R v Maiolo (No 3)

Case [2014] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MAIOLO (NO 3)

[2014] SASCFC 89

Judgment of The Court of Criminal Appeal

(The Honourable Justice David, The Honourable Justice Peek and The Honourable Justice Stanley)

7 August 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - SEXUAL INTERCOURSE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE

Appeal against conviction for sexual offending.

In 1986 the appellant commenced a relationship with TX. Their daughter SZ was born in 1987.  That relationship ended in 1993, whereupon the appellant started living in a relationship with RX, TX’s sister, until 1996.  Between 1993 and 1996, SZ was living with TX but stayed with the appellant and RX every second weekend.  In 1996 SZ complained to TX that the appellant had sexually abused her during these visits and on 20 November 1996 SZ participated in a video recorded interview with police.  The appellant was later interviewed by police and denied the allegations.  He was charged in 1996 but the prosecution was initially discontinued.  It was later reinstituted and the appellant was convicted at his trial and at two successive retrials following successful appeals.  This appeal concerns the second retrial. 

SZ’s complaint to TX and the video recorded interview between SZ and police (with some portions deleted by agreement between counsel) were led in reliance upon s 34M of the Evidence Act 1929 without objection. SZ also gave evidence that prior to making a complaint to TX, she had had a conversation about the appellant’s sexual offending against her with a school friend, Lindsay, (the Lindsay conversation); SZ could not recall any of its content.

The grounds of appeal were that: (1) the complaint by SZ to TX was not admissible as an “initial complaint” because SZ had previously complained in the Lindsay conversation, and (2) absent any evidence of the content of the Lindsay conversation, it was impossible to find that the complaint made by SZ to TX was an “elaboration of an initial complaint”.

Held per David J (dismissing the appeal):

1. (Agreeing with Peek J) The evidence of the conversation between SZ and TX was correctly received as “the initial complaint”. It is unnecessary to answer the question as to whether that conversation, if it was not “the initial complaint”, amounted to an “elaboration of the initial complaint” within s 34M(6) of the Evidence Act 1929.

2.      (Agreeing with Peek J) There was no miscarriage of justice by reason of the admission of the evidence of the video recording of the police interview with SZ on 20 November 1996.

3.      It is unnecessary to consider the further matters referred to by Peek J.

Held per Peek J (dismissing the appeal):

1.      The contention that the Lindsay conversation was the…

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R v Maiolo (No 3) [2014] SASCFC 89
Case
[2014] SASCFC 89
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant, R v Maiolo, against his conviction for sexual offences. The central dispute revolved around the admissibility of evidence of complaints made by the alleged victim, SZ, to third parties. The appeal was heard by David, Peek, and Stanley JJ of the Supreme Court of South Australia.

The legal issues before the court were primarily concerned with the interpretation and application of section 34M of the *Evidence Act 1929* (SA), which governs the admissibility of complaint evidence in sexual offence cases. Specifically, the court had to determine whether a conversation SZ had with "Lindsay" constituted the "initial complaint" for the purposes of the section, and consequently, whether her subsequent complaint to her mother, TX, could be admitted as "information provided by way of elaboration of the initial complaint." The court also considered whether the admission of a video-recorded interview of SZ by police caused a miscarriage of justice.

The court reasoned that the rule against the reception of previous consistent statements, including complaint evidence, inherently creates an imbalance against the defendant due to its potentially prejudicial effect. While section 34M removed the recency requirement for complaints, it did not abrogate the rules against hearsay or self-bolstering of evidence, and a complaint is not admitted as evidence of the truth of its allegations. The court emphasised that section 34M(3) makes admissible a single "complaint," not a collection of disparate complaints. Applying this principle, the court concluded that the conversation with Lindsay did not qualify as an initial complaint because SZ remembered virtually nothing of it, and it was too disconnected from the later conversation with her mother to be reasonably viewed as one complaint. Therefore, the complaint to TX could not be considered "information provided by way of elaboration" of the Lindsay conversation.

Ultimately, the court rejected the appellant's first contention that the Lindsay conversation constituted the "initial complaint," finding that the complaint to SZ's mother, TX, was permissible as the initial complaint. While the court agreed with the appellant that the complaint to his mother was not "information provided by way of elaboration" of the Lindsay conversation, this was for different reasons than those advanced by the appellant. The court found that the admission of the video-recorded interview did not cause a miscarriage of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. Indeed, the following passage has appeared in the Australian edition of Cross On Evidence for many years, and still appears in the loose-leaf edition at the time of writing:[37]… In its conditions of contemporaneity and spontaneity it is reminiscent of, but does not fit within, the res gestae exception to the hearsay rule. It constitutes an exception to the general rule that a witness’s credit should not be bolstered by the party calling the witness, at least in advance of any attack. It is potentially prejudicial in putting before the jury a sometimes lurid account of the facts which the judge must then solemnly instruct the jury to be no evidence of them. It is illogical in supporting the witness’s testimony without itself being evidence of the facts it asserts. It is anomalous in applying only to a small and bizarre assortment of offences in some of which sexual relationship is disputed, in other of which violence is disputed is disputed, in some of which absence of consent is a necessary ingredient, and to some of which it is irrelevant. It creates resentment in applying to admit previous consistent statements made by one party to the proceedings when no such concession is made to the other.[38][37] At paragraph 17285.[38] I can say that this passage featured in the text as early as 1996 because in that year in Jones v The Queen, (Unreported Tasmanian Court of Criminal Appeal A46 of 1996 Underwood, Wright and Slicer JJ). At [31] Underwood J reproduced and endorsed the above passage, then in Cross on Evidence (5th Aust ed) at p 440. Of course, it is clear that in enacting s 34M and removing the recency requirement, Parliament intended that the imbalance caused by reception of complaint evidence will continue. But that intention in no way determines the extent to which “information provided by way of elaboration of the initial complaint” should be received, for it is also clear that s 34M does not evince an intention to otherwise abrogate the rules against hearsay or self bolstering of evidence. Indeed, the statement in s 34M(4)(b) is emphatic: a complaint is not admitted as evidence of the truth of what was alleged. The fact is that multiple statements of an alleged victim making complaint after complaint in relation to the defendant’s conduct is almost certain to have the effect of blurring the distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant. There is no reason to believe that there is a legislative intention to subject a defendant to an unfairly prejudicial effect of such multiple complaints. It has therefore been recognised by this Court that what s 34M(3) makes admissible is a single “complaint” made by the alleged victim as distinct from a collection of disparate complaints made over an undefined period of time. This important matter concerning the correct approach to the legislation was identified and emphasised by Stanley J (with whom Kourakis CJ and Nicholson J agreed) in R v England.[39] Thus his Honour stated:[40]Pursuant to s 34M, there is only a single complaint that is admissible. That is evidence of the initial complaint of an alleged sexual offence. While that initial complaint may include information provided by way of elaboration of the initial complaint, whether provided at the time the initial complaint is first made or at a later time, the direction required to be given pursuant to s 34M(4) is in relation to the initial complaint. In this case, the initial complaint consists of the conversation with K and the conversation with the mother. A single direction pursuant to s 34M(4) was given. That was all that was required. In fact, to have given separate directions in relation to the two conversations would run the risk of prejudice to an accused in that it could lead the jury impermissibly to consider that evidence of separate complaints could bolster the credibility and reliability of the complainant. Accordingly, only one direction is given because the direction is given in relation to an initial complaint which is treated as a single complaint.(Emphasis added)Conclusions as to the admissibility of “information provided by way of elaboration of the initial complaint”[39] (2013) 116 SASR 589.[40] (2013) 116 SASR 589, 598 [44].

Evidence

Evidence Before The Court

SZ gave the following evidence concerning her complaint to her mother in November 1996:Q Did you tell someone after Lindsay?A Then I told my mum.Q When was it that you told your mum?A I told her when I was about nine and we were at the Modbury house.… Q What year was it that you told your mum?A I believe it was ‘96.Q At what stage in ’96?A I think it was later on in the year.Q How did it come about that you told your mum?AHe’d come over to pick me up just as normal and so something just kind of clicked in me and like I’d always not wanted to be there, this time I really don’t want to be there and don’t want to go through this again and I can say I got the balls up to tell me mum what had been happening.…My mum knew something was wrong so she pulled me aside into my bedroom and sat down on the bed next to me and said ‘What’s wrong, why don’t you want to go?’. I basically said he’d sexually assaulted me.Q Were they your exact words that you used with your mum?A I can’t remember exactly, but, yeah, something along those lines.TX’s evidence as to receiving the complaint from her daughter, SZ TX, the mother of SZ, gave evidence of the arrangements in place in 1996 for the appellant to pick up SZ from her home on Fridays and for SZ to stay with the appellant and TX’s sister, RX, over the weekend. TX gave evidence that on a Friday in November 1996 when the appellant arrived to pick up SZ, SZ refused to go with him; that SZ and TX then spoke alone; and that SZ complained to TX that the appellant had been sexually interfering with her. TX gave the following evidence of that conversation:AI said to her why - asked her why she didn’t want to go, why suddenly she didn’t want to go.Q What was [SZ’s] response?AShe said to me when she goes to dad’s for the weekend he would climb into bed with her and that he has been putting his penis in and near her vagina.Q Where was Mr Maiolo when [SZ] said that to you?AI think he was still out front, I think he left but the doorbell was ringing, I don’t know.QWhat was [SZ’s] behaviour like when she said that to you about what her dad had been doing?A She was just sitting on her bed, hugging her knees.Q What was her demeanour or mood like?A She - she was crying and her head was down.Q When you say ‘her head was down’, what do you mean?A She had her knees - wrapped her knees and her head was down.QBefore [SZ] said to you about her dad climbing into bed with her had she said anything else about what had happened?A I think she said - first she said her dad had been sexually harassing her.QWhen she said that about her dad had been sexually harassing her, did you say anything in response to [SZ]?AYes, I said wanted - yeah, wanted to know what she meant by that. So I asked what she meant, what he had been doing.Q When you were asked her what he had been doing what did she say?A That’s when she said about climbing into bed with her. TX went on to give evidence of taking SZ to the Womens and Children’s Hospital for an examination on that same day, and for a longer examination five or six days after that.[4] She later took SZ to the police on 20 November 1996 when a video recorded interview was conducted.[4] The examination results were neutral and did not advance the prosecution or defence position.The video recorded interview of SZ by a police officer on 20 November 1996

Decision

Reasons for decision

DAVID J (dissent) PEEK J
If in a case such as Edson, the prosecutor were to insist on maintaining the tender of “further information provided by way of elaboration of the initial complaint” in the face of a well founded view by the Judge that the probative value of the evidence was low and was greatly outweighed by its unfair prejudicial effect (namely the real risk that the evidence will be misused by the jury), then the evidence might be excluded from the trial by an appropriate exercise of the Christie discretion, even if doubt remained as to whether the evidence was in fact technically “admissible”.[50] [50] In this regard the process has parallels with discretionary exclusion of a police interview of a defendant without coming to a final view as to whether the statements in the interview had been proven to be admissible as a “voluntary” statements. For example, in R v Hallam and Karger (1985) SASR 126 King CJ (with whom Mohr and O’Loughlin JJ concurred) adopted that course and stated (at 135-6): “Although I have preferred to approach the matter on the basis of the alleged confessions being admissible as voluntary and to deal with the exclusion of the confessional evidence as a matter of discretion, I am by no means convinced that the prosecution proved the alleged confessions to have been made voluntarily. … However, as the evidence, in my opinion, ought to have been excluded even if admissible in the exercise of the discretion, it is unnecessary to decide the question of admissibility.”Conclusion as to the correctness of the appellant’s second contention As to the correctness of the appellant’s second contention, I consider that the appellant is correct, but for very much the wrong reasons. I have found that the appellant’s approach to the matter of admissibility of “information provided by way of elaboration of the initial complaint” is seriously flawed. However, if one applies the correct test of admissibility of such evidence to the present situation of SZ remembering virtually nothing of the Lindsay conversation, then it is clear that the later complaint by SZ to her mother TX cannot be regarded as “information provided by way of elaboration of the initial complaint”. This is so for two reasons. First, the Lindsay conversation simply does not qualify as an initial complaint for the detailed reasons given above. Second, the Lindsay conversation and the later conversation between SZ and her mother (when SZ complained to her) are separate, disparate conversations; they are simply not sufficiently connected together so as to be reasonably viewed as one complaint.[51] [51] R v England (2013) 116 SASR 589. However, as already stated, the correctness of the appellant’s second contention would be relevant only if my view that his first contention fails were not to be accepted. If my view that his first contention fails is accepted, the fact that he happens to be correct in relation to the second contention avails him nought; his ground of appeal is not made out. Was there nevertheless a miscarriage of justice?

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Accordingly, I reject the appellant’s first contention that the Lindsay conversation constituted the “initial complaint” and I accept the prosecution contention that it was permissible to receive SZ’s complaint to her mother TX as the “initial complaint”.THE ADMISSIBILITY OF “INFORMATION PROVIDED BY WAY OF ELABORATION OF THE INITIAL COMPLAINT” If my above conclusion is accepted, the ground of appeal cannot be made out. However, since it might not be accepted, I will consider the appellant’s further contention that if the Lindsay conversation was the “initial complaint”, then SZ’s later complaint to her mother could not be considered to be “information provided by way of elaboration of the initial complaint” as referred to in s 34M(6). Associated with this matter is a further aspect of the case which has caused members of the Court some concern, namely the reception pursuant to s 34M of the video recorded interview of SZ by a police officer held on 20 November 1996, and I will consider whether the admission of that evidence caused a miscarriage of justice.Introduction and overview There is an important question common to both of the above two matters: what is the correct approach to admissibility of “information provided by way of elaboration of the initial complaint”?[12][12] Evidence Act 1929, s 34M(6). The appellant submits that admissibility of “information provided by way of elaboration of the initial complaint” depends simply upon whether or not the prosecution can establish that the information provided on a later occasion is “more elaborate” than the information provided on a former occasion. He then submits that the prosecution cannot establish that the information provided by SZ to her mother was “more elaborate” than that previously provided to Lindsay because the appellant submits that all of the information conveyed to TX might have been earlier imparted in the Lindsay conversation. I foreshadow the following conclusions. First, the test for admissibility suggested by the appellant is both simplistic and problematic. It is simplistic, because it takes too narrow an approach to the wording of one part of s 34M without adequate consideration of the other parts of the legislation or the common law background. It is problematic, because the adoption of the appellant’s approach would cause considerable difficulties in the construction of other related aspects of the legislation and the administration of the law in this area generally. Second, however, an application of a correctly formulated test of admissibility to the postulated facts does produce the result that the complaint by SZ to her mother TX could not be treated as “information provided by way of elaboration” of an initial complaint to Lindsay. Third, the video recorded interview of SZ by a police officer held on 20 November 1996 should not have been admitted under s 34M but its reception into evidence did not cause a miscarriage of justice.