R v Jessop - [2016] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JESSOP
[2016] SASCFC 93
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
26 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
Appeal against conviction.
The appellant was tried before Judge alone in the District Court on two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA), against the 11 year old daughter of his then partner.
The appellant was convicted of the first count, which alleged that the appellant had touched the complainant’s genitalia with his hands. He was acquitted of the second count, which alleged that he touched her genitalia with his penis.
The complainant was not called to give evidence, due to her age and intellectual disability. The Judge refused an application for a stay of prosecution. The appellant appeals against that refusal.
The appellant appeals against his conviction on the grounds that the conviction is unsafe and unsatisfactory; that the Judge reversed the onus of proof on certain factual issues; and that the Judge erred in treating the evidence of the accused differently from other witnesses.
Held per Kourakis CJ (Vanstone and Kelly JJ agreeing), dismissing the appeal:
1. The decision not to call the complainant did not compromise the Court’s capacity to evaluate the prosecution evidence.
2. There is no reason to entertain doubt about the verdict due to the strength of the prosecution case.
3. The errors of law alleged are not made out on a proper reading of the Judge’s reasons.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v Jessop [2015] SADC 168; Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34, considered.

R v JESSOP
[2016] SASCFC 93
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: The appellant was tried before a Judge alone in the District Court on two counts of aggravated indecent assault[1] against the 11 year old daughter of his then partner in the early hours of 21 October 2013. The complainant, EB, was not called to give evidence. The prosecution relied on the observations of EB’s mother MB, evidence that the DNA profile of a swab taken of the appellant’s fingernails matched EB’s DNA profile, and a medical examination of EB.
[1] Criminal Law Consolidation Act 1935 (SA) s 56.
The appellant sought a stay of the prosecution on the ground that it was as an abuse of process because the prosecution did not propose to call EB. The application was dismissed. The appellant appeals against that…

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 R v Jessop

Details

AGLC: R v Jessop [2016] SASCFC 93
Case: [2016] SASCFC 93
Decision Date: 26 August 2016

CaseChat Overview and Summary

The appeal concerned a criminal conviction for indecent assault. The appellant, R v Jessop, was convicted in the District Court of South Australia. The prosecution’s case relied on four key pieces of evidence: the testimony of MB, who observed the appellant leaning over EB on a couch late at night; DNA evidence linking the appellant's hands to EB's DNA; a positive presumptive test for blood on the appellant's hands; and medical evidence concerning injuries to EB's genitals.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in her directions to the jury regarding the standard of proof, specifically concerning circumstantial evidence and the concept of a reasonable hypothesis consistent with innocence, and whether the verdict was unreasonable or insupportable having regard to the evidence. The appellant argued that the trial judge's remarks implied he bore an onus to prove a hypothesis consistent with innocence.

The Full Court dismissed the appeal. The Chief Justice, with whom Vanstone and Kelly JJ agreed, rejected the appellant's submission that the trial judge had reversed the onus of proof. The court found that the judge was entitled to assess the vagueness of the appellant's testimony against the expectations arising from her life experience, treating her as any other witness. The court concluded that the strength of the prosecution's evidence, comprising MB's testimony, the DNA and blood evidence, and the medical findings, did not leave them in doubt as to the appellant's guilt and that no miscarriage of justice had occurred, particularly when weighed against the potential evidence of the complainant, who was not called.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant accepts that EB was not called for the reasons given. The appellant does not allege any collateral or strategic purpose for the decision not to call her. The evidence of the offending The prosecution relied on four strands of evidence at trial:1MB’s evidence that she saw the appellant leaning over EB on a couch late at night;2DNA evidence matching profiles of material on the appellant’s hands with EB’s DNA profile;3A positive and presumptive test for blood on the appellant’s hands; and4Medical evidence about the age and causes of injury to EB’s genitals. MB gave evidence that EB has a learning disorder known as Global Development Delay. She explained that EB finds it difficult to pronounce words and learn new concepts. MB testified that on 20 October 2013 her son was in hospital overnight. She and her children (including EB) visited him in hospital in the afternoon. They were accompanied by the appellant. Later, they all returned home and the children went to bed at the normal time around 7.00 pm. MB and the appellant went to bed shortly afterwards, around 8.00 pm. EB had her own bedroom which was adjacent to the master bedroom in which MB and the appellant slept. MB gave evidence that when she woke at about 3.15 am on 21 October 2013 she noticed that the appellant was not beside her. She got up and walked down the hallway. The hallway light was on. At the end of the hallway, and just as she was about to enter the dining room, she heard a ‘rustling noise’ coming from the lounge room. She walked into the lounge room and saw the appellant coming off the lounge. As he moved out of the way, she saw that EB was underneath him. MB described the appellant getting off the lounge with his belly facing downwards to the lounge. Both the appellant and EB’s heads were facing the same direction. MB noticed that the appellant was ‘puffing a lot, panting, puffing’. MB was unable to see the clothing they were wearing, because it was dark in the lounge room. MB testified that she immediately asked what was going on and the appellant replied that EB had just woken up. MB testified that EB always slept in her own bedroom and never in the lounge room. The appellant then walked out of the lounge room into the kitchen/dining area. MB asked him again what he was doing but the appellant did not reply. The appellant walked into their bedroom and sat down on the side of the bed. MB told EB to go to her room and shut the door. MB testified that when they returned to the master bedroom she told the appellant that she couldn’t believe he had done ‘this’, and that she would call the police. MB directed the appellant to ‘get his stuff and get out’. The appellant asked her to give him ‘enough time to prove I didn’t do it’. The appellant claimed that he had been sick for weeks. MB testified that she did not believe him because she had spent much time in the preceding days in his company and she ‘kn[e]w he wasn’t sick’. MB testified that at this time the appellant’s hands and body were shaking.

Decision

Reasons for decision

The appellant contends that the passage implies that the appellant was under an obligation to prove or lead evidence about a hypothesis consistent with innocence. I reject the submission. It can be accepted that strength of recollection of witnesses may vary even of events which assume great importance. However the Judge was entitled to assess the vagueness of the appellant’s testimony against expectations arising from her life experience. In doing so her Honour treated the appellant as she would any other witness. Ground 5 must be dismissed.Conclusion Having regard to the strength of the other evidence in the case on the one hand and the matters about which the complainant may have given evidence if she had been called on the other, it has not been shown that there has been a miscarriage of justice. Moreover, the strength of the prosecution evidence does not leave me in any doubt as to the appellant’s guilt. The grounds that the Judge reversed the onus of proof and treated the appellant’s evidence differently, rest on a fallacious reading of the Judge’s reasons. I would dismiss the appeal. VANSTONE J: I agree. KELLY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

Ratio Decidendi

Legal Principle Established

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