R v Taumaialo [2000] NSWCCA 14

New South Wales Court of Criminal Appeal

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 Ainslie-Wallace DCJ OFFICER :

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 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 CASES CITED: 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."