SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0028
| HANS ANTON JAENSCH |
| v |
| DIRECTOR OF PUBLIC PROSECUTIONS |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 July 2017 |
| DATE OF JUDGMENT: | 20 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 192 |
| JUDGMENT APPEALED FROM: | DPP v Jaensch (Unreported, County Court of Victoria, Judge Meredith, 21 September 2016) (Conviction) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of indecent assault – Whether trial judge erred in allowing prior statements made by complainant to be put to complainant in re-examination – Whether trial judge erred in admitting prior consistent statements of complainant through police informant – Whether trial miscarried due to prosecutor impugning credit of applicant’s wife in closing address – Evidence Act 2008 ss 39, 108(3) – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J R V Kelly SC with Ms G F Connelly | Leanne Warren & Associates |
| For the Respondent | Mr J Gullaci | Mr John Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA:
Following a trial in the County Court, the applicant was convicted of indecent assault committed on 17 May 2014. He had been acquitted of the alternative charge of rape. On 27 January 2017, he was sentenced as follows:
Charge on indictment Offence Maximum penalty Sentence
Cumulation2 Indecent Assault
[Crimes Act 1958 s 39(1)]10 years’ imprisonment 18 months’ imprisonment with community correction order of 2 years Total effective sentence: 18 months’ imprisonment with community correction order of 2 years: 200 hours unpaid community work; supervision; and treatment and rehabilitation. Non-parole period: - Pre-sentence detention declaration: 128 days Other relevant orders Forensic sample order
The applicant now seeks leave to appeal against his conviction.
Circumstances of the offending
The applicant operated a business known as ‘Hands-on Bodywork’. He described himself as a holistic healer and offered services such as Bowen therapy, body shaping and various types of massage.
On 17 May 2014, the complainant, then aged 26, attended the applicant’s premises for a full-body massage. She removed all of her clothing, including her underwear, and wore an eyeshade, which blocked her vision. The applicant used a drape to protect her privacy. The complainant was lying on her back when the applicant removed the drape, exposing her genitals.
The applicant massaged both sides of the complainant’s vagina and her clitoris. She estimated that the applicant had massaged her clitoris for one to two minutes using his thumb.[1]
[1]DPP v Jaensch (Unreported, County Court of Victoria, Judge Meredith, 27 January 2017) (Sentence) [5]. In his sentencing remarks, the judge noted that it was the massaging of the complainant’s clitoris that was left to the jury as the relevant conduct grounding the charge of indecent assault.
The complainant gave evidence about being shocked and confused. She asked the applicant whether women…
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- AGLC
- Jaensch v The Queen [2017] VSCA 192
- Case
- [2017] VSCA 192
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge did not err in allowing the complainant's prior statements to be put to her in re-examination, as it was a permissible method to challenge her credibility. Furthermore, the admission of the complainant's prior consistent statements through the police informant did not prejudice the applicant, as the statements were relevant and admissible under the hearsay exception. The court also held that the prosecutor's comments about the applicant's wife did not impugn her credit in a way that would prejudice the applicant's right to a fair trial.
In light of these findings, the court concluded that there was no basis to grant leave to appeal. The applicant's arguments did not demonstrate that the trial judge's decisions led to a miscarriage of justice, nor did they show that the trial was unfair in any significant way. The court dismissed the application for leave to appeal, upholding the conviction.
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
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Ratio Decidendi
Legal Principle Established
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