Singh v Police - [2011] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SINGH v POLICE
[2011] SASC 21
Judgment of The Honourable Justice Duggan
24 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appellant convicted of indecent assault – appeal against conviction and sentence – denial of assault by appellant – whether court misinterpreted the version of events put forward by appellant.
Held: Appeal allowed and conviction set aside – matter remitted to Magistrates Court for retrial – Magistrate’s reasoning relied, in part, on an assumption as to nature of appellant’s defence which assumption was not supported by evidence at trial.

SINGH v POLICE
[2011] SASC 21
Magistrates Appeal: Criminal

DUGGAN J: The appellant was convicted of indecent assault following a trial in the Adelaide Magistrates Court. He now appeals against the conviction and sentence. The appellant was unrepresented at the hearing of the appeal.
According to the prosecution case, the appellant drove the complainant in his taxi from the city to the home of the complainant’s friend at Kensington Park in the early hours of 29 April 2010. It was alleged that the offence took place immediately prior to the complainant alighting from the taxi.
The complainant had been drinking with friends in the city. She walked to the intersection of Hutt and Wakefield Streets and rang for a taxi on her mobile telephone. She said she made the call at 3.13am. She rang Adelaide Independent Taxis. She said a taxi arrived and she sat in the front seat. She was then driven to the Kensington Park address.
According to the complainant’s evidence the fare was $12.30. She had $11.00 in cash and offered to pay by debit card. The driver said to her “$11.00 is fine”. She then thanked the driver and paid him the $11.00.
The complainant said that, at this point, the driver leaned over and kissed her on the lips. She pushed him away and he put his hand down the top she was wearing and placed it on her left breast. As she bent down to pick up her bag, she felt the driver touch her right buttock. She then ran from the taxi to her friend’s house. She was in a distressed condition when she entered the house.
The complainant said she would not be able to identify the driver, but gave the following evidence in examination-in-chief:[1]
QHow would you describe the taxi driver.
AOf Indian appearance. He was wearing a taxi uniform of the shirt and the pants.
QWhat colour was the shirt.
AI believe it was a creamy colour from what I could see, like creamy, mushroom colour. And I recall he was wearing a turban as well I believe it was of a light colour. I didn’t really get the best of looks.
[1] Transcript of Proceedings, South Australia Police v Singh (Magistrates Court of South Australia, Ms E. Sheppard SM, 23 November 2010) at 6-7.
The appellant was questioned by the police on 14 May 2010. He said he was a student and worked part-time driving a taxi with Adelaide Independent Taxis. He told the police that he had a pin number which was recorded in the taxi company’s computer system. The pin was inserted when he commenced his shift. As the Magistrate pointed out, the interview was confusing due to the appellant’s difficulty in speaking English. He denied the allegations and said he had no recall of any incident of the type described by the complainant.
The prosecution called Mr Stathopoulos, the Call Centre Supervisor, employed by Adelaide Independent Taxis. He gave evidence about the company’s system of recording requests and the dispatching of taxis in response. The company computer records the timing of calls for taxis, the action taken by the base operator to dispatch taxis and the movements of the taxis. In effect, the records provide a log of the movements of a particular taxi throughout a shift.
By reference to the computer records Mr Stathopoulos was able to say that, at 3.15am on 29 April 2010, the driver of taxi 2286 was allocated a pickup on Wakefield Street, Adelaide. The records also show that the driver of that taxi accepted the job. The records reveal that the appellant was driving the taxi at the time the job was allocated. There are other entries in the records which indicate the movements of the taxi and communications between the driver and the base operator from that time on. However, Mr Stathopoulos was not asked to explain entries relating to the movements of the taxi after the allocation of the taxi had been accepted.
It can be inferred from the records that the appellant accepted the tasking for a pickup in Wakefield Street at a time which coincides with the complainant’s evidence as to when she made the telephone call. As I have indicated, the records may well provide further information as to what transpired from the time the call was accepted, but Mr Stathopoulos was not asked to interpret them from that time onwards.
The appellant gave evidence at the trial. The difficulties which were encountered during the interview with the appellant’s poor English were also apparent at the trial, despite the presence of an interpreter. The same problem was experienced on appeal. Apart from a denial of the incident, the precise nature of the defence case was difficult to discern. This led to the following exchange between the Magistrate and defence counsel during the cross-examination of the appellant:[2]
[2]    Transcript of Proceedings, South Australia Police v Singh (Magistrates Court of South Australia, Ms E. Sheppard SM, 23 November 2010) at 60-61.
HER HONOUR:   I think I need to be clear really. I’m just a little bit confused about what the defence position is. Is there any dispute that this man was driving cab 28622 or whatever it is on the night in question because I didn’t think there was. I thought that the issue was not one of identification. Is it the case that his position is that he was driving the vehicle but this didn’t happen.
MS ALMEDIA:    Yes, your Honour. That’s correct.
HER HONOUR:   Is that right?
MS ALMEDIA:    Yes.
HER HONOUR:   So I think that you better put that to him in cross-examination and if that’s the case he concedes he was driving the vehicle and these documents that have been put into evidence – I think that should be put to him.
APP TUCKER:     Certainly, your Honour.
XXN
QWere you the cab driver that drove – driving on the 28^th – were on you shift from 28 April to 29 April on a night shift.
AYes. Mostly I was driving night shifts. As I told you some time I drive AIT and sometimes Suburban.
QBut were you the driver of cab – taxi 2286 on the night of 28 April through to Thursday morning 29 April.
AYes, I was driving.
QWere you driving taxi 2286.
AYes.
QWould you agree with the documents that have been tendered that you signed in with the pin number.
AYes.
QWould you agree that you drove [the complainant] to a Kensington Park address.
AIt’s not – if we get the job – it means I took her and drop her house. If not – because as – the call said I get the job. I get any job. It is not possible I was doing that job. Sometimes we are going to a worse than – to particular place for picking up passenger and we couldn’t find the passenger. It is very there but –
QCan you slow down. I’m sorry your Honour, I’m having trouble understanding what the defendant is saying.
In further cross-examination the appellant agreed that he was allocated the job at Wakefield Street at 3.15am. The cross-examination continued:[3]
QThat job was allocated to you and you took it.
AI was driving the cab and maybe I get the job ‘cause I don’t remember. It was a long time.
QYou don’t remember.
AMaybe I get the job but it’s not means I get the job and I took her and drop her at home because when we – if you get the job then you going – the two girls that going far to take the job – if you didn’t found the passenger – at the same time if you get another fare and if we going towards the same place so you didn’t put that in the ‘no show’ button. If you press the ‘no show’ button means you have to – you didn’t found a passenger – you have to near… the patient back. If you didn’t press the button that because the job has been completed successfully – successfully completed. Why I maybe didn’t press the button and I get another fare from there – from the Wakefield Street – is another particular rank or maybe I get another fare.
QI’m sorry, your Honour.
HER HONOUR: He’s given an explanation that suggests that it was possible he was not actually the person who took the job.
AYes, because sometimes if we get another fare, so we will by phone we will give that particular job to my friend or somewhere, so maybe some other taxi driver do the job, I don’t know what happened.
[3] Transcript of Proceedings, South Australia Police v Singh (Magistrates Court of South Australia, Ms E. Sheppard SM, 23 November 2010) at 62-63.
At this point in the cross-examination, the prosecution produced a daily worksheet which the appellant had been required to fill out. The worksheet (Exhibit P6) records a trip from the city to Tusmore commencing at 2.50am and finishing there at 3.00am or 3.10am. The entry is not sufficiently clear to indicate which of the two times was written down. It appears that the worksheet was tendered to confirm that the appellant was driving taxi 2286 at the time the Wakefield Street job was allocated, a fact which he has never denied. However, the entry was inconsistent with the prosecution case in that it did not record a trip to Kensington Park or that general area at the time of the alleged incident. Of course, the probative value of that evidence depends upon the accuracy of the worksheet and it is necessary to compare that evidence with the computer records.
The nature of the defence case was still not clear after the above exchange took place. The Magistrate attempted to further elucidate the appellant’s version:[4]
HER HONOUR: Mr Singh, just so that I’m clear about this, having looked at your daily worksheet, you now agree that you were the driver of that vehicle all night.
AYes.
QBut you have no recollection of driving a young woman called [E] anywhere during the course of that night.
ANo.
QAnd you say that nothing like what is alleged.
AYeah, I never did it in my career – like taxi cab yeah.
[4] Transcript of Proceedings, South Australia Police v Singh (Magistrates Court of South Australia, Ms E. Sheppard SM, 23 November 2010) at 65.
The appellant did not concede that he drove the complainant to Kensington Park. The evidence to establish the fact that he did would have to come from the computer records which would require interpretation by a witness such as Mr Stathopoulos. There is little doubt that the appellant was allocated the job to drive the complainant. The issue which then arises is whether he actually performed the task or whether there is a reasonable possibility that some other driver took over the role in another taxi.
The Magistrate expressed the view in her judgment that the appellant’s worksheet “includes a job which corresponds roughly with the job concerning the conveyance of the complainant to Tusmore sometime after 3a.m.”. However, as I have pointed out, the times do not match. The trip which is shown on the worksheet as commencing in the city at 2.50am and arriving in the Tusmore area at 3.00am or 3.10am seems to coincide more with an entry in the computer records indicating that the taxi left the city at 2.54am and proceeded to Tusmore via Norwood.
Ms Roberts-Thomson, for the respondent, has quite properly pointed out that the appellant’s argument may have been “I may well have been the taxi driver of that car, but I didn’t take that job” and that this version may not have been fully understood by the Magistrate. I agree with that assessment. The Magistrate summarised the defence case in her ex tempore reasons as follows:
The case for the defence in summary is that the defendant did drive the complainant to Kensington Park, but that there was no touching of the complainant at all.
There is a further consideration which was brought to the Court’s attention by the respondent on appeal. It became apparent in the course of the cross‑examination of the complainant that she had provided an addendum statement to the police. A copy of the statement was handed to defence counsel while the complainant was being cross-examined. There is a dispute as to whether the prosecution disclosed the addendum statement before trial.
One of the matters dealt with in the addendum statement was the appearance of the driver. The complainant said in the statement:
In addition to how I’ve already described the taxi driver I think his turban was light blue in colour and I’m sure he was clean shaven. I also remember he was wearing what I would call standard taxi driver uniform i.e a shirt and trousers, neatly dressed. I can’t remember was colour his uniform was.
Ms Roberts-Thomson has advised the Court that the police file records that the appellant had a “full facial beard” at the time he was interviewed two weeks after the assault. There was no cross-examination on this aspect of the statement. Counsel for the respondent was unaware of the entry in the police records. As Ms Roberts-Thomson points out, this might properly have been the subject of cross-examination of the complainant on the issue of identification.
I make no comment on the strength of the prosecution case. However, as has been pointed out, the Magistrate’s reasoning relied, in part, on the assumption that a concession was made by the appellant that he drove the complainant to Kensington Park. The evidence, difficult to follow as it is, does not support that assumption. The finding that the appellant drove the complainant would have to be based on the circumstantial evidence, in particular, the computer records.
The appeal will be allowed and the conviction set aside. The matter will be remitted to the Magistrates Court for trial.