R v Maiolo (No 2)

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.