R v Maiolo (No 4)
[2015] SASCFC 46
•16 April 2015
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 were set aside and retrials ordered.
[1] R v Maiolo (No 1) [2011] SASCFC 86.
[2] R v Maiolo (No 2) (2013) 117 SASR 1.
The applicant relies only on grounds 1, 3 and 4 of the Notice of Appeal.
Ground 1: The trial Judge erred in finding that the complainants were not upset with the applicant following the failure of a prosecution of the applicant in the 1990’s at judgment [256]. This erroneous finding led to the unfounded rejection of the defence argument that the complainants were motivated to concoct their evidence with one another.
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.
MLW gave the following evidence:
QDid you become aware in 1996 that your niece [S] had made allegations of a sexual nature against Mr Maiolo?
AYeah, I was aware, I heard.
Q.And how did you become aware of that?
AI was hearing adults conversation and I was eavesdropping into the conversation.
QWas that one conversation or a number of conversations?
AThe one that I heard was only one.
QWho was involved in that conversation?
AI'm not sure who it was. I can't remember. As I said, I was eavesdropping.
QAnd how old were you in 1996?
A15, 16.
QSo you knew that, in 1996, Mr Maiolo might have been in trouble given what you understood [S] to be saying about him?
AYes.
QAnd you didn't think to raise the issue of what you say had occurred to you at that time?
ANo.
QWhy not?
AAs I said before, I was confused and I was scared.
QYou became aware that the case against Mr Maiolo with respect to [S]’s allegations was stopped in 1997?
AYes.
QAnd members of your family were very upset about that, weren't they?
AI guess they would have been, yes.
HIS HONOUR
QYou say you guess, is that a guess. You don't know that?
AWell I'm presuming they would be upset.
QRight but the question was whether you were aware and as I understand your answer, you weren't aware, it's simply something you presumed. Is that correct?
AYes, that's correct.
CROSS-EXAMINATION
QHow did you become aware that the case against Mr Maiolo with respect to [S]'s allegations was stopped in 1997?
AI'm not sure of how they came to a stop.
QHow did you become aware that the case had stopped?
AI'm not sure how I came aware of how they stopped.
QDid someone tell you that?
AI must have, I think I overheard them, overheard talking. I'm not exactly sure how but I did hear.
QWere you upset about that situation?
AI was a - I guess upset but as I don't know the details of what happened or what he did or anything so I was obviously a little bit upset but I wasn't –
QDid you think of raising what you say had occurred to you with Mr Maiolo at that time?
ANo.
QWhy not?
ABecause I just didn't. I was too scared to tell anyone. I was confused on what's going on at the point of time, there was so much drama going on with the house - in the house - it was - I just didn't say anything, and as I said before, I always put other people before me.
In considering the impugned finding it must be remembered that in that paragraph the Judge was addressing the defence contention that it was possible that the complainants had conspired to fabricate the allegations against the applicant. In that context the Judge’s observation is to be understood as a finding that the discontinuance of the prosecution did not upset or distress the family as a whole. The Judge was drawing a distinction between the personal feelings of TE and MLW which, the evidence showed, they largely kept to themselves and the quite difference situation in which a family joins angrily in common cause against another. So understood the impugned finding is not erroneous.
In any event, the finding was but a step in the Judge’s reasoning that there was no possibility of concoction. That ultimate finding was the subject of the second ground of the Notice of Appeal which the applicant abandoned. On that ultimate question the Judge found:[4]
S spoke to both DW and to MW and invited them to make a statement to the police. MW then spoke to KRM before going to the police. The defence suggests that, indirectly, it must be implausible that there was no discussion at all between the complainants at that time based upon their evidence. This criticism overlooks a number of facts. First, the members of the family were estranged. KRM had been previously quite close with MW a number of years earlier. That relationship ended. S had very little relationship with KRM and only through the accused. DW had no relationship with KRM after the time that KRM moved out with the accused. In my view, it is clearly proved beyond reasonable doubt that there was no discussion between the complainants because of their personal circumstances All of the evidence points in only one direction: that S did not communicate with the other complainants about the subject matters of their complaints. In my view, any suggestion by the accused to the contrary is not sustainable.
The assertion was then made by the defence that it was clear as a bare minimum that the complainants had the opportunity and did speak with each other. I reject that submission insofar as it would suggest that there has been any collusion or concoction between those witnesses. I accept beyond reasonable doubt all of the evidence given by the complainant witnesses concerning any discussions that they had with each other. They were all reliable and credible witnesses and none of their evidence was shaken under cross examination. All of their evidence on these topics was reliable, compelling, coherent and credible. Whatever discussion occurred, it took place in the most neutral of circumstances namely that particular allegations had been made and a statement may be given to the police if that is the choice of the complainant. There is no doubt that once various complainants were spoken to, implicitly the topic was the behaviour of the accused. So much was admitted by the complainant witnesses. It would beggar belief to suggest otherwise. However, that does not in any sense rise to the level of the assertion of the defendant that there was any collusion or concoction between them.
[4] R v M, RJ [2014] SADC 90 at [257]-[258].
The Judge’s finding was amply supported by the evidence. There was no direct evidence that the complainants had deliberately conspired. Indeed, it was not specifically put to KRM or DW that they had colluded or concocted their allegations against the applicant. Accordingly the Judge was entitled to conclude:[5]
In respect of all complainants and in respect of all other family members, I am satisfied beyond reasonable doubt that there has been no concoction or collusion in respect of any of the complainants with each other or between any one or other of them, singularly or together and any other member of their broader family.
[5] R v M, RJ [2014] SADC 90 at [277].
Given the soundness of the ultimate finding the applicant has no prospect of success on this ground. For that reason too I would refuse permission.
Ground 3: The learned trial Judge erred in accepting the complainant KRM as a credible and reliable witness when the version of events she deposed to was glaringly improbable.
At trial the applicant submitted that it was improbable that KRM would enter into a relationship with, and live with the applicant, after the allegations had been made by S.
The Judge rejected that submission for the following reasons:[6]
In early 1993, when KRM was 19 or 20 years old, she commenced living with the accused. This was at the time of the end of the relationship between TE and the accused, and the accused and KRM moved into a unit at Fulham (the Murray Street premises). The evidence of KRM was that it was her intention to get the accused away from TE and her family, especially MW because she was aware that the accused may have been sexually abusing her sister MW. Her plan was that once she had lured the accused away from her family members, she would leave him but things did not go according to plan and KRM ended up staying with the accused until 1998. It is necessary at this juncture to state that KRM suffers Asperger Syndrome, a form of mild autism. I received no expert evidence on the effects of such a form of autism upon a young pubescent female person, including the effect upon the judgment of that person. The evidence of KRM and her family members discloses that KRM, at that time, had little or no social skills, was reclusive and uncommunicative, extremely private and was someone who spent a lot of time in her room although she did participate in some family activities.
…
I accept KRM’s evidence beyond reasonable doubt. In my opinion, she was an excellent witness. Her evidence was not shaken under a long cross examination. Her evidence about the allegations were consistent and coherent. She was able to give quite vivid details of the incidents that occurred and her evidence was reliable, compelling, impressive and credible. I acknowledge that in saying that, there is the peculiarity that in 1993, she did go and live with the accused and stayed with him for about 5 years until 1998. At first blush, this is peculiar conduct that on one view, may seriously affect the credibility of KRM as a witness. However, a number of things must be recalled. The first is that at that time, KRM was suffering Asperger Syndrome. She was reclusive, did not speak up, was unsocial and she plainly lacked social graces. She was a very vulnerable young woman. She had little capacity to hold a conversation, she did not speak up either for herself or in respect of any matter about which she held any particular belief. She could not communicate with anyone about the events that had occurred.
[footnote omitted]
[6] R v M, RJ [2014] SADC 90 at [65] and [184].
KRM’s testimony on the topic of her psychological state was as follows:
QDid you repeat year 10?
AYes.
QAnd did you also do your year 12 twice?
AYes.
…
QHow old were you when you did the repeat of year 10, the second year of year 10?
AI would have been nearly 16.
QHave you been diagnosed as having Asperger’s syndrome?
AYes.
QDoes that affect the way in which you communicate with people?
AYeah, sometimes just finding the words that – like I know the word in my mind, it’s just getting it out. And mainly my communication, eye contact and speaking with people, I don’t initiate conversations or – I mean, now things are a bit different but when I was younger it was something I didn’t do – something that didn’t come natural for me.
QDoes it have some impact on the way you interact with people?
AI’m better now but yes, yeah.
QHow does having Asperger’s syndrome effect the way you interact with people?
AMy communication. Yeah, I don’t – well, didn’t tend to speak up and speak out, you know, I was just quiet, shy, didn’t – yeah, I mean, now that I’m older I’ve just kind of learnt to do those things a bit more, so yeah.
QWhen you’re describing not speaking up and being quiet and shy, what time of your life are you referring to?
AWhen I was a child, teenager and a young adult.
The applicant complains that the Judge’s finding that KRM has Asperger’s Syndrome was unsupported by the evidence because no expert witness was called to support that diagnosis. That complaint must fail. No objection was taken to the questioning of the applicant about her self-diagnosis of Asperger’s Syndrome. In the absence of any objection, or indeed challenge by way of cross-examination, to KRM’s evidence about the nature of her condition there was no need for the prosecution to call expert evidence on the topic. The finding is supported by KRM’s uncontradicted testimony.
More fundamentally has KRM’s self-diagnosis served as a convenient label for the collection of behaviours which she described. The Judge’s assessment of KRM’s testimony, and her reasons for residing with the applicant in particular, was made against the evidence of her behaviours and not the label she gave them.
The applicant has advanced no reason why this Court should interfere with the finding of the Judge having regard to his advantage in assessing the testimony of KRM. I would not grant permission to appeal on this ground.
Ground 4: The learned trial Judge erred in the manner in which he dealt with the evidence between [275] and [276] of his Honour’s reasons and also at [234] and [235]:[7]
[7] [234]-[235], [[275]-[276].
This ground arises out of the difference between the complainant DW’s account of her complaint to a school friend, TS, about the applicant’s sexual offending against her and that evidence given by TS on the same topic. The Judge dealt with the issue in the following passages:
On the question of recent complaint, TS, DW’s best friend in primary school gave evidence. TS recalls that DW told her when she was 12 years of age that she was kissed by S’s dad. They were playing in the shed at DW’s house and then they went to the school oval. She thinks they were maybe 10, 11 or 12 years of age at the time. The conversation went something to the effect that DW told her that she had a secret and that KRM was in a relationship with S’s mother’s ex-boyfriend. She cannot recall the whole conversation and she has not spoken to DW about it at any stage. TS recalled that DW said that she had been kissed by the accused.
It is apparent that the recollections of what TS said to DW and what DW recalled she said to TS when they were about 10, 11 or 12 years of age are different. DW’s clear memory was that she told TS that the accused had touched her when she was younger. TS recalled that DW said that she had been kissed by the accused. In my opinion, there was no reason to doubt the version of events given by TS nor, for that matter, to doubt the version of events given by DW. They are different. The complaint was made by a 10, 11 or 12 year old girl about events that happened to her some 5 or 6 years earlier. In my opinion, the difference between TS and DW in evidence concerning the complaint is not a reason to cast doubt upon the evidence of either person nor in particular, to cast doubt upon the accuracy of the evidence given by DW. In relation to the evidence of DW, I accept her evidence beyond reasonable doubt. Her evidence was never shaken under cross examination and her evidence about the allegations was consistent and coherent. I was quite satisfied that she was able to give clear and concise details about all of the incidents about which she gave evidence. I found that her evidence was compelling, it had the ring of truth about it. In my view, DW was clearly relating an event that had occurred. I found her to be a reliable, compelling, impressive and credible witness.
…
Criticisms were made of DW only on the basis that when she gave evidence, she was referring to matters that occurred when she was 5 years of age and therefore there arises some question of the reliability of her evidence as a witness, given the passage of time. I am unable to accept that submission. In my opinion, DW gave evidence in a calm, mature and clear fashion. Her evidence was reliable, compelling and credible. It was consistent and it was coherent. She was able to give very clear evidence of the details of the relevant incidents. I reject any suggestion that her knowledge of the matters, or her evidence, is somehow coloured by the general family situation with respect to S’s allegation in 1996 and 1997. I accept that there is a difference of evidence which may perhaps be described as an inconsistency between the evidence given by TS and the evidence given by DW. TS said that DW told her that she had been kissed by the accused. DW gave evidence that she told TS that she had been touched by the accused. I accept that there is no evidence from DW that on any occasion did the accused attempt to kiss her. It is sufficient to state here that I accept as proved beyond reasonable doubt that a complaint was made by DW to TS (when they were 10, 11 or 12 years of age) that the accused had touched her in an inappropriate way when she was a young child. This was a little time after DW had attended a school class in which the children were informed about inappropriate touching. That difference in no way affects the credibility of the evidence given by DW, which I accept as reliable and truthful. I accept her evidence beyond reasonable doubt for the reasons I have already set out.
A criticism was also made that DW spoke of these instances with S and it was suggested that there was a real probability that there was a great deal of talk occurring between S, MW and DW at the very least. There is no evidence to support that assertion and in my opinion it is merely conjecture. In my opinion Mr Kane for the accused could put the matter no higher than that collusion is something that may have occurred (my emphasis). The suggestion of collusion in my opinion rises no higher than mere conjecture and is certainly does not achieve the status of any reasonable possibility. I reject it.
[footnotes omitted]
The difference between the accounts of DW and the witness TS are not as significant as the applicant suggests. It must be remembered that they were both pre-adolescent children. There was scope for misunderstanding between them. It cannot be known precisely what words DW used to explain the applicant’s offending nor how TS would have understood those words. Their language was still rudimentary and their understanding of sexual matters still immature. The Judge accepted the account of DW. The fact that TS understood the complaint differently is explicable by the passing of years and her young age at the time. The differences do not undermine TS’s credibility in any significant way. Nor do the differences undermine the credibility or reliability of DW.
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.
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