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R v Musolino

R v Musolino

Case [2003] SASC 203 1 July 2003

Intent to Defraud

Cross Admissibility

Admissibility of Evidence

Collateral Matters

Criminal Law

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R v MUSOLINO
[2003] SASC 203
Court of Criminal Appeal: Duggan, Debelle and Lander JJ

DUGGAN J. I agree with the reasons of Lander J in relation to the evidentiary question raised in the second ground of appeal.
I make the following comments on the directions given to the jury by the trial judge on the cross-admissibility issue.
The trial judge told the jury that counts 4, 6 and 11 to 16 in the information “relate to conduct of a similar nature”. He then gave the direction which is set out in the judgment of Lander J.
The evidence concerning these counts was cross-admissible within the group of counts referred to above because of its tendency to establish a systematic course of fraudulent conduct. This, in turn, was relevant to proof of the intention of the appellant and in order to rebut the different explanations advanced by him as to why he had been entrusted with the monies given to him by the complainants and what he had done with those funds on each occasion.
In the course of argument our attention was drawn to The Queen v Hayes (1986) 128 LSJS 460 and Gibbs v The Queen (1990) 58 SASR 347. In each case the accused was charged with a series of fraud offences and the adequacy of directions on similar fact evidence was considered on appeal. The directions in each case were held to be adequate.
It is important to note, however, that the directions in these cases went beyond the bare instruction which was given in the present case that evidence of such conduct is admissible to supply evidence of intent.
In Gibbs the trial judge said (350):
“Evidence of similar conduct on other occasions, either before or after the particular incident with which the accused is charged and you are considering, is admissible in order to supply evidence of the required intention on his part; that is to say, for the purpose of showing a dishonest intent, or a guilty state of mind accompanying the transaction which forms the basis of that particular charge. Evidence of conduct on other occasions (that is, other counts) may be given in order to establish a formulated plan or system, to establish that the accused has done similar things, on other occasions, as part of a system practised by him and according to a plan. Evidence of that kind may be brought in aid to support the case for the prosecution on the issue of the accused’s intention to defraud, and to discredit a defence that he had no such intention, a defence that he had a mistaken or innocent purpose, or a reasonable or honest motive, in carrying the particular transaction into effect. But, before you can take those other transactions, or that evidence of similar conduct on other occasions, into your deliberations, you must be satisfied that the facts, which are alleged to constitute each of those transactions, are proved upon the evidence; in other words, that…

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.

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Details

AGLC: R v Musolino [2003] SASC 203
Case: [2003] SASC 203
Decision Date: 1 July 2003

CaseChat Overview and Summary

In the case of R v Musolino, the appellant was convicted on 15 out of 16 counts of fraudulent conversion. The appellant appealed against his conviction, arguing that the trial judge erred in his directions to the jury regarding the cross-admissibility of evidence and that he should have been allowed to present evidence to challenge the credibility of a key prosecution witness. The Court of Criminal Appeal dismissed the appeal.

The court found that the trial judge's directions to the jury on the cross-admissibility of evidence were adequate, despite not being as detailed as in previous cases. The judge had clearly explained that the evidence was admissible to prove the appellant's intent and to show a systematic course of fraudulent conduct. The court held that the inadequacy in the summing-up did not lead to a miscarriage of justice.

Regarding the challenge to the credibility of the prosecution witness, the court held that the trial judge correctly refused to allow evidence of an affidavit that was allegedly signed by the witness. The court found that the affidavit and its contents were only relevant to the witness's credibility and not to any fact in issue in the case. The court further held that the exception to the finality rule, which allows a witness to be contradicted by a previous inconsistent statement, only applies to statements relevant to the subject matter of the cause. Therefore, the trial judge did not err in refusing to allow evidence to prove the signature and contents of the affidavit.

Orders