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R v Mazzolini

R v Mazzolini

Case [1999] VSCA 150 23 September 1999

Criminal Liability

Mens Rea & Intention

Sexual Offences

Admissibility of Evidence

Abuse of Process

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 33 of 1998

THE QUEEN
v
ROGER MAZZOLINI

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JUDGES: PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 12 and 13 May 1999
DATE OF JUDGMENT: 23 September 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 150

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CRIMINAL LAW – Sexual penetration of child between 10 and 16 years – Circumstances giving rise to need for "Longman" warning – Delay and badgering of daughter by father in order to extract allegation – Whether warning sufficient – Whether directions amounted only to comments – Effect of failure to take point at trial and in oral argument on appeal – Absence of motive to lie – Whether questions amounted to impermissible suggestion – Whether verdict unsafe or unsatisfactory –
s.61 Crimes Act 1958.

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APPEARANCES: Counsel Solicitors
For the Crown Ms S. Pullen P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr. W.B. Z. Woinarski, Q.C. Victorian Legal Aid

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Ormiston, J.A., in draft form. I gratefully adopt his account of the facts and issues touching the trial of the applicant. I agree, largely for the reasons his Honour has advanced, with his conclusions upon each of the three grounds pleaded. As to ground 1, I desire to add the following. The evidence-in-chief of the complainant included a segment which, in my experience, is unusual in this type of case. In the course of describing a phone conversation between her and the applicant which she said occurred in late April or early May of 1996, the complainant was asked:
“Can you recall the substance of that conversation, can you recall
anything that Mr Mazzolini said?”
She replied:
“He asked me as to whether I told my parents about what he did to me in the back room at, in Waugh Street in Charlton. He said to me that did he realise that in the back room when he was staying there that he was masturbating - - -“
She later added that she had informed the applicant that she had not told her parents about that matter.
On the Crown case, the incident referred to in the above question was clearly the act charged against the applicant. If accepted by the jury, this was a very significant piece of evidence for the prosecution. It would not have escaped the jury’s attention, in my view, that it was never put to the complainant in cross- examination that her evidence as to this conversation was untrue or inaccurate. Nor would it have escaped the jury’s attention that when he gave his evidence-in-chief, the applicant did not deny the conversation. Indeed, it would have remained an uncontested piece of evidence had the learned prosecutor not incautiously asked about it in cross-examination.
As to ground 2, having read the transcript of evidence and the judge’s charge on a number of occasions, I am clearly of the view that the…

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 Mazzolini

Details

AGLC: R v Mazzolini [1999] VSCA 150
Case: [1999] VSCA 150
Decision Date: 23 September 1999

CaseChat Overview and Summary

In this case, the respondent, Mazzolini, was convicted of multiple counts of sexual penetration of his daughter, who was under the age of 16. The primary issue before the court was whether the trial judge's directions to the jury were adequate in light of the circumstances surrounding the alleged offences, specifically whether the judge sufficiently cautioned the jury about the potential unreliability of the child's evidence due to the father's behaviour in extracting the allegations. The court had to determine if the judge's directions were merely comments or if they properly addressed the potential for undue influence on the child's testimony.

The court found that the trial judge did not provide a "Longman" warning, which is necessary when there are circumstances that might undermine the reliability of a child's evidence due to undue influence. The judge's directions did not sufficiently caution the jury about the possibility of the father's actions leading to unreliable testimony. The court considered whether this omission rendered the verdict unsafe or unsatisfactory. Ultimately, the court concluded that the error in the judge's directions did not affect the safety or satisfaction of the verdict, as there was no evidence of a motive for the child to lie and the questions posed by the father did not constitute an impermissible suggestion.

The court further found that the failure to raise the point regarding the adequacy of the directions during the trial and in the oral argument on appeal meant that the issue was not properly preserved. Despite the error in the directions, the evidence against Mazzolini was compelling, and the absence of any motive for the child to fabricate the allegations supported the reliability of her testimony. The court held that the error was not significant enough to undermine the jury's verdict.

The appeal was dismissed, and the convictions were upheld. The court did not find it necessary to order a retrial or any other specific orders.

Orders