Singleton v Police
[2009] SASC 41
•23 February 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SINGLETON v POLICE
[2009] SASC 41
Judgment of The Honourable Justice Gray
23 February 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - RES GESTAE
Appeal against conviction – defendant charged with committing act of gross indecency –whether proceeding should not have been allowed to continue on basis of changing particulars of charge – whether circumstances as found by Magistrate established elements of offence – whether words can constitute act of indecency – whether Magistrate erred in admitting evidence of recent complaint – whether Magistrate erred in relying on evidence of child complainant – whether Magistrate erred in failing to address defence of accident – whether Magistrate erred in concluding prosecution proved case beyond reasonable doubt.
Held: appeal dismissed – defendant aware of factual foundation of charge - words uttered by defendant in circumstances could constitute an act of gross indecency – uttering of words is an act or conduct to be considered in context in which spoken – Magistrate did not err in concluding words spoken by defendant to be shocking, disgusting or revolting to the reasonable person - Magistrate did not err in accepting evidence of complainant – Magistrate did not err in accepting complainant’s evidence - recent complaint evidence was properly admitted and utilised for appropriate purpose - circumstances excluded the defence of accident - charge proved beyond reasonable doubt - no risk of miscarriage of justice demonstrated.
Criminal Law Consolidation Act 1935 (SA) s 58; Summary Procedure Act 1921 (SA) s 22A; Evidence At 1929 (SA) s 34C, referred to.
R v Whitehouse [1955] QL Reporter 100; Attorney-General v Huber (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59; Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435; R v P (Unreported, Supreme Court of South Australia, Williams J, Judgment No S 6312, 20 August 1997); R v Manson (1993) Supreme Court of NSW Court of Criminal Appeal; Harkin (1989) 38 A Crim R 296; Naera v Police (1995) 184 LSJS 326; Police v Cadd & Ors (1997) 69 SASR 15; Rowland v Police (2001) 79 SASR 569; Friedrichs v Police [2007] SASC 6; Johnson v Miller (1937) 59 CLR 467; Walsh v Tattersall (1996) 188 CLR 77; Dalton v Bartlett (1972) 3 SASR 459; LaFitte v Samuels (1972) 3 SASR 1; Hayes v Kenning (Unreported, Supreme Court of South Australia, Duggan J, Judgment No S 3616, 17 August 1992); R v AWL [2003] SASC 416; R v Hunt [1950] 2 All ER 291; Brady v Lenthall [2030] SASR 314; Barrington v Austin & Ors [1939] SASR 130; Ayles (1993) 66 A Crim R 302; Robertson v Samuels (1973) 4 SASR 465; A-G v Huber; Ex parte Daniels (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59; Jonkers v Police (1996) 67 SASR 401; R v Szejnoga (1998) 199 LSJS 97; R v Corkin (1989) 50 SASR 580, considered.
SINGLETON v POLICE
[2009] SASC 41Magistrates Appeal
GRAY J.
This is an appeal against conviction.
Introduction
The defendant and appellant, Brian John Singleton, was charged on Information in the Magistrates Court of South Australia with the offence of committing an act of gross indecency. The offence details were as follows:
On the 2nd day of September 2006 at Roxby Downs committed an act of gross indecency in the presence of [D], being a person under the age of 16 years.
Section 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
This is a minor indictable offence.
On 11 November 2008 the defendant was convicted following a trial before a Magistrate.
On appeal it was complained that due to the prosecution’s changing position with respect to the particulars, the proceeding should not have been allowed to continue. It was said that the proceeding should have been aborted or stayed as a result of the unfairness that arose. It was submitted that the convictions should be set aside on several further grounds. It was contended that the circumstances as found by the Magistrate did not establish the elements of the offence, in particular, that mere words could not constitute an act of indecency. It was then complained that the Magistrate erred in admitting evidence of recent complaint; erred in relying on the evidence of the child complainant because of inconsistencies, vagueness and admitted difficulties with memory; and erred in failing to address a defence of accident. Finally, it was said that having regard to all the circumstances the Magistrate should have concluded that the prosecution had not proved its case beyond reasonable doubt.
Before coming to discuss the grounds of appeal in more detail, it is convenient to address the circumstances of the trial and the Magistrate’s conclusions and reasons.
The Trial
The trial commenced on 20 August 2008 and was further heard on 21 August and 8 October 2008. The defendant was represented by counsel. The prosecution called oral evidence from the complainant, D, and the complainant’s mother and father and tendered a number of witness statements.
The Magistrate made the following findings:
That on the 2nd September 2006, D was at the Roxby Downs Oval for the football final with her parents.
That during the course of the day, D spoke with the defendant in an area near the northern goal posts.
That during that conversation the defendant said to D that her mother was “a fine woman”.
That during that conversation, the defendant spoke to D about “girls parts” and that this conversation included mention of women shaving their pubic area.
That during this same conversation, the defendant asked D what her mother’s pubic area looked like and was given a description by D.
That during or after this conversation, D observed the defendant’s penis “hanging out of his shorts”. At that time D was either lying or sitting in front of and slightly below the defendant.
That as a consequence of having seen the defendant’s penis, D told the defendant that “his private parts were hanging out” at which time the defendant crossed his legs.
That at some time later, D again observed the defendant’s penis and again informed him. The defendant did nothing at that time to hide his penis and shortly after D left the area.
That at some time later in the afternoon, the defendant spoke to D and asked her if she had mentioned the earlier conversation to her father.
That at some time later in the afternoon, the defendant beckoned to D to come to him whilst she was collecting cans on the oval. D declined the invitation. The child’s father witnessed this event. It was also witnessed by JL as described in her affidavit, P.12.
That toward the end of the day, the defendant was in the vicinity of the location where D had left her bicycle. He spoke to her and said words to the effect of “can I see it”, which words the child interpreted as a request to see her vagina.
The Magistrate then reached the following conclusions:
I have reached the conclusion that the evidence does not support the charge of committing an act of gross indecency by exposure of the defendant’s penis. There is no evidence to suggest that this was a deliberate act. The evidence given of what the child saw does not suggest that the penis was outside of the defendant’s clothing, that it was erect or other than visible as a result of the style of the defendant’s clothing. D said that the defendant was wearing shorts. At p.7 of the transcript she refers to the shorts as “very short”. She refers to seeing “the top” of the penis and this is consistent with her evidence that it was “kind of tucked in so you couldn’t see it when you were kind of looking from above but you could see it if you were kind of directly on the slope below him.”
…
There is no statutory definition of “gross indecency”. In R v Whitehouse, it was suggested that “something more than indecency was required to be proved before they could find the prisoner guilty of the charge laid against him”.[1] In Attorney General v Huber Walters J said that “the question whether or not conduct is indecent must rest upon the criterion of the ordinary contemporary standards of decency and propriety within the community”.[2] In Drago, where a number of authorities were considered, Nicholson J held that the word “indecent” should be taken to be “anything that is unbecoming or offensive to common propriety”.[3] In R v Knuller Publishing Printing & Promotions Ltd[4], Lord Reid said, “indecency is not confined to sexual indecency: Indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting”.[5]
In my opinion, engaging a ten-year-old female in a discussion of this kind, including a request for a description of the pubic area of the child’s mother, is behaviour that offends against contemporary standards of decency. It offends common sense to imagine that there was any need to engage in such a conversation for any purpose other than self-gratification. Is it, however, an act of gross indecency?
[1] R v Whitehouse [1955] QL Reporter 100 at 101.
[2] Attorney General v Huber (1971) 2 SASR 142 at 184.
[3] R v Drago (1992) 63 A Crim R 59.
[4] Knuller [1973] AC 435.
[5] Adopted by Williams J in R v P (Unreported, Supreme Court of South Australia, Criminal, Williams J, 20 August 1997).
Finally, the Magistrate reached the conclusion that the words uttered by the defendant in the circumstances could amount to an act of gross indecency:
In this matter “the act” can only be the act of engaging in the conversation and the content of that conversation. As I have already said, I find the content of the conversation including the request for details of RG’s pubic area to be behaviour that offends against contemporary standards of decency. In coming to that conclusion I have considered not only the content of the conversation, including the questions, but also the fact that the defendant is a mature male and the child was 10 years old at the time. In that regard I refer to the remarks of Gleeson CJ in R v Manson, where the Chief Justice said;
“Secondly, his Honour pointed out, in a different connection, that when one comes to evaluate particular kinds of conduct, it may sometimes be relevant to consider the age of the participants in deciding whether according to community standards such conduct is indecent. In my view no exception can properly be taken to what his Honour said about that subject.”[6]
I do not find it unreasonable to suggest that what constitutes an act of gross indecency in the presence of a child may not constitute such an act where the participants are of more mature age. The fact that s.58 is confined to children under 16 would appear to lend some support to that view. I must ask myself if “the conduct which is alleged upon the prosecution case infringes contemporary standards of decency and propriety in a way which can be described as ‘gross’.[7]
…
I am satisfied beyond reasonable doubt that the defendant, in engaging in the conversation, including the asking of questions about the child’s mother, committed an act of gross indecency in the presence of the child. I find the charge proved.
[6] R v Manson (Unreported, Supreme Court of NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Sully J, 17 February 1993). See also the remarks of Lee CJ at CL in R v Harkin (1989) 38 A Crim R 296 at 301.
[7] R v P (Unreported, Supreme Court of South Australia, Criminal, Williams J, 20 August 1997).
The Appeal
An appeal against a judgment given in a summary criminal proceeding is governed by section 42 of the Magistrates Court Act 1991 (SA). Such an appeal proceeds by way of rehearing; it is not an appeal de novo and proceeds upon the documents with power to receive further evidence.[8]
[8] Naera v Police (1995) 184 LSJS 326 at 329-330; Police v Cadd & Ors (1997) 69 SASR 150 at 189-190.
The task of the appellate court upon a rehearing is to conduct an independent review of the evidence, making due allowance for the advantage enjoyed by the Magistrate in observing the witnesses, and to arrive at its own conclusion as to whether the judgment under appeal is correct.[9]
[9] Rowland v Police (2001) 79 SASR 569 at 573-574; Friedrichs v Police [2007] SASC 6 at [20].
Particulars
On appeal it was complained that the lack of particulars caused an unfairness and that the trial should have been aborted or at least stayed until a time when proper particulars were given.
There was a history to the charge laid against the defendant. Initially he was charged on Information with two counts of behaving in an indecent manner in a public place and one count of acting for a prurient purpose in attempting to induce a child to expose a part of her body. This count, as at the time the complainant was under the age of 12 years, was a major indictable offence. The defendant was committed to the Northern District Criminal Court. The new Information laid contained two charges, gross indecency and an aggravated attempt to induce a child to expose her body. A nolle prosequi was later entered in regard to both counts. A fresh Information was then laid in the Magistrates Court containing the one count of gross indecency, the subject of the trial. A written request was made by the defendant for particulars but was not responded to before the trial commenced in the Magistrates Court.
In the course of his remarks the Magistrate addressed the issue of particulars:
I have mentioned the particulars of the charge previously. At the same time as ruling that there was a case to answer I made remarks about the failure of the prosecution and defence to define the particulars of the charge prior to trial. This failure caused some considerable delay in the proceedings.
The matter was complicated by the fact that the prosecutor was uncertain as to what particulars of the one count alleged had been agreed. I make no criticism of the prosecutor. Again, she appears to have been handed the brief by her superiors the day before trial notwithstanding that the matter had been listed for some time.
It was further complicated by the fact that [counsel for the defendant] did not raise the issue with me until the end of the evidence in chief of the child.
[Counsel for the defendant] admitted that there had been a late request for particulars, which in itself is unsatisfactory. I was also informed that no particulars had been agreed in writing. [Counsel for the defendant] told me that she understood agreement had been reached that the act of exposure alone constituted the act of gross indecency. The prosecutor told me that she understood that the exposure combined with the words of the conversation at that time comprised the act of gross indecency and that the evidence of further conversations was simply “background material”.
…
It is not appropriate for me to get into debate as to who said what and to whom about this issue. It is, as I have said, most unsatisfactory that the issue was not resolved before trial. In the circumstances I have decided that I will deal with the matter on the basis that was originally suggested by the prosecutor. That is, that the charge is based upon the exposure and the conversation that appears from the evidence to have immediately preceded the exposure. [Counsel for the defendant] dealt with the issue of the conversation and the exposure in detail and I reject any suggestion that my decision to regard these events as comprising the particulars of the charge creates any prejudice for the defendant.
[emphasis added]
Counsel for the defendant through the course of the exchange about particulars, made it clear that the defendant was content to proceed with the trial in the event that the particulars of the charge related to the exposure of the defendant’s penis and the conversation at or about that time. It is to be observed that this was ultimately the basis on which the Magistrate addressed the charge. The other allegations before the court were treated as part of the res gestae or as the context. The evidence of the other allegations was led without objection and the subject of extensive cross-examination.
When addressing criminal procedure the courts have considered the need for precision and specificity in criminal pleadings. The rationale for the need was the subject of what has been described as the classic exposition of Evatt J in Johnson v Miller:[10]
It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.
[10] Johnson v Miller (1937) 59 CLR 467 at 497-498.
In Walsh v Tattersall,[11] Kirby J referred to a loosening by the legislature of an excessively technical approach:
The need for such extreme strictness was in part ameliorated by the reform of criminal punishments. The passage of Jervis's Act in England led, in turn, to legislation such as is now found in the Summary Procedure Act 1921 (SA). By such enactments the excessively technical approach to criminal proceedings, apt for the past, was no longer universally required. Just as in civil procedure there has been a loosening of the rigidities of technical rules where these would defeat the merits, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality. This is evidenced in Australian decisions such as Byrne v Baker and in England by Merriman. Allowing for their different history and purposes, it is desirable that the same rationality and concern with justice should inform criminal as well as civil pleading and procedure.
[11] Walsh v Tattersall (1996) 188 CLR 77 at 105 (footnotes omitted).
Parliament has legislated in this State with respect to criminal practice and procedure to ensure that form does not override substance. The Summary Procedure Act 1921 (SA) addresses the way in which alleged offences are to be described. Section 22A relevantly provides:
(1)Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
In Dalton v Bartlett[12] Walters J discussed the objects of section 22A in the following terms:
As it seems to me, one of the objects of s 22a(1) of the Justices Act is that the defendant should have reasonable information of the nature of the charge which is made against him, but it may also be a necessary part of the object of the sub-section that reasonable particularity of the nature of the charge should be given so that the prosecution should not be allowed to go beyond it. Whilst a defendant is not entitled to know the sort of evidence on which the prosecution intends to rely or to know exactly what is the case that is going to be made out against him, at all events he has a right to such particulars as will give an indication of the nature of the charge, so that he will be able to plead to it, and, if it becomes necessary for him to do so, to shape his defence to it.
[12] Dalton v Bartlett (1972) 3 SASR 549 at 560. See also LaFitte v Samuels (1972) 3 SASR 1.
Following the finding of a case to answer and further discussion between the Magistrate and counsel on the topic of the particulars, the prosecutor confirmed for the court that the prosecution sought to rely upon the alleged exposure of the penis and the conversation “involving women’s parts”, when the complainant and the defendant were sitting on the lawn. That involved no material departure from the original position as outlined above. The prosecutor further advised the court that the prosecution also sought to rely upon the further contact and conversations between the defendant and the complainant, that is, “all the evidence”. At this time the Magistrate did not suggest or rule that the prosecution should be limited to the earlier particulars.
At all times throughout the trial the defendant was aware of the basis of the charge against him, namely, his alleged actions and words during his interaction with the complainant on the grass. In other words, the defendant was “appraised not only of the legal nature of the offence with which he [was] charged but also of the particular act, matter or thing alleged as the foundation of the charge.”[13]
[13] Johnson v Miller (1937) 59 CLR 467 at 489.
In so far as there was any discrepancy between the particulars supplied and the evidence elicited at trial, the issue on appeal is whether the particulars provided produced any unfairness to the defendant giving rise to the possibility of a miscarriage of justice.[14] The respondent submitted that no unfairness has been demonstrated and that this ground is not made out.
[14] Hayes v Kenning (Unreported, Supreme Court of South Australia, Duggan J, 17 September 1992) at 5.
In the present proceeding as earlier observed, there was an informality about the approach taken to particulars. It is relevant that the defendant did not pursue a written answer to the application for particulars but was content to rely on an informal delivery of particulars. During the course of the trial, the defendant made it plain that he was content for the trial to continue if the allegations of gross indecency were limited to the alleged exposure of his penis and the immediate surrounding conversation with respect to “girls’ parts”. Although the prosecutor at one time stressed that this was the reach of the prosecution case, later it was sought to be extend the particulars to include other conduct and conversations.
In the course of the trial the Magistrate indicated that he would not restrict the prosecution when it came to the consideration of the charge in his reasons. The Magistrate then proceeded to restrict his consideration to the allegations of exposure and the surrounding conversation. The other allegations were treated as part of the res gestae or as part of the context. As a result it can be seen that the Magistrate confined the particulars of the charge to those matters that the defence conceded had been adequately provided. In these circumstances no risk of a miscarriage of justice has been demonstrated.
Credibility and Reliability
D was a child aged 10 years at the time of the incident and 12 years at trial. She gave evidence by closed circuit television. The Magistrate was satisfied that the complainant understood the difference between the truth and a lie. The Magistrate’s summary of her evidence included the following:
On the 2nd September 2006 the football grand final was held at the Roxby Downs oval. D attended in company with her parents and her brother [J]. She sat on a grass area in close proximity to the northern goal posts with her mother and brother and for much of this time she was playing with her dolls and toys.
D told me that she went up and talked to a man. She then went off and came back. She said, “his part was hanging out”. She said that she was sitting in front of him and could see up the leg of his shorts. She described what she saw as “kind of round and pointed and pink”. She said that she had heard men’s parts called “willies” but could not remember any other names.
D said that she told the man she could see his part and he said “yeah” but that he did not do anything about it. She said that she had talked to the man “about girl’s parts and that sort of stuff”. She said “he was talking about how girls sometimes shave the hair off those parts”. She said that the man had said to her that her mother “was a fine woman”. She said, “he wanted to know what my mum’s looked like and I told him. But that was before I noticed”. She explained that it was before she noticed the man’s part.
The complainant gave further evidence about later events and in particular of continuing contact with the defendant. The Magistrate summarised this evidence:
D gave further evidence of events later in the day. She said that she had gone to get some lollies after playing football with her brother and as she was walking back she passed the man who said “you didn’t tell your Dad about it?”. The following exchange then took place;
Q. What happened after that D, do you remember?
A. Well after that, I am not exactly sure, but then I can remember how I was preparing my bike and then he came and he said “can I see it” and I went “no” and left to go, and kinda stayed close to Dad after that and that was after we were getting ready to go home.
Q. He asked “can I see it”?
A. Yes
Q. What did that mean to you D?
A. I thought it meant can he see my private part.
Q. Did he say anything else when he asked you that?
A. No, not that I can remember.
Q. What made you think that he wanted to see your private parts, D?
A. Because he kept on talking about girls parts and that sort of stuff.
The child was then asked further questions which were designed to define the various encounters with the defendant into respective times. She gave further evidence of having been collecting beer cans and seeing the defendant sitting on a log. She said that he spoke to her and said, “why don’t you sit here” but she declined and walked away. She said that this happened after he asked, “can I see it”. Her actual evidence was as follows;
A. No. He said “have you told your Dad about our conversation” and I said “no”. Then after when I was preparing my bike to go home he said “can I see it” and I said “no” and walked away and then he was sitting on a log, which was on the grass and kind of patted it and said “sit down here” and I said “no” and walked away again.
During cross-examination the complainant was challenged about what was said to have occurred. The Magistrate summarised the effect of this cross-examination as follows:
It was suggested to D that she had not had any conversation with the defendant about her mother. She said in reply, “Well I kinda did. I kinda saw no harm in telling him what it looks like. I kinda feel bad about that now”. She then confirmed that this conversation had taken place before she saw the defendant’s penis.
In further cross-examination it was suggested to D that none of the conversation on the grass about her mother had taken place. D said, “Well I kind of, I thought I did but I might not have. I am not exactly sure”. It was then suggested to her that “maybe those things weren’t said and that you have thought about that maybe later”. D said, “Probably”. Shortly afterward she told me that she was a bit tired and it was obvious to me from the closed circuit television picture that the child was losing concentration. I adjourned the matter for a short break.
Upon resuming it was put to D that there had been no conversation about “girls parts”. D said, “I am pretty sure we did. I am”. It was then put to her that nothing was said about “girls parts” and that she was “muddled up”. She said, “it could have” and when it was suggested that she was not really sure she replied, “yes”.
…
D confirmed her evidence about what happened when she went to get some lollies. She said she had walked past the defendant “in the middle of a busy crowd” and he had said, “you haven’t told your Dad yet about our conversation”. D said “no” and the defendant said “good” and walked away. D disagreed that the defendant had said that he was sorry and that it was an accident and when it was put to her that this is what was said she replied, “he may have said it but I didn’t hear it”.
It was put to D that there had been no further conversation between her and the defendant after the discussion in which he had allegedly apologised. D said that there was a further conversation and it had taken place near the bike shed. It was at this time that he asked, “can I see it”. D gave a description using the photographs of the location in which she believed this had taken place.
It was put to D that she may have been confused about what happened when she went to get her bike and that the defendant had said nothing to her. D said, “I am pretty sure he did”. When she was asked if she was “pretty sure” or whether she “definitely remember it”, D said, “I definitely remember, I do. That part I remember the clearest”. It was then suggested to D that “that part never happened”. Again, D said, “I am pretty sure it did” and when it was suggested that it may be hard to remember she said, “Well I know that I have forgotten some things but I am pretty sure I remember that part, I am”.
When dealing with his assessment of the complainant the Magistrate observed:
There is no evidence to corroborate what was allegedly said to D about informing her father of the earlier conversation and there is no evidence to corroborate the child’s evidence that the defendant asked to see her vagina. Having said that, I remind myself that there is no rule of law that the evidence of a child must be corroborated.
I must remind myself that the evidence of RG and TG is only evidence, which can be used as evidence of the consistency of the account given by the child and not as evidence of the facts complained of.
I must remind myself that the evidence of children is to be scrutinised with care. Factors that I must consider include the age of the child at the time of the offence and her present age. I must consider her cognitive development, intelligence and emotional maturity as well as her level of education and her susceptibility to outside influence and suggestion. It is essential that I remind myself that this incident is alleged to have taken place in September 2006, almost two years before the child was required to give evidence of her recollection of the events.
Having watched and heard from the child, I am of the opinion that she is a bright and intelligent young lady albeit slightly immature for her age. She gave clear and spontaneous answers to questions. She sought clarification when necessary and I gained the impression that she was being polite rather than forgetful when she conceded that she may not have observed or heard events or conversations as detailed in her evidence in chief. Overall, I thought that she was a witness of truth.
The Magistrate was best placed to observe the complainant as the key prosecution witness in the trial. He analysed her evidence in detail and warned himself to scrutinise her evidence with care. He found her to be a witness of truth.
A concession on the part of a witness to an imperfect memory due to the passage of time does not render a trier of fact unable to rely upon that witness’ testimony. Properly made concessions as to imperfect memory may serve to support the credibility and honesty of a witness.
During cross-examination the complainant agreed in answer to leading questions that it was “probably” the case that “maybe those things [about the mother’s part] weren’t said and that you have thought about that maybe later…or that it might have happened but it didn’t really”. The complainant indicated that she was tired and requested a break. The Magistrate noted in his reasons that it was obvious that the complainant was losing concentration at that time.
The totality of the complainant’s evidence must be considered. She was clear and consistent in the thrust of her allegations which formed the basis of the Magistrate’s findings. No error has been demonstrated.
Recent complaint
The evidence of the complainant’s mother included an account of a conversation she had with her daughter later that day. The Magistrate summarised this evidence:
RG said that she had received a phone call from her husband at 6.30 to say that he was coming home and about ten minutes later had received another call to say that he was sending the children home on their own. RG said she would wait for them outside. After D arrived home she had sat in the kitchen with her and talked. She said that she had asked her what had happened at the oval. She said that D told her that after she left a man came and sat down next to her. D told her that she had pointed out that she could see his private parts and that he had crossed his legs. She said that he then uncrossed his legs and she could still see his private parts. She said that she had then talked to the man a bit more and had then walked away after saying goodbye.
RG said that D then told her that the man approached her again and said she should show him hers as she had seen his. She said that she had also spoken with the man when she was getting her bike ready. Other children then arrived home and RG discontinued the discussion with D. The police had attended and taken a video statement at a later stage.
When asked about D’s demeanour on the day, RG said that she thought she was a bit confused and a bit worried. She thought that she may have believed she was in trouble.
The evidence of the complainant’s father was summarised by the Magistrate:
TG said that after the game he had observed the defendant beckon the child but that she had said “no” and walked off. At the end of the day he had shut the bar and asked D to get her bike. He said that she went outside from the bar and then came back and had said something about a man standing near her bike. He went out and gave evidence that the man had walked off when he had seen him.
On the way home, TG asked D what the defendant had been speaking to her about. He recalled that she said “this and that” and appeared “really cagey”. He told her that she was not in any trouble but wanted to know what had been said. D then told him that she had seen the defendant’s private parts and he had covered them up.
TG described the area in which D had been sitting as a grassed slope. He said that D was sitting below the defendant and that he was “leaning in” and almost touching her. He said that the defendant was moving about. At times he was sitting almost cross-legged and at other times he had his hands back and legs apart.
When TG called out to D, the defendant had moved away. Later, TG observed the defendant beckoning to D from a position near the top of what he described as the “mound”. He recalled that D had said “no” twice although he then said that he had seen D shake her head and continue on collecting cans.
The recent complaint evidence satisfied the common law test of admissibility in that it was made as expeditiously as could be expected in the circumstances.
Questioning of a complainant by a third party to elicit details of a recent complaint is not fatal to its admissibility.[15] The evidence of the complainant’s parents was properly admitted and appropriately used by the Magistrate as evidence of “consistency of statement or conduct which it tends to show”.
[15] Jonkers v Police (1996) 67 SASR 401; R v Szejnoga (1998) 199 LSJS 97.
Section 34CA of the Evidence Act 1929 (SA)[16] conferred upon the Magistrate a discretion to use the recent complaint evidence, once admitted, as evidence of the facts stated in the complaint.[17] However, the Magistrate did not so use the evidence.
[16] 34CA—Statement of protected witness
(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a) the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b) —
(i) the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii) the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross-examined on such matters if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)In this section—
protected witness means—
(a) a young child; or
(b)a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
[17] R v Corkin (1989) 50 SASR 580.
The recent complaint evidence was properly admitted and utilised for an appropriate purpose by the Magistrate. No error has been demonstrated.
Defence of Accident
The complainant’s evidence was that her viewing of the defendant’s penis occurred accidentally. Plainly this accorded with the defence case. The Magistrate found that there was no evidence that the “exposure” of the penis was a deliberate act. The Magistrate did not rely upon the viewing of the defendant’s penis by the complainant as in any way supporting the charge.
The Magistrate gave full effect to the “defence of accident” so far as it related to the viewing of the penis. On the defence case, this was all it could relate to.
On appeal it was suggested that the prosecution had failed to establish that the words spoken by the defendant had not been the product of accident. In my view this submission is untenable. Once it was concluded that the words had been spoken, their context and the surrounding circumstances excluded any question of accident.
The Elements of the Offence – Can words constitute an act of gross indecency?
The charge alleged an offence against section 58(1)(a) of the Criminal Law Consolidation Act. That section provides:
Acts of gross indecency
(1)Any person who, in public or in private—
(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years;
The question of what constitutes the offence of committing an act of gross indecency in the presence of a person under the age of 16 years is to be considered having regard to Parliament’s intention that section 58 has a wide operation to ensure the protection of children.[18] Neither physical touching,[19] nor an awareness of the act on the part of the child,[20] is required to make out the charge.
[18] R v AWL [2003] SASC 416.
[19] R v Hunt [1950] 2 All ER 291.
[20] R v AWL [2003] SASC 416.
Words have been held to be capable of amounting to behaviour for the purpose of charges of offensive behaviour under the Police Act 1916 (SA),[21] and disorderly behaviour under the Police Act 1936-1938 (SA).[22] Words alone may, in appropriate circumstances, constitute the offence of attempting to procure an act of gross indecency.[23]
[21] Brady v Lenthall [1930] SASR 314.
[22] Barrington v Austin & Ors [1939] SASR 130.
[23] Ayles (1993) 66 A Crim R 302 at 307, 314, 322.
The respondent submitted that in this case, the relevant behaviour of the defendant the subject of findings of fact by the Magistrate concerning the conversation on the grass may properly be characterised as an act, namely that of engaging the complainant, a child, in discussion about matters concerning female genitalia. So viewed, it was open for the Magistrate to find that the conversation related by the complainant of what occurred on the grass involved the commission of an act by the defendant.
It is inaccurate to suggest that the Magistrate was confined to a consideration of “mere words” in this case. Words are to be considered in the context in which they are spoken.[24] The context was of an approach through physical proximity and words in a successful attempt to engage a child in conversation. The purpose of the words was to convey an invitation to a child to continue a discussion about the appearance of the female genitals and, in particular, the genitalia of the child’s mother.
[24] Ayles (1993) 66 A Crim R 302 at 322.
The Magistrate applied the correct legal test for indecency does the conduct offends against “ordinary contemporary standards of decency and propriety within the community”, including “anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting”? The Magistrate correctly directed himself that gross indecency requires something more than indecency. Indecency may be occasioned with or without sexual overtones. Something is indecent if it is of such a nature as to shock, disgust or revolt an ordinary decent person.[25] “Gross” is an indication of the nature and extent of the relevant indecency.
[25] Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 at 458; [1972] 2 All ER 898; Robertson v Samuels (1973) 4 SASR 465 at 470; A-G v Huber; Ex parte Daniels (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59.
The Magistrate concluded that the words spoken by the defendants to the complainant amounted to an act of gross indecency. It was submitted on appeal that mere words could not amount to a relevant act of gross indecency. I disagree. The uttering of words is an act or conduct as much as other forms of physical activity. A “word picture” within the mind of a listener may be created. In any event, as earlier discussed, there was more than that mere uttering of words. There was a context. There was an invitation. There was an engaging conversation. The matters alluded to were grossly indecent in the circumstances.
As earlier observed, the Magistrate accepted that the words uttered by the defendant concerned the appearance of female genitalia and a request made of the complainant that she describe “what her mother’s pubic area looked like”. The Magistrate concluded that the words uttered by the defendant to the complainant would lead the ordinary decent person to reach the conclusion that this incident was shocking, disgusting or revolting. In my view this was a conclusion open to the Magistrate and was the correct conclusion.
Charge proved beyond reasonable doubt
The Magistrate accepted the complainant as a credible and reliable witness in respect to the material events. As earlier discussed, the fact that there had been some vagueness and inconsistency in her evidence was recognised and considered by the Magistrate. He had regard to the criticisms of her evidence. He was entitled to accept the complainant as credible and reliable.
The findings of the Magistrate as to the conversation that took place at about the time the complainant observed the defendant’s penis are findings open to the Magistrate and should not be disturbed on appeal. The surrounding evidence of contact and other conversations between the complainant and the defendant provided, in my view, some support for the complainant’s testimony. The complainant’s conversations with her parents and, in particular, her father, were admissible evidence of recent complaint and were appropriately used. Accordingly, it is my view that insofar as the Magistrate made findings of fact, they were open to him and fully supported by the evidence.
As earlier observed, as a matter of law the conduct of the defendant in engaging the complainant in conversation by using the words earlier described did amount to an act of gross indecency in the presence of a person under the age of 16 years. In particular, they were an act of gross indecency in the presence of a young girl of 10 years of age. It was open to the Magistrate to conclude that the words uttered by the defendant to the complainant at the time or at about the time, she viewed his penis were words that would lead the ordinary decent person to reach the conclusion that the relevant conduct of the defendant was shocking, disgusting or revolting.
Conclusion
In my view this appeal should be dismissed.
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