Verma v Lea
[2022] NTSC 18
•4 March 2022
CITATION:Verma v Lea [2022] NTSC 18
PARTIES:VERMA, Nitin
v
LEA, Ian
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 26 of 2021 (22109834)
DELIVERED: 4 March 2022
HEARING DATE: 28 February 2022
JUDGMENT OF: Kelly J
CATCHWORDS:
APPEAL under the Local Court (Criminal Procedure) Act against conviction for assault – whether verdict contrary to the evidence unsafe and unsatisfactory – date on Information not a material particular of the charge – submission by prosecutor on the effect of the evidence not a material particular of the charge – trial judge not bound to have a reasonable doubt as to the guilt of the appellant – appeal dismissed
FN v The Queen [2021] NTCCA 5; Foster v The Queen [2021] NTCCA 8; GAX v The Queen [2017] HCA 25; 344 ALR 489; Lynch v The Queen [2020] NTCCA 6; Pell v The Queen (2020) 268 CLR 123; PW v The Queen [2020] NTCCA 1; SKA v The Queen [2011] HCA 13; 243 CLR 400; Tyrell v The Queen [2019] VSCA 52; Willcocks v The Queen [2021] NTCCA 6; WGC v The Queen [2007] HCA 199 at [43]; 233 CLR 66; 241 ALR 199 referred to
REPRESENTATION:
Counsel:
Appellant:R Murphy
Respondent: S Thomas
Solicitors:
Appellant:Murphy & Associates
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Kel2208
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINVerma v Lea [2022] NTSC 18
No. LCA 26 of 2021 (22109834)
BETWEEN:
NITIN VERMA
Appellant
AND:
IAN LEA
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 4 March 2022)
Background
On 23 August 2021, the appellant pleaded not guilty in the Local Court to two charges of aggravated assault. On count 1, in summary, the Crown alleged that the complainant was on the dance floor at a venue in Alice Springs with her niece when the appellant put his hand up the back of her dress, touched the right side of her leg, and slid his hand up her leg until he touched the bottom of her underwear. She immediately slapped his hand away and said, “Do not ever do that to me again.” He put his hands up and backed away, giving her a “cheeky” grin. The circumstances of aggravation alleged were that the appellant was a male and the complainant was a female, and that he indecently assaulted her.
On count 2, in summary, the Crown alleged that, about 10 minutes later, after she had gone to the bar, the appellant followed the complainant back onto the dance floor, came up behind her and started rubbing and pushing his backside against her, apparently attempting to get her to dance with him. She said to him, “No, you need to stop. I asked you before to leave me alone,” and the appellant again put his hands up, and made the “weird style face” at her.
The complainant immediately told family members, including her niece and her brother, what had occurred. The niece had a short video of family members dancing which shows the defendant in a distinctive jacket. Later that evening the complainant made a formal complaint to police.
At the trial the complainant gave evidence that she was certain the person who touched her was the appellant. She turned around straight away and saw him right behind her. She recognised him as the person who had known her name and address earlier in the evening. When she had asked him how he knew those things, he told her, “I’m a copper.”
One of the exhibits at the trial was CCTV footage of the dance floor which included footage taken between 23.42.08 and 23.42.33. The Crown also tendered a series of stills taken from the CCTV footage including stills from that time period.
The decision at trial
The trial judge found the appellant not guilty of count 2, saying he could not be satisfied beyond reasonable doubt that the contact was intentional. The appellant was found guilty of count 1, but the trial judge was not satisfied beyond reasonable doubt of the circumstance of aggravation that the complainant had been indecently assaulted.
In his reasons for decision the trial judge referred to the Crown allegations, summarised above, and then referred to the defence case saying, essentially, that the defence did not suggest that the assault on count 1 had not happened, but rather that it was not the defendant who was responsible.
The trial judge then referred to the complainant’s evidence in some detail in the course of which his Honour made various references to things that could be seen in the CCTV footage and said:[1]
The defendant relies heavily on the CCTV footage to cast doubt on [the complainant’s] evidence. The CCTV is not determinative of what took place. It assists – it adds to the evidence but it has its limitations. The sound is distorted to the effect that no words from anyone can be heard. The lighting distorts the clarity as the lighting changes – possibly with the beat of the music. The dance floor is crowded with people moving to the music so that only those immediately in front of the stage can be seen with clarity. The initial contact between the defendant and [the complainant] seems consistent with her evidence.
An examination of the stills taken from that footage to aid comprehension of that footage supports these observations by the trial judge.
The trial judge’s reasons for his decision to find the appellant guilty on count 1 were expressed as follows:[2]
I have no hesitation in accepting the evidence of [the complainant] regarding the touching of her leg. Her evidence is credible and reliable. She was able to remember the conversation with the defendant. She could easily identify the defendant because of his distinct jacket. ... She had no reason to tell an untruth. She reported the incident to the police immediately and made a sworn statement.
His Honour then went on to deal with count 2 and the circumstance of aggravation of indecent touching on count 1, finding the appellant not guilty of both.
The Appeal
The appellant appeals against the conviction on count 1 on a single ground: “the verdict is contrary to the evidence, unsafe and unsatisfactory.”
Principles
In Foster v The Queen[3] the Court of Criminal Appeal set out the principles applicable to an appeal on the ground that the verdict is contrary to the evidence, unsafe and unsatisfactory.
The principles to be applied in appeals of this nature are well established and set out by this Court in PW v The Queen in the following terms (citations omitted):
In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
“… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The plurality explained the application of the test as follows:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks “credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen, Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[4]
In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen, and does not impose any stricter test.[5]
Appellant’s contentions
The appellant relied on the CCTV footage of the dance floor and the evidence of the complainant’s niece, EF. EF gave evidence that the assault on the complainant occurred after an altercation between the complainant’s brother and a man in a checked shirt. However, according to the appellant, the Crown case was that the assault occurred between 23.42.10 and 23.42.12 when the CCTV shows the appellant as having bobbed down behind the complainant. This happened before the altercation between the complainant’s brother and the man in the checked shirt.
In written submissions, the appellant submitted that:
“any reasonable analysis of the evidence can lead to only 2 conclusions (1) that if the assault had of occurred (sic) after midnight and is therefore not the assault for which the Appellant had been charged and convicted, or (2) that the complainant’s evidence is so different from that of EF and the CCTV footage that it is unreliable and incapable of meeting the criminal standard of proof. In either case, it is submitted that the verdict of guilty is contrary to the evidence, unsafe and unsatisfactory.”
In oral submissions on the hearing of the appeal, the appellant maintained the first point (with modification) but radically altered the second point. Rather than contending that the complainant’s evidence was very different from that of EF or the CCTV footage, the appellant contended that her evidence was corroborated by both the CCTV footage and the evidence of EF. In those oral submissions, the appellant relied on evidence from the complainant to the effect that the CCTV footage did not show the assault; that the assault had occurred on a different part of the dance floor; and that it had happened between midnight and 1.00 am, not in the period shown in the CCTV footage. That would put it after the altercation between the complainant’s brother and the man in the checked shirt, as EF had said.
The appellant contended that although the reasons for decision contain no specific statement to that effect, the trial judge must have rejected this evidence, and his Honour gave no reason for having done so. The submission was that one can infer that the evidence was rejected because the trial judge could not otherwise have found the appellant guilty of count 1.
The reasoning behind this proposition is somewhat elliptical. The appellant contended that the Crown case was that the assault was captured on the CCTV footage between 23.42.10 and 23.42.12, in particular as seen in stills 10 to 13 inclusive, taken from that footage. The appellant contended further that this was a material particular of the offence which the Crown was obliged to prove beyond reasonable doubt, so that if, as the complainant said in evidence, the CCTV footage did not show the assault, the Crown had failed to make out its case and the trial judge ought to have found the appellant not guilty.
The appellant was obliged to concede that there was nothing in the Information or the Crown Facts to suggest that it was a particular of the alleged offence that it was constituted by the conduct in the CCTV footage. Nevertheless, counsel for the appellant submitted that the provision by the Crown to the defence of the following documents had the effect of rendering it a material particular of the Crown case that the offence was constituted by the conduct in the CCTV footage:
(a)the Information for each of the two offences;
(b)the statement of Crown Facts;
(c)images 10 to 13 from the CCTV (and the CCTV footage itself); and
(d)the Exhibit List.
This contention cannot be accepted. The appellant could point to no document in which the Crown stated that the offence was constituted by the conduct seen in the CCTV footage between 23.42.10 and 23.42.12 (or at all). To the contrary, the Crown Facts provide particulars of the conduct as the defendant’s hand going up the back of her dress, up the right side of her leg and touching the bottom of her underwear. Similarly, in opening the Crown case at the trial, the prosecutor said:
Both of those charges – well, perhaps I’ll just be a bit more particular about them. They are said to have occurred on 20 March 2021. The first is an unlawful assault. The accused allegedly unlawfully assaulted [the complainant] – that is, contrary to s 188(1) of the Criminal Code and that the said unlawful assault involved the following circumstances of aggravation, namely: 1) that [the complainant] was a female and that the said Nitin Verma was a male; sub-paragraph (2), that [the complainant] was indecently assaulted – that is, contrary to s 188(2) of the Criminal Code. The allegation there is, your Honour, that the accused indecently touched [the complainant] on the leg and raised her skirt or put his hand under her skirt.
The allegation concerning charge number 2 is that, at the same time, that is on 20 March 2021, at Alice Springs in the Northern Territory, Australia – (2) unlawfully assaulted [the complainant] contrary to s 188(1) of the Criminal Code and that the said unlawful assault involved the following circumstances of aggravation, namely that [the complainant] was a female and that the said Nitin Verma was a male – subparagraph (2) that [the complainant] was indecently assaulted and that is contrary to s 188(2) of the Criminal Code. And the allegation there is that the accused twerked or grinded his buttocks against the complainant in this case.
There is no mention in any of the documents relied on by the appellant to the offence being constituted by the conduct in the CCTV footage. In fact the only reference to that footage in the documents supplied by the Crown before the trial and listed above, is a single reference to the CCTV footage as a potential exhibit in the Exhibit List. The fact that the Crown indicated that it was adducing the CCTV footage in evidence does not make it a material particular of the offence that the conduct constituting the charged offence was that shown in the CCTV footage, let alone between those precisely nominated times. There was scope for the CCTV footage to have evidentiary value without it showing the moment of the assault. For example, as the learned trial judge found, it had corroborative value showing the appellant following the complainant off the dance floor and “twerking” towards her in the manner she described in evidence.
The appellant submitted that the inference that it was a material particular of the charge that the conduct constituting the charge was that shown on the CCTV footage which was tendered, was strengthened by the fact that the Crown did not obtain and tender CCTV footage from later in the evening, as presumably, it could have. One cannot infer from the fact that the later CCTV footage was not produced that it was a material particular of the charge which the Crown had to prove beyond reasonable doubt, that the conduct constituting the charged offence was that shown in the earlier CCTV footage.
The appellant also relied on a submission by the prosecutor to the learned trial judge during the viewing of the CCTV footage.[6] At that point in the trial the CCTV footage was being played; the prosecutor was submitting to the judge that the particular segment of the footage then being viewed showed the appellant bobbing down and coming up behind the complainant; and the trial judge was disagreeing saying, “Play it again. I’ve watched it four times now. He faces her.” Finally, his Honour said:
Right. Now, let’s be clear about this. Image 10 where she has her back to him and he is facing her and bobs down, this is the moment that you say he put … his hand up her right side of her leg?
The prosecutor answered, “It is, yes.”
His Honour repeated:
So to be very clear about this, this is … the point where you say count 1 occurs?
The prosecutor answered, “Yes.”
The appellant submitted that this statement by the prosecutor demonstrates that the Crown case was that the offence in count 1 was constituted by the conduct shown in the CCTV footage. The appellant contended that the effect of that is that if the Crown did not establish beyond reasonable doubt that the offending conduct was shown in that part of the CCTV footage (and the still image number 10), the trial judge was obliged to have found the appellant not guilty. The appellant then relied on the complainant’s evidence that the CCTV footage did not show the offence being committed – it was committed somewhat later, in a different part of the dance floor. That contention must be rejected. One cannot elevate a submission made by the prosecutor as to what the evidence shows, into a material particular which constitutes an element of the offence. The prosecutor was not purporting to provide a particular of the charge; he was making a submission about the effect of the evidence, at a late stage of the trial, during the evidence of the final witness called by the Crown.
The second related contention by the appellant was that the complainant’s evidence that the assault happened between midnight and 1.00 am, as corroborated by the CCTV and the evidence of EF about the timing of the assault relative to the altercation between the complainant’s brother and the man in the checked shirt, meant that if the assault happened at all it happened on 21 March 2021 and not 20 March 2021 as specified in the complaint and so was “not the assault for which the appellant was charged and convicted”.
As counsel for the appellant conceded, that submission depends on acceptance of the proposition that the date specified in the Information (20 March 2021) was a material particular of the charge which the Crown was obliged to prove beyond reasonable doubt in order to succeed. That contention cannot be accepted. In WGC v The Queen[7] Kirby J set out the general; rule in the following terms:[8]
General rule: non-materiality: Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt in order to make good its accusation. So much was stated by Atkin J in Severo Dossi, although his Lordship acknowledged that there were exceptions to the general rule:
“From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. ‘And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment’ ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment.”
[citations omitted]
While acknowledging the general principle, the appellant submitted that “the way the case was run in the court below makes the date a material particular”. That submission cannot be accepted. The appellant provided no specific details about how the running of the case in the court below transformed the date on the Information into a material particular of the offence. The date is not a material matter unless it is actually an essential part of the alleged offence. Here, there is nothing about the date that would make it an essential part of the offence, which was assault. It was not a case, for example, where the age of the victim was an element of the offence which, in some circumstances, could render the date material.
The appellant has failed to establish that the date on the indictment was a material particular of the charge on count 1and has failed to establish that the Crown ever particularised the conduct in the offence as the conduct shown in the CCTV footage, let alone establish that that was a material particular which the Crown had to establish beyond reasonable doubt in order to succeed.
Further, the appellant has shown no cogent or logical reason to disturb the finding of the trial judge that the complainant was a credible and reliable witness. It was open to the trial judge, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the accused was guilty of count 1.
In lengthy written submissions, the appellant contended that there was material in the CCTV footage which did not seem to match the description of the appellant’s behaviour at the time of the offence – but ended up relying on the complainant’s evidence that the CCTV footage showed a different time and place and not the offence being committed.
In any case, it would not be sufficient for the appellant to show that there was material which might have been taken by the trial judge to be sufficient to raise reasonable doubt. This is not a case in which the trial judge must, as distinct from might, have entertained a doubt about the appellant’s guilt.
The ground of appeal specified in the Notice of Appeal must fail.
At the hearing of the appeal the appellant made a rather half-hearted submission to the effect that the prosecutor’s failure to adduce evidence of the CCTV footage between midnight and 1.00 am deprived the appellant of a fair trial. However, defence counsel made no complaint about that at the trial, and there is no such ground of appeal on the Notice of appeal. The appellant foreshadowed an application to amend the Notice of Appeal to include a ground complaining of denial of procedural fairness. No such application was made.
The appeal is dismissed.
[1] Transcript 10.09.21 at p 4
[2] Transcript 10.09.21 at p 6
[3][2021] NTCCA 8 at [2] and [3]
[4] PW v The Queen [2020] NTCCA 1, [107]-[108] per Kelly J and Riley AJ. See also SKA v The Queen [2011] HCA 13; 243 CLR 400, [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489, [25]; Lynch v The Queen [2020] NTCCA 6; FN v The Queen [2021] NTCCA 5; Willcocks v The Queen [2021] NTCCA 6.
[5]Pell v The Queen (2020) 268 CLR 123, [44]-[45]. See also Tyrell v The Queen [2019] VSCA 52 at [70].
[6]Transcript 23 August 2021 p 81
[7] [2007] HCA 199 at [43]; 233 CLR 66; 241 ALR; 241 ALR 199
[8] Kirby J was in dissent. However, there was no dispute about the basic principle articulated in this passage. The majority proceeded on the assumption that the date in an indictment is not a material particular which must be proved beyond reasonable doubt and examined whether the defence had made it so by disputing the date on which the offence was said to have taken place for the purposes of a statutory defence. The majority held that the fact that the date is an essential element of a statutory defence does not render it an essential fact or element of the offence. An accused cannot transform the date particularised into an essential fact simply by disputing the date.
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