SHAWALI WALIZADA v GARY CAMERON [2009] ACTSC 78 (9 July 2009)

Last Updated: 10 July 2009

SHAWALI WALIZADA v GARY CAMERON
[2009] ACTSC 78 (9 July 2009)

CRIMINAL APPEAL – Appeal from the Magistrates Court – appeal against conviction –appellant convicted of an act of indecency without consent – whether conviction was unsafe and unsatisfactory – appeal upheld – Magistrate erred in inferring guilt – finding of guilt set aside – matter remitted to the Magistrates Court for rehearing according to Law

EVIDENCE – Whether the Magistrate reversed the onus of proof in relying on the ‘lack of denial’ by the accused – whether the silence of the accused is a permissible basis for inferring guilt – the right to silence – whether the Magistrate failed to take into account the language abilities of the accused – whether the Magistrate gave proper weight to the evidence of the prosecution witnesses – the rule in Browne v Dunne – the rule in Petty v The Queen

Browne v Dunn (1893) 6 R 67
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 102 ALR 129

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 79 of 2008

Judge: Higgins CJ
Supreme Court of the ACT
Date: 9 July 2009

IN THE SUPREME COURT OF THE )
) No. SCA 79 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SHAWALI WALIZADA

Appellant

AND: GARY CAMERON

Respondent

ORDER

Judge: Higgins CJ
Date: 9 July 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and the finding of guilt be set aside.
2. The matter be remitted to the Magistrates Court for rehearing according to law.

1. On 6 January 2008, the appellant was charged that he:

... on 6 January 2008, did commit an act of indecency upon [KR], without the consent of the said [KR], and knowing that she had not consented thereto.

2. A plea of not guilty was entered. The matter was heard before Magistrate Doogan on 18 July 2008.
3. The complainant [KR] gave evidence that she had, on 5 January 2008 gone in to Canberra City with a party of friends including her mother. She had drinks at Cube Nightclub, seven or eight alcoholic drinks in all. She conceded that, on leaving Cube, she was intoxicated, though not so much so as to be refused service. She left Cube at about 2.00 am and waited for a taxi at the taxi rank. She entered a taxi after waiting about 20 minutes with another person named Brady Pollard.
4. On the way home, the driver, the appellant, touched her arm and said, “You feel hot” or words to that effect. He asked about her night and if she had had much to drink. She replied, “Yes”.
5. He touched her arm on the way home she said, “between three and four times”. On arrival, as Mr Pollard was finding money to pay the fare, the appellant took her hand and kissed her on the right cheek. He then placed his hand on her arm again and, she said, “then brushed it across and then grabbed my right breast ... and squeezed it”.
6. She quickly got out of the taxi just as the other people she had been with, including her mother pulled up in a second taxi. She complained to her mother that the appellant had just touched her. She was upset and crying. Canberra Cabs and police were then telephoned and informed of the incident.
7. In cross-examination, the complainant agreed that she had drunk a lot that evening. More than ever before. She agreed that on arriving home, the appellant had apologised for not being able to take the whole party in the one taxi. She agreed the kiss on the cheek which occurred shortly afterward was consistent with a greeting but added “considering I didn’t know the gentleman it took me aback”. She rejected a suggestion that the touch on the breast might have been accidental or in the course of shaking hands. She agreed she said nothing to the driver or Mr Pollard when her breast was grabbed.
8. Mr Brady Pollard next gave evidence. He identified his statement to police of 6 January 2008. He had seen the appellant touch the complainant’s arm, stating it was hot. On arrival at home, he described the incident as he saw it as follows:

At this time [KR] went to thank him for driving us home, she put out her right hand to shake the driver’s hand. The taxi driver pulled her in close to himself holding onto to [sic] her right arm, closing the gap between them and then he kissed her on the right cheek.

9. He also recalled, on the journey home, that the appellant touched the complainant twice on the arm and said she looked hot. After the incident mentioned above, he said, the complainant seemed a bit distraught and ran over to her mother. He was shocked when told of the further details. At the time he agreed with the complainant’s version but conceded he had in fact seen no more than the kiss on the cheek.
10. Mr Pollard considered the kiss to be “inappropriate” but agreed there was no other interaction between the driver and the complainant. Though the complainant told him and her mother after arrival at home that she had been “grabbed” as well as kissed, the complainant did not say that she had been grabbed on the breast.
11. Ms Marlene Hansley was another member of the party and travelled in the second taxi. She recalled that, after arrival at home, the complainant came over to the second cab and spoke to her mother. She burst into tears and said, “Mummy, that man just touched my breast”. That was contrary to Mr Pollard’s recollection.
12. The complaint was then made to the cab company and to police.
13. Constable Gary Cameron attended shortly after 3.00 am at the home of the complainant. He took her complaint, generally in terms consistent with her later evidence. She was then, he said, slightly intoxicated. He did record that the sequence of events first given to him was the grope on the breast and then the kiss on the cheek as the complainant was getting out of the cab. The complainant’s later statement, he agreed, put those events the other way around. He agreed that the taxi had a camera monitor but was not familiar with its operation.
14. A statement of the Chief Executive of the Aerial taxi company indicated that cameras were fitted in all cabs and could not be stopped by a driver though some drivers had installed unauthorised “kill” switches which would be removed if detected on routine inspection. However, in this case, for whatever reason, footage after 1.37 am had, apparently, not been recorded.
15. That was the prosecution case. The appellant gave evidence through a Persian interpreter.
16. He agreed that he had picked up the complainant and Mr Pollard from the taxi rank in Canberra City. He could not take the whole party waiting as he could not take five passengers.
17. He realised, he said, on the journey, that he had touched the female passenger’s arm. She was hot to touch, he could smell alcohol and was concerned she might be sick. He remarked, “You’re very hot”.
18. They arrived at the destination. He described the contested incident in the following terms:

... the lady in the front said “Thank you very much for getting us home”. And she put her hand out to shake hand. I apologised to her because I couldn’t bring all of you. My right cheek on her right cheek and I said “Sorry that I couldn’t bring all of you” and that’s (sic)

19. He said the kiss was a gesture of apology.
20. He demonstrated that action. He assumed the camera in the taxi cab was running.
21. Her Honour, correctly in my view, identified the issue as being whether she was satisfied beyond reasonable doubt that, contrary to his denial of it, the appellant had deliberately touched the complainant upon her right breast. If he did so, in the circumstances alleged by the complainant, the inference that such an act was an act of indecency would be irresistible.
22. Her Honour accepted that the conduct of the appellant, on any view of it, was not indecent or apparently sexually motivated up to that point, though the complainant had felt uncomfortable with his touching of her and his conversation about being “hot”.
23. It was noted by her Honour that, on being arrested, the appellant had the accusation put to him that he had touched the female passenger on the breast. His response on being asked if he understood the accusation was “I don’t know the reason why I was arrested”. Her Honour commented:

He did not deny that he did that, the first thing he said was that he did not understand the reason for his arrest. There was no denial.

24. Her Honour noted his response to the question as to why he kissed the complainant on the cheek, that he wanted to apologise for not taking all five persons, was that it was part of his culture. That explanation her Honour rejected.
25. Whilst accepting that Mr Pollard could not confirm that the act of indecency occurred, her Honour considered that the complaint and the terms and manner of it, as made to the complainant’s mother, did. Her view of the defendant’s credibility was, however, expressed in the following terms:

... I did not find the defendant to be a credible witness at all, and the reason that I did not find him to be a credible witness is because the first question that he responded to was there was no denial by him immediately. “You are accused of touching a passenger on the breast”, he did not say “I didn’t touch her. I didn’t touch her, I didn’t do it” he simply said “I don’t know the reason that I was arrested.” Now that of itself might not be much, and if that was all there was to it then you could probably put it down to perhaps misunderstanding or cultural differences, or differences in language.

26. Her Honour then went on to highlight changes in the evidence he gave as he progressed. The fact that there was a camera in the taxi did not give rise, in her Honour’s judgment, to any doubt that the complainant’s version of the event was true. She found the offence proved.

Appellant’s submissions

27. The appellant pointed out some discrepancies in the evidence of the prosecution witnesses. None of them could be regarded as compelling the rejection of any of those witnesses. It was highlighted by Mr Whybrow’s submission that the appellant had appeared to Constable Cameron, when arrested, not to understand the allegation against him.
28. His evidence that he did not understand the allegation or the taxi surveillance system had not been challenged. Nor was his alleged cultural reason for kissing the complainant on the cheek challenged.
29. The gravamen of the submission is that her Honour erred in drawing an adverse inference from his response to the accusation put to him by Constable Cameron and the equivocal denial he gave to a question about conversations on the journey to the complainant’s home.

No there was no conversation except that when I was driving I had my hand on the box, then at one stage I realised my hand had touch (sic) the passenger’s hand.

30. Complaint was made of adverse inferences drawn from an alleged failure to cross-examine Mr Pollard about his opinion that the touching of the complainant’s arm was not accidental.
31. The only purpose of such cross-examination could be to suggest that Mr Pollard did not hold such an opinion or that it was not soundly based. It is clear that the appellant’s action may have been indicative of a sexual desire but that conclusion could only be reached in light of his action in grasping the complainant’s breast. In other words, it is impermissible to use that opinion to support an inference that the appellant had indecently touched the complainant’s breast.
32. It is that rather than a breach of the Browne v Dunn (1893) 6 R 67 rule that renders her Honour’s reasoning a misdirection to herself.
33. The second complaint is, in effect, that her Honour found the complaint supported, despite the fact that Mr Pollard saw nothing of it, because the appellant did not deny it when the accusation was relayed to him by police.
34. This comment by her Honour (AB11 at 30-34) is a clear breach of the rule accepted by the High Court in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 102 ALR 129. Not only is an overt reliance on the right to silence an impermissible basis for inferring guilt, it must not be used to suggest that a defence relied upon at trial is somehow suspect or unacceptable.
35. It should also be observed that the question asked of the appellant, the answer to which was relied upon by her Honour as supporting an inference of consciousness of guilt, was, even without a question as to his comprehension of the English language, entirely incapable of being so construed. He was asked, not to confirm or deny the allegations, but whether he understood them. He said he did not. That might have been because the language used was not understood or because he could think of no reason for such an allegation being made. In neither case is it logical or reasonable to infer a consciousness of guilt from that answer.
36. It follows that the appeal must be upheld and the finding of guilt set aside.
37. It is not appropriate to comment on the strength or otherwise of the prosecution case. The matter is remitted to the Magistrates Court for rehearing according to law.
38. I will hear the parties as to any consequential orders or directions.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 9 July 2009

Counsel for the Appellant: Mr S Whybrow
Solicitor for the Appellant: Slater & Gordon Lawyers
Counsel for the Respondent: Ms Mackenzie
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 29 April 2009
Date of judgment: 9 July 2009