Bowen (a pseudonym) v The King - [2025] SASCA 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BOWEN (A PSEUDONYM) v THE KING
[2025] SASCA 36
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
10 April 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
Appeal against conviction.

Following a trial before a judge sitting alone, the appellant was convicted of the offence of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is his biological daughter.
The complainant gave evidence that the appellant touched her breasts on more than one occasion, touched her thigh on one occasion, and touched her genital area on one occasion.
The appellant appeals on four grounds, namely that the trial judge erred in (i) finding that the complainant’s evidence was corroborated in various respects; (ii) reasoning inadequately in the course of resolving the key issues at trial; (iii) failing to expose her process of reasoning in resolving those issues; and (iv) impermissibly enhancing or bolstering the complainant’s credibility through her use of the complaint evidence.
Held, by the Court, granting permission to appeal but dismissing the appeal:
1.The judge’s use of the term ‘corroborated’ does not reveal any inadequacy or deficiency in her Honour’s reasons, or otherwise establish that there was a miscarriage of justice;
2.Having regard to the reasons as a whole, the appellant’s complaints do not reveal an inadequacy in the reasons or reasoning of the trial judge; and
3.In the circumstances, the trial judge’s use of the complaint evidence was appropriate.

Criminal Law Consolidation Act 1935 (Cth) s 50(1); Criminal Procedure Act 1921 (SA) ss 158(1)(a), 158(1)(b), 158(1)(c); Evidence Act 1929 (SA) s 13BA(3); Summary Offences Act 1953 (SA) s 74EB, referred to.
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; BRS v The Queen (1997) 191 CLR 275; Doney v The Queen (1990) 171 CLR 207; DL v The Queen (2018) 266 CLR 1; Fleming v The Queen (1998) 197 CLR 250; HCF v The Queen (2023) 97 ALJR 978; JGS v The Queen [2020] SASCFC 48; M v The Queen (1994) 181 CLR 487; NBM v The Queen [2021] SASCA 105; Peacock v The King [2024] SASCA 97; R v AMB [2023] SADC 173; R v Sexton [2018] SASCFC 28; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Weragoda v The Queen [2021] SASCA 123, considered.

BOWEN (A PSEUDONYM) v THE KING
[2025] SASCA 36
Court of Appeal – Criminal: Livesey P, S Doyle and David JJA

THE COURT: Following a trial before a judge sitting alone, the appellant was convicted of the offence of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is his biological daughter, CB.
The appellant appeals on four grounds. By Ground 1, he complains that the trial judge erred in finding that CB’s evidence was corroborated in various respects. Grounds 2 and 3 are complaints that the judge erred in reasoning inadequately in the course of resolving the key issues at trial (Ground 2), or by not adequately exposing her process of reasoning in resolving those issues (Ground 3). By Ground 4, the appellant contends that the judge impermissibly enhanced or bolstered CB’s credibility through her use of CB’s complaint evidence.
For the reasons which follow, none of the appellant’s grounds are made out. It is appropriate to grant permission to appeal but dismiss the appeal.
Background
The offending occurred between 1 August 2018 and 1 February 2019, when CB was aged between 12 and 13 and the appellant was aged between 37 and 38.
Consistent with the particulars alleged in the information, CB gave evidence to the effect that the appellant:
·touched her breasts on more than one occasion;
·touched her thigh on one occasion; and
·touched her genital area on one occasion.
During the relevant period, CB lived at home with her mother (BB), her father (the appellant), her older brother (DB), her younger sister (EB), and her younger brother (TB).
The prosecution case was based primarily on the evidence of CB. CB’s evidence was in the form of two prescribed interviews, the first conducted on 29 June 2022 and the second on 19 July 2022.[1]
[1] See s 13BA(3) of the Evidence Act 1929 (SA) and s 74EB of the Summary Offences Act 1953 (SA).
EB, BB and AG (CB’s boyfriend) also gave evidence. The appellant did not give evidence.
The evidence at trial
The appellant’s offending conduct included an incident which CB referred to as the ‘main thing’, being an occasion at the family home, when the appellant and CB were in the appellant’s bed at night, and the appellant touched CB’s breasts, thigh and genital area. The remaining unlawful sexual acts forming the charge involved the appellant touching CB’s breasts on various occasions. This offending occurred in the family home, and mostly during the daytime.
During the period of offending, CB’s mother BB was working night shifts. These shifts would start at around 8.00 pm and finish at various times from midnight onwards. This meant that BB would arrive home from her night shift at about midnight at the earliest, and by about 7.00 am at the latest.
During this period, the appellant would spend most evenings playing computer games at a desk in the lounge room of their home. The lounge room was located between CB’s room and EB’s room.
CB gave evidence that the ‘main thing’ occurred between August and December 2018 when CB’s mother was working a night shift and CB could not sleep as she had had a nightmare. CB had been experiencing frequent nightmares during this period and, after waking from a nightmare, would generally try to sleep in EB’s bed.
One or two nights prior to the ‘main thing’, CB had woken from a nightmare and gone to sleep in EB’s bed. While walking through the lounge room, CB was stopped by the appellant. The appellant told CB to come and sleep in the bed he shared with BB. CB slept in the bed with the appellant and although he was ‘very … cuddly’, no offending occurred on that occasion.
One or two nights later, CB awoke from another nightmare and went to sleep in EB’s bed. On her way to EB’s room, she walked past a digital clock displaying the time 11.55 pm. The appellant was sitting at his desk in the lounge room. When CB walked past him, he told her to go back to her own bed. CB tried to sneak into EB’s room two more times and, on the last occasion, the appellant told CB to sleep in his bed. CB thought she had no option other than to do as her father said because she was scared of him.
CB gave evidence that, while in the appellant’s bed, he touched her breasts, pubic bone and thigh. She recalled the appellant saying, while rubbing her pubic area, that there was too much hair and that she should start shaving. She also recalled the appellant saying that she had the perfect sized breasts.
While the appellant still had his hand on CB’s thigh, CB tried twice to get out of the bed, but both times the appellant said no. CB felt that she could not move and felt scared the appellant would do something if she did. The appellant then fell asleep. CB lay awake, waiting for her mum to come home from work. After about 20-30 minutes, BB arrived home from work and CB got up and started walking out of the room.
As CB was walking out of the room, her mother started walking into the room. They had a conversation in the doorway to the bedroom. CB was walking with her blanket wrapped around her like a towel. Her shorts were quite short and her shirt was long. BB asked CB if she was wearing pants. CB showed BB that she was wearing pants and said ‘yes’. CB then went back to her room and fell asleep.
CB estimated that the ‘main thing’ lasted from 12.00 am until 3.00 am, when her mother returned from work.
CB also gave evidence that for two or three months after the ‘main thing’, the appellant, on numerous occasions, grabbed her on the breasts over her clothing, and on one occasion, grabbed her on the breasts under her clothing but over her bra. This offending would occur almost daily and took place in the kitchen and lounge room of the family home, while no-one else was present. The appellant would generally grab her boobs for a few seconds, but on one occasion he did so for about 30 seconds.
During the relevant period, the appellant would also slap her on the bottom. On some occasions he would grab her boobs and then slap her bottom. CB gave evidence that she had seen the appellant also slap EB and BB on the bottom.
The trial judge and trial counsel adopted the descriptors of the offending used by CB, namely the ‘main thing’, the ‘boob grabs’, and the ‘butt slaps’. For convenience, we will also adopt these descriptors.
CB also gave evidence that she was scared of her father as he would yell a lot and punch holes in the walls. She remembered him punching a hole in the wall on 10 to 15 occasions and, on one occasion, when CB was about five and EB was about three, the appellant had slammed EB’s head into the table because EB did not like the dinner BB had cooked.
The prosecution also relied upon evidence of CB’s initial complaint to her school friend, OD, at around the time of the offending. This evidence was received by way of agreed facts. In particular, it was agreed that there was an occasion when OD told a female teacher, in CB’s presence, that she had been sexually abused by her father. Once the teacher had left the room, and OD and CB were alone, CB said to OD that she knew how OD was feeling because she was going through ‘a similar thing’. Whilst CB could not recall anything more of what OD had revealed to her, or what she said to OD, and did not think that OD said anything in response, it was agreed that what CB said to OD was sufficiently referable to the charged offending to be admissible as evidence of an initial complaint.
The defence case
The defence case at trial was that none of the alleged unlawful sexual acts occurred. Defence counsel submitted that CB’s evidence contained too many inconsistencies and implausibilities for the Court to be satisfied beyond reasonable doubt that the offending occurred. It was suggested that there was a reasonable possibility that, in relation to the ‘main thing’, CB was recalling a nightmare, and/or CB’s evidence had been contaminated by her knowledge of sexual abuse suffered by her friend OD and her boyfriend AG. No specific motive to lie was put to CB. CB denied that she had made up the ‘main thing’. She also denied that the main thing was a nightmare rather than a real event.
The defence case accepted that the appellant would on occasions slap the children on the bottom, but in a way which was playful and accompanied by laughter, rather than being indecent.
The trial judge’s reasons
The trial judge commenced her reasons by setting out the charge and the elements of the offence. Her Honour gave herself orthodox general directions, as well as specific directions in relation to particular evidence and features of the trial. Her Honour then summarised the evidence at trial and the parties’ closing addresses.
In the operative section of the trial judge’s reasons, her Honour analysed and largely accepted the evidence of EB, BB and CB.[2] Her Honour directly addressed the key issues raised by the defence, including the apparently inconsistent and implausible aspects of CB’s account, and the possibilities that the ‘main thing’ was a nightmare, that CB’s evidence was contaminated, or that she was lying about the offending.
[2] The judge did not consider it necessary to have regard to the evidence given by AG, which was limited and peripheral.
The trial judge was ultimately satisfied beyond reasonable doubt as to the credibility and reliability of CB’s evidence in relation to the offending. Her Honour rejected the defence’s challenges to CB’s evidence, and the contention that the ‘main thing’ was a nightmare, or the result of contamination. The trial judge set out her findings of fact, and concluded that the accused was guilty of the charged count.
Grounds of appeal
As mentioned, the appellant relies on four grounds of appeal, as summarised at the outset of these reasons. We propose to commence by addressing Grounds 2 and 3. However, before addressing these grounds, it is convenient to make some general observations about complaints of inadequate reasons and inadequate reasoning.
Inadequate reasons and inadequate reasoning
The principles regarding a complaint of inadequate reasons are well known and need not be addressed at length. In summary, there exists a judicial obligation to give reasons, both to allow appellate courts to discharge their statutory function on appeal, and to facilitate public accountability of judicial decision making.[3] A trial judge’s reasons must be ‘sufficiently comprehensive’ to reveal how the judge arrived at the conclusions which determined the trial.[4] As Lovell JA said in NBM v The Queen:[5]
[A]n appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.[6] Reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.[7]
[3]     NBM v The Queen [2021] SASCA 105 at [90] (Lovell JA).
[4]     JGS v The Queen [2020] SASCFC 48 at [204] (Lovell J, Peek and Bampton JJ agreeing).
[5]     NBM v The Queen [2021] SASCA 105 at [91] (Lovell JA).
[6]     Fleming v The Queen (1998) 197 CLR 250 at [28] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[7]     DL v The Queen (2018) 266 CLR 1.
The content of a trial judge’s obligation to give reasons will depend on the circumstances of each case and the particular issues in dispute.[8] The judge need not address every matter of detail, particularly where those matters are peripheral to the key issues at trial.[9] As the High Court explained in DL v The Queen:[10]
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[11] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[12]
[8] Peacock v The King [2024] SASCA 97 at [74] (Livesey ACJ, Bleby and David JJA); NBM v The Queen [2021] SASCA 105 at [90] (Lovell JA); JGS v The Queen [2020] SASCFC 48 at [201] (Lovell J, Peek and Bampton JJ agreeing).
[9] R v Sexton [2018] SASCFC 28 at [179] (Kourakis CJ, Peek and Nicholson JJ agreeing).
[10] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
[11] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 (Kirby P).
[12] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443 (Meagher JA).
A complaint of inadequate reasoning is a separate, and conceptually distinct, complaint.[13] It is a complaint that the trial judge’s reasoning, although apparent, does not support a finding of guilt beyond reasonable doubt.[14] As Kourakis CJ observed in R v Sexton:[15]
It is important to observe the distinction between a complaint of inadequate reasons and a complaint that a judge’s reasons do not support the verdict returned. The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict.
[13] JGS v The Queen [2020] SASCFC 48 at [205]-[210] (Lovell J, Peek and Bampton JJ agreeing).
[14] Peacock v The King [2024] SASCA 97 at [77] (Livesey ACJ, Bleby and David JJA).
[15] R v Sexton [2018] SASCFC 28 at [177] (Kourakis CJ, Peek and Nicholson JJ agreeing).
Properly understood, a complaint of inadequate reasons addresses the sufficiency of the judge’s exposition of his or her reasoning process. It involves a complaint that the judge’s reasoning is insufficient, or deficient, for some reason; for example, because it does not sufficiently address the issues of fact and law raised by the evidence and relied upon by the parties, or does not sufficiently expose the judge’s reasons for reaching the conclusions reached. A complaint of inadequate reasoning, on the other hand, addresses the soundness of the judge’s reasoning process. It involves a complaint that the reasoning exposed by the judge is unsound, or defective, for some reason; for example, because it involves some misdescription or misunderstanding of the evidence, or is otherwise misconceived or lacking in logic or common sense.
The distinction is thus between a complaint which challenges the sufficiency of the reasons and a complaint which challenges the soundness of the reasoning; or between a complaint that the reasons are deficient and a complaint that the reasoning is defective.
In considering an appeal which involves a challenge to the judge’s reasons or reasoning, it is important to observe the distinction between these two forms of challenge, not only because they are conceptually distinct but also because they are ultimately directed towards different bases for appellate intervention and may result in different relief.
A complaint of inadequate reasons is a complaint of an error of law and, subject to any requirement of materiality and the application of the proviso, will ordinarily result in a retrial.[16]
[16] Criminal Procedure Act 1921 (SA) (‘CPA’) s 158(1)(b); see NBM v The Queen [2021] SASCA 105 at [92] (Lovell JA); Fleming v The Queen (1998) 197 CLR 250 at [22] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
However, a complaint of inadequate reasoning may be directed towards appellate intervention either on the ground of a miscarriage of justice or on the ground that the verdict is unreasonable or not supported by the evidence.[17] As Kourakis CJ explained, in the passage immediately following the above extract from his Honour’s reasons in R v Sexton:[18]
In the context of a criminal appeal against conviction pursuant to s 353 of the CLCA [now s 158(1) of the CPA], the latter complaint [inadequate reasoning] may be an appeal on the ground that the verdict was unreasonable or not supported by the evidence, in which case it will result in an acquittal. Alternatively it may be an appeal on the ground that there has been a miscarriage of justice because the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. In such a case, there will ordinarily be an order for a retrial. These grounds might be made good, or shown to be unfounded, by reference to matters of evidence or law which are not dealt with in the judge’s reasons.
[17] CPA, ss 158(1)(a), 158(1)(c).
[18] R v Sexton [2018] SASCFC 28 at [177] (Kourakis CJ, Peek and Nicholson JJ agreeing).

When making a complaint of inadequate reasoning said to involve a miscarriage of justice, it is not sufficient merely to undertake a general critique of the detail of the judge’s reasons. Nor is it sufficient merely to establish that a particular conclusion or aspect of the reasoning is unsound. It will be necessary to address the significance of the particular aspect of the judge’s reasoning in the context of the reasons as a whole, and to establish that the unsound or defective reasoning was sufficiently fundamental, or material to the outcome, to result in a miscarriage of justice. It will be necessary to establish that the unsound or defective reasoning had a realistic capacity to affect the verdict.[19] Success in establishing this to be the case will, subject to any application of the proviso, ordinarily result in an order for a retrial.
[19] HCF v The Queen (2023) 97 ALJR 978 at [2] (Gageler CJ, Gleeson and Jagot JJ).
Alternatively, if a complaint of inadequate reasoning is advanced in support of a contention that the verdict is unreasonable or unsupported by the evidence, it will be necessary to establish that there was no reasonable pathway to guilt which was available on the evidence at trial. The usual authorities and approach to that kind of contention will be relevant.[20] If successful, that ground would ordinarily lead to an acquittal.
[20] M v The Queen (1994) 181 CLR 487.
Grounds 2 and 3: challenges to the judge’s reasons and reasoning
In Grounds 2 and 3, the appellant contends that the trial judge erred by failing to resolve, or by inadequately resolving, several areas of contest at trial. These areas of contest related to the evidence of the appellant’s temper and violence; the evidence of the appellant slapping CB and EB on the bottom; the judge’s acceptance of CB’s evidence notwithstanding her findings that CB exaggerated certain aspects of her evidence; and the judge’s reliance, in resolving some of the discrepancies in the evidence, upon hypotheses not grounded in the evidence.
Ground 2 is a complaint of inadequate reasoning and Ground 3 is a complaint of inadequate reasons. The appellant does not contend that the verdict was unreasonable; rather Ground 2 is directed towards a contended miscarriage of justice. As explained above, to succeed on this ground, the appellant must do more than undertake a general critique of the trial judge’s reasoning. The appellant must demonstrate that the trial judge’s reasoning broke down in some more fundamental way. As will be explained below, this complaint has not been made out. The appellant’s complaint of inadequate reasons in Ground 3 is similarly without merit.
Inconsistencies in the evidence as to the appellant’s temper and violence
The appellant contends that the trial judge erred by failing to resolve, or by inadequately resolving, inconsistencies in the evidence regarding the appellant’s temper and violence.
CB gave evidence that she recalled an occasion when she was around five years old when the appellant slammed EB’s head into the table because she did not eat her dinner. CB gave evidence that she had not spoken to EB about the incident. EB, on the other hand, said that she did not remember her head being slammed into a table, but thought that CB had told her about the incident at some point.
CB also gave evidence that she had seen the appellant punch a hole in a wall of the family home on 10 to 15 occasions. EB only recalled the appellant punching a wall once, but described patches on the walls which suggested that it had happened more than once. BB recalled two occasions when the appellant had punched a wall in the family’s home.
The appellant complains that the trial judge did not resolve, or did not adequately resolve, the inconsistencies in the evidence regarding the number of times the appellant punched the wall, or the occasion when the appellant slammed EB’s head into the table.
The prosecution led evidence of the appellant’s temper and violence as potentially explaining why CB acceded to the appellant’s request to sleep in his bed, why she remained in his room until her mother came home, and why she did not immediately complain about the offending against her. The trial judge ultimately found that the appellant would often lose his temper and become frustrated and angry over minor things, and that CB went to the appellant’s room, and stayed in his room after the offending, because she was scared of him.[21]
[21] R v AMB [2023] SADC 173 (‘Reasons’) at [308], [395].
In making these findings, the trial judge was not required to resolve every factual inconsistency which arose in the evidence. The number of times that the appellant punched holes in the walls of the family home was not of itself a significant factual matter that had to be resolved (either in the sense of the judge making a finding as to how many holes were punched, or in the sense of the judge reaching a clear conclusion as to the explanation for any discrepancy in the evidence). Nor was the discrepancy in the evidence as to the ‘head slamming’ incident a matter that necessarily had to be resolved. Both were merely issues arising on the evidence that needed to be considered in addressing the more significant issue of whether the appellant had a temper and whether CB was scared of him.
In any event, the judge did address both issues in her reasons.
As to the latter, her Honour considered that CB’s recollection of the ‘head slamming’ incident may have been imprecise, given it would have occurred when CB was very young. Her Honour considered it likely that CB told EB about the incident and that, due to her young age, EB had no recollection of the incident occurring, or being told about the incident by CB. The judge was satisfied that CB and EB did not make up this incident in order to cast the appellant in a poor light.
In relation to the evidence regarding the number of times the appellant punched holes in the walls, her Honour considered that CB’s evidence that it had occurred 10 to 15 times was not borne out by the rest of the evidence and was, in all likelihood, exaggerated.[22] Her Honour accepted the evidence of BB and EB that the appellant had punched a hole in the wall on at least one occasion.[23]
[22] Reasons at [373].
[23] Reasons at [202], [373].
Having regard to the totality of the evidence, her Honour was satisfied that the appellant did have a temper, and that CB was scared of him. The evidence on this topic, in addition to the evidence of the ‘head slamming’ incident and the wall punching incidences, included evidence from BB that the appellant had a short temper and would at times get angry, and would yell at the children for failing to do their chores.
As mentioned, the evidence as to the appellant’s temper, and CB’s fear of him, was adduced for a limited purpose. It was adduced to explain why CB slept in the appellant’s room when he told her to do so; why she remained in his room until her mother came home; and why there was a delay in her complaint.
The judge demonstrated an understanding of this limited purpose. And in making the finding she did, the trial judge clearly exposed the reasoning underpinning her approach. In doing so, her Honour not only addressed the factual disputes raised by defence, but also addressed their significance to her reasoning more generally. She explained why, despite the discrepancies in the evidence regarding the ‘head slamming’ incident and the appellant’s punching of walls in the family home, she was nevertheless satisfied that the appellant had a temper, and that CB was scared of him.
Her Honour also made plain that discrepancies in the evidence on the matters relevant to the appellant’s temper and violence did not lead her to doubt the credibility and reliability of CB as to the charged conduct.[24] This, of course, was the primary issue at trial.
[24] Reasons at [301], [387]-[388].
In the circumstances, it cannot be said that her Honour’s reasons were deficient or defective in the relevant sense.
Inconsistencies in the evidence as to ‘butt slaps’
The appellant further complains that the trial judge inadequately resolved the inconsistencies in the evidence as to the frequency and circumstances of the appellant’s conduct in slapping the bottoms of CB, EB and BB.
It was not disputed that the appellant would slap his daughters on the bottom from time to time, including doing so playfully in front of other members of the family. The trial judge was not satisfied that this behaviour was indecent. These acts were adduced as contextual evidence, as they included occasions when the appellant also grabbed CB on the breasts.[25]
[25] Reasons at [44], [47].
As her Honour explained, EB only mentioned the butt slaps when she was asked whether there was anything that had happened that was inappropriate or made her uncomfortable. CB gave evidence that she saw the appellant slap EB on the bottom ‘a couple of times a week’ and that he did it to her mother, BB, too. The trial judge was satisfied that CB considered these slaps to be inappropriate. EB gave evidence that she did not feel comfortable bringing up the butt slaps, and that she was scared of making the appellant angry. This led the trial judge to find that, despite EB describing the butt slaps as ‘playful’, they also made EB feel uncomfortable.[26]
[26] Reasons at [376].
There is very little inconsistency between the accounts of CB and EB on the topic of the ‘butt slaps’. They each recounted the conduct of the appellant in a general way, and gave evidence as to the frequency of the slaps. They did not recount specific occasions which could easily be compared for inconsistency.
To the extent that there may have been an element of speculation in the judge’s suggestion that EB may have been uncomfortable about the butt slaps, and indeed in saying anything about them, this was not a matter of any great moment in the context of the judge’s overall reasoning towards acceptance of the reliability and credibility of CB’s evidence.
Again, we do not consider that the appellant has demonstrated any inadequacy in this aspect of the trial judge’s reasons or reasoning.
Exaggeration by CB
The trial judge accepted that aspects of CB’s evidence were exaggerated. This included her evidence regarding the number of times the appellant punched a hole in the wall; and the frequency with which he would grab her breasts and slap her bottom.[27] The appellant contends that the judge did not adequately address the significance of CB’s exaggeration in accepting the credibility and reliability of CB’s evidence.
[27] Reasons at [373]-[374].
It is permissible for a trial judge to find that a witness’ evidence is unreliable in relation to some issues and not others. Here, the trial judge accepted that CB may have exaggerated parts of her evidence. Nevertheless, her Honour was satisfied that CB’s evidence of the offending against her was reliable and credible, such that it could be accepted beyond reasonable doubt.[28]
[28] Reasons at [336], [373]-[374], [384], [388].
It cannot be said that the trial judge failed to address these issues, nor that her Honour’s reasoning was unsound. The appellant’s complaints involve no more than a general criticism of the reasoning, or submissions in favour of a different conclusion. They do not reveal any deficiency in the judge’s reasons, or defect in her reasoning, which gave rise to any miscarriage of justice.
The introduction of ‘hypotheses’
Finally, the appellant complains that in attempting to resolve difficulties in the prosecution case, the trial judge introduced hypotheses which were not grounded in any evidence.
The appellant complains that the judge erred in rejecting the defence submission that it was implausible that CB would be too scared to resist the appellant’s request that she sleep in her bed, but not scared enough that she would attempt to sneak past him on three occasions.
BB had given evidence that the appellant would become frustrated if interrupted while gaming. The judge stated that it was likely that any level of frustration the appellant was experiencing as a result of being interrupted would increase the more he was interrupted. In raising this hypothesis, the judge was simply disclosing the reasoning process behind her rejection of the defence’s implausibility argument. Her Honour did not rely on this hypothesis to make any positive finding of fact as to what occurred. Rather, she was applying her human experience and common sense to the evidence, in making an assessment of the defence argument as to the implausibility of CB’s account.
The appellant further contends that the trial judge erred in reasoning that CB slept in the appellant’s room because, having defied her father twice, CB was likely to have felt that she had no option but to not defy him a third time; and that it was unlikely that CB’s evidence of the appellant’s comments during the ‘main thing’ was the result of contamination from OD, because it was unlikely that OD, a teenage girl, would have disclosed such embarrassing matters to another teenage girl.
In relation to these further complaints, it is sufficient to repeat that the trial judge was applying her general knowledge and human experience in assessing the defence submissions that CB’s account was implausible, or the result of a nightmare, or contamination from OD. In dealing with these submissions, her Honour expressly stated the matters that impacted her reasoning process in relation to the probability or improbability of the facts in issue. This was entirely appropriate and does not involve any defective reasoning.
Similarly, the applicant complains that, in addressing the discrepancy between the evidence of CB and EB as to the ‘head slamming’ incident, the judge suggested that the discrepancy might be the product of a young person misremembering an incident involving the appellant simply pushing EB’s head down to encourage her to eat. The appellant complains that this explanation was not grounded in any evidence. In our view, this overstates the significance of this aspect of her Honour’s reasoning. Her Honour was not purporting to make any finding as to what occurred, and she did not need to do so. Her Honour was merely identifying a possible explanation that might explain the discrepancy in coming to the more significant conclusion that she was satisfied that the incident was not something that CB and EB had deliberately made up, and that the discrepancy in the evidence did not prevent her accepting that CB’s evidence as to the offending was credible and reliable.
Conclusion as to Grounds 2 and 3
It is clear from the trial judge’s reasons that despite the inconsistencies or discrepancies in the evidence, considered both individually and in combination, her Honour was satisfied beyond reasonable doubt of the credibility and reliability of CB’s evidence as to the charged conduct. Her Honour’s reasons for reaching this conclusion are sufficiently set out and sound in their logic. The complaints in Grounds 2 and 3 have not been made out.
Ground 1: corroboration
In Ground 1, the appellant complains that the trial judge erred in stating, at several points in her reasons, that CB’s evidence was ‘corroborated’ by other evidence.
There were two limbs to the appellant’s argument in support of this ground. The first involved a contention that the trial judge used the term ‘corroboration’ in the technical legal sense, and in doing so, erred in finding that the supposedly corroborative evidence was probative of the charged conduct having occurred. The second limb involved a contention that, even if the trial judge used the term in accordance with its plain English meaning, the trial judge erred as the evidence said to be corroborative was intractably neutral and could not support the credibility or reliability of CB, let alone the occurrence of the charged conduct.
The judge’s use of the term ‘corroborated’
In analysing the evidence, the judge made several references to the evidence of BB and EB being consistent with, or corroborative of, CB’s evidence. In so doing, her Honour adopted the language of the prosecutor, as set out in her Honour’s summary of his address.
The judge made further references to CB’s evidence being corroborated in the operative section of her reasons. For example, at [378], her Honour reasoned that EB’s evidence that the appellant would slap his daughters on the bottom was corroborative of CB’s evidence to this effect. Then, at [384], the judge described CB’s account of the ‘main thing’ as comprehensive, detailed and corroborated as to incidental matters:
I have carefully considered CB’s account as to both the ‘main thing’ and the other offending. Notwithstanding that aspects of her evidence were exaggerated, as outlined above, CB impressed me as a witness. Her account of the ‘main thing’ was comprehensive, detailed and corroborated as to incidental matters. There was very little inconsistency in her account. I am satisfied that by her evidence, what CB was doing was truthfully recounting, to the best of her ability, an incident that had occurred some four years ago. This was not an elaborate lie that had been made up by CB and then carefully remembered and restated.
And finally, at [389], the judge referred to the facts surrounding the main thing being corroborated:
The facts surrounding the alleged ‘main thing’ were corroborated by the evidence of BB and EB – importantly the fact that during the relevant period BB was working night shift and CB was regularly going to sleep in EB’s room. The account given by CB of the main thing remained largely consistent throughout and contained many details that were indicative of her remembering a real, lived event, not a dream.
Analysis
In accordance with its technical legal meaning, corroborative evidence is independent evidence that ‘confirms’, ‘supports’, or ‘strengthens’ other evidence in the sense that it renders that other evidence more probable.[29] The appellant complains that in her reasons, the judge relied on particular evidence as corroborative of CB’s account in this legal sense, despite that evidence being incapable of rendering CB’s account more probable.
[29] BRS v The Queen (1997) 191 CLR 275 at 297 (Gaudron J); Doney v The Queen (1990) 171 CLR 207 at 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
In our view, this is not a fair construction of her Honour’s reasons. There was no legal requirement for CB’s evidence to be corroborated and it is plain on reading her reasons that her Honour was not using the term in any technical legal sense. Her Honour was using the word ‘corroborated’ only in its plain English meaning, in effect as a synonym for ‘supported’. In other words, aspects of CB’s evidence were supported by other evidence in the case.
Even accepting this usage of the term, the appellant submits that the evidence of BB and EB was not aptly described as corroborative. He contends that the evidence of EB as to ‘butt slapping’ was not probative of the charged conduct, and in particular was not probative or supportive in any way of the ‘main thing’. He also contends that the evidence as to incidental matters such as the layout of the house, the fact BB worked night shifts, and the fact that during the relevant period CB would try to sleep in EB’s room after having a nightmare, was incapable of supporting a finding as to whether the alleged sexual offending took place. That evidence related to matters which were not in dispute, and which were in any event peripheral to the charged conduct involved in the ‘main thing’. The evidence was also said to be intractably neutral because it was consistent with the defence case that CB’s evidence as to the ‘main thing’ was the product of a nightmare.
In addressing this submission, it is important to appreciate that the judge used the term ‘corroborated’ not only in its ordinary English meaning, but also in its broadest and most general sense. Her Honour used the term to encompass evidence which was not of itself directly probative of the charged conduct, but which was nevertheless consistent with aspects of CB’s evidence, and in that general sense supportive of her reliability and credibility. Whilst this limited the value of the corroboration, it was nevertheless capable of providing some assistance in her Honour’s assessment of CB’s reliability and credibility.

The judge did not misunderstand BB’s or EB’s evidence as providing direct independent support for the occurrence of the charged conduct. However, through its consistency with CB’s evidence as to the circumstances surrounding the ‘main thing’ and the ‘boob grabs’, it did provide some support, or corroboration, for the credibility and reliability of CB’s evidence in relation to these matters.
In relation to the ‘main thing’, it was relevant to observe, as the judge did, that CB’s description of the surrounding circumstances was consistent with the other evidence at trial, including that of BB and EB. It was relevant to the weight to be attached to this that these were matters which were not in dispute, and which might easily have been woven into any narrative given by CB, and indeed might have been included within a narrative derived from a dream or nightmare. However, that did not mean the consistency was irrelevant. Accuracy as to peripheral detail retained some significance in assessing CB’s evidence, and the judge’s cautious or guarded use of the corroboration provided by the evidence of these matters makes it plain that her Honour did not misunderstand or misuse this feature of the evidence.
Similar observations may be made in relation to the judge’s use of EB’s evidence as to ‘butt slapping’ as corroborating CB’s evidence in relation to the same. Whilst there were some differences in their evidence, EB’s evidence did provide some general support for CB’s evidence in this respect. Whilst CB’s evidence of ‘butt slapping’ was not critical to her allegations of charged conduct, it provided some of the context in which the appellant touched her breasts. In that sense, EB’s evidence as to ‘butt slapping’ did provide some general and indirect support for the credibility and reliability of CB’s evidence.
It is true that there were some discrepancies between the evidence of CB and the evidence of BB and EB, and that the judge did not accept, for example, that BB’s evidence corroborated CB’s evidence of their doorway encounter following the ‘main thing’. However, the judge addressed these aspects of the evidence elsewhere in her reasons, and their existence did not undermine the capacity of BB’s and EB’s evidence to provide some general corroboration in other respects.
In summary, the judge’s use of the term ‘corroborated’ does not reveal any inadequacy or deficiency in her Honour’s reasons, or otherwise establish that there was any miscarriage of justice. Ground 1 has not been made out.
Ground 4: the complaint evidence
It is well recognised that evidence of an initial complaint may enhance or bolster a complainant’s evidence in two ways: by demonstrating consistency of conduct (that is, in making a complaint in the circumstances consistent with what one might expect); and by demonstrating consistency of account (that is, in making a complaint in terms that are consistent with the complainant’s evidence of the charged conduct).[30]
[30] Weragoda v The Queen [2021] SASCA 123 at [55]-[59] (Doyle JA, David JA and Stanley AJA).
The complaint evidence in the present case has been outlined earlier in these reasons. As explained, it was adduced in a largely agreed form. Whilst there was no detail as to the terms in which the offending was disclosed by CB to OD (beyond a reference to it being ‘a similar thing’ to OD’s abuse by her father), it was agreed that CB’s statement to OD was referrable to the charged offending and admissible as complaint evidence.
As initially framed, the appellant’s contention on appeal was that the judge impermissibly used the complaint evidence as enhancing CB’s credibility by demonstrating a degree of consistency of account.
This contention was misconceived. Alive to the difficulty in making any use of consistency of account in circumstances where the terms of the complaint were not clear, the judge expressly confined her use of the complaint evidence to consistency of conduct. Her Honour explained:[31]
I am satisfied that the initial complaint evidence does demonstrate some consistency of conduct. The fact CB disclosed the offending to OD, a friend, of her own age, who was experiencing similar trauma at that time, is precisely the type of occasion when one may expect her to have disclosed the offending. However, it is also, of itself, not inconsistent with the ‘nightmare’ hypothesis, assuming said nightmare occurred back in 2018.
[31] Reasons at [349].
During the course of argument, the appellant’s contentions in support of this ground evolved into a submission that the judge erred in relying even upon consistency of conduct in circumstances where the defence case included a hypothesis that CB’s evidence reflected a nightmare. The appellant argued that in circumstances where the complaint might have related to a nightmare experienced by CB, it could not assist at all in assessing CB’s credibility.
The fact that the defence case encompassed a submission that it was possible that CB’s allegations of the ‘main thing’ reflected a nightmare was relevant to an assessment of the significance of the complaint to CB’s credit. It was relevant to the weight that might be attached to the consistency of conduct inherent in CB making the complaint when she did and in the circumstances she did. However, it is apparent from the last sentence of the passage extracted from her reasons above that the trial judge was alive to the significance of the possibility that CB’s account was the recollection of a nightmare.
The nightmare hypothesis did not render the complaint evidence irrelevant, or intractably neutral, in assessing CB’s credibility. Particularly in circumstances where the judge provided careful reasons for ultimately rejecting the nightmare hypothesis, the evidence had potential work to do in assessing CB’s credibility more generally. That said, the rest of the judge’s reasoning suggests that she attached very limited weight to the complaint evidence.
No error or miscarriage has been identified in the judge’s use of the complaint evidence. Ground 4 has not been made out.
Conclusion
We would grant permission to appeal but dismiss the appeal.