R v Johann Arnold Schippani

• Jurisdiction: Australian Capital Territory
• Judge: Penfold J
• Judgment Date: 13 July 2012
• Date: 13 July 2012
• Court: Supreme Court of ACT
• Docket Number: No. SCC 348 of 2009

[2012] ACTSC 108

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Penfold J

No. SCC 348 of 2009

R

and

Johann Arnold Schippani

Counsel for the Crown: Ms M Hunter

Counsel for the defendant: Mr K Archer

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

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

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

CRIMINAL LAWPARTICULAR OFFENCE — Sact 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 indecencywhere act ‘objectively does not unequivocally offer a sexual connotation’requirement of evidence of accused's intention to obtain sexual gratification.

RIMINAL 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 credibilityaccused'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 Act 1900 (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.

ORDER

THE COURT FINDS THAT:

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

THE COURT ORDERS THAT:

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 Appendix B of these reasons is not to be published except to the prosecution and the accused.

Background

1 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.

2 The charge arose under s 60(1) of the Crimes Act 1900 (ACT), which at the time of the alleged offence was as follows:

A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

3 The accused pleaded not guilty to the charge.

Information identifying the complainant

4 This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence ( Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant's identity or from which the complainant's identity might reasonably be inferred.

5 In these reasons, therefore, I do not refer to the name of the complainant, or to the name of her friend who gave evidence, because publication of the friend's name might identify the complainant. I have added an appendix identifying those witnesses ( Appendix B) to these reasons, which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.

Trial by judge alone

Election

6 The accused elected to be tried by judge alone.

Procedures for trial

7 Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone.

8 The judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts (s 68C(1)).

9 At the time of this trial, s 68C(3) required the judge to take into account any warnings, directions or comments that would, under a Territory law or the Evidence Act 1995 (Cth), have had to be given or made to a jury in the case.

10 The judge must provide a judgment setting out the principles of law she applied and the findings of fact on which she relied (s 68C(2)). In Fleming v The Queen (1998) 197 CLR 250, the High Court considered s 33(2) of the Criminal Procedure Act 1986 (NSW), which was in relevantly identical terms to s 68C(2), and said at [28] that:

whilst s 33(2), when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

11 As noted, in a judge-alone trial the judge must now give herself certain directions equivalent to those that would be given to a jury. Those directions include general directions relating to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and specific directions that may be required in the particular trial. The general directions I have given myself in this trial are set out in Appendix A, while directions specific to this trial are mentioned at the appropriate point in this judgment.

Background to the charge

12 On 11 December 2008, the complainant, an existing customer of the Aviva Beauty Salon in Gungahlin, went to the salon for treatment including a Brazilian wax. On that evening the treatment was provided by the accused, who was the partner of the salon owner and regularly worked in the salon. On her return home that night the complainant contacted a friend and described her experience at the salon. About a month later she made a complaint to the police about the accused's behaviour in the salon, and in due course the current charge was laid.

General comments about evidence

13 The complainant gave evidence for several hours over two days. Her evidence was clear and concise and she did not appear to be exaggerating her experience. She impressed me as an honest witness doing her best to give accurate evidence, and maintained that presentation throughout extensive cross-examination about the incident giving rise to the charge, as well as much cross-examination about associated issues such as her reporting of the incident. She answered questions readily (except on the few occasions when she did not recognise a statement made to her by counsel as a question), gave no impression that she was assessing the import of her answers before giving them, and resisted the temptation at many points to claim a clearer recollection than she really had, or to embroider the details of her encounter with the accused in response to persistent questioning. She became distressed at one point in her evidence, but she showed no signs of frustration, resentment or anger at defence counsel's repeated challenges to her recollection.

14 At the end of the prosecution case, counsel for the accused asked me to give myself a Prasad direction on the ground that ‘the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it’ ( R v Prasad (1979) 23 SASR 161 at 163 per King CJ). I declined because at that point I had heard nothing that appeared to undermine the complainant's credibility or reliability to the extent described in R v Pahuja (1987) 49 SASR 191 at 218, by Cox J as follows:

The typical occasion for [a Prasad direction] in a sexual case will be the discrediting of the complainant in the witness-box — admitted lies or plain contradictions or vacillations — or important contradictions with other Crown witnesses.

15 In the defence's closing submissions more specific challenges were made to the complainant's credibility, and the reliability of her evidence was challenged in several ways (discussed at [37] to [51] below).

16 The accused gave sworn evidence, which of course he was not obliged to do. He admitted to a vague recollection of the complainant when he saw her give evidence, but denied any recollection of providing the relevant treatment to her on the night of the incident. This was understandable, given that the accused did not become aware of the complaint until some five weeks after the incident complained of. For that reason, however, most of his evidence was to the effect that particular events alleged could not or would not have happened because that was not his practice or because he had never done such a thing. Despite this unsurprising vagueness, the accused also gave evidence in a clear and straightforward manner.

The evidence

17 The undisputed evidence in this trial, including from the accused and a beautician experienced in providing, and training others in the provision of, Brazilian waxes, was that a Brazilian wax is a...