Appeal over historic schoolgirl sex assault conviction launched
A man found guilty of a historic sex assault on a schoolgirl has appealed to the Supreme Court to quash the conviction.
Jamel Simons, 38, was convicted of a sex offence against a girl, who was 15 at the time, in Magistrates’ Court in March – 19 years after the offence happened.
But Paul Wilson, who appeared for Simons, said at an online Supreme Court hearing on Wednesday that the evidence did not support the magistrate’s findings.
Magistrates’ Court earlier heard that Simons, who was 19 at the time, had conversations in 2002 with the girl, who cannot be named for legal reasons, before they agreed to meet on an unknown day in April that year.
That day the complainant and a friend – another schoolgirl – skipped classes and went to the Warwick house where Simons lived with his mother.
The victim told the court that she did not know the defendant well enough to like him and knew his age, but was attracted to him enough that she wanted to meet him.
She and Simons were left alone in his bedroom within a few minutes with loud music playing, which prevented others in the house from hearing anything inside.
The victim told the court that after kissing and consensual touching, Simons pinned her arms and forced himself on her while she screamed.
Simons admitted that he had sex with the girl, but claimed it was consensual.
He told the court that he had nerve damage, which meant he could not have held her arms down, and denied that she had ever screamed or pushed him away.
Magistrate Khamisi Tokunbo said the prosecution witnesses were credible, and the victim was “frank, straightforward and clear in her evidence”, even though she still seemed affected by the incident.
Mr Tokunbo said the victim had been frank about her own actions, but that Simons was “not entirely honest” and came across as a “callous, unfeeling person who only wanted sex”.
Simons launched an appeal before he could be sentenced in the lower court.
Mr Wilson accepted that the complainant was entitled to withdraw her consent, and that, if her version of events was believed, it would amount to sexual assault.
But he said Mr Tokunbo had not said why he preferred the complainant’s version of events to that of Simons.
Mr Wilson said the girl’s evidence of the assault did not “gel” with her earlier evidence.
He added the victim admitted that she had “orchestrated” the meeting in the knowledge that it might result in sex.
Mr Wilson said that there was no evidence outside of her testimony to support her claim that she had screamed or done anything to make Simons believe he did not have her consent to sex.
He said: “It was not for the appellant to prove he had an honest belief.
“Once it was raised, it was for the Crown to disprove that he had an honest belief.”
Mr Wilson added later: “Essentially, the magistrate shifted the onus to the appellant requiring that he prove that the complainant had consented to the act or that he had an honest belief in her consent.”
The hearing was adjourned until November 1.
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