R v Taumaialo

[2000] NSWCCA 14

CITATION:	R v Taumaialo [2000] NSWCCA 14
FILE NUMBER(S):	CCA 60696/97
HEARING DATE(S):	Monday 7 February 2000
JUDGMENT DATE:	18 February 2000
PARTIES :	Regina v Keli Taumaialo
JUDGMENT OF:	Grove J at 1; Sully J at 36; Simpson J at 37

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/21/1251
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	C.K. Maxwell QC (Crown) H.P. Cox (Appellant)
SOLICITORS:	C.E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure - - Evidence - - Discretionary Exclusion - - Summing-up - - Directions on Delay in Complaint - - Sentence - - Mild Intellectual Disablement
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	House v The King 1936 55 CLR 499 Regina v Preston, unreported CCA 9 April 1997 R v Knape 1960 5 VR 469 R v Weaver 1968 1 QB 353 Longman v The Queen 1989 168 CLR 79 Crofts v The Queen 1996 186 CLR 427 R v Gust 1999 NSW CCA 265 R v Scognamiglio 1991 56 A Crim R 81 R v Bus, unreported CCA 3 November 1995
DECISION:	Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60696/97

GROVE J
SULLY J
SIMPSON J

Friday 18 February 2000

REGINA v KELI TAUMAIALO

JUDGMENT

1    GROVE J : The appellant was convicted on two counts of sexual assault without consent in circumstances of aggravation after a trial before Ainslie-Wallace DCJ and a jury. Two grounds of appeal were argued and in the alternative the appellant sought leave to appeal against the severity of sentence. At the conclusion of the trial the appellant also appeared for sentence after pleas of guilty to two counts in a separate indictment charging assault occasioning actual bodily harm and larceny. On this latter indictment the appellant was sentenced to concurrent terms of twelve and six months penal servitude and on the counts of the trial indictment he was sentenced to concurrent total terms of eight years penal servitude cumulative upon the twelve months sentence and divided into minimum and additional terms of five years and three years respectively.

2    The relevant grounds of appeal were expressed as follows:

“That the learned trial judge erred in failing to discharge the jury after the evidence ‘a lot of people have been saying that he (the accused) had a gun and that he wasn’t afraid to use it and kill people’, and
Her Honour erred in the direction she gave concerning the complainant’s evidence.”

3    The appellant and the complainant had been acquainted for a short time before the offences. He was then aged twenty years and she fourteen. On Saturday 10 August they encountered each other near some shops at Shalvey. The complainant was in the company of two female friends. There was some verbal exchange there and at a later encounter near the appellant’s home he asked the complainant if she would accompany him to church on Sunday.

4    Some time before lunch on that following day, the appellant called at the complainant’s home and again asked if she wanted to go to church. She obtained permission from her parents to go, changed her clothes and went with the appellant to his home. A party of significant size was to attend from the home at a Mormon church in Doonside where the service was expected to extend from 1 to 4pm. Arrangements were made for travel and a number of the appellant’s family proceeded in a red commodore car and the complainant and the appellant waited in the home where they were to be collected by the appellant’s sister. Whilst awaiting her arrival the appellant took the complainant into his room where forced penile intercourse and an act of fellatio took place.

5    Subsequently the appellant’s sister arrived and they travelled with her to the church in her white van. After the service they returned to the appellant’s home at about 4.30 pm where a meal was available but the complainant did not partake. Her father arrived in the evening and conveyed her home. She did not tell him that anything untoward had happened to her whilst she was in the company of the appellant.

6    The following day (Monday) the complainant stayed home from school. The appellant visited her home and told her to come back to his home with him. This invitation/direction was accompanied by a threat in terms that the complainant would know “what would happen otherwise”. The complainant told her mother that she was going to the appellant’s house and then did so. At the house she was taken into the appellant’s room where she was forced to engage in fellating him. After this, the complainant ran from his room and left the house without speaking to anybody.

7    She went to the home of a friend named Kelley. Kelley was one of the group at the Shalvey shops on the previous Saturday. The complainant told her that she had been raped and Kelley took her to a woman named Barbara. On the following day the complainant was medically examined.

8    The foregoing represents the essence of the complainant’s sworn evidence and does not purport to recapitulate detail or elaboration. The appellant gave sworn evidence. He denied committing any sexual assault upon the complainant and specifically denied those alleged to have occurred on Sunday and Monday 11 and 12 August. He denied that the complainant entered his bedroom at all on the Sunday and said that he had met her at the shops on Monday and it was from there that they had gone to his home where, upon arrival, his father had told him to take her home which he did.

9    There was no eyewitness to any of the activity which was the subject of the indictment. Subject to application of the onus of proof it was for the jury to resolve this total contradiction in the versions of the complainant and the appellant.

10    The jury were not however left to deliberate upon what might loosely be described as oath against oath. There were numerous circumstances revealed in the evidence which had potential for assisting in assessing the credibility of the versions of each of the appellant and the complainant.

11    It is not necessary for present purposes to comb the evidence to identify every one of these but it may be useful to refer to some of the more prominent circumstances. The complainant made no report on the Sunday and particularly did not avail herself of the opportunity to speak to her father; she was collected by the appellant’s sister and seen by her and other members of the appellant’s family at the church service and later, none of them detected any sign of distress and they testified that she displayed a relatively happy countenance; the unlikelihood of voluntary return by the complainant to the appellant’s home on the Monday if she had been subjected to serious assault on the previous day; the evidence of Dr Marks concerning her examination of the complainant on 13 August when she detected frank injuries in the area of the complainant’s genitalia and on 20 August (the reason for examination in this respect not being possible on 13 August being explained) observation of hymenal disruption; the evidence of Kelley that during the encounter on Saturday 11 August the appellant had said separately to the complainant and to herself that he wished to see “if he can put his big dick inside” of them; the admission in evidence by the appellant that he wanted to accompany the complainant to a doctor’s appointment on the Monday in the context of his assertion to police, affirmed in his evidence, that the fourteen year old complainant had expressed a wish to have sex with him and his further assertion that there had been no congress at all between them of a sexual nature.

12    The refusal to discharge the jury referred to in the first ground of appeal arose in these circumstances. Shortly before the trial and apparently following a conference with the complainant a letter was dispatched to the appellant’s solicitor containing the following relevant advice:

“You are hereby put on notice that the Crown proposes to lead evidence from the complainant that the reason she went to the accused house on Monday 12 August 1996 was threats made by the accused on 11 August 1996 when the accused produced to her what she believes was a pistol.
It is anticipated that the complainant will give evidence that the accused told her to return to his home on the following day - that he would harm the complainant and her family if she did not comply - and that he went to a wardrobe and produced an item which was partly obscured but appeared to be fitted with a barrel consistent with being a pistol.”

13    In the event, the evidence did not exactly match the particulars provided. The complainant was asked about her state of mind relative to fear of the appellant and threats which had emanated from him and in response to a question whether there were any means of which she was aware whereby he would be able to carry out threats she stated:

“A lot of people had been like saying that he had a gun and that he wasn’t afraid to use it to kill people.”

14    She further testified that she saw what looked like a gun in the appellant’s wardrobe. However she asserted that she had made this observation on the Monday which was, of course, after she had returned to the appellant’s home on the second occasion. It can be mentioned that there was evidence disputing the presence of any wardrobe at all in the appellant’s room. It is also convenient to refer now to the judgment of the learned trial judge on the application to discharge the jury when she recounted that the evidence of the complainant consisted of words to the following effect:

“People said he had a gun and he wasn’t afraid to use it to kill someone.”

Her Honour did not have the benefit of a transcript. It was argued that her Honour’s paraphrase showed that she had a mistaken appreciation of the evidence and that that appreciation was of a markedly milder potential prejudice to the appellant than the words actually used. I reject that submission. Her Honour’s paraphrase shows a clear appreciation of the relevant thrust of the evidence namely that the complainant believed that the appellant was capable of violence of a high order. Of course, the issue in focus was the complainant’s belief and not the truth or otherwise of its content.

15    The ground of appeal is expressed in terms of a challenge to the exercise of a discretion by the trial judge and the inhibitions upon appellate intervention against the exercise of such a discretion are governed by well known authority: see House v The King 1936 55 CLR 499 and the many cases in which that authority has been applied. Counsel appearing for the appellant at trial (who did not appear in the appeal) argued his application for discharge of the jury on the basis of somewhat wide ranging submissions but the essential argument referred to the statutory requirement in s137 of the Evidence Act to exclude evidence where probative value is outweighed by the danger of unfair prejudice. The applicability of that section directly faced the obstacle that no ruling was sought before the evidence emerged, it being common ground that the anticipation was that the evidence would be as particularized and not as it emerged. Thus the argument was mounted that if the evidence had been accurately anticipated, her Honour would have in the circumstances ruled that the probative value was relevantly outweighed by the danger of unfair prejudice and that discharge was a necessary remedy to avoid miscarriage.

16 It was not contended that the foreshadowed evidence as particularized was inadmissible. Nor in my view would the evidence as it emerged have been inadmissible if particularized, being both probative of the state of mind of the complainant, and relevant to a fact in issue namely whether the complainant returned to the appellant’s house voluntarily. As is obvious, the actual content of the evidence given was hearsay, and provisions of the Evidence Act which permit hearsay to be probative of content were adverted to in the course of argument but it is not necessary to explore such concepts for the purpose of ruling upon the ground of appeal.

17    The learned trial judge refused the application for discharge and gave reasons for her ruling. It was argued that the reasoning in her judgment was vulnerable to attack. The power of this Court to intervene is enlivened by error in decision. In my view her Honour’s decision is untainted by such.

18    It is to be noted that her Honour recorded that it was conceded that the evidence given by the complainant was relevant to her state of mind at the time of the second assault, and more particularly relevant to why she returned to the accused’s house on a second occasion. Reference was made to Regina v Preston unreported CCA 9 April 1997. The facts of that case bore similarity to the present circumstances in that there was a challenge there to the exercise of discretion by a trial judge admitting evidence by a complainant that she was scared because she heard that the appellant in that case had assaulted people and that he had once taken part in a shooting. As I have said, it was not argued in the present case that the evidence was not admissible; but in effect it was argued that the danger of unfair prejudice was such that, had the matter been adverted to prior to the emergence of the evidence, it must have been excluded when s137 was applied.

19    In my view her Honour was correct to regard Preston as providing relevant guidance. Further, her Honour determined that any unfairness to the appellant could be extinguished by direction limiting the use to which the jury might make of that evidence.

20    The evidence had emerged, and the argument upon it had occupied an afternoon, resuming the following morning. Upon return of the jury, her Honour forthwith adverted to the matter, and gave this direction:

“Yesterday the complainant gave some evidence about rumours that she had heard concerning the accused. The direction of law I give you is this. That is not evidence about the accused’s behaviour and you may not take it into account in coming to any - in any way about the behaviour of the accused. You may, if you wish, take the complainant’s evidence about the rumours into account in coming to an assessment of her state of mind from time to time but I direct you that the evidence as she gave yesterday about rumours is nothing more than that and it is certainly not evidence about the accused’s behaviour”.

21    That direction was couched in such terms as to foreclose the possibility of the jury’s treating the evidence as proof of any fact, or as proof of some bad character on the part of the appellant. Given that direction, the reliance by counsel for the appellant upon the judgment of the Victorian Full Court in R v Knape 1960 5 VR 469 was misplaced.

22    As has been pointed out, the evidence was not in accordance with particulars supplied, and to that extent it might be described as inadvertent in the Crown case. I would adopt the approach of Sachs LJ speaking for the Court of Appeal in R v Weaver 1968 1 QB 353 where such a situation had arisen:

“It follows, as has been repeated time and again, that every case depends upon its own facts. It also, as has been said time and again, thus depends on the nature of what had been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case when something of this nature gets into evidence through inadvertence the jury must be discharged.”

23 There is no dispute that the evidence currently in focus was technically admissible; and the challenge is to discretionary exclusion against the background of s137 of the Evidence Act. In my view the course adopted by her Honour, to limit the use to which the evidence might be put, and to direct the jury in that regard firmly and immediately, was correct.

24 The next ground argued was expressed with notable lack of specificity, but as I understood it, the principal thrust of argument was focussed upon the initial absence of complaint and subsequent delay in making complaint, as being destructive of the complainant’s credibility. It was necessary for the trial judge to instruct the jury, in terms of s405B of the Crimes Act, that delay in complaint does not necessarily indicate that the allegation is false; and that there may be good reason for a victim’s hesitating in making complaint. Her Honour did so. It was contended that “her Honour ought properly have instructed the jury that the delay in complaint may affect (adversely) the credit of the complainant”. There is ample authority that in an appropriate case fairness provokes a requirement for such a direction: Longman v The Queen 1989 168 CLR 79; Crofts v The Queen 1996 186 CLR 427; R v Gust 1999 NSW CCA 265.

25    Included in her Honour’s charge to the jury was the following:

“It is for you to decide whether the fact that she complained to other people does or does not support her evidence.
It has been put to you on behalf of the accused that the delay in making the complaint is inconsistent with the complainant’s evidence because if it happened in the way she said she would have complained earlier ……
However, I also instruct you that delay in making a complaint does not necessarily mean that the allegation is false. There may be a good reason why a victim of sexual assault might hesitate in making a complaint about the assault. The question for you to consider is whether, in this case, the complaint and the circumstances in which it is made, is consistent with the evidence of the complainant or whether it throws doubt on the evidence of the complainant.”

26    No application was made by trial counsel for further elaboration of these directions; nor for any additional directions. The issue in this trial was not whether acts in private between two people were consensual, but whether the jury was satisfied to the requisite standard that sexual assault, or indeed any form of sexual contact had occurred at all. In the context of that stark issue, and in the absence of any perception by trial counsel that elaboration was required, I am unable to conclude that there was error in her Honour’s directions.

27    It was argued that the learned trial judge should have added her imprimatur to the potential for delay in complaint to erode credibility. Imprimatur is a latin expression which translates as it may be published but the submission used it in the sense of adding the authority of the Court itself to the argument advanced at trial for the appellant. It was no part of her Honour’s duty to strengthen or weaken partisan contentions. I do not say that occasions may not arise where comment by a trial judge in respect of some particular submission is appropriate, and even necessary but this was not such a case. It is inconceivable that the jury did not appreciate the plain contradiction between the appellant and the complainant and her Honour’s directions appropriately pointed to the approach the jury should take in resolving that contradiction. Further it should not be overlooked that her Honour’s charge to the jury was delivered following upon addresses by counsel which, it is reasonable to assume, would have made emphatic reference to matters relied upon in support of, or in derogation from, credibility. A considerable bulk of the submissions on appeal, when analysed, amount to complaint that the summing up did not repeat in terms every argument maintainable on behalf of the defence. Her Honour was not required so to do; and the summing up, read as a whole, fairly summarized the competing cases, and fairly emphasized the obligation to apply the correct onus and standard of proof.

28    Neither of the grounds of appeal against conviction has been made out.

29    Application for leave to appeal against severity of sentence was made. Attention was drawn to psychological testing which indicated that the appellant was of low intellectual ability, being statistically placed in the bottom 1 percent of the population, and categorized as mildly mentally retarded.

30    Counsel for the appellant referred to R v Scognamiglio 1991 56 A Crim R 81 and R v Bus unreported CCA 3 November 1995. Those and other authorities indicate that persons suffering from mental disorder - her Honour described him as mildly intellectually disabled - are inappropriate vehicles for sentences manifesting general deterrence. However, allowing this to be a matter attracting moderation of sentence in the instant case, the evidence of the appellant and his responses to police at interview make it clear that he appreciated the gravity of the conduct alleged; and the finding of the jury is conclusive that he perpetrated the actions involved. As remarked by Hunt CJ at CL in Bus, in such circumstances moderation need not be great.

31    I have already described without detail the nature of the sexual assaults. As to the first count, the appellant forced penile intercourse; and as to the second count, forced the complainant to fellate him. She was a fourteen year old girl at the time of the offences. In my view the sentences imposed by her Honour are well within the range of the sound exercise of discretion.

32    The sentences were cumulated with those on the additional indictment, but I see no error on the part of her Honour in terms of totality. The sentences for which the appellant received an effective custodial term of twelve months involved serious misconduct. The assault occasioning actual bodily harm related to an attack at a railway station upon a man who was struck on the head from the rear, and robbed of money whilst he lay unconscious from the blow.

33    The appellant is still a relatively young man, but it is to be noted that at the time of the sexual assault offences he was on parole, having been released after serving a minimum term of fifteen months for an offence of robbery in company. Further, the offences at the railway station to which I have just made reference were committed whilst the appellant was on bail.

34    I am unpersuaded that this Court should intervene to vary the sentence.

35    I propose the following orders:

(a) The appeal against conviction be dismissed;

(b) The application for leave to appeal against sentence be granted but that appeal also dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60696/97

GROVE J
SULLY J
SIMPSON J

Friday 18 February 2000

REGINA v KELI TAUMAIALO

JUDGMENT

36    SULLY J: I agree with Grove J.

IN THE COURT OF
CRIMINAL APPEAL

60696/97

GROVE J
SULLY J
SIMPSON J

Friday 18 February 2000

REGINA v KELI TAUMAIALO

JUDGMENT

37    SIMPSON J: I agree with the judgment of Grove J and with his reasons therefor.

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