1
Jul

Introduction

In  R v Jones [2011] QCA 19, the appellant had been convicted in the District Court at Mount Isa of sexual assault.  He appealed to the Court of Appeal.

On appeal, he argued that there had been a miscarriage of justice because the trial judge had directed the jury that his intention or motive was irrelevant when it came to determining whether an assault was indecent.

The first innocent event

The appellant was a paramedic.  He attended the home of the complainant who had chest pains.  The appellant carried out an electrocardiogram by attaching electrodes near the complainant’s collar bones and on her ribs.  The reading from the electrocardiogram was such that the appellant decided the complainant should be admitted to hospital.  On this first occasion, the complainant said she was quite comfortable with the appellant’s conduct.

The second suspicious event

Two days later the appellant attended the complainant’s house again wearing his paramedic uniform.  He told the complainant that she needed to have another electrocardiogram done.  The complainant’s evidence was that the appellant had told her that a doctor had asked him to come back to do another electrocardiogram.  On that basis, the complainant let the appellant do it.

The appellant knelt in front of the complainant.  He put two electrodes over her breast tissue.  He then lifted up her shirt and placed two electrodes directly under her breasts.  He then carried out the electrocardiogram.

The complainant’s partner then arrived home.  The appellant told the complainant the test was “fine” and then he packed up quickly and departed.

The equivocal evidence regarding the intention or motive of the appellant

The following evidence came out in the course of the appellant’s trial:

• Two days after the appellant’s second visit to the complainant’s home, the appellant showed his boss the electrocardiogram readings, and he described them as “unusual” and demonstrated some intrigue in relation to the readings.
• Generally speaking, it was unusual for a paramedic to follow up on treatment with patients.
• It was not hospital policy to request paramedics perform follow ups with patients.
• The placement of the electrodes on the appellant’s second visit was not legitimate.
• The appellant was the type of paramedic who was very caring and concerned about his patients, and who continually sought further information and self-education.

What happened in the District Court at trial

At trial, the District Court Judge persistently told the jury that the motive of the appellant in doing what he did was not relevant in relation to whether or not it was indecent.  The Judge emphasised that the test of indecency was objective and did not depend on whether the appellant did it to obtain sexual gratification.  His Honour said the fact that the appellant might not have thought his conduct was indecent at the time did not assist him because the test was objective.

What happened in the Court of Appeal on appeal

The Court of Appeal did not concur.  It was said:

… where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision.  That did not occur here and the appellant has lost a real chance of acquittal.

The error meant that the appellant’s conviction was set aside, and a re-trial was ordered.

Conclusion

Often indecent assaults are unequivocally sexual in nature, but sometimes circumstances will make an alleged indecent assault equivocal in the sense that it might have a sexual connotation or it might not.  When it comes to assaults of the latter kind, it is important that the intention of the defendant is properly put before and considered by a jury.