Jaensch v the Queen

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
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 really asked for this type of massage, to which the applicant said words to the following effect: ‘Yes, and men go to brothels, and women go to massage therapists’. He said that he also did home visits.

In his evidence before the jury, the applicant denied that he had touched the complainant’s vagina or massaged her clitoris.

On 21 September 2016, the applicant was convicted of indecent assault.

Proposed grounds of appeal

The applicant seeks leave to appeal against his conviction on the following proposed grounds:

Ground 1: A substantial miscarriage of justice arose as a result of the prosecutor being permitted:
(a)in re-examination to put to the complainant representations previously made by her;
(b)to adduce the content of notes of prior representations by the complainant through the informant.

Ground 2: A substantial miscarriage of justice was occasioned by the prosecutor impugning the credit of the applicant’s wife in his closing address.

Summary of events relevant to the first proposed ground

On the seventh day of trial, the trial judge granted leave pursuant to s 108(3) of the Evidence Act 2008 (‘the Act’) for the prosecutor to adduce prior consistent statements by the complainant in respect of two matters which are the subject of the present application for leave to appeal,[2] namely (a) the applicant’s comment that ‘men go to brothels, and women go to massage therapists’ (‘the brothel comment’) and (b) whether the complainant had said anything to stop the applicant massaging her clitoris.[3] Each matter will be addressed in turn.

The brothel comment

[2]In his written submissions, the applicant also drew attention to the adducing of prior consistent statements in respect of evidence in chief given by the complainant that the applicant had asked her to place her legs in a ‘diamond shape’ during the massage. However, the applicant did not take issue with such statements being adduced in re-examination.

[3]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 478–9.

In her evidence in chief, the complainant said that she was shocked and confused at the time when the applicant was massaging her clitoris.[4] Having massaged her clitoris for ‘a minute or two’, he proceeded to massage her stomach. She said that it was at this stage that she came to her senses and asked the applicant whether women really asked for that sort of massage (‘the massage question’). In response to the massage question, the applicant made the brothel comment.[5]
[4]The complainant does not appear to have protested at this stage.
[5]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 14 September 2016) 345.

In cross-examination, it was put to the complainant that (1) she had said to the applicant that she could understand why women like full-body massages (‘the massage observation’) and (2) the brothel comment had been made in response to the massage observation. The complainant acknowledged that she could have made the massage observation, but she denied that the brothel comment had been made in response to the massage observation.[6] The complainant was then taken to her evidence at the committal hearing on 2 March 2015, where she had said that she could not remember whether the brothel comment had been made after the massage question.[7] During cross-examination, the complainant attributed this inability to recall whether the brothel comment had been made after the massage question to her upset and emotional state at the time of the committal. She repeated what she had said earlier in her evidence, namely that the applicant had made the brothel comment after the massage of her clitoris and in response to the massage question.[8]
[6]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 411–2.
[7]Ibid 412. See Transcript of Proceeding, The Police v Jaensch (Magistrates’ Court at Melbourne, Ms Erlich, 2 March 2015) 37.
[8]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 411–2. To recapitulate: in these reasons, several defined terms are used to describe the course of evidence, including:
(1)‘the massage question’: the complainant asking the applicant whether women really asked for that sort of massage;
(2)‘the massage observation: the complainant observing to the applicant that she could understand why women like full-body massages; and
(3)‘the brothel comment’: the applicant saying to the complainant that ‘men go to brothels, and women go to massage therapists’.

As is evident, it was not being suggested that the brothel comment had not been made; rather, it was being put that the complainant had misstated the context in which it had been made. In particular, it was put to her that the brothel comment had been made in response to the massage observation (she could understand why women liked full body massages) and not to the massage question (whether women really asked for that sort of massage).

Telling the applicant to stop massaging

It is to be recalled that, in her evidence in chief, the complainant said that, first, the applicant had massaged her clitoris (to which it appears she did not protest) and, then, proceeded to massage her stomach. In her evidence in chief, the complainant said that, after massaging her stomach, the applicant seemed to be proceeding towards her vagina again, at which point she said: ‘Can you please not do that?’[9] The complainant then said, in her evidence in chief, that she had made complaints about the incident to several people. She had done so in text messages to two friends.[10] During her evidence in chief, the prosecution tendered two separate text messages that had been sent by the applicant to her two friends (‘the text message evidence’).[11]
[9]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 14 September 2016) 345–6.
[10]Ibid 352–6.
[11]Ibid 354, 356.

In cross-examination, the complainant agreed that her evidence was that she did not react or say anything while the applicant was massaging her clitoris. She confirmed that she had asked him to stop when it seemed that he was about to massage her vagina again.[12]
[12]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 432.

The applicant also cross-examined the complainant to suggest to her that the details of the text message evidence were different from her evidence in chief: it was put to her that, in the text message evidence, she had told her two friends that she had asked the applicant to stop massaging her clitoris while he was doing so,[13] whereas, in her evidence in chief, she had said that she had complained only when it appeared that he was about to massage her vagina again.[14] In response to this suggestion, the complainant said that the text messages to her friends were a summary of the incident and that they were no different to her evidence in chief. The relevant part of the transcript reads as follows:
[13]Ibid 447–50.
[14]On the eighth day of trial, the trial judge heard evidence from, among others, the two friends to whom the complainant had sent the text messages. See Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 16 September 2016) 528–35.

Counsel:… you said to the jury, did you, that you, after he’s massaged your tummy you thought he was heading back to your vagina area and that you said … ‘please can you not do that’?
Complainant: Yes, that's correct.

Counsel:  That’s what you’ve told the jury, isn’t it?
Complainant:           Yes, that’s correct.
Counsel:Do you agree that is different from telling someone that he was rubbing your vagina for about 30 seconds and you told him to stop?
Complainant:           Well, like essentially the same thing. I still have said later on, no.
Counsel:You told [the first friend] that he was rubbing your vagina for 30 seconds and you’ve told him to stop, did you?

…
Counsel:You sent a text message to your friend, [the first friend]?
Complainant: Yes.

…
Counsel:Starts with, ‘I'm lying in bed, feeling like crap’, doesn’t it?

Complainant:           Yes, it does.
…
Counsel:‘Anyways, he massaged everywhere and then got to my inner groin. He then took the drapes off and massaged my vagina. I was in shock and after 30 seconds told him to stop’?
Complainant:           Mm.
Counsel:I suggest thank you [sic] that’s different from what you’ve told the jury in your evidence?
Complainant:           Well, what I’ve said is ccc [sic], what I told the jury is correct. I remember sending these – that message – and being quite embarrassed that I didn’t speak up straight away and [the first friend] is a very experienced trauma counsellor. I didn’t want her to, you know, judge me that I didn’t straight away said, no, but I – it is essentially, you know, he was massaging my vagina and I – eventually I told him to stop.
Counsel:I’d suggest to you that’s not at all what you’ve told the jury?
Complainant:           What I’ve told the jury is correct.
Counsel:You told [the second friend] in a text message also that you told him to stop?
Complainant:           Yes, that’s correct.
Counsel:And I’d suggest to you that’s different – I have to formally put it to you that’s different to what you’ve told the jury giving your evidence, isn’t it?
Complainant:           I’ve said – I said to him, ‘Can you please not do that’ … And it’s not the exact words of ‘stop’, but it is essentially the same thing.
Counsel:I’d suggest to you it's different, and the way you describe it to your friends is different?
Complainant:           Yeah.
Counsel:Namely, that during the time that he’s touching you, you’ve told him to stop?
Complainant:           I feel generally it’s the same thing.
Counsel:So to be clear, not only is the wording different, but the context that you’ve described is different, isn’t it?
Complainant:           It's still – for me it feels like I’m, in summary, saying yes, I had a massage down there and I asked him to stop, that’s what did happen.[15]

[15]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 448–50 (emphasis added).

As is evident, the issue being tested was whether and, if so, when the complainant had asked the applicant to stop massaging her clitoris. In her evidence in chief, the complainant had said that she had protested when the applicant appeared to be about to massage it for the second time. In her cross examination, it was put to her that she had given an account to her friends of when she protested (by way of the text messages) that was inconsistent with her evidence in chief.

Evidence adduced in re-examination: proposed ground 1(a)

Before commencement of re-examination of the complainant,[16] the prosecutor sought leave to adduce prior consistent statements made by the complainant.[17] The statements to which the prosecutor sought to refer were contained in (1) the notes taken by police the day after the incident (‘the police notes’) and (2) the complainant’s statement to police made four days after the incident (‘the statement to police’).[18] The prosecutor sought leave to re-examine the complainant on two topics which are the subject of the present application for leave to appeal: (a) the brothel comment and (b) whether the complainant had said anything to stop the applicant massaging her clitoris. The prosecutor, in oral submissions to the trial judge, explained the basis upon which he sought leave to adduce prior consistent statements in the re-examination of the complainant on those topics:
[16]The cross-examination of the complainant ended soon after lunch on the seventh day of trial. See Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 456.
[17]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 457.
[18]Ibid 457–69. The applicant submits that this exercise extended beyond matters related to re-establishing credit. The applicant also observes that the complainant ‘was not clearly asked if [the police notes] were true’ and that, as is apparent at pages 486 and 488 of the transcript, she indicated that she could not recall the content of parts of her initial conversation with police.

(a) as to the brothel comment, the prosecutor said:

[In cross-examination of the complainant] it was put that such words were exchanged in a completely different context to the one that [the complainant has] deposed to, namely that it was soon after the interference when she asked him, do women have these sort of massages, his response, according to her evidence, was [the brothel comment].
…
And she was cross-examined, from page 37 of the [complainant’s evidence at the committal] about how she had suggested a different context, being the massaging of her tummy, that that’s what she asked.
…
Of course, the passage that I’ve referred your Honour to at page 37 of the [complainant’s evidence at the committal] that was being relied on to suggest that inconsistency about the context refers to … the tummy massage again, which is what she said happened straight after the sexual assault.[19]
[19]Ibid 457–60.

(b) as to whether the complainant had said anything to stop the applicant massaging her clitoris, the prosecutor said:

The topic in question is the questions that were asked about … her saying to other witnesses how, ‘he massaged me for 30 seconds on the vagina and then I told him to stop’.
…
That’s essentially the topic and she, to some extent, she said in answer to [counsel for the applicant], that to her it’s all the same, it’s all the same thing and it was sort of a summary or basically what he’d [sic] happened, given in a succinct form in that message form.[20]

[20]Ibid 468.

Before hearing from counsel for the applicant, the trial judge expressed a preliminary view that he would grant leave to the prosecutor.[21] Counsel for the applicant objected to the prosecutor ‘being permitted to go through this whole sequence’ by reference to the police notes and the statement to police.[22] She addressed the issue whether the complainant had said anything to stop the applicant massaging her clitoris. The basis of the trial judge’s preliminary view is apparent from the following exchange:
[21]Ibid 470.
[22]Ibid.

Counsel:… my cross-examination was not limited to the text messages.

Judge: Yes.
Counsel:I also asked her about conversations, i.e. if the jury accept text messages might be a shortened version while there's conversations here as well. So it wasn’t put that it was a truncated version.

Judge: Right.
Counsel:What was put was that it was a different version, i.e. during the course – during the time when he is massaging her vagina, after 30 seconds she told him to stop, and she’s given her answer, she’s disputed that and said, ‘No, what I was referring to is when he went to go there again, I said, “Can you not do that”’ So in my submission that’s not a matter which my learned friend ought be allowed to go back to either her statement or the police officer's notes about it, because she's given a clear answer in relation to that.

Judge: What about the content of the text messages?
Counsel:Well, she’s also said that, that it was a shortened version of it. So [the prosecutor] could ask a non-leading question, or non-leading questions about it, but to be permitted to then put – rejuvenate her by putting swathes of the [police notes] and from 47 to 50 of [the statement to police], in my submission, ought not be permitted, leave ought not be granted in relation to that. There’s no ambiguity in as far as credit is concerned. Well, she’s given her answers in relation to that.
Judge:All right … You’ve made quite a bit out of the content of the text messages, haven’t you?
Counsel:Well, to make sure it was clear, I put to her the way she’s said it in a text message is it’s during – after 30 seconds of massaging she has said stop. That’s the one to [the first friend].
Judge:Well, I thought it had the potential to be used to attack her credit and would be the springboard, in effect, to be a prior inconsistent statement.
Counsel:However, she’s given her answer about that, that … she says, ‘Well, I meant that in that different context.’

Judge:Yes, but that may be a jury issue. I mean the jury aren’t bound to accept that answer, are they? The evidence is in. I mean they’ve got the written word of the text messages. What [the prosecutor] wants to [do] is to enlighten them to the fact that proximate in time to the sending of the text messages and proximate in time to the occurrence of the events, she’s given, to use his words, a less compressed version of what happened. They don’t have that. They're in ignorance of that.

Counsel: Except from what the witness has said herself.
Judge:Yes, but the witness hasn’t said ‘I told the policeman this. You’ll find this in his notes.’

Counsel: No.
Judge:She hasn’t said, ‘Have a look at paragraph’, whatever it is, ‘47 of [the statement to police], you’ll find it in there.’ The jury don’t know anything about that. All they’ve got at the moment is, I don’t know, the account in the text to [the first friend] … in writing, in front of them, as an exhibit, and your cross-examination on it and her response.[23]

[23]Ibid 471–3 (emphasis added).

At this point, counsel for the applicant, the prosecutor and the trial judge deliberated over the sections of the police notes and the statement to police that ought to be adduced in re-examination.[24]
[24]Ibid 473–7.

The trial judge ultimately granted leave pursuant to s 108(3) of the Evidence Act 2008. He did not give detailed reasons for granting leave until the next day; by then, the re-examination of the complainant had already taken place.

During re-examination, the prosecutor reminded the complainant of parts of her evidence that she had given earlier in cross-examination regarding the brothel comment:

Counsel:… Now, earlier today you were asked questions about you remember you have given evidence that the sexual assault, namely the massaging of your vagina and the massaging of your clitoris occurred and that he went back to the tummy?
Complainant: M’mm.
Counsel:And then when you had composed yourself, shortly after he had touched your clitoris et cetera, you asked him whether people asked for these sort of massages?
Complainant: Yes.
…

Counsel:  You have given evidence about that?
Complainant:           Yes.
Counsel:And you were cross-examined and it was put to you in effect that words like that were said to you but in a quite different context. Do you remember that cross-examination?
Complainant:           Yes.
Counsel:And page 37 of the [complainant’s evidence at the committal] was read to you where these questions were asked in the context of the tummy massages that followed your evidence of sexual assault and you were asked at the committal and you were taken to this this morning, ‘Was there any conversation between you after he’d stopped doing that?’ ‘Yes, while he – yeah, while he was massaging my tummy, I said something like, “Do women really ask for this type of massage?” That’s what came out of my mouth. He said yes’?
Complainant:           Yes.
Counsel:You were taken to that passage, you remember?
Complainant:           Yes.
Counsel:In the context of being challenged as to what context he said those words? You remember that cross-examination?
Complainant:           Yes.[25]

[25]Ibid 484–5.

Next, the prosecutor led the complainant through parts of the police notes which related to the brothel comment:

Counsel:So on the Saturday 17 May 2014 you spoke with a police officer and I think I can lead you on this. Did you say amongst other things, just listen carefully, ‘Then removed towel completely. Left completely naked on bench. Massaged my vagina right into the left side, right into the right side. Then massaged my clit. Move up and massage stomach’. You said that. There will be evidence that the police recorded that as what you said – wrote in the note that what you said, you accept that?
Complainant: Yes.
Counsel:Then it says, ‘I said’, meaning you said, ‘do people ask for this type of massage?’ He said, ‘Yes, all the time. Men go to brothels and women go to massage therapists and I do home visits’?

Complainant:           Yes.
Counsel:  You said that to the police, correct?
Complainant:           Yes, that’s – that’s correct.
Counsel:Straight after describing the vaginal touching and the clitoris, correct?

Complainant: Yes, that’s correct.[26]

[26]Ibid 485–6.

The prosecutor then reminded the complainant of parts of her evidence that she had given earlier in cross-examination on the issue whether she had said anything to stop the applicant massaging her clitoris:

Counsel:Now, the next thing I want to ask you about is, you were asked questions … about text messages that you sent to two of your friends, [first friend] and [second friend], is that correct?
Complainant:           Yes, that’s correct.
Counsel:… well first of all, looking at the [text message to the first friend] … ‘Anyways, he massaged everywhere and then got to my inner groin and he then took the drapes off and massaged my vagina. I was in shock and after 30 seconds, told him to stop.’ You were asked questions about that, weren’t you?
Complainant:           Yes I was.
Counsel:And then it goes on, ‘I’ll go home.’ All right. You were asked questions about that, and you were asked questions about messages to [the second friend] … you were asked questions about the bits that say ‘The massage therapist touched me down there and I asked him to stop.’ You were asked questions about that earlier on today?
Complainant:           Yes.

Counsel:  Is that correct?
Complainant:           Yes.
Counsel:  You remember those questions?
Complainant:           Yes. Yes.
Counsel:You gave an answer – I don’t know that I’ve got an exact note, but you said something to the effect that it’s the same thing, you were talking about the same thing.[27]

[27]Ibid 487–8.

The complainant was also led through parts of the statement to police. The relevant part of the transcript reads as follows:

Counsel:… And I want to take you again to your conversation with the police, first of all, on the Sunday?
Complainant: M’mm.
Counsel:Just listen to what I'm – again, I can lead you on this. This is after you’ve told the police about your question about whether people do this, ask for this sort of massage. You go on, ‘He then started to go back down towards vagina, touched it again. I said, “Can you not do that”’ That’s what you said to the police on the Sunday, isn’t it?
Complainant: Yeah, I can’t recall the conversation that I had with the - - -
Counsel:All right, well, there will be evidence about it. Would you turn back to [the statement to police], on the Wednesday?

Complainant:           Yes.
Counsel:                  If you look at paragraph 48, please?
Complainant:           Yes.
Counsel:Just follow as I read it. ‘Once he finished doing that’, referring to the vaginal massaging and the clitoris massaging, ‘he started massaging my tummy. I then sort of collected my thoughts a bit. I then said to him, “Do women really ask for this type of massage?”’ You said that, didn't you?

Complainant:           Yes, I did.
Counsel:                  In [the statement to police] I mean?
Complainant:           Yes.
Counsel:Going on, ‘He said, “Yes, men go to brothels and women go to massage therapists. I also do home visits.”’ You’ve got that in [the statement to police], haven’t you?
Complainant:          Yes, I do.
Counsel:Then the next paragraph, if you follow it, ‘He then started to massage back down towards my vagina. I said, “Could you please not do that.” He said, “Okay.”’ That's in [the statement to police], isn’t it?
Complainant:           Yes, it is.

Counsel: Was that all true? Was that all true?
Complainant: Yes, that’s all true.
Counsel:Now you were asked questions, I think, this morning about how – when you were massaged on your vagina and your clitoris, you didn’t say or do anything by way of protesting or getting up and so forth. Remember those questions?

Complainant:           Yes, I do.
Counsel:  Was there a reason why you didn’t?
Complainant:           Because I was in so much shock, a lot of me was just confused and I had – I remember questions going through my mind like ‘What is happening? Is this supposed to be part of the massage?’ I was just in a lot of shock and I froze.[28]

Ruling on admissibility

[28]Ibid 488–9. The applicant argues that it is not clear what the word ‘all’ in that exchange (‘Was that all true? Was that all true?---Yes that’s all true’) referred to.

The next morning, on the eighth day of trial, the trial judge gave his detailed reasons for granting leave to the prosecutor to adduce in re-examination the prior statements made by the complainant:

Late in the day yesterday, after argument, I gave the prosecution leave for re-examination to adduce evidence of prior consistent statements given by the complainant either the day following the commission of the alleged offences or in [the statement to police] signed four days after the commission of the alleged offences.
Section 108 of the Evidence Act states the credibility rule does not apply to evidence of a prior consistent statement of a witness if (A) evidence of a prior inconsistent statement of the witness has been admitted or (B) which allows for a number of other occasions whereby a prior consistent statement may be admitted.
Odgers in his commentary states there is no requirement that the prior consistent statement should have been made at any particular time. Thus, it may have been admitted even if it was made after the alleged prior inconsistent statement. However, the timing of the prior consistent statement and its ability to answer the challenge to credibility arising from the evidence of the prior inconsistent statement would be material to whether leave is granted.
In her evidence in chief, the complainant deposed to a conversation taking place with [the applicant] at or about transcript 345. This was to the effect of after massaging the complainant’s clitoris [the applicant] massaged her stomach area and she said to him, words to the effect, ‘Do women really ask for this type of massage?’ And he replied, words to the effect, ‘Men go to brothels and women go to massage therapists and I also do home visits.’ She said that [the applicant] then started to move toward her vagina area again and she asked him, ‘Can you please not do that?’
In cross-examination of the complainant at transcripts 412 to 413 she is cross-examined about answers she gave at the committal hearing of this matter in March of 2015. The alleged offences having occurred on 17 May 2014 and at the bottom of … page 412 of the transcript … the last question from the portion of committal transcript is … ‘So, that was the conversation at that point?’ Answer, ‘That’s when he might have said, that’s when, I can’t remember, I can’t remember if he said about women going to massage therapists comment.’ Then, Question, ‘You just couldn't say one way or another now?’ Answer, ‘No, M’m.’
And over the page at 413, it’s put to her, ‘Different again to what you're firmly telling the jury now is that this conversation about ‘women going to massage therapists and then going to brothels?’ ‘M’m.’ Was after he’s massaged your stomach when you were lying on your back and she then goes on to give an answer. The last question put to the complainant concerning when this conversation occurred is as I have just indicated.
In my view the fact that the day after the alleged offending and then four days after the alleged offending the complainant fixes the conversation with certainty as occurring at a particular point in the time of the dealings with [the applicant] consistent with her evidence-in-chief is appropriate to have been adduced in re-examination.
Having regard to the timing, content of the prior inconsistent statement that’s been put as well as what I have permitted in re-examination, in my view, this is capable of answering the anticipated challenge to the witness’s credibility arising from the prior inconsistent statement, the subject of cross-examination at pages 412 through to 413.
…
Finally, she was cross-examined about the content of text messages she had sent to friends on the day after – of the offending and the day after the alleged offending. At transcript 447–450 this occurs in summary. In any event, I will not go through that portion of the transcript, but it is to be found at 447–450.
In her evidence-in-chief she indicates that the massaging of her clitoris – that after massaging her clitoris and then commencing the massage of her stomach she had asked [the applicant] if women really asked for this type of massage, etcetera, that [the applicant] then went back down toward her vagina and she asked him not to do so.
In my view, it was appropriate to allow in re-examination the prior consistent statement made the day after the alleged offending and three days later in the police statement as material which can legitimately be used to answer the anticipated challenge to her credibility having regard to the timing and content of the prior consistent statement.
In regard to the prosecution application, I have allowed re-examination on the portions of the complainant’s police statement because in the individual circumstances of this trial I am of the view that its proximity in time to the alleged offending and other matters do enable it to answer the anticipated challenge, and I would also say that it is – in my view, no answer to characterise the cross-examination which has taken place is going to reliability as distinct to the credibility of the complainant. This would artificially narrow or confine the operation of s 108 in the circumstances of this case, and I note that the definition of ‘credibility’ in the Evidence Act incorporates notions of what might be considered reliability, depending on the meaning which is given to the terms ‘credibility’ and ‘reliability’, which is not always constant.[29]

Evidence of the informant: proposed ground 1(b)

[29]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 16 September 2016) 500–6.

On the eighth day of trial, the prosecutor called the police informant to give evidence. No application had been made under s 108(3), and there was no objection to the evidence being given.

The prosecutor asked the informant about the purpose of his discussion with the complainant the day after the incident. The relevant part of the transcript reads as follows:

Counsel:And at that stage what’s the purpose of having the chat with her?
Informant:It’s an initial disclosure interview, um, to, I guess, get the nuts and bolts of what the allegation is.
Counsel:The nuts and bolts, is there any purpose or expectation of going into great detail at that stage?
Informant:I guess it’s to establish the extent of what offences we’re looking at and in broad terms what’s occurred, it’s not – it’s not getting all the details at that point in time, um, that comes at a later stage when we take a written statement.

Counsel: A later stage when you take a written statement?
Informant: That’s correct.
Counsel:In fact did you at a later stage take a written statement from her, a formal police written statement?
Informant:Yes, I did.

Counsel:  And that was on Wednesday 21 May?
Informant:                That’s correct.
Counsel:  You actually took that statement?
Informant:                Yes, I did.
Counsel:  That’s a statement that runs to some 11 pages?
Informant:                That’s correct.
Counsel:  And 70-something paragraphs?
Informant:                That’s correct.
Counsel:I want to ask you about this preliminary conversation that you had. Did that start at 4.45 - have you got your notes there?
Informant:Yes, I do.[30]

[30]Ibid 559–60.

At this point, the prosecutor asked the trial judge whether the informant could refer to the police notes. Counsel for the applicant did not object to this course. The informant continued:

Informant:Yes, my conversation with [the complainant] began about 4.45 pm on that day.
Counsel:Now included in that conversation, and I’m going to lead you on this and if you could follow it – if you look at, I think, page 275 on your notebook. Have you got that?

Informant: Yes.
Counsel:About half-way down, did you record this as having been said – she having said this to you: ‘Then removed towel completely’?
Informant:Yes.

Counsel:  ‘Left completely naked on bench’?
Informant:                That's correct.
Counsel:  ‘Massaged my vagina’?
Informant:                Yes.
Counsel:‘Right into the left side and right into the right side’ – is that the note you took of what she said?

Informant:                Yes, that’s correct.
Counsel:  ‘Then massaged my clit’?
Informant:                That’s correct.
Counsel:  ‘Move up and massage stomach’?
Informant:                That’s right.
Counsel:  That’s the note you’ve got of what she said?
Informant:                That’s right.
Counsel:  And then does your note read, IS, referring to I said?
Informant:                That’s correct.
Counsel:  Which is what she said, is that correct?
Informant:                Yes.
Counsel:She said to the person, ‘Do people ask for this type of massage’?

Informant: That's right.
Counsel:He said, ‘Yes, all the time. Men go to brothels and women go to massage therapists and I do home visits’?

Informant:                Yeah.
Counsel:  Plus, it’s got a plus there, ‘Plus I do home visits’?
Informant:                Yeah, it’s actually, ‘Come to massage therapists.’
Counsel:I’m sorry, I’ll read that again. ‘Men go to brothels and women come to massage therapists.’ And then a plus sign, ‘I do home visits’?

Informant:                That’s correct.
Counsel:  That’s your note?
Informant:                Yes.
Counsel:‘He then started to go back,’ and it’s an arrow point downwards in your note?

Informant: That’s correct.
Counsel:‘He then started to go back,’ and presumably that means down towards vagina?

Informant:                Yes.
Counsel:  So the arrow is down and then towards vagina?
Informant:                Yes.
Counsel:  ‘Touched it again’?
Informant:                That’s correct.
Counsel:  ‘I said, “Can you not do that”’?
Informant:                That’s correct.
Counsel:  Thank you, you can just leave that for the moment.[31]

The prosecution’s closing address and the trial judge’s direction to the jury

[31]Ibid 561–2.

During the course of his closing address to the jury, the prosecutor made extensive reference to the complainant’s account of events in her evidence in chief and during cross-examination. He observed that this evidence was consistent with her prior statements made at the committal and to police, as recorded in the police notes and the statement to police. The prosecutor said:

The cross-examination of [the complainant] concentrated, you might think, mainly on various alleged or supposed inconsistencies in various accounts that she’s given from time to time …
There was a lot of cross-examination suggesting that she got the context of [the brothel comment] wrong, because [the applicant] admits that he said words to that effect … but there was a lot of cross-examination about the context in which she said it because, for example, her evidence to you was that the context was that after he’d massaged her clitoris and then went to her tummy, she then asked him, ‘Do women really ask for these sort of massages?’
And she said, her evidence is, that he replied, ‘Well, ah men go to brothels’, that was her evidence, ‘men go to brothels, women go to masseurs’, and it was put to her that she’s got that wrong and there was a passage from the preliminary hearing where she was cross-examined on this topic and she’d said at the preliminary hearing words to the effect that after her stomach was – after her tummy was massaged then he said those words, and it was suggested, well, that’s inconsistent with your evidence that you’ve given here that it happened after he’d massaged your clitoris.

But in fact … she told the police – and it’s clear from [the police notes] … when she spoke to [informant] then she’s given a quite consistent account, which I’ll come back to, and then in [the statement to police] … she said something that was entirely consistent with the evidence she gave you about the context in which he made [the brothel comment] …
There was cross-examination devoted to some SMS messages … One, to [the first friend] … and one to [the second friend], suggesting some sort of inconsistency with what she said to them in the text message and what she’s given as her evidence, and in particular, about her evidence to you that after the first rubbing of her clitoris, there was a second attempt where he went to do it again. He went down to the vagina, or towards the vagina again, and then she said, ‘Please don't do that’ and it was suggested in cross-examination by my learned friend that what she told [the first friend] and [the second friend] was a bit different …
Her evidence about that topic was, in effect, that the SMSes to her friends, those two friends, were just a brief summary of her experience at the massage. In other words – and this is my word – she compressed or truncated the message – the event when she sent the text message to [the first friend] and to [the second friend]. It was a text message, not the whole saga, chapter and verse; a terse message compressing the whole event. You’ll remember what she said … when she was asked about those text messages, or one or other of them, and the suggested inconsistency with her evidence that there was a sexual assault and it was not long after that followed by a second attempt when she said, ‘Don't’. Her answer about this was, ‘I feel generally it’s the same thing’.
A question, ‘So to be clear, not only is the wording different but the context – you’ve described it as different; isn't it?’ Answer: ‘It's still – for me it feels like I'm in summary saying, yes, I had a massage down there and I asked him to stop. That’s what did happen’ … [The police notes and the statement to police] … make it clear that she’s all along been saying, in the expanded full version, not in a terse text, not in a brief text, but in the proper version, both speaking to the police and in her formal statement, she’s always said what happened and I’ll remind you of what she said in the [statement to police] and in conversation with the police.
I’ll do it now. For example, you’ve heard evidence [from the informant] of the conversation he had with her based on his notes and this is what she told him on all these topics that I’ve just mentioned, that there was a lot of cross-examination about, about which it was said that … her evidence to you was inconsistent.
Well, this is what she told the police, first of all, the day after. ‘He then removed towel completely. Left completely naked on bench. Massaged my vagina right into the left side, right into the right side, then massaged my clit and massaged stomach. Move up and massage stomach’. So she described to the police on the Sunday about … the sexual part including the massaging the clit. ‘Then he moved up and massaged stomach, tummy’. That’s what she was cross-examined about … and then she says to the police… ‘I said, “Do people ask for this type of massage?”’ He said, ‘Yes, all the time. Men go to brothels and women come to massage therapists and plus I do home visits’. That’s what she told the police at the time, so clearly, that’s the context, that’s the context in which she said to the police on the Sunday that the brothel remark occurred.
The sexual assault that he moved to the tummy and then … I asked him, ‘Do women ask for these sort of massage?’. He said, ‘Yeah, men go to brothels’ etcetera, so that’s entirely consistent with the evidence she’s given you. That’s exactly what she’s told you and so that any reference at the preliminary hearing to the tummy was in that context. Sexual assaults; moves to tummy. She asks him, ‘Do women go for this sort of massage?’ ‘Men go to brothels’ etcetera, so that’s entirely consistent with her evidence.
All along and the bit from the committal that was used for cross-examination was out of context. We’re talking about context, that’s severely out of context; completely wrong impression.
Then she goes on, ‘I do home visits’. ‘He then started to go back’ - and there’s an arrow down, down towards vagina to touch it again. I said, ‘Can you not do that’ so that’s what she’s described [the day after the incident] to the police that he had a second go, after sexually assaulting, rubbing her clitoris, he said the remark about brothels, then he had another go and that’s when she said, ‘Please don’t do that’ and that’s relevant to those messages that she sent her two friends where she’s truncated the event. When she spoke to the friends she truncated it but when she’s speaking on the Sunday to the police she’s giving the full version. She’s not going to give them the whole chapter and verse in a text. She just wants to give them the gist of what happened; what she’s upset about.
They’re contacting her and they learn that she’s upset and she gives them the gist of why she’s upset and that is the gist, what’s contained in those messages which you’ve got, the message to [the second friend] and the message to [the first friend]. To [the first friend] it goes, ‘He asked me to get completely naked which I thought was weird but I did. Anyways he massaged everywhere and then got to my inner groin. He then took the drapes off and massaged my vagina. I was in shock and after 30 seconds told him to stop’. Well, that’s the truncated version.
That’s what happened. He did it, he made the remark – she doesn’t mention the remarks; that’s not going to be in her text. He tried it again and she told him to stop. That’s what she means, it’s the same thing and a similar message to [the first friend]. ‘I had the massage done from holistic healer and he asked me to get completely naked which I thought was weird but I did. Anyway he massaged everywhere and he got to my inner groin he then took the drapes off and massaged my vagina. I was in shock and after 30 seconds told him to stop’. That’s the gist of it.
It’s not a police statement. It’s not evidence in court. It’s a text message to a friend when she’s upset and doesn’t want to really talk too much but that was said to be inconsistent but that’s exactly what she told the police on the Sunday. Then in her police statement – and I’ll read from that – that’s part of the evidence that you’ve heard because this was permitted to be led before you as relevant to this topic. This is her formal police statement on the Wednesday on the subject that I’ve just been discussing …
The police, at that time, are beginning their investigation. It’s the start, they want to know the lie of the land, ‘what are we investigating?’ So she gives them the gist of what they’re investigating. It couldn’t be expected to, in a conversation like that, which you may think wouldn’t have been very long, give chapter and verse of the movements of her legs and the arms, how her legs exactly were when she was massaged on the clitoris. The main point was, ‘I was massaged on the clitoris’ …
She then said, ‘He then started to massage the left side of my vagina. Once he had finished’, the sexual assault she’s referring to, ‘Once he had finished that’, the massage of the clitoris … ‘he started massaging my tummy … I then sort of collected my thoughts a bit’, because you’ll remember she was somewhat taken aback by this development, ‘I then said to him, “Do women really ask for this type of massage?” He said, “Yes, men go to brothels and women go to massage therapists. I also do home visits.”’ That’s what she said in a formal police statement on the Wednesday.
She goes on, ‘He then started to massage back down towards my vagina. I said, “Could you please not do that?” He said, “Okay.”’ So that’s what she says, so she’s been entirely consistent in her accounts and so as I said, there’s no detailed description of every movement and police are only beginning their investigation when they’re actually speaking to her on the Sunday. So her accounts are entirely consistent, they hang together extremely coherently and so that not only are they consistent with her evidence in this court before you … they also ring true in themselves.
It all fits together, it all fits convincingly and authentically. It coheres in a way that is, I submit, beyond invention, beyond invention; you couldn’t make it up, you couldn’t make that sort of coherent account up like that. You couldn’t cobble it together. It’s beyond her or anyone’s ability ... to produce a false account like that and make it cohere in a way that rings true. And you couldn’t falsely invent it or imagine it in that way. It hangs together authentically …[32]

[32]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 20 September 2016) 726–34.

In his charge to the jury, the trial judge explained the way in which the jury could use prior statements of the complainant in reaching its verdict. He said:

Now, if you do find that a previous statement is inconsistent with the complainant’s evidence in court, you will have two different accounts from the same witness and it is for you then to determine which account if any you believe.
Now, in this regard, the prosecution in effect argue, ‘Well, if there are inconsistencies, they relate to peripheral matters and any inconsistencies of the complainant do not detract from her overall reliability and credibility. And in regard to her evidence concerning the commission of the charged offences, you can rely on it.’
They argue or the prosecutor argues if there are inconsistencies, they are explicable given the circumstances in which they were made; that many of the prior inconsistent statements relied upon by the defence come about in the circumstances of the complainant giving an incomplete account to others prior to her making her formal police statement. That you might say, ‘Well, the inconsistencies are around peripheral details and/or are explicable by the circumstances in which they came to be made.’
The defence, however, argue that these are significant inconsistencies and they do tell on the reliability of the complainant, that they are not able to be swept aside and that given her centrality to the prosecution case, at the least, they would give rise to a reasonable doubt concerning the charged conduct.
Now, the assessment of the significance of any inconsistencies which you may find to exist is of course a matter for yourselves. Now, having told you that you can use prior statements as evidence of inconsistency on the part of the complainant, you are of course also entitled to use evidence of prior statements as evidence of consistency on the part of the complainant. It can go both ways. It is a matter for you.
So in addition to assessing any inconsistencies in the version of events given by the complainant, you can also use the evidence of prior statements to help evaluate consistencies between what is said in the earlier statements and what is said in the oral evidence of the complainant before you in the trial. And you are entitled to evaluate the extent to which such consistency might assist in your assessment of her truthfulness and her reliability.[33]
[33]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 21 September 2016) 776–7.

The applicant’s submissions with respect to the first proposed ground

Police notes adduced through the informant

The applicant argues that s 108(3) of the Act had to be satisfied in relation to the police notes adduced through the informant[34] and that leave was not sought or obtained independently of the application to re-examine the complainant. The applicant submits that the trial judge thought that the content of the police notes could be adduced through the informant as a result of the complainant’s inability to confirm the accuracy of the police notes. In the event, the applicant submits that (a) leave was not granted, (b) it was not reasonably open to grant leave and (c) the absence of any objection to the adducing of the content of the police notes through the informant was a consequence of the earlier ruling to allow re-examination of the complainant.

The brothel comment

[34]See [29] above.

It is to be recalled that the prosecutor sought leave to re-examine the complainant about the conversation that involved the brothel comment, among other topics. In his oral submissions to the trial judge, the prosecutor said that:

(a) counsel for the applicant had suggested to the complainant in cross-examination ‘that such words were exchanged in a completely different context’ from the one recounted by the complainant earlier in her evidence in chief,[35] ‘namely that it was soon after the interference when she asked him [the massage question], his response, according to her evidence, was [the brothel comment]’;[36] and

(b) counsel for the applicant had relied upon the complainant’s evidence at the committal ‘about how she had suggested a different context, being the massaging of her tummy’, in which the complainant was said to have asked the massage question, and that evidence was relied upon ‘to suggest that inconsistency about the context refers to … the tummy massage again, which is what she said happened straight after the sexual assault’.[37]

It is convenient at this point to revisit the ‘context’ in which the applicant had made the brothel comment.

[35]See [0] above.

[36]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 457.

[37]Ibid 457–8, 460.

In her evidence in chief, the complainant said that she was shocked and confused (apparently without protesting) at the time when the applicant was massaging her clitoris. Having messaged her clitoris for ‘a minute or two’, he proceeded to massage her stomach. She said that it was at this stage that she came to her senses and asked the massage question. In response to the massage question, the applicant made the brothel comment.[38] The ‘context’ (more accurately described as the statements that were made and the sequence in which those statements were made relative to the timing of the events that had occurred), therefore, is (1) the applicant was massaging the complainant’s clitoris for ‘a minute or two’ (during which the complainant did not protest, out of shock and confusion); (2) he then proceeded to massage her stomach, at which stage she asked the massage question; and, (3) in response to the massage question, the applicant made the brothel comment.
[38]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 14 September 2016) 345.

This context is to be compared to the one suggested to the complainant in cross-examination. In cross-examination, it was put to her that (1) she had made the massage observation to the applicant, namely that she told the applicant that she could understand why women like full-body massages, and (2) the applicant made the brothel comment in response to the massage observation. Whilst acknowledging that she could have made the massage observation, the complainant denied that the brothel comment had been made in response to the massage observation.[39] The complainant was then taken to her evidence at the committal, where she had said that she could not remember whether the brothel comment had been made after the massage question;[40] she explained this inability to recall whether the brothel comment had been made after the massage question by reference to her upset and emotional state at the time of the committal. She repeated what she had said earlier in her evidence in chief, namely that the applicant had made the brothel comment after the massage of her clitoris and in response to the massage question.[41]
[39]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 411–2.
[40]Ibid 412. See Transcript of Proceeding, The Police v Jaensch (Magistrates’ Court at Melbourne, Ms Erlich, 2 March 2015) 37.
[41]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 15 September 2016) 411–2.

The applicant contends that there was no prior inconsistent statement – so as to satisfy s 108(3)(b) – regarding ‘the context in which the conversation took place’. The applicant says that the prior inconsistent statement adduced in cross-examination of the complainant, or the suggestion of inaccuracy, related to the complainant’s ability to recall the context in which the conversation took place: in other words, the prior inconsistent statement was the complainant’s evidence at the committal that she could not remember whether the brothel comment had been made after the massage question. The nature of the attack on the complainant’s credit was whether, in her evidence in chief, she had overstated her certainty as to the context in which the comment had been made. According to the applicant, such an attack ‘was not logically affected by whether or not the complainant had made representations consistent with her evidence in chief proximate to the alleged offence’. In this regard, the applicant points to the complainant’s evidence that she could not recall what she had told police in her initial complaint to them. Further, the applicant says, there was nothing arising from cross-examination that required clarification or which left the jury with a distorted or incomplete account. That being so, the applicant submits that it was not reasonably open to the trial judge to permit the introduction in re-examination of evidence of statements contained in the police notes and the statement to police, removed in time and context from the complainant’s statement in the committal, which had been put to the complainant in cross-examination.

Telling the applicant to stop massaging

It is to be recalled that the prosecutor also sought leave to re-examine the complainant about whether the complainant had said anything to stop the applicant massaging her clitoris. In his oral submissions to the trial judge, the prosecutor pointed to the alleged inconsistency, which was put to the complainant in cross-examination, between, (1) on the one hand, the complainant’s evidence in chief that she had said words to the effect of ‘Can you please not do that?’ only when it appeared that the applicant was about to massage her vagina again, and, (2) on the other hand, the text message evidence in which the complainant had told her two friends that she had asked the applicant to stop massaging her clitoris while he was doing so.

The applicant contends that there was no basis to permit re-examination of the complainant in response to the alleged inconsistency between the complainant’s evidence in chief and the text message evidence. The text message evidence was adduced by the prosecution.[42] According to the applicant, his cross-examination of the complainant simply gave her an ‘opportunity to explain the apparent inconsistency’ between the text message evidence and her evidence in chief; ‘the inconsistency did not arise in cross-examination’.
[42]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 14 September 2016) 354, 356.

The applicant also contends that the police notes and the statement to police did not serve to clarify or explain any answers given in cross-examination as to the consistency or otherwise of the text message evidence with the evidence in chief; the police notes and the statement to police were entirely self-serving statements which were consistent with the complainant’s evidence in chief.

Additionally, the applicant says, cross-examination relevant to inconsistency did not address any prior statement contained in the police notes or the statement to police; it concerned prior statements to the two friends to whom the applicant had sent the text messages the subject of the text message evidence. The applicant argues that it was no answer to the alleged inconsistency to adduce evidence of the police notes or the statement to police; ‘the nature of the attack on credit was not recent invention but mere inconsistency’.

The applicant also contends that, in the closing address to the jury, the previous representations which were adduced in re-examination assumed greater significance than the complainant’s evidence in chief. Moreover, the trial judge directed the jury that they could use the fact of prior consistent statements in assessing the credit of the complainant.[43] In the event, the applicant contends that the trial judge allowing the introduction of these statements resulted in a substantial miscarriage of justice.[44]
[43]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 21 September 2016) 777.
[44]In support of this contention, the applicant cited R v AJS (2005) 12 VR 563.

Analysis of the first proposed ground

Part 3.7 of the Evidence Act 2008 is headed ‘Credibility’. It includes the following provisions:

101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—
(a)is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant—
(i)because it affects the assessment of the credibility of the witness or person; and
(ii)for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Notes
1Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.
2Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

102     The credibility rule
Credibility evidence about a witness is not admissible.
Notes
1        Specific exceptions to the credibility rule are as follows—
•     evidence adduced in cross-examination (sections 103 and 104)
•     evidence in rebuttal of denials (section 106)
•     evidence to re-establish credibility (section 108)
•     evidence of persons with specialised knowledge (section 108C)
•     character of accused persons (section 110)
Other provisions of this Act, or of other laws, may operate as further exceptions.
2Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness

…

108Exception—re-establishing credibility
(1)The credibility rule does not apply to evidence adduced in re-examination of a witness.
(3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if—
(a)evidence of a prior inconsistent statement of the witness has been admitted; or
(b)it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion—

and the court gives leave to adduce the evidence of the prior consistent statement.

Re-examination

It does not seem to me that ground 1(a) is reasonably arguable.

The credibility rule does not apply to evidence adduced in re-examination of a witness.[45]
[45]Evidence Act 2008 s 108(1).

The applicant contends that s 108 of the Act does not operate independently of s 39 of the Act; section 39 had to be satisfied before the complainant could be re-examined, and it was not. Section 39 provides that, without leave of the court, ‘a witness may be questioned about matters arising out of evidence given by the witness in cross-examination’. During cross-examination, the complainant was challenged as to (a) the context in which the brothel comment was made and (b) the circumstances in which she had protested to the applicant about his massaging of her clitoris. Each challenge had the potential to impeach her credibility, and the prosecutor was entitled to restore it by referring to prior consistent statements made by her. She was also cross-examined about (a) what she had said to her friends soon after the incident (b) what she had said to the police and (c) the evidence that she had given at the committal. It was suggested to her that the evidence that she was giving in front of the jury was inconsistent with what she had said on those previous occasions.

The applicant contends that there was no prior inconsistent statement as to the context in which the conversation took place. Rather, he contends that the challenge had been to the complainant’s ability to recall. However, such a challenge is no less a challenge to a witness’s credibility and it was open to the Court to allow questions in re-examination that tended to reinstate it. In my opinion, the trial judge was right to reject as ‘artificially narrow’ the distinction between ‘reliability’ and ‘credibility’; the latter plainly includes aspects of the former. Further, when it was being put to her in cross-examination that her evidence was inconsistent with her prior statements, it was permissible for the prosecution to clarify her evidence in re-examination.

Evidence of the informant

It does not seem to me that ground 1(b) is reasonably arguable.

It appears that the earlier ruling of the trial judge related to what questions could be asked in the re-examination of the complainant. There appears to have been no separate application by the prosecution to lead evidence through the informant as to the prior statements of the complainant. However, no objection was made to the prosecution’s calling the informant, and the reason seems plain: it had become quite clear at that stage of the trial that the evidence of what the complainant had said close to the time of the events in question was the basis of (or would become the basis of) a challenge to her credibility.[46] During the cross-examination of the complainant, it had been put to her that her evidence as to the context of the brothel comment and the circumstances in which she had asked the applicant to stop massaging her clitoris was inconsistent with what she had said on other occasions about the same subject. The evidence was admissible under s 108(3)(a) or s 108(3)(b): Niaros v The Queen.[47] The fact that leave was not sought to adduce evidence of the prior consistent statement did not cause a substantial miscarriage of justice: Nikolaidis v The Queen.[48]
[46]As counsel for the respondent pointed out in oral submissions, early in the re-examination of the complainant, the prosecutor said that the police would be giving evidence of what the complainant had said to them.
[47][2013] VSCA 249.
[48](2008) 191 A Crim R 556, 573–4.

Summary of events relevant to the second proposed ground

During the trial, the prosecutor called the applicant’s de facto partner, Marilyn Jacksch, to give evidence. Before giving her evidence in chief, the following exchange between the trial judge and Ms Jacksch took place:

Judge:Now I understand you’ve had some legal advice concerning an entitlement that you have to object to giving evidence in these proceedings as a witness for the prosecution; is that right?
Ms Jacksch:Yes.
Judge:You're aware, are you, that I have a discretion to not require you to give evidence as a prosecution witness? Do you understand that?
Ms Jacksch:I do now, yes.
Judge:If I was satisfied that there was a likelihood that harm would or might be caused to you or to the relationship between you and the accused and whether or not the nature and extent of that harm outweighs the desirability of you giving evidence ?
Counsel:M’hmm.
Judge:I may or may not exercise that discretion to excuse you from giving evidence as a prosecution witness, you understand?
Counsel:Yes, thank you.[49]

[49]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 16 September 2016) 546.

In her evidence in chief, Ms Jacksch said that she had observed the complainant leaving the applicant’s premises on the morning of the incident looking ‘very relaxed and smiling’ and ‘happy’. The following exchange took place during her examination in chief:

Counsel:On Saturday 17 May 2014 were you present at the premises?

Ms Jacksch: Yes.
Counsel:And did you observe a female client arrive at 9 am?
Ms Jacksch:No, I didn’t, I didn’t see her arrive.
Counsel:Did you see somebody leave an hour or so, whatever, an hour and a half later?
Ms Jacksch:Yes.

Counsel:  Where were you?
Ms Jacksch:               I was at the reception desk.
Counsel:  Did you see her leave the premises?
Ms Jacksch:I saw her come out of the consultation room and walk towards the office and then go towards the right, out to the main entrance, and then I lost sight of her at that point.
Counsel:Did you observe anything about her manner or deportment?
Ms Jacksch:She looked very relaxed and smiling.

Counsel: She left the premises?
Ms Jacksch: Yes.[50]

[50]Ibid 549–50.

When cross-examined on this matter, Ms Jacksch gave the following evidence:

Counsel:You’ve made observations on 17 May of [the applicant] and the female client coming out of the consulting room and through the foyer. There was nothing about her demeanour that suggested any upset to you?

Ms Jacksch: No, she was very relaxed and, um, and happy, yeah.[51]

[51]Ibid 557.

In his closing address to the jury, the prosecutor said:

[The applicant’s] evidence that [the complainant] left happy, et cetera, is, I submit, is a – but of course he has to say that, as does his wife, with all respect. That you might know or not know, the prosecutions obliged, generally, accept [sic] exceptional circumstances that I won’t bother you with, is obliged to call all potentially relevant witnesses. It doesn’t meant that the prosecution embraces everything they say.[52]

[52]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 20 September 2016) 734–5.

The applicant’s submissions with respect to the second proposed ground

The applicant contends that there was no proper basis for the prosecution to assert that Ms Jacksch’s evidence was false. Moreover, the suggestion that the prosecution was obliged to call her simply because her evidence was relevant was inaccurate at law. Referring to the decision of the High Court in R v Apostilides,[53] the applicant argues that, had there been identifiable circumstances clearly establishing a basis not to accept Ms Jacksch’s truthfulness and credibility, the prosecution could have declined to call her. The applicant also says that, if there was a basis for challenging her evidence, the prosecution could have sought leave to question her pursuant to s 38 of the Evidence Act 2008.
[53](1984) 154 CLR 563.

The applicant contends that the comment about Ms Jacksch made by counsel for the prosecution during his closing address undermined the fairness of the applicant’s trial in two ways. First, it invited the jury impermissibly to discount Ms Jacksch’s evidence about the demeanour of the complainant in circumstances where the only conflicting evidence was that of the complainant. Accordingly, the applicant says, Ms Jacksch’s evidence was important to the assessment of the truth of the complainant’s assertion that she was perturbed and uncomfortable on departure. Second, the suggestion that Ms Jacksch ‘had to’ give particular evidence had the capacity to convey that she was suborned into falsehood, which had the capacity to implicate the applicant in improper conduct and to undermine one of the arguments of the applicant that it was inherently unlikely that he would offend in such a ‘ridiculously daring’ manner knowing or expecting his wife to be present.[54] The applicant submits that, in the absence of a direction to the jury to disregard the comment made by counsel for the prosecution, a substantial miscarriage of justice arose.
[54]Transcript of Proceeding, DPP v Jaensch (County Court of Victoria, Judge Meredith, 20 September 2016) 763, 765.

Analysis of the second proposed ground

It does not seem to me that the second ground is reasonably arguable.

There is no rule preventing a prosecutor from criticising a Crown witness; the question is whether the course taken by the prosecutor led to a miscarriage of justice: R v Mark.[55] The prosecutor’s comment began one way and finished on a different trajectory. In the event, it did little more than warn the jury that the Crown was not obliged to embrace everything that a Crown witness might say. It did not have within it the insinuations that the applicant now seeks to draw from it.
[55][2006] VSCA 251 [68]–[70], citing R v Vollmer [1996] 1 VR 95, 139; R v Macfie (No 2) (2004) 11 VR 215, 230 [60]–[61].

These things are best judged in the context in which they are made. The comment was made in the presence of defence counsel, and no objection was made to it. That must be the best indication of how it was appreciated when it was made. Moreover, had objection been taken, it could have been the subject of comment by the trial judge.

Conclusion

The application for leave to appeal against conviction should be refused.

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Citations

Jaensch v The Queen [2017] VSCA 192

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

R v AJS [2005] VSCA 288

Niaros v The Queen [2013] VSCA 249

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

[2017] VSCA 192

20 July 2017