District Court New South Wales Medium Neutral Citation: Beaton v R [2021] NSWDC 720 Hearing dates: 27 October 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) The appeal is dismissed (2) The finding of guilt is confirmed (3) The orders of the Local Court are confirmed Catchwords: APPEALS — Jurisdiction of appellate court — District Court APPEALS — Nature of appeal — Appeal by rehearing — Whether rehearing de novo APPEALS — Nature of appeal — Functions of appellate court APPEALS — Orders on appeal — Powers of appellate court APPEALS — Right of appeal — Scope of right — Error of law APPEALS — Right of appeal — Scope of right — From "judgment" Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Allesch v Maunz [2000] HCA 40 Charara v R [2006] NSWCCA 244 Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 Dyason v Butterworth [2015] NSWCA 52 Lunney v Director of Public Prosecutions [2021] NSWCA 186 Category: Principal judgment Parties: Shane Beaton (Appellant) Regina (Respondent) Representation: Derek Shridhar (counsel for the Appellant) Julie Sweeney (solicitor for the Respondent) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00175639 Publication restriction: Statutory non-publication order of the name of the complainant and of any information which may enable their identity to be ascertained Decision under appeal Court or tribunal: Goulburn Local Court Jurisdiction: Criminal Date of Decision: 17 August 2021 Before: Beattie LCM File Number(s): 2020/00175639 REVISED EX TEMPORE JUDGEMENT INTRODUCTION 1. Shane Beaton was convicted in a Local Court at Goulburn on 17 August 2021 by Magistrate Beattie of an offence of sexually touching another without their consent contrary to s 61KC(a) Crimes Act 1900. The conviction followed a defended hearing in which the appellant was represented by counsel. The appeal from that conviction was lodged on 14 September 2021 within the 28 days provided within the Crimes (Appeal and Review) Act 2001 for appeals of this nature to be lodged as a matter of right. THE NATURE OF THE APPEAL 1. It had been thought by many judges of this Court that the nature of these appeals required the Court to embark upon their own review of the entirety of the evidence before the magistrate to come to a view upon the evidence, bearing in mind the benefit that the magistrate had at first instance of assessing the witnesses before the Court both with regard to their accuracy and their honesty. The Court was permitted to look at the magistrate's judgement to draw whatever assistance it might provide in the task required of it. 2. The statement of principle as it was understood governing the conduct of those appeals was found in the decision of Charara v R [2006] NSWCCA 244 and specifically the judgement of President Mason. 3. Since then there have been two decisions in the Court of Appeal which have provided a qualification to at least what I had always understood to be the obligation upon the Court hearing an appeal from conviction entered by a magistrate. The first of these is Dyason v Butterworth [2015] NSWCA 52 and in particular the judgement of McColl JA. Her Honour, with whom Barret JA and Gleeson JA agreed, said when summarising the nature of an appeal under s 18(1) Crimes (Appeal and Review) Act 2001, which this is, at [27]: "'... [The appellate] judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23])." 1. At [28]: "The powers of the District Court on a s 18(1) rehearing are exercisable" - and the next is my emphasis - "where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand." 1. In Lunney v Director of Public Prosecutions [2021] NSWCA 186 Justice McCallum, with whom Justices Meagher and White agreed, when dealing with appeals under this Act referred first of all to the judgement of President Mason explaining the function of the appellate court under s 11(1) Crimes (Appeal and Review) Act 2001, his Honour's guidance was found at paras [15] to [18]. Thereafter her Honour continued at [23]: "Consistently with those remarks, the applicant accepts that his appeal did not require the prosecutor to prove the assault charge afresh by calling the witnesses again. He contends, however, that the judge had to consider, on the basis of the evidence given in the Local Court, whether the prosecution had discharged its onus of proof beyond reasonable doubt." 1. At [24]: "At the same time, the applicant accepts that the jurisdiction of the District Court in a conviction appeal under s 11(1) is error-based and that he was accordingly required to demonstrate in the District Court that the decision of the magistrate was the result of some legal, factual or discretionary error. I note that, in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, this Court was divided on the issue of whether an appellant in a conviction appeal under s 11(1) must establish error. As it turned out, the issue did not have to be determined in that case. As a result of the position taken by the applicant, it does not have to be determined here either. The applicant's submissions accepted that the jurisdiction is error-based, citing the decision of the High Court in Allesch v Maunz [2000] HCA 40 at para [23]. Had it been necessary to decide the question, I would have taken the same view for the reasons given by Basten JA in AG." 1. The reference there is to the decision of the Court of Appeal in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. And thus though the point was conceded rather than argued by counsel in Lunney (ibid), at least at this stage, those statements are binding on this Court. THE APPEAL 1. The bundle which I shall mark Exhibit A in this appeal assembled by the Crown is comprised of: the all grounds appeal instruction sheet - I might observe that the term all grounds is no longer apposite - the legislation refers to conviction appeals - then there is the notice of appeal, court attendance notice, and transcript of evidence on 11 December 2020, 23 March 2021, and the magistrate's decision on 5 July 2021. I have read the judgement; I have not been taken to any part of that judgement that demonstrates any error on the part of the magistrate, although reliance was placed upon one part at p 26 of that transcript beginning at line 43. Perhaps I should go back to line 36. Her Honour wrote: "[The complainant] readily conceded that she had had a significant amount of alcohol, that she had shared two joints between the five of them, and that she had taken the medication from Ms Hall. She is vomiting, she is sleepy. I accept she was intoxicated. She is still intoxicated when the police turn up, and I accept that intoxication can impact on the witnesses perception of what occurs, their memory of it and hence the reliability of the evidence. But here the sheer detail in [the complainant's] account of the whole night, starting from what is happening at the hotel, who is there, what they are drinking, what they are eating and who is coming and who is going, the texting, how they are getting home, what happens when they get home as well as the memory of the alleged incident, is there in all that detail, and I have already referred to her detail in her allegation of the incident where that memory, including what she was wearing, how she is lying, the light, what she could see, what she could feel, the limits of what she could see are all there." 1. It was said that her Honour made an error of fact in coming to the view that is implicit in that passage because what is there contained. Though reflecting the evidence she gave and the detail contained in a statement that she in due course made to the police, it stands in stark contrast to the bare minimal facts that were made or disclosed by the complainant to her friend and co‑resident Ms Hall, which occurred, according to the evidence the complainant gave, very shortly after the conduct upon which the prosecution has been brought. 2. The criticism made was that the magistrate ought not to have accepted the truth and accuracy of the propositions that are set forth or to which reference was made in the passage that I have quoted because, to put it bluntly, the complaint to did come up to the level of detail or quality of the evidence ultimately given and the content of the statement before the occasion of the matter being presented at court. 3. Section 66(2) Evidence Act 1995 provides for evidence of complaint that is available to the tribunal of fact in a prosecution such as this. Evidence of complaint is available if the complaint was made substantially to the effect of what the complainant alleged. The evidence of what was said by the complainant can be used as some evidence independent of the evidence given by the complainant that such an assault had occurred. It may thus be used as evidence of the truth of what the complainant alleged. The tribunal of fact would be entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was less likely to have been fabricated and more likely to be accurate. Other matters that could also be taken into account included the evidence of distress, if any, exhibited by the complainant. 4. The prosecution could also contend, and as I understand it does so in this case, that the fact that the complainant raised the allegation against the appellant at the time and in the manner that she did would lead one to accept her evidence is more believable than if she had not raised the allegation. 5. If satisfied that the complaint was made, the question is, did the complainant act in the way one would expect if she had been assaulted as alleged. Is what she did the sort of conduct one would expect of a person who had been assaulted in that way? I am satisfied on the material that I have read that those features are replete in the evidence given by the complainant and Ms Hall. 6. It is also important to note in this case that the appellant accused of the sexual assault was in the home at the time the complaint was made and that provides an explanation for the terms of the complaint and perhaps the brevity of her representations to Ms Hall. 7. It is not to be overlooked that people who have experienced sexual assault may not describe it precisely in the same way each time they are called upon to recount it. It is common for there to be differences in an account of a sexual offence, and both truthful and untruthful accounts of a sexual offence may contain differences. It is thus for the tribunal of fact to decide whether or not such differences, if they exist, in a complainant's account are important in assessing the complainant's truthfulness and reliability. 8. In this case the prosecution was brought upon the following brief description of events. Ms Hall and the complainant occupied a home which they shared in Wollongong. They advertised for someone to come and share by occupying the room they had available there. They interviewed the appellant and he was found to be acceptable and in due course he moved in. On the date of the offence, 12 June 2020, the complainant, the appellant, and Ms Hall went a hotel for drinks and food. They consumed drinks and food at the hotel and toward the end of that activity the appellant returned home, followed shortly after by the others. Ms Hall had a friend who went into her room with her when they arrived home and the complainant went to her bed. Before then she had, it is acknowledged, consumed a large amount of alcohol. She had been sharing cannabis with the others in the group, and she became nauseated and vomited. Arrangements were made for her to have a bucket or a bowl or some receptacle in her bedroom when she went to bed at the end of their activities. Before then they as a group had been dancing, drinking and enjoying themselves. 9. There was some point made in the course of the presentation of the appeal with regard to a substance that was given to the complainant to help manage her nausea. Ms Hall was a healthcare professional and was accustomed to providing this medication to patients in a facility where she worked when they were suffering from nausea to help manage it, and she sought to do so on this occasion. It was submitted that the Crown had been deficient in the prosecution of this matter in the Local Court because they failed to adduce evidence from a pharmacologist or some other expert to speak about the nature of the drug, Ondansetron. The prosecution relied upon Ms Hall and her evidence regarding her experience administering the drug and the effect it provided. It is true that there was no pharmacologist presented in the Crown case and the evidence regarding the nature of medication and the benefits it provided was confined to that which came from Ms Hall, but there was nothing put in the cross‑examination of Ms Hall in the Local Court to effectively gainsay anything that she said about the use of the substance. Although there was some cross‑examination regarding this, it was little more than a test of what she said of the substance without any further attempt to assist the magistrate with material that might provide an alternative description. The argument advanced that there is likely to have been some compounding impact between the alcohol, the cannabis and this drug upon the complainant's capacities involves mere conjecture in my opinion. 10. In any event once she went to bed and she was effectively retired for the night, the complainant alleges that the appellant came into her room kissing her over the top of her clothes and on the hip and on the top of her hip and around her buttocks area until he rubbed his hand over her leg and over her vaginal area. It is not said that the conduct, if it is established, did not satisfy the elements of the offence with which the appellant was charged and I accept that the complainant's description of what occurred does so. 11. She called out to Ms Hall and Ms Hall came to her. At p 37 on 22 March 2021, Ms Hall described her response to the call for help, she entered the complainant's room, and beginning at line 13 continued: "So I go over to [the complainant] as she's laying there, and I ask is she, 'what's up are you ok', and she said it's, repeatedly made statements such as, 'it's so fucked up, I have to tell you, I - I just have to tell you. Shane has just raped me. It's so fucked up, but please, I - I just need you to know, I just needed to tell you', and then, and they were the things that she was saying to me over and over again." 1. Ms Hall was initially shocked. She said she didn't know what to say. She asked what the complainant meant hoping for further clarification. She continued at line 23: "... and she didn't want to talk about it, she didn't want to go into detail, she had just made the statement, 'Shane has just raped me', and - and I tried to get her to elaborate but she - she just kept telling to be quiet and she -". 1. She continued at line 32: "Yeah, so as best as I can, because she was saying, statements repeatedly, she said, quote "Shane has just raped me" that, that is the word quote, "Shane has just raped me", and I, quote, had said, "what do you mean, what happened what do you mean?" 1. And then at line 38: "She - she had said to me repeatedly, after I may, asked her what had happened, she said, 'I will talk to you about it in the morning', that is a quote, she said, 'I will talk to you about it in the morning'. She said, 'Just go back to bed', and when I continued to try say something, and ask if she could elaborate, she would continue to tell me to, 'Shut the fuck up', and, be quiet." 1. She said that she told the complainant she would not leave her. The complainant asked her to please go back to bed. She said that she was afraid. She said she was scared. She continued to tell Ms Hall to get back to her room. She was asked whether she wanted Ms Hall to call the police and she said, "No just go back to bed I'll talk to you about it in the morning." 1. Ms Hall tried to comfort her. She was sitting on the edge of the bed and placed her hand on top of the complainant's left hip and as soon it did that the complainant recoiled back according to the evidence at p 38 and said: "Please don't touch me there, he touched me there." 2. The complainant gave a description of the conversation in which she also made the allegation using the term rape; she was taken to task in cross‑examination by counsel about the use of that term in making the complaint. At p 19 on 22 March 2021 the complainant explained that she saw the touching of the vagina and the use of the term rape as comparable. At line 45 she said: "I don't believe they're different two different like that. They're both the same." 1. Subsequently the police arrived when notified and the complainant was observed to be exhibiting intoxication. The investigation included the retrieval of her clothing but there was no scientific or forensic evidence that assisted in the determination of the matter. 2. The success of the prosecution turned upon the Court accepting as true and correct the evidence given by the complainant. 3. There is one further piece of evidence though that is of significance. At p 44 on 22 March 2021 beginning at line 42, Ms Hall described having a conversation with the appellant: "I knocked on the door, and Shane opened the door, I said "we need you to come out and discuss what happened last night". He appeared confused about, I would use the word bewildered when I said that we need to speak to him. I asked him to come into living room (sic). He then followed us into the living room, and I told him that because of what's happened to [the complainant] last night, he needs to leave the premises, and I told him he's longer welcome." 1. She said he didn't say anything initially. He remained silent or bewildered the entire time. At p 45 she attributed to the appellant that the only thing he said was, "I - I don't know what's happened." 1. That is at p 45 line 14. At line 22 she said: "He came back out and asked if we could elaborate on what had happened." 1. At line 26 she said: "To my best memory, he had said to us, "I am not sure what's happened"." 1. At line 29 she said: "I told him that I wasn't going to talk to him about the details. I just told him that we are not comfortable with him being in the home anymore, and he needs to leave. I had told him, I had used the words, "What you had done to [the complainant]", but I didn't say any more about the situation to him than that." 1. There was some elaboration upon what was said to the appellant by another person who was present beginning at p 68 line 50, his evidence was: "Caitlyn said, yeah, she said, "You don't need to go into details", and then I believe it was Amy, is it Amy Kate? Q. Yes. A. Said, she said, "You went and sexually assaulted [the complainant]", and yeah." 1. He then continued at line 9 in response to a further question: "I - I didn't, like, I didn't think I had done anything. I had thought, because I remembered like, rubbing her back, and touching her hair, and I thought she had, I guess, not wanted that. Q. When you say, rubbing her back and touching her hair, when did you do that? A. When - when she was puking in the sink." 1. That was a reference to the complainant being sick in the kitchen. He answered "no" at line 22 to the question: "Yes, so in her bedroom, were you rubbing her hair, so rubbing her back or touching her in the bedroom?" 1. And then continuing at line 24: "Q. No, were you touching her anywhere in the bedroom on her body? A. No. Q. No but the words that were used to you were, "sexual assault", and if I understand your evidence correctly, you linked that up to touching her hair and rubbing her back in the kitchen? A. Yes." 1. This was evidence in examination in chief. 2. I confess I found the answer given there in explanation of the piece of evidence I am about to go to implausible. Exhibit 3 before the magistrate was a screenshot of a WhatsApp message from the appellant to the complainant and Ms Hall: "Hi [complainant]/Kate. First off I want to apologise, I am so deeply sorry for the harm I've caused and I hope you know that in no way would I ever try to hurt either of you. I would hope that I have treated you as would any of my close friends but in retrospect I realise we've only known each other for a very short time. I'm incredibly grateful that you let me into your home as a stranger and it was never ever my intent to make you feel scared or unsafe. That is not who I am and it hurts to know that I've caused you to feel that way. I realise now is probably not the time and you will want some space but if we are able to discuss this later I want to understand the situation properly and make sure it never happens again. I will respect your wishes and move out. I am staying at a friend's place for now and if it is okay with you I will leave you alone tonight and come move everything out by the end of tomorrow." 1. This is not an explicit admission of guilt, I accept, but I also find on the material before me that these representations are against the interests of the appellant and in the nature of admissions. I find it implausible that these representations would be made in response to his perception that when he assisted the complainant as she vomited in the sink, he had caused some offence prompting the notification to him in due course of a sexual assault of which he was accused. 2. The appellant participated in an interview with the police and also gave evidence in the magistrate's court; he was not obliged to so. He attracted no onus of proof by taking either course. He provided an explanation which suggests at least to some extent a poor memory, perhaps because of the ingestion of alcohol by him, including a whisky and drink called "fireball". He described in the interview with the police the events of the night including the complainant being sick. On p 7 of the ERISP he gave an answer with regard to what occurred after she was sick: "I, I did go in her room after, after she was sick, so there, there was two points where I was with her, I guess that I remember. So, she was over the sink" 1. then continuing in response to question 58: "--- and then I think when we got, ah, I'm not sure how she got to bed. I think Kate helped her. Um, and then she was in bed with, with, like, a bucket." 1. He said in response to question 67 asking or confirming that his memory was not vague: "I feel like I remember everything clearly." 1. There was no acknowledgement of any wrong doing, including in terms of the allegation that was made by the complainant. FINDINGS AND DECISION 1. I have embarked upon some analysis of the evidence that was before the magistrate, including the description of the event given by the complainant and the complaint that she made as she recalled it and as was heard by Ms Hall as she recalled it. I have reviewed the magistrate's decision. I do not find any error of fact or law or the improper exercise of discretion. I am satisfied that the finding that the offence was proved is clearly available on the evidence. It is for these reasons that in this instance the appeal is dismissed and the finding of guilty is confirmed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2022