Jaensch v the Queen - [2017] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0028

HANS ANTON JAENSCH

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
Cumulation

2 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…

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.

Continue reading Jaensch v the Queen

Details

AGLC: Jaensch v The Queen [2017] VSCA 192
Case: [2017] VSCA 192
Decision Date: 20 July 2017

CaseChat Overview and Summary

Jaensch was convicted of indecent assault and sought leave to appeal against his conviction, contending that the trial judge made multiple errors. The primary issues were whether the trial judge erred in permitting the complainant's prior statements to be used in re-examination, whether the trial judge erred in admitting the complainant's prior consistent statements via a police informant, and whether the trial miscarried due to the prosecutor impugning the credit of the applicant's wife in the closing address. The court examined these issues against the provisions of the Evidence Act 2008, specifically sections 39 and 108(3).

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