(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
16 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
Appeal against conviction - appellant charged with five counts of indecent assault and four counts of unlawful sexual intercourse against four female complainants - three of the complainants are sisters - the fourth complainant is the daughter of the appellant and another sister who is not a complainant - the trial proceeded as a re-trial following the quashing of the appellant's convictions of charges in respect of the same complainants and incidents - all nine counts proceeded to trial after an application for severance was refused - the jury returned guilty verdicts on each count.
Whether the evidence established an initial complaint by the sister RX - whether the evidence of complaint by RX was admissible in relation to the other complainants.
Held (Peek J; Kourakis CJ and Stanley J concurring): the evidence of RX as to her conversations with the police and the counsellor did not establish an initial complaint within the meaning of s 34M(6), Evidence Act 1929 - the content was very nebulous and it was not clear whether the subject being addressed was sexual offending against RX or another person(s) - it was also unclear whether, if there was a complaint of conduct towards RX, it related to that complaint - accordingly, the trial Judge erred in directing the jury as to the use of the "complaint evidence" of RX in assessing and bolstering both RX's evidence and that of the other complainants.
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
Whether the evidence of uncharged acts was admitted as "relationship evidence" - whether the trial Judge correctly directed the jury on the permissible and impermissible purposes of that evidence.
Held (Peek J; Kourakis CJ and Stanley J concurring): the Judge was required to direct the jury in accordance with s 34R, Evidence Act 1929 - the Judge's directions were predicated on the basis of the uncharged acts having been admitted as "relationship evidence" and not as propensity evidence - those directions were deficient in their use of the words "context" and "relationship" without specific elaboration and guidance as to their meaning - in their unexplained form, they had a positive tendency to point the jury towards an impermissible use of the evidence of uncharged acts - the trial Judge gave no direction as to the impermissible purpose of the evidence…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Maiolo (No 2) [2013] SASCFC 36
Case
[2013] SASCFC 36
Decision Date
CaseChat Overview and Summary
The appeal concerned convictions for five counts of indecent assault and four counts of unlawful sexual intercourse against four female complainants. The trial proceeded as a re-trial following the quashing of previous convictions for the same alleged offences. The appellant sought severance of the counts, which was refused, and the jury ultimately returned guilty verdicts on all nine counts. The appeal was heard by Kourakis CJ, Peek and Stanley JJ.
The primary legal issues before the court were whether the trial judge erred in admitting and directing the jury on the use of "complaint evidence" and evidence of uncharged acts. Specifically, the court considered whether the evidence of one complainant, RX, constituted an "initial complaint" under section 34M(6) of the *Evidence Act 1929* (SA), and whether the directions given regarding the use of uncharged acts as "relationship evidence" were sufficient and did not impermissibly suggest propensity.
The Full Court held that the evidence of RX did not establish an initial complaint within the meaning of section 34M(6) of the *Evidence Act 1929* because the content of her conversations with police and a counsellor was too nebulous to ascertain if it related to sexual offending against herself or another person, and if it did, whether it related to the specific complaint. Consequently, the trial judge erred in directing the jury that RX's complaint evidence could be used to assess and bolster her own evidence and that of the other complainants. Furthermore, the court found that the trial judge's directions on the use of uncharged acts, framed as "relationship evidence" rather than propensity evidence, were deficient. The use of the terms "context" and "relationship" without specific elaboration and guidance allowed for an impermissible use of this evidence, and the judge failed to provide a clear direction on its impermissible purpose.
As a result of these misdirections, the Full Court concluded that the appellant was deprived of a trial according to law, and all convictions were set aside. The court was unable to be satisfied that the jury had not been led into a false line of reasoning, meaning the appellant may have lost a reasonable opportunity of acquittal.
Orders
Orders of the court
Held (Peek J; Kourakis CJ and Stanley J concurring): the evidence of RX as to her conversations with the police and the counsellor did not establish an initial complaint within the meaning of s 34M(6), Evidence Act 1929 - the content was very nebulous and it was not clear whether the subject being addressed was sexual offending against RX or another person(s) - it was also unclear whether, if there was a complaint of conduct towards RX, it related to that complaint - accordingly, the trial Judge erred in directing the jury as to the use of the "complaint evidence" of RX in assessing and bolstering both RX's evidence and that of the other complainants.
Held (Peek J; Kourakis CJ and Stanley J concurring): the Judge was required to direct the jury in accordance with s 34R, Evidence Act 1929 - the Judge's directions were predicated on the basis of the uncharged acts having been admitted as "relationship evidence" and not as propensity evidence - those directions were deficient in their use of the words "context" and "relationship" without specific elaboration and guidance as to their meaning - in their unexplained form, they had a positive tendency to point the jury towards an impermissible use of the evidence of uncharged acts - the trial Judge gave no direction as to the impermissible purpose of the evidence of uncharged acts - it was not enough for the trial Judge to give a direction about the impermissible use of cross-admissible evidence - a clear direction on the impermissible purpose of the evidence was required - accordingly, the appellant was deprived of a trial according to law - R v Grech [1997] 2 VR 609, R v Nieterink (1999) 76 SASR 56 and R v Dolan (1992) 58 SASR 501 referred to.
Background
Background to the litigation
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Evidence
Evidence Before The Court
In fact, the cross-examination of RX makes it clear that what RX referred to above as “a phone call from the police in 2008” was in fact a series of calls being repeatedly made by Police Officer Triggs seeking information from RX as to allegations being made against the appellant by MX. Portions of that cross-examination appear as follows:[5] [5] T220-225.QYou said during your evidence that over the years you’ve had contact with your sister [MX] perhaps more than anybody else from your family?AOnly because when the police rung me, they had said to me that [MX] had been to the police, made the allegations and, I mean, I rung her before this kind of got started, so I suppose I talk to her a bit more. I just find her easier - well, the easiest one to talk to.QWhat did you mean when you said a moment ago that you rang [MX] kind of before it got started?ALike before I made a statement, because the police had rung me wanting information and I didn’t know what I wanted to do, whether I should have made a statement.QBecause the police were ringing you up an awful lot back in 2008, weren’t they?AYep.QYou didn’t really want to talk to them, did you?AIt was just difficult.QSo you had a chat with your sister [MX], did you?AYeah, I can’t remember what time that was, but yeah, just because - like I said, I knew - well, I suspected things with her and things that I knew about her and, you know, it’s funny, I just never ever thought she would say anything, but, yeah.QIs it the case that you had a telephone conversation with [MX] prior to speaking to police and giving a statement with respect to the matter now before the court?AI didn’t speak to her about the matter so much, it was just more about - like I was saying I couldn’t decide to make a statement, because they’d rung me, and I told her they rung me and wanted information from me.…QHow many times did the police call you before you spoke to your sister [MX]?AI don’t know. Many times.QI’m sorry?AThey called me quite a few times.QWhat’s ‘quite a few’, half a dozen, a dozen?AI don’t know, I didn’t count. I don’t know.QThey were being quite persistent, weren’t they?AYeah.QYou wanted to be left alone, perhaps?AWell, I mean, I didn’t particularly want to think about it.QWere the police harassing you into giving a statement?AI don’t know if you’d put it that way.QWell, how would you put it?AThey were just calling me lots of times and asking if I had any information.…QHad you discussed what you say you’d observed in relation to [MX] with [MX] prior to the police ever contacting you?AI did say that I knew things, that was it. I didn’t discuss the details.Did the evidence establish an initial complainant within the meaning of s 34M(6)? Counsel for the respondent correctly conceded in his outline of argument that: “No evidence was lead as to the content of what was said to the counsellor or the police”. Upon analysis of the whole of the evidence, the position as to any “initial complaint”[6] by RX appears to be as follows.[6] Evidence Act 1929 s 34M(3).
Decision
Reasons for decision
KOURAKIS CJ
PEEK J
STANLEY J
Section 34M, Evidence Act 1929 abolished the common law relating to complaint in sexual cases.[12] That being so, the evidence the subject of the Judge’s directions can only be justified as other than hearsay if those directions were validly given pursuant to s 34M(4). However, such directions as to any complaint by RX could only be given if evidence of an “initial complaint” by RX as to an offence against herself on the information was established. For the reasons stated above, this was not established and her Honour was therefore not in a position to direct the jury that they could use the evidence of RX in the same way as they could use the evidence of initial complaint given by the three other complainants.[12] Evidence Act 1929 s 34M(1).Conclusion as to ground of appeal 1 The jury was misdirected in at least two very important ways. First, as to the use of complaint evidence in assessing (and bolstering) the evidence of RX herself. Second, in assessing (and bolstering) the evidence of the other complainants since her Honour directed that the evidence of RX was admissible in relation to their consideration of the evidence of the other complainants.[13] In these circumstances, all convictions must clearly be set aside.[14][13] This path of reasoning was left to the jury and the verdict must be set aside since it is not possible to say that the jury did not travel by that route. Thus, in Prasad v The Queen (1994) 68 ALJR 194, 195 the High Court stated: “Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v The Queen (1955) 93 CLR 493”. See also: Domican v The Queen (1992) 173 CLR 555, 560, 565-566 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), 570-571 (Brennan J); R vSantos and Carrion (1987) 45 SASR 556, 567 (King CJ); Zoneff v The Queen (2000) 200 CLR 234, 246 [26] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), 267 [85] (Kirby J); R v Clune(No 2) [1996] 1 VR 1, 5 (Callaway JA); R v Lawford (1993) 61 SASR 542, 550–551 (Duggan J).[14] The same consequence followed in relation to another conviction to which the error did not directly relate, in R v S, DD (2010) 109 SASR 46. See Peek J, ([131]-[137]) with whom Duggan J ([10]-[11]) and Anderson J ([40]) agreed on this aspect. PART 3: ADMISSION OF DISCREDITABLE CONDUCT EVIDENCE (GROUNDS OF APPEAL 2 AND 3) In order to examine the appellant’s second and third grounds of appeal I will have to consider in a little detail the admissibility of evidence of “discreditable conduct”. I use the term “discreditable conduct” for two reasons. First, it is a relatively neutral term, the use of which limits the need to enter into a somewhat barren debate as to the respective meanings of the terms “similar fact evidence” and “propensity evidence” and their inter-relationship. Second, it is the term used in the Evidence (Discreditable Conduct) Amendment Act 2011, which enacted the new ss 34O to 34T of the Evidence Act 1929 (the new provisions), which will be examined below[15] after briefly examining their historical context.From Makin to Pfennig at a gallop[15] With the exception of s 34T, which deals with joinder of defendants, a situation not presented by the present case.