It's a reasonable hypothesis consistent with innocence
- Judge Haesler
A Shellharbour assistant store manager has had a conviction for sexual touching without consent overturned on appeal.
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Clint Daniel Corcoran, 47, was sentenced to a 12-month community corrections order and fined $2000 in November 2021, by Magistrate Gabriel Fleming, following a complaint from his 26-year-old then-employee.
The former employee said while she was bent over stocking sunglasses Mr Corcoran tapped her on the buttocks and said "nice shorts".
Upon appeal, Judge Andrew Haesler said he was not satisfied the touching was "inevitably sexual".
"We're talking objectively," Judge Haesler said.
"Is every circumstance in which a person has their bum in the air, going about their lawful duties and is deliberately touched on their bum by another person sexual? Is it sexist to say it's because she's a young, attractive woman, as opposed to a not-attractive woman or builder's labourer? There is no evidence of a grope; she was displaying part of her anatomy as she is perfectly entitled to do, and he touched it.
"There is an alternative hypothesis, that it is an unjustified assault without any sexual thought or connotation whatsoever; not a sexual response, but just a response to the position they were in."
Judge Haesler said he found Mr Corcoran's account of events credible.
"The appellant's version of events is he noticed she was wearing new shorts, that were purchased from the shop," the judge said.
"It wasn't her practice to change her work attire, and so he tapped her on the bum with the back of his hand and said 'nice shorts'.
"What's sexual about the back of the hand?
"I cannot accept the proposition that any deliberate touching of exposed clothed buttocks of a young girl is by definition sexual.
"The appellant has said it was a 'happy, friendly' gesture; that he didn't give it another thought. It's a reasonable hypothesis consistent with innocence."
Judge Haesler said details of other alleged interactions between the employee and Mr Corcoran that were accepted as evidence by Magistrate Fleming were not admissible.
"I could not accept evidence of other acts," he said.
"It clearly goes beyond context evidence. Although they were not illegal acts they went to the offender's state of mind, credibility and character, all of which would have been inadmissible."
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