The State of Western Australia v Livingstone
[2018] WADC 111
•31 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LIVINGSTONE [2018] WADC 111
CORAM: BOWDEN DCJ
HEARD: 23-24 AUGUST 2017
DELIVERED : 31 AUGUST 2018
FILE NO/S: IND 481 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MICHAEL ANDREW LIVINGSTONE
Catchwords:
Criminal law - Trial by judge alone - Indecently dealing with a child over the age of 13 years
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Verdict of guilty
Representation:
Counsel:
| Applicant | : | Ms S Purvis |
| Accused | : | Ms H Prince |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | HE Prince |
Case(s) referred to in decision(s):
AJ v Western Australia [2007] WASCA 228; (2007) 177 A Crim R 247
AJE v The State of Western Australia [2012] WASCA 185
Barca v The Queen [1975] HCA 42; (1975) 132 CLR 82
Bennet v The State of Western Australia [2012] WASCA 70
Di Lena v Western Australia (2016) 165 A Crim R 482
Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349
FGC v The State of Western Australia [2008] WASCA 47
Kotzmann [2002] VSCA 21; (2002) 128 A Crim R 479
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394
Moore v The Queen [2016] NSWCCA 185
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
NAD v The State of Western Australia [2013] WASCA 2
Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248
Plomp v The Queen (1963) 110 CLR 234
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
R v Dziduch (1990) 47 A Crim R 378
R v Merritt [1999] NSWCCA 29
Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 281
The Queen v Baden-Clay [2016] HCA 35
Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233
Ward v The Queen [2013] NSWCCA 46
BOWDEN DCJ:
Mr Livingstone is charged with indecently dealing with MRN, a child of or over the age of 13 years and under the age of 16 years by touching her buttock on 5 July 2016 at Midland.
A brief overview of the State case
The State case in its simplest form alleges that as MRN alighted from a train at Midland Train Station (Midland) Mr Livingstone deliberately touched her bottom.
Trial by judge alone
An order that the trial be heard by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) was made by his Honour Judge Quail on 1 August 2018.
Principles of law
The trial proceeded on 23 and 24 August 2018 at the Perth District Court.
The law and procedure applying to this trial is the same as would have applied had the trial been heard before a jury (s 118 Criminal Procedure Act).
As a matter of law the following principles apply:
Mr Livingstone is presumed by law to be innocent of the charge.
The burden of proof of each element of the charge is on the State and never shifts to Mr Livingstone. Each and every element of the offence must be proven beyond reasonable doubt. Proving some elements but not others does not suffice. The prosecution do not need to prove beyond reasonable doubt each and everything a witness called by them says; what they need to prove beyond reasonable doubt is each and every element of the charge.
The standard of proof is proof beyond reasonable doubt. That is the heaviest burden of proof known to law. Establishing that guilt is more likely than not, or that it is possible or probable does not suffice. Proving strong suspicion does not suffice. The prosecution must prove guilt beyond reasonable doubt.
Mr Livingstone is entitled to be acquitted if there is a reasonable doubt as to his guilt.
The verdict must be based solely on the evidence presented at the trial. The evidence consists of the witness' answers to questions and the exhibits. Counsel's questions, submissions, comments and observations are not evidence.
Any publicity about Mr Livingstone or anyone or anything connected to the case must be ignored.
The verdict must be reached without prejudice, sympathy, speculation or conjecture.
In circumstances where Mr Livingstone's past conduct reveals his prior convictions the court must be especially careful to avoid a verdict based on prejudice.
I must not speculate or guess about matters or look for theories not supported by the evidence.
I may draw inferences from proven facts. An inference is a logical deduction from a fact or facts that have been proven. I can only draw an inference against Mr Livingstone if it is the only inference that is reasonably available. In drawing inferences I do not consider the facts in isolation but consider the combined weight of the facts which I find proven.
As the case against Mr Livingstone rests wholly upon circumstantial evidence, I can only be satisfied of guilt if the combined weight of the circumstantial evidence establishes beyond reasonable doubt that only one inference can be drawn and that inference is that Mr Livingstone is guilty of the offence: Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 281; Piccolo v The State of Western Australia [2007] WASCA 149; (2007) 173 A Crim R 248.
Guilt must not only be a rational inference but the only rational inference that the circumstances enable me to draw: Plomp v The Queen (1963) 110 CLR 234; The Queen v Baden-Clay [2016] HCA 35.
If a primary fact constitutes an essential element of the offence I must be persuaded of the existence of that fact beyond reasonable doubt.
The prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay [50].
It is not for the defence to establish that some inference other than guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference: Barca v The Queen [1975] HCA 42; (1975) 132 CLR 82, 105; The Queen v Baden-Clay [62].
The bare possibility of innocence should not prevent a finding of guilt if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661; Barca v The Queen; The Queen v Baden-Clay. When looking to see if there is a hypothesis consistent with innocence the hypothesis of innocence must be more than merely speculation or conjecture: The Queen v Baden‑Clay [55]. The hypothesis to be reasonable must possess some degree of acceptability or credibility and not be fanciful, impossible, incredible, not tenable, too remote or too tenuous: Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996; Piccolo v Western Australia [281].
The individual facts from which inferences are sought to be proven by the State do not have to be proven to any particular standard of proof: Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389.
However, where the State lead as part of their circumstantial case evidence of prior conduct of the accused to show he has a sexual interest in teenage girls, both the prior conduct (such conduct was admitted) and the sexual interest in teenage girls must also be proven beyond reasonable doubt: AJE v The State of Western Australia [2012] WASCA 185 [67] (Mazza JA & Beech J).
The standard of proof of the individual facts from which inferences are sought to be proven has been described as a 'different but unexplained standard': R v Merritt [1999] NSWCCA 29.
The tribunal of fact must find the individual facts 'proven' before they can be considered in combination with other facts: NAD v The State of Western Australia [2013] WASCA 2 (a direction to that effect being approved by the Court of Appeal) or, put another way, the individual facts from which the inferences are sought to be drawn must be proven to the court's satisfaction: Kotzmann [2002] VSCA 21; (2002) 128 A Crim R 479; Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394. A submission that such facts need be proven on the balance of probabilities was rejected in Kotzmann (492).
A witness whose evidence has been pre‑recorded and whose evidence is transmitted to the court via CCTV is giving evidence in accordance with a routine procedure of the court and I cannot draw an inference as to Mr Livingstone's guilt from the use of that entirely routine procedure.
A prior statement made out of court by a witness which is inconsistent with the evidence of the witness is not evidence of the truth of the contents of the out of court statement. The evidence I must consider is the evidence given by the witness in the courtroom.
If a prior inconsistent statement is established that does not mean by that fact alone the witnesses' evidence is unreliable: FGC v The State of Western Australia [2008] WASCA 47.
However, whilst the contents of an out of court statement are not evidence of the truth of that statement, the fact that a prior inconsistent statement has been made can affect the credibility of the witness. Whether and how it affects the credibility of the witness are matters of fact.
I may accept or reject the whole or part of the evidence of a witness.
In determining whether I am satisfied beyond reasonable doubt of Mr Livingstone's guilt I must not be concerned with the consequences of my verdict one way or the other.
I assess Mr Livingstone's evidence in exactly the same manner as I would assess the evidence of any other witness.
If I believe Mr Livingstone's evidence, which essentially was that he did not intentionally touch the girl's buttock, then he must be found not guilty. Even if I have difficulty in accepting his evidence but find that what he said might be true or it raises a reasonable doubt in my mind as to his guilt, Mr Livingstone must be found not guilty. Even if I do not believe what he had to say that does not mean that by that fact alone I find him guilty. I put his testimony to one side and ask myself whether based on the evidence that I do accept has the State proven guilt beyond reasonable doubt.
If I reach a conclusion that Mr Livingstone has deliberately lied that is a factor I can take into account in assessing his credibility.
However, a deliberate lie is not evidence that Mr Livingstone committed the offence.
I should only accept evidence which I find to be truthful, that is, honestly given, reliable and accurate.
It is not a question of whether I prefer the evidence from the prosecution witnesses over evidence from the defence. It is quite possible to prefer the evidence of the prosecution over that of the defence but still have a reasonable doubt. I can only convict if I am satisfied of Mr Livingstone's guilt beyond reasonable doubt.
Elements of the offence
The prosecution must prove each and every element of the offence beyond reasonable doubt.
Proving some but not other elements does not suffice.
The date alleged, being 5 July 2016 and the place alleged being Midland are not elements of the offence. They do not have to be proven beyond reasonable doubt. They are simply particulars given to Mr Livingstone so he knows the date and place where the offence is alleged to have occurred.
The elements the prosecution must prove beyond reasonable doubt are as follows.
Firstly, that Mr Livingstone dealt with MRN in the manner alleged in the indictment.
A dealing in law includes an intentional touching of MRN's body by Mr Livingstone.
The State must prove beyond reasonable doubt that Mr Livingstone intentionally or deliberately touched MRN on the buttock. The State must satisfy me beyond reasonable doubt that the touching was not an accidental or unwilled act.
Secondly, that dealing was indecent.
The State must prove beyond reasonable doubt that the dealing, if it occurred, was indecent.
Something is indecent in law if it is unbecoming or offensive to common standards of morality and has a sexual character.
The defence admit that if a deliberate touching of MRN's buttock occurred that would constitute an indecent dealing.
Independently of that admission I am satisfied beyond reasonable doubt that the deliberate touching of MRN's buttocks was unbecoming and offensive to common standards of morality and had a sexual character and was therefore indecent.
Thirdly, the State must prove beyond reasonable doubt that MRN was at the time of the alleged incident over the age of 13 years and under the age of 16 years. Exhibit 6 is a birth certificate that shows MRN was born on 19 December 2001 and I am satisfied beyond reasonable doubt that at the time of the alleged incident she was over 13 years and under 16 years of age.
The evidence
The State called four witnesses: Ms Guazzelli, Mr White, MRN and Detective Anderson. They also relied on agreed facts as to Mr Livingstone's past conduct (exhibit 13).
The defence called one witness being Mr Livingstone.
There were 15 exhibits tendered by the parties.
Ms Janet Anne Guazzelli
Ms Guazzelli was a customer service officer for the Public Transport Authority working at Midland on 5 July 2016.
Just before 3.00 pm she was standing near the door of her office when MRN approached her.
MRN told her that a male had touched her on the bottom, although Ms Guazzelli could not recall if that word or arse or bum was used, whilst on the train.
When she asked which person, MRN had her head down and said words to the effect of 'that man going through the doors now'.
Ms Guazzelli said she looked and saw the back of the man just going through the sliding doors near the office. She said the man was wearing a white shirt, had a bag over his shoulder, black hair and was Caucasian.
Ms Guazzelli said one of the transport officers said something, went out the door and pursued the man.
Ms Guazzelli asked MRN to tell her what happened and MRN said that the man had been on the train all the way from Perth, had been staring at her, mouthing suggestions, making gestures and making her feel uncomfortable. MRN said that when she got to Woodbridge Train Station (Woodbridge) she stood up and then the man stood up and was hanging on to the rails. She said he was at the door and was she felt something touch her on her behind (Ms Guazzelli could not remember if the word 'bottom', 'bum' or 'arse' had been used) and she turned around and his right hand went back up on to the rail.
MRN said that when they got to the Midland as she was stepping off the train she felt something brush past her, it felt like a grab but it was not, it was like a brush (ts 231 ‑ 233).
MRN wanted the police called and Ms Guazzelli remained with her until the police arrived around about 4.00 pm.
MRN's statements to Ms Guazzelli are adduced by the State as recent complaint evidence.
I accept that Ms Guazzelli is a truthful witness who has honestly and accurately told the court what MRN said.
As a matter of law and fact Ms Guazzelli's evidence shows a complaint by MRN of a sexual matter and was made at an early reasonable opportunity and is therefore recent complaint evidence. As such it is not evidence of the truth of its contents, that is, it is not evidence that what MRN complained about in fact occurred.
In relation to the State's case, at its highest, it can only be used to show the consistency of MRN's conduct and therefore relevant to support or bolster her credibility. The defence say that is a prior inconsistent statement and it damages rather than supports or bolsters MRN's credibility.
There is no doubt that MRN complained to Ms Guazzelli of being inappropriately touched virtually straight away. There are significant inconsistencies between MRN's evidence and what she told Ms Guazzelli. MRN told Ms Guazzelli that when she was at the Woodbridge stop she felt something touch her behind and when she turned around the man's hand went back on the rail. MRN made no mention in her evidence of any touch on her behind at Woodbridge.
This inconsistency is a matter for me to consider when I evaluate MRN's credibility. Notwithstanding the inconsistency about events occurring at Woodbridge, the fact remains that MRN made an early complaint about the events at Midland which are the subject of charge.
Mr Adam White
Mr White is a TransPerth transit officer who was on duty at Midland on the day in question.
At about 2.45 pm he was in the front office checking his emails when a train arrived. He noticed a young girl power walking, or walking at a fast pace, to the office door. He also noticed a male who had a white shirt and dark pants, though he was not 100% certain of the pants.
He said the female approached the door and spoke to Ms Guazzelli and he heard her say the man 'grabbed my backside'.
Mr White asked 'Which man?'
Mr White said the girl pointed out the male with the white shirt. He said he was not sure if she actually physically pointed or used the descriptive words 'the man in the white shirt'. He agreed that only days before (on Monday of the week of the trial) he told the prosecutor that he could not remember if she pointed to the man or described him in words. In evidence he said he was not sure if she pointed but she said 'the man in the white shirt'.
In any event, Mr White said he followed the man, who by that stage was in the foyer, and called out, 'Stop'. He agreed that only days before he told the prosecutor that he did not remember if he called out 'Stop' while he was in the foyer. Once this inconsistency was pointed out Mr White agreed that he could not remember if he called out 'Stop' in the foyer.
Mr White said he followed the male through the glass doors and once outside called out 'Stop' on at least two occasions. He said the male was walking on the bitumen surface used by vehicular traffic, not the brick paving usually used by pedestrians. He agreed in cross‑examination that on each working shift he would see on two or three occasions persons walking on the vehicles bitumen rather than the pedestrians' paving.
He said the male was walking faster than people normally walk.
He caught up to the male (it is not disputed that the male is Mr Livingstone) by walking faster or jogging, looped around him and told him to stop and basically put his arm out to impede his progress. Mr White said he explained he was investigating an offence and asked the male to step onto the pavement.
Mr White said he and Mr Livingstone went to an area of the pavement near some chairs and he asked on at least five occasions for Mr Livingstone to give his name, date of birth and address. He said Mr Livingstone was saying words to the effect that he had no right to stop him and it was harassment.
Mr White said that another transit security guard who had joined him also asked about five times for Mr Livingstone's name, address and occupation and eventually Mr Livingstone provided that information.
He said Mr Livingstone denied he was doing anything wrong and took out a notebook and started asking for the officers' names. Mr White said at one stage he used his radio in the presence of Mr Livingstone to obtain information about Mr Livingstone.
Mr White said there was an argument to some degree and Mr Livingstone said on a number of occasions that he had to go. Mr White said that on one occasion Mr Livingstone tried to step around him. Mr White agreed that he told Mr Livingstone that he may be placed under arrest and advised that he would be placed in handcuffs if he did not remain (ts 263 ‑ 264).
I generally accept Mr White's evidence however he seemed to downplay several aspects of the interaction with Mr Livingstone. In particular, he was somewhat reluctant to admit that Mr Livingstone at one stage was told he might be placed under arrest and might be placed in handcuffs if he did not remain.
Mr White was not as precise or accurate a witness as Ms Guazzelli. However, not a lot turns on my assessment of Mr White because the interaction between Mr Livingstone and Mr White, the transit guards and police officers is captured on CCTV footage.
Mr White did not give evidence that he, other transit guards or police officers arrested Mr Livingstone. Mr Livingstone was in fact legally entitled to continue on his way home should he have wished to do so.
I have seen the CCTV footage of the interaction between Mr White and Mr Livingstone (exhibit 7 (clip 12, 13, 14.1, 14.2, split 1, split 2) and exhibit 11).
It shows Mr White approaching Mr Livingstone and ushering him to the brick paving area and Mr Livingstone remains there for around about an hour and 10 minutes.
It is quite true that at one stage there was a movement by Mr Livingstone that could be interpreted as attempting to move around the officer, but the officer simply put his hand out and Mr Livingstone immediately stopped.
Mr Livingstone remains with the transit guards for over an hour. On some occasions there are two transit officers and on other occasions three transit officers, two police cars attend and at one stage Mr Livingstone is surrounded by three police officers and three transit officers.
There is nothing that one can say by looking at the footage that shows Mr Livingstone was attempting to flee from the officers in any shape or form.
On Mr White's evidence Mr Livingstone was asked for his details and eventually provided them. He was asked to remain until the police arrived and did so.
Mr Livingstone writes the transit and police officer details down as he is entitled to but nothing turns on this.
Mr Livingstone may have been reluctant to provide his details but he did. He may have questioned the officer's rights to detain him but at the end of the day he complied with their request. There is nothing to support the claim by the prosecution that he tried to flee the scene either before or as he was spoken to by the transit officers.
MRN
MRN's evidence was that she left work and boarded the Midland train intending to alight at Midland.
MRN sat on the bench seat near the middle exit door and noticed a male walking (it is not in dispute that the male is Mr Livingstone) down the walkway of the train.
MRN said Mr Livingstone sat on the seat diagonally across from her and facing directly towards her. She said the train was reasonably full.
MRN said Mr Livingstone looked a bit weird or a bit different and when the train left he kept staring at her. She stared back to see if he would back down or stop staring. She said he sat with his legs open, sitting somewhat slouched and not upright.
MRN said that for most of the ride Mr Livingstone was rubbing his crotch with what she thought was his left arm over his outer clothing and was moving his tongue around his mouth and licking his lips (ts 141). I note she initially said he was rubbing with his right hand or left arm (ts 141).
She said he was staring at her and mumbled some words but she was unable to make out what he was saying.
MRN said she felt uncomfortable and helpless and tried to make eye contact with others on the train, but was unable to do so. She said she did not move from her seat until the train arrived at Woodbridge.
MRN said that when the train arrived at Woodbridge she stood up as she intended to get off the train but then recalled that the Woodbridge was not manned. She said that Mr Livingstone got up the moment she got up and followed her to the door.
She said she had her hand on the pole near where she was standing and he was standing behind her for a while. He put his hand on the pole and his hand was close to hers.
She slid her hand up the pole and he slid his hand up the pole.
She took her hand off and placed it at the bottom and he then slid his hand down the pole.
She said he was not too close to her when they were leaving Woodbridge but he got closer as they got to Midland.
MRN said there was another man dressed all in black standing next to her at the door and there were other people standing around ready to get off the train.
She said that Mr Livingstone was behind her and as they moved closer to Midland he moved close to the door. She agreed with the proposition that she did not like and was not comfortable with this particular man standing behind her.
She agreed that anyone who was close to her was also pretty close to the door.
When the train arrived at Midland she took her hand off the pole and was trying to make eye contact with the man next to her.
She then proceeded to walk out of the door and was touched on the right‑hand side of the bottom for 'not even a few seconds' as she walked out the door between the platform and the train. She described being touched with the shape of a hand like four fingers. She said the touch was not a grab or a slap, it was just a brief brush.
MRN said she did not see who touched her or what touched her and agreed that other passengers were pushing their way out.
She was shocked and kept walking although her 'walk kind of stuttered' and she walked to the office and told a transit officer what had happened.
She agreed in cross‑examination that she told the prosecutor the week of her pre‑recording that the person that touched her had dark hair, average build, dark clothing, both top and bottom. She said that is how she remembered it that day. Under re‑examination she said that when she told the prosecutor this she did not remember it very well.
She said she did not think that the person who touched her was the man that was standing beside her (who was dressed in black).
She agreed under cross‑examination that she could not be sure if the man next to her or the man behind touched her and that it was possible she was accidentally touched or brushed on the buttocks.
There are significant matters to be considered when assessing MRN's credibility.
Firstly, Ms Prince correctly drew my attention to MRN's statement to the prosecutor the week of the pre‑recording (almost two years after the alleged incident) that the person that touched her had dark hair, average build, dark clothing both top and bottom. What MRN said to the prosecutor is not evidence of the truth of its contents, that is, it is not evidence that she was touched by that particular person, it is simply evidence of a prior inconsistent statement and relevant to my assessment of MRN's credibility.
That statement was made almost 25 months after the incident and in circumstances where she told the prosecutor this she did not remember it very well and in circumstances where her earlier evidence was that she did not think that the person that touched her was the man standing beside her (who was dressed in black). Her evidence effectively was that she did not know who touched her but she knew that the man dressed in black was standing at the side of her and the other man (Mr Livingstone) was standing behind her. The CCTV footage shows that in the seconds before and after he alighted from the train the man in black had his right hand (which was the hand closest to MRN) on his backpack strap up near his shoulder.
Secondly, MRN's evidence about events at Woodbridge were inconsistent with what she told Ms Guazzelli occurred at Woodbridge. She told Ms Guazzelli that when the train stopped at Woodbridge she was touched on the bottom. When MRN gave evidence she made no mention of that occurring. Clearly that is a significant matter.
Thirdly, Ms Prince says Mr White's evidence that he heard MRN say the man 'grabbed my backside' is a slight variation of Ms Guazzelli's evidence that MRN said she felt something 'brush past her, it felt like a grab but it was not, it was like a brush'. I prefer the evidence of Ms Guazzelli over Mr White as MRN was talking directly to her and Mr White on his own admission was performing other tasks. Ms Guazzelli was more precise in her details and in any event she said that MRN told her she had been touched 'on the bottom' (or arse or bum). I do not consider there to be any inconsistency or that it effects MRN's credibility.
Fourthly, Ms Prince says MRN's evidence is demonstrably wrong because she said Mr Livingstone was rubbing his crotch with his left arm for most of the ride and this is shown by the CCTV footage to have not occurred.
I am not satisfied that Mr Livingstone played with his crotch the whole of the way on the trip to Midland. The CCTV footage shows that for virtually the whole of the trip Mr Livingstone's left hand is visible resting mostly on the rail. Even if MRN has mistaken the hand with which she says he was using the CCTV footage does not show that he was playing with his crotch for the whole of the trip and indeed you cannot see from the CCTV footage whether he was playing with his crotch at all.
The State say that this is not inconsistent with MRN's evidence as the CCTV footage does not show that he was not playing with his crotch. The footage satisfies me he was not playing with his crotch the whole of the trip and I am not satisfied by MRN's evidence that he was playing with his crotch at all.
In circumstances where Mr Livingstone suffers from Autism and has some different physical characteristics (described by he and his counsel as a 'tick') such as a bottom lip that occasionally protrudes and a tendency to lick his lips as observed on exhibit 7 and he can be seen on occasions with his hand across his lap during the train trip and the CCTV footage shows he was not playing with his crotch for the whole of the trip as claimed by MRN. I am just not satisfied by her evidence that he was playing with his crotch at all.
Fifthly, it is also significant that MRN's evidence was that near the Woodbridge Mr Livingstone put his hand on the pole near where she was standing, was close to her and when she slid her hand up the pole he slid his hand up the pole, and then when she took her hand off the pole and put it at the bottom, he slid his hand down the pole.
There is clear CCTV footage of the events on the train at the Woodbridge. The footage was taken from a number of different cameras and it shows that incident did not occur. The CCTV footage positively contradicts the account given by MRN. This is another significant matter to be taken into account in weighing the evidence of MRN.
Further, she agreed under cross-examination that she could not be sure if the man next to her or the man behind her touched her and it was possible she was accidentally touched or brushed on the buttock.
MRN has been shown inter alia to have made prior statements inconsistent with her evidence and her evidence about Mr Livingstone's hand movements on the grab rail at the Woodbridge is positively contradicted by the CCTV footage.
The finding of inconsistencies does not necessarily mean that the witness' evidence is untruthful. It can of course mean that, but it can also mean that the witness has an inaccurate recollection, a lapse in their memory or has suffered from confusion occasioned by the questioning: FGC v The State of Western Australia.
The matters that I have referred to above do not lead me to conclude that MRN is an untruthful witness.
MRN's out of court statements as to the person who touched her are not evidence that person touched her. Her evidence as to who touched her buttocks and whether it was accidental or otherwise is opinion evidence. She was not in a position to know or see who touched her.
The fact that she proffers opinions on matters she cannot know and complained to Ms Guazzelli about being touched on the bottom at Woodbridge (not evidence of the truth of that complaint) but gave no evidence of that occurring and her demonstrably incorrect evidence about the movements of Mr Livingston's hand on the grab poles near the Woodbridge and my non‑acceptance of her evidence that Mr Livingstone was rubbing his crotch causes me to scrutinize her evidence with care. Having done so, I am satisfied beyond reasonable doubt that her evidence that she was touched on the buttock as she stepped off the train at Midland is truthful; that is honest, accurate and reliable.
Who was responsible for the touching, whether it was deliberate or accidental falls to be determined not by her opinion evidence but by an examination of all evidence presented at the trial.
She did not appear to exaggerate what occurred and quite properly made concessions about matters such as thinking the accused was weird, not knowing who touched her etc.
I accept beyond reasonable doubt her description of the touch, that is, as a 'brush, a touch with the shape of a hand like four fingers, not being a grab or a slap, just a brush'. Ms Guazzelli's evidence shows she complained immediately of what occurred and whilst not evidence of the truth of that complaint it does go to the consistency of her conduct and thus buttresses or supports her credibility.
Ultimately MRN agreed she did not know who touched her or whether the touch was deliberate or accidental. In circumstance where she is touched on the buttock as she stepped from the train to the platform that concession is appropriately made and in my view supports her truthfulness.
Her description of the touch as a 'brush, not a grab or slap' reinforces my finding that she was not giving evidence to make things sound as bad as she could for Mr Livingstone but simply telling it as it occurred.
It was suggested that MRN's credibility has to be viewed in the context that she had changed her first name because she wanted a 'new beginning and didn't want anything to do with her father' (ts 136) and said that 'she didn't like men standing behind her in particular' (ts 137) and 'never had a really good run with males before' (ts 129).
I find those factors taken individually or collectively do not impact on MRN's credibility directly or contextually.
Detective Renee Marie Anderson
Detective Anderson was on duty at the Midland Detectives Office on 5 July 2016 and she became involved with Mr Livingstone once he was taken to the police station.
She determined it was not appropriate to conduct an electronic record of interview with Mr Livingstone because there were concerns as to whether he understood the effect of the caution and she was concerned that he may be a 'protected person' that is, as I understood the officer's evidence, a person under some form of disability that required an additional person to be present when interviewed.
The detective also produced the various CCTV footage (exhibit 7) divided into 11 clips and three splits showing the whole of the train journey from the time both MRN and Mr Livingstone entered the train at the Perth Train Station until they left the train at Midland. The CCTV footage also shows MRN walking from the train to the platform office and Mr Livingstone leaving the train and walking through the exit area into the foyer, through the foyer and onto the forecourt outside and shows the interaction between the transit guards, the police officers and Mr Livingstone outside the Midland.
Various still photographs taken from the CCTV footage were also tendered by the parties through various witness (exhibits 1, 3, 4, 5, 8, 9, 10, 14 and 15).
Agreed facts as to Mr Livingstone's past conduct (exhibit 13)
The State leads as propensity evidence prior conduct of Mr Livingstone. The agreed facts relating to this conduct is contained in exhibit 13 and is briefly as follows.
Between 10 and 16 June 2012 Mr Livingstone was at the Morley Galleria Shopping Centre. HHF, who was 14, was walking with a friend when Mr Livingstone pushed between the two of them, put his hand on HHF's knee and slid it up under the hem of her skirt and touched her upper high. He then continued walking past HHF and her friend.
Further, on 27 June 2012 HHF was walking with a friend inside the shopping centre when Mr Livingstone grabbed her on the right upper thigh with his hand and moved his hand up her thigh and grabbed her bottom.
Further, on 29 June 2012 Mr Livingstone was at the Morley Galleria Shopping Centre as was HFF. She saw Mr Livingston and tried to avoid him. Mr Livingstone walked towards her, reached out with his left hand, touched her on the breast and brushed his hand across her chest to the other breast and continued walking along the aisle.
Further, on 16 August 2012 Mr Livingstone was on a train travelling to Midland as was MD, who was 14 years of age. Mr Livingstone approached her shortly after she boarded the train. She was wearing her school uniform and carrying a school bag. Mr Livingstone walked directly towards her, stood about 15 cm away, made eye contact but did not speak and put his hand on the horizontal bar essentially boxing her in so that she could not move away, then moved his hand from the bar to her left thigh and stroked her thigh before putting his hand back on the bar. He did this on two other occasions. He then moved his hand from the bar and stroked MD's left buttock on the top of her shorts two or three times.
When the train moved on MD moved away from Mr Livingstone. He followed her and stood in close proximity to her until she got off at the Bassendean Train Station.
Further, on either 4 or 5 September 2012 Mr Livingstone was at the Centrepoint Shopping Centre in Midland and walked past EHM who was 15. As he walked past he brushed past her and put his hand inside her shorts feeling her upper leg and buttock over the lower part of her underwear.
Further, on either 5 or 6 September 2012 Mr Livingstone was at Centrepoint Shopping Centre and he moved towards EHM, brushed past her left side putting his hand inside her short and feeling her upper leg and buttocks over the lower part of her underwear.
Further, between 9 and 12 September 2012 Mr Livingstone was at Centrepoint Shopping Centre walking down an aisle in Woolworths, he crossed over towards EHM, brushed past her left side, put his hand inside her shorts, felt her upper leg and buttock over the lower part of her underwear.
Further, on the evening of 13 May 2013 Ms BE, who was 18 years old, was walking along the footpath towards the Midland. As Mr Livingstone was walking he veered towards her causing her to walk off the edge of the footpath and as he walked past he touched her buttocks, with his hand and continued walking past her.
Further, on 30 May 2013 AS, who was 16, was working at the Midland Gate Shopping Centre standing in front of a lolly shop offering samples of lollies to members of the public. Mr Livingstone approached her and was offered a free lolly sample which he took. He then moved in close to AS, forced his right hand on her upper thigh and ran his hand upwards for approximately five seconds.
Mr Livingstone did not previously know any of his five victims.
The State lead this evidence because they say it shows that Mr Livingstone has a sexual interest in teenage girls who are not known to him and has a tendency to act on that interest by approaching teenage girls in public places and touching them sexually.
Ms Prince urges me to consider the differences in the circumstances surrounding each of these nine incidents. She points properly to the differences, namely the circumstances in which the touching occurred, the duration of the touching, the part of the body that was touched, and says that bearing in mind the time span between these incidents and the alleged offence and the significant differences the evidence is of little probative value.
The prior conduct of Mr Livingstone is an admitted fact and thus proven beyond reasonable doubt. I am satisfied beyond reasonable doubt that the only reasonable inference to draw from that past conduct is that at the time of that conduct Mr Livingstone had a sexual interest in teenage girls and had a tendency to act on that interest by approaching teenage girls in public places and touching them sexually.
Further, I am satisfied beyond reasonable doubt that Mr Livingstone still had that sexual interest and tendency at the time of this alleged offence.
The prior conduct occurred over a period from June 2012 to May 2013, that is over an 11 month period and this offence is alleged to have occurred on 5 July 2016, that is, some three years one month after the last of the prior conduct relied upon by the State. However, events occurring at one period of time can establish a tendency existing at a later period: Di Lena v Western Australia (2016) 165 A Crim R 482, AJ v Western Australia [2007] WASCA 228; (2007) 177 A Crim R 247; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347.
Time is a factor to be considered in determining whether I am satisfied beyond reasonable doubt that an inference can be drawn from past conduct that the sexual interest in young females still existed at the time of the offence. Neither the time lapse nor the different type of conduct diminishes the probative value of that evidence.
I find that the past conduct constituted by the touching by Mr Livingstone in public places of teenage girls who were strangers to him does enable me to draw the inference beyond reasonable doubt that Mr Livingstone had an enduring sexual interest in teenage girls as at 5 July 2016 notwithstanding the time elapsed: Bennet v The State of Western Australia [2012] WASCA 70.
In any event Mr Livingstone admitted in his evidence that he has an attraction to teenage girls (ts 376).
The probative value of this evidence is high.
The finding that Mr Livingstone has a sexual interest in teenage girls and the tendency that I have referred to is not direct evidence that Mr Livingstone committed this offence and that finding does not lead me to conclude that by reason of that finding alone Mr Livingstone is guilty of this charge. It does not follow that because he previously touched teenage girls in a sexual manner that he did so on this occasion nor does it mean that he is therefore guilty of this charge.
However the existence of that sexual interest in teenage girls and his tendency to give effect to that interest by touching them sexually is a matter I am entitled to take into account. It makes it more probable or likely that Mr Livingstone acted in the way alleged on the day in question and as such whilst considered in isolation could not prove Mr Livingstone's guilt it is part of the circumstantial evidence that may be considered by me in conjunction with the other evidence in determining whether I am satisfied beyond reasonable doubt of his guilt.
The defence
Mr Michael Andrew Livingstone
It is not in dispute that Mr Livingstone is autistic and he was born on 16 May 1973.
Mr Livingstone said that on 5 July 2016 he was living in Midland.
Earlier that day he went to the State Library and caught the train back to Midland. He entered a train carriage and saw a person, who he described as a nuisance and annoying, that he wished to avoid so he left that carriage and entered into another carriage.
He sat on the empty bench seat as he did not like sitting close to people as he does not like being hemmed in (ts 336).
Mr Livingstone agreed that there were empty seats on the carriage but said those seats were clearly marked as priority seating to be used by people suffering from a disability, mothers with prams and the like and not able‑bodied persons.
Mr Livingstone said he had a 'tick' and some of the medication he took caused him to have a dry mouth and that is why when he walked down the carriage aisle he did so with an open mouth and it also explained why he often licked his lip and his bottom lip on occasions protruded (ts 336 - 337).
He said he had his music player with him and when he sat down he immediately checked to make sure that he had his wallet and his keys.
He vaguely remembered the girl sitting opposite. He said he was not trying to get her attention and said was just minding his own business.
He categorically denied that he stared at her or made gestures towards her or he rubbed his genitals whilst on the train or touched or grabbed her buttock as he left the train or at any time.
Mr Livingstone gave his reasons for getting up when the train arrived at Woodbridge and I deal with that issue later.
The CCTV footage shows that Mr Livingstone got up almost immediately after MRN and only one other passenger had got up, although another passenger appears to be preparing to get up.
Mr Livingstone said once he got off the train he exited through the only exit suitable for people not possessing a smartrider ticket. Mr Livingstone's evidence in this regard is supported by Mr White.
The effect of Mr Livingstone's evidence was that he walked briskly away because the person he was seeking to avoid was on the train and he did not want to make contact with him at the station and there were quite often beggars, louts or undesirables at the station and he was anxious to get away.
Mr Livingstone agreed he walked across the bitumen saying that sometimes he went across the bitumen rather than the brick paving, although he conceded that it was not normal for him to go across the brick paving and generally it was not safe to do so.
Mr Livingstone said the first he knew that the transit officers were trying to gain his attention was when Mr White literally jumped in front of him.
Mr Livingstone said he was ushered to the area near a chair on the brick paving and shortly thereafter he took the serial numbers and names of the transit officers and told them they were making a false arrest and he could put them under citizen's arrest for making a false arrest. He said the security officers were harassing him, aggressive and sarcastic, in his face and telling him that they could put him to the ground and he was telling them that he had to go.
He initially refuse to give his details but later did so. He agreed he was told that the girl made a complaint.
He said he did try to move away from the transit officers at one stage because he was boxed in and felt trapped. Although later in cross-examination he denied that he tried to step around the officer.
He said when the police arrived he took their details. He was later put in a paddy wagon in front of other people and taken to the police station and felt humiliated.
At the police station Mr Livingstone said he was shoved into a small cell and he told the police officers that he was going to put them under citizen's arrest for making a false arrest.
Mr Livingstone was shown exhibit 7, split 3 which shows his hand on the vertical grab bar near the exit door and then moving his hand to the horizontal grab bar in close proximity to MRN. His hand remains there for only a brief period of time and then returns to the vertical grab bar. Mr Livingstone agreed under cross-examination that it appeared MRN was looking down but he did not agree she was looking where his hand was. Mr Livingstone said the only reason he moved his hand was because the train was moving.
The CCTV footage does not show Mr Livingstone's hand touching MRN and in the context of a moving train and people at the exit doors, there is nothing unusual about Mr Livingstone's actions as shown on that clip.
Mr Livingstone agreed that he was sexually attracted to teenage girls. He said he did not find MRN 'especially attractive'.
The essence of Mr Livingstone's evidence was that he did not touch MRN inappropriately or at all.
I found Mr Livingstone's evidence unconvincing. His evidence was to the effect that he only vaguely remembered seeing MRN, saw her as she was in the vicinity, glanced at her and paid her no particular attention and did not know if he was looking in the direction where she was sitting (ts 338, 348, 353, 357, 377). This evidence is, I find, inconsistent with the CCTV footage which shows that he was generally looking in her direction for most of the trip (ts 376).
Exhibit 4.1 appears to show Mr Livingstone looking directly at MRN. However, there is a danger in relying on one still photograph.
The CCTV footage, exhibit 7, shows that for virtually the whole of the ride from Perth to Midland he was looking directly at where MRN was seated. The configuration of the seats is such that they are sitting opposite each other and if he looked straight ahead he was effectively looking directly at where MRN was seated and if she looked straight ahead she looks at where he is seated.
Mr Livingstone's insistence that he just glanced and in effect only casually noticed MRN is inconsistent with the CCTV footage and seat configuration and in my view indicates an unwillingness to tell the truth.
Mr Livingstone's denial that he got up momentarily after MRN moved as the train approached Woodbridge, as clearly shown by exhibit 7, clip 8 (approximately 14:52:34) and clip 9, also indicates an inability to concede anything that remotely connects him with MRN and I find indicates an unwillingness to tell the truth.
The CCTV footage shows that Mr Livingstone stood up almost immediately after MRN.
Mr Livingstone's evidence as to why he got up as the train approached the Woodbridge was difficult to comprehend. His evidence seemed to move between saying it was reflex and others were getting up en masse (ts 339, 340, 353), to saying that both Woodbridge and Midland were half way between his house so he could get off at either stations (ts 352, 354), to saying that he often got off at Woodbridge to avoid trouble because of the undesirable elements at the Midland (ts 354, 355), to saying he was going to get off at the Midland and got up early to beat the rush (ts 340, 351, 353). His evidence was evasive and he avoided directly answering the question.
Others did not get up en masse. He moved virtually as soon as MRN moved. At that stage there was one other person at the exit point (the man dressed in black) and another passenger (a brown jumper and slightly balding head) was moving towards the exit. It cannot be said that there was en masse movement to the door.
If he rose from his seat because he intended to alight at Woodbridge either because that station and Midland are halfway between his home and it makes no difference where he disembarks or because he was seeking to avoid trouble at Midland, his actions in remaining on the train to Midland are inconsistent with the reasons as to why he got up. If he got up because he was always going to get off at Midland there was no need to proffer the other reasons that I have referred to. His evidence as to why he got up at the Woodbridge was evasive and the issue never satisfactorily resolved.
I reject Mr Livingstone's evidence that he did not make eye contact with MRN. MRN said that when Mr Livingstone was staring at her she stared back to see if he would back down. MRN would, in my view, not concede that she stared back unless she did so and her reasons for doing so are inherently plausible. Her evidence in this regard has the ring of truth to it. I accept that what a 16 year old giving evidence describes as a stare occurring when she was 14 has a degree of subjective opinion attached to it. I am satisfied that Mr Livingstone was generally looking in her direction for most of the trip and ,at the very least , at some stage made eye contact with MRN to the extent that she believed he was staring at her and responded in the manner referred to. I reject Mr Livingstone's evidence that he did not make eye contact.
In my view Mr Livingstone's evidence was simply self-serving denials. His evidence was inconsistent with facts I find proven including his admitted attraction to teenage girls, his actions in looking in MRN's direction for virtually the whole journey, making eye contact at some stage, rising from his seat within seconds of her doing so, following her down the carriage way and moving closer to her as the train approached Midland.
His evidence was nothing more than efforts to distance himself from those actions. His remark that he did not find MRN 'especially attractive' was another such instance.
I find that Mr Livingston is not a witness of the truth and that of course is not evidence that he is guilty of the offence. I simply put his evidence to one side and ask myself based on the evidence that I do accept, am I satisfied the State has proven his guilt beyond reasonable doubt.
His evidence that he did not deliberately touch MRN is not accepted by me nor does his evidence raise a reasonable doubt in my mind.
The issue
In light of the defence admission that if MRN was deliberately touched on the bottom by Mr Livingstone that would constitute an indecent dealing and the uncontested evidence as to MRN's age the issue to determine is whether the State have satisfied me beyond reasonable doubt that MRN's buttock was touched and that Mr Livingstone intentionally touched it.
In this regard the state must negate beyond reasonable doubt the reasonable possibilities that MRN's buttock was not touched and if it was that some person other than Mr Livingstone touched it and that if Mr Livingstone did touch it he did so unintentionally: Moore v The Queen [2016] NSWCCA 185 [99]; R v Dziduch (1990) 47 A Crim R 378; Ward v The Queen [2013] NSWCCA 46; Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233, 235, 255; Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [201] – [202] (Gaudron J).
A brief outline of the State's submissions
The State rely on:
1.MRN's evidence.
2.Ms Guazzelli's evidence of recent complaint to buttress MRN's credibility.
3.The CCTV footage to show:
(a)That Mr Livingstone's eyes were focused on MRN as he was walking down the carriage walkway.
(b)As not being inconsistent with MRN's evidence that Mr Livingstone was staring at her, making gestures and playing with his crotch on the trip to Midland.
(c)Mr Livingstone got up from the seat as soon as MRN did when the train approached Woodbridge and followed her to the exit door getting progressively closer to her as the train approached Midland.
(d)Mr Livingstone's hand was on the grab rail very close to her as the train approached Midland.
(e)Mr Livingstone's right hand was outstretched as he was getting off the train which is consistent with MRN's evidence that she was touched on the right buttock as she left the train.
(f)MRN turned around and looked in the general direction of Mr Livingstone just after she left the train which is consistent with her evidence that after she was touched her walk stuttered.
(g)Mr Livingstone was the only person who had the opportunity to touch MRN's buttock as exhibit 7, clip 9 and clip 10 show that the other passenger in close proximity as MRN left the train had his right hand at all stages on the top of his backpack and it would not be possible for him to have used his left hand to touch MRN's buttock.
4.Evidence of flight as exhibiting consciousness of guilt (ts 222, 399).
In this regard the State says exhibit 7 shows that Mr Livingstone followed MRN off the train and across the platform to the exit points and he saw that she went to the transit office and then walked briskly away.
Further, they say exhibit 7 clip 12 and the stills of exhibit 8 show Mr Livingstone looked behind after he exited the foyer and when MRN was at the transit office complaining about his conduct and knowing that she was complaining he walked briskly away.
Additionally, the State say that when Mr Livingstone was later stopped by transit officers he made statements that he had to go and tried to step around the officers.
The State, as I understand their submissions, say that individually or in combination these actions constitute evidence of flight showing a consciousness of guilt and that evidence can be added into the circumstances as part of the circumstantial case.
5.Mr Livingstone's sexual interest in young females.
The State says Mr Livingstone has a sexual interest in teenage girls and a tendency to sexually touch teenage girls who are unknown to him in public places in circumstances where the touching was of a brief duration and of an opportunistic nature.
The State says the only reasonable inference to be drawn from the combined weight of the facts they have proven is that Mr Livingstone intentionally touched MRN's buttock.
The State say Mr Livingstone's evidence was just not plausible, particularly in relation to why he why he stood up at Woodbridge and did not get off at that station and his evidence relating to staring at the complainant.
A brief outline of the defence's submissions
Ms Prince says that MRN's evidence must be put in the context that she was 14 at the time of the incident, had changed her name as a result of issues with her father and had not had a 'good run' with males.
Ms Prince says MRN saw that when Mr Livingstone came down the carriage walkway and sat opposite her he had his mouth open, bottom lip protruding and was licking his lips and this led her to conclude that he was a bit weird and that coloured her perception of what occurred.
Ms Prince says there is nothing sinister in where Mr Livingstone sat. He was sitting there because he liked to sit in an area with more room and it was inappropriate for him to sit on the reserved priority seating.
Ms Prince points to the matters I have referred to at [116] to [128] of this decision as showing the unreliability of MRN's evidence.
Ms Prince said that MRN's evidence that Mr Livingstone was making gestures with his mouth and tongue has to be considered in light of his medical condition and exhibit 7 which shows that even when he was being spoken to by the transit officers after he had left the train he was also licking his lips and has a protruding bottom lip and that the gestures and expressions are a feature of his personality.
Ms Prince said that when the train arrived at Woodbridge the man in black got up first, the man in beige started to look like he was moving, MRN stood up and then Mr Livingstone stood up sometime after MRN.
Ms Prince says Mr White ultimately agreed that he couldn't recall if he called on Mr Livingstone to stop when he was in the foyer and there is no evidence at all that Mr Livingstone heard Mr White calling on him to stop outside. Ms Prince says there is no evidence to show that Mr Livingstone was aware MRN was complaining about his conduct when she went to the office and the CCTV footage shows he always walks at a brisk pace. Ms Prince also refers to other parts of the CCTV footage and stills which shows that Mr Livingstone often looks around as he walks.
Ms Prince says that insofar as the propensity evidence is concerned Mr Livingstone openly admitted that he had a sexual interest in female teenagers. She says the evidence has little probative value for the reasons referred to at [157]. In any event Ms Prince correctly submits that such evidence only goes to the likelihood of Mr Livingstone having intentionally committed the offence and by itself is insufficient to establish guilt beyond reasonable doubt.
Ms Prince says Mr Livingstone's evidence was straightforward and credible. He admitted things that were against his interest such as the sexual interest in teenage females and said that his evidence must be considered bearing in mind that he had some difficulties associated with his autistic condition and that at worst his testimony would raise a reasonable doubt and he should be acquitted.
Conclusion
The State's case is entirely circumstantial. No one saw Mr Livingstone touch MRN's buttock and the CCTV footage is inconclusive. It does not show the exact incident which led to this charge.
Whilst I accept that the still photographs taken from CCTV footage have probative value, a degree of caution needs to be exercised and I guard against placing too much emphasis on one still photograph as opposed to the totality of the CCTV evidence.
The first step in the process is to determine which facts I am satisfied the State has proven. I then ask myself from the combined weight of the facts that I am satisfied the State has proven is the only reasonable inference to be drawn that Mr Livingstone intentionally touched MRN's buttock.
The probative value of the evidence of flight is that in some circumstances it can allow an inference to be drawn that a person fled because of the awareness that he was guilty of the crime charged and therefore exhibited a consciousness of guilt of the offence charged. As a matter of law the fact that there are other explanations available for flight does not prevent the inference of guilt being drawn. It is for the tribunal of fact to determine whether to draw the inference of consciousness of guilt from the proven facts.
I do not find evidence of flight constituting consciousness of guilt in this case.
It has not been proven to my satisfaction that Mr Livingstone was walking at a brisker pace than his normal pace. I accept that the CCTV footage shows that he was walking at a brisker pace than some, but not all, of the other passengers shown on the footage, but without knowing the pace which Mr Livingstone normally walks I cannot say that the pace that he was walking at was more brisk than his normal pace.
As for looking over his shoulder I am not satisfied that exhibit 8 shows Mr Livingstone looking back as he goes through the foyer exit doors. The CCTV arguably shows him looking back, however Mr Livingstone had just made a right hand turn and I am not satisfied he was looking back to see where MMRN was or that he knew she was complaining about him having touched her.
Further, I am not satisfied that Mr Livingstone was aware that Mr White had called upon him to stop. Mr White couldn't recall if he called upon Mr Livingstone to stop when he was in the foyer. As to the two calls outside Mr White did not give evidence of how loudly he called. The train had just arrived, other people are in the vicinity, Mr White was outside and some distance behind Mr Livingstone and I am not satisfied that Mr Livingstone heard the call to stop or if he did understood that it was directed to him.
Mr Livingstone's interaction with the transit officers provides no support for the theory he was trying to flee because he knew that a complaint was being made about him.
I find at one stage, as he admitted, Mr Livingstone tried to step around one of the officers (he said he felt trapped). I find that Mr Livingstone was saying things such as he 'had to go' or 'you have no right to stop me.' The finding of those two facts, particularly in circumstances where he has a prior record and knows the officers are making inquiries about him does not lead me to infer that he was trying to flee let alone he did so as a result of any consciousness of guilt of the offence charged.
He waited with the officers for over an hour. The one step the State say he took to try and move around the guard does not satisfy me that he was trying to flee. I am not satisfied it was anything other than a momentary expression of his agitation because of the way he was being spoken to in full view of the public and his dislike of transit officers.
Whilst I have referred to each individual fact relied upon by the State as evidence of flight it is the combined weight of the facts I find proven that must be considered in determining whether to draw the inference that there was flight or attempted flight and if so was whether that allows the inference of consciousness of guilt to be drawn.
I do not draw the inferences from the combination of the facts I find proven, what Mr Livingstone said or did, that Mr Livingstone was either fleeing or attempting to flee or doing so because of a consciousness of guilt.
I ignore the evidence of so called flight. It is not one of the circumstances that I find proven to my satisfaction.
In relation to the crucial issue on whether MRN was touched on the buttock I am satisfied that she was. Notwithstanding the matters I have referred to in summarising her evidence, I accept her evidence that she was touched on the buttock as she stepped off the train and I accept that the touch was as a brief duration (not even a few seconds) and she was touched with the shape of a hand like four fingers, not a grab or a slap, but just a brief brush. The issue of whether she was touched on the buttock is an element of the offence and must be established beyond reasonable doubt. I am satisfied beyond reasonable doubt.
I am not satisfied that the CCTV footage shows that Mr Livingstone's eyes were focused on MRN as he walked down the carriage walk way. There is nothing about the manner in which he walks or the direction in which he is looking as he walks down the carriageway that lead me to be satisfied he had focused on MRN at that stage.
I am not satisfied that Mr Livingstone played with his crotch for the whole or any part of the trip to Midland for the reasons expressed in [122] to [124].
For the reasons expressed at [191] to [194] and [200] I am satisfied that Mr Livingstone was generally looking in MRN's direction for most of the trip and at some stage made eye contact with her to the extent that she believed he was staring at her. I reject Mr Livingstone's evidence that he did not make eye contact.
As to the making of the gestures with his mouth in circumstances where Mr Livingstone is autistic and the CCTV footage shows that when for example he was being spoken to by the transit guards he does lick his lips and his bottom lip tends to protrude, I am not satisfied that he was making inappropriate gestures with his tongue and lips.
I am satisfied that Mr Livingstone got up from his seat as soon as MRN got up from her seat as the train approached Woodbridge. The CCTV footage clearly shows that occurring. I reject his evidence that he did so because others were getting up en masse or that it was a reflex action (ts 339). I find that implausible given that he has generally been looking in her direction for most of the trip and inconsistent with his evidence that he finds teenage girls attractive and has an attraction to them (ts 376).
I find MRN walked to the right middle exit door and Mr Livingstone walked to the left middle exit door area (as the viewer looks at the CCTV footage on exhibit 7, clip 9) then to an area in the centre of the train between the right and left exit doors and shortly thereafter gets progressively closer to where MRN was standing.
At one stage for a brief period of time Mr Livingstone's hand was on the grab rail close to her but that occurred in circumstances of a moving train and people readying themselves to exit the train.
I find that Mr Livingstone's right hand was outstretched slightly as he begins to alight from the train as is shown in exhibit 10.5. Exhibit 10.5 is a still photograph and I am satisfied after examining exhibits 10.3, 10.4 and 10.5 and exhibit 7 that it is MRN's backpack that can be seen just in front of Mr Livingstone.
I find that the man in black was always beside MRN (on her left hand side, exhibit 7, clip 9 and clip 10 and exhibits 9.1, 9.2 and 9.3) and he emerges from the train before her (exhibit 7, clip 9 and clip 10, exhibits 9.4 and 9.5) whereas Mr Livingstone is behind MRN. I am satisfied beyond reasonable doubt that it is not a reasonable possibility that he or another deliberately or accidentally touched MRN's buttock.
I reject the State's contention that MRN's action in turning around and looking in the general direction of Mr Livingstone is consistent with her evidence that after she was touched on the buttock her 'walk stuttered'. There is a world of difference between turning around and your 'walk stuttering'. MRN did not refer to turning around as she got off the train or after she was touched. The CCTV footage shows that she did, however that does not establish any consistency with her evidence that her walk 'stuttered'.
Insofar as exhibit 7, clip 9 and exhibit 7, clip 10 are concerned I am satisfied that they show that the gentleman in black who was next to MRN (see also exhibits 9.1, 9.2, 9.3, 9.5 and 9.6) had his right hand up near his shoulder on the strap of his backpack immediately before and after he got off the train.
I am satisfied beyond reasonable doubt that as at 5 July 2016 Mr Livingstone had a sexual interest in teenage girls and a tendency to touch unknown teenage girls in a sexual manner.
Having assessed the evidence I am satisfied of the following facts.
1.As at 5 July 2016 Mr Livingstone had a sexual interest in teenage girls in that he found them attractive and had an attraction to them and had a tendency to touch unknown teenage girls in a sexual manner.
2.That Mr Livingstone was in the train carriage seated diagonally opposite MRN for the duration of the train journey from Perth to Midland.
3.Mr Livingstone did not know MRN.
4.During the course of the train trip Mr Livingstone was looking in the direction of MRN and he did more than just glance at her and at the very least at some stage made eye contact with her.
5.When MRN stood up as the train approached Woodbridge Mr Livingstone stood up almost immediately and followed in her general direction.
6.Mr Livingstone was physically in close proximity to MRN from Woodbridge and generally became closer to her as the train moved to the Midland.
7.As the train reached Midland Mr Livingstone was in close physical proximity to MRN and at the time she stepped from the train virtually immediately behind her.
8.As he left the train Mr Livingstone's left hand was at one stage outstretched.
9.As MRN stepped from the train to the platform her buttock was touched briefly by the 'shape of a hand like four fingers'. It was not a grab or a slap but a brief brush.
11.MRN complained immediately to transit officials.
Insofar as the sexual interest and tendency referred to in point 1, I am required to be satisfied of those matters beyond reasonable doubt. I am so satisfied. As to the touching referred to in point 9, it is an element of the offence and must be proven beyond reasonable doubt. I am so satisfied. In relation to the other facts referred to above whilst they are required to be proven to the courts satisfaction I am satisfied of each fact beyond reasonable doubt.
I must consider the weight to be given to the united force of all of those proven facts and not consider each fact individually.
From the combined weight of these proven facts I am satisfied beyond reasonable doubt that the only reasonable inference to draw is that it was Mr Livingstone who touched MRN on the buttock and he did so deliberately, not accidentally or inadvertently. I am satisfied beyond reasonable doubt that the State have excluded as a reasonable possibility each of the propositions that MRN was not touched and that she was touched by a person other than Mr Livingstone and that the touching was accidental.
I am satisfied beyond reasonable doubt both that the deliberate touching of MRN's buttock constituted an indecent dealing and that at the time of that dealing MRN was over the age of 13 and under the age of 16.
The State have satisfied me beyond reasonable doubt of each of the three elements of the charge and I therefore find Mr Livingstone guilty of the charge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
ASSOCIATE TO JUDGE BOWDEN31 AUGUST 2018
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