge Shead observed in her reasons for refusing the application, the focus of Mr Vijay’s submissions was what her Honour described as “a failure to cross-examine the complainant fully, to challenge him in relation to observations he made, [and] to challenge him fully in relation to differences and inconsistencies asserted as between his police statement and his evidence”. On her Honour’s review of the transcript, the guard was challenged sufficiently about the matters that Mr Vijay raised. That her Honour did not take the same view of the guard’s evidence as that for which the applicant contended did not give rise to a denial of procedural fairness.

  2. In his written submissions in reply, the applicant also contended in the context of this ground that Judge Shead failed to take into account that the prosecution case relied solely on the guard’s evidence and failed to have regard to the serious and irreversible consequences of a conviction for a prescribed sexual offence. I do not accept those contentions. As to the former, her Honour was well aware that the prosecution case rested on the evidence of the guard, that being apparent at least from the reference in her Honour’s reasons on the application to the possible need for a Murray direction and the discussion of that issue in Ewen v R [2015] NSWCCA 117; 250 A Crim R 544. As to the latter, this was not specifically a submission that Mr Vijay advanced, but in any event her Honour recognised that the formulation of the test in s 19 of the Crimes (Appeal and Review) Act by reference to the interests of justice required her “to balance various interests, including the interests of the parties…”. I would dismiss ground 1.

Ground 2: alleged failure to take into account relevant matters

  1. The applicant submitted that Judge Shead failed to properly exercise jurisdiction because she did not engage with key evidence that supported his version of events. In his oral submissions, Mr Atkins referred to the CCTV images which showed that the applicant was wearing a mask, was looking at his phone and was wearing headphones, all of which were consistent with his account and inconsistent with the guard’s description of him. The applicant also relied on the timestamps on those images, which showed he was not moving particularly quickly, contrary to the guard’s evidence and what one might expect if he were fleeing the scene. The applicant submitted that, having regard to their critical status, her Honour erred in not taking the CCTV images into consideration and thereby failed to exercise her jurisdiction properly. The applicant also submitted that her Honour did not take into account the evidence that supported his recollection that he was watching a documentary about ancient Egypt on his phone and why he could remember that.

  2. Judge Shead recognised that there was a conflict between the versions of events given by the guard and the applicant. Consistently with Liberato, her Honour recognised that even if she did not accept the applicant’s evidence, she should put that evidence to one side and the question remained whether, on the basis of the evidence she did accept, the Crown had proved the applicant’s guilt beyond reasonable doubt. Ultimately, her Honour did not accept the applicant’s evidence, describing his version as not having “the ring of truth to me”. Her Honour reached that conclusion having earlier referred to the CCTV images and the reliance that the applicant placed on them, as well as his evidence about watching the documentary on ancient Egypt.

  3. Her Honour first noted that, in his evidence in the Local Court, the applicant had referred to the footage showing him, “he says, casually walking out of the station”, his submission being that “he would not have been walking in the way that he did if he had in fact done something wrong”. Her Honour then returned to the CCTV images when addressing the applicant’s submissions on the appeal, noting Mr Blake’s submission on his behalf that the guard’s evidence that he was moving quickly when he alighted from the train “was not borne out by the timestamps on the photographs and that he was in fact moving casually, as he said in evidence, towards his home”. Her Honour also referred to Mr Blake’s supplementary written submissions in which he addressed, among other things, the exhibit tendered on the appeal about the release date of the series about Egypt, and his submission that this supported the applicant’s evidence.

  4. Her Honour’s assessment of the guard was that he “gave clear and cogent evidence”, “made appropriate concessions and clearly said when he was not certain in evidence”. Her Honour relied on his having made an immediate complaint and an announcement over the loudspeaker. The announcement he made, and his response to what he saw, “are all aspects of the evidence that, in my view, render his account honest and reliable”. The focus of her Honour’s reasons in this regard was the guard’s evidence regarding the conduct that formed the basis of the offence. True it is that in accepting the guard’s evidence her Honour did not expressly refer to his evidence that the applicant was not wearing a mask and that he hurried off the train at Kings Cross, which the applicant submitted was not supported by the CCTV images. However, noting the focus of this part of her Honour’s reasons and her Honour’s earlier references to what the applicant said about the CCTV images and what was submitted on his behalf regarding the documentary he was watching, the applicant has not established that her Honour failed to consider this evidence. I would dismiss ground 2.

Ground 3: alleged taking into account irrelevant matters and failing to take into account relevant matters

  1. The applicant was critical of Judge Shead’s relying on the guard’s evidence about what he said to various persons shortly after the incident occurred when the prosecution did not call those persons to give corroborative evidence. The applicant submitted that a statement her Honour made in the course of the hearing on 27 November 2023, to the effect that the guard’s account was supported by evidence that the guard had made a complaint at the time, was incorrect because the complaint evidence was not separately adduced. He relied in this context on a passage in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [14] in which the Court (Basten, Ward and McCallum JJA) stated:

“Procedural fairness requires that an adverse finding not be made in circumstances where the party adversely affected has not had an opportunity to address the basis upon which the finding is made. It is rare that experienced judges conduct proceedings in a manner which is not procedurally fair in the sense noted, but on occasion it can happen, usually through inadvertence. For example, the judge may proceed on the basis that a party has a particular document, or that particular evidence has been admitted, when that is not the case. Ground 1 did not identify an example of procedural unfairness in this legal sense. It is, in substance, a complaint about factual findings as to the credibility of evidence. It raised no basis for review.”

  1. The applicant submitted that this error caused Judge Shead not to make a Murray direction where one was required, there being no evidence of the offence beyond the guard’s testimony. Mr Atkins submitted orally that in the circumstances it was necessary for her Honour to give herself a Murray direction, which would have required her to scrutinise the guard’s evidence more closely than she did.

  2. It is the case, as the applicant submitted, that the prosecution did not rely on evidence of other persons corroborating the guard’s evidence that he made a complaint at the time. The respondent did not contend to the contrary. However, it did not follow from the absence of such evidence that the guard’s evidence about the steps he took immediately following having witnessed the conduct of which he gave evidence was rendered irrelevant in any respect that would ground jurisdictional error. In circumstances where the guard’s evidence was principally challenged on the basis of its reliability rather than his credit, his evidence about the steps that he took to communicate with others and to make an announcement was plainly relevant. As the Crown submitted in the District Court, the guard’s evidence that he made a call to security followed by an announcement over the train speaker system, noting his evidence that he was in a panic, was consistent with how someone would expect a person to behave when executing their duties as a train guard and observing an unknown person masturbating on a train.

  3. In so far as the applicant relied on a passage of transcript from the hearing of the interlocutory application (on 27 November 2023) as evidencing that her Honour had proceeded on a misapprehension of the evidence, courts have often cautioned against relying on exchanges during a hearing to establish error: see eg You v R [2020] NSWCCA 71 at [19] (Basten JA, Rothman and Cavanagh JJ agreeing). In so far as the passage on which the applicant relied might have suggested that Judge Shead had in mind that there was evidence additional to that of the guard, by the time her Honour came to address the appeal in her Honour’s reasons, her Honour had the benefit of written and oral submissions from the applicant and the Crown. In her Honour’s reasons, Judge Shead relied on the guard’s evidence as to his state of mind at the time, and the complaints that he made, as supporting his evidence as to what he saw. In the passage from the magistrate’s reasons that Judge Shead extracted, the magistrate had similarly relied on the guard’s immediate response. Her Honour did not make an error of the nature for which the applicant contended, which was that she had taken into account an irrelevant consideration.

  4. In so far as the applicant contended that her Honour also erred in not giving herself a Murray direction, an error of that nature, if established, would constitute an error of law on the face of the record which is excluded by s 176 of the District Court Act. In any event, for the reasons counsel for the respondent gave, her Honour’s decision not to give herself that direction did not involve legal error for the reasons explained by Simpson J in Ewen v R at [137] (Basten JA and Davies J agreeing).

  5. The applicant also submitted in writing on this ground that her Honour failed to take into consideration the scale drawing that he contended was tendered on the appeal. I have addressed above the difference between the applicant and the respondent about precisely what this evidence comprised. Her Honour referred to admitting the diagram of a Tangara train as fresh evidence on the appeal in her reasons. That her Honour did not subsequently refer to the document does mean that her Honour failed to consider it. As I noted above at [30], notwithstanding the tender of the document Mr Blake’s submissions focused on the distance between the applicant and the guard by reference to the agreed fact, which was that the distance between the applicant and the guard was less than 11 metres. Her Honour referred to the agreed fact in her reasons. I would dismiss ground 3.

Ground 4: alleged error in concluding that the act was “towards” the guard

  1. In ground 4, the applicant relied on the decision of the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Presnell (2022) 108 NSWLR 407; [2022] NSWCCA 146 at [94]-[95] as indicating that the “towards” element in s 61KE requires more than that the defendant is looking at another person in close proximity, and that some state of mind of obtaining sexual gratification from the other person is necessary. The applicant contended that the guard’s evidence, that after hearing the announcement the applicant closed his legs and looked ashamed, was inconsistent with such a state of mind.

  2. As the respondent submitted, there was evidence available to Judge Shead supporting a conclusion that the applicant directed his conduct towards the guard. On the guard’s evidence the applicant was at all times not only facing him, but was looking directly at him and staring at him. That the applicant looked ashamed was not inconsistent with the directedness of his conduct.

  3. Additionally, the applicant submitted, for the first time, that the consent element of the offence was not made out because there was no evidence that he knew of, or was reckless as to, the guard’s lack of consent. He relied in this regard on the guard’s evidence that he ceased the conduct as soon as the announcement was made over the speaker, being the first time that non-consent was communicated. He submitted that a conviction despite a lack of evidence on a critical element amounted to jurisdictional error, citing Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58.

  4. As the respondent submitted, this aspect of the charge was not the subject of submissions before the magistrate or Judge Shead, with the applicant’s defence resting on his denial that he engaged in the conduct and in any event that the conduct was not directed towards the guard. If both of those aspects of his case were rejected it is not surprising that no issue was taken with the element of knowledge on the applicant’s part that the guard was not consenting, having regard to the circumstances in which the conduct took place. On the evidence of the guard, which Judge Shead accepted, the applicant had deliberately positioned himself on the stairs facing the guard, and directed his masturbatory acts towards the guard in circumstances where the two men were not known to each other and there was no communication between them, let alone of consent. Indeed, the guard stepped out of the line of sight, stepped back to see the conduct not only continuing but having escalated, leading him to call security in a state of panic and make the announcement. There was sufficient evidence to satisfy the element of knowledge that the guard was not consenting. I would dismiss ground 4.

Conclusion

  1. The applicant, through Mr Atkins, emphasised the seriousness of the conviction for the applicant in terms of the consequences of a conviction for an offence of this nature. I accept that to be the case. However, this Court is limited to reviewing the District Court’s decision for jurisdictional error. No error of that nature has been established. Accordingly, the amended summons should be dismissed.

  2. The filing of the summons on 27 June 2024 had the effect of staying the execution of the applicant’s sentence: Supreme Court Act, s 69C. As at that date, he had served 16 days of the sentence imposed by the Local Court. The dismissal of the amended summons means that the applicant must now serve the balance of his sentence, which will commence on 10 June 2025 and expire on 24 November 2026.

  3. The DPP sought an order for costs in the event that the amended summons was dismissed. However, in the circumstances of this case I am not disposed to make that order. Accordingly, I propose the following order:

  1. The amended summons is dismissed.

  1. ADAMSON JA: I agree with Mitchelmore JA.

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Decision last updated: 10 June 2025

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