By Paul Gregoire and Ugur Nedim
In February 2019, a then 15-year-old girl began karate classes taught by NSW instructor Mark Passmore for “about three weeks” commencing on the 4th of that month. The teen complained to NSW police on the 19th, that the then 66-year-old man had made an indecent comment to her.
During the 19 February interview, the teenager said that Passmore stated, “My cock is hard, and my pants got wet”. She explained this happened on the day after her first lesson, which was later established to be 5 February, although she wasn’t “100 percent” certain of the date at the time.
The girl also told police that Passmore had called her every day and that the statement in question involved the worst words he’d ever spoken to her, and that it had occurred “last Tuesday”, which pointed to the call happening on 12 February. Although, the Tuesday prior to that was the 5th.
The interview further saw the teen state that the call in which it was claimed Passmore said the indecent phrase occurred whilst she was on her lunchbreak at Key Employment, and it was later established in court, that she had been working there on the 5th and on the 12th.
The shy teenage girl also told NSW police that she wasn’t “good at remembering” and she was “getting mixed” up. And a series of notes she’d made over the time of the calls, included one dated 14 February, which saw her detail that Passmore had said “his cock was so hard it hurt” on the 12th.
Carriage service offending
Passmore stood trial over the incident before a jury in the NSW District Court in November 2021, as he faced one count of using a carriage service to transmit an indecent communication to a person under the age of 16, contrary to section 474.27A(1) of the Criminal Code 1995 (Cth).
This crime carries a maximum penalty of up to 7 years behind bars.
The initial indictment stated that Passmore made the indecent statement during a call that took place between 7 to 12 February. However, midway through the trial, due to evidence presented, the indictment was updated to allege the words were spoken during 12 February call.
The accused was then rearraigned and he confirmed his not guilty plea. The reason for the change was records revealed that no phone call was made on the 5th, which meant that that call was made over Facebook Messenger and, as that app is not a carriage service, the offence was not triggered.
However, the appeals court later noted that the assertion that the Messenger app cannot be classed as a carriage service “may be open to doubt”.
And in summing up, District Court Judge Jonathon Priestley told the jury that to find Passmore guilty, it must be satisfied beyond reasonable doubt that the words “my cock gets hard” were said on 12 February, as these were the indecent words, while the phrase “pants get wet” was superfluous.
And on 25 November 2021, the NSW District Court jury returned a verdict of guilt.
Evidence at trial
Passmore appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on 7 March this year.
The convicted man did so based on one ground: that “the jury’s verdict was unreasonable and could not be supported by the evidence”, as that provided by the teenage girl was unreliable and didn’t establish beyond a reasonable doubt that the indecent words were spoken on 12 February.
NSWCCA Justice Anthony Payne explained that this sort of ground requires an appeals court to independently assess the evidence to determine whether the verdict was unsafe: in other words, it had to be considered whether the jury must, as opposed to might, have held a doubt about guilt.
His Honour found that during cross examination the teenage girl said she was unsure as to whether the words were spoken on the 5th or the 12th or on both days. And at one point, she agreed he’d said the words more than once: definitely on the 5th, but she was unsure about the 12th.
Both parties had agreed at trial that the 5 February call had occurred over Messenger, and further sections of cross examination transcript that were cited saw the teenage girl also stating the call may have happened on either 7 or 11 February.
Appeal deliberations
Justice Payne found that despite the confusion arising during cross examination, the only viable dates that the offending call could have taken place were on 5 or 12 February, as these calls occurred on the day following a karate lesson whilst the girl was at work.
There was also evidence that the teen had made a complaint about the indecent words to a Ms Bray at Headspace on 12 February, as well as internet searches having been conducted by the girl about inappropriate conduct by men on the 15th, although neither incident confirmed the date of the call.
“The evidence as a whole leaves me with a significant doubt that the relevant indecent communication took place on 12 February 2019,” said Justice Payne. “It is a doubt the jury should have shared.”
His Honour outlined that it wasn’t open to find the words were spoken on 5 and 12 February, as, at best, it was only “possible” to that find calls happened on both days. And, as the teen’s testimony was confused, it couldn’t be established beyond doubt that the words were spoken on the 12th.
Indeed, “the better view” of the girl’s evidence was that it showed she considered the call happened on 5 February. And further, the call on the 12th had been made by the teen, while the assertion in the complaint against Passmore was that he’d made the call in which he said the offending words.
And for these reasons, Justice Payne found the appeal against conviction was made out.
Orders on the day
“I have concluded that the jury, acting reasonably, should have had a doubt about the appellant’s guilt on the only count upon which he was convicted,” his Honour said in concluding his findings. “The jury were in no better position than this court to assess the complainant’s reliability.”
And on 23 March 2023, Justice Payne ordered that Passmore’s conviction be quashed, and that a verdict of acquittal be entered. And these orders were supported by his Honour’s colleagues on the bench NSWCCA Justices Peter Garling and Dina Yehia.
