Jansz v The Queen - [2010] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

HOWARD JANSZ	S APCR 2008 0866
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	NETTLE and HARPER JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2010
DATE OF JUDGMENT:	8 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 137
JUDGMENT APPEALED FROM:	R v Howard Jansz (Unreported, County Court of Victoria, Judge Ross, 16 October 2008)

---

CRIMINAL LAW – Conviction – Numerous sexual offences against a child under 16 years of age – Evidence – Complaint evidence – Whether judge erred in admitting evidence of complaint – Whether judge adequately summarised evidence and arguments of counsel – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D C Hallowes	Robert Stary & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

After evidence lasting only about a day, the applicant was convicted in the County Court at Melbourne of two counts of indecent act with a child under the age of 16 years (Counts 1 and 3) and six counts of sexual penetration of a child under the age of 16 years (Counts 2, 4, 5, 7, 8 and 9), and was acquitted of one count of sexual penetration of a child under age of 16 years (Count 6). He now applies for leave to appeal against conviction.

The Crown’s case at trial

At trial, many of the facts were not in dispute. The applicant was born in Sri Lanka on 28 August 1963 and aged 41 years at the time of the alleged offending between March and July 2005. By the time of trial he was aged 45 years. He completed his education in Sri Lanka and married and had one child, AB, before separating from his wife when the child was about two years old. He emigrated to Australia in or around 1994 and found work as a motor mechanic/trades assistant with a motor dealership in Dandenong, whereafter he continued to work for the next 14 years. He had no prior convictions or relevant psychiatric or psychological condition. He did not give evidence at trial.

The complainant gave evidence at trial by VATE, pursuant to s 41G of the Evidence Act 1958. She deposed that she was born on 14 November 1990 and was aged 14 years at the time of the alleged offending. She said that, late in 2004, her mother began a relationship with the applicant and that the applicant became a frequent visitor to the house where the complainant lived with her mother and sisters. After a while, the applicant conveyed to her that he was sexually interested in her and he began to send her suggestive SMS text messages and to act familiarly towards her. The complainant said that she was impressed by the applicant’s attention and responded to it favourably, and a sexual relationship developed from there. The complainant said that she used to steal out of her bedroom window at night to…

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 Jansz v The Queen

Details

AGLC: Jansz v The Queen [2010] VSCA 137
Case: [2010] VSCA 137
Decision Date: 8 June 2010

CaseChat Overview and Summary

Jansz was convicted of numerous sexual offences against a child under the age of 16. The High Court was asked to review the decision, focusing on whether the trial judge erred in admitting evidence of the complaint and whether the judge adequately summarised the evidence and arguments presented by counsel. The central legal issue was whether the trial judge's handling of the evidence and summation of arguments was sufficient to ensure a fair trial and whether any errors were so significant as to warrant overturning the conviction.

The court examined the trial judge's approach to admitting evidence of the complaint, noting that the judge had exercised discretion under relevant statutory provisions. It was determined that the judge's decision to admit the evidence was within the bounds of acceptable judicial discretion and did not constitute an error. The court also reviewed the trial judge's summation of evidence and arguments, finding that the judge had accurately and fairly summarised the key points presented by both parties. The court concluded that any perceived deficiencies in the summation did not prejudice the fairness of the trial. Therefore, the appeal was dismissed, and the conviction was upheld.

The court's decision underscored the importance of judicial discretion in handling sensitive evidence and the necessity for accurate and fair summation of trial arguments. The ruling affirmed the conviction, highlighting that the trial judge's decisions did not undermine the fairness or integrity of the trial process.

Orders