Director of Public Prosecutions (NSW) v Wright and the Local Court of New South Wales

By an amended summons filed on 21 July 2021, the Director of Public Prosecutions (NSW) (the plaintiff) seeks the following orders pursuant to the Crimes (Appeal and Review) Act 2001(NSW) (the Review Act):

In the alternative, the plaintiff seeks the following orders pursuant to the Supreme Court Act 1970 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) (the rules):

It is noted that at the conclusion of the hearing, senior counsel for the plaintiff indicated that in the event that relief was granted on either basis, he did not press any order for costs.

The first defendant did not appear at the hearing, and the second defendant filed a submitting appearance.

The amended summons was supported by the following primary affidavits:

Those four affidavits, along with the pleadings, were contained in a Court Book which was tendered without objection and marked exhibit “A”.

In addition, the plaintiff read three further affidavits which went specifically to the notification which was given to the first defendant of the hearing of the proceedings, and to the service of relevant material, namely:

As I have noted, the first defendant did not appear at the hearing. The evidence relied upon by the plaintiff established the following.

The proceedings were commenced by the filing of a summons on 17 March 2021. The summons was personally served on the first defendant at his residential address on 20 March 2021. [1]

The proceedings first came before the Registrar on 30 March 2021, at which time the first defendant did not appear. The proceedings were adjourned for further directions until 27 April 2021. On 13 April 2021, and again on 22 April 2021, the first defendant was informed, by correspondence sent to him by the plaintiff via express post, of the fact that the proceedings had been adjourned. [2]

On 23 April 2021 Senior Constable Bender personally served the first defendant, at his residential address, with a notice of the listing of the matter on 27 April 2021. [3] At the time of being served, the first defendant confirmed his contact number and his email address with Senior Constable Bender, and also informed him that he had in fact attempted to attend Court personally on 30 March 2021 when the summons was first returnable, but had been told on arrival that he was not able to personally appear and should have telephoned instead. [4]

When the matter came before the Registrar on 27 April 2021, the first defendant did not appear. The Registrar indicated on that occasion that she proposed to make orders listing the matter for hearing on 25 August 2021, and for further mention on 25 May 2021. [5] The first defendant was advised of these orders, both by email and in correspondence sent by express post, on 19 May 2021. [6]

When the matter came before the Registrar on 25 May 2021, the first defendant appeared by telephone. He told the Registrar that the proposed hearing date of 25 August 2021 was suitable and gave him “plenty of time” to seek legal advice from the solicitor who had appeared for him in the Local Court. [7] He also confirmed the correctness of the email address which he had previously provided to Senior Constable Bender. [8]

On 29 June 2021 the first defendant was served, by letter sent via express post, with the amended summons along with the plaintiff's written submissions. This correspondence was subsequently returned marked “unclaimed”. [9] However, on 21 July 2021 the amended summons and written submissions, along with the principal affidavits of Ms Kelly in support of the summons (which annexed, amongst other things, the transcript of the evidence in the Local Court) were sent to the first defendant by email. [10] There is no evidence to suggest that this email was not received.

Further, on 27 July 2021, the amended summons was sent by express post to the first defendant, and confirmation was subsequently received that it had been delivered to the first defendant's nominated address. [11] That address was later confirmed by Senior Constable Bender by reference to the COPS system and records held with the Roads and Maritime Authority. [12]

On 18 August 2021, the first defendant was notified that in the event that he did not appear at the hearing on 25 August 2021, the plaintiff would seek to proceed in his absence. [13] On 22 August 2021, a copy of the amended summons, the plaintiff’s written submissions and the court book index was left by police on the balcony of the first defendant's premises. [14] The following day, 23 August 2021, the first defendant was advised by email that an order for substituted or alternative service may be sought in the event that he did not appear at the hearing. [15]

Rule 10.14 of the rules confers a discretion on the Court to make an order for substituted service. In Wardle v Criniti’s Castle Hill Trading Pty Ltd [16] I observed that in order to make such an order it is necessary for the Court to be satisfied that the method of substituted service sought is one which will, in all probability if not certainty, be effective to bring the knowledge of the proceedings to the defendant. In light of the evidence I have outlined, and particularly in circumstances where the first defendant appeared before the Registrar on 25 May and was aware of the hearing date, I am satisfied that the order for substituted service sought by the plaintiff should be made.

Further, and on the basis of the same evidence, I am satisfied that I should exercise the discretion in r 29.7(2) of the rules and proceed with the hearing in the first defendant’s absence. In making that determination, I am satisfied that the first defendant has been given more than adequate notice.

On 13 November 2019 the first defendant was charged with an offence contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (the Act) which was pleaded in the following terms:

The proceedings against the first defendant came before the Local Court Penrith for hearing on 25 November 2020. Following that hearing, the charge was dismissed by the Magistrate.

MJ (the victim) spent the greater part of the evening of 8 September 2019 driving the first defendant (whom she knew as “Bones”), her friend Kristen, and Kristen’s boyfriend (Brandon) to various locations in the Penrith area, including a licenced club. As a consequence, she had not consumed any alcohol. Earlier that day, the victim had ended a relationship with her partner and had contacted Kristen to assist her in retrieving her personal belongings from her partner's premises. [17]

The victim gave evidence that during the evening the first defendant had made what she described as “advances” towards her, which she had rejected, [18] and which she described as: [19]

When asked whether they were the actual words that she had said to the first defendant in rejecting his advances, the victim said: [20]

In circumstances where the victim had only recently separated from her partner, she did not have anywhere to sleep on the night of 8 September 2019. In her evidence, she was asked: [21]

The victim explained that when she arrived at the first defendant's premises she realised that there was only one bed. [22] She was asked: [23]

The victim said that she went to bed fully clothed, [24] before describing what then occurred: [25]

There was evidence of other events which occurred later that evening and on the following morning to which it is not necessary to refer for present purposes.

Between 9 September 2019 and 11 September 2019 the victim and the first defendant exchanged messages on Facebook in the following terms: [26]

When taken to these messages in her evidence in chief, the victim was asked: [27]

When cross-examined, the victim was taken to that point of the evening in which she had been in the car with the first defendant, Kristen and Brandon, and specifically to the subject of the first defendant’s advances towards her: [28]

The cross-examination continued: [29]

The victim said that she could not recall saying to the first defendant ‘I'm staying at yours’. [30] She was then asked questions regarding the trip to the first defendant's premises: [31]

The victim's evidence was that she had no realistic option other than to go to the first defendant's premises to sleep. [32] She was then asked: [33]

In relation to the incident which formed the basis of the charge, the victim was asked: [34]

Later in the cross-examination the victim was asked: [35]

Subsequently, the victim was asked: [36]

Finally, the victim was cross-examined about the Facebook messages: [37]

The first defendant participated in a recorded interview with police, a transcript of which was tendered before the Magistrate. [38] He made no comment about the substantive allegations were put to him, [39] and made no comment about the content of the Facebook messages. [40]

The first defendant gave evidence before the Magistrate. In respect of the incident giving rise to the charge, he was asked the following: [41]

As to the Facebook messages, the first defendant was asked: [42]

In cross-examination, the first defendant agreed that he had told the victim that she was welcome to stay at his premises. [43] He also agreed [44] that he had engaged in “joking around and flirting” with the victim, which the victim had rejected. The first defendant was then asked: [45]

The first defendant was then asked: [46]

In terms of the actual incident giving rise to the charge, the first defendant was cross-examined as follows: [47]

At the conclusion of the cross-examination, the first defendant was asked: [48]

In the course of their respective addresses, both the police prosecutor [49] and the solicitor for the defendant [50] accepted that the sole issue for determination was that of consent. Regrettably, neither made reference to any of the statutory provisions which were relevant to determining that issue.

In the course of the prosecutor's address, his Honour observed: [51]

These grounds overlap and may be conveniently addressed together.

In reasons which were delivered ex-tempore immediately following the addresses of the parties, the Magistrate recited the terms of the charge [52] before saying the following: [53]

His Honour then summarised those facts which were not in dispute and went on to say: [54]

His Honour then identified what he perceived to be the issue in the case: [55]

His Honour then said: [56]

In summary, senior counsel for the plaintiff submitted that in circumstances where consent had been identified as the issue in the proceedings:

The primary relief sought by the plaintiff is pursuant to s 56(1)(c) of the Review Act. That provision is in the following terms:

As I have discussed further below, one of the submissions advanced by the plaintiff is that the Magistrate failed to have regard to, and apply, various statutory provisions governing the issue of consent. A failure to have regard to a statutory provision which governs the determination of an issue involves a question of law alone. [57]

Further, and apart from a number of specific errors, the plaintiff makes a more general complaint that that the reasons of the Magistrate were inadequate. Inadequacy of reasons amounts to an error of law. [58]

In all of these circumstances, I am satisfied that the plaintiff has an appeal as of right under the Review Act. For the reasons set out below, I am satisfied that the various errors for which the plaintiff contends have been made out.

I turn firstly to address the general complaint that the Magistrate failed to give adequate reasons for his determination to dismiss the charge.

The giving of reasons is an incident of the judicial process. [59] In Beale, [60] Meagher JA observed that whilst a statement of reasons need not necessarily be lengthy or elaborate, it must include a number of fundamental components, namely:

In emphasising that a statement of reasons must be both understandable and logical, his Honour observed [61] that at a bare minimum, a statement of reasons must be such as to place the parties in a position where they understand why the decision was made.

In Pollard v RRR Corporation Pty Ltd [62] McColl JA reviewed a number of the authorities dealing with the obligation to give reasons from which her Honour extracted (inter alia) the following propositions:

These principles were generally applied by Gleeson JA in Keith v Gal. [68]

Whilst I fully acknowledge that the Magistrate’s reasons were delivered ex-tempore, immediately following the evidence and the addresses, in what was no doubt a busy Local Court, those circumstances did not relieve his Honour of the obligation to give reasons which satisfied the principles that I have identified. In my view, his Honour’s reasons fell short of what was required in a number of respects.

There was no issue in the proceedings that the victim had been sexually touched. As I have noted, in the course of the prosecutor’s final address the Magistrate identified consent as the “one issue” which he was required to determine. It is curious in these circumstances that in the course of his reasons that the Magistrate referred, at one point, to “the issue of incitement”. [69] It was not part of the prosecution case that the first defendant had incited anything.

Having identified consent as the “one issue”, the Magistrate then observed that there were “different issues” that the prosecution was required to establish beyond reasonable doubt. [70] At no point in his reasons did the Magistrate identify what those “different issues” actually were.

Accepting that it was not in issue that the victim had been sexually touched, proving the issue of “consent” (as the Magistrate categorised it) required the prosecution to establish, beyond reasonable doubt that:

The Magistrate’s reasons did not identify either of those issues. Given the ultimate determination that the charge should be dismissed, it is to be assumed that the Magistrate was not satisfied of one or the other of these elements. If his Honour he was not satisfied of the first, then the second would not arise for consideration. The final passage of his Honour’s reasons, whilst not expressed as a definitive conclusion, tends to suggest that he was not satisfied of the first of those elements. That said, the very fact that I am left to speculate in that important respect serves as an indicator of the inadequacy of the reasons generally.

In circumstances where the victim gave unequivocal evidence that she had not consented to the sexual touching. However, it would appear from the final passage of the reasons that the Magistrate rejected that evidence. Leaving aside the fact that it is not for an appellate court to make assumptions about, or to speculate as to, what findings were made, his Honour’s reasons are deficient in two fundamental respects. Firstly, bearing in mind that the issue of consent was critical to the contest between the parties, it was necessary for his Honour to expose his findings of fact in relation to all aspects of that issue, and to do so in terms which were both understandable and logical, and which explained why (if it was in fact the case) that the victim’s evidence was rejected. His Honour’s reasons are, with respect, bereft of a clear articulation of any factual finding(s) in respect of either aspect of the issue of consent. Further, his Honour was required to articulate his ultimate conclusions which were reached after applying the law to the facts which he had found, and to expose his reasons for those conclusions. The reasons are bereft of the exposition of any reasoning process at all.

On this basis alone, the plaintiff is entitled to the relief sought.

Towards the conclusion of his reasons [71] the Magistrate queried whether the victim had immediately rejected the first defendant when he placed his hand on her breast, or whether the first defendant’s hand “was there for a longer period, which he may have interpreted as being some sort of permission to continue until that permission was withdrawn”. Whilst it is difficult to ascertain what was meant by that passage, his Honour’s reference to “some sort of permission to continue until that permission was withdrawn” tends to suggest that he concluded that there was some necessity on the part of the victim to communicate her lack of consent, in order for the defendant to have knowledge of the fact that she was not consenting.

Such an approach reflects error. Section 61HE(9) of the Act, to which the Magistrate did not refer, makes it clear that a person who does not offer actual physical resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity. It was not necessary for the prosecution to prove that the victim communicated her lack of consent to the first defendant. [72] In apparently reaching a contrary conclusion, the Magistrate erred.

The Magistrate's reasons [73] included an oblique reference to the “flirting” which had taken place between the victim and the first defendant earlier during the evening. This was followed by his Honour’s observation that in touching the victim on the breast the first defendant had been “trying his luck” before (on his version) removing his hand. On the victim’s account of what had happened earlier in the evening, [74] she had not encouraged the first defendant in any way at all.

If a defendant is aware of a real possibility that a complainant does not consent to sexual touching, he acts recklessly if, having that knowledge, he decides that he will proceed in any event. [75] On the victim’s evidence, she had made it clear to the first defendant that she did not consent. It is not apparent from the Magistrate’s reasons what conclusion was reached about that evidence. However, if that evidence is accepted, what the Magistrate was describing in terms of the first defendant’s actions was, as senior counsel for the plaintiff put it, “quintessential recklessness”.

In my view, this passage of the Magistrate's reasons tends to indicate that his Honour formed the view that defendant was somehow entitled to be reckless as to whether the victim was consenting. Such a conclusion is fundamentally at odds with s 61HE(3)(b) of the Act and reflects error.

There is one further observation which should be made about this aspect of the matter. The victim of this alleged offending was a 21 year old girl. It is evident from the transcript of her evidence, and indeed from the Magistrate’s own observations, [76] that she found both the incident, and the process of giving evidence and being cross-examined about it, quite traumatic. None of that is surprising in the least. The Magistrate was under an obligation to conduct the hearing in a manner which struck an appropriate balance between preserving the right of an accused person to (inter alia) test the evidence, and exhibiting an appropriate level of appreciation and understanding of the victim’s position, and exhibiting an appropriate level of respect to her. The latter aspects of that obligation extended to the terms in which any decision was expressed. Leaving aside the various errors that I have identified in the Magistrate’s reasons, his categorisation of the actions of first defendant in touching the victim’s breast as being tantamount to the first defendant “trying his luck” was demeaning of, as well as offensive and insensitive to, the victim. It was also an entirely inappropriate term to adopt for the purposes of describing an act which may amount to a serious criminal offence. In my view, the use of such terminology has no place whatsoever in the determination of any allegation of sexual offending, and should be avoided.

Section 61HE(4)(a) of the Act required the Magistrate, as the trier of fact, to have regard to all the circumstances of the case, including any steps taken by the first defendant to ascertain whether the victim was consenting to the sexual activity, for the purpose of making a finding about his knowledge concerning the victim’s consent. That was a material consideration. [77]

In R v Lazarus, [78] with the concurrence of Hoeben CJ at CL and Davies J, I said the following:

Although the proceedings against that respondent involved a charge contrary to s 61I of the Act, this statement of principle is no less applicable in the present case.

There was evidence that the victim had told the first defendant (inter alia) that she only wanted to sleep. The Magistrate’s reasons do not give any indication whether he accepted or rejected that evidence. In any event, there was no evidence of any steps taken by the first defendant, reasonable or otherwise, to ascertain whether the victim was consenting to the sexual touching which assumed some significance in the context of s 61HE(4)(a). The Magistrate made no reference to s 61HE(4)(a). His Honour’s reasons do not otherwise reflect that any consideration was given to that provision. I am left to conclude that the principle identified in Lazarus was not applied. In all of these circumstances a further error is established.

For the reasons I have outlined, I make the following orders: