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 46Court 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…
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CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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