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DAY v THE QUEEN [2021] SASCA 38 (21 May 2021)

Last Updated: 26 May 2021

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

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DAY v THE QUEEN

[2021] SASCA 38
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)

21 May 2021

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

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

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

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

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

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

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

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

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

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

4. The trial Judge did not err in the exercise of the sentencing discretion. The head sentence accorded with R v D [1997] SASC 6350; (1997) 69 SASR 413, and fixing the non-parole period at two-thirds of the head sentence was within the range of one half to three-quarters of the head sentence specified in a number of recent decisions of the Court of Criminal Appeal.

Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158(2); Juries Act 1927 (SA) s 7; Sentencing Act 2017 (SA) s 47, referred to.

B v The Queen [1992] HCA 68; (1992) 175 CLR 599; Bucca; R v Castle [2018] SASCFC 42; Choudhary v The Queen [2013] VSCA 325; Davies v The Queen [2021] SASCA 26; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Groom v Police [2015] SASC 101; (2015) 252 A Crim R 332; House v The King (1936) 55 CLR 499; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116; (2018) 132 SASR 63; Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476; Oks v The State of Western Australia  [2019] HCA 10 ; (2019) 265 CLR 268; Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452; R v Broyles [1991] 3 SCR 595; R v Creed (1985) 37 SASR 566; R v D [1997] SASC 6350; (1997) 69 SASR 413; R v DRF (2015) 263 A Crim R 573; R v H, ML [2006] SASC 240; R v H, T (2010) 108 SASR 86; R v M, DV (2019) 133 SASR 470; R v Mann [2020] SASCFC 69; R v McIntyre [2020] SASCFC 101; R v MNJ [2006] VSCA 226; (2006) 166 A Crim R 501; R v Palmer [1998] HCA 2; (1998) 193 CLR 1; R v Palmer [2016] SASCFC 34; R v RGC [2020] SASCFC 102; R v S, PC [2008] SASC 285; (2009) 102 SASR 199; R v Stewart (1984) 35 SASR 477; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; R v Usher (2014) 119 SASR 22; R v V, AJ [2012] SASCFC 10; R v W, CT [2019] SASCFC 18; R v Wildy (2011) 111 SASR 189; Slatterie v Pooley [1840] EngR 227; (1840) 151 ER 579, considered.

DAY v THE QUEEN
[2021] SASCA 38

Court of Appeal – Criminal: Kelly P, Lovell and Livesey JJA

THE COURT:

Introduction

1. This is an appeal against conviction and sentence concerning a charge of maintaining an unlawful sexual relationship with a person under the age of 17 years between 1 January 1985 and 31 December 1987.
2. Following a trial “by the judge alone” pursuant to s 7 of the Juries Act 1927 (SA) during June 2020, the appellant was convicted on 25 September 2020.
3. After considering well-known authority,^[1] the trial Judge imposed a sentence of imprisonment of 12 years and, pursuant to s 47 of the Sentencing Act 2017 (SA), he fixed a non-parole period of 8 years commencing on 25 September 2020.

The appeal in overview

4. The conviction appeal concerns the relevance, admissibility and use of evidence concerning two interactions between the appellant and the complainant outside a church more than a decade after the alleged offending (appeal ground 1), and then during the course of what was described before us a “pretext telephone call” more than 30 years after the alleged offending (appeal grounds 2 and 3).
5. In essence, it is contended that the trial Judge impermissibly used out of court statements to “bolster” the credibility of the complainant. That is said to be an error of a kind which is not amenable to application of the proviso pursuant to s 158(2) of the Criminal Procedure Act 1921 (SA).
6. The application for permission to appeal against sentence is confined to the length of the non-parole period. Relying upon what was said to be an “outcome error”, the appellant contends that the non-parole period should have been no more than one half of the head sentence.

Disposition of the appeal

7. For the reasons that follow, in so far as permission to appeal is required to appeal the conviction and the sentence, it is refused.
8. We dismiss the appeal.

The grounds of appeal

9. The three grounds of appeal against conviction are as follows:
   1. The Learned Trial Judge erred in the approach to and finding that there was no collusion between the complainants

Particulars

• 1.1 The Learned Trial Judge erred in his assessment as to the significance of historical discussions between the complainants regarding the alleged conduct of the accused;
• 1.2 The Learned Trial Judge placed undue weight on the current circumstances of the complainants in excluding the reasonable possibility of concoction;
• 1.3 The Learned Trial Judge erred in approaching the evidence of the complainants on this topic as being bolstered by good character when character evidence was not an issue at trial.

2. The Learned Trial Judge erred in using the out of the court statement of the complainant TC at the Malvern Church as bolstering the credibility of the complaint TC.
   3. The Learned Trial Judge erred in failing to provide adequate reasons as to the ultimate use of the evidence arising from the Malvern Church incident.

10 On 19 February 2021, Kelly P granted permission to appeal against conviction on grounds 1 and 2 and referred the application for permission to appeal against conviction on ground 3 to the Court of Appeal. The application for permission to appeal against sentence was also referred to the Court of Appeal.

11. Although the appeals were lodged out of time, no issue was taken in opposition to any extension of time that might be required.

The trial by the judge alone

12. The appellant was charged on Information with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The counts were in the following terms:

First Count

Statement of Offence

Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Malcolm Winston Day between the 1st day of January 1985 and the 31st day of December 1987, at Parkside, maintained an unlawful sexual relationship with [TC], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [TC], namely:

(a) touching her bottom over her clothing on more than one occasion;

(b) touching her on her genital area over her clothing, on more than one occasion;

(c) touching her on her genital area under her clothing, on more than one occasion;

(d) causing her to touch him on his penis over his clothing, on one or more occasion;

(e) causing her to touch his penis under his clothing, on more than one occasion; and

(f) causing her to perform an act of fellatio upon him, on more than one occasion.

This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

Second Count

Statement of Offence

Maintaining an Unlawful Sexual Relationship with a Child. (Ibid).

Malcolm Winston Day between the 1st day of January 1985 and the 31st day of December 1987, at Parkside, maintained an unlawful sexual relationship with [DT], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [DT], namely:

(a) rubbing his penis against her back, on more than one occasion.

This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

13. The trial Judge outlined the elements of the offence created by s 50(1) in the following manner:^[2]
    1. That at the time of the offending, the accused was an adult.
    2. That the complainant was a child during the relevant period.
    3. There was a relationship (but not necessarily a sexual relationship) between the accused and the complainant during the course of which the accused engaged in the unlawful acts.
       4. That the accused committed two or more unlawful sexual acts towards the complainant.
14. There was no dispute at trial regarding proof beyond reasonable doubt of the first and second elements, nor was there any dispute that there was a relationship of music teacher and pupil in connection with the third element.^[3]
15. What was in issue was whether there had been any unlawful sexual activity between the appellant and the complainants.
16. The two people the subject of these charges are sisters who were, between 1985 and 1987, receiving piano lessons upstairs at the appellant’s premises in Parkside. The first complainant was referred to at trial as TC and the second as DT.
17. During the relevant period, TC was between 9 and 12 years of age and DT between 10 and 13. The appellant was then aged in his forties. He conducted a music school from the Parkside premises. The appellant was known to the family of the complainants due to their mutual involvement in an Adelaide church. The offending came to an end when the girls stopped attending the appellant’s music lessons.
18. Ultimately, the trial Judge convicted the appellant on count 1 but acquitted him on count 2, finding that though he thought the appellant was probably guilty, he was not satisfied of guilt beyond reasonable doubt on count 2.^[4]
19. The trial Judge summarised his factual findings concerning the first count involving TC in the following manner:^[5]
    1. In 1985, the defendant gave piano lessons to TC at his premises located at the corner of Glen Osmond Road and Kenilworth Road, Parkside, South Australia. There was a relationship of teacher and pupil established from the outset and this relationship continued from that time when lessons were held.
    2. The piano lessons occurred in the first-floor piano room which was at the top of the stairs and to the left. The lessons were given on an upright piano. When giving the lessons to TC, the defendant sat either on a duet piano stool (on which TC also sat) or on a separate seat to the right of the piano stool.
    3. When giving lessons to TC, the defendant consistently made physical contact with her on her right side. From the commencement of lessons TC complained to her parents about the physical contact made by the defendant but TC was not aware of any action taken by them as a result.
    4. When demonstrating techniques to, or directing TC, the defendant would lean over her from her right-hand side. When doing so, he rested his hand on the back left-hand side of the piano stool and this then progressed to touching her under and on her bottom. This was an act of indecent assault.
    5. The defendant then commenced to touch TC on her right knee. He rubbed her on her right knee. His hand progressed to rubbing up her right leg under her school uniform.
    6. The rubbing on the right leg of TC then progressed to rubbing TC over the outside of her underwear under her skirt. This was an act of indecent assault. He rubbed his fingers over her labia and vagina area. He then rubbed her labia and vagina inside of her underwear. He used one or two fingers. His hand moved in a stroking motion. He used his left hand initially and later his right hand. This conduct caused TC to cry. As there was no act of penetration and there was only touching, this was an act of indecent assault.
    7. After a period of time, the defendant took the hand of TC and held it upon the groin area of his trousers. He had an erect penis at the time. Holding the hand of TC, he rubbed it up and down his erect penis, and squeezed her hand when so doing. This was an act of gross indecency.
    8. This conduct caused TC to cry. The defendant told her to “shoosh” and gave her a tissue.
    9. The defendant then unzipped his pants and put the hand of TC upon his erect penis. He squeezed her hand upon his erect penis and then moved her hand up and down his penis. This conduct caused distress to TC and she cried as a result. The defendant told her “shoosh” and gave her tissues. This was an act of gross indecency.
    10. In later lessons, the defendant forced TC onto the floor, with her back to the piano. Her feet were stuck under the piano pedals. The defendant was sitting upon the piano stool. He unzipped his trousers and removed his erect penis from his pants. He put his hands on the back of TC’s head and pushed her face towards his erect penis. He wiped the tip of his penis around her mouth, lips and on her face. When doing so, the defendant held the hands of TC either on his legs or up on the stool. He caused his penis to penetrate the mouth of TC. This was an act of sexual intercourse.
    11. In the course and at the end of these actions, the accused told TC not to speak of these events, that she would get in trouble if she told anybody and what would her parents say. TC understood these references by the accused to the status of her father as a church minister, the status of their family in that context and in the context of the broader church community. This terrified and upset TC who cried as a result.
    12. TC did not inform her parents of this conduct of the defendant as a consequence of the warnings that he gave her.
    13. The piano lessons of TC with the defendant ended in the first weeks of term three of the three term scholastic year. By that point she had joined a school choir.

The impugned evidence, the opening and the pretext call

20. In the course of her evidence before the trial Judge, TC described the two interactions between her and the appellant which are relevant to this appeal.
21. The first occurred in 2000, around 15 years after the cessation of piano lessons, when TC was 19 years of age and her father was a parish minister at a church in Malvern. On Christmas Eve, she saw the appellant outside the church and became highly emotional. She confronted the appellant and screamed at him “you hurt me and you hurt my sister, how dare you be here”.^[6] TC said that, in response to her upset and angry outburst, the appellant screwed up his face and said words to the effect, “just get over it”.^[7]
22. The second interaction occurred after a report had been made to police concerning the alleged offending. With the assistance of police, TC made what is described as a “pretext call” to the appellant on 7 September 2018 from the Wakefield police station. This was more than 30 years after the offending and nearly 18 years after the confrontation at the church.
23. Though notice pursuant to r 49 of the District Court Criminal Rules 2014 (SA) (the Rule 49 Notice) was given before the trial of an objection to the tender of the evidence concerning the pretext call, that objection was abandoned before trial.
24. During the course of the prosecution opening, the appellant’s then-counsel described the issue concerning the pretext call as one relating to “weight ... and not whether it is admissible at law”.^[8]
25. The prosecutor opened the case on this issue in the following manner:^[9]

On the prosecution case, the pretext call contains a number of statements made by the accused which can be understood to be admissions of sexual impropriety towards [TC] on more than one occasion and at least one occasion of inappropriate sexual behaviour towards [DT]. To be clear, at no stage during the pretext call does the accused specifically nominate or accept that he performed a particular type of inappropriate behaviour or particular types of inappropriate behaviour or he doesn’t make reference either to what sort of physical conduct that inappropriate behaviour constituted.

26. In developing this part of the opening, the prosecutor referred to the admission made by the appellant during the call that he had touched girls on their breasts, but emphasised that this did not form part of any allegation made by either TC or DT against the appellant.
27. The prosecutor opened that the trial Judge would be asked to find that:^[10]

... the accused’s statements viewed in the context of the conversations as a whole constitute admissions, and acknowledgement that there was a relationship between the accused and the complainant, [TC], and during the course of their relationship there were two or more incidents of sexual misconduct by the accused towards the complainant over a period of time, albeit that the accused’s claim or assertion in the call was that it was over a short period time.

28. Then, a little later in the course of the opening, the prosecutor explained the relevance of the evidence concerning the interaction outside the Malvern church:^[11]

Just in relation to the “just get over it” comment that [TC] will tell your Honour the accused said to her at the Malvern church, the prosecution don’t seek to rely on that comment, if your Honour finds that that was what the accused said, as any sort of admission to sexual impropriety of [TC] or her sister. Rather the prosecution points to the earlier conversation at the Malvern church and the accused acceptance during the telephone call that there was such a confrontation where he accepts he was dismissive or unwilling to talk to [TC] as being a matter that’s supportive of her credibility, in other words, what she says occurred at Malvern church gains a degree of support from what the accused said.

29. The prosecutor concluded on this topic in the following terms:^[12]

The accused’s comments in the pretext call and on the prosecution case are highly significant and probative evidence which tends to support each complainants’ allegations of these specific sexual acts occurring within the piano lessons and in the context of the piano teacher-pupil relationship they had with the accused.

30. The prosecutor then provided a reference to the decision of the Court of Criminal Appeal in R v S, PC,^[13] and explained that there would be no evidence led of complaint pursuant to s 34M of the Evidence Act 1929 (SA).
31. The only witnesses in the trial were the two complainants.
32. For the purposes of narrowing the issues, immediately following the prosecution opening, the then-counsel for the appellant advised the trial Judge that engagement in two or more sexual acts was denied in respect of each complainant, and that any physical contact was “either incidental to the purposes of teaching or it did not have a sexual connotation”.^[14]
33. The other elements of the charge were not, counsel explained, in dispute.^[15]
34. Given the abandonment of the Rule 49 Notice, there was no debate before the trial Judge concerning s 4 of the Surveillance Devices Act 2016 (SA).^[16]
35. In this Court, senior counsel for the appellant questioned the admissibility of the evidence concerning the pretext call. However, none of the issues recently considered by this Court in Davies v The Queen were canvassed before us.^[17] Rather, though it was not suggested that there was any relevant “incompetence of counsel” ground of appeal,^[18] the burden of the appellant’s case rested on the proposition that, in substance, the trial Judge had impermissibly relied on the complainant’s own evidence regarding the pretext call and the church incident so as to “bolster” her credibility.^[19]
36. In the course of his submissions, senior counsel for the Director emphasised that the starting point was the admissibility, and permissible use, of the evidence concerning the pretext call. It was submitted that, when read as a whole, its relevance lay in the admissions made by the appellant in response to what was said by the complainant during the call. In addition, he contended that, because the incident at the Malvern church was discussed during the pretext call, it was necessary that evidence about that incident be led. Without evidence about that incident, one could not properly understand the full meaning and context of the references made to it during the course of the pretext call.
37. On this basis, the Director contended that there was no attempt to lead self‑serving evidence from the complainant. Rather, her evidence was relevant as it was necessary to understand and evaluate what, on the Crown case, were admissions made by the appellant.
38. In order to understand these competing cases, it is necessary to set out, regrettably at some length, the transcript of the pretext call:^[20]

DAY said, “Hello”

TC said, “Hello is that Malcolm”

DAY said, “Yes it is”

TC said, “Oh hello I’m sorry to disturb you, I’m hoping that you might be able to help me with an issue that I’m having with my dad, it’s [TC] here”

DAY said, “Oh”

TC said, “[PC]’s daughter”

DAY said, “Yes [TC]”

TC said, “I called your mobile number because I really didn’t want to speak to Norma, but I really need your help, are you somewhere where you can talk to me now”

DAY said, “I am yes”

TC said, “Yeah, well if you’ll just have, give me a minute, I’ll just explain what the issue is”

DAY said, “Sure”

TC said, “I’ve been thinking a lot about my childhood lately and I know that you know you must have been unhappy and you were having a, a hard time you know when we knew you too, you were going through a divorce and, and you know all”

DAY said, “Sure”

TC said, “Of these things, but do you remember 1 Christmas eve at Malvern Church when your son was performing and you told me, you know, just get over it, well it, it sort of hasn’t been easy just to get over, but the main problem I’m having at the moment is that I’m feeling so angry with my dad and I guess because I know that you told him what happened”

DAY said, “Mm”

TC said, “And I guess you probably said sorry to him, but he didn’t pass any of that onto me, so”

DAY said, “Yep”

TC said, “Part of this is that you know nobody ever said sorry”

DAY said, “Mm”

TC said, “To me”

DAY said, “Mm, mm”

TC said, “And dad won’t even tell me what you said to him and, and I wondered can you tell me what you told him”

DAY said, “Ok [TC] I hear you, um I’m not going to try and go back to that memory first, first of all let me please say that I am horrified and very, very sorry indeed that you have been through what, whatever that action caused or triggered or”

TC said, “Thank you”

DAY said, “Contributed to, so you have very much a heartfelt, I am sorry”

TC said, “Thank you”

DAY said, “Ok I believe, I probably didn’t say as much as that to your dad, for that matter because I, I was not positive minded really about [PC] myself, and indeed I think part of what happened that was poor on my part was a very bad way of trying to say I feel for you and I’m sorry a little bit for what I don’t think you realised you were going through”

TC said, “Mm”

DAY said, “I’ll stop there, I think I’ve said enough just to sort of give you a little bit of my motivation, I’m not saying that I was right, I’m saying that it was a misplaced care for you which caused what has caused so much problem for you apparently for all this time”

TC said, “Mm”

DAY said, “I will keep on saying I, to have said or either for you to have thought that I said just get over it”

TC said, “Mm”

DAY said, “That horrified me also because I know that you can’t one cannot just get over something if somebody tells them”

TC said, “Mm”

DAY said, “To their face particularly somebody whom they feel is responsible”

TC said, “Mm”

DAY said, “I, I know that I remember the incident which you are describing of course at the church, and I was aware at that time that I myself was undergoing quite a lot of help from other people”

TC said, “Mm”

DAY said, “And from other disciplines actually outside of the church”

TC said, “Mm”

DAY said, “And I part of my negative feeling and perhaps about your dad was that you know he made a bit fuss about having his psychology doctorate and so on and so forth and almost made a fool of himself at the church by at, at Maughan by sort of flaunting that at times, and I thought goodness if he can’t help somebody with that kind of anger or grief or whatever it was, a mixture of all sorts of things, I’m sure through the kind of you know to me through experience, you experienced along time ago”

TC said, “Yeah”

DAY said, “That was you know that’s again quite another element in that whole situation, there was a lot of elements in it, and some of them were bad from my point of view most definitely, but not all of them were, some of them were concern about some of the things that I thought were not as good as they should have been and I made um largely they are contributions towards trying to fix them”

TC said, “Mm just”

DAY said, “So I, I’ve said much more to you now than I would have ever said to [PC] about that whole scene”

TC said, “Mm um just in relation to sort of what happened”

DAY said, “Mm”

TC said, “Were you thinking about sort of how that would impact me as I grew up or, or was that just not sort of in your thinking”

DAY said, “When at Malvern Church or at ah”

TC said, “Well during”

DAY said, “the music lessons”

TC said, “piano lessons”

DAY said, “No, no I wasn’t thinking about it”

TC said, “Mm”

DAY said, “And in fact I, I was thinking more in terms of I wanted to express a gentleness and a love for you”

TC said, “Mm”

DAY said, “And, and I’m certainly not saying that it was the right thing to do, but that was much more than motivation and anything in terms of experience or anticipating that it was going to cause you a problem for a length of time”

TC said, “Yeah, I’m, I’m really blown away by how much you’ve said to me, how honest you’ve been is this something that you’ve got under control in your life”

DAY said, “What”

TC said, “Like”

DAY said, “Touching girls on their breasts”

TC said, “Well yes any of that sort of thing, yeah”

DAY said, “Yes”

TC said, “Yeah”

DAY said, “That’s not the sort of thing that one goes around doing and of course particularly in this day and age, we’re very much aware of the fact that a rather an unwise thing to do from one’s own point of view, for one’s own future”

TC said, “Yeah and, and nothing else you, you’re not are, are you still teaching piano or”

DAY said, “Yes look”

TC said, “Yep”

DAY said, “For heaven sake I’ve, I’ve had 100’s possibly 1000’s of people of all genders, I’m saying that, sorry a little bit flippantly”

TC said, “Mm”

DAY said, “But having been through my care and concern I have been, I am a qualified counsellor not only through the church but also in other ways as well, I’ve done a lot of work with people to my best knowledge in fact to my certainty I am known understood and loved by a number, a huge number of people”

TC said, “Mm”

DAY said, “And I’m trusted all the time as I go into people’s homes, teach children or if they come into my home, sometimes escorted which is perfectly ok of course and sometimes not escorted, which is also perfectly ok”

TC said, “Yeah do you think my dad knew what was happening when it was happening or did he not know until after”

DAY said, “I, um [TC] I don’t think ah he was aware, I mean what was happening was what you’re describing was ah it wasn’t one incident perhaps but it was still um a, a short period of time incidents um but interesting ah I don’t want to go too much into this because it’s not what you’re asking me about, but I think he found out about it through your sister talking to him and I, I actually felt that my treatment of her had been worse than my treatment of you, because I didn’t have the same positive motivation as I did to try and help you”

TC said, “Oh ok”

DAY said, “Does that make any sense”

TC said, “Um why, why”

DAY said, “To tell you the truth”

TC said, “Why”

DAY said, “I think what she has said to him almost puts all of the vixen hood onto you um ah whereas what she’d really objected to was a 1 off touch that I had given her, and that was more or less when she exploded and then she decided that she was going to blow the whistle as it were”

TC said, “Mm”

DAY said, “What you’re, you’re, you did say you have anger at your dad, it’s not my business but it’s my concern at the moment to say do you want to expand on that what can I do here”

TC said, “I guess they, he knew because I understand your ex-wife told him and I believe it was discussed during pre-marriage counselling with Norma is something that I’ve heard, I don’t know, you know I don’t know if these things are true”

DAY said, “Mm, mm”

TC said, “Um but he, he never got me any help and you know it wasn’t just a touch of a breast um what happened was so, so much more than that to me and”

DAY said, “Go on I, I’m, I’m listening don’t, don’t worry if you ... ”

TC said, “I don’t know, I don’t know how to say that honestly I think what happened between you and me has, has all but well it’s really damaged my life, I have never been able to have a rel, normal relationship with anybody, a man, I, I mean what, what did you think, you know when I grew up, what did you think I would think of male genitalia and, and that sort of thing you know like I, what did, you know when, when I have any, my partner is a woman now”

DAY said, “Mm”

TC said, “And she’s wonderful, don’t get me wrong”

DAY said, “Mm”

TC said, “But when we have physical contact”

DAY said, “Mm”

TC said, “Half of the time I’m thinking about you”

DAY said, “Mm”

TC said, “Because of what happened”

DAY said, “Mm, mm, this horrifies me on 2 levels first all of course that, that could have been precipitated by my poor action, but it also horrifies me in that, that this is young women problems that occur a huge amount of time and I ah are handlable a stupid word sorry but cure, curable by counselling by skilled practitioners”

TC said, “I’ve had so much counselling over the years and”

DAY said, “But you’re, you’re aware that other people have been through the same or much worse and seem to have been able to recover and what made me mad was that you didn’t get that kind of help form somebody who bragged about the fact that he was a, a clever psychologist”

TC said, “I agree, I agree with you on that one, I’m, I certainly do”

DAY said, “I cause I have discussed this um with somebody a female counsellor by the way as well and she was had a lot of insight in that one of these people were the ability to almost read minds from a distance and over a period of time and she saw quite a bit of what I have said to you now and I said hang on a moment are you just, are you reading me or are you reading [PC], or are you reading the other guy, she said I’m actually reading the other guy and saw um again a, a different kind of misplaced love for you coming from him. And she didn’t say that I was right but she said”

TC said, “Yeah”

DAY said, “I understand where you were, where you were coming from so you see”

TC said, “But you understand now that it was misplaced what, what you, you were doing”

DAY said, “Oh absolutely”

TC said, “The love that you were trying to”

DAY said, “Yes”

TC said, “Provide”

DAY said, “Oh yes I’ve known it all my life. I would like to have been able to say you know what can I do to help you, what and of course the, the answer usually is absolutely nothing because it’s the antipathy seen from you know what anticipates from the victim would have not made it possible for us to talk in a healthy way, I think you by the way have done something absolutely brilliant to ring me today, I think you’ve done a huge amount in terms of healing”

TC said, “I’m trying”

DAY said, “Hey you’ve done more than that, you, you have made the, made the action, taken the action to phone me, you must have done a bit of research trying to find out how you can phone me on my mobile, smart again you said you put some effort into it, you’ve listened to me, you have not jumped down my throat which of course you tried to do at Malvern and so I knew then that I couldn’t talk”

TC said, “Yes”

DAY said, “In a, in a accepting and loving way to you there, and of course you certainly got”

TC said, “Yeah”

DAY said, “that I wasn’t talking to you like that there”

TC said, “Yeah”

DAY said, “So you’ve, you have grown far, far more than I think you think you have, as you have shown by what you have just done and what we are going now and hopefully I believe I’m still doing a little bit of growing in that area myself”

TC said, “Ok all right”

DAY said, “Now the next thing I’m going to say if you’re going to sort of say wind up I am here, you know my phone number now, there are other people that I can put you onto but I’m, I appreciate what you’re saying that you have been in touch with counsellors and helpers and so on, if you need to get back to me again, even to blow, excuse me blow shit out of me, please feel free to do so. But if you want to do something other than that then you’re even more welcome to do, to contact me”

TC said, “Ok thank you very much for talking to me today”

DAY said, “I thank you for calling me and I very, very, very much hope that you are going to feel, feel much stronger very soon”

TC said, “Thank you, thank you Malcolm, ok”

DAY said, “Ok”

TC said, “Bye”

DAY said, “Goodbye to you, bye”

The reasons of the trial Judge

39. When addressing the prosecution case, the trial Judge explained the use of the evidence regarding the pretext call:^[21]

The evidence is received on the basis that it is said to be probative evidence supporting the credibility of TC about the sexual acts alleged to have been perpetrated against her on more than one occasion in the teacher/pupil relationship.

40. Later, the trial Judge explained his findings regarding the pretext call and the Malvern church incident:^[22]

I find that the pretext telephone call as it relates to TC only has relevance in that it tends to support the credibility of TC who alleges that the defendant perpetrated sexual acts against her in the course of their relationship of teacher and pupil. As I have said earlier, the defendant does not admit to any particular act of sexual impropriety with which he is charged. However, I have already reached my conclusion in relation to his conduct having regard to the evidence. The use to which I have put this evidence is in relation to its support of the credibility of TC and about the allegations that she said occurred.

...

Similarly, the evidence of TC about the Malvern confrontation has not been used by me on the basis of any implied admission by the defendant about any alleged sexual misconduct against TC. The confrontation is acknowledged by the defendant in the pretext call and this lends support to the credibility of the version of events given by TC. That has been my approach to that evidence. It is also relevant because the confrontation which occurred in or about the year 2000 formed part of the backdrop to the pretext call. In the pretext call, the defendant was familiar with the history of the matter and had a clear recollection of the Malvern confrontation. He was aware of the emotional state of TC and his recollection was that during that confrontation TC accused him of ruining her life; he then recognised her.

41. It is appropriate here to emphasise that the trial Judge found that both TC and DT were truthful, reliable and honest witnesses who gave their evidence in a clear, careful and thorough manner. By contrast, he rejected the appellant’s account as being untruthful, unreliable and inaccurate.^[23] His denials were rejected as “implausible”.^[24]

Disposition of the appeal against conviction

42. It is convenient to address the three appeal grounds together, commencing with the relevance and admissibility of the pretext call.
43. Evidence is relevant if it may rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of the probability of their occurrence.^[25] Evidence may also be relevant if it provides context or is necessary to an understanding of the narrative of the evidence of a witness.
44. The “bolster rule” stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or in cross-examination of another witness or in re‑examination of the party or witness attacked.^[26]
45. Evidence that may rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings remains relevant and admissible even if it may also have an effect on the credibility of a witness. In those circumstances, the evidence is relevant beyond “mere” credibility and does not offend the “bolster rule”.
46. When one has regard to the way in which the case was opened on behalf of the prosecution, and the findings made by the trial Judge, it is clear that the evidence concerning the pretext call was admissible as disclosing evidence of admissions, or at least implied admissions, made by the appellant regarding inappropriate conduct, including conduct of a sexual nature, arising in the course of the relationship of music teacher and pupil.
47. Accordingly, the evidence did not merely represent out of court, self-serving statements which were prima facie hearsay and inadmissible,^[27] because the evidence contained what are sometimes described as “informal” admissions by words made by the accused.^[28] The evidence was not admitted merely in aid of supporting or “bolstering” the evidence of a witness, and certainly not in the form of self-serving statements by that witness, being in this case the complainant, TC.^[29]
48. A reading of the whole of the pretext call transcript demonstrates that the complainant was concerned to repeatedly put to the appellant that there had been inappropriate conduct by him and that it had included conduct of a sexual nature. At times, the appellant simply avoided the complainant’s questions and, at other times, he was either silent or prepared to acknowledge that his conduct was inappropriate. A close reading of the pretext call transcript also demonstrates that this occurred on more than two occasions and, at least arguably, was capable of comprising an admission about two or more unlawful sexual acts toward the complainant in the course of a relationship within the meaning of s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
49. Clearly, however, the evidence gave rise to what is sometimes described as an implied admission in the sense that the appellant’s statements about his contact with the complainant and his love and regard for her (however misplaced) demonstrated a sexual interest in the complainant which was capable of corroborating or at least supporting her account, even if it did not precisely accord with the allegations she made concerning the particular sexual activity that she said had occurred.
50. This kind of evidence has long been accepted as being capable of corroborating or at least supporting the credibility of a complainant.^[30]
51. In all of these circumstances, there can be no complaint about the admission of the pretext call into evidence. At the least, it contained what may be described as “implied” admissions.
52. Because the interaction or incident outside the Malvern church was discussed during the pretext call, there could be no complaint about the admission of that evidence, either. The references to what occurred outside the Malvern church could not be understood without knowing what the complainant maintained had occurred outside the church. As can be seen from the transcript, there was little dispute between the complainant and the appellant about what had occurred.
53. Whilst the trial Judge did not identify all of the potential grounds of admissibility outlined by this Court, he did accept that the pretext call supported the complainant’s credibility and he did not use what occurred outside the Malvern church as evidence of “any implied admission”. Rather, the evidence about the “confrontation ... formed part of the backdrop to the pretext call” and was acknowledged during the pretext call.
54. There can be no complaint about the use of the evidence by the trial Judge in this case, or the reasoning he gave regarding his use of that evidence. The reasons of the trial Judge are not inadequate.
55. This case provides no occasion to address the directions given in cases involving “vague or general conduct, or the failure to make a denial”.^[31]
56. This case provides no occasion to consider the application of the proviso.^[32]

Disposition of the appeal against sentence

57. Following the verdict on 25 September 2020, submissions in mitigation were made to the Judge and the appellant was sentenced on 1 December 2020.
58. At the time of sentence, the appellant was 79 years of age, without any criminal antecedents. At the time of his offending, the appellant’s first marriage had failed. He married a second time in 1990 and has since enjoyed what the sentencing Judge described as a stable and loving relationship. The sentencing Judge accepted that the appellant had thereafter led an exemplary life and there were a number of favourable, indeed glowing, character references.
59. Since 1990, despite some ill-health, the appellant’s heart condition was adequately managed with medication.
60. The sentencing Judge accepted that the appellant’s life was in turmoil at the time of his offending. Nonetheless, he emphasised that sexual offending against children called for “strong sentencing ... [which] achieves the sentencing objectives of general and personal deterrence, punishment and the protection of the safety of the community”.
61. A particularly important feature recognised by the Judge was that the appellant had abused and exploited a relationship of trust and authority over a sustained period. This had, the Judge recognised, seriously damaged the victim and “changed her whole life”. She has been diagnosed with a post-traumatic stress disorder and engaged in self harming behaviours, entertaining thoughts of suicide.
62. The Judge regarded it as important that the appellant had expressed no remorse or contrition. Indeed, he continued to deny his offending and, according to the sentencing Judge, had “no insight about that offending”.
63. Senior counsel for the appellant emphasised to this Court that, though the head sentence came within the ruling made in R v D,^[33] the non-parole period of two-thirds of the head sentence was manifestly excessive. He pointed to the appellant’s advanced age which, whilst not uncommon in cases such as this, was highlighted to reinforce that a significant proportion of the balance of his life had been commendable and this augured well for rehabilitation. As it was put to us, the appellant had made a significant contribution to the community during the course of a long history of providing musical education in South Australia.
64. In these circumstances it was contended that, consistently with House v The King^[34] and Dinsdale v The Queen^[35], a non-parole period beyond around one half of the head sentence was both unjust and manifestly excessive.
65. Nonetheless, the appellant accepted that there was no “prevailing norm” regarding the length of a non-parole period as a proportion to a head sentence,^[36] and it was appropriate to consider the minimum time that it was necessary for the defendant to spend in prison “in order to satisfy the punitive and deterrent and preventative purposes of punishment”.^[37]
66. Indeed, the appellant also accepted that, recently, the Court of Criminal Appeal has both reiterated the breadth of the sentencing discretion when fixing a non-parole period and acknowledged that non-parole periods of between one-half and three-quarters of the head sentence will generally be fixed.^[38]
67. In our opinion, it cannot be said that there has been any error in the exercise of the sentencing discretion reposed in the Judge in this case.
68. Whilst there were various matters which suggested scope for leniency, the Judge gave full credit to these, acknowledging the appellant’s “exemplary life”. These were, no doubt, taken into account when fixing the non-parole period at two‑thirds of the head sentence. However, the matters suggesting leniency could not be afforded undue weight, otherwise offenders in cases such as these would “escape due punishment”.^[39]
69. The need for punishment and general deterrence loomed large in this case given the appellant’s lack of remorse or contrition and his ongoing denials, in circumstances where his offending represented a very serious abuse and exploitation of his position of trust and authority over a minor, during a prolonged period.
70. In our opinion, permission to appeal against sentence must be refused.

Conclusion

71. The appeal must be dismissed.

^[1] R v D [1997] SASC 6350; (1997) 69 SASR 413, 423-424 (Doyle CJ). See, more recently, R v RGC [2020] SASCFC 102 (Doyle J, with whom Stanley and Parker JJ agreed): there the sentence was 12 years imprisonment (after a 20 per cent reduction on account of a plea of guilty), with a non-parole period of eight years imprisonment (being two-thirds of the head sentence). After an allowance of six months for time spent in custody and on home detention, the adjusted head sentence was 11 years, six months and the non-parole period seven years, six months.

^[2] R v MWD, [8]

^[3] See R v M, DV (2019) 133 SASR 470, [58] (Blue J, Kourakis CJ and Lovell JA agreeing); R v Mann [2020] SASCFC 69, [24]-[29] (Kourakis CJ, Kelly and Peek JJ agreeing).

^[4] R v MWD, [228], [248].

^[5] R v MWD, [279].

^[6] R v MWD, [86].

^[7] R v MWD, [86].

^[8] Trial Transcript, p 4.

^[9] Trial Transcript, p 9.

^[10] Trial Transcript, p 12.

^[11] Trial Transcript, p 13.

^[12] Trial Transcript, p 15.

^[13] R v S, PC [2008] SASC 285; (2009) 102 SASR 199, [13] (Duggan J).

^[14] Trial Transcript, p 18.

^[15] Trial Transcript, p 17-18.

^[16] See, by way of example: Groom v Police [2015] SASC 101; (2015) 252 A Crim R 332 (Nicholson J); Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116; (2018) 132 SASR 63, [101]-[105] (Doyle J); Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452, [70]-[73] (McColl JA and Latham J, Adams J dissenting); R v DRF (2015) 263 A Crim R 573, [90]-[91] (Simpson JA); Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309, [46]-[48] (Doyle CJ). See, particularly on the exercise of the discretion to exclude: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, [90]; R v Broyles [1991] 3 SCR 595, citing R v Hebert [1990] 2 SCR 151.

^[17] Davies v The Queen [2021] SASCA 26 (Kelly P, Livesey and Bleby JJA) (4 May 2021).

^[18] Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, [12]-[20] (Gleeson CJ), where it was emphasised that, even if incompetence of counsel was not a ground relied upon there might, nonetheless, arise the potential for argument regarding a substantial miscarriage of justice.

^[19] R v Usher (2014) 119 SASR 22, [5], [38]-[40], [65]-[70] (Kourakis CJ, with whom Peek J agreed, Gray J contra). See also, as to prior consistent statements: R v Bucca; R v Castle [2018] SASCFC 42, [129]-[131] (Stanley and Nicholson JJ and Rice AJ), citing Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479 (Dixon CJ), 490 (Windeyer J).

^[20] A recording of the call was Exhibit P3 and the transcript MFI P4 at the trial.

^[21] R v MWD, [83].

^[22] R v MWD, [272], [277].

^[23] R v MWD, [204]-[209].

^[24] R v MWD, [230].

^[25] R v H, T (2010) 108 SASR 86, [64] (Gray J).

^[26] R v Palmer [1998] HCA 2; (1998) 193 CLR 1, [49], nn 40 (McHugh J): "[I]n general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up", R v Turner [19751 QB 834, 842.

^[27] R v H, ML [2006] SASC 240, [25]-[27] (Vanstone J); R v Helps (2016) 126 SASR 486.

^[28] It is well accepted that what a party admits to be true may reasonably be presumed to be so: Slatterie v Pooley [1840] EngR 227; (1840) 151 ER 579, 581.

^[29] Cf, R v Bucca and Castle [2018] SASCFC 42, [129].

^[30] B v The Queen [1992] HCA 68; (1992) 175 CLR 599; R v S, PC [2008] SASC 285; (2009) 102 SASR 199, [10]-[15] (Duggan J, with whom Nyland and White JJ agreed); R v W, CT [2019] SASCFC 18, [41] (Lovell J, with whom Kourakis CJ and Stanley J agreed): “evidence of sexual attraction may support, and in some circumstances strongly support, allegations of specific acts”.

^[31] R v MNJ [2006] VSCA 226; (2006) 166 A Crim R 501, [27]-[37] (Warren CJ, with whom Buchanan and Ashley AJA agreed); Choudhary v the Queen [2013] VSCA 325, [38]-[58] (Priest JA, with whom Maxwell P and Lasry AJA agreed). See also R v Wildy (2011) 111 SASR 189, where it was held that the failure to give directions on evidence concerning admissions such as these occasioned no miscarriage of justice. There the issue concerned the accused’s payment of $6,000.00 to a complainant years after the alleged abuse which was said to be indicative of a consciousness of guilt even though that had not been suggested during the trial.

^[32] Cf, Oks v The State of Western Australia  [2019] HCA 10 ; (2019) 265 CLR 268.

^[33] R v D [1997] SASC 6350; (1997) 69 SASR 413, 423-424 (Doyle CJ).

^[34] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).

^[35] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-326 (Gleeson CJ and Hayne J).

^[36] R v Creed (1985) 37 SASR 566, 569 (King CJ).

^[37] R v Stewart (1984) 35 SASR 477, 477 (King CJ).

^[38] R v McIntyre [2020] SASCFC 101, [84] (Doyle J, with whom Stanley and Hughes JJ agreed), citing R v Palmer [2016] SASCFC 34, [4] (Kourakis CJ).

^[39] R v V, AJ [2012] SASCFC 10, [3] (Doyle CJ, concurring with Gray J): “Offenders will escape due punishment if the passage of time and resumption of a law-abiding life are given too much weight in cases of this kind”.