Sexton v The Queen

Case [2022] SASCA 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SEXTON v THE QUEEN

[2022] SASCA 73

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stanley)

28 July 2022

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

The appellant was charged with sexual offending against three complainants on the same Information — PH, ND and EK. Following a trial by jury, he was found guilty of two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act1935 (SA) in respect of complainants PH and ND. He was acquitted of the charges in respect of the third complainant, EK.

The appellant appeals against his convictions. The appellant complains that the trial Judge erred in not ordering a separate trial in respect of the complainants (Ground 1), or alternatively, that the trial Judge erred in her directions to the jury in relation to the cross-admissibility of the evidence of each of the complainants (Ground 1A). The appellant also complains that the trial Judge erred in permitting the complainants ND and EK to give inadmissible evidence about what each complainant said to the other (the University conversation) to rebut collusion, in circumstances where it was not to be suggested that they had colluded (Ground 2). Alternatively, the appellant contends the trial Judge erred in her directions to the jury in relation to that evidence (Ground 2A). The appellant also alleges that the trial Judge erred in directing the jury that evidence that the appellant had rubbed out an entry in his 1989–90 diary (the casino erasure) could amount to evidence of a consciousness of guilt in respect of the charges as they related to the complainant PH (Ground 3). Alternatively, the appellant contends the trial Judge erred in her directions as to the use of that evidence (Ground 4). Finally, the appellant complains that the trial Judge erred in failing to adequately direct the jury on how they should use the appellant’s statements to police in his record of interview and evidence, should they have found any of it to be untrue (Ground 5).

Held, per the Court, refusing permission to appeal on Grounds 1A, 2A and 5 and dismissing the appeal:

1.As to Ground 1, the trial Judge was correct to find that the evidence of the three complainants was cross-admissible under s 34P(2)(a) of the Evidence Act 1929 (SA) on a similarity of account or improbability basis. The trial Judge did not…

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Sexton v The Queen [2022] SASCA 73
Case
[2022] SASCA 73
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CaseChat Overview and Summary

The appellant, Sexton, was convicted by a jury of two counts of maintaining an unlawful sexual relationship with a child, relating to complainants PH and ND. He was acquitted of charges concerning complainant EK. The alleged offending occurred between 1989 and 1993, with allegations first reported to police in 2015. The appellant sought separate trials for the complainants' allegations, which was dismissed by the trial judge. An appeal was lodged on several grounds, including issues relating to the joinder of charges and the adequacy of the trial judge's directions to the jury.

The central legal issues before the appellate court concerned whether the trial judge erred in refusing the appellant's application for separate trials, and whether the summing up to the jury adequately addressed the defence's arguments regarding the lack of corroboration and the alleged lack of similarity between the complainants' accounts, which was crucial for the prosecution's improbability reasoning. The court also considered grounds relating to the admissibility of certain evidence, specifically an alleged erasure from the appellant's diary.

The court found that the trial judge's directions regarding improbability reasoning were adequate, noting that the jury would have been aware of the arguments presented by both the prosecution and the defence on the similarity of the complainants' evidence. The court was satisfied that the jury understood the relevance and weight of this evidence. The court also addressed the defence's contention that their case was not adequately put to the jury, concluding that the trial judge had articulated the relevant issues and the jury had been reminded of both sides of the argument.

Permission to appeal was granted on several grounds, and the court considered the referred question of permission to appeal on another ground. The court ultimately found no error in the trial judge's directions regarding the defence case and improbability reasoning.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal was granted with respect to Grounds 1, 2, 3 and 4. The question of permission to appeal with respect to Ground 5 was referred to this Court for consideration. Permission to appeal is required on Grounds 1A and 2A. Background The alleged offending occurred from 1989 to 1993. At all relevant times, the appellant was the singing teacher of each complainant. The allegations were first reported to police by ND and EK in 2015. PH subsequently reported her allegations to police. The appellant was interviewed by police in relation to the allegations made by ND and EK on 29 April 2017. Count 1 alleged an offence of MUSR with PH during 1989. The particulars of the charge were that between 1 February 1989 and 31 December 1989 at Adelaide and other places, the appellant maintained an unlawful sexual relationship with PH, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: kissing her on the mouth on more than one occasion; and inserting his penis into her vagina on more than one occasion. Counts 2 to 5 were charged in the alternative to Count 1 and alleged specific sexual offences committed by the appellant against PH. Count 6 alleged an offence of MUSR with ND. The particulars of the charge were that between 1 January 1990 and 31 December 1993 at Glenelg and other places, the appellant maintained an unlawful sexual relationship with ND, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely: kissing her on the mouth on more than one occasion; touching her vagina on more than one occasion; inserting his penis into her mouth; and inserting his penis into her vagina on more than one occasion. Counts 7 to 14 were charged in the alternative to Count 6 and alleged specific sexual offences committed by the appellant against ND. Counts 15, 16 and 17 alleged specific sexual offences committed by the appellant against EK during 1991 or 1992. Counts 15 and 16 were alleged acts of indecent assault (kissing on the lips and chest) which were said to have occurred on the same occasion in the appellant’s vehicle. Count 17 was an act of unlawful sexual intercourse (digital penetration of her vagina) which was alleged to have occurred on a separate occasion, a couple of weeks later. The appellant made an application for separate trials prior to the commencement of the trial. The application was dismissed by the trial Judge in February 2020. The matter proceeded to trial by jury in February 2021. There had been an earlier trial which was aborted due to the COVID-19 pandemic. The appellant was convicted of two counts of MUSR (Count 1 relating to PH and Count 6 relating to ND). He was acquitted of Counts 15, 16 and 17 which related to EK. The evidence of the complainant PH At the time of giving evidence, PH was 47 years of age. She attended Wirreanda High School in years 8 to 12 from 1985 to 1989. She came to know the appellant through her music studies in years 11 and 12.

Evidence

Evidence Before The Court

The matter proceeded to trial by jury in February 2021. There had been an earlier trial which was aborted due to the COVID-19 pandemic. The appellant was convicted of two counts of MUSR (Count 1 relating to PH and Count 6 relating to ND). He was acquitted of Counts 15, 16 and 17 which related to EK. The evidence of the complainant PH At the time of giving evidence, PH was 47 years of age. She attended Wirreanda High School in years 8 to 12 from 1985 to 1989. She came to know the appellant through her music studies in years 11 and 12. In year 11, the appellant accompanied PH’s first singing teacher, Ms Naomi Coldwell, at her lessons as a practical component for his teaching qualification. PH later requested that the appellant become her sole singing teacher. She received lessons from the appellant at school in 1988. In 1989, when PH was in year 12, she received weekly singing lessons from the appellant in the city. PH said that in the beginning of year 12, there were several different rehearsal spaces used for her singing lessons, but eventually they were routinely held in the music practice rooms of the University of Adelaide (the ‘University’).Count 2 – Indecent Assault PH said once she started having singing lessons with the appellant away from her school campus, she felt that the appellant began giving her special attention. She said she was openly flirting with him and he responded in kind to her. PH said she was aware that it had been the appellant’s birthday and so she bought the appellant a present of baby food as a joke. On this occasion, PH said the appellant kissed her on the lips as she was leaving her lesson (Count 2). PH said the kiss took place in a rehearsal room at a location in the city, not at the University. She said it was one of the first rehearsal rooms they went to that year. PH alleged this kissing incident occurred shortly before Valentine’s Day in 1989. PH dated this offending by reference to Valentine’s Day as she recalled rejecting Mr Nigel Randall, a school friend, who had brought her flowers and a card and asked her to be his ‘valentine’, on the basis that she had just started seeing the appellant. Mr Randall gave evidence at trial. His uncontested evidence was that he gave PH a gift on Valentine’s Day 1989 and PH responded by telling him that she was not interested in him romantically. The appellant’s date of birth is 10 August. In cross-examination, PH said she thought his birthday was earlier as she recalled giving him the baby food much earlier in the year. PH confirmed that the kiss the subject of Count 2 took place before Valentine’s Day 1989. Also relevant to Count 2 was evidence that the appellant had erased an entry reading ‘pick up from casino corner’ from his diary, which was alongside the entry ‘9 February 1989 2pm [PH] lesson’ (the ‘casino erasure’).[1] The appellant admitted to rubbing out the entry but said that those words did not relate to PH. He said it was his practice to erase entries from his diary about events that did not eventuate. The casino erasure is the subject of Appeal Grounds 3 and 4. Count 3 – Unlawful sexual intercourse[1] Trial Exhibit D34.

Decision

Reasons for decision

The trial Judge then briefly summarises the prosecution and defence cases. As to the defence case, her Honour said:Ladies and gentlemen, the defence case is that Mr Sexton did not commit any of the sexual offences with which he is charged. They say his evidence is comprehensive and he has done his best to tell you about the dates and time when things are said to have occurred. They say his evidence has created a reasonable doubt at the very least in relation to the allegations. However, they go further and say even if you do not take that view, when you return to consider the evidence of the prosecution witnesses, you should have a reasonable doubt in relation to the allegations made by the individual complainants because of the errors in their evidence and the intrinsic unlikelihood of their accounts. They say in those circumstances, the process of reasoning in relation to the improbability of these accounts being imagined or fabricated has no work to do.Even if it does, they say, there is no pattern in the allegations that would enable you to draw the conclusion for which the prosecution argue. They say you should find the accused not guilty of each of the charges.(emphasis added) The trial Judge in summarising the closing addresses once again returned to their respective arguments regarding improbability reasoning, albeit with an emphasis on defence counsel’s arguments with respect to collusion and contamination rather than the absence of relevant similarities in the complainants’ evidence. The trial Judge summarised the complainants’ evidence in detail for the jury. The presence or absence of similarities upon which the improbability reasoning depended could not have been overlooked by the jury, nor its relevance or weight misunderstood. Each counsel also addressed the jury extensively on that topic. Accordingly, we are satisfied the directions were adequate and the jury required no further assistance.(b) The defence case was not adequately put to the jury The appellant contends it was important for the jury to be reminded of the respective arguments of both parties on the factual question of whether the accounts of the three complainants were in fact so similar as to make it improbable that they independently concocted those versions. The appellant complains that the trial Judge did not adequately put the defence case on this issue. The appellant complains that the trial Judge did not refer to defence counsel’s submission that there was no material similarity of account between the complainants’ evidence which could support improbability reasoning. The appellant submits the jury was asked to consider whether relevant similarities were present in the versions of the three complainants, having only been reminded of one side of the argument on that question. We do not accept that submission. The trial Judge articulated the relevant issues for the jury as to the similarity of account evidence throughout her summing up, including in the passage of her summing up (set out earlier) in which her Honour explained the process the jury were required to undertake in relation to improbability reasoning.

Ratio Decidendi

Legal Principle Established

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