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Singleton v Police

Singleton v Police

Case [2009] SASC 41 23 February 2009

Appeal

Breach of Contract

Causation

Admissibility of Evidence

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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

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.

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Details

AGLC: Singleton v Police [2009] SASC 41
Case: [2009] SASC 41
Decision Date: 23 February 2009

CaseChat Overview and Summary

The defendant, Singleton, appealed against his conviction for committing an act of gross indecency. The case arose when Singleton was charged with uttering words to a 10-year-old girl in a manner that constituted an act of gross indecency. The appeal raised several issues including whether the proceeding should have been allowed to continue with the changing particulars of the charge, whether the circumstances established the elements of the offence, and whether the Magistrate erred in admitting certain evidence. The central issue was whether the words spoken by Singleton constituted an act of gross indecency.

The court considered the nature of the offence and whether the words spoken by Singleton could amount to an act of gross indecency. The court concluded that the words, spoken in the context of the defendant engaging a young girl in conversation, could indeed constitute an act of gross indecency. The court found that the Magistrate did not err in concluding that the words were shocking, disgusting or revolting to a reasonable person. The court also determined that the Magistrate did not err in accepting the evidence of the child complainant, nor in admitting evidence of a recent complaint. The court found that the circumstances precluded the defence of accident, and the prosecution proved the case beyond reasonable doubt.

The court found that the defendant was fully aware of the factual foundation of the charge and the circumstances surrounding the offence. The appeal was dismissed, and the conviction upheld. The court found no risk of miscarriage of justice and confirmed that the charge was proven beyond reasonable doubt. The court concluded that the Magistrate's decision was correct and the conviction was appropriate given the evidence presented.

No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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Citations

AGLC Citation

Singleton v Police [2009] SASC 41

Most Recent Citation

R v Mittiga (No 2) [2010] SADC 68

Cases citing this decision · 5 of 5 shown

Wilson v The Queen
[2016] ACTCA 56 Para 1

…for her sex education. There is no doubt that words can be indecent so that speaking them can be committing an act of indecency: Singleton v Police [2009] SASC 41 at [45].…
Fleming v Advertiser-News Weekend Publishing Co P/L (No 2)
[2016] SASC 26

…riginshaw (1938) 60 CLR 336; Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; G v H (1994) 181 CLR 387; Singleton v Police [2009] SASC 41; Knuller (Publishing, Printing & Promotions) Ltd v Director of Public Prosecutions [1973] AC 435; Helton v Allen (1940) 63 CLR 691; R v AWL [2003] SASC 416; Rejf…
R v Bushnell
[2015] SADC 139 Para 9

…poken by the accused to a child. Gray J held that words alone, in an appropriate context, could amount to an act of gross indecency.[77] [76] [2009] SASC 41. [77] [43].…
R v Mittiga
[2010] SASCFC 67 Para 11

…ant’s age, the nature and circumstances of the conversation and contemporary standards of morality and decency. I apply Singleton v Police (2009) SASC 41. I find that the indecency was gross in that it was considerably more than minor or trivial indecency and that it can be properly characterised as grossly indecent. I find…
R v Mittiga (No 2)
[2010] SADC 68 Para 34

…e accused and his former wife, with S, then a child of the age of 10. It is clear that words alone can constitute an act of gross indecency.[1] [1] Singleton v Police (2009) SASC 41 at [39]-[46].…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

Friedrichs v Police
[2007] SASC 6 Para 11

…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…
R v AWL
[2003] SASC 416 Para 1

…dren.[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.…
Jonkers v Police
[1996] SASC 5956 Para 16

…ted 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.…
Walsh v Tattersall
[1996] HCA 26 Para 16

…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).…
Johnson v Miller
[1937] HCA 77 Para 15

…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.…
Police v Cadd
[1997] SASC 6187 Para 10

…ovo 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.…
[2001] SASC 179
[2001] SASC 179 Para 11

…agistrate 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…
[1973] AC 435
[1973] AC 435 Para 5

…nt 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.…

Legislation cited in this decision · 3

Criminal Law Consolidation Act 1935 (SA)
58 2 mentions (from Para 2)
Summary Procedure Act 1921 (SA)
22A 2 mentions (from Para 16)
Magistrates Court Act 1991 (SA)
1 mention (from Para 10)