Barry (a pseudonym) v The King - [2024] SASCA 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BARRY (A PSEUDONYM) v THE KING
[2024] SASCA 114
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
26 September 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - GENERALLY
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
This is a conviction appeal.

Following a trial by judge alone, the appellant was found guilty of the offence of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant is the appellant’s biological daughter. The prosecution case was that the appellant committed sexual acts with, or upon his daughter from July 2015 until January 2016. The appellant would drive the complainant to school. On the way to school, he would park his vehicle on the Esplanade at Brighton and expose his penis to the complainant and cause or incite her to touch his penis. This occurred on numerous occasions. The complainant and her brother would stay with the appellant and his partner every second weekend. The prosecution alleged that the appellant had penile/vaginal sexual intercourse with her at his house on numerous occasions. The last occasion this occurred was on 10 January 2016. The complainant did not see the appellant again after this time.
Following a telephone call between the complainant and the appellant on 26 January 2016, the appellant sent a series of text messages to the complainant which are the subject of this appeal.
The complainant made an initial complaint to her mother in 2019.
At trial, the appellant did not give evidence but adduced evidence from his former domestic partner.

The appellant advances two grounds of appeal. Ground 1 concerns the trial Judge’s use of the text messages. Ground 2 challenges the trial Judge’s use of adverse findings as to the complainant’s reliability. The appellant also complains that the trial Judge’s reasoning diluted the effect of the forensic disadvantage direction.
Held, by the Court, granting permission to appeal on both grounds but dismissing the appeal:
1.As to Ground 1, it was open to the trial Judge to use the evidence of the text messages when assessing defence counsel’s submission that the offending was inherently implausible. The tone and content of the text messages reflected the manipulative nature of the appellant’s relationship with his daughter and were supportive of aspects of the complainant’s account of the alleged sexual offending. There was no miscarriage of justice.
2.As to Ground 2, the inconsistencies in the complainant’s evidence and the adverse findings urged upon the trial Judge by defence counsel and accepted by his Honour, combined with his own assessment of the evidence, allowed for a factual finding that there were fewer occasions of unlawful sexual acts at the home than estimated by the complainant. It was open to the trial Judge to reason that his findings, in addition to undermining the complainant's reliability, also weakened defence counsel’s argument that the offending was implausible by reason of lack of opportunity.
3.The trial Judge explicitly had regard to the forensic disadvantage suffered by the appellant. There was no obligation on the trial Judge to repeat, or again refer to, that forensic disadvantage before reaching each of his findings and his ultimate conclusion. There was no miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1), referred to.
Hamra v The Queen (2017) 260 CLR 479; R v DT [2023] SADC 74; Robinson v The Queen (1999) 197 CLR 162, discussed.

BARRY (A PSEUDONYM) v THE KING
[2024] SASCA 114
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: Following a trial without a jury, the appellant was found guilty of the offence of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The complainant is the appellant’s biological daughter. At the time of the offending, the appellant had separated from the complainant’s mother. The complainant and her brother would stay with the appellant every second weekend. During the school week, the appellant would also collect the complainant in his vehicle and take her to school.
The prosecution alleged that from about July 2015, the appellant, on the way to taking the complainant to school, would park his vehicle on the Esplanade at Brighton. There, he allegedly exposed his penis to the complainant and caused or incited her to touch his penis. This occurred on numerous occasions.
In the latter part of 2015, the appellant also allegedly had penile/vaginal sexual intercourse with the complainant at his home on numerous occasions. The last of these occasions was on 10 January 2016, after which time the complainant did not see the appellant again.
In late January 2016, the complainant spoke with the appellant by telephone. Following that telephone call, the appellant sent her a series of text messages (Exhibit P3) which are the subject of this appeal.
The complainant made an initial complaint to her mother in early 2019.
At trial, the prosecution adduced evidence from the complainant, her mother, a general practitioner as to the complainant’s mental health, and two police officers about the investigative process. The appellant did not give evidence. He called evidence from his former domestic partner, Ms H, with whom he lived at the time of the alleged offending.
The appellant advances two grounds of appeal against conviction. Ground 1 concerns the trial Judge’s use of the text messages contained in Exhibit P3. Ground 2 challenges his Honour’s use of adverse findings as to the complainant’s reliability made in relation to inconsistencies in her evidence as to the number of occasions the appellant committed unlawful sexual acts in the vehicle and at the home.
For the reasons which follow, we grant permission to appeal on both grounds but dismiss the appeal.
The prosecution case
The complainant was born on 23 March 2003. She was 12 years of age at the time of the offending, and 19 years old at the time of the trial. She gave evidence that her father committed unlawful sexual acts upon or with her over a period of about six months from approximately July 2015 until January 2016. The offending began in the appellant’s vehicle when he was taking her to school and escalated to acts of penile/vaginal sexual intercourse at his home.
The complainant gave evidence that on the way to school her father would park on the Esplanade at Brighton. She said that on the first occasion this occurred, the appellant touched his genitals through his trousers while asking her to look. The complainant said that she attempted to distract herself rather than do as her father asked. She said on subsequent occasions, the appellant would unzip his pants and masturbate his penis while asking her to help. He used words such as ‘can you help me’, ‘you know that you love me’, ‘please it will just be quick’, and ‘there is nothing wrong with this’. He also told her that she was worthless, that she had no friends, and no one liked her.
The complainant gave evidence that following the first sexual incident in the vehicle, he made a sexual request of her on each subsequent occasion they stopped at the Esplanade, whereupon she agreed to do as he asked. She said that she rubbed his penis, and the appellant moved her hand back and forth while she was holding his penis. He would then zip up his trousers and drive her to school. She said the alleged sexual incidents in the vehicle ended once the appellant started having penile/vaginal sexual intercourse with her, on the weekends, at his home.
The complainant described in some detail three occasions of penile/vaginal sexual intercourse. She said that during the first incident, she asked the appellant for some food, and he told her that she was gluttonous and selfish. The appellant went to his bedroom. She followed him into his bedroom to see if she could talk to him. The appellant asked her to get into the bed, whereupon he pulled down her pants and underwear and had penile/vaginal sexual intercourse with her. He ejaculated inside her vagina. She said that he told her it was okay because she loved him.
The complainant described another specific occasion when the appellant had penile/vaginal sexual intercourse with her (‘the middle occasion’). She said that the appellant became upset with her and went to the bedroom. She followed him into his bedroom and there, he had penile/vaginal sexual intercourse with her. She said that this caused her physical pain.
The complainant described the last occasion of penile/vaginal sexual intercourse. She said the appellant was upset because she and Ms H had not met him, as arranged, at the markets. After the appellant arrived home, the complainant followed him into his bedroom to talk to him. He instructed her to get into the bed and then had penile/vaginal sexual intercourse with her. She described it as more violent than on previous occasions. The appellant then drove her and her brother home. This was the last time she saw her father. According to the evidence of the complainant’s mother, this incident occurred on 10 January 2016.
The complainant gave evidence there were several other occasions of penile/vaginal sexual intercourse at the house which she could not describe in any detail.
On 26 January 2016, an issue arose about the complainant’s brother having left his iPad at the appellant’s home. Neither the complainant nor her brother wished to see or speak with their father. During a telephone conversation, the complainant told the appellant that it was all his own fault, and that he could not keep blaming her.
Following that telephone conversation the appellant sent a series of text messages to the complainant set out in Exhibit P3, which were as follows:
Sun, 31 January 4:20pm
Appellant: Maybe if I do why [sic] [J] did I’ll be your hero again…
Mon, 1 Feb 9:01am
Appellant:Today is always our day and you’ve chosen someone else [complainant], you’ve left me [complainant], you won’t respond to my messages, answer my calls, I’m the adult [complainant], I’m your father who you …>
If you can’t contact me when I’m alive, don’t cry for me when I’m dead.
It was an agreed fact that the complainant’s mother’s ex-partner, J, had committed suicide in about 2014.
In 2018 and 2019, the complainant was diagnosed with complex post‑traumatic stress disorder (PTSD) and an evolving borderline personality disorder (BPD).
In April 2019, and during a period when she was suffering from poor mental health, the complainant disclosed the alleged sexual offending to her mother. She said that the appellant had raped her. The allegations were then reported to the police who commenced an investigation.
The defence case
As outlined earlier, the appellant did not give evidence at trial.
Defence counsel called Ms H who was in a domestic relationship with the appellant. They lived together at her home in Ashford. Ms H gave evidence as to her observations of the relationship between the appellant and his daughter during the latter part of 2015 and early 2016. She said that they had a close relationship and the complainant seemed to love her father very much.
Ms H also gave evidence that she was always present when the complainant and her brother were staying at her home, and she was always watching the children. Her evidence was, to the effect, that there was no opportunity for the appellant to commit the alleged unlawful sexual acts on the complainant at the home without detection.
Defence counsel at trial submitted that there were several aspects of the complainant’s evidence which undermined her credibility and reliability such that the trial Judge should not find the offence proved beyond reasonable doubt. Those matters included: the absence of opportunity for the offences to have occurred in the light of the evidence of Ms H; the complainant’s serious ongoing mental health issues, particularly around the time of her initial complaint in 2019; prior inconsistent statements and omissions by the complainant; and the inherent implausibility of the appellant engaging in offences with such a high risk of detection.
As to the complainant’s purported prior inconsistent statements, defence counsel at trial relied on the following matters:
1.The complainant gave evidence that the number of occasions where sexual acts occurred in the vehicle ‘would have been upwards of 20’. She said the sexual abuse occurred five or 10 times in the purple Holden Commodore, and 10 or 15 times in the orange Kingswood. However, she conceded in evidence that she told police on 18 May 2019, that it occurred on six or seven occasions; she told police on 9 October 2019, that it occurred on about 10 to 15 occasions; and she told police on 22 July 2022, that it was easily 30 times.
By way of explanation, the complainant said that during her evidence, and in her statements to police, she was estimating the number of occasions of sexual abuse as she did not have a clear recollection of each time the sexual acts occurred in the vehicle. She reached an estimate by calculating the period over which the offending occurred, and the number of times she stopped at the Esplanade before school, taking into account that it was her recollection that the offending happened every day. It was by this process that she provided an estimate as to the number of occasions the appellant had sexually abused her in his vehicle.
2.The complainant gave evidence that the appellant had penile/vaginal sexual intercourse with her, at his home, on 10 to 15 occasions. She agreed in evidence that she told police on 18 May 2019, sexual intercourse occurred at the home on four occasions; she told police on 9 October 2019, it occurred on six to eight occasions; and she told police on 22 July 2022, it occurred on approximately 10 occasions.
The complainant explained again that in her evidence and previous police statements, she was trying to provide an estimate as to the number of occasions that sexual intercourse occurred at the house rather than provide a definitive answer.
3.The complainant agreed that she did not tell police about the middle occasion of penile/vaginal sexual intercourse until 22 July 2022. She explained that she was trying to forget the events the subject of the charges so had put it out of her mind.
The trial Judge’s reasons
The trial Judge commenced his reasons for verdict by providing a brief overview of the evidence and issues before outlining the elements of the charged offence. His Honour noted that the only issue in dispute was whether the prosecution had proved the appellant engaged in two or more unlawful sexual acts with the complainant. There was no contest that the alleged sexual acts constituted the offence of gross indecency, or the offence of unlawful sexual intercourse with a person under the age of 17 years.
The trial Judge gave standard legal directions as to the onus and standard of proof including, relevantly, that it was open to his Honour to reject or accept all or a part of a witness’ evidence.
The trial Judge summarised the prosecution case, including that the complainant’s credibility was supported by her distress when she arrived home after the last alleged occasion of penile/vaginal sexual intercourse in January 2016, as well as her initial complaint to her mother in April 2019.
The trial Judge summarised the defence case, including the evidence of Ms H. His Honour also referred to defence counsel’s submissions that the offending in the vehicle and at the home was inherently implausible given the high risk of detection. It was submitted that the cogency of the complainant’s evidence was undermined by her inconsistencies and omissions, as well as her poor mental health at the time of the alleged offending and initial complaint.
The trial Judge then summarised the evidence in some detail. As to the evidence of Ms H, his Honour concluded that her evidence was ‘entirely consistent’ with the accused using the orange Kingswood on a daily basis, and there were significant opportunities for him to have offended in that vehicle. In addition, his Honour did not accept the evidence of Ms H that she was always at home when the complainant stayed at the house, and she always had the complainant (and her brother) within view.
The trial Judge found that the complainant’s evidence as to the timing and sequence of events surrounding the commission of the alleged sexual acts was reliable.
As to the last alleged sexual incident on 10 January 2016, the trial Judge accepted that there was an arrangement for the appellant to meet Ms H and the complainant at the markets, and they did not in fact attend the meeting which caused the appellant to become upset.
As to the initial complaint, the trial Judge found that the complainant’s evidence as to the alleged offending, and the terms of her initial complaint were consistent with each other. Whilst acknowledging that the complainant did not refer in her initial complaint to the alleged sexual acts in the vehicle, his Honour considered the evidence supported her credibility.
In relation to the complainant’s mental health, the trial Judge rejected defence counsel’s submission that the complainant’s evidence as to the alleged offending was possibly the product of delusion, hallucination or her mental illness. There was no challenge to that finding at the appeal hearing.
The trial Judge then explicitly addressed defence counsel’s submissions as to the effect of the complainant’s purported prior inconsistent statements and omissions. As to her inconsistent statements in relation to the number of times she was sexually abused by the appellant in his vehicle, his Honour said:
In her evidence [the complainant] stated that she was forced to masturbate the accused ‘upwards of 20 times’. I accept she told Weston on 18 May 2019 it was six or seven times, that in a statement dated 9 October 2019 it was about 10 – 15 times and that on 22 July 2022 she said it was ‘easily 30 times’.
[The complainant] stated her evidence and her statement on 22 July 2022 were estimates. She agreed that she did not have a recollection of each time it occurred. She said that would be impossible. [The complainant] stated that she has made a calculation based on the period of time over which it occurred, the number of times she went to the Esplanade, the fact that she does not recall any break in the offending and that she remembers the offending happening every day. I agree this is a significant inconsistency. I accept it does undermine her reliability as to the number of occasions it occurred and whether it did in fact occur every day.
(Emphasis added and citations omitted.)

As to the inconsistencies in the complainant’s account as to the number of times the appellant had penile/vaginal sexual intercourse with her at his home, the trial Judge found that the inconsistencies were ‘not insignificant’ and there were aspects of her account ‘which are not reliable’. His Honour said:
In her evidence [the complainant] stated she ‘would estimate between 10 and 15’ as the number of times she was raped in the house. I accept that on 18 May 2019 she told Weston it happened four times in three months, in the statement dated 9 October 2019 she said it happened six to eight times between September and January and in proofing on 22 July 2022 she said ‘it happened more like 10 times’.
[The complainant] explained that she was not trying to give a definitive number. She stated, ‘all I want to do is forget and so instead of spending all my time trying to remember how many times it happened I’m just trying to get through my day and not be obsessed over how many times it happened’. Whilst I accept she was not attempting to be definitive in her evidence and she did clearly indicate it was an estimate, these inconsistencies are not insignificant.
Whilst I accept her explanation for why there might by inaccuracies in her evidence that does not alter the fact there are aspects of her account which are not reliable.
It was submitted that if the accused moved into the Ashford address around September and she last saw him around 10 January and she saw him on alternate weekends that would equate to approximately 10 visits. I accept the number of days she spent with her father at the house at Ashford necessarily informs the opportunity he had to commit the offences and the number of offences which could have been committed. I do not however note the accused could have been staying at Ashford from before September as he signed the lease in July. I also note that each visit comprises two days. Whilst I do not accept a lack of opportunity, I do consider this inconsistency impacts the reliability of her evidence.
(Emphasis added and citations omitted.)
In relation to the complainant’s failure to mention the middle occasion of penile/vaginal sexual intercourse until 22 July 2022, the trial Judge also found this omission was significant.
The trial Judge considered that the complainant’s presentation was highly convincing. After giving himself what was in effect a Robinson[1] direction, to scrutinise her evidence with great care, his Honour considered whether there was other evidence which provided support for aspects of the complainant’s account. Relevantly to appeal ground 1, his Honour then referred to the text messages in Exhibit P3, set out above, and said:
[1] Robinson v The Queen (1999) 197 CLR 162.
Again, these messages appeal to the complainant by reference to their relationship being special (our day), by blaming her, (you’ve chosen someone else, you’ve left me, you won’t respond to my messages), by telling her he as the adult knows what is best (I’m the adult, I’m your father) and lastly, by trying to guilt her into action by implying he may commit suicide.
It is also not irrelevant that these messages were sent by the accused on both Sunday and Monday. This was not an isolated incident of such manipulative behaviour. It is significant in my view that the manipulation she describes as occurring in Exhibit P3 takes a number of different forms which are remarkably similar to the form of the manipulation she describes in her evidence when the offending in the car on the Esplanade begins. I note the words are not the same however the methodology behind the manipulation is the same.
I also note the complainant stated she often felt as if she was letting him down or that she felt a responsibility to help and/or appease him. This feeling is consistent with their relationship being characterised by his manipulation of her.
Exhibit P3, which was not disputed, therefore shows the relationship was attended by manipulation and this is relevant to the plausibility of her account. The evidence provides support for her description of their relationship as one involving manipulation and in particular manipulation in different forms. It rebuts any suggestion her evidence is implausible on the basis a father would not act in such a way towards his 12 year old daughter and/or rely on abuse, guilt and love and his position as the adult all at the same time.
Additionally, Exhibit P3 provides support for the reliability and credibility of her evidence as to what occurred between them after 10 January 2016 and it is also evidence that the accused was aware that [the complainant] was susceptible to being manipulated by those techniques in the relevant time frame.
Finally, I also consider that the comments made by the accused in the messages are consistent with her evidence that she saw the accused self-harming during this period. It makes sense that the accused knew [the complainant] had this knowledge as it explained why he knew threatening suicide would have an impact on her. I accept [the complainant’s] evidence that she did see such an act by the accused.
…
In the course of cross-examination, it appeared to be suggested to [the complainant] that in the telephone conversation in January 2016 the accused was in effect accusing the children of not loving him and not wanting to spend time with him. [The complainant] responded that she did not hear what the accused said to her brother. However she appeared to confirm that words of that nature had been said at some point during that period because she stated ‘and so it’s really hurtful when he said that we don’t love him or that he feels like we don’t love him because we were really trying but we were only children and we were doing the absolute best that we could.’ Not only is this another example of manipulation within their relationship which is not disputed, I also found her answer to be particularly compelling. I consider it reflected an honest attempt on her part to recount her relationship with her father at that time.
The support Exhibit P3 gives to various aspects of the prosecution case is a significant consideration in my view to the assessment of her evidence. It is also I consider inconsistent with aspects of the evidence of Ms H. It either suggests Ms H was not as observant of their relationship dynamic as she purports to be or it suggests she has downplayed aspects of the accused’s behaviour in order to assist him.
(Emphasis added.)
As to the implausibility of the alleged offences, the trial Judge found that the sexual acts allegedly committed in the vehicle did pose a risk of detection, but the risk as regards to sexual activity in the house was not as clear. Relevantly to appeal ground 2, his Honour reasoned:
I accept the acts in the car did pose a risk of detection. The evidence of risk as regards the sexual acts at the house is not however as clear as I accept the number of acts of sexual abuse at the house was considerably less than 10 and that Ms H was not necessarily always at home.
In relation to the last incident of penile/vaginal sexual intercourse on 10 January 2016, the trial Judge expressed a doubt as to the circumstances of this offence, bearing in mind the evidence of Ms H. Notwithstanding the fact he was satisfied that the complainant’s account was credible, and there was significant support for aspects of her evidence, his Honour concluded he had a doubt as to the occurrence of the last occasion of sexual intercourse. His Honour reasoned:
Whilst I consider it is probable there was sufficient time and opportunity for such an act of sexual abuse to occur and I consider it is probable such an act did in fact occur on that day I cannot be satisfied of that beyond reasonable doubt. The degree of uncertainty and lack of specificity as to the time frames between them getting home and leaving and everyone’s movements within the house and bedroom 1 is significant in that regard. I consider that is relevant to whether the prosecution has proved this incident of USI occurred on that day beyond reasonable doubt. I accept it is to be expected that there will be difficulties in a witness now recalling such movements with precision 6 years later. However, the forensic disadvantages occasioned by this delay and my uncertainty as to the opportunity for such an offence to have been committed give rise to that doubt.
The trial Judge then considered the combined effect of all the criticisms of the complainant’s evidence made by defence counsel and found that the text messages in Exhibit P3 supported aspects of her account.[2]
[2] R v DT [2023] SADC 74 at [312].
The trial Judge was not satisfied that the complainant’s prior inconsistent statements as to the number of occasions of sexual abuse in the vehicle, and at the house, materially undermined her evidence. In reaching this conclusion, his Honour had regard to: the fact they were an estimate rather than a definitive answer as to number of occasions that she actually recalled; that the complainant said she had attempted to forget the details of the offending since it occurred; the time which has elapsed since the offending; and that the offending in each location involved the same sexual acts.[3]
[3] R v DT [2023] SADC 74 at [320]-[323].
The trial Judge had regard to ‘the uncertainty in her evidence as to the number of occasions, the inconsistent statements on this topic and the changes in her memory as to the frequency of some aspects’ and concluded that he was not satisfied beyond reasonable doubt that her estimates of the number of sexual acts were correct. Indeed, his Honour found they were not accurate.[4] His Honour then proceeded to make a finding that the number of occasions on which unlawful sexual acts occurred was in fact less than the estimate the complainant gave in her evidence, noting ‘this necessarily reduces the number of occasions Ms H may have been absent from the house and/or the number of times the accused took such a risk.’[5]
[4] R v DT [2023] SADC 74 at [324].
[5] R v DT [2023] SADC 74 at [329].
The trial Judge concluded by making the following findings beyond reasonable doubt.
·The accused sexually abused the complainant between the months of July 2015 and January 2016, in both the purple Commodore and the orange Kingswood.
·The acts of sexual abuse involved touching his own penis in front of the complainant, exposing his penis to her, and causing or inciting her to touch and masturbate his penis. His Honour was not satisfied that such acts occurred on every occasion the accused parked the car on the Esplanade with the complainant but was satisfied such acts occurred on several occasions on different days.
·The accused had penile/vaginal sexual intercourse with the complainant at his house in Ashford between the months of August 2015 and January 2016. The sexual intercourse occurred on more than two occasions, but he was not able to be more specific than that as to the number of occasions.
·The unlawful sexual acts which occurred in the vehicles did not occur on the same day as the unlawful sexual acts at the house.
The trial Judge, noting that all other elements of the charged offence were not in dispute, found the accused guilty of the offence of maintaining an unlawful sexual relationship with a child.
Appeal Grounds
The appellant advances two grounds of appeal against conviction.
First, the appellant complains that a miscarriage of justice was occasioned by the trial Judge’s use of Exhibit P3 as a ‘makeweight’ for the prosecution case, which went beyond its permissible use.
Secondly, the appellant complains that a miscarriage of justice was occasioned by the trial Judge’s misuse of adverse findings in relation to the complainant’s reliability to bolster the prosecution case. In particular, he contends that his Honour erroneously found that there were fewer incidents of offending than the complainant had estimated in evidence, which undermined the defence case in relation to opportunity, and permitted his Honour to forgive inconsistencies in the complainant’s evidence. The appellant contends that those matters, in combination, also diluted the effect of the forensic disadvantage direction by his Honour.
We turn now to consider each ground of appeal.
Ground 1 – the trial Judge’s use of the text messages in Exhibit P3
As outlined earlier, Exhibit P3 was comprised of three text messages sent from the appellant to the complainant on Sunday 31 January 2016 and Monday 1 February 2016. Prior to those text messages having been sent, the complainant last spoke with the appellant by telephone on 26 January 2016, and last saw the appellant on 10 January 2016.
During the telephone call on 26 January 2016, the complainant was upset with the appellant, and according to her and her mother, she told him that it was ‘all his fault’ and ‘he had no one else to blame’. There was no direct reference to the alleged sexual offending during that telephone call.
On the next occasion when the complainant was due to stay with the appellant, she declined to do so. The appellant then sent her the text messages contained in Exhibit P3.
The complainant gave evidence that the text messages did not reflect how the appellant usually spoke to her during their relationship. Rather, it was typical only of their last few interactions.
In the passages of his reasons for verdict set out earlier, the trial Judge explicitly referred to Exhibit P3 as being relevant for three uses. His Honour considered that: first, it demonstrated the relationship between the appellant and his daughter was attended by manipulation, which was relevant to rebut any suggestion that the complainant’s evidence was implausible by reason of the unlikelihood that a father would act in such a way towards his daughter; secondly, it provided support for the complainant’s evidence as to events after 10 January 2016; and thirdly, it supported her evidence that she saw the appellant self‑harming during the charged period.
The appellant did not suggest that those three uses of the evidence were not open to the trial Judge. However, the appellant contends that the evidence was of limited probative value because the complainant said that the text messages were atypical of the way her father spoke to her during the charged period. Thus, it afforded little weight in providing any insight into the nature of their relationship at the time of the unlawful sexual acts. The appellant also contends that both the events after 10 January 2016, and the appellant’s purported acts of self-harm in the presence of the complainant, were of peripheral relevance to the issues in dispute at trial.
Moreover, the appellant submits that neither party placed any great weight on Exhibit P3 at trial in support of its case. Whilst defence counsel at trial conceded that Exhibit P3 could be used to demonstrate the appellant’s manipulative relationship with the complainant as of January 2016, it was not conceded that it had any relevance to the nature of their relationship at an earlier time.
Before this Court, the appellant complains that the trial Judge’s ultimate use of the text messages in Exhibit P3 was more extensive then the three uses he expressly articulated in his reasons. The appellant contends that the ultimate use made by his Honour of Exhibit P3 could not be readily inferred from the evidence and occasioned a miscarriage of justice.
There are three main limbs to this ground of appeal.
First, the trial Judge said that the inconsistencies and omissions in the complainant’s account did not undermine her evidence as to the alleged unlawful sexual acts by reason of, at least in part, the text messages contained in Exhibit P3. His Honour said:
In light of the nature of the inconsistencies and omissions and those matters which support the plausibility and reliability of her account I do not consider the inconsistencies or the omissions undermine her evidence. I say this particularly in light of the relevance that I have given to the nature of the text messages in Exhibit P3 and the support it gives to aspects of her account of the offending behaviour – particularly those in the car at which time there had been no previous offending.
Later, in similar terms, the trial Judge said that the text messages in Exhibit P3 gave ‘significant support’ to both the credibility and reliability of the complainant’s evidence ‘in a number of ways.’
The appellant contends that Exhibit P3 could not provide ‘significant support’ for the complainant’s account. The text messages were not rationally capable of answering various issues arising from the inconsistencies and omissions in her account. Moreover, the appellant submits that the use of the evidence for that purpose ignored the complainant’s own evidence that the text messages did not reflect the way her father usually spoke to her during most of their relationship. The appellant contends that the trial Judge, in effect, used Exhibit P3 as ‘a generalised bolster to the complainant’s credit which did not bear analysis.’
We do not accept those submissions.
It is important to note at the outset that the trial Judge said that it was both the nature of the inconsistencies and omissions, as well as those matters which supported the plausibility and reliability of the complainant’s account (including the text messages in Exhibit P3) which led him to consider that her evidence that the appellant committed the alleged unlawful sexual acts was not ultimately undermined by those inconsistencies or omissions in her account. It was not simply by reason of the support provided by the text messages in Exhibit P3.
As the trial Judge found, the complainant gave evidence that the unlawful sexual acts both in the vehicle, and at the house, were attended by manipulative and derogatory comments which sought to take advantage of her love for her father and their familial relationship. The complainant’s evidence was to the effect that he attempted to use their relationship so she would acquiesce to the sexual offending without protest.
In relation to the sexual acts in the vehicle, as outlined above, the complainant alleged that her father made comments such as ‘you know that you love me’, and ‘please it will be quick, there is nothing wrong with this.’ The complainant said that he would also remark that she was ‘worthless’ and had ‘no friends.’ While the complainant characterised the text messages in Exhibit P3 as atypical of the way in which her father spoke to her, she nonetheless gave an account of the sexual offending in the vehicle (which allegedly occurred months before the text messages were sent) which included similar manipulative behaviour. It was open to the trial Judge to find that the text messages in Exhibit P3 were ‘remarkably similar to the form of the manipulation she describes in her evidence when the offending in the car on the Esplanade begins.’ In that way, Exhibit P3 provided support for the complainant’s evidence as to the alleged unlawful sexual acts in the vehicle.
Furthermore, the complainant described the three specific acts of penile/vaginal sexual intercourse which occurred at the house as having taken place in circumstances where the appellant behaved in a manipulative manner towards her. She described each occasion of sexual intercourse as having followed an argument with her father whereupon, for varying reasons, she tried to appease him by following him into his bedroom and acquiescing to his sexual demands.
It is true that the appellant sent the text messages in Exhibit P3 to the complainant three weeks after the final alleged sexual incident on 10 January 2016 and, to that extent, they were removed in time from much of the offending. However, all of the sexual offending, both in the vehicle and at the house, occurred over a relatively short period of about six months, and the complainant described the appellant’s manipulative conduct and derogatory remarks as accompanying the unlawful sexual acts throughout that period of time. As such, the tone and content of the text messages in Exhibit P3 provided support for aspects of her account of the alleged offending in the way that his Honour explained. The messages in Exhibit P3 are similar to the form of the manipulation which attended the appellant’s initial offending in the vehicle and reflected his behaviour towards her in the lead-up to, and during the acts of sexual intercourse at the house.

The text messages in Exhibit P3 supported her account of the appellant’s manipulative and other behaviours in the way his Honour explained in the passages outlined earlier. Exhibit P3 was not used, and could not be used, to reason that evidence of the appellant’s manipulative behaviour of itself, and untethered to her account of the alleged offending, made it more likely he committed acts of a sexual nature against her. Nor could the evidence of the text messages in Exhibit P3 be used to directly explain or remedy her prior inconsistent statements as to her estimate of the number of occasions of offending.
However, it was open to the trial Judge to use the evidence in the way he described. That is, to support the complainant’s evidence as to aspects of the alleged unlawful sexual acts which when considered with other features of the evidence led his Honour to accept her evidence that the appellant committed the unlawful sexual acts in the vehicle and at the home.
Secondly, the trial Judge said that the text messages in Exhibit P3 were inconsistent with aspects of the evidence of Ms H. His Honour said:
The support Exhibit P3 gives to various aspects of the prosecution case is a significant consideration in my view to the assessment of her evidence. It is also I consider inconsistent with aspects of the evidence of Ms H. It either suggests Ms H was not as observant of their relationship dynamic as she purports to be or it suggests she has downplayed aspects of the accused’s behaviour in order to assist him.
The appellant contends that, properly understood, the evidence was not rationally capable of undermining Ms H’s evidence. The appellant submits that bearing in mind that the text messages were sent three weeks after the last occasion that the complainant stayed at the house, they were not relevant to an assessment of Ms H’s observations of the appellant’s relationship with his daughter many months earlier.
We do not agree. As discussed above, the alleged offending took place over about a period of six months, and the complainant’s account of the unlawful sexual acts in the vehicle, and at the house, reflected a manipulative dynamic between the appellant and his daughter. The tone and content of the text message in Exhibit P3 also demonstrated a similar manipulative dynamic in the relationship. Bearing in mind that Ms H gave evidence that she was invariably home when the complainant stayed at the house, the text messages undermined her evidence the appellant and the complainant had a loving father/daughter relationship; or at least, undermined her evidence that she was always present when the complainant was staying at the house so that she was in a position to observe the full extent of their relationship. In those circumstances, it was open to the trial Judge to rely upon the text messages to find that Ms H had either overstated her evidence to limit the appellant’s opportunity to offend; or, at the very least, had simply mischaracterised the relationship.
Thirdly, the trial Judge used Exhibit P3 in support of a finding that the offending, whilst undoubtedly brazen, was not implausible. His Honour considered that the appellant’s belief that he had a ‘special’ relationship with the complainant, as demonstrated by the text messages in Exhibit P3, undermined defence counsel’s submissions at trial as to the inherent implausibility of the offending. His Honour said:
To the extent it may be said her evidence is implausible because the accused would not have taken the risk of offending in the manner he did because there was a risk she may complain to others, I reject that submission. Of course, there is always a risk as regards any sexual offence that the victim will complain however in the absence of any complaint after the first incident the accused may have been emboldened by the absence of a complaint. Whilst [the complainant] stated there were teachers and counsellors at her school and that she had friends at the school, I also note her evidence to the effect the accused would say her behaviour explains why she had ‘no friends’. The accused’s belief in that regard explains why the accused was emboldened to take the risk. More importantly however the accused believed they had a special relationship as evidenced by the messages in Exhibit P3. I do not consider it is implausible that the accused determined to take the risk given the manner in which he manipulated her to offend, given the nature of their relationship up until that point and given her evidence that he believed she had no friends.
(Citations omitted.)
The appellant challenges that finding on the basis of the time that had elapsed between the offending and the text messages in Exhibit P3.
We are satisfied it was open to the trial Judge to use the evidence of the text messages when assessing defence counsel’s submission that the offending was inherently implausible. As his Honour found, they shed significant light on the nature of the appellant’s ‘special’ relationship with his daughter (which was in fact characterised by his manipulative behaviour), and explained why he may have been confident that she would not readily disclose the offending. The fact that the text messages were sent three weeks after the last alleged sexual incident, and up to six months after the first alleged sexual act in the vehicle, is of little moment. As explained earlier, this is because the complainant alleged that the appellant made manipulative and/or derogatory comments to her in connection with, and immediately prior to the sexual acts in the vehicle. She also said that the appellant committed the alleged acts of penile/vaginal sexual intercourse at the home after an argument whereby she followed him to his bedroom and she was trying to prove to her father that she loved him by acquiescing to his sexual demands. Thus, the tone and content of the text messages reflected the manipulative nature of their relationship and were supportive of aspects of her account of the alleged sexual offending.
For those reasons, we are satisfied that it was open to the trial Judge to use the evidence of the text messages in Exhibit P3 as supportive of aspects of the complainant’s account as to the alleged unlawful sexual acts. There was no miscarriage of justice.
We dismiss this ground of appeal.
Ground 2 – use of adverse findings about the complainant’s reliability
As outlined above, in his reasons for verdict, the trial Judge found that the complainant’s evidence as to the number of occasions that sexual acts occurred in the vehicle was not accurate, and that her inconsistencies were ‘significant’ and undermined her reliability. His Honour also considered that the complainant’s inconsistencies as to the number of times that sexual intercourse occurred at the house were ‘not insignificant’ and rendered aspects of her account unreliable. Ultimately, his Honour was not satisfied, beyond reasonable doubt, that the complainant’s estimate as to the number of unlawful sexual acts was correct. Rather, his Honour found that her estimates as to the number of unlawful sexual acts was not accurate.
The trial Judge then found that the number of occasions that unlawful sexual acts occurred was, in fact, less than the complainant’s estimate and ‘this necessarily reduces the number of occasions Ms H may have been absent from the house and/or the number of times the accused took such a risk.’[6]
[6] R v DT [2023] 74 at [329].
The appellant complains that the trial Judge used the complainant’s unreliability as to the number of sexual acts at the house in a manner which served to undermine defence counsel’s submissions as to the implausibility of the complainant’s account and to, in effect, bolster the prosecution case. The appellant also contends that his Honour’s reasoning in this manner also deprived the appellant of the full benefit of the forensic disadvantage direction.
The appellant emphasises that the complainant gave evidence that on two of the three specific occasions which she could describe in any detail, she said that Ms H was present at the house, or that she assumed Ms H was present. In addition, the complainant gave evidence that Ms H was generally at the house when the appellant committed other acts of penile/vaginal sexual intercourse with her.
The appellant submits that there were two substantial obstacles to the trial Judge’s acceptance of the complainant’s evidence as to the alleged sexual offending. They were as follows: first, the damage to the complainant’s reliability by the changing number of occasions on which she said the sexual acts occurred; and, secondly, the evidence of Ms H that she was always present at the house while the children were there. The appellant submits that even if Ms H’s evidence was only accepted to the extent that it was consistent with the complainant’s evidence, it nevertheless limited the opportunity for the alleged sexual offending to have occurred at the house, and increased the appellant’s brazenness given the real risk of detection.
Under this ground of appeal, the appellant complains that rather than properly assess the improbabilities in the complainant’s account, the trial Judge used his adverse findings as to her reliability to undermine the submission that the offending was inherently implausible. That is, the appellant contends that the two purported ‘substantial obstacles to proof’ were combined to create a basis for an acceptance of the complainant’s evidence, and this had the effect of bolstering the prosecution case and diluting the benefit of the forensic disadvantage direction.
In considering this ground of appeal, it is important to consider the task of the trial Judge in the context of the charged offence. In proof of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50 of the CLCA, the prosecution did not have to establish the unlawful sexual acts with the same degree of particularity that would be required had the appellant been charged with the distinct offences of gross indecency and unlawful sexual intercourse. As the High Court observed in Hamra v The Queen:[7]
The basic difficulty for the appellant’s submission is the plain terms of s 50(4). That sub‑section outlines the required particularity of an information charging a person with an offence under s 50(1). It modifies the common law by providing that although the information must allege a course of conduct consisting of acts of sexual exploitation it need not “identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred” (s 50(4)(b)(ii)). The sub‑section requires the jury to find the same two or more acts committed over a period of three or more days in order for the accused to be convicted but, provided that two or more distinct acts can be identified, it does not require the occasions of those acts to be particularised other than as to the period of the acts and the conduct constituting the acts. In this respect, s 50(4)(b)(ii) has the same effect as its predecessor provision, which, in s 74(4), did not require particulars to “differentiate the circumstances of commission of each offence”.
An example which illustrates this point is evidence of a complainant that an act of sexual exploitation was committed every day over a two week period. The appellant submitted that such evidence would be insufficient because, even if the jury (or judge in a trial by judge alone) were to conclude that those acts had occurred in that way, this would invite “deductive reasoning”, “rather than identifying an occasion and determining what is the evidence to prove that occasion”. In other words, it is impermissible to use logic to deduce from the occurrence of acts of sexual exploitation every day for two weeks that two or more acts must have occurred over a period of “not less than 3 days”. The submission cannot be accepted. Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided, of course, that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted (30).
[7] Hamra v The Queen (2017) 260 CLR 479 at [27]-[28] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ.
In the present case, the only element in dispute was whether on two or more occasions, the appellant engaged in two or more unlawful sexual acts with the complainant. As the trial Judge expressly noted, he was not required to determine whether he was satisfied beyond reasonable doubt that all aspects of the complainant’s evidence were credible and reliable nor the precise number of occasions that the appellant committed the alleged unlawful sexual acts.
In his reasons for verdict, the trial Judge comprehensively outlined the alleged inconsistencies and omissions in the complainant’s evidence. His Honour considered, and accepted, defence counsel’s submissions that the complainant’s inconsistencies as to the number of occasions of sexual acts in the vehicle, and at the house, was of significance when assessing her evidence. Having outlined those inconsistencies, and after having found that they were of significance when assessing the complainant’s evidence, his Honour then determined that there were aspects of her account which were unreliable. Ultimately, however, after scrutinising the complainant’s evidence with great care, his Honour reached the conclusion that while her estimate of the number of occasions of sexual intercourse at the house was inaccurate and her evidence was unreliable in that regard, his Honour was satisfied beyond reasonable doubt of the fact of their occurrence on more than two occasions.
The appellant does not contend that it was not open to the trial Judge to accept the complainant’s evidence that unlawful sexual acts occurred in the vehicle and at the house. Rather, the appellant challenges the manner by which his Honour reached that conclusion. The appellant contends that it was erroneous for his Honour to: first, conclude that the unlawful sexual acts at the house occurred on fewer occasions then estimated by the complainant; and secondly, to use that finding to undermine the defence case as to the implausibility of the offending.
We are satisfied that there was an evidentiary basis for the trial Judge to find that the unlawful sexual acts occurred on fewer occasions than the complainant estimated in her evidence. His Honour made it clear that he could not determine on how many occasions those sexual acts occurred at the house, except to say that it was less than the complainant’s estimate of between 10 and 15 occasions. It was open to his Honour to make that finding bearing in mind that the complainant’s evidence was an estimate only; that the offending at the house did not commence until after the offending in the vehicle ceased; and she stayed at the appellant’s house on alternate weekends. Accordingly, there were limited occasions for the offending to have occurred at the house.
It followed from the trial Judge’s findings, as a matter of logic, that if there were fewer occasions of sexual intercourse at the house then there was a reduced risk of detection by Ms H. His Honour also found that she was not always at home when the children were present. This was not a case where his Honour made speculative findings and reasoned impermissibly or illogically from those findings to guilt. It was simply that the purported inconsistencies in the complainant’s evidence and the adverse findings urged upon his Honour by defence counsel, and accepted by his Honour, combined with his own assessment of the evidence, allowed for a further factual finding that there were fewer occasions of unlawful sexual acts at the home. This in turn detracted, to a limited extent, from another submission made by defence counsel as to the implausibility of the complainant’s account.
This was a case where defence counsel’s approach to the complainant’s inconsistencies and reliability proved to be something of a double-edged sword. On the one hand, the inconsistencies had the capacity to undermine the reliability of the complainant’s account; but on the other hand, led to a finding of fewer occasions of sexual intercourse which countered another of defence counsel’s submissions as to the implausibility of her account. It can often be the case that a trial Judge’s factual finding can support one aspect of a party’s case while impacting negatively on another aspect. Nonetheless, in the circumstances of this case, it was open to the trial Judge to make the factual finding that he did, which when considered with other evidence, had the effect of rendering the complainant’s account less implausible. There was no miscarriage of justice.
As to the forensic disadvantage direction, the appellant contends that the approach of the trial Judge in using the adverse reliability findings to rebut the defence case as to implausibility had the ‘subtle effect’ of using delay to restore the complainant’s credit contrary to forensic disadvantage principles.
The trial Judge explicitly had regard to the forensic disadvantage suffered by the appellant by reason of the delay early in his reasons. His Honour said:
The witnesses were recalling events alleged to have occurred some seven years earlier. As I will indicate I consider the evidence as to the timing of certain events in 2015 to be uncertain. I also consider it is very difficult to remember what occurred on every alternate weekend for a period of five months some six years ago. That passage of time has resulted in some forensic disadvantage to the accused. The forensic disadvantage may have adversely impacted the accused’s ability to instruct his counsel, the ability of Ms H to recall specific days during that period, the ability of the accused to obtain more evidence from Weston as to her meeting with [the complainant] in May 2019 and the ability of the accused to further test aspects of [the complainant’s] evidence. I have taken that disadvantage into account when considering whether the prosecution has proved its case beyond reasonable doubt and also when carefully scrutinising the evidence of [the complainant].
The trial Judge appeared to conclude that although the appellant suffered from ‘some’ level of forensic disadvantage, it was not of a nature that was ‘significant’ as contemplated by s 34CB, and as discussed in the relevant authorities. Given that s 34CB does not apply to a trial without a jury and bearing in mind the limited nature of the forensic disadvantage suffered by the appellant (as found by the trial Judge), there was no obligation on his Honour to repeat, or again refer to, the forensic disadvantage direction before reaching each of his later credibility and reliability findings or ultimate conclusions. In any event, his Honour expressly had regard to the forensic disadvantage suffered by the appellant when entertaining a doubt as to the occurrence of last alleged unlawful sexual act on 10 January 2016.
It was also permissible for the trial Judge to take the impact of the delay into account when assessing the complainant’s account and, in particular, when considering her explanation for inconsistencies and omissions in her evidence. To do so did not detract from the force or effect of the forensic disadvantage direction given by his Honour. It is to be accepted that a significant forensic disadvantage direction given pursuant to s 34CB, is intended to operate as a safeguard against the wrongful conviction of an accused person, and a reference to the impact of delay upon prosecution witnesses as part of such a direction may result in the direction becoming ‘skewed and inadequate.’ However, that does not mean that it is not permissible for a trial Judge, as an arbiter of fact, to separately take into account the impact of delay upon the evidence of a prosecution witness in circumstances where it is a relevant consideration when assessing their credibility or where it provides some explanation for inconsistencies in their testimony. That is to be distinguished from a trial judge giving a significant forensic disadvantage direction to a jury pursuant to s 34CB which is diluted or skewed by the judge referring to the difficulties faced by prosecution witnesses in giving their evidence by reason of delay.

In the present case, the trial Judge gave a forensic disadvantage direction as to the difficulties suffered by the appellant. His Honour did not use the fact of the delay to ameliorate the unreliability of the complainant’s evidence about the number of occasions the offending occurred in the vehicle and at the house. Rather, the inconsistencies in the complainant’s evidence on that matter, and other topics, were properly and comprehensively considered by his Honour and brought to account in his consideration and determination of the charged offence. Ultimately, however, his Honour concluded that the inconsistencies in the complainant’s evidence did not undermine the cogency of her evidence as to the issue in dispute, namely whether the prosecution had proved that the appellant engaged in unlawful sexual acts with the complainant on more than two occasions. It was open to his Honour to reach that conclusion.
For those reasons, we are satisfied that the trial Judge’s approach to the use of adverse reliability findings did not undermine the forensic disadvantage direction and were not erroneous or occasion a miscarriage of justice.
We reject this ground of appeal.
Conclusion
1.We grant permission to appeal but dismiss the appeal.