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). Facts 8.The complainant was 30 years old at the time. On the night when these incidents allegedly occurred, she was wearing a dress that was knee length. She attended the function at the hotel on her own. The appellant, for part of the evening at least, was accompanied by his wife. The dinner concluded about 10pm. The complainant then sought to join a group of people whom she knew, including the appellant. When she joined this group, the appellant turned his back to her, something that she regarded as a slight. She moved away from this group and spoke to a number of other people until eventually she and they decided to go to the Bondi Hotel. She purchased an alcoholic drink and stayed with the rest of the group that included the appellant and his wife, Kevin Nielsen and his wife, Stuart Zell, Michael Jackson and Nathan Eek. After half an hour or so, the complainant, accompanied by Mr and Mrs Nielsen went to a nightclub across the road from the hotel. Gradually the others of the earlier group came across except for the wife of the appellant. The complainant said that she became aware that the appellant was standing on his own and looking at her from about three metres away. This made her feel uncomfortable as he appeared to be looking at her up and down. 9.She joined some of the others on the dance floor. By this time she had consumed one vodka and soda in the nightclub. Subsequently she consumed two more. It was her evidence that the appellant bought these drinks. 10.The first incident, of which she spoke, occurred when she was dancing in front of Stuart Zell and she felt someone pushing against her bottom with a pelvis. That pushed her forward a little into Mr Zell, who was pushed into the DJ. 11.Mr Zell, when he gave evidence said nothing of this incident. 12.Mr Jackson when he gave evidence, described the appellant going up behind the complainant and engaging in "dirty dancing", or gyrating with his hips and groin on the bottom of the complainant. 13.None of the others who were called to give evidence noticed this happening. 14.The next incident involved the appellant physically grabbing the complainant around the waist, putting his face close to her and saying: "I know you can feel the chemistry between us". The complainant gave evidence that she shouted loudly and he let her go. 15.None of the others gave evidence about this incident. 16.The third incident involved the appellant pulling the complainant into a pole and forcing one of his legs between her legs so that she could feel his penis against her leg. Mr Jackson saw the appellant holding the complainant's arm against the pole and leaning forward as if to kiss her. The other persons who gave evidence did not speak of this incident. 17.On 14 December, she contacted Michael Roberts, who supervises her and complained of being sexually harassed by the appellant and followed this up by sending him an email with details of her complaint. 18.The appellant when he gave evidence before me denied these incidents. He also gave evidence that he had, on a number of occasions before the night of the incidents, reprimanded her about her performance at work. Submissions 19.Submissions were put to me on behalf of the appellant that the incidents did not occur, being invented by the complainant because of her sense of grievance at reprimands that the appellant had given to her on occasions before the night of the dinner arising from her performance as an employee. 20.I am satisfied, having looked at the evidence of Mr Roberts and considering the evidence of the appellant that he did cause some reproofs or reprimands to be given to the complainant at some time before this day. Counsel also put that his client had given evidence before me in an honest and straightforward manner and his evidence raised a doubt about the case against him. 21.The prosecution submitted that I should confirm the finding of guilt made by the learned magistrate, particularly since she had made findings accepting the credibility of the complainant and Mr Jackson. Consideration of the facts and of the submissions 22.There is no doubt in my mind that the night club was dark, noisy and crowded and the fact that people bumped into one another could have been expected to have occurred without anyone taking any particular notice. Similarly, the way in which various persons reacted with others was easily likely to have not been noticed. 23.The fact that no one, apart from the complainant and Mr Jackson did not witness the incident in which the appellant placed his groin against the bottom of the complainant and pushed forward, does not surprise me, just as it does not surprise me that Mr Zell did not recollect such an incident. 24.I have not seen the complainant give evidence, but like the learned magistrate, my reading of her evidence convinced me that she was a credible witness. Her evidence has a ring of truth, just as the evidence of Mr Jackson has a ring of truth. Unlike the other witnesses who gave evidence of what occurred on this evening, Mr Jackson did not consume any alcohol at the nightclub and therefore, must have been much less affected by alcohol than any of the other witnesses. 25.I considered carefully the submissions about the complainant's possible motivation to invent these incidents. However, I am not convinced that she had any motive at all to make any false complaint. 26.She gave evidence, which I accept, that she accompanied the other witnesses, including the appellant to this nightclub after she had been with them in a group at another hotel. Her motivation in going to the nightclub was to engage in dancing. She accepted alcoholic drinks at the nightclub and it stretches credibility to suggest that she went to the nightclub, consumed alcoholic drinks and danced all as part of an elaborate plot to implicate the appellant in a crime that he did not commit. 27.She also has a friendship with Mr Jackson and the submissions made as to her motivation must necessarily include a claim that he was part of this plot to implicate the appellant. 28.I do not accept that this is so. The descriptions given by the complainant of each of the assaults on her in the nightclub are detailed and believable. They are supported by the observations of Mr Jackson. I pay due regard to the findings made by the learned magistrate and I want to say clearly that separately I have exactly the same view as she does, as to the credibility of these two witnesses. 29.Her complaint to Mr Roberts was, in terms of section 66 of the Evidence Act 1995, fresh in her memory and accordingly, I am entitled to take it into account as evidence supporting the crime alleged against the appellant. There is no basis in my opinion for limiting the use that can be made of the complaint, nor is there any relevant reason to exclude it for unfairness. Decision 30.In my opinion, the learned magistrate was correct to find the offence proved and I dismiss the appeal. There is no appeal against sentence and I confirm the conviction and sentence. ********** 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: 26 February 2014