Suthers v Director of Public Prosecutions

[2002] NSWSC 719

CITATION:	SUTHERS v. DIRECTOR OF PUBLIC PROSECUTIONS & ANOR [2002] NSWSC 719
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC No. 11201 of 2002
HEARING DATE(S):	Wednesday 14 August 2002
JUDGMENT DATE:	14 August 2002
PARTIES :	SUTHERS, Alan v. DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
JUDGMENT OF:	Greg James J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	N/A
LOWER COURT JUDICIAL OFFICER :	H. Hannan

COUNSEL :	Plaintiff: M. Marty Defendant: G. Smith
SOLICITORS:	Plaintiff: MacMahon Associates Defendant: S.E. O'Connor
CATCHWORDS:	Criminal law - proceedings before magistrate - onus and standard of proof - reasoning displaying error of the kind referred to in Robinson (1989) 180 CLR 106 - application of s.141 of the Evidence Act 1995 - error of law - question of consequent relief stood over.
LEGISLATION CITED:	Justices Act 1902 Crimes Act 1900 Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	Fleming (1998) 158 ALR 379 Gipp (1998) 194 CLR 106 Giam (1999) 104 A. Crim. R. 406 Kneebone [1999] NSWCCA 279 Kennedy [2000] NSWCCA 487 Robinson (1988-89) 180 CLR 531 Robinson (1995] 80 A. Crim. R. 358 Brotherton (1993) 29 NSWLR 95 Reeves (CCA, unreported 13 September 1993) Asquith (1994) 72 A. Cirm. R. 250 Stafford (1993) 67 ALJR 510
DECISION:	Quash the conviction and the sentence passed. To that extent, the plaintiff succeeds on the summons. I order the conviction of the plaintiff for the offence of aggravated indecent assault be quashed and that the sentence of the plaintiff for that offence also be quashed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 14 AUGUST 2002

No. 11201 of 2002

ALAN DOUGLAS SUTHERS v. THE DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

1 HIS HONOUR: By summons filed in this court on 30 April, the plaintiff sought orders that the conviction of the plaintiff for an offence of aggravated indecent assault be quashed, that there be an order that an acquittal be entered in lieu, and that the defendant pay the plaintiff's costs.

2 The plaintiff was the defendant in certain proceedings in the Local Court for that offence. The first defendant is the Director of Public Prosecutions. The second defendant is the informant police officer. The defendants may be regarded for the purposes of these proceedings, then, as the prosecutors in the proceedings in the Local Court.

3 Filed with the summons in accordance with the rules was a statement of grounds pursuant to Part 51B Rule 8 of the Supreme Court Rules. That statement of grounds sets out a number of grounds, in each case said to show error of law on the part of the magistrate. The last of the nine grounds set out is "the finding of guilt by the learned magistrate was wrong in law and cannot be supported having regard to the evidence”.

4 Although the proceedings do not expressly explain that appeal mechanism they invoke, it is quite apparent that this is an appeal brought pursuant to s.104 of the Justices Act 1902, which section was inserted into that Act, by Act No. 137 of 1998 coming into operation on 1 March 1999 and supplanting the previous appellate procedures that had become well known. In respect of such an appeal the Act provides that it may be brought on a ground that involves a question of law alone; or a ground that involves a question of mixed law and fact, but then only with leave of this court; or on grounds that the conviction order or sentence cannot be supported having regard to the evidence.

5 After some discussion in this court, in the argument on the appeal, the nature of the proceedings has been resolved to be an appeal under s.104, and in particular upon the ground that the learned magistrate erred in law. Ground nine, to which I have referred, is asserted as referable, at least as finally put forward in argument, to what disposition should occur of the matter in the event that I were of the view that the magistrate had erred. It is submitted that in that event, an acquittal should be entered. Ground nine is not put forward to be considered as asserting an insufficiency in law of evidence to support the charge although it was originally argued that it could apply to a conviction said to be "unsafe" (see s.6, Criminal Appeal Act 1912; Fleming v. The Queen (1998) 158 ALR 379; Gipp v. The Queen (1998) 194 CLR 106; Regina v. Giam (1999) 104 A. Crim. R. 406).

6 In support of the summons there has been filed and read the affidavit of Michael Gerard Vitagliani of 26 July 2002. That affidavit is in the usual form, merely annexing relevant documents. Exhibited to the affidavit is what is referred to as the charge sheet and marked Exhibit 1. It is common ground that that document therein referred to was not in fact the charge sheet in the proceedings in question. Tendered in evidence before me, by consent, and marked Exhibit A is the relevant charge sheet.

7 Exhibit A records the charge against the plaintiff as being a charge laid on 9 January 2001 that the plaintiff on 8 January 2001 at Wagga Wagga did indecently assault AMJ and at the time of the assault committed an act of indecency on AMJ in circumstances of aggravation, to wit, that at the time of the offence AMJ was aged under the age of 16 years, being in fact aged 12 years. That was a charge brought under s.61M(1) of the Crimes Act 1900.

8 In the charge sheet provided to the court the full name of the victim is set out. I order that there be no access to that document by any person except by leave of a Supreme Court judge. I further order that the name of the victim is not to be published except by order of a judge.

9 The proceedings came before a Magistrate at Wagga Wagga and on 1 March 2002 the learned Local Court magistrate found the plaintiff guilty. The circumstances of that finding, and in particular the matters which were not in dispute between the parties, sufficiently appear summarised, taken from the magistrate's decision, in that portion of the submissions of the first defendant under had heading "Background and Facts":-

"The following is not in dispute between the parties:-
1. That on the evening of 8 January 2001, both 'AJ', the alleged victim, and the defendant attended a concert at the Convention Centre at the Charles Sturt University Campus in Wagga Wagga.
2. That in the course of that concert there was some contact between the defendant and the alleged victim, though the terms of the contact is in dispute.
3. That at around 8.15 pm, the alleged victim, the defendant, the defendant's daughter Kate and her friend left the hall, though, with the exception of the girls, they were not in the company of each other.
4. That the defendant and 'AJ' were both walking towards the respective cottages in which they were staying, both cottages being in the same direction away from the hall.
5. That at a point approximately half way across a field between the Convention Centre and the cottages, the defendant and the alleged victim spoke to one another, though the terms of that conversation are in dispute.
6. That the defendant's daughter and her friend were some distance behind the defendant and the victim and were also heading in the same direction, though there is dispute as to how far behind they were.
7. That the defendant and the alleged victim crossed the road, known as Valda Way, between the field and the cottages together.
8. That the defendant's cottage, being cottage number 334, was the second cottage from the road on the right of the path between the cottages.
9. That 'AJ's' cottage, being cottage number 338, was the fourth cottage from the road on the left of the path between the cottages.
10. That a short time after the defendant and the victim were in each other's company, the victim returned to the concert where the interval was still in session and complained to his mother that on the way to his cottage a man had called him over to another cottage and had touched his penis through his shorts in that cottage.
11. That 'AJ' was seen by a number of persons to be upset and crying and repeated the complaint to a number of them.
12. That the defendant was identified as the alleged perpetrator the following day.
13. That the defendant denied all wrong doing when confronted by the police and nominated his daughter as a witness to hi version of the events.
14. That the defendant is a person of good character."

10 The alleged victim gave evidence in chief in the prosecution case in the proceedings. The plaintiff's daughter was called to give evidence in the prosecution case also. No application was made for any leave to cross-examine her pursuant to s.38 of the Evidence Act 1995. The plaintiff gave evidence in his own case.

11 The learned magistrate published a detailed written judgment which not only referred to the findings of fact she made and the principles of law she applied, but also to her reasoning causing her to come to the findings of fact and the conclusion to which I have referred.

12 The submissions for the plaintiff in support of ground one are expressed as contending that the magistrate erred in finding the plaintiff had "a very high motivation to lie" by virtue of his interest in the outcome of the case, and assert that the magistrate thereby misdirected herself and failed to give the plaintiff the benefit of the presumption of innocence.

13 The matter is one of some considerable seriousness for the plaintiff. Not only has the plaintiff been convicted but also ordered to perform 300 hours of community service. It is common ground that the consequences of that conviction, having regard to the plaintiff's prior good character and his occupation in the Directorate of the Department of Education, are most serious.

14 It is to that matter that it is submitted the magistrate was adverting - that is, the consequences for the plaintiff in his employment and his life - when the magistrate referred to the plaintiff's motivation.

15 Although there are nine grounds taken, after some considerable debate in oral argument it has been accepted that ground two, "the magistrate erred in her assessment of the evidence of the plaintiff in the context of her findings that the plaintiff had 'a very high motivation to lie' by virtue of his interest in the outcome of the case", should be regarded as subsumed under ground 1 in that the same core point is common to the two.

16 Ground three, that the magistrate failed properly to direct herself as to use of the evidence as to the plaintiff's good character and failed to take it into account in assessing his credibility, again may be regarded at this stage of the proceedings as subsumed in the earlier ground in that the submission when summarised is that the magistrate failed to have regard to the plaintiff's good character in assessing his credibility, because the magistrate concluded that the plaintiff's credibility was adversely tainted by his high motivation to lie arising from his interest in the outcome of the proceedings.

17 Ground four, which deals with the reliability and weight to be given to oral evidence of official questioning, has not been pressed as that matter, and should there be a rehearing, is a matter that can then be dealt with and which here at this point, there not having been a relevant objection below, would not seem to raise a material question for consideration.

18 Ground five deals with matters that might have appropriately, in certain circumstances, attracted a direction under s.165 of the Evidence Act 1995, or indeed might have been matters that might have been taken into account on the issue of the exercise of a discretion under that Act. Again, those matters are not pressed here, although reference may need to be made to those matters and to other matters, including the possible admissibility of what the plaintiff said in the interview with the police, on the issue of what course I should take in the event that I conclude that the learned magistrate has fallen into error of law.

19 Ground six deals with the magistrate's assessment of the credibility of the plaintiff's daughter, whose account substantially supported the account given by the plaintiff. It is contended that the magistrate placed her in a suspect witness category merely by reason of her relationship with the plaintiff and that, notwithstanding there was no s.38 application nor challenge to her credibility by the prosecution. It is accepted that the prosecutor appropriately did not attack, in address, her evidence, not having challenged it in cross-examination.

20 Unlike the issues raised in such cases as Regina v. Kneebone [1999] NSWCCA 279 and Regina v. Kennedy [2000] NSWCCA 487 and such like there is not suggested here any prosecutorial misconduct causing the proceedings to miscarry. Rather, it is submitted that the magistrate fell into error, and fell into error in failing to have regard to and apply proper legal principles in dismissing or rejecting the evidence of this witness upon the basis that she did.

21 Again, it is not necessary to consider this ground discretely at this time, although it will have relevance to what course should eventually be taken in the event that I am of the view that there has been a fundamental error, since it is bound up with the contention that underlies ground one, that is, that the learned magistrate erred in law by the approach she took to the acceptance of the evidence of the victim and the rejection of the evidence of the defendant and his daughter, in particular by rejecting the defendant's evidence on the basis of his high motivation to lie arising from his interest in the outcome of the proceedings and the daughter's evidence by reason of her relationship and the importance of the matter to the family.

22 Ground seven is not pressed, nor is ground eight.

23 Ground nine, to which I have already referred, raises the issue of what course should be taken were I of the view that there was a fundamental legal error vitiating the proceedings. As will appear, I have come to that view.

24 However, on the plaintiff's reconstruction of s.109, the question of what course should now be adopted raises an important issue. It is submitted that on the proper construction of the section, there is some correspondence or analogy with the discretion conferred on the Court of Criminal Appeal under s.8 of the Criminal Appeal Act 1912. It is submitted that a discretion reposes in a judge who has determined there is an error of law, to quash the conviction and sentence and to make no consequential order or, enter an acquittal or to make some such consequential order as would prevent the matter proceeding further. The submission it seems may go so far as to say that in those circumstances a judge of this court, in the event of such a matter, might determine the matter on its facts on the transcript and enter an acquittal.

25 No written submissions had been provided in respect of that last matter. Nor had the Crown been put on full notice of that matter. Nor has there been the opportunity for any detailed discussion of the arguments in support of that construction nor of those matters of fact or principle on which a judge might act in the exercise of such a discretion. It has been agreed that further submissions should be received from the parties on that question. However, I am assured by both counsel that there is a degree of urgency about deciding the substantive question in these proceedings as the plaintiff has been suspended without pay, and if I were of the view that the conviction and sentence should be quashed some at least limited form of reinstatement would occur even pending the further determination or re-determination of the question of guilt.

26 In those circumstances counsel for the plaintiff, Ms. Marty, sought that that question be determined immediately and that the matter otherwise go over for further submissions on the question of consequential orders. Mr. Smith, the Deputy Director of Public Prosecutions, who appeared for the defendants, acceded to that course being taken. It is an unusual course but, in the context of these events, and bearing in mind Ms. Marty's submission that on a rehearing, whether in this court on the depositions or below, there is a strong probability at least of the plaintiff's acquittal, it is a course which seems to me appropriate lest the plaintiff should have to suffer in advance the consequences of a finding which as I have said I regard as wrong in law. Since I was of the view the plaintiff should succeed on his principal claim for relief, I therefore determined that I would publish this judgment urgently and stand over the question of the appropriate consequential order for further submission.

27 I return then to that principal question, which is whether the magistrate erred in law, as I have said, in the way in which she approached her consideration of the evidence, thus leading to whether her conclusion resulted from a proper application of the law concerning, as it does in this case and on this ground, the onus and standard of proof in criminal proceedings.

28 Section 141 of the Evidence Act 1995 provides:-

“(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”

29 It is a statutory confirmation of the Common Law as to onus and standard. A failure to observe the requirements of the section is an error of law.

30 In Robinson v. The Queen (1988-1989) 180 CLR 531 the High Court considered the effect at common law upon a criminal trial of a trial judge's direction concerning the assessment of the credibility of witnesses which direction was, quoting from p.532 of the report:-

“Another test was what interest does a witness have in the outcome of the case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness' evidence closely. You might think - it is a matter solely for you - that the accused has the greatest interest in all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.”

31 That direction was later repeated and the following addition to it was also given:-

“You might well conclude, it is a matter for you, that the complainant also has an interest in the outcome of this case. I did not intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable.”

32 There are two matters to be remarked on in that direction at the outset. It is not a direction that a witness' testimony may be or is to be disbelieved because that witness has an interest in the outcome of proceedings. It merely deals with scrutiny. Further, the addendum seems to suggest that if such a test is at all applicable it is universal in its application, that is, it applies to all witnesses, including the complainant in such a case and does not focus on the position of the accused as such. (I interpolate that s.165 of the Evidence Act 1995 is similarly of general application).

33 The High Court granted special leave. The court unanimously concluded that the trial had fundamentally miscarried. At p.535 in the unanimous judgment of the court it is noted that at numerous points throughout the summing up the trial judge had given correct directions concerning the onus and standard of proof. The following appears in the unanimous judgment:-

“Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of a case.

If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions have the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused.
The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually have the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case, and a young child have been treated as 'suspect witnesses'. That is, as witnesses whose evidence is to be accepted only after the most careful scrutiny.
An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr. Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the quote do not sit well with the presumption of innocence, which is the consequence of a plea of not guilty. If that presumption is to have any real effect in the criminal trial the jury must act on the basis that an accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts.
To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.”

34 Their Honours went on, as has been pointed out by Mr. Smith on behalf of the prosecution, to note that none of the above was to be taken as suggesting that an accused person's evidence is not subject to the tests generally applicable to witnesses in a criminal trial, and the jury is entitled to consider whether some particular interest or purpose a proper witness might be promoted in giving evidence in the proceedings.

35 They continued:-

“But to direct a jury that they should evaluate evidence on the basis of interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown.”

36 Their Honours concluded that, if the jury had obeyed the trial judge's direction to scrutinise the evidence of the appellant more carefully, then that direction would have been a serious misdirection affecting the fairness of the trial and the presumption of innocence. The appeal was allowed. It is apparent that at no point did their Honours use the language of error of law. Notwithstanding that, it is also clear, having regard to the provisions of the Justices Act 1902 and the role of the High Court on appeal, that their Honours found an error of law lying in that misdirection.

37 It will be apparent here, upon review of what the magistrate said, that the course she took was a course that did not merely submit the plaintiff's evidence to closer scrutiny, but relied upon the very matter to which the High Court has referred, and the further factual consequences for the plaintiff of a possible finding of guilt as warranting the rejection of his testimony. This, in a case which, like Robinson, involved the assessment of the credibility of the alleged victim's evidence as supported by his early complaint, but the contrary evidence of the plaintiff and the plaintiff's daughter.

38 The submission was put that the attributed motive to the plaintiff to lie is dependent for its having been found on an assumption of guilt. That may or may not be universally the case. I will refer to this later but here not that my attention has been drawn to what was said in Regina v. Frederick Arthur Robinson (1995) 80 A. Crim. R. 358.

39 It is not necessary for me here, however, to embark on any sophisticated analysis of the dynamics which may have caused the magistrate to reason in the way that as it will appear I conclude that she did since I need go no further than applying to what she has expressed, as her reasons for taking the course that she did, the views of the High Court in Robinson (supra).

40 It has been asserted by Mr. Smith on behalf of the Crown that the principle in Robinson (supra) is to be understood as applying only to those directions a judge might give a jury and not to the way in which a tribunal of fact, be it a jury or a trial judge trying the matter alone or a magistrate, might act when assessing the credit of witnesses. In that regard Mr. Smith has appropriately drawn my attention to a succession of decisions, including Regina v. Brotherton (1993) 29 NSWLR 95 at 99 in which those additional considerations to which the High Court has adverted, as to the entitlement of the tribunal of fact to consider whether some particular interest or purpose of the witness might be served or promoted by their evidence in the proceedings, were echoed by the Court of Criminal Appeal as available for the assessment of witnesses evidence generally.

41 In my view Brotherton (supra) does not assist an argument which needs to focus on the magistrate's focus on the position of the accused as accused rather than as a witness in the case like any other witness. True it is that Gleeson, CJ. in Regina v. Reeves (Court of Criminal Appeal, unreported 13 September 1993) does point out that to some jurors it would have been obvious that an accused has an interest in being acquitted and that, as such, is not a surprising observation. But there is nothing contained in Reeves (supra) that would support the entitlement of a tribunal of fact, when scrutinising evidence, to treat the evidence of an accused recognising the interest the accused has in the outcome of the proceedings as thereby more liable to be rejected. That appears quite apparent from the earlier observations of the Chief Justice when he said:-

“As has been noted they (the observations relating to the interest of the accused) were not made in the context of directing the jury that they should scrutinise the evidence of the appellant with more care than any other witness.”

42 In Regina v. Asquith (1994) 72 A. Crim. R 250, the Court of Criminal Appeal referred to the temptation of an accused person to commit perjury, and that a jury might well be aware of it, but pointed out, having regard to what the High Court had said in Robinson (supra) and later underlined in Regina v. Stafford (1993) 67 ALJR 510, that where attention is drawn to that basic fact of human nature it is necessary, in fairness to the accused, to give a warning as referred to in Stafford (supra) against for that reason undervaluing the testimony of the accused.

43 In Stafford (supra), special leave was refused. Justices Dean, Dawson and Toohey held that it followed from the decision in Robinson (supra) that there should not be a direction of the kind that had occurred in Robinson (supra). The vice, it was said, arose from the direction directly or indirectly inviting an assessment of the reliability of the evidence of the accused by reference to the accused's interests in the outcome of the trial, and that that will inevitably have the effect of diminishing the potential weight of the accused's evidence.

44 Earlier I referred to the suggestion that this line of authority arose by reason of an assumption of guilt being implicit in such a direction. On its face there is no particular reason why an innocent person who has been charged would not have a greater interest in avoiding a wrongful conviction than a guilty person who wishes to be wrongly acquitted. Some might argue the innocent person has a greater interest. That could lead to a paradox, but one that I am not disposed to consider needs to be examined to as underlying the High Court's conclusion in Robinson (supra). It is sufficient that I apply the law as there stated. I have taken the view that I have that that matter need not be further explored.

45 Robinson (supra) is binding law. But to meet it Mr. Smith argues that it does not apply to the magistrate's decision since she was not directing herself since, she as a tribunal of fact was free to proceed unfettered by any doctrine as to how she was to reason. He says it is not a legal error for her to reason in that way when she carries out her fact finding role. Any error of that sort is at most an error of fact. It is not a reviewable error of law.

46 I turn to consider the statutory jurisdiction and function of the magistrate.

47 The Justices Act 1902 provides by s.77 that the justice shall proceed to hear the case and upon cause shown to (see s.78(1)) the justice (ie., the magistrate), if the defendant does not admit the truth of the information or complaint, (3), shall hear the defendant and the witnesses and such other evidence as is called. Section 80 requires the justice therefore to consider and determine the whole matter. There is a plenitude of authority and it is not suggested to the contrary by Mr. Smith that the justice is required to hear and determine the whole matter according to law. The magistrate in so doing must comply with s.141 of the Evidence Act 1995.

48 I turn now to examine the learned Local Court magistrate's decision. It was a detailed, reasoned decision. Having set out those matters that were not in dispute, to which I have already adverted, and which were referred to in written submissions of the plaintiff, the magistrate then commenced the analysis of the case as follows:-

“So far as the actual allegation of indecent assault is concerned, it is the usual situation of there being no eye witnesses to the alleged incident other than the victim and the defendant. That is not to say that it is a question of examining each version and determining which version is to be preferred because the onus is always on the prosecution to prove their case beyond reasonable doubt.
In order to find the defendant guilty the court must accept the evidence of AMJ beyond reasonable doubt.”

49 It is apparent that the magistrate has properly directed herself as to the onus and standard of proof. It is apparent that the magistrate has, at least on a preliminary basis, treated the matter as involving only the evidence relevantly of the asserted victim and the defendant. A complication to this statement was that it was contended on the defendant's part that his daughter, to whom I have already made reference, was close enough to have seen any such act occurred as the alleged victim contended.

50 I would not, however, regard the magistrate's analysis at this point as indicating that the magistrate had in the reasoning process reached a determined view without consideration of that matter.

51 The magistrate then summarised the evidence of the complainant; turned to the cross-examination of the complainant, and particularly considered the whereabouts of the plaintiff's daughter and the question of the consistency of the account given by the complainant with the complaint made by him shortly after the events and what he had said to the police which was tape recorded and transcribed. The magistrate had not heard the tape but had seen the transcript of that interview as put into evidence. She referred to the fact that the tape of the interview was not played and that she considered the transcribe to be a somewhat unsatisfactory document. She said:-

“Accordingly, I am not in a position to assess matters such as the demeanour of the victim whilst participating in the record of interview and giving his answers.”

52 She does refer to matters said to be inconsistencies and said to be consistencies, and having examined those in considerable detail, criticising the cross-examination as most confusing, apparently because the primary document on which the cross-examination itself the transcript of the taped interview was most confusing, she said:-

“There were some critical issues upon which there does seem to be a level of inconsistency between the record of interview, the account given in chief and under cross-examination, regarding questions which were not ambiguous in the record of interview, such as the terms of the invitation to the cottage and the victim's understanding of the reason for it.
In various accounts different versions are given by the victim, such as that that defendant asked him if he a had couple of minutes, whether he had seen the girls, whether he wanted to have some fun, and there was also the possibility the victim understood the defendant was wanting some help.”

53 The magistrate then turned to consider consistencies in the accounts and matters that might otherwise, to others, have attracted the description inconsistency, which she considered might appropriately be regarded as differences of expression. She then considered the submission made that the victim was an unsatisfactory witness and that his evidence was grossly inconsistent internally and in comparison to other witnesses.

54 Then she said:-

"Ultimately the submission was put that the complainant has lied, and in this regard it was submitted that his motivation was that he did not appreciate being reprimanded by the defendant for his conduct in the hall, and that in an effort to get back at the defendant for this he invented the complaint which he got stuck with.”

55 She said that her overall impression was that the victim was not an unsatisfactory witness and, taking into account the nature of the incident which he described, (as to this it has not been submitted to me that her statement here showed some such circular process of reasoning as enabled her to find the witness to be a witness of credit because the incident about which he gave evidence had occurred), and taking into account his distress, found that his evidence in chief was generally consistent with his cross-examination and his record of interview and was consistent on critical issues.

56 She then made an examination of what was said to be inconsistencies of the evidence of the alleged victim and the other witnesses, in particular the defendant's daughter. She examined the complaint as given in evidence by the victim's mother and concluded that there were inconsistencies as to some matters that might have been considered to be of significance, but that overall these were not very significant matters of inconsistency. She remarked that, had there been total consistency, it would have caused her some concern.

57 She then examined the evidence of the plaintiff's daughter, noting that the plaintiff's daughter was a "particularly articulate and obviously intelligent 10 year old, who managed the process of giving evidence in court in a criminal matter very well for a child her age". She said, however, "I am still required, however, to subject her evidence to the same scrutiny as any other witness' evidence". After reviewing that evidence and noting that the witness was not shaken under cross-examination (hardly surprising since she was being cross-examined by counsel in whose client's interest the evidence was given) the magistrate noted that the witness reaffirmed the salient features of her evidence and added to them.

58 The magistrate made a number of observations about this witness, including that the witness gave seemingly specific and seemingly accurate evidence concerning the critical issues in terms favourable to the defendant, indeed even more favourable than the defendant's own testimony. She said that she had no reason to disbelieve the witness when the witness said that she had not discussed the evidence in the matter with her parents, but did say "the court has no knowledge of what, for example, her mother may have said to her regarding her evidence except that the child herself said her parents did not talk to her about it".

59 She noted that there had not been cross-examination of that witness on her prior account. I note although she did not that such a course would have been open to the Crown had it made an application under s.38 had it wished to discredit the witness.

60 The magistrate then compared the evidence of the daughter witness with the evidence of the defendant, her father. The magistrate criticised the daughter's evidence on the basis that the witness was unable to nominate precise dates, times and distances, the number of the cottage, and her recollection was not at all points fully specific. She noted that the daughter's evidence appeared to be generally favourable to the father, and concluded that the witness had, subconsciously, a distorted perception of the events which had transcended into a false memory favouring her father. She did not suggest that the witness at any stage thought willfully to deceive the court. But she said:-

“But the various matters I have just referred to, together with the relationship between the defendant and herself and her understanding, even on defence counsel's submissions, that this event was of great significance to the family, lead me to conclude that her evidence was not accurate on these critical events.”

61 The defendant's evidence was then examined after the formal evidence of Constable Jorgensen, concerning what the witness had said to him, had been given in the Crown case. A question arose from the tenor of the cross-examination as to the accuracy of the terms of what it was said between the defendant and the constable and the reasons for not interviewing a young girl that had accompanied the defendant's daughter on the night. The magistrate said this:-

“I have earlier indicated that I accept the victim as a witness of truth and have no reason not to accept the evidence of Mrs. Jones [the complainant's mother] as to the complaint.”

62 This is before the magistrate in her reasoning turned to the consideration of whether or not the defendant's evidence, taken discretely or in conjunction with his daughter's evidence, might be such as to raise a reasonable doubt, notwithstanding the evidence of the alleged victim.

63 She continued in the following paragraph, after dealing with questioning statements, to say:-

“I have also stated that I do not accept Ms. Suthers' (the daughter's) evidence as an accurate account of the events. This, however, of course, does not mean that the offence has been proved beyond reasonable doubt as I need to examine the defence case in the light of the prosecution evidence.”

64 That is an inversion of the onus of proof. It encapsulates the process the magistrate undertook. It is necessary, of course, for her to examine the prosecution evidence in the light of what evidence may be given in the defence case to ascertain whether the offence has been made out beyond reasonable doubt.

65 It was in that context I have described, however, that the magistrate referred to the defence evidence and referred to the character evidence about the defendant which went both to his credibility and to the likelihood of his guilt. After dealing with the cross-examination of the defendant, she dealt with the comparison between his evidence and the version given to the police officers and concluded, after dealing with various matters said to amounting to flaws in the defendant's evidence, with the following passage dealing with the defendants having invited the police, when first confronted, to interview his daughter.

“In my view the nomination of his daughter is not a matter from which an inference only favouring the defendant must be drawn.... If it were also the case that his daughter and her friend were so preoccupied with their game to not be paying attention to what was ahead (the evidence did not support this conclusion) the defendant could also be confident in nominating his daughter as an appropriate witness to speak to. I do not accept the submission made that a guilty man in these circumstances would not proffer his daughter as witness.”

66 The magistrate's approach was confirmed when, turning to the onus, she said:-

“Bearing in mind of course the prosecution must bear the onus of proving guilt of the defendant beyond reasonable doubt, and it is not a case of comparing the defendant's version to the complainant's version, much of the thrust of defence counsel's submission as to the matter related to why I should not accept the version of the complainant. As I have already said, notwithstanding some of the matters which I agree are matters of inconsistency within his own evidence and to a lesser extent with the evidence of others, I have accepted him as a witness of truth.”

67 She then turned to a consideration of the acceptability of the evidence of the defendant; says that she does not accept the submission that the whole scenario is extremely unlikely, saying in an inappropriate comparison that such a submission is no more of account than to ask "Why would the complainant make such a complaint if it had not occurred?". She said she did not accept the submission that children lie and said in relation to that, "as I have already stated, I accept the complainant as a witness of truth", again reiterating the approach I have referred to.

68 She said that motivation to lie applies to adults and then said:-

“In this case I find it does apply to the defendant, who has a very high motivation to lie as he is aware of the very serious consequences of the finding of guilt in a matter of this sort for a person who is in his position. I do not accept the evidence of the defendant. I find inconsistencies between the version given to police and the version given to the court are matters of significance, and I take into account that in other significant issues his evidence is consistent with the evidence of the complainant. Factually I find the events occurred in accordance with the complainant's version, and despite the very good evidence of character I find the offence proved beyond reasonable doubt.”

69 Considering the whole of what the magistrate said, it is clear she has proceeded on a basis which diverted her from consideration of the evidence for the prosecution in accordance with s.41 and the law.

70 Her Worship not only went considerably further than what the impugned direction in Robinson (supra) invited a jury to do. In addition, her application of the proposition that the defendant's evidence was tainted by a high motivation to lie seems only to have arisen from her supposition of his perception of the consequences of a conviction whether he be innocent or guilty.

71 I am unable to see that the learned magistrate's directions to herself, if that be how they be regarded, or as more in my view appropriately described, in her reasons for her conclusions, do not clearly display error of law in failing properly to apply the onus and standard of proof when she came to a consideration of the evidence, and in particular when she came to a consideration of the evidence favouring the defence case.

72 I am constrained in those circumstances to quash the conviction and the sentence passed in consequence. To that extent the plaintiff succeeds on the summons. I order that the conviction of the plaintiff for the offence of aggravated indecent assault be quashed and that the sentence of the plaintiff for that offence also be quashed.

73 The question remains as to what consequential orders may need to be made. As I have already said this may raise questions of some difficulty.

74 I stand over the further hearing of this matter to a date to be fixed.

75 I direct the plaintiff to file written submissions setting out all matters of fact and law upon which the plaintiff relies on the outstanding questions, and all matters of argument concerning what relief the plaintiff contends should be provided in consequence of today's decision, on or before 27 September. I direct the defendant to file all submissions in reply on or before 25 October. The matter may be re-listed by arrangement with my associate.

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Last Modified: 08/26/2002