Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 Hearing dates: 30 October 2013 Decision date: 20 December 2013 Jurisdiction: Common Law Before: HOEBEN CJ at CL Decision: (1) The appeal is allowed. (2) Pursuant to s59(2) of the Crimes (Appeal and Review) Act 2001 the order of his Honour Hodgson LCM made on 21 March 2013 at Port Macquarie Local Court dismissing proceedings against the defendant for the offence of "assault with act of indecency" contrary to s61L Crimes Act 1900 is set aside. (3) The matter is remitted to the Port Macquarie Local Court to be dealt with according to law by a magistrate other than his Honour Hodgson LCM. Catchwords: APPEAL - appeal from decision of Local Court Magistrate pursuant to s59(2) Crimes (Appeal and Review) Act 2001 - offence of "assault with act of indecency" contrary to s61L Crimes Act 1900 - whether adequate reasons given - no express finding as to whether complainant consented to defendant's actions - whether recklessness as well as specific intent should have been considered - no express finding as to intent - matter remitted to Local Court to be heard according to law. Legislation Cited: Crimes Act 1900 (NSW)- s61L Crimes (Appeal and Review) Act 2001 (NSW) - s56(1)(c) Cases Cited: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 DPP v Soliman [2013] NSWSC 346 DPP v Starr [2012] NSWSC 315; 221 A Crim R 525 R v Bonora [1994] 35 NSWLR 74 R v Mueller [2005] NSWCCA 47; 62 NSWLR 476 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) - Plaintiff Paul Angelo Barbato - Defendant Representation: Counsel: Ms J Girdsham SC - Crown Submitting Appearance - Defendant Solicitors: S Kavanagh, Solicitor Public Prosecutions - Plaintiff Rural Law - Defendant File Number(s): 2013/205133 Judgment 1HIS HONOUR: Nature of application Pursuant to s56(1)(c) of the Crimes (Appeal and Review) Act 2001 (CAR Act) the plaintiff has appealed against the dismissal by his Honour Hodgson LCM of an information pursuant to which the defendant was charged with one count of "assault with act of indecency", contrary to s61L of the Crimes Act 1900. 2The plaintiff seeks the following orders: (1) An order allowing the appeal. (2) An order pursuant to s59(2) of the CAR Act that the order of his Honour Hodgson LCM made 21 March 2013 at the Port Macquarie Local Court dismissing the proceedings against the defendant be set aside. (3) An order that the matter be remitted to the Port Macquarie Local Court to be dealt with according to law. (4) An order that the defendant pay the plaintiff's costs of and incidental to this Summons. 3The grounds of appeal are that his Honour erred in law by failing to: (i) Make a finding as to whether the complainant consented to the actions of the defendant alleged to constitute the indecent assault. (ii) Consider whether the defendant was reckless as to whether the complainant consented to those actions. (iii) Consider whether or not an offence of "assault with act of indecency" contrary to section 61L of the Crimes Act 1900 is an offence of specific intent and; (iv) Provide adequate reasons for his determination to dismiss the matter. 4By letter dated 22 July 2013 an appearance was filed by Mr Long, solicitor, on behalf of the defendant to the effect that the defendant "submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, save as to costs". 5When the matter came on for hearing on 30 October 2013 there was no appearance on behalf of the defendant. 6While this concession by the defendant is noted, it does not relieve this Court from the task of considering his Honour's judgment and determining whether or not there were errors, such as to require remittal to the Port Macquarie Local Court for rehearing (DPP v Starr [2012] NSWSC 315; 221 A Crim R 525 (Adamson J); DPP v Soliman [2013] NSWSC 346 (Button J)). Factual background 7The defendant was charged that between 2.30am and 2.50am on 21 October 2012 at Wauchope he did assault the complainant (M) and at the time of the assault committed an act of indecency on her "to wit rubbed his erect penis on the vaginal area of the victim whilst both were covered by clothing". The offence was alleged to have occurred in a room at the Star Hotel in Wauchope. The prosecution alleged that without the complainant's consent the defendant pulled her down beneath him on a couch, held her wrists and laid on top of her and forced her legs apart, rubbing his erect penis against her groin area while both were covered by clothing. 8At the hearing on 21 March 2013 the prosecution was presented by a police prosecutor and the first defendant was represented by Mr Lindeman, solicitor. A transcript of proceedings is available and where necessary, I will refer to it. 9Three witnesses were called in the prosecution case and a number of police statements and photographs were tendered. 10The complainant gave evidence that she was 27 years old and that on Saturday 20 October 2012 at about 1pm she and her father travelled from Wollongong towards Queensland to visit a family member. They stopped at about 7pm at Wauchope and found accommodation at the Star Hotel. They booked a room and stayed in the bar for some drinks, the complainant consuming four middies of Tooheys New. At about 8.30pm they left the bar and went to a Chinese restaurant for dinner. During dinner they consumed a bottle of wine and remained in the restaurant until 9.30pm after which they returned to the Star Hotel. The complainant consumed 3 more middies of beer. 11The complainant said that there were probably 10 people in the bar. Her evidence was: "A. Dad and I were just drinking and they had like disco lights and we were just making friends around the bar." (T.5.36) They stayed in the bar until about 12.30pm when her father said that he was tired and went upstairs to bed. Up until that time the complainant had not met the defendant. 12There were about 6 people left in the bar. The complainant said: "A. I was just making friends with people we had spoken to before. I met then Jason and we were putting songs on the juke box and just chatting about general things." (T.6.15) Jason told her that he was there on a golf trip. Once the bar was shut, the complainant said: "A. We went upstairs where they were staying and there was a common room area where we just hung around and I had a - a beer, a stubby." (T.6.36) 13The complainant described the common room area as: "A. It was just a average balcony, it was older because it was an old pub but just had a old, old lounges on the balcony and it overlooked the street." There were 5 people present which over an hour reduced to 4, comprising the complainant, the man Jason, the bartender and the defendant. Shortly thereafter the bartender left. 14The complainant was on the balcony at that time. She described the incident as follows: "Q. Where was Jason at this stage, do you remember? A. No. Q. And who else was out on the balcony with you? A. That's unclear. Q. So you're out on the balcony and you don't know who was out there with you? A. No, it seems a blur up to there. Q. So you're sitting on the lounge? A. Yes. Q. And where were you on the lounge? A. I was on the left-hand side. Q. So as you're looking at the lounge? A. If - from your perspective? ... Q. How were you seated on the lounge, do you remember? A. I remember having my leg up like on the coffee table, like - like if at home resting with my feet up on a poof, I suppose you could say but it was the coffee table. Q. Using a scale from one to ten, how would you describe your level of intoxication? A. Four. Q. And do you remember who else was on the lounge at this stage? A. No. Q. And what happened next? A. The next thing I remember is fighting off a man and saying "No, stop, I'm married" and him saying "Shh, it's all right". Q. And how would you describe this man? A. I don't remember his face at this point in time, I just remember holding my hands up and screaming, trying to push him off." (T.8.4 - .47) 15There was no issue at the hearing that the man she referred to was the defendant. The complainant said that she could not remember where he was before he attacked her. Before the attack she was looking out towards the street. She described what happened as follows: "Q. So when you say you were attacked, I know it might be distressing but please describe in words what happened? A. It happened really fast, in my memory, so it seems like I - all of a sudden I was pushed down and my arms were held and-- Q. Where were your arms held, do you remember? A. Above my head. Q. And how were your arms held, where were they -- A. On my wrists. Q. And they were held above your head? A. Yes. Q. When this was occurring, which part of the lounge was your back resting against? A. It was in the corner, between the back and the arm. Q. In the corner of the arm rest and the back of the lounge? A. Yes. Q. So you were attacked, you say. Was one or two of your wrists grabbed? A. Both. Q. And they were held above your head? A. Yes. Q. And then what happened next? A. I felt the man pushing himself on me. Q. And where were your legs at this stage? A. They were apart. Q. Do you remember how they became apart? A. No. Q. And you say you felt this man pushing? A. Yes. Q. What part did you feel of his body pushing against yours? A. He was pushing in the motion of - of like having sex. Q. Does that indicate his groin against yours? A. Yes. Q. I know this is distressing but in relation to his body, what part of his body did you feel come in contact with yours? A. His penis. Q. And in relation to that, what state was it in? A. It was erect. Q. And this happened and what did you say? A. I was yelling no and stop, I'm married. Q. Did he stop? A. No. Q. How long did that go on for? A. I don't know. Q. You said you felt his erect penis, what part of you was it against? A. My groin area. Q. When you said "No, stop, I'm married", did he say anything to you? A. All I remember him saying is "Shh, it's all right". Q. And what was going through your head at this stage? A. It's not a dream, like how do I get out of it. Q. And what do you think he was doing? A. It felt like I was going to be raped." (T.10.23 - T.11.44) 16The complainant then heard Jason ask "What are you doing?" She left the couch and went inside to the hallway and was crying and upset. The man who attacked her walked past her as she sat crying on the floor and said to her "You're not going to cry rape are you?" and then took a photograph of her on his mobile phone and walked away. She said that after that Jason called the police and they woke her father up. When the police arrived, they asked her to identify the man and she went to the police station and made a statement early that morning. 17In cross-examination the complainant agreed that the only people who went upstairs after the bar closed were herself, Jason, the bartender and the defendant. She said that she did not recall having a conversation with the defendant while she was upstairs on the balcony. She agreed that she had said that it was all a bit of a blur and that was because she had more than a few drinks. She did not, however, agree that she was more than moderately intoxicated. 18She denied that once Jason left she had a drink with the defendant. She agreed that she went and sat on the lounge with the defendant, but then after talking for a few minutes told him "I'm going to head off to bed". She stood up and the defendant grabbed her wrists. The defendant was sitting on the lounge when he pulled her wrists and she did not resist but did sit back down on the lounge. The following scenario was then put to her by the solicitor for the defendant, which she denied: "Q. So you've only raised those matters today because I'm putting to you what happened was Mr Barbato pulls you down and you sit down next to him and he leans over across you and his body presses against you, you agree with that? A. No. Q. I'm putting it to you that he pressed his body against you and you didn't say anything, do you agree with that? A. No. Q. And your evidence is that your legs were parted at some stage? A. Yes. Q. And you didn't say anything when that happened, did you? A. I don't agree with that. Q. You didn't say anything and then he pushes himself between your legs in a sexual motion, you remember that? A. No." (T.17.33 - .50) 19The complainant was cross-examined about matters that were not in her police statement and she agreed that her evidence that she tried to push the defendant off was not in her statement. She agreed that when the defendant grabbed her by the wrists and was pushing his body against her, she did not say anything but she did say something when her legs were parted. She said: "A. At this stage it's happening at once." She said things happened "at the same time" and that she said "No" when the defendant was rubbing himself against her. She agreed that it was all a bit of a blur and that it happened quickly. She agreed that as soon as she said "No, no" Jason came out and the defendant was on top of her when Jason came out. She denied that as soon as she said "No, no I'm married" the defendant got off her. She agreed that it all happened extremely quickly. 20Sergeant Hardwick gave evidence that he attended the Star Hotel and spoke to the complainant on the night. He said that he would assess that the complainant was around the mildly intoxicated or slightly higher than mildly intoxicated mark. 21Jason Perrett gave evidence that he was 33 years old and knew the defendant pretty well. On 19 October 2012 he travelled with a group to Wauchope to play golf. He drank stubbies on the course and during the golf presentation that evening. He ate lunch in the afternoon and had a meal at the country club. At the hotel he met the complainant and her father and after the rugby, some music was played on the juke-box. He thought the defendant was "pretty happy sort of thing, relaxed yeah". He did not know how many beers he had consumed himself "but I felt in myself I was - I was capable and - knew what was going on" (T.25.45). 22He said that when the bar closed, he purchased a 6 pack of beer to take upstairs. He thought 5 or 6 people went upstairs to the lounge and balcony area. He described what occurred in the common area as follows: Q. And what were you doing out there? A. Just talking and mingling, I'd actually got my phone off the charger which was in the room I was saying, I'd showed M photos of my little girl, she'd previously showed me photos of her kids saying that they love fishing and I said so does mine and I swapped photos with her, like showed her photos and she showed me photos of her kids. I then put music on my phone, it was a country music thing from America that - a streamline thing and I just had it on the brick wall and was just sort of listening to that." (T.26.37) 23Mr Perrett said that after most of the people left, he still had a beer to drink and went to the lounge to watch a James Bond movie and finish his beer. He was there for 10-15 minutes when: "A. I was watching that and then I just heard like a - it was a "Ner, ner" sort of - like a muffled no, like a grunt sort of thing and it sort of come from out the balcony so I - what's that, so I walked out, you know, to the balcony there. Q. And how long did it take you to get from where you were in the TV lounge to out on the balcony? A. Three seconds, something like that, it wasn't - wasn't long because it's not - it's not that far to the balcony. Q. And when you got out on the balcony what did you see? A. I just noticed Paul on top of M and she seemed restless and I said "What's going on?" and Paul got straight off and M was - yeah, could see she was upset and - and - yeah. Q. So how did you say "What's going on?", what volume of voice did you use? A. Just "What's going on?", something like - yeah. Q. And did the accused say anything to you? A. Only when - when M come towards me a bit, he just said "It's not what it looks like, she's was asking for it" and I just replied "It didn't look good from what I saw". Q. So when you've gone out and said "What's going on?", where was the accused, where was Paul? A. Paul was like standing up on the - outside like of the lounge and M walked to me. I took M or M went into the - the foyer area and sat down on the floor and was upset, she was crying pretty bad and I just went to - to M to see if she was all right and if I could help in any way. Q. And what did you say to her? A. I said "Are you right, anything I can do?" and she was just looking at me and crying and I sort of said "Did you want me to ring the police, like I saw what happened like when I got to the doorway?" and she nodded and said "Yes". I - I got my phone out and I thought it'd be better for M to ring the police because she knew what happened out there, I - I didn't actually see the lead up to it, I only saw the end bit when I got there. She started to ring triple 0, she got upset. I then took the phone off her and - and tried best to talk to the operator and to M to ask the questions that the operator was asking. Q. So you told M that you saw what happened. So when you walk out onto the balcony, can you please describe to his Honour what you saw? ... Q. So when you go out on the balcony what did you see? A. I saw M was lying on the lounge with her head towards the doorway of the entry to the lounge and Paul - Paul was on top, on top of her, yeah. Q. And what did you see Paul doing with his hands? A. Sort of he had his hands -- ... I - I just saw Paul with his - his hands up, up the top, like he was like bracing himself by holding his upper body up and I could just see M's arms back like that. Q. So for the record you're describing two arms back beside your head, arms up? A. Yes, about - around the neck, head region, like in that sort of position. Q. Were the accused's hands in contact with M? A. As far as I know, yes, they looked like they were bound up, just her arms, sort of, yeah. Q. So you've just patted the forearm between your wrist and your elbow? A. That's correct, yeah, around the watch, sort of, yeah. Q. And then when you said "What's going on?", what did you observe the accused to do? A. Paul - Paul got up straight away and sort of stood at the lounge and M sort of took off and - and I sort of followed her and Paul followed us in towards the - the foyer area and I said "Paul, just stay away" and he said "It's not what it looks like, she asked for it" and I said "Mate, what I saw it didn't look good" and then I - I went to M to see if I can help, what I could do for her because she was upset. Q. Once you spoke to Mo, did you see the accused do anything? A. No, I just stayed with M and yeah. Q. And you called the police on your phone? A. Yeah, I got - M dialled the triple-0, sorry, I - I pressed the triple-0 and I gave the phone to M to unlock the PIN code, pressed triple-0 and I asked M, "You talk to them, like you tell them what's happened" and -- Q. And when she couldn't continue you took over? A. She was upset and then was just - like held the phone down here and wasn't talking, so I - I just grabbed it and said "Hello" and told them my name and then I relayed the - the questions and messages to - to M and - between M and the operator." (T.27.21 - T.29.21) 24Mr Perrett described his own level of intoxication as: "A. On a level one to ten, maybe six, seven, something like that, like I had full wits of myself and I knew what I was doing." He described the defendant's level as being "Probably around eight sort of thing out of a scale of one to ten". 25During cross-examination Mr Perrett agreed the incident occurred quickly, but he strongly disagreed with the suggestion that the defendant had said something different to him than "She asked for it". "Q. Could it have been that Mr Barbato said "Look, I'm sorry Perro, I thought that's what she wanted", could it have been words to that affect? A. No, I never -- Q. I'm going to put it to you that that's what he said to you, "I'm sorry, I thought that was what she wanted", you can agree or you can disagree? A. I disagree, he asked - I asked what was going on, he got up and he said "She asked for it". Q. You're not exactly sure about exactly how he said that? A. No, he just said "Perro, it's not what it looks like, she asked for it"." (T.31.17) 26Sergeant Hardwick described Mr Perrett as moderately affected by alcohol. He said that when he arrived at the hotel he found the defendant asleep on the floor. He assessed the defendant as "highly intoxicated". The other arresting police officer described the defendant as being "well affected by alcohol at this time as he struggled to stand up, he was slurring his speech and smelt of intoxicating liquor". The Custody Manager at the Port Macquarie Police Station described the defendant as "emotional and crying continuously". He appeared to be "well affected by alcohol. He smelt of intoxicating liquor, he was emotional then not, he was unsteady on his feet, repeating questions and then not listening to the answers". 27The defendant gave evidence but called no other witnesses. He was a plumber who ran his own business in Gunnedah. He was involved in a lot of sporting clubs. On 20 October 2012 he went to Wauchope to participate in a golf day. He thought he had close to 20 schooners which was not a common practice of his. 28In relation to the incident in the upstairs common room area, the defendant said that when Jason went to watch some television he "asked "M" if she wanted to come over and sit on the lounge with me". He said that she was sitting on his right side on the lounge: "Q. And what happened next? A. She got up to go to bed. After she said she was going to go to bed she got up to go to bed. Q. And what did you do? A. I grabbed her by the hands and pulled her back down onto the lounge with me. Q. What happened next? A. I positioned myself on top of her and parted her legs. Q. And was there a conversation going on at this time? A. Not particularly, no. Q. Not particularly? A. No, no. Q. Was there any conversation? A. No conversation. Q. And what happened next? A. After I parted her legs I started rubbing myself up against her. She then said that she had - she was married with two children and then said -- Q. And were you saying anything at this time? A. I said "Shh, it's okay". Q. And then what happened? A. Well then - then she said "No". Q. And then what happened? A. I got off, I got off her. Q. And was there anyone else there? A. Not at that time, no." (T.34.11 - .45) 29In cross-examination the defendant agreed that he had an erection. He agreed that he forced the complainant's legs apart and that she did not open them and that he rubbed his erect penis against her. He agreed: "Q. After pulling her from a standing position back on the lounge? A. Yes. Q. Grabbing both her wrists? A. Yes. Q. When she indicated to you she was leaving and going to bed? A. Yes. ... Q. And you weren't waiting for her to say "No", you just continued on, didn't you? A. I wasn't expecting her to say "No". ... Q. She told you she was leaving, didn't she? A. Yes. Q. She didn't sit down on the lounge under her own volition? A. Before she left she did. Q. You pulled her down, your evidence? A. No, she was standing at the rail of the veranda, I asked her to come over and sit beside me, she came over and sat beside me. Q. And then she got up? A. Yes. Q. And said "I'm going back to my room to go to bed"? A. Correct. Q. And you pulled her back onto the lounge? A. Yes. Q. You say you got up off her when she said "No, I'm married"? A. No, she said she was married with two children and then she said "No" and then once she said "No" I got up. Q. In fact, isn't it sir, that you got up after Jason Perrett came out onto the balcony and said "What's going on?"? A. I was getting up when she said "No". Q. So you don't deny that you were holding her wrists down when Jason came out onto the balcony? A. I don't know what time Jason came out, I'm not denying holding the wrist but I don't know when Jason came. Q. So you were holding her wrist behind her head? A. Yes. Q. Rubbing yourself up against her? A. Yes. Q. After you forced her legs apart? A. Yes. Q. M was very upset after this, wasn't she? A. Yes. Q. And you passed her in the corridor? A. Yes. Q. And she was crouched up sitting on the floor? A. Yes. Q. And you took a photo of her with your mobile phone? A. Yes. Q. Why? A. Because I wanted to basically show that I was worried of the situation and I wanted to show that I didn't hurt her. Q. You said to her "You're not going to cry rape, are you?"? A. I did." (T.35.10 - T.37.8) 30Further questions were put to the defendant in cross-examination as follows: "Q. What did you say? A. I said "I thought that's what she wanted". Q. And he said "Paul, what I saw was not right"? A. Jason said that. Q. You've just shrugged, so he did say that, didn't he? A. Jason did say that. Q. And he also said "What's going on?", didn't he, he yelled "What's going on?"? A. I can't recall that. Q. So you admit to saying "Shh, it's all right, it's all right"? A. I do. Q. Why did you say that? A. I don't understand my reasonings for saying that. Q. Because you knew she didn't want what you were doing? A. Well at that time I didn't know that. Q. You hadn't asked her, you grabbed her and dragged her down on the lounge? A. Well she didn't object to it when she came back down on the lounge with me. Q. When you grabbed both her wrists? A. She didn't object then. Q. And you're a considerably larger person than she is, aren't you? A. Yes." (T.37.28 - T.38.9) 31In re-examination his solicitor asked the defendant to describe the force he used to part the complainant's legs and he said "I just put my hands down there and pulled her, pulled her legs apart". He said that he used "not much" force to do this. Reasons for judgment 32His Honour in a ex tempore judgment found the complainant to be honest, truthful and "a reasonably credible witness". He made the same finding in respect of Mr Perrett. He observed that the defendant's version was "surprisingly consistent with the version given by the complainant". He found that the effect of the defendant's evidence was that "At the time he did not think she was not going to consent". 33His Honour summarised the prosecution submissions as: "The prosecution submits that they have proved the elements of the offence, it is an indecent form of assault where the defendant had an erect penis and was rubbing himself on the outside of the complainant's clothing in her groin area, and that the prosecution submits is indecent assault. The prosecution submits I accept the evidence of the complainant and Mr Perrett that the defendant told Mr Perrett that she was asking for it and that he was a witness of truth and has submitted that it all happened very fast and the defendant was not giving the victim time to say no, and that situation the prosecution says there was no free [voluntary] consent. The prosecution says he did not get off her when she said, "No", it was only when Jason said, "What's going on", that the accused got off her. Under the cited authority referred to of Shaun (sic) the prosecution says that is not consent." 34His Honour summarised the defence submissions as: "It is submitted in the circumstances there was no intent on his part. They were both affected by alcohol and the defence submits that she was consenting and it was only when she said, "No", that she stopped consenting and that is why the defendant said, "She was asking for it", although he put it in another form. He concedes that he asked her, "You're not going to cry rape are you", and that he took the photo to show that he had not hurt her. Taking into account his prior good character the defence submit that I should have a reasonable doubt." 35In reaching his conclusion, his Honour noted that "the factual issues are not really in dispute". As a result his Honour had a reasonable doubt as to the defendant's intention. He said: "I have to weigh up the evidence and I have a complainant who says she was not consenting, it all happened very quickly. She does not know how her legs were separated but she does know she told the defendant she was married and had a child and he told her not to worry. One way of looking at the evidence is that she had been consenting, and you can consent in a non-verbal manner but was changing her mind and the defendant was trying to reassure her. There are two versions that she said, "No" and he did not get off her until Jason arrived; or the defendant's version that he immediately got off her when she said, "No." That it all happened in a blinking of an eye. I have to take into account the defendant's prior good character on the question of whether he is the sort of person that would engage in this type of activity. And weighing up all of those factors I consider there has to be a reasonable doubt as to the intention. I find the offence is not proved, the charge is dismissed." Submissions and Consideration 36An appeal lies against an order of the Local Court dismissing proceedings, but only on a ground that involves a question of law alone (s56(1) CAR Act). 37The offence of indecent assault, contrary to s61L of the Crimes Act is in the following terms: "Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years." Ground 1 - Failure to make a finding as to whether the Complainant "M" consented to the defendant's actions alleged to constitute the indecent assault, namely pulling her down beneath him, holding her wrists, lying on top of her, forcing her legs apart and rubbing his erect penis against her groin area; Ground 4 - His Honour did not provide adequate reasons for dismissing the matter. 38These Grounds of Appeal raise similar issues and can be dealt with together. 39The essential ingredients of an offence, contrary to s61L of the Crimes Act are: (1) That the defendant assaulted the complainant. (2) That the assault was indecent. (3) That the assault was without the consent of the complainant. (4) That the defendant knew that the complainant was not consenting OR (5) That the defendant realised that there was a possibility that the complainant was not consenting, but went ahead anyway, or did not even think about whether the complainant was consenting or not - in other words, he did not care whether the complainant was consenting. 40The basis for these grounds of appeal is his Honour's statement commencing "One way of looking at the evidence ..." where his Honour appeared to be referring to two possibilities, i.e., whether the complainant never consented as she said, or as was suggested by the defendant, she initially consented and then withdrew consent. The plaintiff's complaint is that his Honour did not take the next step and make a finding as to whether there was or was not consent by the complainant. The plaintiff submitted that this was a fundamental finding which needed to be made before his Honour could move onto the final element of the offence as to whether or not the defendant knew that the complainant was not consenting. The plaintiff submitted that his Honour's failure to make a finding one way or the other in relation to this important element constituted an error of law entitling this Court to intervene. 41Even allowing for the difficulties confronting his Honour in delivering an ex tempore judgment without a transcript, as part of a busy hearing list, there are some unsatisfactory features of the judgment. It was not entirely correct to say that the "factual issues are not really in dispute". While it is tolerably clear that his Honour was referring to the overall factual background, it tended to obscure a significant factual issue which needed to be resolved, i.e., whether the complainant had at any time consented to the defendant's actions. 42While it can be argued that it is implicit in his Honour's conclusion that he was not satisfied as to lack of consent on the part of the complainant, this issue was of such fundamental importance that a clear finding by his Honour needed to be made. If it were the fact that his Honour was not so satisfied, he should have said so and briefly stated why he was not so satisfied. The resolution of the issue is not assisted by the fact that his Honour accepted both the complainant and Mr Perrett as honest and truthful witnesses, but made no such finding in relation to the defendant. The finding made by his Honour in relation to the defendant went no further than that his evidence was "surprisingly consistent with the version given by the complainant". 43I have concluded that there is an important lacuna in his Honour's reasoning process in that he did not make a finding on this important element and in that regard, his Honour failed to provide adequate reasons. These two grounds of appeal have been made out. Ground 2 - Failure to consider whether the defendant was reckless as to whether the complainant "M" consented or not to the defendant's actions alleged to constitute the indecent assault, namely pulling her down beneath him, holding her wrists, lying on top of her, forcing her legs apart and rubbing his erect penis against her groin area. Ground 3 - Failure to consider that an offence of "assault with an act of indecency" pursuant to s61L is not an offence of specific intent. 44Since these grounds of appeal overlap, they can be dealt with together. 45In relation to Ground 3, the plaintiff submitted that although this issue was not raised in terms by the prosecution, the prosecutor did in the course of his submissions say "The accused didn't give the victim the chance to say no". The plaintiff also noted that the defendant's solicitor in his submissions made reference to the concept of recklessness. 46In the alternative, the plaintiff submitted that even if the issue of recklessness was not fully addressed by the parties, his Honour should have considered the question given the evidence that emerged at the hearing and because this was an alternative element in the offence. 47To support that submission the plaintiff relied upon R v Bonora [1994] 35 NSWLR 74 where Finlay J (with whom Abadee and Simpson JJ agreed) said: "A review of the authorities suggest that where consent is in issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant consented or not. The accused's awareness that the complainant of an indecent assault is not or may not be consenting is an ingredient of the offence. In the circumstances of this case where there was an issue of consent, indeed that was what the case was essentially all about, his Honour should have directed the jury that the Crown was also required to prove that the appellant was aware at the time of each of the incidents, that the complainant was not consenting or was reckless as to whether she was consenting or not." 48The plaintiff submitted that in this case there were circumstances that made it desirable in order to properly decide the matter for his Honour to direct himself as to recklessness. Those circumstances were identified as the defendant's failure to ever ask for permission, the lack of any relevant conversation between the two, other than the statement by the complainant that she was leaving, accompanied by her attempt to leave just before the alleged offence, the speed with which the defendant acted and the evidence that there was an express refusal by the complainant as soon as that could feasibly be made. 49In support of that submission, the plaintiff relied upon R v Mueller [2005] NSWCCA 47; 62 NSWLR 476 where Studdert J (with whom Hunt AJA and RS Hulme J agreed) said: "125 In R v Henning (supra), Gleeson CJ and Campbell and Mathews JJ, said in their joint judgment (at p 32): "...recklessness will become a relevant issue...when there is a possibility of ambiguity in the signals of consent or non-consent emanating from the complainant or arising from the circumstances." 126 Since the complainant did not, in the prosecution case express verbally her refusal of permission in relation to the specific acts to which counts 3 and 4 related, this was a situation in which the need for directions on recklessness arose. There was the additional feature of the mental state of the complainant which bore upon the desirability of the instruction that was given. 127 There was the further feature to which the Crown has drawn attention that the appellant admitted that when he first kissed the complainant on the vulva, he did so without having first sought permission. Moreover, at no time did he ask for permission to touch the complainant in that area." 50These grounds of appeal would only arise if his Honour had found that the complainant did not consent. I have already indicated the difficulty created by the absence of an express finding on that issue. 51The matter is further complicated by his Honour's final finding that "I consider there has to be a reasonable doubt as to the intention". This seems to assume, at least implicitly, that his Honour had found a lack of consent but was not satisfied to the necessary standard that the defendant had the relevant intent. If that were the basis for his Honour's conclusion then for the reasons given by the plaintiff in support of these grounds of appeal, it was necessary for his Honour to deal with the issue of recklessness in the sense dealt with in the authorities, i.e. that the defendant was indifferent to whether the complainant consented or not or did not give the complainant a chance to say no. 52If the basis for his Honour's conclusion was a failure by the Crown to prove the necessary intent, then these grounds of appeal have been made out. If that was not the basis of his Honour's decision then it provides another reason for why the error identified in Grounds of Appeal 1 and 4 has been made out, i.e., his Honour has not provided proper reasons for his decision in that the basis for the decision is not clear. 53A failure to provide adequate reasons for dismissal has been held to be an error of law. This issue was fully examined in Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106. There Johnson J said: "56 ... it is part of the Magistrate's duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court): "63 Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration. 64 The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]."" 54Regrettably for the reasons set out above, his Honour failed to meet those requirements. It follows, as I have already indicated, that Grounds of Appeal 1 and 4 have been made out. Depending upon the ultimate basis for his Honour's finding it may well be that Grounds of Appeal 2 and 3 have also been made out. 55The orders which I make are as follows: (1) The appeal is allowed. (2) Pursuant to s59(2) of the Crimes (Appeal and Review) Act 2001 the order of his Honour Hodgson LCM made on 21 March 2013 at Port Macquarie Local Court dismissing proceedings against the defendant for the offence of "assault with act of indecency contrary to s61L Crimes Act 1900 is set aside. (3) The matter is remitted to the Port Macquarie Local Court to be dealt with according to law by a magistrate other than his Honour Hodgson LCM. 56I make no order as to costs. This is because it was no fault of the defendant that error occurred at the first hearing. When these proceedings were commenced, he and his lawyers did everything that they could to minimise costs culminating in the filing of a submitting appearance. ********** 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: 27 February 2014