R v Schippani - [2012] ACTSC 108

R v JOHANN ARNOLD SCHIPPANI [2012] ACTSC 108 (13 July 2012)

CRIMINAL LAW – PARTICULAR OFFENCES – act of indecency without consent –nature of act of indecency where physical contact acceptable in the circumstances – accused providing Brazilian wax procedure to complainant – whether consent relates to the physical act or to the act of indecency – where act “objectively does not unequivocally offer a sexual connotation” – requirement of evidence of accused’s intention to obtain sexual gratification.

CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – act of indecency without consent – complainant’s failure to assess duration of events accurately, or minor discrepancies in evidence relating to insignificant or peripheral matters, need not damage credibility – later additions to detail of complainant’s complaint, possibly with knowledge that police were “underwhelmed” by initial complaint, may damage credibility – accused’s failure, at police interview about alleged act of indecency, to be precise about business arrangements between him and his partner not relevant to credibility.

STATUTES – ACTS OF PARLIAMENT – interpretation – irregularity in treatment of consent in sexual offences against young people under s 67(1) of the Crimes Act1900 (ACT) – whether s 67(3) of the Crimes Act limits s 67(1) to cases of knowledge of, rather than recklessness as to, lack of consent.

Evidence Act 1995 (Cth)
Defence Force Discipline Act 1982 (Cth)

Crimes Act 1900 (ACT), ss 54, 55(3), 60, 61(3), 67, 67(1), 67(3)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, s 40
Supreme Court Act 1933 (ACT), s68C

Criminal Procedure Act 1986 (NSW), s 33(2)
The Criminal Code (WA), s 324D

Fleming v The Queen (1998) 197 CLR 250
Ibbs v The Queen [1988] WAR 91
Jones v Chief of Navy [2012] ADFDAT 2
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
R v E (1995) 89 A Crim R 325
R v Harkin (1989) 38 A Crim R 296
R v Pahuja (1987) 49 SASR 191
R v Prasad (1979) 23 SASR 161

ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001)

No. SCC 348 of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 13 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 348 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R
v
JOHANN ARNOLD SCHIPPANI

ORDER

Judge:  Penfold J
Date:  13 July 2012
Place:  Canberra

THE COURT FINDS THAT:

On the charge of committing an act of indecency without consent, Johann Schippani is not guilty.

THE COURT ORDERS THAT:

Appendix B of these reasons is not to be published except to the prosecution and the accused.

Background

The accused was arraigned before me on the charge that:

On the 11^th day of December 2008 at Canberra in the Australian Capital Territory JOHANN ARNOLD SCHIPPANI committed an act of indecency upon [the complainant], without her consent, and being reckless as to whether she consented.

The charge arose under s 60(1) of the

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 Schippani

Details

AGLC: R v Schippani [2012] ACTSC 108
Case: [2012] ACTSC 108
Decision Date: July 13, 2012

CaseChat Overview and Summary

In the case of R v Schippani, the respondent, Schippani, was charged with a single count of indecent act without consent contrary to section 67(1) of the Crimes Act 1900 (ACT). The incident in question involved Schippani performing a Brazilian wax on the complainant, and the crux of the dispute was whether the act constituted an indecent act without consent. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether the act of providing a Brazilian wax constituted an indecent act, and if so, whether the complainant had given consent to this act. Additionally, the court needed to determine whether the statutory requirement of lack of consent under section 67(1) of the Crimes Act 1900 (ACT) was limited to cases of knowledge of the lack of consent, as per section 67(3), or if recklessness regarding the lack of consent was also sufficient.

The court found that the act of providing a Brazilian wax did not necessarily equate to an indecent act if the physical contact was acceptable in the circumstances. The court concluded that the act “objectively does not unequivocally offer a sexual connotation,” and therefore, to establish an indecent act, there must be evidence of the accused's intention to obtain sexual gratification. The court also considered the credibility of the complainant's evidence and found that minor discrepancies or inaccuracies in the timing of events did not necessarily undermine her credibility. However, later additions to her complaint, made possibly with knowledge that the police were initially unconvinced by her account, did affect her credibility. Regarding the statutory interpretation, the court determined that section 67(3) did not limit section 67(1) to cases of knowledge of lack of consent, and recklessness was sufficient to satisfy the requirement of lack of consent.

The court acquitted Schippani on the charge, finding that the prosecution had not proven the essential elements of the offence beyond reasonable doubt. The court also ordered that Appendix B of these reasons, which contains sensitive information about the complainant, is not to be published except to the prosecution and the accused.

Orders

Orders of the court

Appendix B of these reasons is not to be published except to the prosecution and the accused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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