Singh v Police - [2014] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SINGH v POLICE
[2014] SASC 172
Judgment of The Honourable Justice Bampton
13 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW
Appellant convicted of one count of indecent assault – appeal against conviction – where an extension of time is required – whether Magistrate misdirected herself as to the act alleged to constitute the basis of the charge – whether the failure to identify the particulars of the charge resulted in unfairness to the accused and a miscarriage of justice – Crown conceded the appeal and sought a retrial – appellant seeks an order that he be acquitted – whether acquittal should be entered or matter remitted for retrial.
Held:
1.      Appeal allowed and conviction set aside.
2.      Matter remitted to the Magistrates Court for trial.
3.      No order as to costs.
Magistrates Court Act 1991 (SA) s 42(5)(b); Criminal Law Consolidation Act 1935 (SA) s 56, referred to.

SINGH v POLICE
[2014] SASC 172
Magistrates Appeal: Criminal

BAMPTON J: The appellant, Mr Singh, is a taxi driver who was found guilty on 22 August 2014 of one count of indecent assault following a trial in the Magistrates Court. He now appeals the conviction on the ground the Magistrate misdirected herself as to the act alleged to constitute the basis of the charge of indecent assault. In effect, the ground of appeal is that the trial was unfair due to the failure on the part of the Magistrate to hear argument and identify the particulars of the charge in the course of the trial. As the Notice of Appeal was filed 18 September 2014 the appellant also seeks an extension of time within which to bring the appeal.
The circumstances of the alleged offending are that, in the early hours of 7 June 2013, the appellant indecently assaulted a young female passenger.
The Magistrate sets out in her judgment the alleged conduct comprising three discrete incidents of touching, namely:
1the appellant touching the complainant’s cheek with his lips;
2the appellant touching the complainant’s hair; and
3the appellant hugging, kissing and touching the complainant’s breast as the complainant went to leave the taxi (the composite touching).
The Magistrate commented:
Whilst there are three discrete touching alleged it is the last of these which the prosecution points to as amounting as indecent assault, I assume because it is alleged to include a touching of the breast.
The prosecution case relied upon CCTV images from the taxi and evidence from the complainant. All of the touching referred to by the Magistrate is clearly captured on the CCTV footage with the exception of the touch to the breast. The defendant was called to give evidence in his defence.
The Magistrate identified the composite touching of hugging, kissing and touching the complainant’s breast as being particularised by the prosecution as the offence. The Magistrate found that the touching of the breast could not be established beyond reasonable doubt but found the charge was made out on the hug and the kiss. That is, part of the composite touching.
The appellant complains that he was charged with a single count of indecent assault and that the allegations provided by the police alleged the act that constituted the offence was a touch to the complainant’s breast. The appellant complains that the prosecution opened the case alleging the touch to the breast was relied upon to make out the charge. He argues that the prosecution said the other touches were to be led as evidence of general conduct but were not to be relied upon. The appellant maintains that his defence centred on the circumstances surrounding the touch to the breast.
The respondent concedes that the appellant suffered a tactical disadvantage amounting to a miscarriage of justice as a result of the failure of the Magistrate to clarify and hear argument on the particulars prior to verdict. The respondent submits that had the particulars been clear, further exploration in evidence and in addresses would have occurred on the question of the indecency of the kiss and the hug. It is to be inferred that in making this concession the respondent does not oppose an order extending the time within which to appeal.
In light of the concession made by the respondent, I extend the time within which to appeal to 18 September 2014, allow the appeal and set aside the conviction.
The question now is how to dispose of the matter. The appellant asks that an acquittal be entered and an order for costs be made in his favour. The respondent seeks a retrial on one count of indecent assault particularised as the third composite act captured on CCTV, namely the hug and the kiss just as the complainant alights from the taxi.
Background
The standard police information alleged a single offence of indecent assault providing only particulars of date, place and the name of the complainant. The apprehension report alleged the charge comprised touching the complainant’s breast. There was no pre-trial disclosure of or request for particulars.
The prosecution opening did not contain a clear identification of the particulars relied upon. In response to a request from the Magistrate to summarise the allegation, the prosecutor in opening said:
She got into the taxi, she had a conversation with the taxi driver, a bit of banter between the two, at one point he leant over and sniffed her, a bit later on she was taking some bobby pins out of her hair and he then started stroking her hair, and then later on after the taxi has arrived at its destination, which wasn’t a long travel, after she had paid for the taxi she was going to get out when he grabbed her by the arm and pulled her back, and then hugged her and kissed her, and at that point his hand touched her breast, she then got out of the taxi and that was where the incident ceased. And she’ll give evidence that at no time did she want the attention that was given to her.
The appellant’s submissions
The appellant submits that the prosecution is required to state the particulars of the case in their opening statement. He submits that this is to ensure that the trial is directed towards the issues in contest and that the accused is treated fairly. He argues that the prosecution made a decision to lay only one count and opened the case alleging the touch to the breast constituted the offence. He submits the prosecution should have been bound by that decision or have made the defence aware that further particulars were alleged. He contends that the unfairness to him was apparent in that the prosecution at the very last moment changed their position as to what particulars would constitute the offence and the method by which the Magistrate could arrive at a verdict of guilty. He submits that he conducted his case on the basis of the particulars set out in the prosecution opening and that there was no need to ask certain questions, particularly in relation to the issue of the indecency of the hug and the kiss forming part of the composite touching.
Further the appellant points to the affidavit of the police prosecutor sworn 5 November 2014 wherein the prosecutor deposes to being aware at the time of the opening that it would be difficult to prove that the appellant indecently assaulted the complainant when he touched her breast. This is because the touch was not clearly visible on the CCTV footage and the complainant had said in proofing that the touch could have been accidental. The appellant contends that this statement of the prosecutor confirms that up until the time of proofing the act of indecency relied upon by the prosecution was the touching of the breast.
Finally, the appellant submits that if the Magistrate was considering arriving at a verdict of guilty by alternative means, that should have been raised with the defence and any unfairness could have been cured with either an application for a mistrial or the opportunity to comment on the uncharged acts in the closing addresses.
Analysis
The appellant had the opportunity to consider requesting particulars in advance of the trial, particularly in light of the fact that he had access to the CCTV footage which shows the three incidents of touching. He also had the complainant’s statement which refers to three incidents of touching, but only refers to the touching of her breast and not the hug and the kiss with respect to the composite touching.
The defence made no complaint about the prosecution opening, nor did the Magistrate seek any clarification of the allegations. During her evidence, the complainant agreed it was possible that the touch of her breast could have been accidental. There was plainly no case to answer on the touching of the breast alone. Defence counsel did not make a no case submission. Bearing in mind that the CCTV footage was disclosed and produced to the defence prior to the first pre-trial conference, the defence had notice that it was not clear whether or not touching of the breast was deliberate.
The prosecutor’s closing address did not clearly articulate the particulars but did not limit the case to the breast touch alone. The relevant section from the address is as follows:
When [the complainant] is seen to go to exit the car her arm comes up, she is facing away from him, he is seen to grab her arm and pull her… closer to him and that is when he kisses her on the face, but he denied, he said his left arm was around her back but not touching her, and his right arm, he didn’t say where that was, but he said that it had her right hand or her hand had his, but it’s clear from the footage in my submission that he has hugged her because she is drawn close right into him as he is kissing her. The breast touching is not visible in the footage, but I would ask Your Honour to accept the version [the complainant] gave in relation to that and she was quite adamant on that point and even conceded to Ms Mansfield’s questioning that it was possible it may have been accidental but it was in the act of him hugging her. So it is on that basis I ask that you accept that there was a touching of the breast by the defendant and it may have been in the act of him hugging her. However there is also the kiss that he gives her which I submit is still an Indecent Assault. Your Honour I say that the Indecent Assault is made on all the actions that the defendant did in touching the victim.
The respondent submits that the prosecutor’s reference to “all the actions” of touching arguably could be read as being limited to the composite touching. The reference to “all the actions” concludes a passage focussing on the composite touching. The prosecutor highlighted a change in the complainant’s demeanour following the touching of her hair that appears to place emphasis on the composite touching. However, as the respondent concedes, the particulars plainly warranted clarification. Defence counsel did not seek a ruling or clarification from the Magistrate on the particulars. There was no objection raised on the grounds of duplicity, or objection to any perceived expansion of the particulars. In her closing address, defence counsel said:
We then come to the alleged touching of the breast. Your Honour, this case, certainly to my knowledge has been run on the basis that that is the actus reas and the mens rea forming the basis of the alleged indecent assault, it’s not been charged as a series of indecent assaults, and in my submission it is that touching of the breast that is ultimately the matter Your Honour will need to form an opinion in relation to.
Finally, the Magistrate did not raise a concern during the course of the trial about particulars. In the circumstances of this case where the particulars of the prosecution case are unclear and the defence closes on a contrary position, the Magistrate should have clarified and heard argument on the particulars before delivering her verdict. As a result of inadequate particulars defence counsel addressed solely on the touching of the breast, the act that was found not proved.
Having reviewed the evidence of the complainant, the CCTV footage and the submissions made by counsel, I am satisfied that there is evidence which, if accepted by a Magistrate, would provide evidence of each element of the offence of indecent assault. Whether or not the actions of the taxi driver in kissing and hugging the complainant are assaults that occurred in circumstances of indecency, that is circumstances having a sexual connotation, is a matter for the trier of fact.
In my view, whilst the prosecution did not adequately particularise the complaint, the defence must bear some responsibility for not agitating the issue.
This is a case where there is a question of fairness in the manner in which the trial before the Magistrate was conducted. It has been conceded by the prosecution that, in the absence of the particulars, there may have been unfairness to the appellant. The appropriate remedy to overcome such unfairness is to order a retrial.
It is in the interests of justice and fairness to the appellant, the complainant and the community that this matter be retried in the Magistrates Court.
Accordingly, pursuant to s 42(5)(b) of the Magistrates Court Act 1991 (SA), I remit this matter to the Magistrates Court for retrial by another Magistrate.
I decline to make the order for costs sought by the appellant as responsibility for the way in which the trial was run at first instance rests with both parties. My orders are:
1I extend the time within which to appeal to 18 September 2014.
2The appeal is allowed and the conviction set aside.
3The matter is remitted to the Magistrates Court for trial.
4I make no order as to costs.