R v Zappavigna - [2015] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ZAPPAVIGNA
[2015] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
6 February 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
Appeal against conviction. The appellant was convicted following a trial by jury of persistent sexual exploitation of a child. The victim, V, is the child of the appellant’s former partner.
Whether the trial Judge erred in admitting evidence of discreditable conduct on the part of the appellant, being evidence of the appellant’s breach of a Families SA directive, and a bail condition. Whether the trial Judge’s reasons for admitting the evidence of discreditable conduct were correct. Whether the trial Judge erred in directing the jury as to the permissible and impermissible use of discreditable conduct evidence.
Held per Kelly J (Blue and Stanley JJ agreeing) dismissing the appeal:
1. The trial Judge did not err in admitting the evidence of discreditable conduct. The admission of the discreditable conduct evidence was justified under s 34P(2) of the Evidence Act 1929 (SA).
2. It is not necessary to determine whether the trial Judge’s reasoning for admitting the evidence of discreditable conduct was correct. If the trial Judge has made any error in reaching the same conclusion as the Court of Appeal, it is of no consequence.
3. No criticism can be made of the trial Judge for referring to a fairly fine line between the permissible and impermissible use of discreditable conduct evidence when giving the required direction. The Judge’s comment was made in the course of emphasising to the jury that they must not cross that line.
Evidence Act 1929 (SA) s 34P(2)(a), s 34P(2)(b), s 34R(2); Children's Protection Act 1993 (SA) s 52AAB(1), referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; BBH v The Queen (2012) 245 CLR 499, applied.
R v Ball [1911] AC 47, distinguished.
R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v ZAPPAVIGNA
[2015] SASCFC 8
Court of Criminal Appeal: Kelly, Blue and Stanley JJ
KELLY J.

The appellant was convicted after a trial by jury of one count of persistent sexual exploitation of a child, to whom I shall refer as “V”. V was the step‑daughter of the appellant.
The appellant appeals against his conviction on eight grounds. The grounds of appeal relate to the admission, and directions to the jury in respect, of evidence that the appellant was…

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 Zappavigna

Details

AGLC: R v Zappavigna [2015] SASCFC 8
Case: [2015] SASCFC 8
Decision Date: 6 February 2015

CaseChat Overview and Summary

The appellant, Franco Zappavigna, appealed his conviction for persistent sexual exploitation of a child. The prosecution alleged that the appellant engaged in a sexual relationship with V, who was between 11 and 12 years old during the period of the alleged offending, between September 2012 and March 2013. The appeal concerned the admission and directions to the jury regarding evidence of the appellant's conduct after the alleged offending, specifically his attempts to contact V after she was placed in foster care, a Families SA directive prohibiting contact, and breaches of a home detention bail agreement.

The central legal issues before the Full Court of the Supreme Court of South Australia were the admissibility of evidence concerning the appellant's post-offending conduct, and whether this evidence, which occurred outside the dates of the alleged offences and involved breaches of legal orders, was unduly prejudicial. The court was required to determine if this evidence had sufficient probative value to be admitted under section 34P of the *Evidence Act 1929* (SA), and if its admission, along with the implied findings of Families SA and the Magistrates Court, unfairly prejudiced the appellant in the eyes of the jury.

The court, comprising Kelly, Blue, and Stanley JJ, held that all the evidence before the jury was admissible. Kelly J, delivering the leading judgment, reasoned that the evidence of the appellant's continued attempts to contact V, despite legal prohibitions, was admissible as evidence of specific propensity and disposition. While the trial judge's directions on the use of this evidence were considered unduly narrow, they did not lead to a miscarriage of justice as they set a higher bar for the jury's consideration than necessary, thus only benefiting the appellant. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction on eight grounds. The grounds of appeal relate to the admission, and directions to the jury in respect, of evidence that the appellant was the subject of a Families SA directive and a home detention bail agreement prohibiting him from contacting V, and that he breached the directive and bail agreement by contacting and attempting to contact V.Background Before dealing with the grounds of appeal, it is necessary to summarise the relevant background. The prosecution case was that the appellant had a sexual relationship with V for approximately six months between September 2012 and March 2013. V was 11 and 12 years old at the period of the alleged offending. On 12 December 2013, the Director of Public Prosecutions filed an information in the District Court in the following terms:Statement of OffencePersistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceFranco Zappavigna, over a period of not less than three days between the 4th day of March 2012 and the 31st day of March 2013 at Elizabeth Park, Renmark and other places, committed more than one act of sexual exploitation of [V] a person under the age of 17 years by:-(a) causing [V] to perform an act of fellatio upon him on more than one occasion;(b) performing an act of cunnilingus upon [V] on more than one occasion;(c) by inserting his penis into [V’s] vagina on more than one occasion. The appellant commenced a relationship with V’s mother in around 2010/2011. As a result of that relationship, he came into contact with V and V’s siblings. At the commencement of that relationship, V lived in a house with her mother and siblings in Elizabeth, which house the appellant regularly visited. In 2012, the appellant took V to a local tennis club about once per week and helped her to practise and train. The prosecution alleged that in mid-2012 the appellant began to display a sexual interest in V and there was an escalation in sexual contact between the two from touching and kissing to, ultimately, cunnilingus and fellatio. The prosecution case was that sexual contact between the appellant and V often occurred in the car when the appellant drove V to and from tennis training. During this period, the appellant maintained his relationship with V’s mother and they decided to move in together. In September 2012, the appellant commenced living with V, V’s mother and V’s siblings in Renmark. The prosecution alleged that the sexual contact between the appellant and V continued in Renmark and occurred on outings and sometimes in their house when no one else was home. It was alleged that in around November 2012 the appellant first had penile-vaginal sexual intercourse with V in the back seat of his car, which he had parked away from the house. The prosecution alleged that from this time onwards the appellant regularly had sexual intercourse with V. In particular, it was alleged that acts of unlawful sexual intercourse occurred on 12 January 2013, 14 February 2013 and 4 March 2013.

Evidence

Evidence Before The Court

For this reason I deal first with grounds 1 to 4 before turning to the issue which arises on ground 8.Discreditable Conduct: The Evidence Before turning to the questions of law, it is necessary to identify precisely the evidence that was sought to be led which comprised evidence of discreditable conduct on the part of the appellant. There was evidence, including evidence from the complainant herself, that after she was taken into foster care shortly after 26 March 2013, the appellant continued to try to make contact with her through Facebook and by letters. The Families SA caseworker, Ms Puckridge, gave evidence that, in light of Families SA becoming aware that the appellant was still trying to contact V, a decision was made to issue to the appellant a particular type of written directive not to communicate or attempt to communicate with her. There was evidence that the written directive was served upon the appellant by a process server on 11 April 2013. Evidence of the breaches of that directive was given through the evidence of Detective Brevet Sergeant O’Malley, who said that he followed the appellant on 23 April 2013 while the appellant drove around various areas in Berri, including past the foster carer’s home. There was also evidence of Facebook messages from mid-April 2013 to 8 May 2013, when the appellant was arrested for breaching that written directive. Before being arrested, he had been told in telephone conversations with the police officer that he was not to contact V. There was evidence that those conversations occurred in the context of the appellant ranting and raving and complaining to the police officer about not being allowed to see V. It was an agreed fact that on 16 May 2013 the appellant was subjected to a condition of bail that he not approach V. There was evidence from teachers at V’s primary school and from V herself that the appellant was seen outside the school perimeter on 29 July 2013. Notably, on that date the appellant had been given permission by his home detention supervisor to leave his home to attend at the Residential Tenancies Tribunal in Grenfell Street. Discreditable Conduct: Admissibility The first complaint made about the admission of the discreditable conduct evidence was that all of the conduct said to be comprised in the discreditable conduct evidence occurred outside of the dates alleged in the information and subsequent to any of the charged conduct. It was submitted that evidence of conduct which post-dated the offending conduct did not have strong probative value to justify admission under s 34P of the Evidence Act 1929 (SA) (“Evidence Act”). Further, it was submitted that, even if the conduct did have such probative value, it was highly prejudicial evidence in that it was evidence that the appellant was prepared to break the law and disregard orders from Families SA. It was further submitted that the introduction of the evidence of the law breaking behaviour by the appellant had the inevitable consequence that the jury were told about the dealings that Families SA had with V and the appellant. That evidence implied that the formal directive flowed from a determination within Families SA that V was in need of protection from communication with the appellant. In the same way, from the evidence about the breach of the bail condition, the jury would inevitably have inferred that the Magistrates Court gave its imprimatur to a bail condition forbidding the appellant to make any contact with V.

Decision

Reasons for decision

KELLY J

If the effect of the trial Judge’s direction was to set the bar higher than necessary before the jury could use the discreditable conduct evidence, that error could only have benefited the appellant. The trial Judge’s directions in this case were not capable of leading to a miscarriage of justice.Conclusion All the evidence before the jury was admissible. It was admissible as evidence of specific propensity and disposition. The directions given as to use of the evidence were, in my view, unduly narrow; however for the reasons given, those directions could not have led to a miscarriage of justice. I would dismiss the appeal. BLUE J: I agree. STANLEY J: I would dismiss the appeal. I agree with the reasons of Kelly J.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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