Sexton v The Queen
[2022] SASCA 73
•28 July 2022
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 err in finding that the permissible use could be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of misuse. The trial Judge was correct to dismiss the application for separate trials of the charges relating to each complainant.
2.As to Ground 1A, the trial Judge did not err in her directions in relation to improbability reasoning. The defence case as to the lack of similarity in each complainant’s account was adequately put to the jury. The trial Judge did not err in failing to direct the jury on how they could use the similarity account evidence if they did not accept the evidence of one complainant. The trial Judge’s direction to the jury that they could not rely upon improbability reasoning unless they accepted the evidence of all three complainants was favourable to the appellant.
3.As to Ground 2, the evidence of the University conversation was admissible. It did not engage the exclusionary rules in Clements. The challenged evidence was sufficiently probative to outweigh any prejudicial effect.
4.As to Ground 2A, the trial Judge did not err in her directions as to the use of the University conversation nor confine its relevance to the question of improbability reasoning and collusion and contamination.
5.As to Ground 3, the casino erasure evidence was capable of being used as evidence of the appellant’s consciousness of guilt. The appellant was not denied procedural fairness. The prosecutor put defence counsel on notice prior to his closing address that the prosecution relied on the casino erasure as probative of guilt.
6.As to Ground 4, the trial Judge’s directions that the casino erasure was evidence of a consciousness of guilt in relation to Count 1 were not erroneous.
7.As to Ground 5, there was no risk of the jury reasoning to guilt from a conclusion that the appellant lied in his evidence about ND’s conduct. It is not reasonably arguable that either a Zoneff direction was required or that the absence of such a direction resulted in a miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) ss 50, 278; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34M, 34P, referred to.
Day v The Queen (2021) 289 A Crim R 346; Leonard (A Pseudonym) v The Queen [2021] VSCA 172; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; Murdoch (A Pseudonym) v R [2013] VSCA 272; Phillips v The Queen (2006) 225 CLR 303; R v C, CA [2013] SASCFC 137; R v Ciantar (2006) 16 VR 26; R v Harris [1992] 3623; R v M, BJ (2011) 110 SASR 1; R v M, DV (2019) 133 SASR 470; R v Martin (No 2) (1997) 68 SASR 419; R v N, SH [2010] SASCFC 74; R v P, TJ [2019] SASCFC 114; R v Quist (2017) 127 SASR 471; R v S, TA (No 2) [2021] SADC 34; Rollond v The Queen (2020) 137 SASR 519; Sutton v The Queen (1984) 152 CLR 528; The Nominal Defendant v Clements (1960) 104 CLR 476; The Queen v Bauer (A Pseudonym) (2018) 266 CLR 56; The Queen v Cox and Sadler (Ruling No. 8) [2006] VSC 333; The Queen v McDonald (1979) 21 SASR 198; The Queen v Soma (2003) 212 CLR 299; Zoneff v The Queen (2000) 200 CLR 234, considered.
SEXTON v THE QUEEN
[2022] SASCA 73Court of Appeal – Criminal: Livesey P, David JA and Stanley AJA
THE COURT:
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 (‘MUSR’), contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), in respect of the 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 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 contends that the trial Judge erred in directing the jury that evidence that the appellant had rubbed out an entry in his 1989–90 diary 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 in court, should they have found any of them to be untrue (Ground 5).
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.
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.
PH said that about one week later, after a singing lesson, the appellant kissed her again and they had penile/vaginal sexual intercourse (Count 3). She said this occurred in an old converted church. PH said that on this occasion, the appellant introduced his penis to her as ‘Mr Percy’. She said the appellant referred to his penis as ‘Percy’ on this occasion only.
However, in cross-examination, PH agreed that in the aborted trial she did not give evidence about the appellant referring to his penis as ‘Percy’. She agreed that she had read a news report that mentioned the appellant referring to his penis as Percy, and that caused her to have a ‘light bulb moment’ during which she recalled that having happened to her.
PH said after the incident the subject of Count 3, the appellant continued to provide her with singing lessons on a weekly basis. She said he continued to have penile/vaginal sexual intercourse with her after her singing lessons over the following six or seven months.
In evidence, the appellant agreed that he had singing lessons with PH at an old converted church in Norwood on 15 and 22 June 1989. He said on the first occasion, when they arrived, and for quite some time during the lesson, there were other people upstairs. The appellant denied any sexual activity with PH during those singing lessons.
Count 4 – Unlawful sexual intercourse
PH said that she had sexual intercourse with the appellant at the University. When asked about the first time that occurred, she recalled an occasion in a smaller rehearsal room, where she and the appellant had sexual intercourse on a tabletop after a singing lesson (Count 4). She recalled the appellant locking the door before they had sexual intercourse.
In evidence, the appellant denied this conduct. The appellant said the rooms at the University were not private and there were always other people in the vicinity. He said he never locked the doors of the practice rooms while he was teaching PH. He said there would often be interruptions during his lessons with PH as people would come in and out of the practice rooms to get instruments or music.
Count 5 – Unlawful sexual intercourse
PH said she had sexual intercourse with the appellant at a location other than a music rehearsal space only once. PH said this offending occurred a couple of months after the appellant started having sexual contact with her. The appellant told her Mr Peter Deane (a colleague) was away on holidays and that he had the keys to his house and they could go there. She said one afternoon the appellant picked her up from the city and they travelled about 10 minutes to a house. They had a singing lesson in the living room. Thereafter, they went into one of the bedrooms and had penile/vaginal sexual intercourse in the bed (Count 5). PH said that she had a recollection of this occasion because it was the only time they had sexual intercourse in a bed. She said they probably spent a little over an hour at the house.
At trial, it was an agreed fact that Mr Deane and his partner, Ms Olivia Pawson, were overseas for about three months from 17 April to 15 July 1989. Ms Pawson, in her evidence, said that she did not organise for any person to occupy or check on their house at Mile End while they were away. Ms Pawson said there was a spare key, but she could not say for sure where it was kept as Mr Deane stored the keys and she never had to use them.
Ms Pawson said the appellant attended their house no more than three times. She was reasonably confident the appellant knew that they were going on holiday, but she did not think the appellant knew that the house would be unoccupied. She also did not think the appellant was aware of the location of the spare keys to the house.
In his evidence, the appellant denied this offending. He said he never took PH to Mr Deane’s house for a singing lesson.
PH said her parents separated halfway through, or towards the end of,
year 12. She said she told the appellant that her parents had split up and on this occasion she and the appellant did not have sexual intercourse during or after her singing lesson. PH said that at her next singing lesson, the appellant said he felt it was time to re-establish their relationship on a professional footing. She said this occurred while she was still in year 12 and in the lead-up to her final singing exam.
PH said that she continued to have one on one singing lessons with the appellant after that conversation for about six weeks before her exams. She said she did not have sexual intercourse with the appellant again and she could not recall any further kissing. PH estimated that their sexual relationship ended in September 1989.
The evidence of the complainant ND
ND attended Woodlands Church of England Girls Grammar School (‘Woodlands’) between 1989 and 1993. At the time of giving evidence, ND was aged 44 years. In 1989, at the age of 12 and when in year 8, ND joined the school choir. ND met the appellant whilst auditioning for that choir.
ND said that during year 9, in choir rehearsals, she would try and catch the appellant’s eye and smile. She said she would also try to talk to him. ND said she was doing her best to be noticed by the appellant. She said the appellant did not initially respond to her efforts to get his attention.
In 1990, when ND was aged 13 and in year 9, she said she met the appellant at the Festival Theatre one night. She said she had gone to see an opera and had arranged to meet him afterwards. She said she went to the stage door and waited there until the appellant came out. Thereafter, he took her to the Space Bar (a bar in the Festival Centre precinct) where they had a drink together; she just had a lemonade or a similar non-alcoholic drink. ND said this occurred before any sexual contact between them. In cross-examination, ND said this meeting occurred between 1990 and 1991, but she did not know how old she was when it occurred.
In her evidence, ND said in 1990, when she was in year 9, she attended a choir eisteddfod in Ballarat. It was agreed that this trip was from 28 August to 31 August 1990. She said they drove to Ballarat in a school bus, and on the bus, she sat behind the appellant. She said the appellant was wearing a hat, which she took off and wore. She said she gave a student a shoulder rub and then gave the appellant a shoulder rub. She said the appellant did not do anything in response. She said at that stage, nothing sexual had occurred between them.
ND said that after attending the 1990 Ballarat Eisteddfod she continued to participate in the choir at Woodlands and see the appellant. She said she continued to conduct herself in the same flirtatious way towards the appellant. He continued to not say or do anything in response.
In 1991, ND was 14 years old and in year 10. By year 10, she said she had begun ringing the appellant’s house and speaking to him on the telephone. She said she would call the appellant’s home weekly or every second week. She recalled one occasion when the appellant telephoned her at her home when she was away sick from school.
ND said in 1991 she was staying with her aunt and uncle in Western Australia during the Christmas holiday period and the appellant telephoned their house and spoke to her. She could not remember how the appellant had obtained the telephone number. In cross-examination, she agreed it was possible that she had given him the number.
Count 7 – Indecent assault
ND said there was an occasion when the appellant dropped her to a friend’s (Ms Kirsty Iversen) birthday party at the Ice Arena in Thebarton. She said when they arrived at the Ice Arena, the appellant stopped his car slightly past the entry doors, down a side street. She said when she unbuckled her seatbelt, the appellant leaned over and kissed her (Count 7). This was the first time they had kissed. She said the appellant told her not to tell anyone at the party.
ND said this offending took place in the afternoon, on a weekend, sometime in 1991 when she was in year 10. In cross-examination, she said she might have been 13 or 14 years old.
Ms Iversen gave evidence. She said that she had a birthday party at the Ice Arena. She could not remember whether it was her 14th birthday (around 16 October 1990) or 15th birthday (around 16 October 1991). In cross-examination, Ms Iversen said it possibly could have been her 16th birthday (around 16 October 1992). She said she thought it was on a Saturday or possibly, a Sunday. Ms Iversen confirmed ND attended her party.
In his record of interview, the appellant said he may have dropped ND into the city after a rehearsal, but he denied having ever dropped her to the Ice Arena. The appellant denied kissing ND at the Ice Arena.
In evidence, the appellant was taken through his diaries for the relevant weekends in October 1990 and 1991. The appellant gave evidence that Saturday, 13 October 1990 was his wedding anniversary, and on that day, his diary said he had ‘lunch with Sue’. He said there were also two performances of ‘Woman in Black’ that evening; one commencing at 6:30pm and the other at 8pm. He said he was a dancer and singer in that production. The appellant said on that day he finished lunch with his wife and then went to the Festival Theatre in time for the warm-up for the production. He said he was usually at the theatre about an hour and a half before those performances.
The appellant said in the afternoon on Sunday, 14 October 1990 there was a rehearsal starting at 3pm for the Woodlands choir concert at Memorial Hall. He said he would have finished at Woodlands at 5:30pm. He said there was a rehearsal for a concert he was conducting with the Corinthian Singers at 7pm and a meeting with the committee.
In relation to Saturday, 20 October 1990, the appellant said he had a performance of ‘Samson and Delilah’ at the Festival Theatre in the evening, of which he was a member of the chorus. This evidence corresponded with the performance schedule of Samson and Delilah.[2] The appellant said it was an 8pm performance, but he would have been at the theatre no later than 7pm. The appellant was not able to say what he was doing during the day.
[2] Trial Exhibit D38.
The appellant gave evidence that on the weekend of 12 and 13 October 1991 he was in Melbourne.
There was a reference, ‘Complete Commission’, in the appellant’s diary for 19 and 20 October 1991.[3] He said he had been commissioned to write the major work for the 1992 Music Festival. He said he was in Birdwood all weekend, apart from the Sunday night, composing that commission which was to be delivered on the Monday. He said on the Sunday night he went to a Corinthian Singers rehearsal in the city.
Count 8 – Indecent assault
[3] Trial Exhibit D40.
Following the incident at the Ice Arena, ND said one day she and the appellant went on a picnic. She said the appellant picked her up from the city and they drove to the Clarendon area. ND said she would have been in year 9 or 10 and it would have been in the same year as the Ice Arena incident, which she estimated to be in 1991.
ND said that she and the appellant had a picnic, during which the appellant kissed her. He also put his hand into her underpants and touched her vagina (Count 8).
In cross-examination, ND estimated this conduct took place in 1991, when she was 14 years old and in year 10. She said the picnic could not have been in 1992, when she was aged 15, because she had lost her virginity (to the appellant) by that age. She said most of the sexual acts between herself and the appellant happened when she was in year 10.
ND agreed that in her first statement to the police in 2015, she estimated the picnic took place around March or April 1990, when she was in year 9, because it was before their first ‘full’ sexual encounter and she remembered it being nice weather. In cross-examination, ND agreed she made this statement, but said it was not accurate and she was confused about the dates when she provided it.
In his record of interview and evidence, the appellant said he never went on a picnic with ND and denied the alleged conduct.
Count 9 – Indecent assault
ND said she met the appellant at the Festival Theatre at a lunchtime in 1991, when she was in year 10. She believed she was on school holidays at the time. She said they met at the stage door and he took her inside the Festival Theatre. She said they sat in the auditorium on the ground floor, near the back of the theatre in the audience, where they watched a rehearsal and kissed (Count 9). ND said no one was seated around them when she and the appellant kissed. She thought the appellant was working at the rehearsal.
In cross-examination, when asked how old she was at the time of this incident, ND said she was 13, 14 or 15 but she could not be more specific. She estimated that it would have been in 1991.
In his record of interview and evidence, the appellant denied this allegation. In his record of interview, he said the suggestion that he would kiss ND in a room of people who knew him was ‘ridiculous’. In evidence, the appellant denied ever taking ND to a rehearsal at the Festival Theatre.
ND said the appellant gave her a gift and a letter once at the end of the school year. She said the letter was very romantic and it said that she had a long kissable neck and other flattering comments. She said at the end of the letter, the appellant said to burn it as soon as she read it. She said by the time she received the letter, the indecent assaults the subject of Counts 7, 8 and 9 had taken place. She was not sure whether they had engaged in sexual intercourse yet. She said at the same time, the appellant gave her a glass crystal-type vase from the Jam Factory. ND said that she bought the appellant aftershave and braces and gave them to him on the same occasion. She said this was at the end of term before Christmas.
ND said the appellant kissed her in the car every time he would take her home from any late-night event. She said that occurred eight or so times, in addition to the three charged occasions the subject of Counts 7, 8 and 9.
ND said she recalled a telephone conversation with the appellant where he said he had spilt hot oil on his penis. In cross-examination, she said she could not recall seeing pink healed marks on the appellant’s penis. ND agreed in her statement to the police on 13 July 2015, she said she thought she might have seen some pink healed marks on the appellant’s penis on one of the occasions they had sexual intercourse. In cross-examination, ND agreed she may not have seen any pink marks on the appellant’s penis.
ND said that she had sexual intercourse with the appellant three times while she was a student at Woodlands.
Count 10 – Unlawful sexual intercourse
As to the first occasion of sexual intercourse between the appellant and ND, ND believed it was in 1991 when she was 14 years old and while she was in year 10. ND said she had the day off from school and she caught a tram to Glenelg. She said the appellant told her that he had a room that he kept for writing and that he rented the apartment. She said the appellant picked her up in his car and they drove to an area she did not know or recognise. ND said they went to an apartment block and the apartment they went into was on the first floor. She said the appellant had a key to the apartment.
ND said she and the appellant lay down on the bed, kissed and then the appellant stood up, took his pants down and she saw his penis for the first time. She said the appellant said, ‘I would like you to meet Percy’. She said the appellant lay on top of her and they had penile/vaginal sexual intercourse (Count 10).
ND said this incident occurred one or two months after the picnic incident.
In cross-examination, ND said the incident occurred three months or so after the picnic. ND agreed that in her statement in 2015 she said, ‘I remember that I first had sex with Tim in about June or July of 1990’ and ‘I remember thinking that I was 13-and-a-half and I think it was school holidays’, and ‘[i]t was definitely a weekday and I wasn’t at school’. She agreed she told police she lost her virginity when she was 13. She said she gave that statement at a point in time when she did not know the date of the Ballarat Eisteddfod. ND confirmed that she was 14 years old at the time of the sexual offending in Glenelg.
ND showed the police an apartment at Unit 3, 23 Moseley Street, Glenelg. She indicated that the offending possibly took place there. She was shown a floor plan of the apartments in the complex and agreed it was the same layout as the apartment she was taken to by the appellant.
At trial, Detective Craig Heighway said there was no evidence of the appellant owning or renting any property in Glenelg. Ms Anthea Croser gave evidence that Unit 3, 23 Moseley Street, Glenelg was gifted to her by her parents in October 1993. Ms Croser said that prior to 1993, the apartment was used as a base by her family who lived rurally; otherwise, it was vacant. To her knowledge, no one other than her family used it prior to October 1993. She said from October 1993, the apartment was leased. Ms Croser said that she did not know the appellant and the unit was not leased to him between 1989 and 1993.
In his record of interview and evidence, the appellant denied this offending. In his record of interview, he said he never had a house in Glenelg. In his evidence, the appellant said he never took ND to an apartment in Glenelg and he did not know Ms Croser or her family.
Count 11 – Unlawful sexual intercourse
ND said the appellant once dropped her to her grandmother’s house in his car late at night. She could not remember if they had been at the opera or some other musical event. She said the appellant stopped his car down the road from her grandmother’s driveway. ND said she and the appellant were kissing and then she performed fellatio on the appellant in the car (Count 11).
In his record of interview and evidence, the appellant denied this conduct.
Count 12 – Unlawful sexual intercourse
ND said the next occasion she had sexual intercourse with the appellant was at his house in Birdwood. ND said this occurred several months after the first occasion of sexual intercourse at Glenelg. She said the appellant drove her to his house in the afternoon and it was still light. She said they drove into the driveway and walked through the kitchen into the lounge room. She said the appellant lifted her up and put her on the couch on her back and they had sexual intercourse (Count 12). She said that she was at the appellant’s house for no longer than 20 minutes and no-one else was home.
In his record of interview and evidence, the appellant denied the alleged offending and said ND had never been to his house at Birdwood.
Count 13 – Indecent assault
ND said that she and the appellant kissed in the office of the music centre at Woodlands (Count 13).
ND said this incident took place when she was either in year 10 and aged 14 years or in year 11 and aged 15 years. She said the appellant was by himself in the office doing some work and she went in there, closed the door and they kissed. She said it was ‘a full passionate kiss’ that lasted about one minute.
In cross-examination, ND said this kiss did not occur in the open rehearsal area at the school. She denied that the appellant told her to stop. She denied that he said her conduct in kissing him was inappropriate.
The appellant gave evidence about ND kissing and hugging him at school. He recalled a particular occasion in 1991 in the music room before a lunchtime rehearsal when ND leant forward, grabbed him in a hug, planted a kiss on him, and pushed her tongue into his mouth. He said he was stunned and that he pushed back and said ‘you cannot do that’. He said ND looked embarrassed and apologised. The appellant said no-one was in the room when the kiss occurred, but people entered the room about 20 seconds later.
The appellant said he spoke to his colleague, Ms Diane Hordern,[4] about ND. He said about a month after ND allegedly kissed him before a rehearsal, she gave him a hug in front of 14 or 15 other students. He said Ms Hordern came in the door and they made eye contact and he pointed to ND behind her back, indicating to Ms Hordern, ‘we need to do something about this’. He said after the rehearsal, Ms Hordern asked him, ‘do you want me to have a word to [ND]?’, to which he said, ‘yes, just have a quiet word to let her know that is not appropriate’. In cross-examination, ND could not recall Ms Hordern having any such conversation with her.
[4] Ms Diane Hordern is generally referred to by the name ‘Samantha’.
Ms Hordern gave evidence. She said that during the time the appellant was a choral conductor at Woodlands he did not raise any issue about ND’s behaviour towards him. She said she did not speak to ND about her behaviour regarding the appellant.
Count 14 – Unlawful sexual intercourse
ND said the last time she and the appellant had sexual intercourse was at her father’s house in Hawthorndene. ND believed this incident occurred in year 11 and she thought she was aged 14 or 15 at the time. She said she either had a study day or it was school holidays as the alleged incident occurred during the day. She said no one-else was at home; her father and stepmother were at work. She said she had arranged for the appellant to come over because she knew she would have the house to herself.
ND said they went into the lounge room and they spent some time kissing on the couch. She said they had penile/vaginal sexual intercourse (Count 14). She said that after the sexual activity, she felt the appellant was not interested in her anymore.
In his record of interview and evidence, the appellant denied the offending. In his record of interview, he said he was aware ND’s father lived in Blackwood or Hawthorndene. In evidence, he said he had never been to their house.
ND said she brought about the end of her relationship with the appellant by writing him a letter, which she gave to him on the last day of term at the end of year 11 in 1992. She said the appellant did not contact her again. ND said soon after she came back to school, the appellant was no longer the choir director.
In cross-examination, ND said she was unsure if the appellant remained at the school for the whole of her year 12. She agreed that the appellant left Woodlands some time during her last year of school, but she could not provide an exact date when he left. After looking at an article from the 1993 Woodlands yearbook,[5] ND agreed the appellant was involved with the school choir until the end of her year 12 in 1993.
[5] Trial Exhibit D16.
At trial, Ms Nicole Marshall, a former student of Woodlands, gave evidence about a particular occasion when she observed ND and the appellant together in 1993. Ms Marshall said one day she walked into the music room and saw the appellant playing the piano and ND sprawled across the piano like a cabaret singer. Other witnesses (Ms Kimberly Douglas, a student, and Ms Sari Noble, a teacher) also gave evidence about their observations of the appellant’s interactions with ND.
The evidence of the complainant EK
At the time of giving evidence, EK was 45 years old. In her youth, EK was involved in a youth opera called ‘Frankie’ for the 1987 ‘Come Out Festival’. She said the musical directors were Mr Deane and the appellant. She said the performances occurred around April 1987, when she was in year 8, and the rehearsal period commenced in January or around Christmas time 1986, at the end of year 7. She said during her involvement in Frankie, she had a reasonable amount of interaction with the appellant.
EK was a student at Woodville High School. She was involved in a special music program from halfway through year 8 in 1987, until she completed year 12 in 1991.
EK was also involved with the Senior Music Branch Choir from year 10 in 1989 to year 12 in 1991. While she was involved in the Senior Music Branch Choir, EK said she knew a member of the choir named PD (now PH). She said her time in the Senior Music Branch Choir overlapped with PH by one year. She said she did not see PH outside of choir, and when she did see PH at choir, she did not have much to do with her.
EK said the appellant would conduct the rehearsals for the Senior Music Branch Choir if Mr Deane was on holidays or otherwise unavailable. She said the appellant was very professional in the way he conducted those rehearsals. She said there was no opportunity for one on one instruction in the choir.
In cross-examination, EK could not recall whether the appellant taught the Music Branch Choir or had any involvement with teaching the choir in 1989.
EK said Mr Deane provided her with instrumental singing lessons for the special music program for all of year 10 in 1989. EK said she was not provocative or flirtatious with the appellant in 1989.
In 1990, in year 11, the appellant was EK’s specialist singing teacher. Her first lesson with the appellant was on Thursday, 22 February 1990. She said she proceeded to have weekly singing lessons with the appellant throughout year 11. She said those lessons would be held at Woodville High School, in the music department in the rehearsal rooms. She said one or two lessons might have been at her home. She said they were one on one lessons that generally lasted about an hour.
EK could not recall the appellant taking her to singing lessons at the University or anywhere else. She agreed in 1990, her singing lessons with the appellant were appropriate and professional.
EK said as time progressed, her lessons with the appellant became more intimate. EK began having singing lessons in her home at the beginning of 1991, when she commenced year 12. She said the lessons were conducted in the formal living area of her home. She said there was a hallway as a ‘buffer’ between the formal living area and the rest of the house and usually both doors would be closed so that her mother and sister would not be disturbed if they were home, which they often were during these singing lessons. She said at the end of her lessons there would usually be shoulder, arm and hand massages. EK said she would sit in front of the appellant while he was sitting on the lounge and he would massage her neck, arms, shoulders and hands.
In cross-examination, defence counsel suggested that the appellant only massaged EK’s hands on one occasion when he spoke to her about pressure points in her hands, around the time of her exams in year 12. EK disagreed with that suggestion.
EK said she sensed sexual tension with the appellant toward the second half of year 12, in 1991. She said in the first half of year 12 she had a boyfriend, and after they broke up, her exchanges with the appellant ‘felt a lot more loaded with that sexual kind of overtone’. She said during the lessons with the appellant at her home in year 12 she was flirtatious with him.
EK recalled a conversation with the appellant where he told her that when he was in year 12, he had a sexual relationship with his English teacher. She said she would talk to the appellant about things she had done on the weekend and about her boyfriend at the time. She said the appellant knew she was sexually active. EK recalled a specific conversation in 1991 where the appellant gave her detailed instructions on how to perform fellatio.
In cross-examination, EK agreed that she did not mention this conversation about how to perform fellatio in her first three statements to police. She said it had not occurred to her to do so when she gave her earlier statements. As soon as she recalled the conversation, she alerted police and provided a statement to that effect. Defence counsel put to EK that the appellant never said that, and if he did, she would have put it in her first statement. EK disagreed.
EK said she bought the appellant a silk tie for his birthday in 1991.
Counts 15 and 16 – Indecent assaults
It was an agreed fact that EK’s mother was in Bali from 9 to 30 September 1991. EK said she attended school during this time. She said her mother’s friend, Kerri, came to stay with her and her sister while their mother was away.
EK said that whilst her mother was away in Bali, she went to see the appellant’s performance one night at the Festival Theatre in the Space Theatre. She said she was dropped there by a male acquaintance, Mr Parris Dolphin, and saw the performance on her own. After the performance, EK said she waited in the foyer outside the theatre for the appellant. She said she had a conversation with him that she would need to leave to catch the last train home. She said the appellant offered to drive her home and suggested that they go for a drink at the bar in the Festival Theatre. The appellant bought her a glass of champagne, which she drank, and they chatted with the other cast members after the performance before leaving to go home.
EK said when they pulled up outside of her home, the appellant leant over and kissed her on the lips (Count 15). EK said she kissed the appellant back. She said the appellant then stroked the outside of her clothing on her legs and started kissing the top of her breasts (Count 16).
Afterwards, EK said she got angry with the appellant and said to him, ‘I just feel sorry for your wife’. She said she then got out of the car, slammed the door, and went inside. She said she did not know how the appellant responded as she had walked away.
At trial, Mr Dolphin gave evidence that he dropped a girl at a show at the Festival Theatre, but he could not remember her name. He thought this happened sometime before the end of 1991.
In cross-examination, defence counsel asked EK whether the show she attended was called ‘Delicate Balance’. EK said she believed this performance occurred later in the year than ‘Delicate Balance’. She agreed that in her statement to police on 8 December 2015 she said ‘Delicate Balance’ may have been the performance she saw, however, at the time of giving the statement she was not certain.
In cross-examination, it was suggested to EK by defence counsel that the performance she saw, in which the appellant was the pianist in 1991, was during the day, not the evening. She said that was not her recollection. She said she recalled it being in the evening as that was the reason the appellant drove her home. Defence counsel put to her that she went to see the appellant perform in a matinee show of ‘Jonah’ and thereafter she had a singing lesson with the appellant at the Festival Theatre. EK did not know if the performance she saw was Jonah and she did not recall having a singing lesson after the performance.
EK agreed that when she gave her statement to police in 2015, she said that Mr David Campbell was at the bar in the Festival Theatre that night. However, in her evidence at trial, she said Mr Campbell was not there. She said she had not in fact met Mr Campbell in 1991.
In his record of interview and evidence, the appellant denied the allegations the subject of Counts 15 and 16.
EK said that within a couple of days of the offending, she came home from school to find flowers on her front porch which she believed to be from the appellant. After receiving the flowers, EK continued to have twice weekly singing lessons with the appellant.
Count 17 – Unlawful sexual intercourse
EK said after her mother returned from Bali, she had a singing lesson at her home. After the singing lesson had finished, she and the appellant were sitting on the lounge beside each other. She said the appellant leaned over towards her, placed his hand up her skirt, pulled her underwear to one side, and then thrust his fingers inside her vagina three or four times (Count 17). Her mother was not home at the time. She could not recall any conversation between her and the appellant. She said this incident occurred about two months before her final singing exam.
In his record of interview and evidence, the appellant denied this offence.
EK said that after this incident she called the appellant and arranged that all remaining singing lessons would occur at school. According to EK’s diary, her final singing exam was on Friday, 1 November 1991. In cross-examination, EK denied having singing lessons with the appellant after her final singing exam.
EK said that at the end of year 12, after she had completed her final exams, the appellant gave her a book of sheet music of ‘The Doors’, with a note on the inside cover that said, ‘[m]ay the doors to your future always be open. Love, Tim’.
In 1992, after leaving Woodville High School, EK was in a production of ‘The Chrysalids’, of which the appellant was the main musical director. She said their interactions were purely professional. She said other than the performance of The Chrysalids, she did not have any further professional involvement with the appellant.
In cross-examination, EK could not recall whether she was involved in the performance of The Chrysalids in 1993. She was shown a flyer from ‘The Escape of the Chrysalids’. She agreed her signature on that exhibit read, ‘Thank you for the music. Love you, love [E]’.
Ground 1 – Separate trials
The appellant made an application for separate trials in respect of the three complainants. This application was dismissed. On appeal, the appellant submits that ruling was erroneous.
Section 278 of the CLCA (as it then applied) provided:[6]
[6] Section 278(2a) is now contained in s 102(6) of the Criminal Procedure Act 1921 (SA) in a materially identical form.
278—Joinder of charges
(1)Subject to the provisions of this Act, charges for two or more offences may be joined in the same information if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
(2a) Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)subject to paragraph (b), those counts are to be tried together;
(b)the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
…
The power to order separate trials in relation to an Information charging more than one sexual offence against more than one complainant depends upon the court being satisfied that the evidence of each complainant is not cross-admissible. The absence of cross-admissibility will, in many cases, be decisive, but that will not always be the case.[7]
[7] See, eg, The Queen v McDonald (1979) 21 SASR 198; R v M, BJ (2011) 110 SASR 1 at [38]–[40] per Vanstone J (with whom Sulan and White JJ agreed).
The evidence of the offending against each complainant (including any uncharged acts) was, in the trial of the offending against each other complainant, evidence of discreditable conduct. The admissibility of the evidence of one complainant in relation to the charged sexual offending against each of the other complainants was governed by s 34P of the Evidence Act 1929 (SA) (‘Evidence Act’) which relevantly provides:[8]
[8] Section 34P(2)(a) has since been amended to remove the word ‘substantially’.
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)…
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
…
The trial Judge could only order separate trials if she was satisfied that the evidence of each complainant relevant to the appellant’s charged sexual offending against them was inadmissible in proof of the charged sexual offending against each other complainant. An appellate court must determine the question of admissibility having regard to the use made of the evidence adduced at trial, not the reasons that informed the trial Judge’s decision to admit the evidence.[9]
[9] McPhillamy v The Queen (2018) 92 ALJR 1045 at [11] per Kiefel CJ, Bell, Keane and Nettle JJ; The Queen v Bauer (A Pseudonym) (2018) 266 CLR 56 at [61].
At trial, the prosecution case relied upon improbability or similarity of account reasoning. Wherever improbability reasoning is invoked, s 34P(2)(a) is engaged and evidence supporting the permissible use may only be admitted if the probative value of that evidence substantially outweighs any prejudicial effect it may have on the defendant.
In R v C, CA, Kourakis CJ explained the interrelationship between the probative value of evidence giving rise to improbability or similarity of account reasoning and the test enunciated in s 34P(2)(a) of the Evidence Act:[10]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
…
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[10] [2013] SASCFC 137 at [61], [65] (with whom Anderson J agreed).
As to the question of the degree of similarity between the evidence of multiple complainants, Kourakis CJ (with whom Kelly J agreed) in MDM v The Queen (‘MDM’) said:[11]
In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen, which had required the trial Judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi. It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.
(citations omitted)
[11] (2020) 136 SASR 360 at [14].
The appellant contends that the trial Judge’s reasoning in support of the cross-admissibility of the complainants’ evidence was ‘vague’. The appellant submits that the similarities relied upon by the trial Judge in finding that the evidence of the three complainants was cross-admissible did not meet the threshold enunciated in R v C, CA and MDM. Namely, it was not improbable that each complainant would have independently falsified their account to the same level of detail.
The appellant submits that the similarities relied upon by the trial Judge go no higher than the ‘stock in trade’ conduct of sex offenders,[12] in that the ‘grooming’ and ‘secrecy’ similarities are the sort of conduct that is common to many, if not most, allegations of a sexual nature. The appellant submits that the ‘grooming’ aspects of the alleged similarities in large related to the conduct and feelings of the complainants, rather than the conduct of the appellant. He submits that the similarities in his conduct only extend as far as his character traits in persuading each of the complainants to like him. The appellant submits that this is not the sort of compelling similarity that makes independent concoction improbable, rather it is the sort of similarity one might expect in a case of independent concoction.
[12] See, eg, Sutton v The Queen (1984) 152 CLR 528 at 535 per Gibbs CJ; Phillips v The Queen (2006) 225 CLR 303 at [56] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; R v N, SH [2010] SASCFC 74 at [54] per Sulan, Anderson and David JJ; Murdoch (A Pseudonym) v R [2013] VSCA 272 at [102] per Priest JA; Rollond v The Queen (2020) 137 SASR 519 at [44]–[45] per Peek J (with whom Hughes J agreed); Leonard (A Pseudonym) v The Queen [2021] VSCA 172 at [7] per Priest JA (with whom Kyrou JA agreed).
The appellant also submits that the ‘secrecy’ aspects of the alleged similarities were overstated by the trial Judge. For example, the rooms where the appellant was said to have both taught and sexually engaged with PH were not particularly private, with evidence that interruptions were common. In the case of ND, many of the allegations were based in public settings, for example, in his car outside the Ice Arena when the appellant dropped her to a birthday party, at a picnic in the Clarendon area, and in the Festival Theatre auditorium when other people were present. In the case of EK, it was alleged that prior to the conduct the subject of Counts 15 and 16, the appellant bought her champagne at a bar when many other people were present. Further, the only location of offending that was common between the complainants was the appellant’s car.
The appellant submits that even if one accepted that there was a similarity of account between the complainants in that the appellant sought private places to engage in sexual or indecent conduct with them, that is not the sort of similarity that would make independent concoction improbable. The appellant submits that such broad similarities, combined with the dissimilarities in the detail of the complainants’ accounts, would be expected of complainants independently concocting sexual allegations against the appellant.
Putting aside the fact that the appellant was the music teacher of the three teenage complainants, the appellant submits there is no material similarity of account between them. Further, the evidence in this case disclosed methods of alleged offending that were strikingly different between the three complainants. These differences related to the frequency of the alleged sexual contact and the nature of the alleged sexual contact. As to the frequency, PH said sexual intercourse occurred after every singing lesson, either weekly or fortnightly for six months. ND referred to a handful of occasions over the course of two to three years. EK said that sexual contact occurred on two discrete occasions about two weeks apart. As to the nature of the alleged sexual contact, PH said the appellant always engaged in penile/vaginal sexual intercourse. ND referred to penile/vaginal sexual intercourse as well as fellatio and digital masturbation. EK alleged kissing and stroking over the clothes and digital penetration.
The appellant submits the prejudicial effect the evidence of the three complainants may have had upon him was substantial.
The appellant contends that the test in s 34P(2)(a) of the Evidence Act was not met. The probative value of the evidence of any of the three complainants for the permissible use of improbability reasoning in respect of the allegations made by all three complainants did not, according to the appellant, substantially outweigh the prejudicial effect that such a use of the evidence may have had upon him. For that reason, the appellant submits the evidence of each complainant was not admissible in respect of the charges that related to the other two complainants. As such, the discretion in s 278(2a) of the CLCA (as it then applied) was enlivened. The appellant submits that, on the facts of this case, the discretion should have been exercised to order separate trials.
We are satisfied that 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 on a similarity of account basis and that the permissible use could be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. The trial Judge was correct to dismiss the application for separate trials of the charges relating to each complainant.
We are satisfied that the shared features in the complainants’ accounts renders it highly improbable that the allegations were concocted or imagined by each of them independently of the others. These similarities relate to the manner in which the appellant cultivated his relationship with each complainant and made them susceptible to his advances, the manner in which the barriers usually present in a teacher/student relationship were gradually eroded, and the circumstances surrounding the alleged offending.
The appellant was initially engaged as the singing teacher of each complainant at different schools: PH at Wirreanda High School, ND at Woodlands, and EK at Woodville High School. The teacher/student relationship between the appellant and each of the complainants gradually developed into relationships, with the hallmarks of the love affairs involving multiple occasions of sexual activity (albeit to a lesser extent in respect of EK).
Each complainant described flirting with the appellant. They each said that he responded to their flirtatious behaviour by giving them special attention and behaving in a way that led them to feel special and ‘grown-up’. In relation to PH, she said the appellant made risqué comments, or comments with an adult content. She said that she liked the sense of being treated as an equal. As to ND, she said he would catch her eye and wink at her and she ‘felt extra special’. In relation to EK, she said that as time went on the environment became more friendly, open and intimate. She said the appellant would ask her about boyfriends and he treated her as an equal and a friend.
As their relationships developed, PH and ND engaged in telephone calls with the appellant at his home. They were not discouraged by the appellant from doing so. PH said the appellant gave her his telephone number. ND said that she was not sure whether she got the appellant’s number from the appellant himself or the phone book. ND said she assumed the appellant got her home phone number from the phone book.
The appellant also openly shared personal and intimate information on sexualised topics beyond that of a normal teacher/student relationship. This was obviously designed to further erode those professional adult barriers. PH said the appellant told her that he had an affair with a teacher when he was in high school and that he eventually moved in with her and the relationship lasted several years. The appellant told ND of an occasion when he had been doing the dishes in his dressing gown and spilled hot oil down his front, including onto his penis. EK said the appellant told her that he had a sexual relationship with his teacher in year 12 and he moved in with her when he completed high school. The appellant’s confidence to PH and EK that he had an affair or sexual relationship with a teacher was arguably intended to normalise his unlawful behaviour in their eyes.
To maintain the secrecy of his romantic relationships with PH and ND, the appellant referred to his wife. The complainants PH and ND said they felt like their relationship was a ‘secret’. He told PH that he felt guilty about being married and had never done this before and that it was because the connection was so strong. ND said that the appellant told her that his wife would leave him if she heard about their relationship. As to EK, the appellant brought his wife to dinner with EK and her mother, and after the sexual contact the subjects of Counts 15 and 16, EK said, ‘I just feel sorry for your wife’. Each complainant gave evidence of the appellant having used his wife to subtly influence them to keep secret their sexual contact.
The appellant exchanged gifts or letters with each of the complainants. The appellant gave PH a photograph of himself. He gave ND a crystal vase from the Jam Factory and a letter in which he described her having a long kissable neck. He sent EK flowers and gave her a book of sheet music with a personal note written on the inside cover.
As to the alleged sexual offending, the appellant’s first sexual act with each complainant was to kiss them on the lips. In relation to PH and ND, the offending then progressed to penile/vaginal sexual intercourse in the missionary position, during which he would use a condom. The appellant introduced his penis to PH and ND as ‘Percy’ or ‘Mr Percy’. PH described the appellant using the eye of the penis to make movements like a mouth and saying playfully, ‘hello I’m Mr Percy’. ND described the appellant saying jokingly, ‘I would like you to meet Percy’.
The appellant initiated sexual contact with each complainant in secluded or isolated spaces. ND and EK both described the appellant kissing them in his car when dropping them home from various activities or events. PH said that the appellant took her to secluded places to have sexual intercourse with her, including the rehearsal rooms at the University, a converted church after a singing lesson, and Mr Deane’s home. ND described the appellant engaging in sexual contact with her in his vehicle, on a picnic in the Clarendon area, at an apartment in Glenelg, at his home in Birdwood, and at her father’s home in Hawthorndene. EK described sexual activity occurring in his vehicle. We do not accept the appellant’s submissions that the secluded locations where the appellant had sexual contact with each complainant is not a feature of the similarity of their accounts. It is his conduct in spending time alone with each complainant in a location not typical of a teacher/student relationship which provided greater opportunity for the appellant to offend without detection that is similar in each account.
We acknowledge that the appellant’s sexual offending against PH and ND occurred more frequently and over a more extended period than his offending against EK. The appellant is also not alleged to have committed any acts of penile/vaginal sexual intercourse against EK. There are dissimilarities in their accounts. However, EK’s description of the manner in which the appellant cultivated his relationship with her, the way in which he allowed the teacher/student barrier to fall away, and the context in which he committed his sexual offending against EK bears the same similarities to that of PH and ND.
We are satisfied that the level of similarity between the accounts of the three complainants has such a degree of similarity to give rise to only two possible hypotheses; collusion and concoction, or, that the accounts are true because it is so improbable that independent of one another they could have, as a matter of coincidence, been independently fabricated, imagined or otherwise mistaken.
We are also satisfied that for the purposes of s 34P(2)(a) of the Evidence Act, the probative value of the evidence substantially outweighed any prejudicial effect or risk of impermissible reasoning or antipathy arising from the number of complainants and allegations and the permissible use could be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
Accordingly, the trial Judge was correct in her conclusion that the evidence of each complainant was cross-admissible and in refusing the application for separate trials. We dismiss this ground of appeal.
Ground 1A – Directions on the permissible and impermissible use of the discreditable conduct evidence
The appellant contends that the trial Judge’s directions on cross-admissibility were inadequate. The appellant complains that: (a) the directions did not adequately relate the evidence to the law; (b) the trial Judge did not adequately put to the jury the defence case as to the absence of sufficient similarity of account to justify the use of improbability reasoning; and (c) the jury was given no assistance as to the proper approach to cross-admissibility and improbability reasoning in the event that the evidence of one of the complainants was not accepted. The appellant contends there was a miscarriage of justice due to the inadequacy of the directions on cross-admissibility and improbability reasoning.
(a) Failure to relate the evidence to the law
The appellant submits that the trial Judge’s directions as to the similarity of account between the complainants’ evidence ‘laid bare their broad and unremarkable nature’. The trial Judge’s directions were as follows:
The prosecution say that there is a broad similarity that is made up of a number of different features which are similar as between the experiences of each of the complainants. The broad similarity, as [the prosecutor] suggested, is that each woman described an experience in which the accused slowly and deliberately engaged her in a way that made her feel special, as though she was participating in a grown-up relationship. She said there are a number of different features that went towards that state of affairs. Features that are similar between the accounts given by the complainants features of flirtatious behaviour, intimate conversations, and the giving of special tokens. They include much more than a bland allegation of a sexual advance on the part of a young male teacher and show a slow and careful seduction with all the hallmarks of adult courting. She said that whilst there are similarities, there are also differences that may be accounted for by the different environments, different opportunities presenting themselves, different restrictions and, of course, the three complainants being quite different people.
The force of each complainant’s evidence lies in the improbability of her independently being motivated to make such a closely matching but false allegation as another complainant has done. The similarities of accounts between the complainants and the improbability of them imagining or concocting similar experiences with the accused is an important feature of this case, the prosecution says.
[Defence counsel] has said that the improbability reasoning loses all of its force if there has been collusion. He said he cannot point to any suggestion of collusion as Mr Sexton was not there and does not know. However, you will have to exclude collusion in order to find the accounts given by the complainants are truly an independent account that emanates from the truth rather than from a fabrication or an imagining by one or more of the complainants.
On the prosecution case, they say they have led the evidence in relation to any possibilities of collusion or contamination. These arise potentially from the meeting between [ND] and [EK] at the university, and the reading of [PH] of a grab from the prosecutor’s opening on the internet at the trial last year.
It will be for you to consider the evidence that has been given in this case in relation to these topics. I caution you that you can only rely upon the evidence that has been given in this case. You cannot speculate about things that may or may not have happened on this topic or, indeed, on any other topics during the course of this trial.
The prosecution’s argument can only succeed if, firstly, you find those similarities are present in respect of the allegations made by each of the complainants and, secondly, if they are so similar that they amount to a particular or a peculiar pattern of behaviour such that it is highly improbable that each of the complainants would give such an account by sheer chance or coincidence. In other words, the prosecution argue that the accounts are such that the only explanation for their similarity is that they are true accounts of what the accused did to each of them. The more similar the accounts, then the less likely it may be that the counts can be explained as chance or inventions on the part of the complainants.
Of course, if you do not accept that such similarities exist, you will reject the argument that they disclose a pattern of behaviour attributed to Mr Sexton, then you would reject the prosecution’s argument and look at the evidence of each of the complainants independently without having regard to the evidence of the others.
The appellant submits there was no analysis of which aspects of the complainants’ evidence was said to support (or undermine) improbability reasoning. Rather, the existence of a relevant similarity of account was wrongly assumed. The appellant accepts that the evidence of each complainant may well have supported the broad similarities mentioned by the trial Judge in her summing up but contends that those similarities were not specifically related to improbability reasoning by the trial Judge.
We are satisfied that the directions given by the trial Judge correctly explained the appropriate process the jury were required to undertake in considering the similarity of account evidence and whether to rely upon improbability reasoning.
Those directions must be considered in the context of the summing up read as a whole. The trial Judge in her summing up provides a detailed summary of the evidence relevant to PH (Counts 1 to 5), ND (Counts 6 to 14) and EK (Counts 15 to 17), before turning to summarise the appellant’s evidence.
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.
Later in her summing up, the trial Judge articulated the defence case to the jury (as set out above).
Next, when summarising defence counsel’s closing address, her Honour said:
[Defence counsel] reminded you that improbability reasoning does not relieve you of the requirement to be satisfied about the individual complainant and what she says happened to her. He said when you come to analyse the behaviour there is quite a different approach in relation to the complainants. There is a lack of similarity of conduct between the three of them particularly in relation to [EK].
In this way, each time the trial Judge dealt with the topic of improbability reasoning, she reminded the jury of the countervailing arguments. Whilst we acknowledge that the trial Judge appeared to place greater emphasis on defence counsel’s submissions on the question of whether the prosecution had excluded collusion or contamination between the complainants, her Honour still clearly put the defence arguments that there was a lack of similarity of conduct between the complainants capable of giving rise to improbability reasoning.
We are satisfied the defence case on similarity of account reasoning was adequately put to the jury.
(c) Lack of direction on similarity of account reasoning if the evidence of one complainant was not accepted
The appellant complains the jury was not directed on how they could (or could not) use the evidence of each complainant in respect of the allegations of the other complainants to support improbability reasoning, if the jury reached a point where the evidence of one of the complainants was not accepted.
The appellant submits that the jury’s rejection of the evidence of EK must have had the practical effect of diluting the strength of the improbability reasoning relied upon by the prosecution in respect of the evidence of PH and ND.
The appellant contends that it was necessary, at the very least, for the trial Judge to give a direction to the jury in general terms to the effect that:
(a)if the evidence of any one of the complainants was not accepted, that evidence then had to be ignored in the assessment of any improbability reasoning;
(b)if the evidence of any one of the complainants was not accepted, the evidence of the remaining two complainants needed to be carefully considered for the jury to determine whether or not there existed similarities between them;
(c)if the evidence of any of the complainants was not accepted, and the jury was to find that there existed similarities between the accounts of the remaining two complainants, the jury needed to then consider whether or not those similarities were such that it was highly improbable that the remaining two complainants would give their accounts by coincidence; and
(d)if the evidence of any one of the complainants was not accepted, and the jury did not find that similarities existed between the evidence of the remaining two complainants that made it highly improbable that the accounts were given by coincidence, the jury was required to assess the evidence of each of the remaining two complainants independently, without having regard to the evidence of the other.
The appellant was also cross-examined about allegedly having rubbed out the words ‘Jazz Land’ in his diary in May 1989. Jazz Land was a production that the appellant knew PH to be involved in. It was put to the appellant in cross-examination that he rubbed out the words ‘Jazz Land’ to distance himself from PH. The appellant denied that suggestion and said that he would have rubbed it out because he did not end up going to see the show. The appellant’s evidence was that he would have liked to have gone to the show, but other matters prevented him from doing so.
It was PH’s evidence that the appellant was non-committal when she asked him to come to Jazz Land and that he did not end up going to the show.
The appellant gave evidence that it was his practice to erase diary entries of events that did not eventuate or that he did not attend. On the defence case, the Jazz Land erasure supported the appellant having had such a practice.
Ground 3 – Use of the casino erasure evidence as a consciousness of guilt
The appellant complains that the trial Judge erred in directing the jury that the evidence of the casino erasure could amount to evidence of a consciousness of guilt. The appellant contends that the casino erasure evidence could not be used as evidence of a consciousness of guilt for two reasons: first, the evidence did not support such a use; and second, the appellant was not afforded procedural fairness with respect to that use of the evidence.
As to the first basis for the complaint, the appellant submits that the diary was introduced into evidence as part of the defence case. In evidence, the appellant conceded that he made erasures in his diary (including the casino erasure) and explained that he did so when an event did not occur. The appellant submits there was no evidence to refute his explanation and no basis to find the true explanation for the erasure was a consciousness of guilt of the offence charged; namely, MUSR, or in the alternative, Count 2.
It was, however, open to the jury to reject the appellant’s evidence that the casino erasure related to an innocent event unconnected to a singing lesson with PH. The jury may well have considered the appellant’s evidence on this topic to be unsatisfactory because he could not recall what the entry related to, but he could nonetheless say that it was not about PH. This was notwithstanding that the casino erasure was immediately adjacent to the record for PH’s lesson on 9 February 1989. Further, whatever event the appellant said the erasure in fact related to was not recorded in his diary, despite his claimed practice. If the jury rejected the appellant’s explanation as to the casino erasure, then the fact of it and the appellant’s motivation in making the erasure fell to be considered in the context of PH’s evidence and allegations relating to Counts 1 and 2.
It was open to the jury to reason that the appellant erased the entry to hide the fact that he had picked PH up from casino corner (which he denied). That is a fact inextricably linked with the allegation that the appellant took her to a venue other than the University for a singing lesson as early as February 1989 (which the appellant also denied). This alternative venue, unlike the University because of student numbers and traffic, provided the appellant with greater opportunity to offend against PH. The appellant was alleged to have indecently assaulted PH at this location (Count 2). The reason the appellant erased the entry was a matter for the jury. It was open to the jury to find that the appellant erased the entry because he could not innocently account for transporting PH to a venue other than the University. Further, it was open to the jury to find that the appellant made the casino erasure to distance himself from taking PH to a location, because he had indecently assaulted her at that location, and he was aware that the original entry would have implicated him. It was appropriate for the trial Judge to instruct the jury that if they so found, the appellant’s conduct in making the casino erasure was probative of his guilt.
As to the issue of procedural fairness, the evidence of the casino erasure came before the jury in the following way. The appellant gave evidence in examination-in-chief as to his practices in erasing events or entries in his diary which did not eventuate. He was cross-examined on the topic of the casino erasure (as set out above). Prior to the prosecutor’s closing address, there was an exchange between the trial Judge and counsel as to the use sought to be made of the casino erasure evidence. Initially, the prosecutor said that the evidence was relevant to the appellant’s credit only. The prosecutor said, ‘I will be submitting that that is conduct that is relevant to an assessment of the accused’s credit as a witness’.
The trial Judge then raised the issue of whether the casino erasure was evidence of a consciousness of guilt. The prosecutor thereafter made the following submission:
[W]hat I initially put as that being a matter that is capable of bearing on the accused's credit is so close to a consciousness of guilt use that really in my submission the proper characterisation, if the jury finds that the erasing was related to the allegation, is as indicating a consciousness of guilt and a direction will be required.
At all times, it was defence counsel’s position that the evidence was only relevant to the appellant’s credit.
In her closing address, the prosecutor invited the jury to reason that the diary entry of ‘pick up from casino corner’ had been erased ‘to make it appear that he was not taking [PH] anywhere in those early days’. The prosecutor said:
As you know, [PH] alleges that her earliest lessons with Mr Sexton before they settled into a routine at the Adelaide University were at locations which she was driven to by Timothy Sexton from the city. Specifically, she said, the first kiss, which was around Valentine’s Day, and the first time they had sexual intercourse, both occurred in such circumstances of being driven somewhere that was not the university for the purpose of a lesson.
Mr Sexton’s evidence was that the lessons outside of Wirreanda started at the con and continued at the con save and except for the two occasions in June 1989 when he took her to the church at Norwood. He distinguishes those lessons by the notation ‘station’ alongside [PH]’s name in his diary. Otherwise he said unambiguously the lessons were at the con. The con, he tells you, has a stream of students back and forth, regular interruptions and even people coming in in the middle of lessons. Mr Sexton admits that alongside the ‘[PH]’ entry for 9 February 1989, ‘2 p.m.’, the words ‘pick up from casino corner’ have been rubbed out. He admits that those words were rubbed out by him.
The prosecution suggested to Mr Sexton that those words were rubbed out by him because their appearance is inconsistent with his story that the lessons were established at the conservatorium from the start of 1989. Mr Sexton said that’s not true. Mr Sexton’s explanation for the rubbed out words was that there was something else that was occurring that day, that he was picking up from the casino, which he remembered did not occur so he rubbed it out. You heard that evidence, members of the jury, and what I would encourage you to do now is to look at the exhibit and look at the entry for yourselves. As with all of the facts and conclusions in this trial, they are for you and for you alone. But you might find it quite an extraordinary claim that 30 plus years down the track someone with such an apparently carefully documented schedule could remember having to pick something up from the casino or casino corner in the middle of the city on a random Tuesday afternoon. You might think, members of the jury, that Mr Sexton’s explanation was no explanation at all. Because the rubbing out of that entry, alongside the name ‘[PH]’, in the critical month of February 1989, can only be sensibly explained as a deliberate action to make it appear that he was not taking her anywhere in those early days.
The appellant submits that the prosecutor’s submission was to the effect that the casino erasure was only relevant to the appellant’s credit. Defence counsel in his address said the following:
Then the prosecution say of [the appellant’s] evidence that he has made some sort of effort – and this is a criticism of him – after being charged, to change his diary, even though they have absolutely no evidence of that. There is not one scrap of evidence from which you could conclude that he has rubbed out an entry in his diary after being charged.
In relation to that note that is next to [PH]’s name on 9 February 1989 that has been rubbed out, the reason that you should reject a submission that he has rubbed that out after is because you have that diary. It has been tendered by the defence for you. It has been put before you during the course of this trial. Do you think for one second if he had rubbed out an entry, which you can still read, that you can just pick up and read, that he is going to tender it? You have got to be kidding me. No way. If you were in the business of rubbing it out, are you really going to hand it over when you have rubbed it out and look at it and you can still read it? No way.
The other reason that you should reject that submission is by looking at the records as a whole. Obviously there are other areas that had been rubbed out. He obviously had an approach where, if something didn’t go ahead, he would rub it out, but it is what is not there that tells you there has been no effort to doctor his records, because you remember he says ‘I saw [PH] at the Conservatorium right through up until June’, and you will see that his evidence was ‘When it says “[PH]”, that means “Conservatorium”, even though it doesn’t say that.”
So in November there is direct references to the Conservatorium but thereafter it’s ‘[PH], [PH], [PH]’. It could be anywhere. You have got to take his word for it. It is not until 12 May 1989 that there is an actual reference to ‘The Con’. If he was in the business of rubbing things out and improving his position, wouldn’t you think that you would see ‘Con’ written next to ‘[PH]’ all the way through so that he could say ‘Look, it says “Con” all the way through. That’s where I was’? The fact there isn’t that consistency tells you everything. It tells you that he is just handing up the records as they were.
You know, if he was in the business of rubbing things out and mucking around with his records wouldn’t he have an alibi for each weekend either side of Kirsty Iversen’s birthday?
Members of the jury, ultimately when you consider his evidence my submission to you is that there is nothing inherently implausible in what he said. There is nothing that allows you to simply dismiss it. So, if his evidence remains a reasonable possibility, one that you can’t discount, or even if you get to a point where you can’t choose, you are just not sure, you can’t put a line through his evidence or anyone’s evidence, that is a reasonable doubt. You give him the benefit of the doubt. If his evidence remains a reasonably possibility [sic] you find him not guilty.
During a break in the summing up, the trial Judge asked the prosecutor about what she intended to convey to the jury in her address on the issue of the casino erasure. The prosecutor submitted that the casino erasure was demonstrative of the appellant’s consciousness of guilt. In response, defence counsel said that the prosecutor had not put that imputation to the appellant in cross-examination, nor had she made that submission to the jury.
When summing up, the trial Judge directed the jury that the casino erasure could be used as demonstrating a consciousness of guilt on the part of the appellant. The terms of that direction and its alleged shortcomings form the basis of
Ground 4.
The appellant submits that he was denied procedural fairness because defence counsel in his closing address responded to the issues raised in the prosecution address, which left the casino erasure as relevant only to the appellant’s credit. The appellant relies on the authority of R v Quist.[29]
[29] (2017) 127 SASR 471.
In R v Quist, Blue J described the obligations of a prosecutor in terms of giving notice as to the proposed use of lies as a consciousness of guilt and the principles of procedural fairness that underpin those obligations. His Honour referred to R v Ciantar and said:[30]
If therefore a prosecutor intends to adduce or use evidence of a previous account for a lies probative of guilt purpose (whether exclusively or not), the prosecutor should first inform the judge and the defendant’s counsel in the absence of the jury that the evidence is to be adduced or used for this purpose. This puts the Court on notice and gives the defendant an opportunity to object to admission of the evidence for this purpose or at all. Similarly, if the prosecution initially leads evidence of a defendant’s account for an admission purpose, the prosecution should give notice to the defendant’s counsel and the judge at the point at which the prosecution decides to seek to make use of the evidence for an additional purpose and in particular for a lie probative of guilt purpose.
When it comes to closing address, the prosecutor must elect whether to submit merely that the defendant’s asserted lie adversely affects his or her credit or whether to submit also that it is probative of guilt. The prosecutor should not adopt a middle course of using language capable of leading the jury to use the asserted lies as probative of guilt without explicitly suggesting it or without addressing the jury on the elements summarised at [169] above as are in dispute. Such a middle course would place both defence counsel and the judge in an invidious position.
If the prosecutor intends to seek to rely in closing address on asserted lies as probative of guilt and the matter has not earlier been addressed, in accordance with the passage from the Victorian Court of Appeal judgment quoted above, the prosecutor should inform the judge before closing addresses. This gives the defendant’s counsel an opportunity to object and gives the judge the ability to rule on the matter in advance. Otherwise, there may be the risk of a mistrial if the judge subsequently rules that use of the asserted lies as probative of guilt is not permitted and directions by the judge cannot cure the prejudice caused by the prosecutor having made the submission without notice. The prosecutor should provide particulars of each asserted lie and why its telling was because the defendant knew that the truth would implicate him or her in the offence.
(citations omitted)
[30] R v Quist (2017) 127 SASR 471 at [182]–[185] citing R v Ciantar (2006) 16 VR 26 at [182]–[185].
The appellant submits that the principles apply with equal force to the use of such reasoning in the present case.
We do not consider that the appellant has been denied procedural fairness. The rules of procedural fairness require an accused person to know of the critical issues to be addressed and of the significant credible material adverse to them. The prosecutor put to the appellant that he had erased the entry because it related to PH, and the entry would be inconsistent with his evidence that she had her lessons with him at the Conservatorium in February 1989. That is, in our view, sufficient to convey to the appellant the prosecution’s ultimate submission that the appellant erased the entry because it implicated him in the offence and revealed his guilt. The evidence supporting that submission was also known to the defence. Indeed, defence counsel had introduced the diary into evidence. From the time that the prosecutor cross-examined the appellant in the abovementioned terms, defence counsel was on notice that the casino erasure was to be used as evidence of a consciousness of guilt.
Furthermore, prior to the prosecutor’s address, the trial Judge clarified with the prosecutor whether she intended to use the casino erasure as evidence of a consciousness of guilt. After some discussion, the prosecutor said that the evidence was indicative of a consciousness of guilt and the relevant direction was required to be given. In that way, the prosecutor indicated that the relevance of the casino erasure was not restricted to mere credibility. Whilst it could have been put with greater clarity by the prosecutor to the appellant in cross-examination and more expressly in her exchanges with the trial Judge and in her closing address, we are satisfied that the prosecutor had put defence counsel on notice prior to his closing address that the prosecution relied on the casino erasure as evidence probative of guilt.
In any event, defence counsel ably and effectively dealt with this issue in his address. There was not much more he could have said on behalf of the appellant on this topic. The jury were aware of the appellant’s explanation for the casino erasure and his practices in relation to his diaries. There was no want of procedural fairness in this case.
We dismiss this ground of appeal.
Ground 4 – Directions on the casino erasure and consciousness of guilt
As to the use of the appellant’s diary and the casino erasure, the trial Judge gave the following directions:
The prosecution say three things about that entry and the evidence given by Mr Sexton. The first is that that entry may be capable of supporting the evidence that was given by [PH] as to where the first lessons in 1989 were held and the arrangements for them.
Secondly, they suggest that the accused has attempted to destroy evidence by erasing the entry adjacent to the name [PH] on 9 February 1989.
The prosecution rely upon this conduct as evidence of Mr Sexton’s guilt. You should ask yourselves what inference is to be drawn from this evidence? You may not take it into account in order to draw an inference of guilt unless having regard to all of the evidence in this case, you are satisfied that there is no explanation of the conduct of the accused other than a realisation or a consciousness of his guilt.
Firstly, you must be satisfied that the entry related to [PH] and not to some other activity as was suggested by the accused. If you are satisfied that it related to [PH], then you must be satisfied that the accused did erase it so as to distance himself in relation to any allegation of impropriety towards [PH] and that he did so because he was engaged in an unlawful sexual relationship with her.
You must be satisfied that there is no other explanation for the conduct of the accused before you can use this evidence of his guilt in relation to an unlawful sexual relationship with [PH].
In assessing these questions, you must take into account that a person may behave in a way, that at first sight, is suggestive of a realisation of guilt for reasons other than a realisation of guilt. For example, a person may act through panic, or fear, or wishing to avoid or escape an unjust accusation. This kind of action may only be used as evidence of a realisation of guilt where you are satisfied that it points beyond reasonable doubt to the realisation of guilt by Mr Sexton.
In this case, it has been suggested by the defence that there is no evidence before you from which you could infer that he erased this entry at a time when he even knew there was a suggestion by [PH] that he picked her up at that point, nor had any complaint been made by her that they were engaged in a sexual relationship.
It is for you to determine whether you are satisfied on the evidence that it is available to you in this case, that relates to the evidence of [sic] Mr Sexton gave on the topic, and the evidence that [PH] gave on this topic, related to where she was picked up and taken to in the early part of 1989, in determining whether the erasure shows that the accused knew he was guilty of an unlawful sexual relationship with [PH] and was attempting to distance himself from that.
If you are not so satisfied, then you may not use this evidence of evidence of his guilt in relation to the charges in respect of [PH].
The appellant complains that the trial Judge erred in her directions as to the use of the casino erasure evidence in the following ways:
·there was no direction as to the way the jury could use the appellant’s explanation for rubbing out the entry in his 1989-90 diary;
·there was a failure to direct that the jury had to be satisfied beyond reasonable doubt that the erasure occurred post-offence before they could use it as evidence of a consciousness of guilt;
·there was a failure to direct the jury as to the evidence, or lack thereof, as to when the entry was erased;
·there was a failure to relate the consciousness of guilt direction to the facts of the case;
·there was a failure to identify, in a meaningful way, the limits of the evidence; and
·there was a failure to emphasise the care that needed to be taken before the conduct could be used as evidence of a consciousness of guilt.
The first particular of this ground of appeal relates to the purported failure of the trial Judge to assist the jury in the use of the appellant’s evidence on the casino erasure. Notwithstanding the recital of the evidence by the trial Judge, the appellant submits that the evidence was not applied to the process of reasoning to be adopted by the jury.
The second and third particulars of this ground of appeal relate to a purported inadequacy in the trial Judge’s directions on the topic of the timing of the casino erasure. The appellant contends that the casino erasure would be most probative of a consciousness of guilt if it was made after the appellant was first approached by police in respect of the allegations. The only evidence of the timing of the casino erasure was from the appellant, who said it would have been made ‘at the time’. The appellant submits there was no evidence adduced by the prosecution of when the erasure was made. The appellant submits that there were other, apparently benign, erasures throughout the appellant’s diaries.
The appellant submits that if the jury had been reminded of the evidence, they would have been told that there was no evidence as to the timing of the casino erasure, except from the appellant himself. The appellant submits that a crucial link in that reasoning was a finding as to the time of the erasure. Accordingly, the appellant contends the jury should have been directed that it was necessary for it to determine beyond a reasonable doubt when the erasure was made, before using it as evidence of the appellant’s guilt.
The fourth and fifth particulars of Appeal Ground 4 relate to a purported failure of the trial Judge to identify that to the extent that the casino erasure could have been evidence of a consciousness of guilt, it could only have related to the allegation that formed the subject of Count 2. The appellant contends the trial Judge left the casino erasure to the jury as evidence of an overarching consciousness of guilt. He submits that the direction should have been limited to a consciousness of guilt in respect of the allegation of the kiss which formed the basis of Count 2, if the evidence could be permissibly led as establishing a consciousness of guilt. The appellant says that the evidence of the casino erasure was incapable of establishing a consciousness of guilt in relation to Count 1 as it could not have been referable to two or more sexual acts.
As to the timing of the casino erasure, the appellant said that he rubbed the entry out ‘at the time’ and it was ‘something else that was occurring that day that I was picking up from casino and I remember that that didn’t occur so I rubbed it out’. The evidence of the casino erasure was ultimately left by the trial Judge to the jury on the basis that he rubbed out the entry to distance himself from transporting PH to the location where an indecent assault was alleged to have occurred. Implicit in her Honour’s directions is that the casino erasure could only be used as evidence of a consciousness of guilt if it had occurred after the alleged sexual incident.
On the appellant’s evidence, this was not a case where the appellant’s conduct in making the casino erasure occurred after he became aware that he was under suspicion of the alleged offending against PH. The appellant’s conduct in making the casino erasure was not equivocal or intractably neutral because it could be (or was) explained by an effort to distance himself from the false allegations rather than the event.[31] There was no suggestion on either the prosecution or defence case that the appellant had been made aware of any report by PH to police or any allegation by PH at the time he said he made the casino erasure. In any event, the trial Judge still warned the jury in respect of that scenario. Her Honour said:
In assessing these questions, you must take into account that a person may behave in a way, that at first sight, is suggestive of a realisation of guilt for reasons other than a realisation of guilt. For example, a person may act through panic, or fear, or wishing to avoid or escape an unjust accusation. This kind of action may only be used as evidence of a realisation of guilt where you are satisfied that it points beyond reasonable doubt to the realisation of guilt by Mr Sexton.
[31] Cf R v Harris [1992] 3623 per King CJ (with whom Olsson and Mullighan JJ agreed).
Further, the appellant gave an explanation in evidence for the casino erasure. As discussed earlier, he said that the casino erasure did not relate to PH, he erased it ‘at the time’ because it related to an event which never took place and it was his practice to erase entries of events that did not occur. Had the jury rejected the appellant’s evidence on that topic as a reasonable possibility, the jury was left with the appellant having made the casino erasure ‘at the time’ in circumstances where PH had not yet complained of, or reported, the allegations. If the appellant’s explanation was rejected by the jury, there appeared to be no other reason on the evidence to make the casino erasure, except to distance himself from wrongdoing.
The trial Judge also warned the jury not to use the evidence as probative of guilt unless satisfied that there was no explanation for the conduct, other than a consciousness of his guilt. Her Honour directed the jury that they must be satisfied that the diary entry related to PH, and not to some other activity, and that he erased it because he had engaged in unlawful conduct with PH before they could use the evidence as probative of his guilt. The trial Judge emphasised that there must be no other explanation for the casino erasure before it is used as evidence of guilt.
For those reasons, we are satisfied that the trial Judge adequately warned the jury as to the matters the prosecution needed to establish before the appellant’s conduct could be probative of guilt. The trial Judge addressed the appellant’s explanation for his conduct and as to the care which the jury needed to exercise before an inference of guilt could be drawn.
As to the contention that the casino erasure could only have been probative of guilt in relation to Count 2, we do not accept that submission. Count 2 was charged in the alternative to Count 1 and formed one of the particulars of Count 1. The evidence was relevant to establish the appellant’s guilt in respect of proving one of the alleged unlawful sexual acts. It was therefore directly relevant to Count 1. Her Honour’s direction that the casino erasure was evidence of a consciousness of guilt as to his unlawful sexual relationship with PH on Count 1 were not erroneous.
We are satisfied that the trial Judge’s directions as to the casino erasure did not give rise to a miscarriage of justice.
We dismiss this ground of appeal.
Ground 5 – Directions on the use of the appellant’s interview and evidence
The appellant complains that the trial Judge’s directions on the use of his record of interview and evidence were inadequate. In particular, the appellant contends that the jury were given inadequate assistance as to the proper approach to take if the jury rejected any of the appellant’s evidence. In respect of the appellant’s interview with police, the appellant submits the jury was given no direction as to the proper approach to take if they rejected his account.
The appellant’s evidence was challenged by the prosecutor in cross-examination and was the subject of scrutiny in the prosecutor’s closing address. In particular, the appellant’s credit was challenged on a particular aspect of his evidence relating to his interactions with ND in 1991, which related to the events alleged in Count 13. The appellant’s evidence was that ND had kissed him on the lips without warning and that he told her that she could not do that. The appellant gave evidence that about a month or two later, ND hugged him ‘in front of everyone’ in a rehearsal at school. He said Ms Diane Hordern saw it happen and the appellant asked her to speak to ND about it. The appellant could not say whether Ms Hordern did in fact do so.
In ND’s evidence, she denied having kissed the appellant abruptly. She also said she had no recollection of hugging the appellant in a public area as alleged. However, ND accepted that it was possible that Ms Hordern spoke to her about her behaviour towards the appellant.
At trial, Ms Hordern gave evidence that she observed ND behaving flirtatiously towards the appellant at school, but she said the appellant’s behaviour towards ND was professional. She said the appellant never spoke to her about ND’s behaviour towards him and she never spoke to ND about her behaviour towards the appellant. Ms Hordern denied witnessing ND hug the appellant. She said she would not have forgotten something like that had it occurred.
In relation to the appellant’s evidence, the jury was given the following direction:
In this case, even if you reject his evidence, that is not an end to this matter. You must then return to the evidence of the prosecution witnesses and consider whether you are satisfied beyond reasonable doubt of each of the elements of the offence that you have under consideration, notwithstanding the evidence that has been given by Mr Sexton in this case.
The appellant submits this direction did not go far enough and that a ‘partial lies’ or Zoneff,[32] direction was required. In Zoneff v The Queen (‘Zoneff’), Gleeson CJ, Gaudron, Gummow and Callinan JJ said:[33]
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth … would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character.
…
A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
“You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”
(citation omitted)
[32] See Zoneff v The Queen (2000) 200 CLR 234.
[33] (2000) 200 CLR 234 at [16], [23].
The appellant contends that this case contained such a risk of misunderstanding on the part of the jury. The appellant submits that this risk was particularly present with respect to the appellant’s evidence about ND kissing and hugging him because of the way the prosecution address on the topic was pitched. In her closing address, the prosecutor said:
It is Mr Sexton’s attempt, you might think, to anticipate and innocently explain what he must know to be the true character of his interactions with [ND] at Woodlands including that he would allow her to kiss him behind Samantha Hordern’s closed office door.
The appellant does not suggest the prosecutor’s submission was improper. However, the appellant submits it came close to inviting the jury to engage in consciousness of guilt reasoning. In those circumstances, if the jury found the appellant to have lied on the topic of his interactions with ND at Woodlands, there was a risk of the type of misunderstanding referred to in Zoneff.
The appellant contends that a direction should have been given to the effect that even if the jury rejected the evidence of the appellant or found that he had given evidence that was untrue, that could not be used as positive evidence of the appellant’s guilt. The appellant contends the proper use for any such finding would be that the jury could only take it into account when assessing the appellant’s credibility or reliability.
The appellant submits in the absence of this direction, there is a real possibility that the jury misapplied the appellant’s evidence on the topic of his interactions with the complainant ND at school. For this reason, the appellant contends that a miscarriage of justice has occurred.
In this case, the prosecution did not make a submission that in the event the jury concluded that the appellant lied in his evidence about ND’s conduct at Woodlands, those lies were told out of a consciousness of guilt. The question therefore becomes what risk was there, absent a Zoneff direction, that the jury would have reasoned in this way?
We do not consider that the prosecutor made any suggestion in her cross-examination of the appellant on the topic of ND and the kissing/hugging incidents that he was lying because he was guilty. The prosecutor’s submissions in her closing address as to the appellant’s evidence about ND kissing him abruptly with her tongue at the school and hugging him in front of other students were made in the context of her submissions as to the appellant’s evidence. In this part of her address, the prosecutor submitted that the jury should reject the appellant’s evidence. At no stage did she submit that he was lying because he was guilty or address the jury with words to that effect.
At trial, defence counsel did not complain about this aspect of the prosecutor’s address or its possible impact on the jury. Nor in the trial Judge’s summary of the closing addresses did her Honour refer to this part of the prosecutor’s address. Those matters are together a strong indication that there is no real risk that the jury would have used that evidence or the prosecutor’s submissions as evidence of guilt.
The risk sought to be cured by a Zoneff direction is of the jury reasoning from the conclusion that the appellant has lied to guilt where either the evidence does not support such reasoning, or, the evidence does support such reasoning but the prosecution has not embraced such reasoning as a step in the process of reasoning to guilt.
In all the circumstances, including the trial Judge’s directions about the evaluation of the appellant’s evidence and the burden and standard of proof, we are satisfied there is no risk of the jury reasoning to guilt from a conclusion that the appellant lied in his evidence about ND’s conduct. It is not reasonably arguable that either a Zoneff direction was required, or, that the absence of such a direction has resulted in a miscarriage of justice.
We refuse permission to appeal on Ground 5.
Conclusion
We dismiss Grounds 1 to 4. We refuse permission to appeal on Grounds 1A, 2A and 5.
We dismiss the appeal.
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