Turner v Visser - [2001] TASSC 135

[2001] TASSC 135

CITATION: Turner v Visser [2001] TASSC 135

PARTIES:  TURNER, Leslie Norman
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 8/2001
DELIVERED ON:  23 November 2001
DELIVERED AT:  Launceston
HEARING DATES:  13 November 2001
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  D G Grey
             Respondent:  J Ransom
Solicitors:
             Applicant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 135
Number of Paragraphs: 40

Serial No 135/2001
File No LCA 8/2001

LESLIE NORMAN TURNER v CLAAS VISSER

REASONS FOR JUDGMENT SLICER J
23 November 2001

The applicant was convicted of the offence of indecent assault contrary to the Police Offences Act 1935, s35(3). He was employed as a carpenter with a company contracted to maintain the repair of houses owned by the Department of Health & Human Services (Housing Services Division) and would normally work with another employee. The two men would be allocated a list of houses requiring attention and attend to the required tasks in some form of sequence.

On 12 September 2000, the applicant went with his fellow employee to the complainant's home outside Launceston in order to fit safety locks designed to protect the residents from outside intrusion. The complainant claimed that while the applicant was in her home, and his work mate engaged elsewhere, he indecently assaulted her. She said that while he was showing her how the deadlock worked, she was asked if she had a boyfriend and whether he could return later in the day or at a later date. When she refused, he asked if he could touch her and despite protest, touched and rubbed her between the legs and kissed her on the forehead. After the assault, the applicant again asked whether the complainant would be prepared to meet with him socially. The complainant, who had two young children, at one stage mentioned that "he didn't want me to report him to the Housing Commission or whatever". Nothing further untoward occurred.

When the applicant and his fellow employee left the house, the complainant rang a friend and said in her evidence, without going into detail, told her "What had happened". Later in the day she contacted the police.

On 19 September 2000, the applicant was interviewed by police. After some general questioning, he was asked about his version of the events occurring on 12 September. Having established from the applicant's answers that he was one of the persons at the residence, the question was put as to whether he had asked the complainant "whether she was seeing anybody", to which he replied that he could not recall doing so, but added "I can't 100% say I didn't. I often say oh, you live here by yourself with your kids or something like that … I often say things like that".

The question was appropriate and doubtless intended to check the internal consistency of the complainant's account and, if possible, corroborate it in some material way. With 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 Turner v Visser

Details

AGLC: Turner v Visser [2001] TASSC 135
Case: [2001] TASSC 135
Decision Date: 23 November 2001

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Leslie Norman Turner (the applicant) appealed against his conviction and sentence for indecent assault, contrary to the Police Offences Act 1935, s 35(3). Turner was employed as a carpenter by a company contracted to maintain houses owned by the Department of Health & Human Services. On 12 September 2000, Turner and his colleague went to the complainant's home to fit safety locks. The complainant alleged that Turner indecently assaulted her while his colleague was elsewhere in the house. Turner was interviewed by police on 19 September 2000 and denied the allegations. The grounds of appeal included the reception of evidence of similar facts, the use of such evidence, and the sentence imposed.

The court found that the evidence was relevant and admissible as it demonstrated circumstances of opportunity, methodology, and similarity of the form of the assault. Turner's failure to object to the evidence did not necessarily lead to a miscarriage of justice, as there was sufficient independent evidence to safely permit the finding. The cross-examination of Turner used the evidence to show a history of opportunistic conduct consistent with the complainant's account, which was permissible as it did not constitute general evidence of bad character or prior convictions. The court held that the learned magistrate did not engage in propensity reasoning and correctly assessed the credibility of the evidence.

The recent complaint made by the complainant to her friend was also relevant and admissible, and could be used to enhance the credibility of the complainant. The court found no error in the magistrate's assessment of the evidence and dismissed the appeal against conviction and sentence. The sentence of three months' imprisonment, wholly suspended, was a permitted penalty, reflecting the significance of the offence and the need for general and special deterrence.

Orders