Muench v McCue

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: McWilliam AsJ
• Judgment Date: 10 September 2019
• Date: 10 September 2019
• Docket Number: File Number: SCA 20 of 2018

[2019] ACTSC 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

McWilliam AsJ

File Number: SCA 20 of 2018

Dane Christian Muench

(Appellant)

and

James Christopher McCue

(Respondent)

Representation:

Counsel

Mr K Ginges (Appellant)

Ms M Kent (Respondent)

Cases Cited:

Barca v The Queen (1975) 133 CLR 82

Connelly v Allan [2011] ACTSC 170

Cruz v The Queen [2017] ACTCA 48

Davidson v The Queen [2009] NSWCCA 150, 75 NSWLR 150

Faris v Coulon [2017] ACTSC 114

Greenwood v Barlee [2018] ACTCA 62

Holloway v Thurgar [2016] ACTSC 32

NE v Pruckner [2018] ACTSC 212

Pantorno v R (1989) 166 CLR 466

Peverill v Crampton [2010] ACTSC 79

R v Zaiter [2004] NSWCCA 35

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Ryan v Vizovitis [2017] ACTCA 3

Shepherd v The Queen (1990) 170 CLR 573

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

The Queen v Baden-Clay [2016] HCA 35

Thomson v The Queen [2015] ACTCA

Warren v Coombes (1979) 142 CLR 531

Weir v R [2011] NSWCCA 123

Wyper v The Queen; R v Wyper [2017] ACTCA 59

Legislation Cited:

Crimes Act 1900 (ACT) s 61B

Evidence Act 2011 (ACT) s 144

Magistrates Court Act 1930 (ACT) ss 208, 214

Supreme Court Act 1933 (ACT) s 37O

CRIMINAL LAW — APPEAL — Appeal against conviction of offence of attempting to capture visual data in circumstances of indecency or invasion of privacy — where conduct occurred between two change room cubicles and identity was in issue — whether magistrate erred in findings made concerning sound in change room cubicles — whether denial of procedural fairness — whether verdict unreasonable or unsupported by the evidence

Decision:

(1) The appeal is dismissed

McWilliam AsJ

1 On 6 April 2018, the appellant was found guilty in the ACT Magistrates Court of attempting to capture visual data in circumstances of indecency or invasion of privacy, an offence under section 61B(1) of the Crimes Act 1900 (ACT) ( the Act).

2 The appellant has appealed that finding, with a conviction yet to be entered. The sentencing of the appellant has been adjourned, pending the outcome of this appeal.

Hearing in the court below

3 The hearing in the court below occurred over 23–24 October 2017 and 16 February 2018.

4 It was not disputed that a person engaged in conduct amounting to commission of the offence under s 61B(1) of the Act. The issue was whether the evidence proved beyond reasonable doubt that the person who engaged in such conduct was the appellant.

5 The prosecution case was that between approximately 4.40pm and 5pm on 26 October 2016, in the change rooms in the Kmart store at the Tuggeranong Hyperdome, there were attempts made by a person to film the complainant whilst she was trying on clothes in a change room cubicle. The attempt at filming was made by a person in the adjoining cubicle holding a mobile phone camera under the partition so as to film the cubicle occupied by the complainant.

6 When the complainant realised what was happening, she used her own mobile phone camera to record the mobile phone being held under the partition, and the feet and black unlaced shoes of the person doing the recording. She spoke to that person, saying, according to the parties' submissions which were accepted by the magistrate, ‘I've got this on [camera]’. The video footage actually records the words, ‘I've got this on tape’, although this does not alter the meaning.

7 It was not disputed that the appellant was present at the store at the relevant time, or that he entered and exited the cubicle from which the filming had been attempted. The appellant's case was that some person other than him had entered the change room adjacent to that of the complainant and attempted to film her. It was that other person who was spoken to by the complainant through the partition when she became aware that someone was attempting to film her.

8 The defence contended that after that occurred, the person who had held the mobile phone camera under the partition left the change room. The appellant then entered that same cubicle. The complainant opened the door to the cubicle she was in and sought help from a member of staff. When the appellant later emerged from the cubicle, the complainant confronted him, mistaking him for the person who had used the mobile phone camera.

9 The appellant submitted that this was a reasonable hypothesis, inconsistent with the guilt of the appellant.

10 The appellant exercised his right to not give evidence.

Findings of the magistrate

11 In reasons for decision delivered on 6 April 2018 ( Reasons), the magistrate was satisfied that the evidence established the following facts.

12 The appellant was present at the Kmart store in the Tuggeranong Hyperdome.

13 At some time the appellant entered a change room cubicle next to the one in which the complainant was present when she was filmed.

14 The complainant was filmed with a mobile phone camera held under the partition between her cubicle and the cubicle which was entered by the appellant.

15 The complainant spoke the words (as found by the magistrate) ‘I've got this on camera’. After saying those words, the complainant did not hear any noises indicating that any person had left or entered the adjoining cubicle.

16 The appellant left the cubicle from which the complainant had been filmed after she had been filmed and after she had left the cubicle where she was trying on clothes.

17 The appellant spoke to the persons present outside the cubicle when he left, and what he said amounted to a denial of any wrongdoing.

18 The critical question was whether there was a reasonable hypothesis inconsistent with the guilt of the appellant. The magistrate treated the case as one where the particular facts or circumstances relied upon by the prosecution were properly described as ‘strands in a cable’ rather than ‘links in a chain’, referring to Shepherd v The Queen (1990) 170 CLR 573 ( Shepherd), so that while the magistrate was required to find the facts relied upon to establish the guilt of the appellant as having been established by the evidence, individual facts need not be proved beyond reasonable doubt (Reasons at [16]).

19 The magistrate made a number of findings about different aspects of the evidence relied upon by the prosecution (which were set out in the Reasons at [15]).

20 Relevant to this appeal are the magistrate's findings with regard to the following three aspects of the prosecution's circumstantial case (Reasons at [27]):

• (a) No other male was sighted by any of the witnesses in or around the change room area at around that time;

• (b) The complainant did not hear any noises indicating the person in the adjoining cubicle had left after she alerted them that she had them on tape. Furthermore, she did not hear any noises indicating that another person had then, following that, entered that same cubicle;

• (c) Neither Ms Clarke (a customer in the store standing at the fitting room waiting for her friend to try on clothes, and who saw the complainant come out of her cubicle after the attempt to film her had occurred) nor Ms Bateup (a sales person who was stationed at the fitting room, although not present there continuously at the relevant time) observed anyone leave the change rooms prior to the complainant exiting her cubicle as they stood outside.

21 The magistrate found (Reasons at [41]) that he could not exclude the possibility that there was a window of time, albeit likely to have been short, within which some other person could have exited the change room and the appellant entered it before Ms Clarke and Ms Bateup took up positions adjacent to the fitting room.

22 At [45]-[47], the magistrate stated:

[45] The Complainant's evidence about what she heard, and did not hear, is important. In her testimony the Complainant said that she had not heard anything coming from outside the cubicle she was in, and in particular heard nothing from the adjoining cubicle by way of footsteps or doors opening or closing. The physical layout of the cubicles is apparent from the images in evidence. They have dividing partitions which do not extend to floor or ceiling. I infer that sounds emanating from the adjoining cubicle or from the area immediately outside the cubicle would not be difficult to hear.

[46] The Complainant was understandably upset by what she had seen of the unlawful filming of her, but there is no suggestion that her upset manifested itself in any way which affected her hearing. She had had a verbal exchange with whoever occupied the next cubicle. As a matter of common sense she would have been sensitive to further sounds emanating from it.

[47] Her testimony must be viewed against the background that, had it been some other person filming her that person may well have left the cubicle as quickly and quietly as possible to avoid being caught. Insofar as the Defence hypothesis is concerned, that observation of course applies only to the departure of another person from the cubicle and not to what is suggested as to the Defendant's subsequent innocent entry.

23 The magistrate went on to state at [49]–[53]:

[49] Whether the Defence hypothesis is reasonably open on the evidence goes beyond acknowledging that those possibilities cannot each be excluded and calls for consideration of all of the evidence.

[50] What is pressed for by the Defence as the reasonable hypothesis inconsistent with guilt, must be considered having regard to all of the evidence.

[51] The evidence that the complainant did not hear anything coming from outside the cubicle she was in, and in particular nothing from the adjoining cubicle by way of...