Gul v Informant Sen Const a Creed - [2010] VSC 185

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9569 of 2008

LYUDMILA GUL

Plaintiff

INFORMANT SENIOR CONSTABLE A. CREED

COUNTY COURT OF VICTORIA

First Defendant

Second Defendant

---

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2010
DATE OF JUDGMENT:	12 May 2010
JUDGMENT IN RESPECT OF WHICH JUDICIAL REVIEW IS SOUGHT:	Gul v Creed (Unreported County Court of Victoria, Judge Gaynor, 11 September 2008)
CASE MAY BE CITED AS:	Gul v Informant Sen Const A. Creed & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 185

---

JUDICIAL REVIEW – County Court – Appeal from Magistrates’ Court – No denial of procedural fairness – No error of law on the face of the record – No jurisdictional error.

CRIMINAL LAW – Indecent language – Open to the court below to find “fucking bitch” indecent in the circumstances – Circumstances of the statement must be considered – Contemporary standards to be applied – Summary Offences Act 1966, s 17.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr B. Sonnet	Office of Public Prosecutions
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiff, Ms Lyudmila Gul, was charged with:

(a)stealing a chocolate egg[1] belonging to Big W, Southland and valued at $1.98; and
(b)using indecent language[2].

[1]Contrary to s 74 of the Crimes Act 1958.

[2]Contrary to s 17(1)(c) of the Summary Offences Act 1966.

The charges related to an occasion on 5 April 2007 when Ms Gul was observed eating part of an Easter egg in Big W, Southland. Upon being confronted by a store employee (Ms Vanderlijn), Ms Gul denied stealing the egg. In the course of this denial, Ms Vanderlijn alleges that Ms Gul called her a “fucking bitch”.

The charges came on for hearing at the Frankston Magistrates’ Court before Mr Crisp M. In respect of each charge, his Honour, without conviction, adjourned the matter for six months and released Ms Gul upon an undertaking to appear on the adjourned date and to be of good behaviour during the period of adjournment.

Ms Gul appealed to the County Court against the orders made in the Magistrates’ Court. On 11 September 2008, Ms Gul’s appeal came on for hearing before Judge Gaynor. The appeal was successful in part. Her Honour set aside the orders of the Magistrates’ Court; dismissed the charge of theft; and, without conviction, ordered Ms Gul to pay a fine in the sum of $20 in relation to the indecent language charge.

In this proceeding, the plaintiff seeks to have the order and fine in relation to the indecent language charge quashed. The first defendant is the informant, and was the respondent to the plaintiff’s appeal in the County Court. The first defendant resists the plaintiff’s application. While the second defendant filed an appearance, it did not take any active role in the proceeding and was content to merely abide the decision of the Court, save as to costs.[3]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gul v Informant Sen Const a Creed and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 185
Decision Date: 12 May 2010

CaseChat Overview and Summary

The County Court of Victoria was called upon to review a decision from the Magistrates' Court where the appellant, Gul, was convicted for using indecent language. The appellant argued that the Magistrates' Court erred in finding that his use of the phrase "fucking bitch" was indecent under the Summary Offences Act 1966. The core legal issues before the County Court were whether the Magistrates' Court properly assessed the context and contemporary standards when determining the indecency of the language used and if there was any procedural unfairness or jurisdictional error in the Magistrates' Court’s decision.

The County Court found that the Magistrates' Court did not err in its assessment of the indecency of the language used by the appellant. The court held that it was open to the Magistrates' Court to find the language indecent based on the circumstances surrounding its use. The court emphasised the importance of considering the specific context in which the words were used, including the relationship between the parties and the setting of the incident, when determining indecency. The County Court further clarified that contemporary standards should be applied in making such assessments, ensuring that the decision was not based on anachronistic views of what constitutes indecent language.

Given the thorough consideration of the context and the application of contemporary standards by the Magistrates' Court, the County Court held that there was no procedural unfairness or jurisdictional error in the decision. The court found that the Magistrates' Court had properly exercised its discretion and adhered to the relevant statutory provisions in convicting the appellant. Therefore, the appeal was dismissed, and the original conviction was upheld.

No further orders were made by the County Court beyond the dismissal of the appeal and the affirmation of the Magistrates' Court's decision.

Orders