R v Lapins

Case [2007] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LAPINS

[2007] SASC 281

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Vanstone)

24 July 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - PARTICULAR CASES - OFFENCES AGAINST THE PERSON

JURY - THE JURY IN CRIMINAL PROCEEDINGS - GENERAL MATTERS

Appeal against conviction - appellant convicted by jury verdict of the crime of indecent assault and was acquitted on two further counts of indecent assault - after the Judge's summing up the jury indicated they had some questions, the Judge invited them to put the questions in writing, jury delivered verdicts without putting forward any questions - whether the verdict of guilty on the first count was inconsistent with the verdicts of acquittal on the second and third counts, and whether as a result the verdict of guilty was unsafe and should be set aside - whether the interchange between the Judge and jury after the Judge's summing up left a jury question or possible question unanswered, resulting in a risk of a miscarriage of justice - Held: appeal dismissed - the Judge gave clear directions to the jury with respect to the three separate counts - there were material differences in the evidence relevant to each of the counts - the verdicts are not inconsistent - the interchange between Judge and jury after the summing up did not leave any question unanswered - no risk of miscarriage of justice.

MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, 13 December 1954); MFA v R (2002) 213 CLR 606; R v Kirkham (1987) 44 SASR 591; Phillips v R (2006) 225 CLR 303; R v Hoskins [2007] SASC 92; McCormack (1995) 85 A Crim R 445; R v TAB [2002] NSWCCA 274; R v Hickey 2002) 137 A Crim R 62; R v Von Heytmanek (2006) 96 SASR 97; Longman v The Queen (1989) 168 CLR 79, considered.

R v LAPINS
[2007] SASC 281

Court of Criminal Appeal: Duggan, Gray and Vanstone JJ

  1. DUGGAN J.         In my view the appeal on the first ground should be dismissed and the application for permission to appeal on the second ground should be refused.

  2. I agree with the reasons of Gray and Vanstone JJ.  However, in the absence of argument on the issue at the hearing of the appeal, I prefer not to express a view on whether the trial judge might have gone further in his directions on the relevance of evidence on one count in relation to the consideration of other counts.

    GRAY J.

  3. This is an appeal against conviction.

    Introduction

  4. The appellant, Jason Norman Lapins, was convicted by jury verdict of the crime of indecent assault.  He was acquitted on two further counts of indecent assault. 

  5. The complainant in each count was the same child.  The…

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Details
AGLC
R v Lapins [2007] SASC 281
Case
[2007] SASC 281
Decision Date

CaseChat Overview and Summary

Jason Norman Lapins was convicted in the District Court of one count of indecent assault, while being acquitted on two other counts related to the same complainant. The conviction was appealed on the basis that the guilty verdict on the first count was inconsistent with the acquittals on the other counts, and that the trial judge erred in accepting the jury's verdicts without first addressing a request for further directions. The appeal was dismissed by the court.

The legal issues before the court were whether the verdict of guilty on the first count was inconsistent with the acquittals on the second and third counts, and whether this inconsistency rendered the guilty verdict unsafe. Additionally, the court needed to determine if the interaction between the judge and the jury after the summing up left any questions unanswered, potentially risking a miscarriage of justice.

The court held that the judge provided clear instructions to the jury regarding the three separate counts and that there were significant differences in the evidence relevant to each count. The verdicts were not inconsistent, and the interaction between the judge and jury did not leave any unanswered questions. Therefore, there was no risk of a miscarriage of justice. Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Jason Norman Lapins was tried in the District Court before a judge and jury on an information charging him with three counts of indecent assault, each on a different occasion, upon the one complainant. He was convicted of the first count but acquitted of the subsequent two. He appeals, with permission, against that conviction, arguing that the verdict on the first count is unreasonable in that it is factually inconsistent with the acquittals. He seeks permission to appeal upon another ground, to the effect that the learned trial judge erred in taking the jury’s verdicts without first dealing with a request for further directions. A single judge of this Court previously refused permission to appeal on this ground. Background The counts on the information all alleged an indecent assault occurring within the period September 1998 to December 1999, at a time when the complainant (“M”) was 15 years of age. The allegations were not reported to police until April 2005. By the time of trial, M was 24 years old. He had a twin brother “T”. Both boys met the appellant while fishing at the Onkaparinga River at Port Noarlunga when aged about 13 years. They became friendly with him. By the time of their fifteenth birthday, T was living with the appellant. Apparently, he still does. On the occasion of the first count, M said he was visiting the appellant’s home and was asked to stay the night by his brother. During the evening they played video games, watched a movie and smoked four or five cones of cannabis. The three of them slept on mattresses lined up on the floor of the lounge room. The appellant was between the two boys. M said that during the night he awakened to find the fly of his jeans undone and the appellant’s hand fondling his penis through his boxer shorts. M said he moved away and he saw the appellant roll over, away from him. In the morning he said nothing of the incident. The second count was described as occurring a week or two later. Again M was at the appellant’s home at the invitation of his brother. Again, he consumed a quantity of cannabis. When the brothers and the appellant went to go to sleep in the same room as before, M said he made sure that T was between himself and the appellant. However, he said he was awakened in the night by something which he took to be a large hand rubbing his buttocks outside his trousers. He immediately rolled away and then turned to see the appellant drawing back from a position in which he had been reaching over T. He said the contact lasted “a few seconds”. The third count was said to have taken place four or five weeks later when the appellant, M and T went away overnight together. During the evening M consumed significant quantities of both cannabis and spirits. He said he felt “stoned”. They all slept in the back of the accused’s panel van. M said that his brother again slept in the middle. He related that during the night he was awakened by the appellant rubbing his bottom over his clothing. He acknowledged in cross-examination that he did not turn to see the appellant but pushed the hand away. He said the touching lasted “a split second”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J
Permission to appeal should be refused. Conclusion This appeal should be dismissed.VANSTONE J:Introduction Jason Norman Lapins was tried in the District Court before a judge and jury on an information charging him with three counts of indecent assault, each on a different occasion, upon the one complainant. He was convicted of the first count but acquitted of the subsequent two. He appeals, with permission, against that conviction, arguing that the verdict on the first count is unreasonable in that it is factually inconsistent with the acquittals. He seeks permission to appeal upon another ground, to the effect that the learned trial judge erred in taking the jury’s verdicts without first dealing with a request for further directions. A single judge of this Court previously refused permission to appeal on this ground. Background The counts on the information all alleged an indecent assault occurring within the period September 1998 to December 1999, at a time when the complainant (“M”) was 15 years of age. The allegations were not reported to police until April 2005. By the time of trial, M was 24 years old. He had a twin brother “T”. Both boys met the appellant while fishing at the Onkaparinga River at Port Noarlunga when aged about 13 years. They became friendly with him. By the time of their fifteenth birthday, T was living with the appellant. Apparently, he still does. On the occasion of the first count, M said he was visiting the appellant’s home and was asked to stay the night by his brother. During the evening they played video games, watched a movie and smoked four or five cones of cannabis. The three of them slept on mattresses lined up on the floor of the lounge room. The appellant was between the two boys. M said that during the night he awakened to find the fly of his jeans undone and the appellant’s hand fondling his penis through his boxer shorts. M said he moved away and he saw the appellant roll over, away from him. In the morning he said nothing of the incident. The second count was described as occurring a week or two later. Again M was at the appellant’s home at the invitation of his brother. Again, he consumed a quantity of cannabis. When the brothers and the appellant went to go to sleep in the same room as before, M said he made sure that T was between himself and the appellant. However, he said he was awakened in the night by something which he took to be a large hand rubbing his buttocks outside his trousers. He immediately rolled away and then turned to see the appellant drawing back from a position in which he had been reaching over T. He said the contact lasted “a few seconds”. The third count was said to have taken place four or five weeks later when the appellant, M and T went away overnight together. During the evening M consumed significant quantities of both cannabis and spirits. He said he felt “stoned”. They all slept in the back of the accused’s panel van. M said that his brother again slept in the middle. He related that during the night he was awakened by the appellant rubbing his bottom over his clothing. He acknowledged in cross-examination that he did not turn to see the appellant but pushed the hand away. He said the touching lasted “a split second”.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

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