MJJ v The Queen

The appellant, MJJ, sought permission to appeal a second time against his convictions for unlawful sexual intercourse and indecent assault. The complainant, his daughter S, gave evidence of a course of sexual conduct by the appellant commencing when she was approximately seven years old. The appeal concerned the appellant's contention that a statement in the compensation proceedings, asserting he was the father of S's child, was false and that S had instructed her solicitor to plead this, thereby undermining her credit. The Court of Appeal of South Australia was required to determine whether to grant permission to issue a subpoena to the Commissioner of Police and whether certain asserted fresh evidence met the criteria for admissibility and compellingness under section 159 of the Criminal Procedure Act 1921.

The court considered several items of asserted fresh evidence. The first item related to whether S had instructed her solicitor that the appellant was the father of her child. The court found that by disclosing information on this topic, the solicitor had, acting on instructions, imputed a waiver of client legal privilege in relation to relevant documents. However, the court concluded that S had not instructed her solicitors that the appellant was the father, and this asserted evidence was not compelling. The remaining items of asserted fresh evidence were found to be inadmissible, or not fresh and compelling, within the meaning of section 159 of the Criminal Procedure Act 1921.

The court reasoned that the solicitor's disclosure regarding instructions on paternity, even if based on an assumption, did not establish that S had made such an instruction. The medical reports and the solicitor's own evidence indicated that the assumption of paternity was a mistake, and that S had indicated a boyfriend as the father. The court also found that the proposed subpoena to the Commissioner of Police was not justified. Ultimately, the court determined that the appellant had failed to establish any fresh and compelling evidence that would warrant granting permission for a second appeal.

Permission to appeal a second time was refused.