Bowen (a pseudonym) v The King

Case [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

  1. THE COURT: Following a trial before a judge sitting alone, the appellant was convicted of the offence of…

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Bowen (a pseudonym) v The King [2025] SASCA 36
Case
[2025] SASCA 36
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, the father of the complainant (CB), appealed his conviction to the Full Court of the Supreme Court of South Australia. The offending conduct occurred between August 2018 and February 2019, when CB was between 12 and 13 years old, and the appellant was between 37 and 38. The prosecution case relied primarily on CB's evidence, which detailed instances of the appellant touching her breasts, thigh, and genital area.

The legal issues before the Full Court included whether the trial judge erred in accepting CB's evidence despite admitted exaggerations, and whether the trial judge improperly introduced unsupported hypotheses to resolve difficulties in the prosecution's case. The appellant also contended that the trial judge incorrectly used the term "corroborated" in relation to CB's evidence, arguing that the evidence cited as corroborative was either legally insufficient or too neutral to support CB's account.

The Full Court found that the trial judge had adequately addressed the issue of exaggeration, correctly distinguishing between unreliable and reliable aspects of CB's testimony. The court held that the trial judge's use of "hypotheses" was merely a disclosure of her reasoning process in assessing the plausibility of defence arguments, rather than a basis for making positive findings of fact. Regarding the use of the term "corroborated," the court noted that the trial judge adopted the prosecutor's language and that, in context, the references to consistency or corroboration were sound. The court concluded that the trial judge was satisfied beyond reasonable doubt of the credibility and reliability of CB's evidence, despite inconsistencies, and that the grounds of appeal did not demonstrate a miscarriage of justice.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.