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Court of Criminal Appeal 12 March 2014

GIALLOMBARDO, Peter v R

[2014] NSWCCA 25

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL DISMISSED

Citation: GIALLOMBARDO, Peter v R [2014] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 12 March 2014
Judges: Hoeben CJ at CL, Blanch J, Hall J (judgment by Hall J, with whom Hoeben CJ at CL and Blanch J agreed)

Background

The appellant was tried in the District Court of NSW in February 2012 on four charges arising from events on 9 July 2010 at Blacktown. Three counts alleged aggravated indecent assault under s 61M(1) of the Crimes Act 1900, and one count alleged aggravated sexual assault under s 61J(1). The aggravating circumstance in each charge was that the complainant had a serious physical disability, namely cerebral palsy causing severe to profound verbal communication impairment.

The jury convicted the appellant on the three indecent assault counts and on a common law alternative to the sexual assault count, returning a not guilty verdict on the sexual assault count itself. The appellant was sentenced to an aggregate term of two years imprisonment with a non-parole period of one year.

The appellant appealed against his convictions on three grounds, asserting that the verdicts were unreasonable, that the trial judge had failed to adequately warn the jury about relying solely on the complainant's evidence, and that the absence of good character evidence and related directions amounted to a miscarriage of justice.

  • Whether the jury verdicts were unreasonable and could not be supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400
  • Whether the trial judge's directions were inadequate because they failed to warn the jury sufficiently that the prosecution case rested wholly on the complainant's evidence
  • Whether the absence of good character evidence and good character directions occasioned a miscarriage of justice, in circumstances where trial counsel chose not to lead that evidence as a matter of tactics
  • Whether Rule 4 of the Criminal Appeal Rules applied to preclude the second and third grounds, given that trial counsel had not sought the relevant directions

Decision

Unreasonable verdict (Ground 1): The Court found it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The complainant made an early complaint to more than one person and was medically examined the day after the alleged assault. The jury had the advantage of observing the complainant give evidence and plainly accepted her as a truthful and reliable witness. The various criticisms of her evidence had been fully ventilated in cross-examination, and the Court was not persuaded that a reasonable doubt had been established on the whole of the evidence.

Inadequacy of warning (Ground 2): The trial judge gave directions that were described as strong and clear on the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the complainant's evidence. The Court applied Rule 4 of the Criminal Appeal Rules, noting that trial counsel had not sought any further or different direction. The Court found no miscarriage of justice arising from the directions as given.

Absence of good character evidence and directions (Ground 3): The Court accepted evidence from trial counsel that proper consideration had been given to whether to call good character evidence, and that a deliberate tactical decision had been made not to do so. The appellant had been informed of the reasons for that decision. The Court distinguished this case from R v D (1996), where the absence of character evidence had been critical to a credibility contest in circumstances lacking any corroborative material. Here, the prosecution case was stronger, and the Court was not satisfied that the outcome would have differed had character evidence been led.

Orders Made

• The appeal be dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction resting on a single complainant's evidence is not unreasonable merely because the case is a word-against-word contest, provided all relevant matters were left to the jury and the evidence as a whole supported the verdicts.
  • A trial judge's failure to give a particular direction does not automatically constitute a miscarriage of justice where trial counsel did not request the direction and Rule 4 of the Criminal Appeal Rules applies; the absence of the direction must be shown to have caused actual injustice.
  • Where trial counsel makes a deliberate, considered tactical decision not to lead good character evidence and informs the client of that decision, the resulting absence of good character directions will not ordinarily found a ground of appeal on the basis of miscarriage of justice.
  • The Court reaffirmed that the jury's advantage in seeing and hearing witnesses, particularly a complainant, carries significant weight when an appellate court assesses whether a verdict is unreasonable.
  • Sufficient corroborating circumstances, including early complaint to multiple people and a next-day medical examination, can distinguish a case from one where credibility alone is in issue and the absence of character evidence might have changed the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW)
- Police Act 1990 (NSW)

Cases:
- Attwood v The Queen (1960) 102 CLR 353
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v D (1996) 86 A Crim R 41
- R v Murray (1987) 11 NSWLR 12
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Ward v The Queen [2013] NSWCCA 46