Paul Hopwood v Regina [2013] NSWDC 250

District Court New South Wales

Medium Neutral Citation: Paul Hopwood v Regina [2013] NSWDC 250 Hearing dates: 10 October 2013 Decision date: 21 October 2013 Before: Judge MJ Finnane QC DCJ Decision: See paragraph [30] Catchwords: CRIMINAL LAW - indecent assault - Appeal - conviction Evidence - credibility - credibility of complainant - credibility of appellant - incident "fresh in mind" of complainant Legislation Cited: Evidence Act 1995 Cases Cited: Charara v The Queeen [2006] NSWCCA 244 Category: Principal judgment Parties: Paul Hopwood (Appellant) Regina (Respondent) Representation: L Brasch (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/269725

Judgment 1.The appellant, Paul Hopwood, was tried before a Magistrate for an offence of indecent assault. It was alleged that on 9 December 2011 late at night and/ or in the early hours of 10 December 2011, the appellant pushed the complainant, Kathryn Smith against a pole in a nightclub at Bondi and pushed his erect penis against her body. 2.As is so often the case where allegations of such offences are made, the appellant, the complainant and a number of other people had been together for some hours, in the course of which, some of them at least had consumed a considerable amount of alcoholic drinks. 3.What had happened earlier in the night of 9 December was that some 200 people had gathered together at the Suisse Grande Hotel in Bondi for the purpose of an annual dinner and get together of the company which employed all of them. The complainant worked as a manager in this company and the appellant as a manager senior to her, but not normally having any direct responsibility for her performance in the company. 4.Before this night, the complainant and the appellant had associated only for the purposes of employment and there had been clashes between the two of them. Each of them lived in towns that were separated from one another by a considerable distance and neither of them normally associated socially. 5.At the hearing before the learned magistrate, the complainant gave evidence that was supported to a great extent by the evidence of Michael Jackson, another employee of the company and someone who was a friend of the complainant. Additionally, the prosecution relied upon complaint evidence made by the complainant to a superior Mr Michael Roberts. The complaint was made very soon after the events of the night and was supported by an email sent to Mr Roberts within a few days. The appellant did not give evidence before the learned magistrate. 6.When convicting the appellant, the Magistrate gave reasons that were quite short. She accepted the complainant and Mr Jackson as witnesses of truth. On 4 September 2013 I gave leave to the appellant to give oral evidence. He gave this evidence on 10 October 2013. His evidence was the only oral evidence before me and I considered it together with the written evidence of the witnesses who gave evidence before the magistrate. 7.In evaluating the evidence, I bore in mind that I did not see any of the witnesses who had given evidence in the Local Court and that the learned magistrate did not have the benefit of considering the evidence of the appellant. My duty is to form my own judgment of the facts so far as I'm able to do so through, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (See Charara v the Queen [2006] NSWCCA 244 paragraphs 18-23).