R v Ricciardi

Case [2017] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RICCIARDI

[2017] SASCFC 128

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Lovell)

29 September 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY

EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - GENERALLY

Appeal against findings by a judge sitting without a jury that the objective elements of unlawful sexual intercourse and persistent sexual abuse of a child were proved.  The appellant argues that the Judge’s reasons were inadequate in a number of respects and failed to deal with various deficiencies and inconsistencies in the evidence of the complainants, failed to adequately address the defence case, failed to correctly apply the burden of proof, erred in finding that the evidence of the complainants was cross-admissible and in his treatment of discreditable conduct evidence, and gave less than adequate weight to the forensic disadvantage of the appellant.

Held Vanstone, Parker and Lovell JJ:  Ground that inadequate reasons were given made out in some respects.  Failure to give adequate reasons an error of law.  The appeal must be allowed unless the proviso can be applied.

Held Lovell J (Parker J agreeing):  It cannot be said that there was no substantial miscarriage of justice.  The Judge failed to deal with suggested inconsistencies and contradictions in the evidence of the complainants.  Therefore the appeal is allowed and the Judge’s findings on counts 2 and 3 should be set aside and the matter remitted. 

Vanstone J (dissenting):  The proviso should be applied.  The Judge dealt with and rejected the principal defence contention of collusion and made important credibility findings about the two complainants. 

Criminal Law Consolidation Act 1935 (SA) s 353; Evidence Act 1929 (SA) s 34CB, s 34P, s 34R; Juries Act 1927 (SA) s 7, referred to.
Douglass v The Queen (2012) 86 ALJR 1086; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137, discussed.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v M, BJ (2011) 110 SASR 1; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; M v The Queen (1994) 181 CLR 487; The Queen v Nguyen (2010) 242 CLR 491, considered.

R v RICCIARDI
[2017] SASCFC 128

Court of Criminal Appeal: Vanstone, Parker and Lovell JJ

VANSTONE J.

  1. After a trial in the District Court by a judge sitting without a jury, the appellant was found to have committed the objective…

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R v Ricciardi [2017] SASCFC 128
Case
[2017] SASCFC 128
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the appellant against his conviction in the District Court for unlawful sexual intercourse and persistent sexual abuse of a child. The trial was conducted by a judge alone, as the appellant had elected for this mode of trial after being found unfit to stand trial due to health issues. The charges related to conduct alleged to have occurred between 1988 and 1994, involving the appellant's nieces.

The primary legal issues before the appellate court were the adequacy of the trial judge's reasons for conviction and the proper treatment of evidence of discreditable conduct. The appellant argued that the judge failed to properly identify the permissible and impermissible uses of this evidence and that the reasons provided for the verdicts were insufficient to allow for proper appellate review.

The appellate court, comprising Vanstone, Parker, and Lovell JJ, considered whether the trial judge's reasons adequately articulated the connection between legal principles and factual findings, particularly concerning the central issues of the charges. While one judge found some minor deficiencies in the reasons, constituting an error of law, she ultimately determined that the proviso could be applied, as no substantial miscarriage of justice had occurred. This judge reasoned that the identified failures were not of a calibre to undermine the ultimate conclusions and that the inconsistencies relied upon by the defence were addressed in the judge's reasons. Another judge, however, disagreed on the disposition of the ground relating to the adequacy of reasons, finding that the failure to articulate the reasoning for the verdicts on the central issues constituted a substantial miscarriage of justice.

Ultimately, the majority of the court dismissed the appeal. Permission to appeal on one ground was refused, and the appeal was dismissed on the basis that, despite some minor inadequacies in the trial judge's reasons, no substantial miscarriage of justice had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After a trial in the District Court by a judge sitting without a jury, the appellant was found to have committed the objective elements of unlawful sexual intercourse and persistent sexual abuse of a child. The victims named in the Information were the appellant’s nieces “L” and “D” and the charged conduct occurred in the period 1988 to 1994. The appeal is primarily concerned with the adequacy of the reasons of the learned trial Judge and his treatment of the evidence of discreditable conduct. Background The appellant was charged on Information as follows:1.Indecent assault of D between 31 December 1989 and 1 January 1992;2.Unlawful sexual intercourse with D between 31 December 1989 and 1 February 1993, and;3.Persistent sexual abuse of L between 31 December 1988 and 1 January 1994, including unlawful sexual intercourse in a garage in Plympton, unlawful sexual intercourse in a house owned by a person known to L as Yahzee, unlawful sexual intercourse in Para Hills or Parafield Gardens in a house occupied by a person known to L as Frank, and unlawful sexual intercourse in the Flinders Ranges. A trial before judge and jury was set down for hearing in November 2013, but prior to that the appellant suffered a stroke. The trial was relisted for July 2014, but further difficulties with the appellant’s health emerged, leading to a third listing for trial in March 2015. A trial commenced then, but a mistrial was declared. Investigations into the appellant’s mental state led to a declaration on 14 August 2015 that the appellant was unfit to stand trial. Following that declaration the appellant elected for trial by judge alone. The Judge then heard evidence and submissions from the prosecution and defence regarding the objective elements of the charges. At the trial the appellant did not give evidence, but his counsel called two of his children as witnesses. The Judge found the objective elements of count 1 not proved, but in relation to counts 2 and 3 found that they were proved. The appellant’s wife is the sister of L and D’s mother. At the relevant time the complainants lived with their parents, brother and sister in Edwardstown. They initially attended St Joseph’s Primary School in Kurralta Park. In 1988 L moved to St John’s in Plympton. D moved to St John’s the following year. Both girls went on to a college after completing year seven at St John’s. The charged conduct occurred in the period that L and D attended St John’s. At the time of trial L was 37 years of age and D was 35 years. In 1989 L and D’s parents purchased a delicatessen on South Road in Croydon Park. It was open every day of the week from 6.00 am until about 8.30 pm. Both parents worked there every day. Due to their parents’ work commitments arrangements were made for the complainants to be taken to school in the morning by the appellant. How frequently he did so was a matter which differed on the evidence of the complainants, their parents and their cousins, the son and daughter of the appellant. The appellant would also spend time with the complainants and their siblings on weekends and family holidays. One such holiday, in the Flinders Ranges, was the subject of evidence from both complainants as it formed part of the allegations comprising count 3.

Evidence

Evidence Before The Court

The evidence of all three charges was clearly cross-admissible. Its probative value substantially outweighed any prejudicial effect it might have had: s 34P(2)(a) of the Evidence Act. Ground 5 – directions on discreditable conduct evidence It is convenient now to turn to ground 5, which asserts that the Judge “failed to properly identify the permissible and impermissible uses” of the discreditable conduct evidence. The Judge addressed this issue in a global sense in the following paragraphs:[37]Next I turn to the suggested purposes or relevance of the uncharged conduct. Put very broadly, it is said that it places the actual alleged offending in a proper factual setting. Expressing it in such a fashion is not adequate for this purpose, but the charged conduct did not happen in a vacuum; they were not isolated events. The more evidence there is of the interaction between the complainants and the accused the better opportunity I have to evaluate their evidence and determine to what extent, if at all, I am prepared to rely on it.[38]As can be seen from the factual discussion below, the charged occasions do not represent the first occasion of alleged sexual contact between the complainants and the accused. [39]The uncharged conduct goes to explain why no prompt complaint was made when the charged events occurred. The uncharged conduct shows that the conduct of the accused became commonplace for them and nothing out of the ordinary. They tend to explain how each came to submit to the sexual misconduct, including the charged events. The accused proved threats reinforced the need for silence on L’s part; she said she was scared. The uncharged conduct tends to explain why he expected or anticipated their silence in the face of what was occurring on the charged occasions. The uncharged acts explain the duration of the sexual events between the accused and L.[40]The uncharged acts go to explain the dynamics of the relationship between the accused and D and L, particularly in the familial situation. They explain a lack of surprise on the charged occasions and tend to explain why each may not remember precise details of the charged offending (although the long delay in making any complaint also goes to explain this aspect).[41]The uncharged acts go to explain why the accused felt emboldened to continue his sexual conduct, bearing in mind there was an ever-present risk of discovery for conduct in his own home or when others were present or nearby.The appellant argues that some of these justifications were not relevant on the evidence. For instance, neither L nor D asserted that the repetitive nature of the abuse impacted on her failure to make a timely complaint; neither asserted that the appellant’s conduct became commonplace or unremarkable or that it desensitised them; neither complainant referred to the “dynamics of the relationship ... particularly in the familial situation” as being of significance. In relation to the suggestion that multiple occasions of offending might account for deficiency in the respective recollections of the charged occasions, it was put that the complainants purported to recall those occasions in some detail.

Decision

Reasons for decision

VANSTONE J PARKER J
In my view the proviso should be applied. The failures identified are not of such a calibre as to undermine the ultimate conclusions reached by the Judge. They amount to arguments about some matters of detail in a case dominated by matters of detail about events reviewed through the prism of many years. Moreover, the inconsistencies relied on before the Judge are referred to at some length in his reasons. It is not as if they were overlooked. I am satisfied that there has been no substantial miscarriage of justice.Conclusion I have found that the complaints encompassed in grounds 2 to 6 have not been made good. In relation to ground 7, I would refuse the application for permission to appeal. In respect of ground 1, a complaint that the reasons given are inadequate, I have found that in some, fairly minor, respects the reasons were not adequate. This constitutes an error of law. However, I have determined that it is appropriate to apply the proviso, finding that no substantial miscarriage of justice occurred. Consequently, the orders I would make are:1.The application for permission to appeal on ground 7 is refused.2.The appeal is dismissed. I agree with the reasons of Lovell J and the orders he proposes. I have had the advantage of reading the draft reasons of Vanstone J. I agree that grounds 2-6 should be dismissed and for the reasons she has expressed. Regrettably I am unable to agree with Vanstone J as to the disposition of ground 1. In my opinion ground 1 should be allowed. My reasons follow.Ground 1 The accused elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA).Whilst the Juries Act is silent about any requirement for the contents of the reasons for judgment there can be no doubt that a failure to give reasons is an error of law. The requirement for a judge in South Australia hearing a criminal trial without a jury to give reasons was recently discussed in Douglass v R.[1] The Court noted that it was common ground on that appeal that a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principle of law applied by the judge and the main factual findings on which the judge relied.[2] The decision and reasoning of Doyle CJ in R v Keyte[3] on this point was cited with approval.[1] (2012) 290 ALR 699; [2012] HCA 34.[2] Ibid [8], [14].[3] (2000) 78 SASR 68; See also Heydon J in AK v Western Australia (2008) 232 CLR 438, [107]. In R v Keyte[4] Doyle CJ (with whom Wick and Williams JJ agreed) noted that although the Juries Act itself was silent on the requirement of a judge to provide reasons (as opposed to NSW), s 7(4) of the Juries Act makes the decision of a judge the same as a verdict of a jury. This was a significant change to the means of determining guilt for offences tried on Information. The Chief Justice identified three main reasons why a trial judge needed to provide detailed reasons for judgment. First, if reasons are not given the remedy of appeal is significantly restricted. Second, the giving of reasons is an established incident of the judicial process. Third, there is community interest in the due administration of criminal justice; the public is entitled to know, as a matter of public accountability, how and why the Court made its decision.[5] [4] (2000) 78 SASR 68.[5] Ibid [41]-[43].

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J, PARKER J

For these reasons I consider the findings made by the Judge were well open to him. I do not consider this ground to be reasonably arguable and so I would not grant permission to appeal. Consideration of the proviso It remains to consider what flows from what I have found to be deficiencies in the reasons for verdicts. Failure to give adequate reasons for decision is an error of law. That means that the appeal must be allowed unless the Court is of the view that there is no substantial miscarriage of justice: s 353(1) Criminal Law Consolidation Act. In AK the High Court upheld an appeal against the decision of the Western Australian Court of Appeal to apply the proviso. As mentioned, that decision was by majority comprising Gummow and Hayne JJ, together with Heydon J. In the judgment of Gummow and Hayne JJ at [55] two reasons are given for that decision. They are:[55]In every case it will be necessary to consider the application of the proviso (and here s 30(4)) taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal. In the present case there were two features of the error identified as occurring at trial which are important in deciding whether the Court of Appeal could conclude “that no substantial miscarriage of justice has occurred”. First, s 120(2) of the Criminal Procedure Act required the reasons to articulate the connection identified between the relevant legal principle (in this case, proof beyond reasonable doubt) and the relevant findings of fact. Secondly, the particular failure that was identified related to the central issue in the appellant's trial on the counts of indecent dealing and was constituted by the complete failure to articulate any of the reasoning by which the trial judge reached the ultimate conclusion that the appellant was guilty of each of those charges.[56]Complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act with respect to the central issue in the appellant’s trial was a substantial miscarriage of justice. It was a substantial miscarriage because the Criminal Procedure Act required that the trial of the appellant yield a reasoned decision that met the criteria stated in the statute. This trial did not, and it did not in respect of the central issue that was tried.[footnote omitted]Heydon J’s reasoning included this statement: [112]… the absence of the factual findings in relation to the reasoning which led to the verdict made it hard to assess whether those aspects of the evidence underlying that reasoning rendered the conviction just.The dissenting Justices, Gleeson CJ and Kiefel J, would have upheld the application of the proviso by the Western Australia Court of Appeal. I set out a short excerpt from their Honours’ reasons:[27]… Here, the direct testimony of the complainant was supported by circumstantial evidence. There was no conflict of evidence between the complainant and some other witness. An evaluation of the complainant’s uncontradicted testimony, supported as it is by undisputed circumstantial evidence, was possible on the basis of the written record of the proceedings.[28]The reasoning of the majority of the Court of Appeal appears to us to be well-founded and the conclusion correct.