Allison (a pseudonym) v The King; R v Allison (a pseudonym)

[2025] SASCA 33

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ALLISON (A PSEUDONYM) v THE KING; R v ALLISON (A PSEUDONYM)

[2025] SASCA 33

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David)

28 March 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE

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

The respondent was charged with five counts of sexual offences against his three stepchildren, KD, AT and ISD, all of whom were under the age of 14 at the time of the offending.

The sexual offending allegedly occurred against a background of violence committed against the complainants and their mother, PT, while the respondent was living with them, between 2012 and 2017.

Following a trial by a Judge sitting without a jury, the respondent was convicted of two counts of unlawful sexual intercourse with a person under the age of 14 contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) ('the CLCA') against ISD (counts 4 and 5).

The respondent was acquitted of two counts of maintaining an unlawful sexual relationship with a child contrary to s 50 of the CLCA, against KD and AT (counts 1 and 3) and one count of aggravated assault contrary to s 20(3) of the CLCA against KD (count 2).

With a reduction of time served in custody and on home detention bail, and pursuant to s 26 of the Sentencing Act 2017 (SA), the Judge imposed a head sentence of 11 years and 13 days' imprisonment and fixed a non-parole period of eight years, seven months and 20 days.

The prosecution case relied substantially on similarity of account or improbability reasoning between the three complainants.  There was no challenge to the admissibility of all the complainant's evidence on each of the charge(s) relating to each complainant, excluding count 2.

It was the defence case that the evidence of each complainant was not sufficiently credible or reliable to rely on beyond reasonable doubt, and any similarities in the complainants' accounts were attributable to collusion or contamination.

The Director of Public Prosecutions (SA) ('the Director') appeals against the acquittals on counts 1 and 3. The Director's sole ground of appeal complains that the Judge erred at law by failing to engage with similarity of account or improbability reasoning and did not properly consider whether any doubt entertained in respect of the complainants could be resolved by improbability reasoning.

The respondent appeals against his convictions on counts 4 and 5.

The respondent complains that the Judge failed to take into account relevant considerations such as purported inconsistencies and inadequacies in the evidence, provided inadequate reasons, and the verdicts are unreasonable and cannot be supported by the evidence.

The respondent also appeals against his sentence on the grounds that the principles of totality and the authority of R v D were misapplied, and the sentence is manifestly excessive.

Held (by the Court) allowing the Director's appeal against the acquittals and remitting counts 1 and 3 to the District Court for retrial; dismissing the respondent's appeal against conviction; and allowing the respondent's appeal against sentence, and re-sentencing the respondent:

The Director's appeal against acquittals

1.   Absent concoction and contamination, it was necessary for the Judge to consider the improbability of three children having fabricated a similar account when assessing the credibility and reliability of the complainants' evidence then under consideration.

2.   The Judge failed to bring to account the probative force of improbability reasoning when evaluating the charges relating to KD and AT.  This was an error of law capable of affecting the verdict; acquittals were not inevitable.

3.   Notwithstanding the principles of double jeopardy, and the anxiety and distress caused to the respondent by being twice vexed in relation to the same allegations, it is in the interest of justice to grant the Director permission to appeal.

4.   This is not an appropriate case to exercise the residual discretion to dismiss the appeal.

The respondent's appeal against conviction

5. On an independent assessment of the whole of the evidence and record, it was open to the Judge to be satisfied beyond reasonable doubt that the respondent was guilty of counts 1 and 3, contrary to s 49(1) of the CLCA.

6.   The Judge explicitly considered the differences in the evidence as to ISD's complaint. It was open to the Judge to resolve any inconsistencies in a manner that did not lead to an adverse finding as to ISD's credibility.

7.   The Judge's reasons were not inadequate.

The respondent's appeal against sentence

8.   Notwithstanding the objective seriousness of the offending, and the limited matters of mitigation, the sentence was disproportionately high to the two discrete offences of unlawful sexual intercourse. While applicable, the sentencing standard in R v D needs to be applied with some flexibility.

9.   The sentence imposed was manifestly excessive. The respondent is re-sentenced to nine years' imprisonment with a non-parole period of seven years backdated to commence on 4 May 2022.

10. An intervention order in the same terms as that imposed in the District Court is made.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 49(1), 50; Criminal Procedure Act 1921 (SA) ss 157(b), 157(1)(b)(i); Evidence Act 1929 (SA) ss 9, 34P(2)(a); Joint Criminal Rules 2022 (SA) r 204.2(1)(a); Sentencing Act 2017 (SA) ss 26, 26(2a), 53(1)(b), referred to.

Eddy (a pseudonym) v The King [2024] SASCA 115; R v Berry [2024] SASCA 116; R v Brand (a pseudonym) [2025] SASCA 17; R v C, CA [2013] SASCFC 137; R v D (1997) 69 SASR 413; R v Fitzgerald & Fleming [2023] SASCA 34, discussed.

Adam (a pseudonym) v The King [2024] SASCA 149; Burgoyne v The King [2024] SASCA 61; Hoch v The Queen (1998) 165 CLR 292; M v The Queen (1994) 181 CLR 487; R v Bradley [2024] SASCA 56; R v Brougham (2015) 122 SASR 546; R v Donovan [2025] SASCA 7; R v Fleming; Rv Maher (2017) 129 SASR 27; R v Garner; R v Webb [2021] SASCA 68; R v Hamra (2016) 126 SASR 374; R v Lian [2023] SASCA 122; R v Seymour (a pseudonym) [2024] SASCA 41; R v Willingham (2012) 112 SASR 278; Warner v The King (2022) 142 SASR 275, considered.

ALLISON (A PSEUDONYM) v THE KING; R v ALLISON (A PSEUDONYM)
[2025] SASCA 33

Court of Appeal - Criminal: Doyle, Bleby and David JJA

1. THE COURT: Allison (a pseudonym) (‘the respondent’) was tried by a judge sitting without a jury on an Information for child sexual offences relating to his stepchildren - KD, AT and ISD.  

2. The prosecution case was that the respondent sexually abused the complainants between 2012 and 2017.  The offending allegedly occurred against a background of violence committed against the complainants and their mother. In proof of the charged sexual offences, the prosecution relied on similarity of account or improbability reasoning. There was no challenge to the admissibility of all the complainants’ evidence vis-à-vis the charged offence(s) relating to each complainant. The defence case was that the evidence of each complainant was not sufficiently credible or reliable to rely on beyond reasonable doubt, and any similarities in the accounts were attributable to collusion or at the very least, contamination.  

3. The Judge acquitted the respondent of the charges relating to KD and AT (counts 1, 2 and 3) but found him guilty of the charges relating to ISD (counts 4 and 5).

4. The Judge, using s 26 of the Sentencing Act2017 (SA) (‘the Sentencing Act’), imposed a head sentence of 12 years’ imprisonment and fixed a non-parole period of nine years, seven months and seven days. That sentence was reduced for time served in custody, and on home detention bail, to a head sentence of 11 years and 13 days with a non-parole period of eight years, seven months and 20 days commencing on 4 May 2022.

5. The Director of Public Prosecutions (SA) (‘the Director’) now applies for permission to appeal against the acquittals relating to the alleged sexual offending against KD and AT (counts 1 and 3), and the respondent appeals against the convictions relating to ISD (counts 4 and 5). The respondent also challenges the sentence as manifestly excessive and having been infected by specific error.

6. The Director’s ground of appeal involves a complaint that the Judge failed to engage with similarity of account or improbability reasoning, and did not consider whether any doubt she may have entertained in respect of the offence(s) on any one complainant’s account could be resolved on the basis of the evidence of the other complainants by improbability reasoning.

7. The respondent’s grounds of appeal complain that the Judge, in finding the respondent guilty of the charges relating to ISD, failed to take into account relevant considerations (namely, the cumulative effect of all the purported inconsistencies and inadequacies in ISD’s evidence), provided inadequate reasons and that the verdicts are unreasonable and cannot be supported by the evidence.

8. In relation to the sentence appeal, the respondent complains that the Judge misapplied the principles of totality and the authority of R v D;[1] and the sentence is manifestly excessive.

   [1] R v D (1997) 69 SASR 413.

9. For the reasons which follow, we grant permission and allow the Director’s appeal against the acquittals and remit the matter to the District Court for re-trial, dismiss the respondent’s appeal against conviction, and allow the respondent’s appeal against sentence and re-sentence the respondent.

   Overview of the evidence

10. The respondent was charged with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) in relation to KD (count 1) and AT (count 3). In respect of ISD, the respondent was charged with two counts of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the CLCA (counts 4 and 5). The respondent was also charged with one count of aggravated assault contrary to s 20(3) of the CLCA in relation to KD (count 2).

11. As mentioned, the respondent was acquitted of counts 1, 2 and 3 but convicted of counts 4 and 5.

12. Before turning to consider the appeal against the acquittals, and the appeal against the convictions, it is necessary to provide a summary of the evidence relating to the charges.  

    KD

13. KD was born on 10 August 2007. The offending was alleged to have occurred between 10 August 2012 and 26 September 2017, when KD was aged between five and 10 years old.  The evidence of KD was adduced by way of oral testimony and in the form of audio-visual records. He was 13 and 14 years old at the time of participating in the interviews and 15 years old at the time of giving evidence. 

14. KD gave evidence that the respondent committed various sexual acts against him and in his presence. Those acts included the respondent showing him pornography and masturbating in his presence; an occasion of forced fellatio during which he felt like he was choking and recalled spitting out semen; and repeated attempts by the respondent to have penile/anal sexual intercourse with him. KD said the respondent would pull him from his bed and take him to the couch in the lounge room where he would remove KD’s clothing. KD said that he would use ‘self-defence’ on the respondent but on at least one occasion, the respondent penetrated KD’s anus with his penis. 

15. KD gave evidence of three specific occasions that the respondent sexually abused him against a background of other alleged sexual acts.

16. KD described the first incident as having occurred when he was five years old, and about six months after his mother started a relationship with the respondent. He said it occurred at the ‘Bombay Street house’. KD said the respondent forced him to ‘suck [his] penis’ and threatened to kill him if he did not do so. KD said that he had been asleep when the respondent woke him up and told him to go into the lounge room. There, the respondent ‘rammed’ the back of his head and made him suck his penis. KD said that he spat out sperm and ran back to his room.

17. The last occasion involved the respondent penetrating KD’s anus with his penis. This incident occurred again at the Bombay Street house when KD was aged nine or 10 years. The respondent woke him up at midnight, hit his head on the side of the bed and told him to be quiet. The respondent then made him go to the lounge room and swung him onto the couch. The respondent played pornography on the television, started masturbating and then pinned KD down and placed his penis in KD’s anus. KD said it was painful, he started to cry and then his mother woke up and the respondent stopped. KD said that he then ran into his room, jumped out of the window and lay on the trampoline, which was in the front yard of the house.

18. During the first interview, KD spoke of the last time the respondent ‘tried to do something.’ He said the respondent ‘tried sticking his penis in my bottom again but I punched him in the penis and he hopped up immediately, I ran to my room, locked the door, jumped out the window because there was a lock on the door at the time like the last time [he] tried to do something, locked the door, jumped out my window and sat on the trampoline.’ 

19. KD later added that the respondent punched him in the face when KD had punched him ‘in the private[s]’. That physical incident forms the basis of the aggravated assault charge (count 2).

20. In his second prescribed interview, KD gave evidence that there was a second occasion when the respondent placed his penis inside KD’s anus, but he punched the respondent’s penis, ran away to his room, locked the door and then jumped out of his window and lay on the trampoline. The Judge considered KD was in fact recounting the very same incident the subject of the aggravated assault charge.[2] As to this incident, in the first prescribed interview, KD said there was no penetration of his anus but in the second interview he said there was, in fact, penetration. In cross-examination, KD said that he can’t recall if this incident during which the respondent hit him happened or not.[3]

    [2] Reasons for Verdict, [835]-[836].

    [3]     Reasons for Verdict, [175].

21. KD gave conflicting accounts as to the number of times the respondent had anal sexual intercourse with him. In his first prescribed interview, KD said it occurred on one occasion only, that being the incident described as the ‘last time’.  In the second interview, when answering leading questions from the interviewer which suggested there were two occasions of anal sexual intercourse, he said it occurred ‘just twice.’ In cross-examination (and during an earlier proofing at the Director’s office), KD said it occurred three times.[4]

    [4] Reasons for Verdict, [185], [583].

22. KD also gave evidence that following the incidents of sexual abuse, the respondent made threats to his life. KD also described the respondent physically assaulting him on other occasions and having seen violence inflicted by the respondent on his mother and siblings. He gave evidence of specific occasions when the respondent was physically violent towards his mother and ISD.

23. As to the evidence of initial complaint, KD said that he first spoke about the offending to his mother’s new partner, CJ. He said this conversation took place in the year after his mother and the respondent ended their relationship. He said that CJ inquired whether the respondent had ever tried to have sex with him, and during this conversation CJ informed him that the respondent was asking AT to ‘suck his dick’ and have sex with him, and that he ‘had stuck his penis in ISD’s bum too’. KD responded by disclosing that the respondent was ‘trying to rape me and stuff’.

24. KD gave evidence that he disclosed the offending to CJ when he did because he felt safe with him and trusted him. KD explained that he had not previously told anyone about the alleged offending because he ‘didn’t want to get killed’. 

25. As to the suggestion of collusion or concoction, KD said that he had never spoken to his siblings, AT and ISD, about the offending because he did not want to ‘stress them out’. However, he said that at a time when his mother and the respondent were still in a relationship, AT told him that, ‘(the respondent) keeps asking me to suck his penis’.  KD said that ISD also told him something sexual had occurred with the respondent, however this occurred after KD had reported the allegations to the police.

26. It was suggested to KD, and he denied, that he fabricated the allegations for various reasons including: to get the respondent away from his family; as a result of having heard allegations made by others; because others had told him to make allegations against the respondent; and to avoid getting in trouble for things he had done. KD also denied that he had sexually abused AT, and that he had fabricated the allegations to deflect any blame away from him in that regard.

    AT

27. AT was born on 1 July 2010. The offending was alleged to have occurred between 1 July 2014 and 26 September 2017, when AT was aged between four and seven years old. She was aged 11 years at the time of participating in the interviews, and she was aged 12 years at the time of giving evidence. The Judge found that AT presented as far less mature than her chronological age consistent with her disadvantaged upbringing. After conducting an inquiry under s 9 of the Evidence Act 1929 (SA) (‘the Evidence Act’), her Honour considered that AT was only capable of giving unsworn evidence.

28. AT gave evidence that the respondent committed various sexual acts against her from when she was aged four years until her mother’s relationship with the respondent ended (that being when she was about seven years old). Those sexual acts included the respondent touching her underneath her clothing and on her bottom, kissing her on the lips, asking her to touch and suck his ‘private parts’, the respondent causing her to perform fellatio on him, and the respondent committing acts of digital and penile penetration of her vagina and anus. 

29. AT gave evidence that the respondent also committed various physical assaults upon her and that she witnessed acts of violence by him on her mother and siblings.

30. The prosecution relied on the evidence of KD that AT had disclosed the offending to him as evidence of ‘initial complaint’, notwithstanding AT’s evidence that she had not spoken to KD or ISD about the offending. It was AT’s evidence that she first disclosed the offending to her mother’s partner, CJ. AT said that she told him:

    … I remember I told him that [the respondent] would make me suck his penis and he would always come in my room and he would finger me and he would do stuff like that.

    …

    That he also used to take me into the lounge room and he used to tell me to pull my pants down and then he’d put his penis inside of me, like inside of my vagina.

31. The evidence was relied upon as an elaboration of her initial complaint to KD. AT said that she did not provide any detail about the offending because she could not remember some parts, and she was ‘terrified and scared’. She denied that her disclosure occurred on an occasion when CJ caught her smoking and that she fabricated the allegations to get herself out of trouble. She also denied that CJ told her about allegations made by KD and ISD before she disclosed the alleged offending to him. AT explained that she had not previously told anyone about the sexual offending because the respondent had threatened to kill her, and her family, if she did so.

1. It was suggested to AT, and she denied, that she fabricated the allegations for various reasons including: to get the respondent out of her life because she did not like him; because she had been told by others to say the respondent had sexually abused her; and because she had heard other people say that he had sexually abused them.

2. AT agreed in evidence that she was spoken to by police about other unrelated sexual allegations on 21 May 2019. She agreed this was after the alleged offending by the respondent had commenced, and that she did not disclose the alleged offending to police.  She explained that she did not do so because she believed, ‘he was going to kill me, the rest of my family and we were never going to see the light of day’.[5]

   [5]     Reasons for Verdict, [291].

   ISD

3. ISD was born on 30 June 2006. The offending was alleged to have occurred between 30 June 2014 and 26 September 2017, when ISD was aged between 10 and 11 years of age. He was aged around 15 years old at the time of making his statements to police, and 16 at the time of giving evidence.

4. ISD gave evidence about two occasions when the respondent penetrated ISD’s anus with his penis. ISD said that on the first occasion he was woken at night and taken from his bedroom to the lounge room where the respondent penetrated ISD’s anus with his penis.  He said this occurred on the couch. ISD said that it ‘hurt really badly’ and that the next day, the respondent threatened him and told him not to tell anyone.

5. ISD gave evidence of a second occasion, around one year after the first occasion, when he was aged 10 or 11 years. He and the respondent were at home, and his mother and siblings had gone to the shops. The respondent was on the couch, and in ISD’s presence he began to masturbate, and told him to come over to the couch or he would hit him. ISD moved to the couch. The respondent then removed ISD’s lower clothing, placed him on his lap (so that he was facing away from the respondent) and inserted his penis into ISD’s anus. ISD could not remember how the incident stopped or whether the respondent ejaculated.

6. ISD gave evidence that the respondent physically assaulted him with his fists and with extension power cords and a long leather belt. He said that he also witnessed the respondent assaulting his siblings (except AT) and his mother.

7. ISD disclosed the offending first to JH (a friend of the complainants’ mother’s new partner, CJ), and later the same day, to his mother. The inconsistencies between the witnesses as to the terms of his complaint is the subject of the respondent’s appeal against conviction and discussed in more detail later in these reasons.

8. It was suggested to ISD, and he denied, that he had discussed the alleged sexual abuse by the respondent with his siblings, KD and AT. He said that he only became aware of the fact of the allegations by KD and AT, and not the detail, after the police became involved. ISD said that they had never spoken about the allegations with each other, and he never witnessed any alleged offending by the respondent against either KD or AT.

9. It was suggested to ISD, and he denied, having fabricated the allegations for various reasons including to get the respondent out of his life and to avoid getting into trouble for sexual acts he had committed on others.

   Other evidence

10. The prosecution also adduced evidence from the complainants’ mother, PT. She generally confirmed the complainants’ evidence as to the violence perpetrated by the respondent towards her, and the circumstances in which their relationship came to an end in 2017. She also gave evidence that the respondent physically disciplined the children with a belt or his hand and regularly threatened to kill her and her children.

11. The complainants’ mother also gave unchallenged evidence as to the timing and location of where the respondent and her family lived at the relevant times, and the layouts of their homes. She said that if they argued, the respondent would often sleep on the couch, and there were other times when she woke during the night and found the respondent was not in bed with her. She also said there were occasions about once or twice a week when she left the complainants alone with the respondent while she walked to the shops.

12. As to ISD’s disclosures and evidence of complaint, PT gave evidence of an occasion, after ISD had spent time with JH, when ISD told her that the respondent had forced him to ‘let him put his dick inside his bum’.

13. PT denied that she had told her children to fabricate the allegations against the respondent.

14. The prosecution also led evidence from CJ as to the disclosures made by KD and AT, as evidence of complaint. They also adduced evidence from JH as to the disclosures as evidence as an initial complaint and evidence from JH as to the disclosures made by ISD to him. Again, this evidence was directly relevant to the respondent’s grounds of appeal against conviction and is discussed in more detail later in these reasons. 

15. Finally, the prosecution adduced evidence from the investigating officer, Detective Brevet Sergeant Joel Manson. The respondent was arrested for the alleged offending against KD on 20 October 2020. There was no evidence as to when he was arrested for the offences relating to AT and ISD. Detective Brevet Sergeant Manson conducted a record of interview with the respondent on the same day as his arrest. This was tendered at trial. During the interview, the respondent expressed surprise and dismay at the allegations and denied the relevant offending.

16. The respondent did not give evidence at trial but called evidence from his sister, OA. She testified as to her observations of the relationship between the respondent and the complainants’ mother, PT, as well as to his relationship with the complainants more generally. Relevantly, OA said that the respondent had never sexually abused her (contrary to the evidence of the complainants’ mother). She also said that she was present for a ‘family meeting’ where the respondent, the complainants’ mother and KD were also present. She said that during the meeting there was discussion about the inappropriate sexual behaviour between KD and AT. This was contrary to the evidence of KD, who said that he was unaware of the allegations. 

    The parties’ addresses

17. In her closing address, the prosecutor made the submission that the evidence of each complainant was detailed, compelling and cogent. She submitted that the evidence of each complainant, standing alone, was capable of being accepted by the Judge beyond reasonable doubt. Relevantly, the prosecutor also relied on similarity of account or improbability reasoning. The prosecutor placed considerable emphasis on the similarities in the accounts, namely that each complainant described the respondent penetrating his or her anus with his penis, at night, accompanied by threats or acts of physical violence. The prosecutor also submitted that the Judge could, on the evidence, exclude collusion or contamination as a reasonable possibility, and in the absence of collusion or concoction, the evidence gave rise to the improbability of three children giving such similar accounts unless the offending occurred. Accordingly, it was strongly probative of guilt on each charged offence (except count 2).  

18. In his closing address, defence counsel submitted that the credibility and reliability of each complainant’s account was undermined by the internal inconsistencies in his or her evidence and did not provide a sufficient foundation for a finding of guilt beyond reasonable doubt on any of the charges. Defence counsel also submitted that KD and AT had been exposed to sexual behaviours by others. This provided an explanation for their ability to recount sexual activity which may have otherwise been considered unusual for a child of their ages. 

19. Defence counsel also submitted that all three complainants and their mother had a motive to fabricate the allegations, and the Judge could not exclude collusion and contamination between them. Therefore, it was not open to the Judge to deploy similarity of account or improbability reasoning in reaching her verdicts.

    The trial Judge’s reasons for verdict

20. The Judge commenced her reasons by setting out the elements of each of the charged offences. She then gave herself legal directions as to: the standard and onus of proof; the need to assess each count separately and ‘only take into account the evidence that is relevant and admissible to the count under consideration’; the use of special arrangements by which the complainants and their mother, PT, gave evidence; and that no adverse inference was to be drawn from the fact the defendant elected not to give evidence. There is no challenge to the terms of those legal directions on either appeal.

21. The Judge then provided detailed summaries of the background, facts, and evidence adduced at trial, none of which is in dispute on appeal. At the outset of her summary of the evidence, the Judge gave herself further legal directions as to: the initial complaints made by KD, AT and ISD pursuant to s 34M of the Evidence Act; the significant forensic disadvantage suffered by the respondent due to the effluxion of time between the alleged offending and the trial; the uncharged acts of physical violence and sexual acts; the use of the respondent’s alleged lies as being  relevant only to his credibility; and the purported motives for the complainants to lie. There was also no challenge on appeal to any of those legal directions. 

22. The Judge then turned to consider the evidence of discreditable conduct which is directly relevant to the Director’s appeal against the acquittals. As mentioned earlier, the prosecution sought to rely on the evidence of each complainant in proof of all counts on the basis of similarity of account or improbability reasoning. While there was no challenge at trial to the admissibility of the evidence under s 34P(2)(a) of the Evidence Act, her Honour nonetheless provided a ruling as to the admissibility of the evidence (as part of her reasons for verdict) in the following terms:[6]

    I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.

    [6] Reasons for Verdict, [79]-[80].

23. The Judge then gave herself directions as to the permissible and impermissible uses of the evidence:

    If I am satisfied that the accounts of the alleged offending as given by KD, AT and ISD are so similar that they could not have been independently imagined or fabricated, unless they had colluded between the two of them or had spoken to each other such that their version of events became contaminated, then I can use those similarities when considering whether there is a reasonable possibility that one or more of them are mistaken about the alleged offending or simply making it up.

    However, I must not use this evidence to reason that the accused is more likely to have committed any of the offences because of the multiplicity of allegations and complainants. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would have committed the offences and therefore he is more likely to have committed any or all of the offences.

24. Next, the Judge set out a series of factual matters which were either agreed or were not in ‘real dispute’ during the trial. Her Honour then provided a detailed summary of the evidence adduced from the complainants and other witnesses and counsels’ closing addresses. Relevantly, her Honour, when summarising the prosecutor’s final address, outlined the prosecution submissions as to similarity of account reasoning. Her Honour said:[7]

    [7] Reasons for Verdict, [637]-[648].

    The prosecutor submitted that the similarities in the accounts of each complainant supported improbability, or similarity of account reasoning. It was submitted that when the evidence of KD, AT and ISD was considered in their entirety, it contained similarities which, absent collusion, demonstrated the improbability that each complainant had independently fabricated allegations of sexual misconduct against the accused.

    It was submitted that any suggestion of collusion between the complainants could be excluded as being a reasonable possibility.

    In this respect, it was submitted that the Court should accept KD’s frank and compelling evidence that he had not told AT about the alleged abuse because he did not want to stress or worry her, nor had he told ISD for the same reasons. KD was also quite clear that at no time prior to him talking to the police had ISD ever told him about being sexually abused by the accused.

    ISD had given evidence that he never told KD or AT about being abused by the accused, nor had they spoken to him about any alleged abuse.

    Although KD recalled AT telling him that the accused was asking her to suck his penis, the very limited detail she had provided to him at that time, was insufficient to then draw a long bow to conclude that the other detailed sexual acts, described by KD, were the product of any alleged collusion.

    It was submitted that the Court should accept the straightforward and collective evidence of the complainants that there was no discussion whatsoever between them about the alleged offending perpetrated upon them by the accused.

    Further, although KD said that when he told CJ about the alleged offending, CJ told him that AT and ISD had been similarly abused, CJ denied this.

    It was submitted that the complainants had given their evidence with candour. There was no evidence that together, they had plotted against the accused or that at any time they had seen or witnessed any alleged sexual activity, thus prompting them to make up their own allegations against the accused.

    It was submitted there was simply no evidence to support a finding that there was even a reasonable possibility that KD, AT and ISD had colluded or concocted a story about the accused’s alleged offending.

    As to the similarities in the accounts given by each complainant, the prosecutor noted the following:

    1.    Fundamentally, each complainant had described being sexually offended against by their mother’s partner.

    2.    Each complainant had described the abuse occurring in circumstances where there was a high risk of detection, often when their mother was at home or asleep.

    3.    The offending often involved the accused waking the children from their sleep and taking them or telling them to go from their bedroom into the lounge room.

    4.    Both KD and AT were told by the accused that if they told anyone about the offending they would be killed.

    5.    Each complainant had described the accused perpetuating physical abuse to others in the family and each complainant’s description of the various sexual acts involved at least to some extent, a degree of the accused using physical force and/or verbal abuse during the offending.

    6.    Both KD and ISD had described the accused masturbating in their presence before anally penetrating them. KD, AT and ISD had all detailed anal penetration.

    7.    KD and AT had both described the accused pushing on the backs of their heads when he was forcing them to perform fellatio on him.

    It was submitted that these similarities in the accounts between the complainants and the improbability of them independently imagining or concocting similar experiences with the accused was compelling. It was submitted that the only explanation for these similarities was that the complainants had each given a true account of what the accused had done to them.

    Further, it was submitted that it was simply improbable that they had each independently fabricated their accounts and there was no evidence before the Court that there was any contamination of their accounts.

25. When turning to consider defence counsel’s closing address, the Judge systematically outlined each of defence counsel’s criticisms in relation to each complainant and his overarching submissions that the quality of the evidence did not allow for proof beyond reasonable doubt on any of the charged offences.

26. As to similarity of account or improbability reasoning, the Judge summarised defence counsel’s submissions which were to the effect that the evidence did not exclude, as a reasonable possibility, that the similarities in the complainants’ accounts were by reason of their collusion or contamination. Her Honour then proceeded to make various factual findings, including:

    ·The complainants’ mother was regularly the victim of physical violence inflicted on her by the respondent.

    ·The respondent regularly inflicted physical punishment on the complainants including at times by hitting them with a belt, and that they witnessed the respondent physically assault their mother. They all were in fear of him.  

    ·During the record of interview (relating only to KD’s allegations) the respondent was ‘putting on a show’ as to his innocence.

27. Relevantly, the Judge then returned to the issue of similarity of account reasoning and considered whether it was reasonably possible that the complainants colluded to concoct the allegations. After considering all of defence counsel’s submissions, and the relevant evidence on the topic, her Honour concluded:[8]

    Having done so, I reject that as simply not being a reasonable possibility having regard to all of the evidence and in particular, for the following reasons:

    ·   I agree with the submission made by the prosecutor that none of the complainants presented as being sly or devious. To the contrary, they were each very up front and matter of fact in the way they gave their evidence, ISD particularly so.

    ·   I repeat my observations as to the level of disadvantage and vulnerability of each of the complainants. AT and KD, in particular, presented as very simple children, of relatively low intelligence. Indeed, in my view they presented as lacking the intellectual capacity to be part of a considered and continued plan to together, fabricate and maintain false claims against the accused.

    ·   KD and ISD shared a bedroom throughout the period of the alleged abuse. Both made allegations that the accused had dragged them from their beds to sexually abuse them. If the allegations were concocted by the complainants acting together, it is remarkable that neither ISD nor KD gave any evidence of ever waking and seeing the accused in their bedroom near another boy’s bed or of taking one of the other boys out of the room.

    ·   None of the complainants claimed to have seen the accused behaving in any sexually inappropriate way with the other complainants.

    [8]     Reasons for Verdict, [794].

28. The Judge also rejected the defence case that the complainants had a common motive to lie; namely, to remove the respondent from their lives for good. She rejected that purported motive primarily on the basis that none of the complainants raised the allegations until many months after their mother’s relationship with the respondent had ended.

29. The Judge then directly considered the charges relating to each complainant in turn. As to KD (counts 1 and 2), she made the following findings.

    ·KD was an honest witness and his evidence about how he felt during the alleged sexual acts and description of the sexual abuse was compelling. For example, the Judge described his evidence as to the taste of semen and spitting it out as ‘not something that could be imagined and not a detail one would simply make up, particularly given KD’s young age.’[9]

    ·The Judge noted that KD may have been otherwise exposed to sexual activity (referring to other sexual experiences he may have had with his older brother, BD or having seen pornography) such that there was another explanation for how KD could describe the alleged unlawful sexual acts other than the fact of their occurrence.

    ·The Judge referred to inconsistencies and ‘anomalies’ in KD’s evidence with respect to the alleged offending, the most significant of those being the change in the number of times KD said the respondent placed his penis in KD’s anus.

    ·As to count 2, the charge of aggravated assault, the Judge noted that KD when asked in cross-examination, if the respondent had punched him in the face during the relevant incident said, ‘I don’t know.’

    ·As to the inconsistency between KD and CJ as to the terms of his initial complaint, the Judge accepted that the evidence of initial complaint showed some consistency of conduct but found ‘the difference in the recollections of both KD and CJ as to the circumstances in which the complaint was first made, how many discussions were had between them and the precise content of those discussions, means that this evidence is only of limited weight in [the] overall assessment of KD’s reliability and credibility.’[10]

    [9]     Reasons for Verdict, [820].

    [10]   Reasons for Verdict, [861].

1. As to the ultimate question of whether the prosecution had proved counts 1 and 2, the Judge concluded: [11]

   There were very many compelling aspects to KD’s account. Indeed, I consider it is most likely that the accused did sexually abuse him on a number of occasions, both at Sturt Street and Bombay Street.

   However, in a criminal trial such as this, where the prosecution must prove the accused’s guilt beyond reasonable doubt, the Court must be satisfied not only that KD is an honest witness, but that his account of the alleged offending is accurate, and that there is no reasonable possibility that the accused is innocent of these very serious charges.

   After carefully considering all of KD’s evidence, I have concluded that the internal inconsistencies in his evidence and in particular the differences in the evidence given by him as to the number of times the accused put his penis in his bottom, are simply too significant for me to be satisfied beyond reasonable doubt as to the accused’s guilt with respect to count 1.

   Further, KD gave evidence in cross-examination that he can now no longer remember any time when the accused woke him up, took him into the lounge room and punched him in the face, being the alleged facts associated with count 2. In the circumstances, while there is every possibility this did happen, I cannot be satisfied of that beyond reasonable doubt.

   As such, after carefully considering all of the evidence and carefully scrutinising KD’s evidence, I simply cannot be satisfied, beyond a reasonable doubt, as to the accused’s guilt with respect to counts 1 and 2.   

   [11] Reasons for Verdict, [875]-[879].

2. The Judge then turned to consider the charge relating to AT (count 3). She found that there were aspects of AT’s evidence that were ‘extremely compelling’ and indicative of her describing real events experienced by her. However, her Honour found that there were also aspects of her evidence which impacted adversely on AT’s reliability. They were as follows.

   ·AT did not report the alleged offending to police on 21 May 2019 when she was asked about other unrelated sexual allegations.

   ·Inconsistencies as to the number of times the respondent made her perform fellatio on him.

   ·Inconsistencies as to the number of times the respondent penetrated her vagina with his penis. 

   ·The Judge found that AT was not telling the truth when she said that on one occasion the respondent digitally penetrated her bottom while she was lying next to her mother. The Judge disbelieved AT’s evidence on this topic. 

3. The Judge also considered that AT was susceptible to being led as to her answers and was suggestible. Her Honour also had regard to the fact AT’s evidence was unsworn. Her Honour then concluded that she was not satisfied beyond reasonable doubt of count 3. Her Honour said:[12]

   Having carefully scrutinised AT’s evidence, while I consider it highly likely AT is telling the truth and that the accused did sexually abuse her on multiple occasions, given the very high onus on the prosecution, and the numerous difficulties with AT’s evidence as outlined above, I simply cannot be satisfied of both the reliability and credibility of her account of that alleged abuse beyond reasonable doubt.

   [12]   Reasons for Verdict, [917].

4. The Judge then considered the charges relating to ISD (counts 4 and 5). She found that ISD presented in ‘a very straight forward and open manner’. He impressed as a witness. After detailing her reasons for finding that ISD gave his evidence with ‘complete honesty’, her Honour relevantly addressed the issue of similarity of account reasoning, and said:[13]

   As outlined above, I cannot find that the evidence given by KD as to the alleged offending against him, or the evidence given by AT as to the alleged offending against her, is both credible and reliable beyond reasonable doubt.

   In such circumstances, that evidence is inadmissible in proof of counts 4 and 5 and I have not used this evidence in proof of counts 4 or 5, either by engaging in improbability/similarity of account reasoning, or otherwise.

   (Emphasis in original.)

   [13] Reasons for Verdict, [926]-[927].

5. After reviewing all of ISD’s evidence and counsels’ submissions as to its cogency, with a particular emphasis on defence counsel’s criticisms of ISD’s credibility and reliability, the Judge found Counts 4 and 5 proven beyond reasonable doubt.

6. We will return to defence counsel’s criticisms of ISD’s evidence when considering the respondent’s grounds of appeal against conviction. The Judge did not rely on similarity of account or improbability reasoning when reaching her verdicts on counts 4 and 5. However, she did exclude that ISD’s evidence was contaminated by ‘anything he may have heard others say’ about the respondent.

7. While this is a summary of the Judge’s reasons for verdict, it should be noted that the evidence adduced by the prosecution at trial consisted of lengthy prescribed interviews of KD (two interviews) and AT (three interviews) as well as evidence from all three complainants. Her Honour’s reasons for verdict consisted of 174 pages and descended into a detailed summary of the prescribed interviews, and defence counsel’s many and varied criticisms, both significant and somewhat immaterial, of the complainants’ testimony. It is not necessary to replicate that level of detail to determine this appeal.          

   The Director’s application for permission to appeal

8. The Director’s application for permission to appeal complains of a failure by the Judge to consider the cross-admissibility of the complainants’ evidence and apply similarity of account or improbability reasoning. The Director advances the following ground of appeal:

   The Learned Trial Judge erred in acquitting the respondent of counts 1 and 3 in that she did so without determining whether the evidence on counts 3, 4 and 5 removed any doubt she had in relation to count 1, and whether the evidence on count[s] 1, 4 and 5 removed any doubt she had in relation to count 3. 

9. Under this appeal ground, the Director contends that the Judge’s failure to consider the cross-admissibility of the complainants’ evidence by way of similarity of account or improbability reasoning before acquitting the respondent of counts 1 and 3, is an error of law. 

10. Section 157(1)(b)(i) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) confers jurisdiction on this Court in hearing appeals against acquittals. The jurisdiction is wide allowing matters to be brought ‘on any ground’ with the permission of the Court. In R v Fitzgerald & Fleming[14] this Court outlined statements of principle applicable on any such application. Relevantly, where the Director alleges an error of law (as he does in this case), those principles include:

    [14]   R v Fitzgerald & Fleming [2023] SASCA 34.

    ·The onus rests on the prosecution to establish an error of law.

    ·The consequences of different errors of law may vary and a grant of permission on a ‘mere blemish’ in the judgment where an accused person may well have been acquitted by the trial judge, irrespective of the error, may prove unjust or oppressive.

    ·In circumstances where an error of law is alleged, a proper basis to intervene requires that the Director has established a material error; that is, one capable of affecting the outcome. On an independent review of the record, this Court must be satisfied that there was an error of law capable of affecting the verdict, and that an acquittal was not inevitable on the materials before the trial court, irrespective of the error. It is for the respondent to establish that an acquittal was inevitable on the materials before the trial court.

    ·The principles of ‘double jeopardy’ apply to this Court’s consideration of the Director’s application for permission to appeal pursuant to s 157(1)(b)(i) of the CPA. The question of whether to grant permission to appeal involves considerations beyond the merits of the case.

    ·What is sufficient for a grant of permission does not depend on any rigid formula and will be informed by the circumstances of the case.

    ·The use of the term ‘may allow’ in the dispositive powers in s 157(1)(b) connotes a ‘residual discretion’ to grant permission to appeal but dismiss the appeal having regard to the interests of justice and principes of double jeopardy. 

11. Both parties to this appeal proceeded on the basis that this Court is undertaking a re-hearing.[15] 

    [15]   See R v Fitzgerald & Fleming [2023] SASCA 34; R v Donovan [2025] SASCA 7; Joint Criminal Rules 2022 (SA) r 204.2(1)(a).

    The nature of the alleged error

12. As outlined earlier, the Director contends that the Judge erroneously failed to engage in similarity of account or improbability reasoning. It is submitted that this mode of reasoning was central to the prosecution case, and of considerable strength in proof of the charged offences (excluding count 2). 

13. The Director submits that in assessing the significance of the alleged error, it is critical to focus on the Judge’s task in reaching her verdicts on counts 1 and 3. Consistently with the terms of s 50 of the CLCA, the prosecution was required to prove beyond reasonable doubt that the respondent committed two or more unlawful sexual acts with, or towards the relevant complainant during the particularised period. The prosecution was not required to establish the level of particularity as if the unlawful sexual acts had been charged as separate offences. The Director contends, correctly, that her Honour was required to consider the criticisms made of the complainant’s evidence by reference to what was in fact required to be proved under s 50. Given the nature of the challenges to the credibility and reliability of the evidence of KD and AT, considered in the context of the relaxed strictures of s 50, the Director submits that similarity of account or improbability reasoning was an important, indeed integral, strand of the prosecution case. Moreover, the Director submits that this mode of reasoning had the capacity to address defence counsel’s overarching criticisms as to the credibility and reliability of the evidence of KD and AT.

14. As outlined earlier, defence counsel did not challenge the cross-admissibility of the evidence of each complainant vis-à-vis the charges relating to the other complainants on the basis of similarity of account or improbability reasoning. It was accepted that there were obvious similarities between their accounts. The issue at trial was whether the prosecution could exclude as a reasonable possibility that there had been collusion (or at the very least contamination) between the complainants which defeated the probity of the evidence.  This was the basis upon which defence counsel urged the Judge to put to one side this mode of reasoning and approach the evidence of each complainant in a compartmentalised way. That being so, it was necessary for her Honour, in reaching her verdicts, to assess whether she could exclude collusion or contamination as a reasonable possibility, and if she could do so, her Honour was then required to bring this mode of reasoning to bear upon her consideration of the charged offences. 

15. On the prosecution case, the probative value of the evidence of similarity of account ‘lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.’[16] As Kourakis CJ explained in R v C, CA[17] (in relation to the admissibility of evidence of similarity of account under s 34P(2)(a) of the Evidence Act 1929 (SA) (‘the Evidence Act’)):[18]

    … 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 subconscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

    [16]   Hoch v The Queen (1998) 165 CLR 292.

    [17]   R v C, CA [2013] SASCFC 137.

    [18]   R v C, CA [2013] SASCFC 137 at [65].

16. The appropriate use of similarity of account was recently considered by this Court in Eddy (a pseudonym) v The King.[19]

    [19]   Eddy (a pseudonym) v The King [2024] SASCA 115 at [86]-[99].

17. Assuming concoction and contamination can be excluded, similarity of account reasoning requires a trier of fact, and the Judge in this case, to engage in an evaluative assessment of the strength of the similarities between accounts, and the likelihood of the truth of the allegations, having regard to the inherent unlikely coincidence between the different accounts. As part of that assessment, it was necessary in this case to consider the improbability of three children having fabricated a similar account when assessing the credibility and reliability of the complainant’s evidence then under consideration. 

18. As outlined earlier, the Judge in her reasons for verdict when summarising the closing addresses, outlined the prosecutor’s submissions as to the similarities in the accounts given by the complainants; and both parties’ submissions as to the possibility of collusion and/or contamination between accounts.  Her Honour later in her reasons under the heading of ‘collusion’ excluded as a reasonable possibility that the complainants had colluded to concoct the allegations.

19. Relevantly, the Judge then proceeded to consider the charges directly referable to each complainant. As to KD and AT, her Honour found that while ‘it is most likely’ or ‘highly likely’ that the respondent did sexually abuse each complainant, ‘the internal inconsistencies’ in the evidence of each child, and in relation to AT the fact she gave unsworn evidence, precluded her Honour from being satisfied beyond reasonable doubt of the relevant offences.

20. When turning to consider the charges relating to the complainants KD and AT, the Judge did not return to the topic of similarity of account or improbability reasoning before reaching her conclusion that she could not be satisfied beyond reasonable doubt of the charged offence then under consideration. More specifically, her Honour when assessing the credibility and reliability of each complainant, and the criticisms of their evidence, did not bring to bear the strong probative force of the improbability of three complainants giving such similar accounts of sexual abuse by the same offender unless the offending had, in fact, occurred.

21. It is to be accepted that by this stage of her reasons the Judge had:

    ·outlined the evidence relevant to each charged offence in detail;

    ·summarised the prosecution and defence case as to the probative force of similarity of account reasoning, the nature of the similarities and the possibility of collusion and/or contamination between complainants; and

    ·considered whether there was a reasonable possibility that the complainants had colluded to concoct the series of allegations and rejected that suggestion as ‘simply not being a reasonable possibility’ and provided reasons for excluding that possibility.

22. Relevantly, the Judge made findings that: in the absence of collusion or concoction, the evidence gave rise to the improbability of three children giving such similar accounts unless the offending occurred and accordingly, it was strongly probative of guilt on each charged offence; and that she could exclude collusion or concoction as a reasonable possibility. These were pre-conditions to the Judge engaging in this mode of reasoning. 

23. However, having made those findings, the Judge in her analysis of the evidence relating to KD and AT did not proceed to consider the force of the evidence of similarity of account reasoning in proof of the charge under consideration. Nor did her Honour bring to bear this mode of reasoning upon her evaluation of the credibility and reliability of each complainant’s evidence. 

24. It is apparent from the reasons that the Judge, while accepting the general honesty of the complainants KD and AT, was primarily troubled by the unreliability of the evidence of KD and AT as to the alleged unlawful sexual acts. The complainants were very young children at the time of the alleged offending. AT gave unsworn evidence, and there had been a significant elapse of time (particularly for a young child) between the offending and the trial. KD and AT had each given more than one lengthy interview which involved questioning which her Honour considered was suboptimal.  They had each provided numerous different accounts as to important aspects of the alleged sexual acts (which is explained by their young age, but a matter which her Honour still had to consider.) It is evident that given those inconsistencies, her Honour, while satisfied that it was ‘most likely’ or ‘highly likely’ that the respondent committed the alleged offences, felt constrained from finding each offence proved beyond reasonable doubt.

25. While those matters were all relevant considerations, they had to be considered in the context of the relaxed strictures of s 50, as reflected particularly by s 50(4). The cross-admissibility of the evidence of each complainant on the basis of similarity of account or improbability reasoning was an important, indeed essential, part of the prosecution case in meeting those challenges to the evidence of KD and AT. It was independent evidence which was capable of removing any doubt arising from the evidentiary weakness of the testimony of KD and AT when considered in isolation. However, in undertaking her analysis of the relevant charges relating to KD and AT, the Judge did not, at any point, consider or even refer to the probative force of the improbability of three children giving such similar accounts unless the offending occurred.

26. The respondent placed some reliance on the single reference in the Judge’s analysis of KD’s evidence that ‘after considering all the evidence’ she was not satisfied of his guilt. The respondent contends this reference to ‘all’ encapsulates improbability reasoning. We do not accept this submission. It is simply too much work for one line in a voluminous judgment to do. Nor does such a reference appear in her Honour’s analysis of the evidence relating to AT’s charges. The reference to ‘all the evidence’ is simply a reference to the other evidence adduced by the prosecution relevant only to the charges relating to KD, such as the complaint evidence and the interview where the respondent denied the allegations relating to KD.  

27. It is apparent from the reasons for verdict, considered as a whole, that the Judge adopted a sequential approach whereby she undertook an isolated assessment of each complainant’s evidence without deploying improbability reasoning. It appears her Honour considered that it was only if she was satisfied of the credibility and reliability of the complainant’s evidence, that it could form part of improbability reasoning. For example, when assessing ISD’s evidence, her Honour explicitly turned to improbability reasoning and disavowed reliance upon that mode of reasoning in relation to counts 4 and 5 on the basis she was not satisfied of the credibility and reliability KD and AT’s evidence beyond reasonable doubt.

28. This approach seems to have arisen from defence counsel’s misguided submissions that ‘for the court to utilise similarity of account reasoning, it must be satisfied of the reliability and credibility of the evidence underlying such alleged similarities.’ This was an erroneous approach. Before deploying improbability reasoning the Judge needed to be satisfied that the evidence gave rise to the improbability of the complainants giving such similar accounts of offending by the same person unless their accounts were true. As mentioned earlier, there was no challenge to the admissibility of the evidence and her Honour found in any event ‘the accounts of the alleged offending as given by KD, AT and ISD are so similar that they could not have been independently imagined or fabricated unless they had colluded between the two of them or had spoken to each other such that their version of events became contaminated.’ Her Honour was also required to exclude collusion or contamination between the complainants as a reasonable possibility, which she was able to do on the evidence.

1. The Judge did not need to make a finding that the evidence of a particular complainant was credible or reliable before deploying similarity of account reasoning. Indeed, while a complainant’s evidence considered in isolation may appear unreliable or lacking in credibility, the force of similarity of account reasoning is that it can have considerable strength in overcoming such doubts, particularly in cases involving young children.

2. In this case, the Judge appears to have compartmentalised the evidence relating to each complainant (without deploying improbability reasoning), and then reached her conclusions as to the credibility and reliability of each complainant and the related charge(s). After having concluded that she was not satisfied beyond reasonable doubt of the credibility and reliability of KD or AT, her Honour then explicitly did not use their evidence when evaluating the charges relating to ISD. This was an erroneous approach.

3. Irrespective of the approach taken, the Judge’s analysis in respect of each complainant’s evidence does not include any consideration, at all, of the improbability of three children giving such similar accounts unless the offending occurred. Nor did her Honour bring to account the probative force of improbability reasoning when considering her concerns as to the credibility or reliability of the evidence of KD and AT. Her Honour simply did not engage in the reasoning process at all.

4. For these reasons, the Judge’s failure to bring to bear the probative force of improbability reasoning when evaluating the charges relating to KD and AT was an error of law.  

   Permission to appeal

5. Having found that the Judge made an error of law, it does not necessarily follow that permission will be granted or the appeal allowed. For permission to be granted, this Court must be satisfied, on an independent review of the record, that there was an error of law capable of affecting the verdicts, and that an acquittal was not inevitable on the materials before the trial court, irrespective of the error. It is for the respondent to establish that an acquittal was inevitable on the materials before the trial court.

6. In this case, we are satisfied that the Judge’s erroneous approach to similarity of account or improbability reasoning, and her failure to deploy that mode of reasoning in relation to the charges relating to KD and AT, was capable of affecting the verdict. Indeed, the cross admissibility of the complainants’ evidence was an integral and highly probative aspect of the prosecution case. The complainants were young children at the time of the offending, and still young when they participated in their interviews and gave evidence. There were obvious inconsistencies in their evidence, both internally and with each other. To some extent this was to be expected, given their ages and disadvantaged upbringings. However, defence counsel strongly challenged the credibility and reliability of both KD and AT. Similarity of account or improbability reasoning would have carried strong probative force in meeting those challenges to the complainants’ evidence and in proof of the charges. The similarities of all three complainants’ accounts were pronounced, and as her Honour found, there was limited evidentiary support for collusion or contamination between them. It was an integral and highly probative aspect of the prosecution case on counts 1 and 3.

7. Moreover, we are satisfied on an independent review of the record that this was not a case where the credibility and reliability of each complainant’s evidence was so lacking that the Judge’s failure to deploy improbability reasoning would not have materially affected the verdicts. Indeed, in respect of KD her Honour found ‘it is most likely that that the [respondent] did sexually abuse him on a number of occasions.’ As to AT, her Honour found that it is ‘highly likely that AT is telling the truth, and the accused did sexually abuse her on multiple occasions.’ Again, the similarities in their accounts were marked and this mode of reasoning had the capacity to have considerable force in meeting defence counsel’s criticisms of the evidence. This was not a matter where, irrespective of the error, acquittals on counts 1 and 3 were inevitable.

8. In deciding whether to grant permission, this Court must have regard to the principles of double jeopardy,[20] noting that if permission is granted the respondent will face another trial and again be subject to the coercive power of the State in relation to the same matter. Indeed, the application of these principles to the determination of an application for permission to appeal against an acquittal has been regarded as stronger than in the case of an application for permission to appeal against a sentence.[21] It is also necessary to consider whether it would suffice for this Court to simply explain the error of law made by the Judge without interfering with the verdicts.

   [20]   R v Willingham (2012) 112 SASR 278, [29]-[33] (Doyle CJ, with whom Stanley J agreed); R v  Brougham (2015) 122 SASR 546, [29]-[45] (Peek J, with whom Gray and Nicholson JJ agreed); R v Hamra (2016) 126 SASR 374, [113]-[115], [122] (Peek J); R v Fleming; R v Maher (2017) 129 SASR 27, [60] (Peek J); R v Garner; R v Webb [2021] SASCA 68, [117] (Kelly P, Lovell and Bleby JJA).

   [21]  R v Brougham (2015) 122 SASR 546, [7] (Peek J, with whom Gray and Nicholson JJ agreed); followed in R v Garner; R v Webb [2021] SASCA 68, [78]-[81] (Kelly P, Lovell and Bleby JJA); and R v Fitzgerald (2023) 307 A Crim R 101, [54] (Doyle, Bleby and David JJ); R vDonovan [2025] SASCA 7 at [15] (Livesey P, Bleby and David JJ).

9. The alleged offending in this matter is objectively very serious.  For the reasons already mentioned, the error of law relates to a matter of principle, namely the correct approach to improbability reasoning in a trial involving multiple complainants. For the reasons outlined, it is a material error which had the capacity to affect the outcome. A highly probative aspect of the prosecution case was not determined in accordance with law. Bearing in mind the seriousness of the offending, which involved two child complainants alleging serious and prolonged sexual abuse by their then stepfather, we do not consider it is appropriate to simply identify the failure of the Judge to correct the erroneous approach. Notwithstanding the principles of double jeopardy, and the anxiety and distress caused to the respondent by being twice vexed in relation to the same allegations, we are satisfied that the materiality of the error, and the seriousness of the alleged offending means that it is in the interest of justice to grant permission.

10. For the same reasons, we are also satisfied that this is not a matter where it is appropriate to exercise the residual discretion in s 157(1)(b) and grant permission but dismiss the appeal. 

11. We grant permission to appeal and allow the appeal.  We set aside the acquittals on counts 1 and 3, and remit counts 1 and 3 to the District Court for a re-trial.

    The respondent’s appeal against conviction

12. Under appeal ground 1, the respondent complains that: the Judge failed to take into account various relevant considerations when finding the respondent guilty of the offences relating to ISD (counts 4 and 5); provided inadequate reasons in that regard; and the verdicts were unreasonable or could not be supported by the evidence.

13. Under appeal ground 2, the respondent’s complaint relates to the evidence of ISD’s initial complaint. The respondent contends that the Judge erred by drawing inferences which were not available on the evidence and by engaging in impermissible speculation; or in the alternative, her reasons for finding that the complaint evidence provided support for ISD’s credibility are inadequate. 

14. The respondent’s contention in relation to the first ground of appeal is, in effect, that the Judge did not take into account the cumulative effect of all of the criticisms made of ISD’s evidence, and, to that extent, failed to have regard to a relevant consideration. Defence counsel’s criticisms of the evidence during the trial were essentially as follows:

    ·the inconsistency between the evidence of ISD on the one hand, and JH and the complainant’s mother, PT, on the other, as to the terms of the initial complaint (discussed in greater detail in relation to appeal ground 2);

    ·purported inconsistencies between ISD’s evidence and earlier statements as to the alleged occasions of sexual abuse (for example, in relation to count 4, and how ISD came to lie on the couch, whether he was sitting or lying when the respondent took his pants off, and whether there was a movie showing on the television);

    ·that ISD had an earlier opportunity to complain to the police (when they spoke to him about a ‘bruise incident’) but did not do so;

    ·that ISD had a motive to lie.

    ·ISD’s comment in evidence that he ‘[doesn’t] own up to mistakes’ which was relied upon as undermining his honesty and credibility.

15. As mentioned earlier, the Judge methodically had regard to each and every one of defence counsel’s criticisms of the evidence. She outlined and considered each challenge under a separate heading in her reasons.  

16. In reaching her verdicts relating to ISD, the Judge also considered the issue of whether the respondent had the opportunity to commit the offences, noting that the first occasion of sexual abuse occurred at night when others were in the home increasing the risk of detection, and that the second occasion occurred during the day when other family members were out of the home.

17. The Judge also referred to her impressions of ISD as a witness and indicated that ISD was ‘up front’ and ‘matter of fact’ in his approach to giving evidence and showed ‘genuine emotion’ when recounting aspects of the offending. Her Honour also noted that ISD did not seek to exaggerate or embellish his evidence and gave relevant examples.

18. The Judge also considered the inconsistencies in the complaint evidence, discussed in more detail in relation to ground 2, and found that the complaint evidence ‘does demonstrate some, albeit limited consistency of conduct insofar as JH recalled ISD talking about two times he was abused and the timing of that complaint being when the accused was out of PT’s life and out of ISD’s life.’

19. As to both counts 4 and 5, the Judge positively disavowed any reliance on improbability reasoning in proof of those counts relating to ISD. For the reasons outlined earlier, that was an unduly favourable approach which was to the respondent’s advantage.

20. In relation to both counts, while accepting that there were indeed various inconsistencies in ISD’s account, the Judge considered they were not sufficiently material to cause her to doubt ISD’s evidence as to the alleged unlawful sexual acts the subject of the counts 4 and 5.

21. It is evident that the Judge in her reasons went into considerable detail by recounting her general observations of ISD as a witness; expressly considered each and every one of defence counsel’s criticisms of his evidence; and explained that notwithstanding those matters, she was satisfied of the credibility and reliability of ISD’s evidence. While it is to be accepted that her Honour did not explicitly say that she had considered the cumulative effect of the purported inconsistencies and alleged inadequacies in his evidence, that was very much the import of her detailed and extensive reasons for accepting the evidence of ISD.   

22. Further, to the extent that this ground of appeal contends that the Judge did not properly have regard to ISD’s failure to complain at an earlier opportunity, we reject that contention.  Her Honour explicitly considered defence counsel’s criticism that ISD did not complain of the alleged offending earlier when an opportunity arose to do so. In rejecting that submission, her Honour considered ISD’s explanation that he was frightened of the respondent, and that he was speaking with police about unrelated matters, so he was not focussed on the respondent’s sexual offending. Her Honour found ISD’s explanation was credible. That finding was open to her Honour given the evidence of the serious and protracted physical violence and threats inflicted by the respondent on ISD (and his siblings and mother). 

23. For those reasons, we are not satisfied that the Judge failed to have regard to any relevant consideration in accepting the evidence of ISD. Nor are we satisfied that her reasons were inadequate for so finding. To the contrary, the reasons were extensive and addressed all of defence counsel’s criticisms and submissions.

24. As to the contention that the verdicts on counts 4 and 5 were unreasonable or could not be supported by the evidence, the respondent relies on the inconsistencies in the complaint evidence, ISD’s failure to complain earlier when the opportunity arose, the respondent’s lack of opportunity to commit the offences, and the other inconsistencies in ISD’s evidence outlined above.

25. On our independent assessment of the evidence, none of the matters relied upon by the respondent, considered separately or looked at cumulatively, have caused us to doubt the credibility and reliability of ISD’s evidence that the respondent committed two acts of unlawful sexual intercourse by penetrating ISD’s anus with his penis.  Nor did they require the Judge to have entertained a doubt about the respondent’s guilt.[22] 

    [22]   M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ).

26. ISD gave a cogent and coherent account of both unlawful sexual acts, the subject of the charged offences. His credibility was supported by the fact of his initial complaint to JH, and by his elaboration of that complaint to his mother. The fact of ISD’s complaint was never in dispute. The inconsistencies in his evidence on the topic of complaint (discussed under appeal ground 2) were largely explicable by his age, the subject matter and JH’s observations of his distress. 

27. On our independent assessment of the whole of the evidence, we are satisfied that it was open to the Judge to be satisfied beyond reasonable doubt that the respondent was guilty. We do not consider that the verdicts were unreasonable or not supported by the evidence.

28. For those reasons, we grant permission to appeal but dismiss this ground of appeal.

29. The respondent’s second ground of appeal is directed towards the Judge’s findings on the topic of the complaint evidence as they related to an assessment of ISD’s credibility and reliability.

30. Relevantly, ISD gave evidence of an initial complaint to JH which he elaborated upon to his mother. ISD told JH that the respondent had ‘assaulted’ him but provided no other details. ISD then told his mother, PT, that the respondent had ‘sexually assaulted’ him.

31. ISD’s evidence on the topic of complaint was inconsistent with the evidence of JH and PT.

32. JH’s evidence was that ISD disclosed the offending to him in more elaborate and detailed terms. JH gave evidence that ISD told him that the respondent had ‘hurt’ him and had ‘sexually assaulted or raped him on two occasions.’ JH gave evidence that ISD said as follows:

    ·On the first occasion, his mother had gone to collect the children from school and the respondent talked him into it. He said he asked the respondent to ‘stop’, but he did not do so.

    ·On the second occasion, ISD was grounded from school and his mother took the children shopping at which time the respondent held him down and raped him.   

33. JH’s account of the terms of ISD’s complaint was also inconsistent with ISD’s evidence in court as to the circumstances surrounding the second occasion relevant to count 5. When giving evidence, ISD said that he stayed home with the respondent, not that he was grounded.

34. The complainants’ mother, PT, gave evidence that ISD told her that the respondent ‘forced him to put his - let him put his dick inside his bum’ and ‘made him suck his thing’. In evidence, ISD denied saying this to his mother. He also maintained that the respondent had never made him perform an act of fellatio upon him.

35. The respondent contends that the Judge, when reconciling these inconsistencies, made a finding that ISD’s mother, PT or her partner, CJ or both had discussed KD and AT’s allegations with JH so as to contaminate JH’s account.  The respondent submits that there was no evidentiary basis for that finding; and in any event, JH’s evidence did not correspond with the allegations of KD and AT but rather, broadly reflected the allegations made by ISD. Accordingly, the respondent contends that her Honour failed to have regard to a significant inconsistency in the evidence and thereby did not have regard to a material consideration; or, alternatively, her Honour’s reasons were inadequate.

36. We do not accept those contentions.

37. The difference between the evidence of ISD and JH as to the terms of the initial complaint was carefully considered by the Judge. Her Honour highlighted the inconsistencies between the evidence of ISD and JH on this topic, but ultimately found that the evidence established the fact of a complaint (a matter about which there was no dispute) which could demonstrate ‘some, albeit limited, consistency of conduct’ supportive of ISD’s credibility.

38. As to the submission that the Judge engaged in speculation as to the possible contamination of JH’s evidence, her Honour averted to the fact there was no specific evidence as to whether JH’s account of the complaint may have been contaminated by other information and made no finding in this regard. Her Honour said:[23]

    I have previously outlined my observations of JH and CJ. They clearly had a close friendship. CJ trusted JH enough to talk to ISD about his behaviour and told him about ISD behaving inappropriately. In these circumstances, while there was no specific evidence on this topic, CJ (and/or PT) may well have discussed with JH the various allegations made by the other children against the accused and/or other allegations relating to sexualised behaviour between the children. There was a multiplicity of such allegations, some involving occasions when the children were home from school.

    [23]   Reasons for Verdict, [1005].

39. It is evident from this passage of her reasons that the Judge did not make any factual finding that PT or CJ discussed the complainants’ allegations with JH. Nor did she make any finding that his account of ISD’s disclosures had been contaminated by the content of any such discussion. Rather, her Honour did no more than refer to this as a possible reason without reaching any conclusion or making any finding that this was, in fact, the explanation for inconsistency between the evidence of ISD and JH as to the terms of his complaint.    

40. Furthermore, the Judge explicitly considered the differences in the evidence of ISD and his mother, PT, as to the elaboration of ISD’s complaint, but accepted ISD’s evidence on the topic. This was based on her Honour’s reservations (expressed earlier in her reasons) as to the reliability of PT’s evidence.  It was open to her Honour to resolve any inconsistencies between the evidence of ISD and his mother, PT, in a manner that did not lead to an adverse finding as to ISD’s credibility.

41. For those reasons, we grant permission to appeal but dismiss this ground of appeal.

    The respondent’s appeal against sentence

42. The respondent was sentenced for two offences (counts 4 and 5) of unlawful sexual intercourse involving ISD.[24] The maximum penalty for each offence was imprisonment for 15 years.

    [24] In contravention of s 49 of the CLCA.

43. Under s 26 of the Sentencing Act, the Judge imposed a single sentence of 12 years’ imprisonment and fixed a non-parole period of nine years, seven months and seven days. After reducing both the head sentence and non-parole period for time served in custody, and on home detention bail, the Judge imposed a final sentence of 11 years and 13 days’ imprisonment with a non-parole period of eight years, seven months and 20 days backdated to commence on 4 May 2022.

1. The respondent appeals against his sentence on three grounds: the Judge erred in finding that the sentencing standard in R v D was applicable (ground 1); the Judge erred in applying the totality principle (ground 2); and the sentence was manifestly excessive (ground 3).

2. In her sentencing remarks, the Judge recounted the circumstances of the offending, and the impact of the offending on ISD. The victim impact statements revealed the profoundly adverse effect of the offending on ISD, and indeed his entire family.

3. The Judge outlined the respondent’s personal circumstances, and then turned to consider a submission made by defence counsel that the sentencing guidelines in R v D were not applicable. Her Honour rejected that submission citing recent authorities which held to the contrary.

4. The Judge then imposed the sentence set out earlier.

5. It is convenient to commence with a consideration of the respondent’s complaint as to manifest excess (ground 3) as during the appeal hearing, the other grounds of appeal devolved to what were, in effect, particulars of the manifest excess ground of appeal.  In doing so, it is necessary to say something more about the objective seriousness of the offences of which the respondent was found guilty.

6. As outlined earlier, the offending the subject of counts 4 and 5 involved two incidents of the respondent penetrating ISD’s anus with his penis. The respondent committed the offences when ISD was aged 10 or 11 years. Both incidents occurred in ISD’s home; the first, at night when the respondent woke ISD from sleep and caused him to move into the lounge room.

7. The two acts of anal sexual intercourse were committed with considerable force in the context of a home environment characterised by domestic violence whereby the respondent terrorised ISD and his family with physical assaults and various threats. The physical violence inflicted by the respondent on ISD and other family members was not the subject of any charges (except count 2 of which the respondent was acquitted). Accordingly, the respondent does not fall to be sentenced for that conduct. However, the Judge found the uncharged physical assaults proved and that evidence provides a context which underscores the vulnerability of ISD at the time the offences were committed. 

8. The respondent was ISD’s stepfather. The sexual offending involved an egregious breach of trust. This is a significant aggravating factor. The respondent’s role as ISD’s stepfather was to care, protect and nurture him. Instead, he violently abused that position of trust and responsibility for his own sexual gratification.

9. By reason of the objective seriousness of the offending and having regard to the principles of general deterrence and denunciation, as well as the primacy to be afforded the protection of the safety of the community, the offending demanded a significant sentence. The two offences were at the upper end of the scale of seriousness for this type of offending.

10. There was little which could be said on behalf of the respondent by way of mitigation. The respondent had demonstrated no insight into his offending. Nor had he shown any remorse.  There was no scope for leniency in that regard. There was also no material upon which the Judge could find the respondent had positive prospects of rehabilitation. He did not have the benefit of being a first offender. Whilst the respondent had no prior convictions for sexual offences, he had numerous antecedents including for failing to comply with bail agreements and non-compliance with court orders. There was, in fact, very little in the respondent’s personal circumstances which was mitigatory.

11. As to the contention (under appeal ground 1) that the sentencing standards enunciated in R v D were not applicable, this Court has explained in several recent authorities the relevance of the sentencing guidelines outlined in R v D to offences involving the sexual abuse of children, more generally.[25] 

    [25]   R v Lian [2023] SASCA 122 at [94]-[107] (Kourakis CJ, Lovell and Doyle JJA agreeing); R v Seymour(a pseudonym) [2024] SASCA 41; R v Bradley [2024] SASCA 56; R v Berry [2024] SASCA 116 at [68]-[70]; Adam (a pseudonym) v The King [2024] SASCA 149 at [72]-[76].

12. The sentencing guidelines outlined in R v D apply directly in cases involving a course of conduct including unlawful sexual intercourse with a child and committed by a person in a position of trust and authority.[26] The acts of unlawful sexual intercourse constituting such a course of conduct may in some cases be particularised and charged under s 50, or alternatively, in other cases they may be the subject of separate charges of unlawful sexual intercourse contrary to s 49 of the CLCA, and may or may not be attended by a background of other uncharged sexual acts.

    [26]   R v D (1997) 69 SASR 413 at 423 (Doyle CJ).

13. The sentencing standard in R v D also informs, and assists, sentencing for sexual offences involving a child, more generally.[27] The extent to which it will provide guidance will depend on the circumstances of the case.

    [27]   Warner v The King (2022) 142 SASR 275 at [79]-[80] (Livesey P), [118] (Doyle JA); Burgoyne v The King [2024] SASCA 61 at [21] (Livesey P, Bleby and David JJA).

14. As this Court explained in R v Berry:[28]

    ...this Court has repeatedly emphasised the flexibility that is appropriate, indeed required, in applying the guidance provided by R v D.  In each case, it will be necessary to have regard to considerations such as the nature and frequency of the offending; the duration of the period over which it occurred; the relationship between the offender and victim, including the extent to which the offender was in a position of trust and authority, or otherwise groomed or exploited the victim; the age and vulnerability of the victim; the age disparity between the offender and victim; whether the offending involved any use of force or coercion; the impact of the offending upon the victim; and the personal circumstances of the offender.

    [28]   R v Berry [2024] SASCA 116 at [69].

15. In the present case, contrary to the respondent’s submissions, the sentencing standard in R v D provided considerable guidance and was not to be ignored. It is to be accepted that the offending was confined to two discrete occasions of unlawful sexual intercourse which were not committed against a background of any other uncharged sexual conduct and did not constitute a course of conduct. To that extent, the sentencing standards were not directly applicable. However, the offending involved an egregious breach of trust of a very young child. It was necessary to have regard to the sentencing standards outlined in R v D, but they were to be applied flexibly recognising the absence of a course of conduct and the limited frequency of the offending.

16. As to the question of whether the Judge erred in respect of the principles of totality, they were of no application in this case. Her Honour chose to utilise s 26 of the Sentencing Act and impose one penalty. In order to comply with s 26(2a), her Honour indicated notional sentences of six years’ imprisonment for each offence and said that had she imposed separate sentences for each offence, she would have ordered they be served cumulatively. Given her Honour utilised s 26 and imposed one sentence, there was in fact no order that the sentences be served cumulatively.

17. However, had separate sentences been imposed, there was some scope to order partial concurrency, but it was limited given each offence was separated in time by about 12 months. As such, the offending involved two quite separate incursions into crime in circumstances where the respondent had the opportunity to reflect and desist from his unlawful conduct. Moreover, notwithstanding the objective seriousness of each offence, and the limited matters of mitigation, it cannot be said that all the sentencing objectives were spent by the imposition of the sentence for the first offence such as to require an order that the sentence for the second offence be served wholly concurrently. 

18. The complaint which appears to underpin this ground of appeal is better understood as an argument that the sentence was disproportionate to the offending and the offender, and falls to be considered as a species of manifest excess.

19. Returning then to the question of manifest excess, the serious features of the offending outlined above called for a significant sentence.  Notwithstanding the objective seriousness of the offending, and the limited matters of mitigation, as well as the need for the sentence to meet the demands of general and personal deterrence, and the protection of the safety of the community, we consider that the sentence was disproportionately high to the two discrete offences of unlawful sexual intercourse. To that extent, the sentencing standard in R v D while applicable needed to be applied with some flexibility. While the offending called for a significant sentence, we consider that the sentence imposed was manifestly excessive.

    Re-sentencing

20. In resentencing the respondent, we have had regard to the circumstances of the offending and the respondent’s personal circumstances as outlined in these reasons.

21. We utilise s 26 and impose a single sentence for both offences. Having regard to the objective seriousness of the offending, the maximum penalty of life imprisonment for each offence, and principles of general and personal deterrence, we impose a sentence of 10 years’ imprisonment. Pursuant to s 26(2a), we indicate that had we imposed separate sentences we would have proceeded as follows. For count 4, we would have imposed six years’ imprisonment, and for count 5, we would have imposed six years’ imprisonment. We would order that two years for the latter sentence be served concurrently with the first sentence to reflect the fact that some part of the sentencing objectives will have been met by the earlier sentence, and to ensure that the overall sentence is proportionate to the offending and offender.

22. Pursuant to s 53(1)(b) of the Sentencing Act, the non-parole period is required to be four fifths of the head sentence. Accordingly, we fix a non-parole period of eight years’ imprisonment. We reduce the head sentence and non‑parole period by 12 months for time spent in custody (eight months and four days) and time spent on home detention bail. This results in a sentence of nine years’ imprisonment and a non-parole period of seven years backdated to commence on 4 May 2022.

23. We impose an intervention order in the same terms as the Judge.

    Orders:

    1.In relation to the Director’s appeal against the acquittals on counts 1 and 3, we grant permission to appeal, allow the appeal, set aside those acquittals, and remit counts 1 and 3 to the District Court for a re-trial.

    2.In relation to the appeal against conviction, we grant permission to appeal on grounds 1 and 2, but dismiss the appeal.

    3.In relation to the appeal against sentence, we refuse permission to appeal on grounds 1 and 2; grant permission to appeal on ground 3, and allow the appeal against sentence.

    4.The respondent is re-sentenced to nine years’ imprisonment with a non‑parole period of seven years backdated to commence on 4 May 2022.

    5.We impose an intervention order in the same terms as imposed in the District Court.