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5
District Court 8 July 2022

R v Wong

[2022] NSWDC 257

Sexual offences
APPEALS CRIME SEXUAL TOUCHING OFFENCE CRIMES ACT 1900 (NSW), S 61KC(A) WHETHER LIBERATO DIRECTION MISAPPLIED

Citation: R v Wong [2022] NSWDC 257
Court: District Court of New South Wales
Date: 8 July 2022
Judge: Abadee DCJ

Background

The appellant, a physiotherapist in private practice, was convicted in the Burwood Local Court on 24 February 2022 of sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (NSW). The Magistrate found that during a cellulite treatment session on 13 May 2020, the appellant placed both hands on the complainant's breasts and massaged them. He was acquitted of a second, related charge. He was sentenced to a 12-month community corrections order.

The complainant had attended the appellant's Ryde physiotherapy practice after responding to a social media arrangement offering free cellulite treatment in exchange for online reviews. On her second visit, she alleged that the appellant, while she lay face-up with a towel across her chest and her shirt placed over her eyes, repeatedly touched her breasts with both hands. She said he apologised when she challenged him and she left the premises shortly afterwards, complaining to police that afternoon.

The appellant denied touching the complainant's breasts and offered an alternative account of events. The case before the Magistrate was, at its core, a direct credibility contest between the complainant and the appellant.

The appellant raised several grounds of appeal against the conviction:

  • Whether the Magistrate misapplied the Liberato direction (which governs how a tribunal of fact must approach a conflict between the accused's evidence and the complainant's evidence when both are given on oath)
  • Whether the Magistrate failed to make adequate findings about the complainant's reliability, as distinct from her credibility
  • Whether the Magistrate gave insufficient weight to inconsistencies in the complainant's evidence
  • Whether the rule in Browne v Dunn was infringed when the appellant gave evidence about matters not put to the complainant during cross-examination
  • Whether the Magistrate wrongly refused to admit a document tendered by the appellant's counsel at the hearing
  • Whether the Magistrate made insufficient use of good character evidence called for the appellant
  • Whether the Crown discharged the ultimate onus of proving guilt beyond reasonable doubt

Decision

Abadee DCJ approached the appeal as a rehearing on the evidence from the Local Court, consistent with the framework established in McNab v DPP (NSW) (2021) 106 NSWLR 430 and Lunney v DPP (2021) 105 NSWLR 236. Under that framework, the District Court forms its own view of the facts while recognising the Magistrate's advantage in observing witnesses, and intervenes where error, whether legal, factual or discretionary, is demonstrated. Critically, if the appellate judge is not satisfied of guilt beyond reasonable doubt, error is taken to have occurred.

His Honour identified concerns with the complainant's evidence, particularly a material difference between what she had reported to police in her contemporaneous complaint and what she said at the hearing about how the appellant had touched her. Although a prompt complaint is ordinarily capable of corroborating a complainant's account, the Court found that this inconsistency undermined rather than supported the prosecution case.

The Court considered the totality of the evidence, including CCTV footage, the appellant's electronically recorded interview with police, a text message in evidence, and good character evidence called on the appellant's behalf. His Honour found that, taken together, the appellant's explanations were not so implausible as the Magistrate had concluded and that the evidence should have at least generated doubt. The Court noted that even where the appellant's own evidence was rejected, the Crown still bore the obligation to prove guilt to the requisite high standard.

Forming an independent judgment of the facts, Abadee DCJ was not satisfied beyond reasonable doubt that the appellant had sexually touched the complainant. On that basis, the Crown had not discharged the ultimate onus of proof, and the conviction could not stand. His Honour did not find it necessary to rule exhaustively on each of the other grounds of appeal, as the conclusion on reasonable doubt was determinative.

Orders Made

  • The appeal was allowed.
  • The conviction for the offence on sequence 1, entered on 24 February 2022, was set aside.
  • The sentence imposed by the Magistrate on 24 February 2022 was also set aside.

Key Takeaways

  • The District Court confirmed that, on a conviction appeal from the Local Court, the appellate judge must form an independent view of the facts: if that judge is not satisfied of guilt beyond reasonable doubt, error in the Local Court is taken to have occurred, even without identifying a specific discrete error.
  • A contemporaneous complaint to police is ordinarily capable of corroborating a complainant's account, but where the content of that complaint differs materially from the complainant's evidence at hearing, its probative value is significantly diminished.
  • Inconsistencies between a complainant's police statement and their in-court testimony remained a live issue even in a credibility-based case where the Magistrate had the benefit of observing witnesses directly.
  • Good character evidence and the overall plausibility of a defendant's account are factors that must be weighed in the round when assessing whether the Crown has discharged its burden; the District Court found the Magistrate gave these matters insufficient weight.
  • The Crown's obligation to prove guilt beyond reasonable doubt is not displaced even where the trier of fact rejects the accused's evidence; rejection of the defence case does not, of itself, establish the prosecution case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61KC, 61KD
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Criminal Procedure Act 1986 (NSW), ss 293A, 294AA
- Evidence Act 1995 (NSW), ss 47, 108(3)

Cases:
- Browne v Dunn (1893) 6 R 67
- De Silva v The Queen (2019) 268 CLR 57
- Ewen v R [2015] NSWCCA 117
- Hofer v R (2021) 395 ALR 1
- Lunney v DPP (2021) 105 NSWLR 236
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- Melbourne v The Queen (1999) 198 CLR 1
- Murray v R (1987) 11 NSWLR 12
- MWJ v The Queen (2005) 222 ALR 436
- Neto v R [2020] NSWCCA 128
- Oneflare Pty Ltd v Chernih [2017] NSWCA 195
- Pell v The Queen (2020) 268 CLR 123
- R v MG (2006) 175 A Crim R 342
- Scaysbrook v R [2022] NSWCCA 69