District Court New South Wales Medium Neutral Citation: R v JH [2016] NSWDC 351 Hearing dates: 7 – 8 December 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The accused is found guilty of the charge on the indicment Catchwords: CRIMINAL LAW – Judgment and verdict – Indecent assault Category: Principal judgment Parties: The Crown JH Representation: Counsel: Ms K Jeffreys – Crown Mr M Gleeson – The accused Solicitors: Director of Public Prosecutions Bannisters Lawyers – The accused File Number(s): 2014/370412 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant Judgment Introduction 1. On 7 December 2016 the Crown presented an indictment containing a single count against the accused JH. 2. That count was an allegation that on 16 December 2014 the accused indecently assaulted TS, a woman he had met only the day before. The particulars of that offence are that it is alleged that the accused pressed his erect penis against TS and at the same time kissed her on her shoulder with an open mouth. 3. It is I who will determine the appropriate verdicts in this trial, an election for trial by judge alone having been made by JH and consented to by the prosecution. 4. There is to be no publication of any evidence which would identify or tend to identify the complainant in this matter. Because of other matters yet to be determined, until further order there is to be no publication of the name of the accused. Summary of the evidence. 1. There were 4 witnesses called in the trial all called by the Crown. What follows is a brief outline of the evidence those witnesses gave. There will be reference to further evidence given by the witnesses as I discuss the relevant issues. Complainant 1. The first, and clearly the most important witness upon whom the Crown case depended, was the complainant Ms TS. Her evidence was that she had met the accused through a friend of hers, Ms YK. TS is involved in the Amway product distribution business and the accused had been suggested to her by Ms YK who was also involved in Amway, as a possible recruit. 2. There was a meeting at the accused's home on 15 November 2014 at which the 3 of them attended. At some stage the complainant became aware that the accused had been charged with sexually and indecently assaulting a number of his former clients at his hair dressing salon. The complainant got the impression that he was innocent of those charges and had been set up. 3. A further meeting was arranged for the following day as the complainant wanted to ensure that the accused didn't get cold feet about the decision he had made to be recruited into the Amway business structure. Accordingly the complainant said that she arrived at the accused's home at 10.28 am (she looked at her digital clock in the car because she was late and wanted to check how late she was). She saw the accused in the street and began walking towards him with him walking towards her. 4. She then described the events which have formed the basis of the count on the indictment. She said that the accused opened his arms to embrace her. She allowed him to hug her and she hugged him in return. After a few seconds she stopped hugging the accused, but he didn't stop hugging her. Instead he put his head down on her shoulder and began to breathe deeply. He was holding her tightly with his right leg in between her legs and his left leg outside her right leg. She could feel his erect penis up against her leg and the accused began kissing her neck and shoulder with an open mouth. She pushed him off saying "no J I am married" and he let go. 5. She went into the accused's home, did what she had come to do and then left. She drove a short distance away before calling her husband and telling him what had happened. 6. She spoke to police later that day and made a formal statement to them that evening. 7. She gave evidence that she did not consent to the accused pressing his erect penis against her and kissing her with an open mouth upon her neck and shoulder. Ms YK 1. Ms YK also gave evidence. She is the friend who introduced the complainant to the accused. She confirmed the nature of the business relationship between the 3 people, confirmed that she had attended one meeting at which the accused and the complainant were present, but was not at the meeting which took place on the following day (the day when the complainant said she was indecently assaulted by the accused) 2. She did say that about a week later the complainant came to her home and told her what the accused had done. According to Ms YK the complainant, who was shaking as she spoke, told her that the accused "hugged her very very tight", that she "felt him" and that he was "kissing her neck". AS 1. The Crown also called a further complainant witness, the complainant's husband. His evidence confirmed that of his wife that she had contacted him on the afternoon of the 16th of December 2015. She sounded scared on the phone, shaken and hesitant as she told him that the accused grabbed her in a full body hug, pulled her in close so that she felt like she couldn't get out and that he kissed her on the neck. As she said this AS gave evidence that it sounded as though the complainant was holding back tears and was upset. Detective Senior Constable Tim Miller 1. Finally the Crown called evidence from the officer in charge Detective Senior Constable Tim Miller who gave evidence about taking a statement from the complainant, the nature of some investigations carried out, and a conversation with the accused in which the latter insisted that police go and obtain CCTV footage from a neighbour's house. One item seized from the home of the accused was a T-shirt with some makeup on it. This case has proceeded on the basis that it was the complainant's make up on the accused's T-shirt. Defence case 1. The accused gave no evidence nor called any evidence on his behalf. Relevant Principles of Law 1. At this stage I will set out some important matters of law. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused. Decide the case according to the evidence 1. I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial. Nor have I conducted any experiments, such as by trying to reproduce the manner in which the accused ended up with the complainant's make up on his shirt. No emotion 1. I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charges he faces. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy. Onus of Proof 1. The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty. 2. What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essentials facts contained in the charge on the indictment. I will indicate what they are in a little while. 3. I should at this stage note that, consistent with what I have just said, absence of evidence of any motive for the complainant to lie is not proof that there was no motive to lie. 4. Although the complainant herself responded to cross examination, quite understandably for a lay witness, by saying "I have no reason to have a go at the guy, I don't even know him. I don't want to be here", I will not ask myself the question "why would the complainant lie" as part of my consideration of this case. 5. Absence of evidence as to a motive to lie is irrelevant and adds nothing to the reliability of the complainant or evidence in the Crown case. 6. The accused can't be expected to see into the mind of the complainant and be held accountable for failing to discover whatever motive there may be for her to tell a false story. Silence in Court 1. The accused has given no evidence in this trial. 2. I will briefly speak about the significance of the fact that the accused did not give evidence. It would be more accurate to say that I will speak about the lack of significance of the fact that the accused chose not to give evidence in this trial. 3. An accused person may give evidence at his or her trial, but there is no obligation to do so. 4. Although the accused could have given evidence himself, or called evidence on his behalf, he could have, and did in this case, equally elect to give no such evidence nor call any on his behalf. The accused was entitled to say nothing in evidence in court and make the Crown prove his guilt if it can. 5. Silence of the accused in court is not evidence against him. His election not to give evidence, or call evidence on his behalf, constitutes no admission by him and no such conclusion must be drawn from that fact. His election not to give nor call evidence must not be used to fill gaps in the Crown's case or to make up any deficiencies or defects in the Crown's case. The accused has been charged with other offences. 1. It was an intrinsic part of the case that at the time the complainant said that she was indecently assaulted by the accused she knew that he had been charged with sexual assault matters. It was also her evidence that she had been made aware of the circumstance that there had been a large number of complaints made by other women. 2. I gather that there has been no trial yet in relation to those other matters. 3. Insofar as this might suggest bad character or a tendency on the part of the accused to commit offences of the type with which I am dealing I have clearly ignored that evidence. Consideration Consistency of conduct 1. One aspect of determining whether a person who has given evidence is telling the truth is to consider whether they have acted in a way which is consistent with the truth of the allegations made. In this case the complainant has acted entirely consistent with the way I would expect a woman in her position to have acted after having been indecently assaulted in the way she described. She made immediate complaint to her husband, telephoning him very shortly after she left the accused's premises. As she spoke to her husband she was distressed. That is consistent with the behaviour of a woman who has just been indecently assaulted. 2. Of course an argument was put to the contrary, namely that the fact that the complainant entered the accused's home after she said she had been indecently assaulted by him indicates the unreliability of her claim to have been indecently assaulted. Whilst it certainly points in that in direction, I do not consider that circumstance to have been of overwhelming significance. The complainant was asked why she had gone inside the accused's home with him after he had kissed her on the neck and pressed his erect penis up against her. She described that she was in effect acting on auto pilot in a state of shock. That reaction is easily understood, especially in circumstances where the complainant was trying to cement a business relationship with the accused and where what the accused had done to her, whilst no doubt unpleasant and distressing, was not of sufficient seriousness for her to respond by abandoning the meeting. 3. It is important to note the condition the complainant was in when she was complaining about what the accused had done, first to her husband and then later to her friend YK. Both of those witnesses gave unchallenged evidence on this issue. As I have noted above Ms YK described the complainant as shaking and her husband said she was holding back tears. 4. I find that complaint was made by the complainant at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. 5. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated. Consistency of recounting the events 1. Another way of assessing credibility and reliability can be to consider whether what a witness says on one occasion is the same as what he or she says on another occasion. 2. In this case I am satisfied that there are no relevant inconsistencies between the versions of events given by the complainant, in particular the formal statement the complainant made to police within a few hours of leaving the company of the accused and her evidence in Court. That is not to say her evidence was identical but the complainant herself provided an explanation as to why that would be the case – she was asked questions in Court that she was not asked when her statement was taken. 3. Particular reference was made by Mr Gleeson to the fact that in her statement the complainant said she could feel the accused's penis whereas in her evidence she said that she could feel his erect penis. Mr Gleeson relies on the circumstance that there is no mention in her statement that the penis was erect. I have not found this a terribly persuasive argument for 2 reasons. Firstly it became clear in re-examination that she had told lawyers for the prosecution that the penis was erect before giving evidence, but secondly and much more importantly, because the complainant would not have described feeling the accused's penis unless it was erect. Demeanour of the witnesses 1. Although I fully appreciate that the demeanour of a witness is a relatively poor way of assessing the credibility of that witness it is still a factor to be taken into account. The only witness whose reliability was at issue in a significant way is of course the complainant. She gave evidence in a clear and concise way. She appeared to me to be doing her best to understand the questions asked of her and answer those questions. Her memory of events was not found to be wanting and she was unshaken in cross examination. She emphatically rejected the possibility that she could have made a mistake, in particular about where she was kissed and whether the accused's erect penis was pressed against her. Possibility of Mistake as to how the complainant was kissed 1. Of course the possibility that she was mistaken is a matter to be considered independent of her credibility. Even if I accept that she was doing her honest best to tell the truth is not enough for me to find that the accused did what the complainant said he did. I have to consider more than just her honesty, I have to consider whether there is a reasonable possibility that she is mistaken. 2. It is hard to see how any person could mistake being kissed by an open mouth on the shoulder when she was actually being kissed on the cheek. And the surrounding circumstances need to be considered as well. The complainant described the accused breathing deeply, she could feel his stubble against her skin and he was holding her very tightly at the time. Those circumstances all suggest something more than a peck on the cheek or even a kiss on the cheek accompanied by a consoling hug. Possibility that the complainant has mistaken something else for the accused's erect penis. 1. The complainant was asked about the possibility that she might have mistaken something else for what she thought was the accused's erect penis, perhaps a mobile phone or a wallet. She explained that as a married woman she was familiar with an erect penis and what it felt like. She further said that location of what she believed to be the erect penis was inconsistent with it being anything else. 2. I do have to recognise that I am at a disadvantage in determining the likelihood the complainant has mistaken a wallet or a phone for an erect penis when compared to the knowledge that 12 members of the jury would collectively have. A jury consisting of 12 individuals has a much wider experience of life than I have, but with that qualification I have found the explanation given by the complainant as to why she hasn't made a mistake as compelling. She is familiar with her husband's anatomy and knows where on the male body the penis is. It was that part of the accused's body which she could feel pressed up against her leg. A mobile phone would not be in that position, nor would a wallet, or anything else in the accused's pocket for that matter. The complainant's make up was on the accused's shirt 1. It appears to be accepted that when the police went to the accused's home to arrest him, they seized a shirt which had a smear of the complainant's make up on it. The shirt was tendered in the trial. As I mentioned above I have conducted no experiments relating to any issue which arose in the trial and that includes the issue as to how the complainant's make up ended up on the accused's shirt. 2. While the inference which I draw from this is not an overwhelming one, I will say that this circumstance suggests quite close contact between the complainant and the accused which is precisely what the complainant alleges. The transfer of make-up is inconsistent with a embrace of the type which could ordinarily be expected between 2 people who had only met the day before – even if this may have been the second occasion on which they hugged. The accused's desire for CCTV footage 1. One feature of the evidence on which the accused was clearly entitled to rely concerns his request for the police to obtain some footage from his neighbours. The evidence was that the accused's neighbours had a number of security cameras mounted on their home and that soon after he was arrested the accused asked police to obtain footage from those cameras. As it turns out the equipment was not operating and so nothing was made available, but there is no suggestion that the accused knew this at the time he made the request of police. 2. It is not often that accused people would assist police to obtain CCTV footage of them committing a crime. The circumstance that the accused requested a police officer to obtain that footage suggests that he believed he had not indecently assaulted the complainant. This is a matter I have taken into account in the accused's favour when I ask myself whether I am satisfied beyond reasonable doubt that the accused did what the complainant said he did. 3. But when I do that I take into account other matters as well. In particular the accused would have known that the CCTV footage would certainly not assist in determining whether his penis was erect at the time he embraced the complainant and further it is entirely possible that the focus of the accused's mind when he made that enquiry was to obtain evidence that the complainant had entered his home after interaction between them in the driveway. The circumstances were not conducive to sexual arousal 1. The complainant described seeing the accused chatting to his neighbours when she arrived at 11.28 that morning. She also described what he did thereafter and that he appeared to be angry at her for being late. The circumstances were not terribly conducive to the accused becoming sexually excited. Nothing in particular seemed to have happened which might have given the accused an erection. 2. This is an important point especially as I have noted elsewhere I have grave doubts about whether simply kissing a woman with an open mouth to her neck and shoulders would be considered by respectable people in this community applying ordinary standards as indecent. The Crown cannot succeed unless it satisfies me beyond reasonable doubt that the accused pressed his erect penis against the complainant and there is no evidence of anything occurring which may have caused the accused's penis to become erect. It is however human experience that matters of sexuality are almost infinitely variable. Some people become sexually excited by things that would disgust others. Some people are easily sexually excited and others are not. Whilst, as I have said, the argument put by Mr Gleeson is a good one which was deserving of careful consideration, it is but one of a number of matters which I have to consider in deciding whether I am satisfied beyond reasonable doubt of the accused's guilt. Conclusion as to whether the Crown has proved that the accused did what the complainant alleges he did. 1. As is almost universally the case in the criminal law, there are factors pointing towards the accused's guilt and factors pointing in the opposite direction. What I have to do is weigh up all the evidence in the case and decide whether I am satisfied that the Crown has proved the guilt of the accused beyond reasonable doubt. 2. In this case the primary, and indeed determinative question for me to resolve is whether the crown has proved beyond reasonable doubt that the accused kissed the complainant on her neck and shoulders while pressing his erect penis against her. 3. The complainant was an impressive and careful witness whose conduct and observed distress after the relevant interaction with the accused are consistent with her belief that the accused had acted in the manner she said he had. The only aspect of her behaviour which was arguably inconsistent with having been indecently assaulted is, upon examination, easily explicable as a reaction to shock and a failure to immediately decide what to do about a most unexpected and unwelcome event. 4. There is no reasonable possibility that she was mistaken either. That a woman would mistake 4 open mouth kisses to her shoulder and neck for an innocuous kiss on the cheek (or even more than 1) is not a reasonably possibility. 5. A similar thing can be said for the complainant's evidence regarding the accused pressing his erect penis against her. Her explanation of why it is that she could not be mistaken about the nature of the object pressed against her is compelling. 6. The other behaviour described, the deep breathing, the tightness of the embrace and the finding of make up on the accused's shirt all suggest the accuracy of the complainant's description as to the nature of the events that morning.. 7. Cross examination of the complainant revealed nothing to damage the reliability of the complainant's evidence. This is not the fault of the cross examiner either. An honest witness with a good recollection of events is the sort of witness who only becomes more reliable as cross examination continues. 8. Certainly, as I have mentioned, Mr Gleeson raised arguments worthy of consideration. I have mentioned them earlier and explained why I do not consider them compelling. When I perform the exercise required of me, when I consider all of the evidence called by the crown and the arguments advanced by the parties, I find that I am satisfied beyond reasonable doubt that the accused did kiss the complainant on her shoulder and neck while pressing his erect penis against her. 9. Of course, that is not the end of the matter. The Crown has to prove all the elements of the offence beyond reasonable doubt. It is to that matter which I will now turn. Elements 1. The matters which the Crown has to prove beyond reasonable doubt can be conveniently divided up into 4 elements. Given the way that the Crown has particularised its case and given that I would not be prepared to find beyond reasonable doubt that the kissing described by the complainant by itself would be indecent the 4 elements become these. 1. The accused deliberately touched the complainant by kissing her with an open mouth on her neck and shoulders while pressing his erect penis against her. 2. The complainant did not consent to be touched by the accused in that way. 3. That touching was indecent and 4. The accused knew that the complainant was not consenting to being touched in that way. 1. For the reasons I have given above I am satisfied beyond reasonable doubt that the first element is satisfied. 2. No argument was made by Mr Gleeson that if that were the result I would do otherwise than find the remaining elements proved beyond reasonable doubt but I must still address them. 3. The complainant gave evidence that she did not consent to being touched by the accused in the way she described. She was not cross-examined to suggest the contrary. I accept that she did not consent beyond reasonable doubt. 4. I am satisfied that it is contrary to the ordinary standards of respectable people in this community for a person to kiss a virtual stranger with an open mouth on her neck and shoulders whilst pressing his erect penis against her. 5. Finally, given the circumstances of the meeting that morning and the fact that they had met only once before, I am satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting to being kissed in the way she described while the accused's erect penis was pressed into her. Verdict 1. The result is that I am satisfied beyond reasonable doubt that the accused is guilty of the single count on the indictment. ********** Amendments 28 March 2018 - Non publication order now limited to the name of the complainant and of any material which may tend to identify the complainant 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: 28 March 2018