District Court New South Wales Medium Neutral Citation: Savidis v DPP [2020] NSWDC 281 Hearing dates: 05 June 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 58 Catchwords: CRIMINAL LAW – conviction appeal – sexual offences – indecent assault – challenge to Magistrate's acceptance of the complainant's credibility Legislation Cited: Crimes Act 1900 (NSW), ss 61L Cases Cited: De Silva v The Queen [2019] HCA 48 Dyason v Butterworth [2015] NSWCA 52 Category: Principal judgment Parties: Mr C Savidis Director of Public Prosecutions Representation: Solicitors: Aubrey Brown Lawyers for the appellant Solicitor for the Director of Public Prosecutions File Number(s): 2019/222064 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 12 March 2020 Before: Magistrate S Olischlager File Number(s): 2019/222064 Judgment BACKGROUND 1. This is an appeal against the appellant's conviction by the Gosford Local Court on 12 March 2020 on a charge of indecent assault, contrary to s 61L of the Crimes Act 1900 (NSW). 2. The charge was that on 31 July 2018, in Wyoming (a suburb in the Central Coast), the appellant indecently assaulted the complainant. THE CROWN CASE 1. The Crown's case, simply, was that the complainant, who was 19 years old at the time, went to sleep and was awoken when she felt someone touching her vagina. When she turned around, she identified the appellant. 2. At the trial, the Crown relied evidence from a police officer and the complainant and also Facebook message screenshots which were relied upon as admissions by the appellant to the offending conduct. The admissions were, in substance, apologies by the appellant in combination with promises that he would not engage in the conduct (for which he apologised for) again. As will be noted, at trial, there was a contest as to what it was he was apologising for. THE CROWN'S EVIDENCE The complainant's testimony 1. The complainant gave evidence that in June or July 2018, she attended a party with friends at Berry Head Road in Wyoming. It was at the home of a male friend of hers, Jamie Morrison. She did not drink at the party. She was later challenged on this evidence, but she maintained that she did not drink that night. She recalled that she went to bed in the early hours of the morning (around 1:00am) since she could not otherwise find a way home. She chose a bedroom upstairs, down the end of the hallway, in a queen size bed. 2. She said she took her dog with her. This was explicable (to use her words) to a sense of 'paranoia' in her. The complainant asserted (in Facebook messages) that she had been molested by her grandfather growing up. She was challenged in her evidence about a dog being in the room with her but she maintained that the dog was in there. 3. Under cross-examination, it was put to the complainant that she, the appellant and Jamie Morrison went into the same bedroom where she went to bed and they were all talking and they all fell asleep in there. The complainant denied this. 4. When she awoke, the complainant was hyperventilating. She noticed that someone was in the bed with her. She felt that person touching the middle of her vagina from the outside of her undies. Her pants were still done up. She said that it was the force of the touching that made her wake up. 5. When she turned around, she identified the appellant. His hands were on her pants. She recalled him saying "Sorry Saba". She was challenged that he said this, but she maintained that he did. She recalled him asking her whether she wanted to leave the bedroom and she said yes. 6. Under cross-examination, she said that after the appellant had said sorry, she asked him what he was doing. She added that she told him to get out after he had asked her if she wanted him to continue. She accepted that she went back to sleep and stayed in the room for 4 hours. 7. Later in the morning, when she got up, others had left, but the complainant remained with Jamie Morrison's mother, Janice. The complainant explained to her what happened. Asked for detail about this conversation under cross-examination, the complainant recalled saying that she was scared. She woke up to "Sav touching me last night. I don't want to think he's a bad person because I care about Sav but I've also experienced things when I was younger with my grandfather and I'm finding it very hard to accept what happened this morning. I don't feel like being here." 8. Under cross-examination, she recalled Janice suggesting that she talk to Jamie (Morrison) and Jordy (Morrison) and for them to go to the police. Under cross-examination, when she was asked if she had not told the police that Janice had 'dismissed' the complaint, the complainant clarified that she had told the police that she was not too surprised at what Janice had said. 9. Counsel for the appellant put it to the complainant that she never made any complaint to Janice about the appellant touching her, but she maintained that she did. 10. The complainant was asked why she did not complain earlier. She said she was struggling to deal with what happened. 11. The complainant said that the following day, she stayed with a friend, Jasmine. They went to Matthew Genevive's house and walked in, but she recalled that they were asked to leave. She recalled that the appellant was at this house, but she said that she did not speak with him while he was there: she had messaged him. Facebook messages 1. She sent to, and received from, the appellant various Facebook messages (which were Exhibit 1). She identified the appellant's Facebook account for this purpose from the appellant's phone number. The dark coloured messages were hers; she identified that the responses were the appellant. The appellant did not dispute that he was identified in those messages. 2. In some of those dark messages, she referred to the first name of the appellant. 3. The complainant had previously communicated with the appellant via Facebook. 4. As noted, the substance of the Facebook messages indicated that the complainant wanted to indicate to the appellant that it was "wasn't okay" to engage in the conduct. The complainant had previously been molested by her grandfather, which has disturbed her. The appellant apologised, acknowledged that it was "totally out of hand and very disrespectful" and promised that it would not occur again and offered to do what he could to help her. Despite multiple requests made to the appellant to explain why he engaged in the conduct, the appellant could not explain why he engaged in the conduct. 5. Under cross-examination, it was put to the complainant that what she was complaining about was the appellant being behind her in the same bed and that she had not actually accused him in the Facebook messages about his touching her on her vagina. She indicated that this is what the message intended. 6. More generally, it was put to the complainant that she was simply dreaming that the appellant had touched her, that she had the opportunity to complain to him, in person about what he had done, but did not complain to anyone about his conduct until complaining to the police. Evidence of complaint 1. Senior Constable Ryan was called. Senior Constable Ryan gave evidence of the complainant reporting the alleged offending to her, on 28 June 2019, about a year after it had occurred. The officer also said that the content of the fact sheet was based entirely upon the complainant's account; and that although she had made inquiry of two other persons, they did not get back to her. 2. The officer also accepted that the complainant had informed the officer that the mother (to whom the complainant had also given an account of what had happened) had 'seemed to' dismiss the complainant's account. THE APPELLANT'S CASE Prior good character 1. The Crown conceded that the appellant was of good character. The appellant's evidence 1. The appellant gave evidence. Materially, he said that he, Jamie Morrison and the complainant went upstairs at around 1:30am and they were talking for quite a while. He recalled having had three or four beers earlier in the evening: he had brought his car over in anticipation that he might drive home; but, in the end, no one needed a lift. The three of them were sitting on the bed. Towards 3:00am or 4:00am, he had fallen asleep on the bed they had all been sitting on. He said he fell asleep. The Magistrate understood that by this, the appellant was saying that he fell asleep before the complainant and Jamie Morrison. 2. He recalled being awoken by the complainant, who told him to get out. He then went to sleep on the couch with Jamie. Later in cross-examination, he said that at the time that the complainant asked him to leave, Jamie was not in the bedroom at that time. 3. He said that the next day, he and Jamie were given a lift to go to Matthew Genevive's place. He recalled seeing the complainant there. He saw her there, with her friend, Jasmine. The appellant and his girlfriend, Tia, had to leave to go to a family function and it was then that he recalled receiving messages from the complainant. He understood that she was complaining about her waking up and finding that he was behind her. 4. He said that at no stage had she complained about his touching or rubbing her on the vagina. To the extent that he expressed apologies on the Facebook messages, he was influenced by remorse because of her reference to being molested by her grandfather. To the extent that he admitted being "fucked", this was simply a reference to his feeling tired or drained. 5. He denied ever touching her inappropriately. 6. The appellant was cross-examined. In substance, the complainant's version of what occurred was put to him, but the appellant denied it. In particular, the prosecutor had suggested that his denials at touching the complainant was influenced by his concern as to what his then girlfriend might think. The appellant responded that his girlfriend was aware of the allegations but did not believe them. Janice Bryant 1. This witness is Jamie Morrison's mother. She was at the home with the party until she left at 11:00pm and returned home the following day at around 9:00am. 2. The import of her evidence was to say that the complainant approached her and said to her that she had woken up in bed with the appellant and that this had triggered a memory of her being sexually abused by her grandfather. 3. She rejected the suggestion that the complainant had complained to her about the appellant rubbing her vagina or doing anything inappropriate to her. 4. She also rejected the suggestion that she advised the complainant to speak to Jamie Morrison, or Jordy Morrison, or the police. 5. Under cross-examination, Janice Bryant was asked her recollection about leaving the party at 11:00pm and returning at 9:00am the next morning. She explained that she was going to see her partner, who, at the time was living at Yattalunga. She was challenged generally about her capacity to recall the events a year before. She maintained that her memory about this memory was reliable. THE MAGISTRATE'S REASONS 1. After reciting the evidence, the learned Magistrate recognised that the Crown bore the onus of proof. The Magistrate also recognised that the Court was confronted with two competing accounts. The Magistrate found that the complainant was "genuine" and was unshaken in her views about what had occurred. The Magistrate also found that the appellant was "steadfast" in his denial of the complainant's account. 2. The Magistrate gave himself a Liberato direction. 3. The Magistrate ultimately preferred the complainant's evidence. His Honour found that the content of the Facebook messages "did not sit" with the appellant's explanation that he was simply lying behind her. 4. His Honour noted his evidence that he fell asleep first. If that evidence was accepted, it must mean that the complainant positioned herself to sleep to the side of the appellant; and if that was so, there would be nothing for the appellant to apologise for – given that the circumstance of her being shocked and upset to find him behind her was due to a circumstance beyond his control. That undermined the cogency of his account. 5. Similarly, the content of the appellant's Facebook messages were not reconcilable with the appellant's version: falling asleep in a bed not occupied by someone else who was asleep could not be regarded as being "disrespectful". 6. The Magistrate returned to the complainant's account and addressed the complaint. The Magistrate acknowledged that there were many reasons for late complaint and the lateness did not undermine her credibility. 7. The Magistrate acknowledged the appellant's evidence of good character, but noted that it was often the position, in cases of that kind, that good character evidence is adduced by the offender. The Magistrate ascribed little weight to it. 8. The Magistrate acknowledged that Ms Bryant was honest in her account of what the complainant reported to her. In one sense, her evidence corroborated the complainant's account that she was upset the following morning; but the Magistrate found she may not have understood the gravity of the complaint being made. The Magistrate also found that the discrepancy as between the complainant's account, and Ms Bryant's account, did not undermine the former's credibility. THE APPEAL The appellant's contentions 1. The appellant acknowledged the Magistrate's advantage in viewing evidence "first-hand", but argued that no adverse credibility finding was made against either the complainant or the appellant; or at least any adverse credibility finding based upon the Magistrate's assessment of the demeanour of these witnesses. 2. The appellant argued that the Magistrate erred when saying that, in order to adjudicate the appellant's guilt, the Magistrate simply had to accept the complainant's evidence beyond reasonable doubt. 3. The appellant argued that, when confronted with competing versions of what occurred, the Crown had to establish that the appellant's version could not reasonably be true. The appellant argued that the Crown was not able to disprove the appellant's version because: 1. the complainant was someone with a history of bad dreams and her understanding of what occurred fell into the category of a bad dream; 2. she mistakenly drew a conclusion as to what had occurred; 3. the Facebook messages did not suffice to corroborate her account that she was touched. The Facebook messages did not, in fact, contain any admission by the appellant, or any express complaint by the complainant, that he touched her on the vagina; and 4. such apologies as were made in the Facebook messages by the appellant were consistent with his version of his merely waking up behind her. Nature of appeal 1. Contrary to the appellant's submissions, for the appellant to have his conviction set aside, it is necessary for the Court to be satisfied that the Magistrate's decision was wrong (Dyason v Butterworth [2015] NSWCA 52 at [28]). In saying that, there are a number of ways in which error may be established. 2. An appeal of this kind is in the nature of a rehearing. 3. The appellant correctly acknowledges that, in going about its task, this Court must pay deference to the views of the Magistrate in the sense of the Magistrate's being able to see and hear the witnesses and develop a feel for the trial. That said, the appellant is correct to note that the Magistrate formed no adverse credibility finding against the appellant, based upon demeanour. 4. Although it was arguably unnecessary to do so, in a trial by judge alone [1] , the learned Magistrate gave himself a Liberato direction. At any rate, his Honour scrutinised, very carefully, the complainant's evidence. 5. The Magistrate accepted the complainant as a witness of truth. Moreover, he preferred the complainant's account over the appellant's account, as he was entitled to do. 6. This was not a 'word for word' case alone. The Crown case was supported by broadly contemporaneous Facebook messages, a contemporaneous report (to Ms Bryant) and the complaint to the police a year later which led to the institution of these proceedings. 7. The Magistrate found that, to differing degrees, this other evidence enhanced the credibility of the complainant's account and reduced the credibility of the appellant's account. 8. Thus, although they did not in turn directly refer to the appellant's touching the complainant on the vagina, the Magistrate reasoned that the content, and the context in which the Facebook messages were sent, indicated the appellant's consciousness of impropriety that extended beyond the complainant waking up to find the appellant lying on the same bed behind her. I do not see any error in the Magistrate finding that this supported the complainant's case and helped the Crown to disprove the appellant's account. Indeed, I have no doubt, that read in context, the communications in the Facebook messages went well beyond any complaint about the complainant waking up to find the appellant lying behind her: the complainant was wanting to understand why the appellant acted in the way he did. I consider it extremely implausible that the appellant understood her to be simply asking him why he was lying behind her when she woke up. The Facebook messages were highly probative and, in my view, the appellant's attempts to explain them away were not only highly implausible, but substantially eroded his credibility. 9. The Magistrate acknowledged that the complainant's report to Ms Bryant corroborated the sense of upset about which the complainant complained. True it was, as the Magistrate acknowledged, that, a year on, Ms Bryant's version of what was said differed from the complainant's version of what she said to Ms Bryant, but as the Magistrate acknowledged, there are reasons why complainants who are subject to conduct of this kind alleged may delay in making complaints. The same reasons may explain why, when some complaints are made, they may not be as fulsome as complaints made to others. I do not read the content of Ms Bryant's evidence of what the complainant informed her as being inconsistent with the complainant's complaint of touching. 10. I would also add that the Magistrate's view that Ms Bryant may not have appreciated the import of what the complainant had reported to her was well open on the evidence. Even if her account of what the complainant told her was accepted, it struck me as somewhat strange that it appeared to have little impact upon Ms Bryant, in a context where she was aware that the complainant was 'upset', to learn that a man in her house was lying in bed alongside the complainant; without in any real way piquing her curiosity. I am not surprised that the complainant would later characterise Ms Bryant's conduct to Senior Constable Ryan as amounting to a 'dismissal' of her complaint. 11. Having read the record, considered the appellant's submissions and acknowledging the Magistrate's greater sense of feel for the trial – the Magistrate gave ex tempore reasons – I am satisfied that the elements of the charge were made out to the requisite standard. Moreover, I see no error in finding that the Crown had made out its case beyond reasonable doubt. 12. The appeal against conviction is dismissed. ********** Endnote 1. De Silva v The Queen [2019] HCA 48 at [9]-[10]. 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