Day v The Queen

Case [2021] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DAY v THE QUEEN

[2021] SASCA 38

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)

21 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Following a trial “by the judge alone” pursuant to s 7 of the Juries Act 1927 (SA), the appellant was convicted of one count of maintaining an unlawful sexual relationship with a person under the age of 17 years. The offending the subject of the conviction occurred between 1 January 1985 and 31 December 1987 when the complaint was aged between 10 and 13 years and the appellant was in his forties. The appellant was sentenced to 12 years imprisonment with a non-parole period of eight years.

Evidence of two interactions between the appellant and the complainant long after the initial offending was led from the complainant at trial, without objection. The first concerned an interaction between the complainant and the appellant outside a church more than a decade after the alleged offending. The second concerned a pretext call that occurred more than 30 years after the alleged offending.

The appellant appealed against both conviction and sentence. In relation to the conviction appeal, the appellant contended that the trial Judge impermissibly used out of court statements to bolster the credibility of the complainant.

As to the sentence appeal, the appellant contended that the non-parole period should have been no more than one half of the head sentence.

Held (by the Court), refusing permission to appeal and dismissing the appeal:

1.      Where evidence is relevant beyond “mere” credibility, because it may rationally affect the   assessment of the probability of the existence of a fact in issue, it does not offend the “bolster    rule”.

2.      The evidence concerning the pretext call was admissible as disclosing evidence of     admissions, or at least implied admissions, made by the appellant regarding inappropriate     conduct, including conduct of a sexual nature, arising in the course of the music teacher and     pupil relationship.

3.      The trial Judge’s use of the evidence of the altercation outside the church as informing the   context of the pretext call was a permissible use of that evidence. The reasons of the trial      Judge were not inadequate.

4. The trial Judge did not err in the exercise of the sentencing discretion. The head sentence accorded with R v D (1997) 69 SASR 413, and fixing the non-parole period at two-thirds of the head sentence was within the range of one half to three-quarters of the head sentence specified in a number of recent decisions of the Court of Criminal Appeal.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158(2); Juries Act 1927 (SA) s 7; Sentencing…

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AGLC
Day v The Queen [2021] SASCA 38
Case
[2021] SASCA 38
Decision Date

CaseChat Overview and Summary

The appellant, Day, sought leave to appeal against his conviction and sentence for offences including indecent assault and sexual intercourse. The prosecution's case involved allegations of sexual misconduct by the appellant, a music teacher, against a pupil, TC, during piano lessons. The appeal was heard by the Court.

The legal issues before the Court concerned the admissibility of certain evidence, specifically a "pretext call" made by the complainant to the appellant, and whether the trial judge had adequately explained the relevant legal principles to the jury. The Court was also required to determine whether the trial judge had erred in the exercise of their sentencing discretion.

The Court held that evidence is admissible if it rationally affects the assessment of the probability of a fact in issue, even if it relates to credibility, and therefore does not offend the "bolster rule". The pretext call was deemed admissible as it contained admissions, or at least implied admissions, by the appellant concerning inappropriate conduct of a sexual nature within the teacher-pupil relationship. The trial judge's use of evidence of an altercation outside a church to provide context for the pretext call was also considered permissible, and the judge's reasons were found not to be inadequate.

Permission to appeal against sentence was refused, and the appeal was dismissed. The Court found that the head sentence imposed was consistent with established precedent, and the non-parole period was within the range commonly applied by the Court of Criminal Appeal.

Orders

Orders of the court

Held (by the Court), refusing permission to appeal and dismissing the appeal:

1. Where evidence is relevant beyond “mere” credibility, because it may rationally affect the assessment of the probability of the existence of a fact in issue, it does not offend the “bolster rule”.

2. The evidence concerning the pretext call was admissible as disclosing evidence of admissions, or at least implied admissions, made by the appellant regarding inappropriate conduct, including conduct of a sexual nature, arising in the course of the music teacher and pupil relationship.

3. The trial Judge’s use of the evidence of the altercation outside the church as informing the context of the pretext call was a permissible use of that evidence. The reasons of the trial Judge were not inadequate.

4. The trial Judge did not err in the exercise of the sentencing discretion. The head sentence accorded with R v D (1997) 69 SASR 413, and fixing the non-parole period at two-thirds of the head sentence was within the range of one half to three-quarters of the head sentence specified in a number of recent decisions of the Court of Criminal Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial Judge summarised his factual findings concerning the first count involving TC in the following manner:[5][5] R v MWD, [279].1. In 1985, the defendant gave piano lessons to TC at his premises located at the corner of Glen Osmond Road and Kenilworth Road, Parkside, South Australia. There was a relationship of teacher and pupil established from the outset and this relationship continued from that time when lessons were held.2. The piano lessons occurred in the first-floor piano room which was at the top of the stairs and to the left. The lessons were given on an upright piano. When giving the lessons to TC, the defendant sat either on a duet piano stool (on which TC also sat) or on a separate seat to the right of the piano stool.3. When giving lessons to TC, the defendant consistently made physical contact with her on her right side. From the commencement of lessons TC complained to her parents about the physical contact made by the defendant but TC was not aware of any action taken by them as a result.4. When demonstrating techniques to, or directing TC, the defendant would lean over her from her right-hand side. When doing so, he rested his hand on the back left-hand side of the piano stool and this then progressed to touching her under and on her bottom. This was an act of indecent assault.5. The defendant then commenced to touch TC on her right knee. He rubbed her on her right knee. His hand progressed to rubbing up her right leg under her school uniform.6. The rubbing on the right leg of TC then progressed to rubbing TC over the outside of her underwear under her skirt. This was an act of indecent assault. He rubbed his fingers over her labia and vagina area. He then rubbed her labia and vagina inside of her underwear. He used one or two fingers. His hand moved in a stroking motion. He used his left hand initially and later his right hand. This conduct caused TC to cry. As there was no act of penetration and there was only touching, this was an act of indecent assault. 7. After a period of time, the defendant took the hand of TC and held it upon the groin area of his trousers. He had an erect penis at the time. Holding the hand of TC, he rubbed it up and down his erect penis, and squeezed her hand when so doing. This was an act of gross indecency.8. This conduct caused TC to cry. The defendant told her to “shoosh” and gave her a tissue.9. The defendant then unzipped his pants and put the hand of TC upon his erect penis. He squeezed her hand upon his erect penis and then moved her hand up and down his penis. This conduct caused distress to TC and she cried as a result. The defendant told her “shoosh” and gave her tissues. This was an act of gross indecency.10. In later lessons, the defendant forced TC onto the floor, with her back to the piano. Her feet were stuck under the piano pedals. The defendant was sitting upon the piano stool. He unzipped his trousers and removed his erect penis from his pants. He put his hands on the back of TC’s head and pushed her face towards his erect penis. He wiped the tip of his penis around her mouth, lips and on her face. When doing so, the defendant held the hands of TC either on his legs or up on the stool. He caused his penis to penetrate the mouth of TC. This was an act of sexual intercourse.11. In the course and at the end of these actions, the accused told TC not to speak of these events, that she would get in trouble if she told anybody and what would her parents say. TC understood these references by the accused to the status of her father as a church minister, the status of their family in that context and in the context of the broader church community. This terrified and upset TC who cried as a result.12. TC did not inform her parents of this conduct of the defendant as a consequence of the warnings that he gave her.13. The piano lessons of TC with the defendant ended in the first weeks of term three of the three term scholastic year. By that point she had joined a school choir.The impugned evidence, the opening and the pretext call

Decision

Reasons for decision

In our opinion, permission to appeal against sentence must be refused. Conclusion The appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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