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Court of Criminal Appeal 18 February 2000

R v Taumaialo

[2000] NSWCCA 14

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE EVIDENCE DISCRETIONARY EXCLUSION SUMMING DIRECTIONS ON DELAY IN COMPLAINT SENTENCE

Citation: Taumaialo v R [2000] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 18 February 2000
Judge(s): Grove J, Sully J, Simpson J

Background

The appellant was convicted after a District Court jury trial on two counts of sexual assault without consent in circumstances of aggravation. The complainant was a 14-year-old girl; the appellant was 20 years old at the time of the offences. The offences occurred on consecutive days in August 1996, after the complainant accompanied the appellant to his home on the pretence of attending a church service.

The complainant did not immediately report the offences. She told a friend the following day that she had been raped, and was medically examined the day after that. The appellant denied any sexual activity had occurred and gave an entirely contradictory account at trial.

Separately, the appellant had pleaded guilty to assault occasioning actual bodily harm and larceny on a second indictment. The sentencing judge imposed cumulative terms: 12 months for the second indictment, followed by a total of eight years (minimum five years, additional three years) for the sexual assault convictions. The appellant challenged both the convictions and the sentences on appeal.

  • Whether the trial judge erred in refusing to discharge the jury after prejudicial evidence emerged that "a lot of people" had said the appellant had a gun and was not afraid to use it to kill people
  • Whether the trial judge's direction to the jury concerning the complainant's evidence, including directions on delayed complaint, was adequate or erroneous
  • Whether the sentences imposed were manifestly excessive, particularly given the appellant's mild intellectual disability

Decision

First ground: Refusal to discharge the jury
Before trial, the Crown had given notice that the complainant would give evidence about a specific threat accompanied by the appellant producing what appeared to be a pistol. When the complainant actually testified, she referred instead to community rumour that the appellant had a gun and was not afraid to use it. The Court found this evidence to be different from what had been notified, but the trial judge had given a strong and immediate direction to the jury to disregard it. The Court was satisfied that the direction was adequate to cure any prejudice and that the refusal to discharge was within the proper exercise of the trial judge's discretion.

Second ground: Directions on the complainant's evidence
The appellant challenged the adequacy of the trial judge's summing-up, including the directions relating to delayed complaint. The Court found no error in the directions given. There was substantial corroborating or contextually relevant evidence beyond the complainant's account alone, including medical findings of injury, the evidence of the friend to whom complaint was first made, and admissions by the appellant about his own conduct. The Court was not persuaded that the directions were inadequate or misleading in any respect.

Sentence appeal: Mild intellectual disability
The Court acknowledged the principle, drawn from existing authority, that persons suffering from mental disorder or intellectual disability are generally inappropriate vehicles for sentences intended to express general deterrence. However, the Court found that moderation of sentence for this reason need not be great where, as here, the offender's own evidence and responses to police demonstrated awareness of the gravity of his conduct. The sentences were found to be well within the proper range. The cumulation of sentences was also upheld, given the seriousness of the assault and robbery offences on the second indictment and the fact that those offences were committed while the appellant was on bail, and the sexual assaults while he was on parole.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but that appeal also dismissed

Key Takeaways

  • Where prejudicial evidence emerges unexpectedly at trial, a strong and immediate jury direction to disregard it may be sufficient to cure the prejudice without requiring discharge of the jury.
  • A delayed complaint by a complainant in a sexual assault matter does not of itself render a conviction unsafe, particularly where corroborating circumstances exist, including medical evidence and prompt disclosure to a third party.
  • Mild intellectual disability is a recognised factor capable of moderating a sentence that might otherwise reflect general deterrence, but the degree of moderation may be limited where the offender demonstrably understood the gravity of the conduct.
  • In dismissing the sentence appeal, the Court of Criminal Appeal applied the principle from House v The King that appellate intervention in sentencing requires demonstrated error in the exercise of discretion, not merely a different view of the appropriate penalty.
  • Cumulation of sentences across separate indictments will be upheld where the offences are themselves serious and the overall sentence does not offend the totality principle.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Longman v The Queen (1989) 168 CLR 79
- Crofts v The Queen (1996) 186 CLR 427
- R v Knape [1960] 5 VR 469
- R v Weaver [1968] 1 QB 353
- R v Scognamiglio (1991) 56 A Crim R 81
- Regina v Preston (unreported, CCA, 9 April 1997)
- R v Gust [1999] NSWCCA 265
- R v Bus (unreported, CCA, 3 November 1995)