R v Maiolo
[2011] SASCFC 86
•11 August 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAIOLO
[2011] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
11 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal from verdict of a jury – appellant found guilty of five counts of unlawful sexual intercourse and five counts of indecent assault against four complainants – three of the four complainants were sisters – appellant was in a relationship with another sister who was not a complainant – fourth complainant was appellant’s daughter from that relationship – all ten counts were joined – no application for severance at any stage – trial progressed as if evidence was cross-admissible – trial judge ruled after addresses that evidence was not cross-admissible – whether jury hearing evidence that was not cross-admissible caused impermissible prejudice – whether trial judge should have declared a mistrial – whether trial judge’s directions were adequate – whether miscarriage of justice.
Held: appeal allowed – appellant suffered impermissible prejudice by trial proceeding as if evidence was cross-admissible when in fact it was not – the only appropriate action to cure prejudice was a mistrial – prejudice could not be rectified by directions – trial judge’s directions were inadequate in any event – appeal allowed – convictions quashed – retrial ordered.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 56, s 278, referred to.
Sutton v R (1984) 152 CLR 528; De Jesus v R (1986) 68 ALR 1, applied.
Hoch v The Queen (1988) 165 CLR 292; R v Ellis (2010) 199 A Crim R 249, considered.
R v MAIOLO
[2011] SASCFC 86Court of Criminal Appeal: Nyland, Anderson & David JJ
NYLAND J: I have read the reasons of David J and I agree with the conclusion he has reached. The charges were properly joined on the Information in accordance with s 278(1) of the Criminal Law Consolidation Act 1935 as they were a series of offences of the same or similar character. However, they consisted of multiple accounts of sexual offending involving four separate victims. Cross admissibility was therefore a significant issue which should have been resolved prior to trial with consideration given to whether or not there should have been severance pursuant to s 278(2a)(b) but that did not occur. For the reasons expressed by David J, I agree that the trial has miscarried. I would allow the appeal, quash the convictions and order a retrial.
ANDERSON J: Whilst I agree with the decision to allow the appeal, quash the conviction and order a re-trial I do so with some misgivings.
In my view there is a lot to be said for the arguments advanced by Mr Kimber SC as summarised by David J in his reasons at [39]-[41].
The trial proceeded with both counsel of the view that there was cross‑admissibility. The judge ruled to the contrary. As Mr Kimber submitted, on the face of it, the appellant had the benefit from such a ruling but that is not the complete answer because of the way in which the matter was left to the jury.
As to the judge’s summing up, I agree with David J that unfortunately the trial miscarried for the reasons he gives. I would therefore allow the appeal.
DAVID J: The appellant was charged on Information with seven counts of unlawful sexual intercourse and three counts of indecent assault. There were four complainants aged between five and 16 years. There was also evidence led at the trial of uncharged acts with respect to each complainant.
The appellant was found guilty by verdicts of a jury of five counts of unlawful sexual intercourse and five counts of indecent assault. Two of the verdicts of indecent assault were alternative verdicts to charges of unlawful sexual intercourse (counts 3 and 7). As can be seen, the guilty verdicts embraced all four complainants.
Although there are a number of grounds of appeal and a number of complaints alleging miscarriage of justice, the critical matter argued on appeal is that an order for severance of the Information should have been made as the trial Judge ruled that the evidence in relation to each complainant was not cross‑admissible. Consequently, the appellant argues consistent with authority, once that ruling was made, the Information should have been severed to allow for separate trials in relation to each complainant. Alternatively, the appellant argues the directions given by the trial Judge to the jury as to the impermissible prejudice that might arise from the joinder of counts, were inadequate.
There are unusual features of the case which create problems. Although there was a joint Information involving four different complainants alleging sexual offending, there was no application for severance before the trial commenced. That may have been due to the fact that both the prosecution and defence counsel seemed to be of the view that there was in fact cross‑admissibility and therefore severance would not be justified.
Nevertheless, there was no discussion before the prosecutor’s opening as to the basis of that cross-admissibility. In the prosecutor’s opening there is no real reference to how the evidence of one complainant could be used in relation to the other complainants. The topic of cross-admissibility does not seem to have arisen in the trial until after counsel had completed their addresses and before the trial Judge commenced his charge to the jury. The Judge invited counsel to address him as to how he should direct the jury on the question of cross‑admissibility, and after a brief discussion both were of the view that the evidence of each complainant was cross-admissible on the basis of “underlying unity”. There appeared to be no elaboration in the discussion between counsel and the Judge as to what exactly that meant in the context of the case.
Despite the submissions of counsel, the Judge disagreed and ruled that there was in fact no cross-admissibility. He directed the jury accordingly. At that stage, having given that ruling, no application was made for a mistrial.
Mrs Shaw QC, counsel for the appellant on the appeal but not at trial, now argues that the Judge, irrespective of the attitude of counsel, should have ordered a mistrial following his ruling. She also argues that even allowing for the fact that that was not done and no application was made, the directions he gave to the jury warning of the impermissible prejudice of four complainants giving evidence of sexual impropriety, were not adequate. She further argues that if the trial Judge erred in his ruling and there was in fact cross-admissibility that of itself required careful directions as to how that evidence could be used and the limits of its use. She argues there was therefore a miscarriage of justice.
Background facts
The appellant was born on 8 July 1963. At the time of the allegations, as set out in the Information, he was in a sexual relationship with T. The four complainants were the three younger sisters of T and the daughter of the appellant and T. The daughter was born in October of 1987. I will refer to each of the victims in order of the Information as V1 (counts 1-3), V2 (count 4), V3 (counts 5-7) and V4 (counts 8-10). I set out the Information in full:
First Count
Statement of Offence
Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1st day of January 1987 and the 31st day of December 1989 at Brooklyn Park, had sexual intercourse with [V1], a person aged between 14 and 16 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1st day of January 1987 and the 3rd day of December 1990 at Salisbury North, indecently assaulted [V1].
Third Count
Statement of Offence
Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1st day of January 1987 and the 31st day of December 1990 at Brooklyn Park, had vaginal sexual intercourse with [V1], a person aged between 14 and 16 years.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse (Ibid).
Particulars of Offence
Robert John Maiolo between the 11th day of November 1991 and the 28th day of January 1993 at Kilburn, had vaginal sexual intercourse with [V2], a person aged between 13 and 15 years.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 13th day of July 1989 and the 31st day of December 1990 at Salisbury North, indecently assaulted [V3], a person aged between 5 and 6 years.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 13th day of July 1989 and the 31st day of December 1990 at Salisbury North, had vaginal sexual intercourse with [V3], a person aged between 5 and 6 years.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse (Ibid).
Particulars of Offence
Robert John Maiolo between the 13th day of July 1989 and the 31st day of December 1990 at Salisbury North, had sexual intercourse with [V3], a person aged between 5 and 6 years, by inserting his finger into her vagina.
Eighth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1st day of February 1992 and the 8th day of November 1996 at Brooklyn Park, indecently assaulted [V4], a person aged between 5 and 9 years.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo, between the 1st day of February 1992 and the 8th day of November 1996 at Brooklyn Park, had sexual intercourse with [V4], a person aged between 5 and 9 years, by causing her to perform an act of fellatio upon him.
Tenth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Robert John Maiolo between the 1st day of February 1992 and the 8th day of November 1996 at Brooklyn Park, had sexual intercourse with [V4], a person aged between 5 and 9 years, by committing an act of cunnilingus upon her.
The appellant was convicted of all counts as charged except on counts 3 and 7, where he was convicted of the alternative charges of indecent assault.
Trial
At trial, the prosecution presented evidence from all four victims, T, T’s mother (TM), a medical practitioner who examined V4 some years after the date of the allegations, MP (a former partner of V2), who gave evidence of a complaint made by her in 2002, and TS (a friend of V3) who gave evidence of a complaint made by V3 whilst they were at school that the appellant kissed her on an occasion. The investigating police officer was also called. The appellant gave evidence denying all allegations and called his sister (DO).
The appellant and T started living together in a sexual relationship in December of 1986. She was about 15 years of age at the time, although that is not a basis of any charge on this Information. They lived together at various addresses until they moved to Brooklyn Park in 1987 when V4 was born. After living there for about two years they moved to Kilburn, and the relationship ended in 1993 when the appellant left the house and moved to Lockleys where he commenced a relationship with V1. At that stage V1 was over the age of 17 years. I set out a summary of the evidence led at trial in relation to each complainant.
V1 (counts 1-3)
On an occasion when V1 was visiting her sister and the appellant at their unit at Brooklyn Park, she gave evidence that the appellant penetrated her vagina with his finger (count 1).
On a separate occasion when the appellant was visiting the family home at Salisbury North, he indecently assaulted the complainant in a cubby house on the premises (count 2).
On another occasion V1 was again visiting her sister and the appellant at the unit at Brooklyn Park, and she gave evidence that he had vaginal sexual intercourse with her (count 3).
In relation to V1 there was also evidence of uncharged acts. She gave evidence of being pushed onto a bed at the Kilburn house, and being sexually assaulted whilst at the beach with the appellant. She also said there were other occasions but she couldn’t recall any specific detail.
V2 (count 4)
V2 was visiting her sister and the appellant at their home at Kilburn and the appellant had vaginal sexual intercourse with her. There was evidence of uncharged acts in that V2 said that the same thing happened on other occasions that she stayed over at the Kilburn house. It is to be noted that V1 gave evidence of seeing the appellant and V2 together in bed at the family home at Salisbury North. However, V2 said such an incident did not take place.
V3 (counts 5-7)
V3 gave evidence that the appellant was visiting the family home in Salisbury North and he touched her vagina (count 5).
The appellant had vaginal intercourse with her at the family home at Salisbury North (count 6).
The appellant penetrated the vagina of V3 with his finger (count 7).
There was evidence from V3 of uncharged acts whereby the appellant placed her hand on his penis.
V4
The evidence concerning V4 involved occasions after the appellant had separated from T and V4 was on access visits to his home.
She gave evidence that on one occasion he rubbed his penis against her (count 8).
On another occasion at the appellant’s home she performed an act of fellatio upon him (count 9).
On a further separate occasion whilst on an access visit the appellant performed an act of cunnilingus upon her (count 10).
She gave evidence of uncharged acts of being sexually assaulted over a number of years by the appellant.
The appellant gave evidence on oath and denied all allegations. He denied any form of sexual impropriety.
Appeal
As I have indicated, the critical argument on appeal involves the question of whether the Information should have been severed and the adequacy of directions that flowed from the Judge’s ruling that there was no cross-admissibility between the complainants. Mrs Shaw does not present an argument that the counts in relation to each complainant were not properly joined. The question of joinder is governed by s 278 of the Criminal Law Consolidation Act 1935 (SA). I set out that section in full:
278—Joinder of charges
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c) in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
(3)This section does not affect any other provision of this Act or any other enactment permitting more than one charge to be joined in the same information.
(4)In this section—
sexual offence means—
(a)an offence against section 48, 48A, 49, 50, 56, 58, 63B, 68 or 72; or
(b)an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
Mrs Shaw concedes that the charges in this case form part of a series of offences of the same or a similar character. However, she argues that as the Judge ruled there was no cross-admissibility, the Judge should have exercised his discretion pursuant to s 278(2a)(b). She relied on a number of decisions of the High Court which clearly state where a number of sexual offences are charged on the one Information in relation to different complainants, the general rule is that they should not be tried together if the evidence on one count is not admissible on another count.
In Sutton v R (1984) 152 CLR 528, Gibbs CJ said at 531:
Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v. Boardman [1975] A.C. 421, at pp. 442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v Boardman [1975] A.C. 421, at p. 459, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts.
Brennan J said at 541-542:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.
In De Jesus v R (1986) 68 ALR 1, Gibbs CJ quoted Brennan J’s statement from Sutton with approval at 4-5:
This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton v R.
Dawson J said at 16:
At all events, it is clear that the very nature of some offences is such that as a general rule they should not be tried together because of the risk of prejudice where the evidence admissible in proof of one is not admissible in proof of the other.
The risk of prejudice is, of course, the risk that, notwithstanding any direction to the jury to consider the offences separately, they will treat the evidence upon one charge as evidence of similar facts in support of the other. Similar fact evidence is excluded by the law where it can do no more than demonstrate a criminal propensity, because the prejudicial effect of the evidence is far greater than any relevance which it might have. However, where the evidence has relevance beyond showing a criminal disposition then it will be admissible provided its probative value is sufficient to outweigh its prejudicial effect. The subject is examined in Sutton v R and I shall not repeat the examination here.
It is clear in the present case that if the application for severance was made at the beginning of the trial, pursuant to a ruling that the evidence was not cross‑admissible, it would have been successful. In the light of the above authority, it is hard to imagine on such an application being made that a Judge would rule otherwise. As I have already mentioned, the complication in the present case is due to the fact that both counsel proceeded on the basis that the evidence was cross-admissible and the matter was not fully debated until all of the evidence and addresses of counsel had finished.
Mr Kimber SC, for the respondent, argues that there was no miscarriage of justice. He points out that there was no application for severance made at trial by defence counsel. This aspect has caused me some concern. However, there is a clear reason why defence counsel made no such application, and that is because he (and the prosecutor) were of the view that there was cross-admissibility. The trial Judge ultimately disagreed. The problem with the trial and the way it proceeded, as I have mentioned, was that whether there was an application for severance or not, where there were multiple counts involving allegations of sexual impropriety with four different complainants then that should have been discussed at the beginning of the trial. On the basis of the trial Judge’s ruling that there was no cross‑admissibility the prejudice of four complainants giving evidence was still present.
Mr Kimber also argues that, far be it from being prejudiced by having the counts joined, the defence indeed gained some advantage. He puts that, in his address and in cross‑examination, defence counsel relied upon concoction between the various complainants. I need not go into detail. Mr Kimber argues that without joinder that submission casting doubt upon the credibility of the various complainants could not be made. I reject that submission. The advantage of suggesting concoction is far outweighed by the disadvantage of the prejudice of four complainants, instead of one, giving evidence of sexual impropriety. Defence counsel was driven to the tactic of raising concoction by virtue of the fact that he considered that the evidence was cross-admissible and concoction is an antidote to joinder. If there were separate trials there would be no need to resort to questions of concoction.
Finally, Mr Kimber argues looking at the evidence led at trial afresh there should have been a ruling that the counts were cross-admissible between complainants. In other words, the trial Judge was wrong. That being so, Mr Kimber argues that the appellant has received the benefit of a ruling that they are not cross-admissible when in fact they were cross-admissible. He argues that they were cross-admissible for a number of reasons including propensity or improbability reasoning as discussed in Hoch v The Queen,[1] namely that the evidence of each complainant was cross-admissible because it went to the probability of four family members reporting that another family member did similar sexual things to each of them separately but in broadly similar circumstances. Mr Kimber puts that therefore the evidence is capable of demonstrating that it is inherently unlikely that four individuals who are members of the same family would describe conduct that had similar characteristics. Similar reasoning was adopted in R v Ellis.[2]
[1] (1988) 165 CLR 292.
[2] (2010) 199 A Crim R 249 at [50].
Whether the Judge was right or not is not a matter this Court has to decide. There may be a strong argument to suggest the charges are cross-admissible. However, if the Judge has erred in finding that they are not cross‑admissible there is still a problem with the trial process. Assuming that there was cross‑admissibility, it would then be incumbent upon the Judge to carefully explain to the jury how that evidence could be used on each count, the limitations to the use of such evidence and how that evidence cannot be used by way of mere propensity reasoning. No such directions were given because of the Judge’s ruling. I reject that argument.
On the basis of the Judge’s ruling at trial that there was no cross‑admissibility, I am of the view that the only appropriate action to cure any impermissible prejudice was to order a mistrial. In relation to this specific case, the impermissible prejudice could not be rectified by directions no matter how complete they were.
However, Mrs Shaw further argues that even if directions could cure the impermissible prejudice due to there being no severance, the Judge’s directions were inadequate to achieve that end.
Judge’s Directions
I turn to the Judge’s summing up and those parts which touch upon his ruling that there was not cross-admissibility. The trial Judge said the following early on in his directions:
I give you this additional direction: you cannot use the facts on one count in aid of proof of another count. Each count must be considered in isolation in its own compartment with the evidence directly related to it.
In relation to the charges themselves there were no other directions or warnings concerning the impermissible use pursuant to his ruling of one complainant’s evidence in relation to another. There is no propensity warning that because he may have committed offences against one complainant that would make him the type of person who is capable of committing offences against the others.
However, the matter is further complicated by the fact that in his charge the trial Judge, when giving directions on the uncharged acts, said the following:
They are proper uses of the uncharged acts and they are the only ways in which you may use the evidence. As I think I’ve touched upon already but I will make it explicit: you should not make any use of an uncharged incident unless you accept that it occurred. I must also direct you that there are certain impermissible uses of that evidence. I direct you that the fact that allegations are made about a number of uncharged occasions does not, in any sense, absolve you from the task of determining whether the charged events themselves are made out.
It would be wrong for you to say, in effect, ‘We are satisfied that somewhere along the line sexual intercourse or a sexual touching occurred and we’ll, therefore, convict the accused of the charges’. You must not think that because of the multiplicity of the charges and the uncharged acts, that he must be guilty of something and proceed, upon that basis, to find him guilty where proof is otherwise lacking.
It would be wrong for you to conclude from the other alleged conduct of the accused that he is the sort of person who would be likely to commit the offences for which he is charged. Remember, it is the evidence presented in proof of the charges themselves which is the critical evidence in this trial. Evidence of other uncharged incidents is given only to assist you in your evaluation of the evidence going directly to the charges. As I have said to you a couple of times, ultimately, it is upon the charges themselves upon which you must bring your verdicts.
This direction only seems to relate to the interrelation between the charged acts and the uncharged acts. There is no specific clear direction that the evidence of a charged act is not to be used in relation to another charged act alleged by a separate complainant and there is no direction that because one complainant gives evidence of sexual impropriety that cannot bolster the evidence of another complainant pursuant to his ruling.
Other arguments
There are other grounds of appeal with which I need not deal. In my view, for the above reasons the trial has miscarried.
Conclusion
It is most unfortunate that in the area of sexual offending and joinder of counts questions of cross-admissibility and severance and the use of evidence were not discussed before the prosecutor opened. If that was done, the problems in this trial would have been avoided. It is inappropriate for me in this judgment to make a finding as to whether, on the material presented at trial, the evidence of each complainant was cross-admissible. That should be appropriately argued before the trial Judge at a new trial at the appropriate time on the material placed before that Judge. I can only assume that during that argument, the potential basis of the cross-admissibility will be carefully discussed before the trial commences. That was not done in the present trial.
I would allow the appeal, quash the convictions and order a retrial.
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