Ian JACKSON v REGINA

INTRODUCTION 11 Between 8 and 11 March 2004 the appellant, Mr. Jackson, stood trial in the District Court at Newcastle before his Honour Judge Armitage QC sitting with a jury. 12 The appellant was tried upon an indictment containing three counts. Count 1 charged that on 1 September 2001 the appellant had sexual intercourse with a particular complainant, to whom I shall refer only as KG, without her consent and knowing that she did not consent. Count 2 charged that on 17 July 2002 the appellant assaulted another particular complainant, to whom I shall refer only as JM, and committed at the time of such assault an act of indecency upon that complainant. Count 3 charged that on 17 July 2002 the appellant had sexual intercourse with the complainant JM, without her consent and knowing that she did not consent. 13 The trial was a re-trial, the jury at an earlier trial having been unable to agree upon a verdict on any count. 14 On 11 March 2004 the jury found the appellant guilty as charged on each of the three counts. In May 2004 the appellant was sentenced to various terms of imprisonment. No application is now made for leave to appeal against the sentences, and no more need be said, therefore, about them. 15 At the commencement of the trial, after the empanelling of the jury, before the Crown opening to the jury and in the absence of the jury, the following interchanges occurred: "COLES: Your Honour, just in relation to the trial matter I can just indicate to your Honour this matter is a retrial from October of last year. In October of last year a number of issues were ventilated, including the admissibility of coincidence evidence and I understand that my friend doesn't propose to reopen that issue. The decision was made by his Honour at the time to allow coincidence evidence to be led in the trial and I understand that that's not to be revisited and that is indeed the case. MARR: It is indeed the case, your Honour. HIS HONOUR: Thank you for that. You might just tell me why it was that there's a retrial. COLES: Your Honour, it was a hung jury. HIS HONOUR: Right. That's fine. I thought it was on some matter of law and I'd better know what the matter of law was. COLES: No, your Honour, I should have said that first." [T5. Mr. Coles appeared as Crown Prosecutor; Mr. Marr was the appellant's counsel at trial, but did not appear for him at the hearing before this Court.] 16 One of the two grounds of the present appeal is that a miscarriage of justice occurred by reason of misdirection of the jury upon the topic of coincidence evidence. 17 The appellant neither gave nor called oral evidence at his trial. His case rested, essentially, upon cross-examination of each complainant. He went, by his then counsel, to the jury upon the basis that the jury could not accept either complainant as having been, beyond reasonable doubt, honest and reliable in giving her respective evidence. Counsel, in his closing address, was very trenchant in his criticism of the credibility of JM, putting at one stage to the jury: "I'm not trying to be critical of her character. People are like that. But if this thing happens to you, or happens to someone that you know, you expect them, as Mr. Crown says, to complain to the first person they trust. Well that's not what happened here. It didn't happen in this case because it didn't happen as she said. I don't know whether her motivations are compensation or something else. All I know is that she stopped her worker's comp claim after she complained about him. That's all I know of her. That's all you know of her." [T 187] 18 Counsel was not quite as extensively trenchant in his submission criticising the credibility of KG; but at one point during his address he characterised as "simply a preposterous assertion", one of the central complaints that KG had described during the course of her evidence. 19 Much of the defence address concentrated upon the pointing up of discrepancies and inconsistencies in the evidence, respectively, of JM and of KG, with special emphasis upon discrepancies and inconsistencies drawn out of a comparison of the evidence of each complainant at the first trial, and then at the re-trial. 20 The course of the defence address was interrupted by the normal luncheon adjournment. In the absence of the jury and before the formal adjournment, the following interchanges occurred: "HIS HONOUR: Mr. Crown, just before I adjourn, I'll ask you first, knowledge absence of consent, should there be a direction as to recklessness? COLES: I would ask that - your Honour, it is a part of the Crown case that he didn't care -- HIS HONOUR: What the authorities say is, if it's denied, it's usually not necessary to give a direction about recklessness. Of course, it hasn't been denied. So initially I'd thought that I would not be giving a direction about recklessness, but it seems to me the way the whole thing's been left, perhaps I should. COLES: Yes, I would, I think, your Honour -- HIS HONOUR: What do you say, Mr. Marr? MARR: I don't oppose that course, your Honour. COLES: Yeah. HIS HONOUR: You don't oppose that? All right, well I'll give the direction of recklessness." [T 180, 181] 21 The second of the two present grounds of appeal is that there was a miscarriage of justice deriving from misdirection of the jury on the issue of consent in respect of the complainant JM. At the hearing of the appeal learned senior counsel for the appellant said that having re-thought the point, he wished to submit " ……… that there were some passages in the transcript that left open the issue of consent in relation to KG as well". 22 Before proceeding to a detailed consideration of these two grounds of appeal, it will be useful to note the following brief summary of the Crown case as it is set out in the Crown's written submissions in this Court: "In July 2001, KG, whilst seeking the services of a counsellor to assist her with some personal problems, responded to an advertisement for Ian's Academy of Enlightenment, an alternative healing and massage business conducted by the appellant in rooms located in a shopping centre in Whitebridge, a suburb of Newcastle. She attended the appellant's rooms for an initial consultation and then, subsequently, attended the same premises for weekly meditation classes. Following some of those classes, the appellant recommended to her that she make an appointment for a massage. Mrs. G was massaged by the appellant on 14 and 23 August and on 1 September 2001. During each of these sessions the appellant directed her to remove all of her clothing. She felt uncomfortable naked and, at first, she did not comply with his direction. During the first session, she wore her underwear. During the second session she wore a towel. At the beginning of the third session, the appellant pulled her towel from her body and encouraged her to proceed with the massage. The third massage proceeded with Mrs. G lying face down on the massage bench. Initially, the appellant came over and patted her bottom. He then started to massage her and during the massage he moved his hands to her lower back, the small of her back and her bottom and inserted his finger into her anus and pushed down (count 1) . Mrs. G became very upset and the appellant removed his finger. She left the room shortly after and went home. A few days later she told her husband what had happened. On 17 July 2002, JM, saw the appellant in his capacity as an alternative healer. She was experiencing work-related anxiety and had been advised about his practice by two friends. During the consultation the appellant advised her to have a massage and she made an appointment for later that day. On her return, the appellant told her to remove all of her clothing. She did so and then lay face-down on the massage bench. Soon after the massage commenced, the appellant move his hand into the area of her coccyx (or tailbone). He then moved his fingers to the area around her anus and began to touch her there (count 2) . He spoke about pressure points and energies and distinguishing between sensations of pleasure and pain. Mrs. M protested about this conduct. The appellant, nevertheless, continued to touch her around her anus and genitalia for some time. Following these touches, he inserted his finger into her vagina (count 3) and rubbed up and down either side of her clitoris. After the appellant concluded the massage, she got dressed and paid for the session and left. She later reported to her friends what had occurred and soon after that made a formal complaint to police. The Crown relied on the testimony of both complainants and, to a lesser extent, the evidence of the persons to whom they made their complaints. In addition, the Crown submitted that there was a striking similarity between the allegations made by each of the complainants."