R v Maiolo (No 4) - [2015] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAIOLO (No 4)
[2015] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
16 April 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - OTHER MATTERS
The applicant was convicted of 6 counts of sexual offences against minors. Each of the complainants was under the age of 18 at the time of the offences. The applicant was convicted in a trial by judge alone. The application applied for permission to appeal the conviction to this Court.
Held (Per Kourakis CJ, Gray and Stanley JJ agreeing):
1.       The Trial Judge’s finding that the complainants were not upset with the applicant following the failure of the 1997 prosecution was supported by evidence. The ultimate finding of the Trial Judge, that the complainants were not motivated to concoct evidence, was sound. There is no prospect of success on appeal of this ground.
2.       The applicant has not advanced a reason to the court to justify interfering with the Trial Judge’s finding that KRM was a credible witness.
3.       The applicant has not advanced a reason to the court to justify interfering with the Trial Judge’s assessment of the differences in the testimonial evidence of DW and TS.
4.       Application for permission to appeal refused and Notice of Appeal dismissed.
R v Maiolo (No 1) [2011] SASCFC 86; R v Maiolo (No 2) 117 SASR 1; R v M, RJ [2014] SADC 90, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"unlawful sexual intercourse", "indecent assault", "inconsistent testimony"

R v MAIOLO (No 4)
[2015] SASCFC 46
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: This is an application for permission to appeal against conviction.
The applicant was convicted following a trial by Judge alone of:
·One account of unlawful sexual intercourse with the complainant KRM (Count 1);
·Two counts of indecent assault against the complainant KRM (Counts 2 and 3);
·One count of persistent sexual exploitation of the complainant MLW (Count 4); and
·Two counts of indecent assault against the complainant DAW (Counts 5 and 6).
The complainants were the younger sisters of TE who was in a domestic relationship with the application from when she was 15 years of age. In October 1987 a daughter, S, was born to TE and the applicant. The complainants visited TE and the applicant from time to time until they separated.
The applicant does not complain about the joinder of the counts nor does he contend that the evidence was not cross-admissible. These questions were considered by this Court in R v Maiolo (No 1)[1] and R v Maiolo (No 2).[2]On each of these appeals the convictions…

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.

Continue reading R v Maiolo (No 4)

Details

AGLC: R v Maiolo (No 4) [2015] SASCFC 46
Case: [2015] SASCFC 46
Decision Date: 16 April 2015

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against a conviction. The applicant, R v Maiolo, was convicted of certain offences. The central dispute revolved around the applicant's contention that the trial judge made an erroneous finding of fact regarding the family's reaction to the discontinuance of earlier charges in 1997. The applicant argued this finding was inconsistent with the testimony of witnesses TE and KRM. The application was heard by Kourakis CJ, Gray and Stanley JJ.

The legal issues before the court were whether the trial judge erred in finding that the family was not upset by the DPP's decision to discontinue charges in 1997, and whether this alleged error constituted a ground for appeal. The applicant specifically pointed to an underlined sentence in the trial judge's reasons as an erroneous finding of fact, asserting it was contradicted by the evidence of TE and KRM concerning their reaction to the discontinuance of the prosecution.

The court considered the evidence presented, including the testimony of TE, who stated that she was "quite angry" and "displeased" with the DPP's decision to withdraw charges against the applicant in 1997. The applicant argued this directly contradicted the trial judge's finding that there was no evidence the family was upset. However, the trial judge had the advantage of hearing the witnesses directly and assessing their credibility. The appellate court found no reason to interfere with the trial judge's findings of fact, given this advantage.

The application for permission to appeal was refused, and the Notice of Appeal was dismissed by all members of the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In 1996 S made allegations of sexual abuse against the applicant. The applicant was charged but the prosecution was discontinued in 1997. Notwithstanding the charges KRM later formed a relationship, and cohabitated, with the applicant. The Judge discussed the family’s reaction to the discontinuance of the prosecution in the following paragraph:[3]The second matter raised by the defence counsel was that there were a number of important issues on the defence case but most important was the chronology and the history of the allegations. It was the fact that S made allegations against the accused in 1996 and they were pursued in a Court case in 1997. However, the prosecution of the accused was terminated by the Director of Public Prosecutions (DPP) in 1997. It was asserted that the family was very upset about what had transpired back in the 1990’s. It is very difficult to know what to make of this assertion because it mixes two relevant strands of fact which are not necessarily interchangeable. The first is that many of the complainants in this case did not raise any issues against the accused when the decision was made by the DPP in 1997. The complainants did not think to do so or were not prepared to do so for reasons that they wanted to try to live some form of normal life. There is no evidence that the family was upset about what had transpired in the 1990’s. There is evidence that no one out of the complainants said anything at all at that time or shortly thereafter. The criticism made is that it was striking, in this case, that the W family generally spoke and saw each other on a regular basis but no one said anything at all until the allegations were made in 2008. In my opinion, this overlooks the reality of the situation that the complainants were then trying to get on with their lives as grown adult women. Their evidence was that they were trying to establish lives for themselves and, for some, their families and did not want to be forced to recall events that caused them such unhappiness. The evidence of the complainants disclose that they were all hesitant initially to make complaints and then to make statements to the police. They saw themselves as being in a different position in 2008 than they were in the 1990s. That is not surprising and it would require me to ignore what I perceive to be plain common sense for the accused to make good this contention. I am unable to accept this contention put by the accused.[underlining added][3] R v M, RJ [2014] SADC 90 at [256]. It is the underlined sentence which the applicant submits is an erroneous finding of fact by reason of its inconsistency with the testimony of TE and KRM. TE gave the following testimony on the topic:QWhen your daughter [S] made allegations against my client, that was in [November] 1996?AYep.QThose allegations must have been very devastating, to say the least?AYes.QYou quickly took your daughter to see a doctor?AYes.QAnd then to the police back in 1996?AYes.QAt that time did you make your mother aware of the allegations that [S] was making?ANot straightaway but late - yeah. Q Over a few months?AYes.QDid you tell your brother [J] about the allegations that your daughter was making? AYes.…QMr Maiolo was charged with alleged offences with respect to [S]’s allegations, was he not?AYes.QIn 1997 the Director of Public Prosecutions made a decision to withdraw the charges against Mr Maiolo, didn't they?AYes.QI imagine that you would have been rather displeased with that decision; correct?AYes.QQuite angry about it?AYes.

Decision

Reasons for decision

Again the Judge had the advantage of hearing the testimony of both witnesses. The applicant has advanced no reason why this Court should interfere with the finding having regard to his advantage. I would refuse permission to appeal on Ground 4.Conclusion The application for permission to appeal should be refused and the Notice of Appeal dismissed. GRAY J: I would refuse permission to appeal. The Notice of Appeal should be dismissed. I do not wish to add to the reasons of Kourakis CJ. STANLEY J: I would refuse permission to appeal. I agree that the notice of appeal should be dismissed. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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