Donald (a pseudonym) v The King
[2024] SASCA 121
•17 October 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DONALD (A PSEUDONYM) v THE KING
[2024] SASCA 121
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice McDonald and the Honourable Auxiliary Justice Hall)
17 October 2024
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
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 - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
This is an appeal against conviction.
After a trial by judge alone, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, JM, was the granddaughter of the appellant’s wife and was aged between eight and 13 years old at the time of the offence.
The appellant was acquitted of a second count of a similar nature in respect of JM’s sister.
JM was born on 31 August 2001. During her childhood JM and her younger siblings would visit the appellant’s house with their mother and father. The appellant had a shed at the back of his property where the children would go and play games. JM would often be alone with the appellant in the shed.
When JM was aged 18 or 19 she spoke to her mother, JLM, about the abuse. The prosecution relied on this telephone conversation as evidence of an initial complaint. The account of the conversation given by JM in her evidence differed from the account given by JLM. The appellant relied on this, and other alleged inconsistencies, in support of the defence case that the trial Judge could not be satisfied beyond reasonable doubt of the credibility and reliability of JM regarding the sexual abuse; that evidence being critical to the prosecution case.
The prosecution also relied on evidence of two uncharged acts which occurred when JM was between 17 and 19 years old. The first uncharged act was a conversation in which the appellant told JM that he had received an inheritance and that if she continued doing what she was doing with him, he would give her half of that inheritance. The second uncharged act was that the appellant sent JM a photograph of his penis and requested that she send him an intimate photograph of herself in return.
The appellant appeals on two grounds.
Ground 1 contends that a miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of JM. Permission to appeal on ground 1 was granted by Livesey P on 2 April 2024.
Ground 2 contends that the trial Judge failed to adequately identify and explain the permissible use of the uncharged acts evidence, such that he did not comply with the obligation to direct himself pursuant to s 34R(1) of the Evidence Act 1929 (SA).
HELD, per the Court, granting permission to appeal on ground 2 to the extent necessary, but otherwise dismissing the appeal on both grounds:
In relation to ground 1, it is not necessary for a trial judge to deal with every aspect of the disputed facts. What is required depends on the circumstances of the particular case. The reasons in this case were much more than a bare statement of the principles of law applied and the findings of fact made and when considered as a whole, having regard to the forensic issues at the trial, there was no inadequacy.
In relation to ground 2, whilst the sexual attraction evidence was adduced at the trial as discreditable conduct evidence, it was concluded by the trial Judge that it was not admissible under s 34P. Whilst it was appropriate for the trial Judge to direct himself not to engage in bare propensity reasoning, given the evidence had been heard, the was no requirement to give a s 34R direction.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 28, 34M, 34M(4), 34M(4)(b), 34P(1), 34R, 34R(1); Juries Act 1927 (SA) s 7, referred to.
DL v The Queen (2018) 266 CLR 1; Fleming v The Queen (1998) 197 CLR 250; R v P, S (2016) 261 A Crim R 329; R v Rippey [2022] SASCA 141, discussed.
Alford v Magee (1952) 85 CLR 437; DL v The Queen (2018) 266 CLR 1; Douglass v R (2012) 290 ALR 699; Fleming v The Queen (1998) 197 CLR 250; JGS v R [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; MWJ v The Queen [2005] HCA 74; NBM v The Queen [2021] SASCA 105; Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595; R v Keyte (2000) 78 SASR 68; Trussell v The King [2023] SASCA 5; Whisprun Pty Ltd v Dixon (2003) 234 CLR 492, considered.
DONALD (A PSEUDONYM) v THE KING
[2024] SASCA 121Court of Appeal – Criminal: Doyle JA, McDonald and Hall AJJA
THE COURT: The appellant was convicted after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, JM, was the granddaughter of the appellant’s wife and was aged between eight and 13 years old at the time of the offence. The appellant was acquitted of a second count of a similar nature in respect of JM’s sister, SRM.
When JM was aged 18 or 19 she spoke to her mother, JLM, about the abuse. The prosecution relied on this telephone conversation as evidence of an initial complaint. The account of the conversation given by JM in her evidence differed from the account given by JLM. The appellant relied on this, and other alleged inconsistencies, in support of the defence case that the trial Judge could not be satisfied beyond reasonable doubt of the credibility and reliability of JM regarding the sexual abuse; that evidence being critical to the prosecution case.
The prosecution also relied on evidence of two uncharged acts which occurred when JM was between 17 and 19 years old. The first uncharged act was a conversation in which the appellant told JM that he had received an inheritance and that if she continued doing what she was doing with him, he would give her half of that inheritance. The second uncharged act was that the appellant sent JM a photograph of his penis and requested that she send him an intimate photograph of herself in return.
The appellant appeals against his conviction on two grounds. The first ground contends that a miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of JM. The particulars to this ground refer to various alleged inconsistencies in the evidence of JM, including the inconsistency between JM and her mother regarding the terms of the complaint. The second ground contends that the trial Judge failed to adequately identify and explain the permissible use of the uncharged acts evidence, such that he did not comply with the obligation to direct himself pursuant to s 34R(1) of the Evidence Act 1929 (SA).
Permission to appeal on ground 1 was granted by Livesey P on 2 April 2024. The second ground was added subsequently. For the reasons that follow we would grant permission to appeal on ground 2, to the extent necessary, but dismiss the appeal.
Prosecution case
The appellant was married to JM’s maternal grandmother. He was treated by JM and her siblings as their grandfather, and we will refer to him as such in these reasons.
JM was born on 31 August 2001. During her childhood JM and her younger siblings would visit the appellant’s house with their mother and father. The appellant had a shed at the back of his property where the children would go and play games. JM would often be alone with the appellant in the shed.[1]
[1] Trial ts 52-54.
The prosecution case was that, when JM was about eight years old, the appellant started playing a game with her whereby he would hide a set of keys in the shed and she would have to find them, or she would hide the keys and the appellant would be the one searching. When JM was searching for the keys, the appellant would tell her whether she was ‘hot’ or ‘cold’. When she was about nine years old the location where the appellant hid the keys began to change. Whilst he would initially hide the keys around the shed, he started to include hiding the keys in his pants. He would encourage JM to retrieve them. JM would find the keys between the appellant’s pants and underwear. Later this changed, such that the appellant would hide the keys inside his underwear. On these occasions the appellant would reassure JM that it was okay to put her hands into his underwear, and she did so.[2]
[2] Trial ts 54, 466-467.
As time went on, when the appellant and JM played the keys game it would take less time before the keys would be hidden in his pants. He might hide them once or twice around the shed before they would be put in his pants. Sometimes the appellant would lower his pants slightly to indicate where the keys were.[3]
[3] Trial ts 183-184.
Between a few weeks to a month after the appellant first started hiding the keys in his pants, he prompted and encouraged JM to put the keys in her pants when it was her turn to do the hiding. When the appellant retrieved the keys from JM’s pants, he would leave his hand lingering for some time before he grabbed the keys.[4]
[4] Trial ts 463, 467.
In addition to the keys game, the appellant would take his penis from his pants and expose himself whilst they were both in the shed. The keys game went on for months and JM had conflicting feelings of embarrassment and curiosity. However, she still felt safe with the appellant and affectionate towards him.[5]
[5] Trial ts 193.
The appellant told JM that what happened between them in the shed was their secret and that she should not tell anyone about it. As she got older the appellant started giving JM money. She understood that this was to encourage her silence. There was a jar of money in the shed on top of a refrigerator. The appellant would mention to JM that he had put money in the jar after something of a sexual nature had occurred between them. JM did not tell anyone about the money because the appellant told her not to. He would also tell her that if she told anyone he would be sent away, would not be able to see anyone, and everyone would be disappointed. He told her that if she said anything about what he had done to her, her family would be angry with her.[6]
[6] Trial ts, 54-55, 195-197, 479.
JM stayed at the appellant’s house on about a monthly basis. Sometimes she would stay on her own and sometimes with her siblings. The last occasion that there was any sexual abuse was on a night that JM slept at the appellant’s house. JM’s grandmother was away that night and the appellant and JM were alone in the house. The appellant went to his bedroom and retrieved some pornographic magazines and DVDs and brought them to the lounge room. He showed JM some pornographic magazines and played a pornographic DVD. While the movie was playing, the appellant masturbated JM, performed cunnilingus on her, masturbated himself, caused JM to masturbate him and caused her to perform fellatio on him.[7]
[7] Trial ts 55-56.
The prosecution case was that the sexual abuse relevant to the charge ended sometime before JM commenced year 8 at school. However, the prosecution also relied on evidence of sexual overtures made by the appellant to JM when she was an adult. These overtures occurred when JM was about 18 or 19 years old. On one occasion the appellant told JM that he had recently received an inheritance from his mother and that if she (JM) continued what she was doing with him, he would give her half of his inheritance. She declined the offer.[8]
[8] Trial ts 476-477.
The second overture was in a text message sent by the appellant to JM. The text message was ‘do you want to see it?’. JM was not sure what he was referring to but agreed. The appellant then sent her a photograph of his penis and asked if she would send him a photograph of herself. She said no, deleted the photograph and asked the appellant to do the same.[9]
[9] Trial ts 56, 223-224, 477.
The prosecution case was that the inheritance proposition and the sending of the penis photograph demonstrated that the appellant had a sexual attraction to JM, both at the time of these events and when he was offending against her as a child. The prosecution relied on this evidence as circumstantial evidence that made it more likely that the offending the subject of the charge occurred.[10]
[10] Trial ts 59, 474-477.
The prosecution also relied on evidence of a complaint made by JM when she was about 18 years old. At that time, she was asked by her mother whether any sexual abuse had occurred. JM initially denied any abuse, but in a later conversation told her mother that she had been sexually abused by the appellant.[11] The exact terms of this complaint are the subject of one of the particulars of ground 1.
[11] Trial ts 482-483.
Trial Judge’s reasons
The trial Judge’s reasons comprise 58 pages and 253 paragraphs.
The trial Judge commenced by setting out the charges and the elements of the charged offences. Under the heading ‘General Directions’, his Honour sets out standard directions regarding the onus and standard of proof, the right to silence and the special arrangements made for the giving of evidence by JM and SRM. After a section dealing with contentions that the complainants may have had motives to lie, his Honour turned to the issue of complaint evidence.
The trial Judge noted that the prosecution had led complaint evidence in relation to both complainants. His Honour referred to the principles relevant to such evidence distilled in R v P, S[12] at [22]-[26]. In particular his Honour referred to the following principles: that once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to the charge, at least in a general way; if evidence of complaint is admitted a direction in accordance with s 34M(4) of the Evidence Act is required; and that a determination of the consistency of the complaint with the complainant’s evidence includes a comparison between the wording of the complaint and the conduct alleged.[13]
[12] R v P, S (2016) 261 A Crim R 329.
[13] R v TL [2024] SADC 4 at [22]-[23] (‘Reasons’).
The trial Judge dealt with the cross-admissibility of evidence relating to the two charges and then set out the general background. His Honour then turned to the evidence of JM and said that in making findings he would consider the whole of JM’s evidence and take into account what the defence submitted were ‘compounding improbabilities in JM’s evidence’.[14] His Honour then turned to a summary of each aspect of the complainant’s evidence, commencing with the evidence about the ‘hide the keys’ game.
[14] Reasons at [33].
The trial Judge set out the evidence given by the complainant regarding the hide the keys game. He then noted the prosecution submission that the detail of JM’s account of the game, including her ability to describe her feelings about what was happening and her description of the warmth of the appellant’s body in contrast to the keys, indicated a truthful account. He also noted the defence submission that the significance of the details was diminished by the fact that JM was an intelligent, articulate young woman by the time she came to give evidence. The defence suggestion was that details which might have been the hallmarks of a truthful account if JM were a child had less weight now that she was an adult. His Honour concluded that JM’s account of the hide the keys game was compelling both because of the level of detail and her presentation as a witness. He was not persuaded that the fact that JM was an intelligent, articulate young woman when she gave her evidence was a reason to discount the persuasive nature of her evidence.[15]
[15] Reasons at [35]-[43].
The trial Judge then set out JM’s evidence regarding the appellant exposing his penis to her in the shed. She said that this became so common that she wasn’t looking for it anymore, it was just there. His Honour said that this evidence had ‘a ring of truth about it’.[16]
[16] Reasons at [44]-[45].
The trial Judge then turned to another incident in which JM had described feeling the appellant’s penis on her back when she was sitting on his lap. In cross‑examination, JM conceded that she was not sure that what she felt was the appellant’s penis. It is unnecessary to say more about this incident as his Honour concluded he could not be satisfied beyond reasonable doubt that this incident occurred as alleged. He accepted that JM honestly believed that the appellant placed his penis on her back, but found that there was an element of reconstruction and uncertainty about her evidence in this regard. He did not consider that JM had fabricated this part of her account. The defence also raised an issue about a possible inconsistency in that, in opening, the prosecution had said that JM would give evidence that at the time of this incident the appellant squeezed her bottom, whereas she gave no evidence in that respect. His Honour said that he had considered whether, either on its own or in combination with other inconsistencies, this issue caused him to doubt JM’s credibility and reliability. He considered that it did not, because this was a detail that might easily have been forgotten as compared to other more serious aspects of the offending.[17]
[17] Reasons at [46]-[51].
The trial Judge then dealt with JM’s evidence about being told by the appellant not to tell anyone. JM’s evidence was that initially the appellant told her that what happened between them in the shed was their secret and that she could not tell anyone about it. As she got older, the appellant offered her money and told her that if she told anyone her family would hate her. The defence raised several criticisms about the evidence, which his Honour dealt with. First, his Honour said that it was an ‘inconsequential omission and readily understandable’ that JM had not mentioned in her police statement that the appellant had also told her not to say anything about the money he gave her, whereas she had said this in her evidence. Secondly, his Honour said it was not an omission of ‘any real consequence’ that JM had told police that she could not recall what she spent the money on, whereas in evidence she said that she would buy lollies. Thirdly, the prosecutor in opening had referred to the appellant putting $20 to $100 in the jar for JM, whereas in evidence she could only recall a few five-dollar notes. His Honour said that in his view the difference in denominations was a ‘minor inconsistency’. Fourthly, JM had not mentioned in her police statements that the appellant had told her that the hide the keys game was their secret. His Honour again viewed this as a minor inconsistency. Fifthly, there was said to be no explanation of why JM’s relationship with the appellant went from being amicable to one where she was receiving threats to stay quiet. His Honour said that, without accepting that the change was unexplained, a possible explanation was that JM was getting older. In any event, it would not be expected that a child would be able to describe why an adult’s approach had changed. His Honour said that he rejected this submission as having any meaningful effect on his assessment of JM’s evidence either alone or in combination with the whole of her evidence.[18]
[18] Reasons at [52]-[58].
The trial Judge then dealt with an aspect of JM’s evidence that was referred to as the Anaconda movie. JM gave evidence that after watching the named movie whilst staying at the appellant’s house, she had a nightmare later that night. She said that she went to the appellant’s bedroom because it was closer than that of her grandmother. She got in to bed with the appellant, who was clothed from the waist down. His Honour treated this incident as being ‘entirely innocent’ and noted that it was not relied on by the prosecution as being a discreditable act. However, the defence had sought to make something of inconsistencies between JM’s evidence about this incident and her police statements. First, JM had not mentioned in her police statements that she had watched the movie at the appellant’s house, only that she had been scared about the movie whilst staying there. His Honour concluded that if this was an inconsistency, it was inconsequential. Secondly, in her police statements, JM said that she went to the appellant’s bedroom because her grandmother only had a single bed. His Honour concluded that this alleged inconsistency was ‘minor at best’ (in circumstances where it was not put to JM that she did not get into bed with the appellant).[19]
[19] Reasons at [59]-[63].
The trial Judge then dealt with the evidence of JM concerning the last time sexual conduct occurred. This was the occasion on which JM said she stayed at the appellant’s house whilst her grandmother was out, and that the appellant showed her pornography and then engaged in sexual acts with her. The defence suggested that there was inconsistency between JM’s police statements and her evidence regarding whether this was the first time that JM had stayed over. JM did not accept that there was any inconsistency. His Honour described the alleged inconsistency as being a ‘difference with little meaning’ and that it was never disputed that JM had stayed the night at the appellant’s house without her other siblings.[20]
[20] Reasons at [64]-[68].
The trial Judge then turned to the issue of where the appellant got the pornographic material from. In her evidence, JM said she was not a hundred percent sure whether she stayed in the lounge room or followed the appellant when he went to get the pornography. The location of the pornography was relevant because in a later police search pornography was found in the appellant’s bedroom. In cross-examination, JM said that her memory was that she had followed the appellant to his bedroom when he retrieved the pornography, but accepted that this was not referred to in her police statement. She explained this as being because she was emotional when she made the statement and had missed a detail that she later remembered when she reviewed the statement. JM denied being told by police where the pornography had been located. She also denied finding the pornography on any other occasion when she was at the house. His Honour accepted JM’s evidence in that regard and that, whilst she knew that some pornography had been discovered, she was not told where it had been found. He said that whilst he had not relied on the evidence as establishing esoteric knowledge, the location of the pornography seized by police was consistent with JM’s account of where she saw the appellant get it from.[21]
[21] Reasons at [69]-[84].
The trial Judge referred to evidence given by JM regarding a description of the pornography that she saw. The defence submitted that there was a significant inconsistency in that in her first police statement she had referred to a female pleasuring herself, whereas in evidence she had referred to a man pleasuring a woman and said that this reminded her of the hide the keys game. His Honour said that he disagreed that it was a significant inconsistency. His Honour found that the effect of JM’s evidence was that a person touching a woman’s vagina reminded her of the hide the keys game and that whether the person doing the touching was male or female made little difference.[22]
[22] Reasons at [85]-[88].
The trial Judge then moved to the sexual abuse that occurred when the appellant and JM were watching the pornography. After extracting the relevant evidence, his Honour said that the detail of the evidence and JM’s presentation when she gave it was compelling. Those details included JM describing a sexual awakening (realising she was attracted to women), being reminded of what the appellant had done to her in the find the keys game, her description of how she felt after the appellant licked her vagina and her description of the appellant telling JM to lick his penis like a lollipop. His Honour accepted that JM’s detailed account had the hallmarks of a truthful account.[23]
[23] Reasons at [89]-[94].
The trial Judge then turned to the sexual attraction or uncharged acts evidence. His Honour noted that the appellant’s mother died on 2 August 2020, and so the inheritance proposition, if made, must have occurred when JM was 18 or 19 years old. JM did not know whether the inheritance proposition or the penis photograph came first. His Honour described the basis on which the prosecution relied on this evidence and whether that use was permissible in the following terms ([98]-[100]):
The prosecution submits that the inheritance proposition and the penis photograph, if accepted, demonstrate that [the appellant] had a sexual attraction towards JM both at the time of the inheritance proposition and when he sent the penis photograph but also when he was offending against her as a child. The prosecution submitted that I could use the evidence of sexual attraction as an item of circumstantial evidence, making it more likely the offending the subject of the charge occurred. The process of reasoning relies on propensity reasoning. The evidence is discreditable conduct and in those circumstances s 34P governs the admissibility of this evidence.
I accept that the evidence may be capable of showing that [the appellant] was sexually attracted to JM when she was an adult. However, it has very little probative value as to whether he was sexually attracted to her as a child. JM was between 8 and 13 years old when the sexual offending is alleged to have occurred. It was five or six years later, when she was 18, or 19 years old, that the inheritance proposition was made, and the penis photograph sent. As has been said, there is a “stark qualitative difference between attraction to a person as an adult as opposed to when that person was a child”: [Brant v The King [2023] SASCA 67 (Livesey P, Doyle and David JJA)]. It does not follow that because [the appellant] was sexually attracted to JM as a young adult, he was therefore attracted to her in the same way when she was a child. In my view, the evidence is incapable of demonstrating a sexual attraction towards JM during the charged period. I have not used the evidence in any way to support JM’s evidence about the charged offending.
Although obvious, for the sake of completeness, I make clear I have not used the evidence to suggest that [the appellant] is more likely to have committed the offence because he engaged in the discreditable conduct (s 34P (1)(a)). I have not engaged in bare propensity reasoning or what is sometimes referred to as ‘bad person’ reasoning: R v C, CA [2013] SASCFC 137, [76] and [79] (Kourakis CJ).
The trial Judge noted that the defence submitted that the uncharged acts evidence was relevant in assessing the credibility of JM. This was because it was said to be inherently unlikely that the appellant would proposition JM so many years after the offending had ended and that he would send her a photograph of his penis that she could use against him. The defence also suggested that JM’s evidence that she deleted the photograph out of concern for the impact on her teaching studies did not ring true. The defence also relied on the fact that JM stated for the first time in evidence that the appellant had asked her to send a photograph of herself. Reliance was also placed on text and Facebook messages between the appellant and JM between December 2020 and March 2021 that appeared to show that JM was getting on well with the appellant at that time.[24]
[24] Reasons at [101]-[105].
The trial Judge addressed these submissions at [108]-[112] of the reasons. He concluded that the gap of years between the offending and these events did not necessarily make JM’s evidence unlikely. Nor did he consider it unlikely that the appellant would have sent the penis photograph, noting that it was not uncommon for offenders to engage in brazen or risky behaviour, which may leave them vulnerable to detection. His Honour accepted that JM felt compromised by having the penis photograph on her telephone, even though the telephone was password protected. He said it was understandable why she might feel vulnerable and rejected the defence submission that her evidence was inherently implausible. His Honour did not accept that the texts and Facebook messages were inconsistent with the abuse or the later sexual propositions. He noted that the appellant was JM’s grandfather and that she had mixed feelings about him. It was not to be expected that all interactions would be hostile or that JM would necessarily rebuff the appellant or be rude to him. These were not matters that caused his Honour, either alone or in combination with other matters raised by the defence, to doubt JM’s honesty and reliability.
The trial Judge then moved to the complaint evidence, which he set out at [113]-[126] of the reasons. His Honour noted that JLM said in her evidence that JM had told her that when she was 17 and staying at the appellant’s house she had come out of the shower one day and the appellant made her sit on a couch and had stood in front of her with no pants on and had then touched her, placing his fingers inside her vagina (‘the shower incident’). In contrast JM said in evidence that she told her mother about the abuse but provided no details. His Honour then said “[b]ased on JLM’s evidence, I accept it is a reasonable possibility that JM did tell her mother about the shower incident”.
The trial Judge accepted the prosecution position that the shower incident evidence was not complaint evidence because it was not referrable to any charged act. However, he accepted that it was relevant to take into account the discrepancy between JM’s evidence and JLM’s evidence when considering the weight to be attached to the complaint evidence and in assessing JM’s evidence more generally.
The trial Judge then dealt with the defence submissions regarding the discrepancy in the following way ([130]-[138]):
As to the complaint evidence, the defence submission that the differences between JM and JLM as to what was said when JM complained was a matter that reflected adversely on JM’s credibility. I do not accept that submission. In my view, the difference between the two is explicable given the high emotions that were present when the complaint was made. It is understandable that JM may not recall all of the detail she provided to her mother.
It was submitted that JLM’s evidence about the shower incident was entirely inconsistent with the complainant’s evidence regarding the nature of the abuse and her age when it occurred. This was said to materially undermine her credibility both on its own and in combination with the other matters the defence submitted undermined JM.
As to the inconsistency in the account about the shower incident when compared with JM’s evidence the defence submitted that: (1) JM gave no evidence that the accused had ever penetrated her vagina with his finger (or anything else); (2) she had said nothing about any offending occurring after she had showered; (3) the last occasion of sexual abuse she gave evidence about was when she was a child (before she went into year 8 - the pornography incident); and (4) she agreed during cross-examination that she received the penis photograph a number of years after the physical touching.
It was submitted, based on that evidence I should conclude that JM was effectively saying that the shower incident did not occur, and therefore the statement made by JM to her mother about the shower incident was materially inconsistent with her evidence. The defence submitted I should treat the evidence of JLM about the shower incident as a prior inconsistent statement made by JM.
The topic of the shower incident was never put to JM. She was never asked if she had made the statement to JLM. I make it clear that the defence was not obligated to do so: MWJ v The Queen [2005] HCA 74 at [19], [37]-[41]. I can readily understand why, from a tactical point of view, they would not want to. There were risks associated in asking the question. Had JM agreed that she had said that to her mother and worse (from the defence perspective) said that the accused had put his finger in her vagina when she was 17 years old the inconsistency between JM and JLM would have evaporated. From a tactical point of view, the risk she might say that as opposed to denying she ever said anything about the shower incident to her mother and denying the shower incident ever occurred was ample justification to leave the topic alone. After final addresses and before delivering my verdict, I called the matter on and raised with defence counsel whether they wished to apply to recall JM to put the inconsistency to her. Although the defence initially applied to do so, that application was ultimately abandoned.
In weighing whether JLM’s evidence about the shower incident is inconsistent with JM’s evidence (on the defence case a material inconsistency) it remains the case that I have no evidence from JM as to ‘any reason, explanation, or exculpation’ she may have for why she said that to her mother or even whether she agreed she said it and if she said it, whether it was true or not. As the fact finder, the absence of any evidence from her about that issue means her credibility cannot be assessed in the same way it could have been, had the suggested inconsistency been put to JM (R v Trabolsi (2018) 131 SASR 297 at [159] (Doyle J)).
It was agreed that I should not speculate about the reasons why she may not have given evidence about the shower incident or why she did not say she said that to her mother. I agree with that submission. I have not done so.
Whilst I accept the statement made by JLM is, on one view, inconsistent with JM’s evidence, it remains to consider the weight to be attached to that inconsistency. I accept that JM did not say in evidence that the accused had put his finger inside her vagina, although that was in the context of her giving evidence about what occurred in the shed and during the pornography incident. I do note that she did say that the accused put his fingers inside the outer flaps of her vagina on those occasions. I accept the last physical sexual act she gave evidence about was when she was a child and that she gave no evidence about anything occurring after having a shower but again her evidence about the sexual abuse was focussed on what happened to her when she was a child. JM’s agreement during cross‑examination that she received the penis photograph a number of years after the physical touching may be inconsistent with the shower incident evidence although much would depend upon JM’s understanding of the question. Presumably she understood the question to be suggesting many years after the sexual offending as a child. Having considered the issue and noting there is no direct evidence from JM on this topic, to the extent there may be an inconsistency between JM’s evidence and the disclosure to her mother about the shower incident it is not a matter that has caused me to have a doubt about JM’s honesty and reliability as to the unlawful sexual acts the subject of the charge.
As I have said a number of times, I have not considered this inconsistency in isolation but in combination with the various other matters raised by the defence as going to an assessment of JM’s credibility.
The trial Judge then returned to consider the admissible complaint evidence, that is those parts of the conversation that were referable to the charged acts. His Honour concluded that JM complained at a time when it might be expected that she would and those parts of the conversation that were referable to the charged conduct were consistent with her evidence. His Honour directed himself, in accordance with s 34M, that the evidence was capable of establishing consistency but was not evidence of the truth of what was said.[25]
[25] Reasons at [139]-[141].
The trial Judge then turned to consider whether JM had a motive to lie, as suggested by the defence, and found that she did not. He acknowledged that this finding did not make JM’s evidence any more likely and that the defence bore no onus of proving a motive to lie.[26]
[26] Reasons at [149].
The trial Judge then considered the possible significance of evidence from JM’s father that at some point JM and SRM had indicated a reluctance to go to the appellant’s house. His Honour concluded that the evidence in this regard was unreliable and non-specific. He said that he had disregarded that evidence and not used it in any way in assessing JM’s credibility.[27]
[27] Reasons at [155].
In conclusion, the trial Judge said that he found JM to be an honest and reliable witness. He said that JM’s account of what occurred in the shed was detailed and compelling. He referred to the richness in the detail of her account and that her evidence regarding the hide the keys game was “a multilayered account with all the hallmarks of a truthful account – one that she experienced”. He said that he accepted JM’s account about the appellant exposing his penis in the shed. He said that JM’s evidence about what happened in the house when the pornography was played was also compelling and referred to the details of that account.[28] His Honour then said ([158]-[161]):
I have considered the various criticisms of JM’s account individually and collectively. For the reasons I have set out earlier, the various arguments that have been put forward have not caused me to have doubts about JM’s evidence.
I am satisfied for the reasons I have given that JM was an honest witness. Apart from her evidence that she thought that the accused’s penis was placed on her back when she was playing craft, I found her to be a reliable witness.
I have had no regard to SRM’s evidence as to what she says occurred to her when assessing JM’s evidence. As I have indicated earlier, I have not relied on the similarity of account reasoning, nor have I relied on propensity reasoning.
Whilst I found that JM did complain to her mother in circumstances that are capable of establishing consistency of conduct, and that is a matter that can be taken into account in assessing her credibility, I placed little weight on that evidence in coming to the conclusion I have about JM’s honesty and reliability.
[28] Reasons at [156]-[157].
The trial Judge then made findings regarding the sexual conduct that had been proved beyond reasonable doubt and concluded that he was satisfied beyond reasonable doubt that more than two unlawful sexual acts, namely indecent assault, unlawful sexual intercourse and various acts of gross indecency had been committed by the appellant. Accordingly, the appellant was found guilty of count 1.[29] The balance of the reasons related to count 2 (of which the appellant was acquitted) and are not relevant for the purposes of this appeal.
[29] Reasons at [162]-[163].
Grounds of appeal
As noted earlier, the grounds of appeal were amended. In their final form, the grounds are:[30]
1.A miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of the complainant.
1.1 A miscarriage of justice resulted from the trial Judge’s erroneous reasoning in relation to the significance of the ‘shower conversation’ in the assessment of the credibility and reliability of the complainant ([122]-[142] of the LTJ’s reasons).
1.2 A miscarriage of justice resulted from the trial Judge’s failure to consider the combined force of the defence criticisms made of the complainant’s evidence on the topic of being told by the applicant not to disclose the offending and the applicant purportedly provided the complainant with money to keep her quiet ([54]‑[58] of the LTJ’s reasons).
1.3 A miscarriage of justice resulted from the trial Judge’s inadequate reasoning in resolving the inconsistencies in the complainant’s evidence as to whether she did or did not observe the applicant retrieve pornography from his bedroom (particularly against the backdrop of what occurred during the [pre-trial] proofing) ([69]‑[84]) of the LTJ’s reasons).
1.4 [particular 1.4 was abandoned]
1.5 A miscarriage of justice resulted from the trial Judge’s failure to consider the combined force of the defence criticisms made of the complainant’s evidence regarding the sexual proposition and penis photograph ([95]-[112]) of LTJ’s (reasons).
2.The trial Judge failed to adequately identify and explain the permissible use of the inheritance proposition and penis photograph evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA).
[30] Appellant’s amended appeal grounds, filed 14 August 2024.
Ground 1 – relevant legal principles
The obligation of a judge to give adequate reasons in a trial by judge alone is well established. The necessary implication of s 7 of the Juries Act 1927 (SA), which provides that an accused may elect to be tried by judge alone and that the decision of the judge has the same effect as a verdict of a jury, is that a judge will provide reasons. The giving of reasons is an established incident of the judicial process. Reasons in a trial by judge alone are essential to enable the parties and the community to understand why the verdict has been reached, to enable the parties to assess whether there might be grounds to appeal, and for an appellate court to perform its statutory function of determining whether the judge has correctly applied the relevant rules of law. [31]
[31] R v Keyte (2000) 78 SASR 68 [38]; Douglass v R (2012) 290 ALR 699 [14]; DL v The Queen (2018) 266 CLR 1 [32]; Fleming v The Queen (1998) 197 CLR 250 [22].
In Fleming v The Queen,[32] the High Court considered the adequacy of reasons in the context of a trial by judge alone and held that the obligation to give reasons demands more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”. In Fleming, there was a statutory duty to give reasons, but the obligation to give adequate reasons is no less burdensome at common law.
[32] Fleming v The Queen (1998) 197 CLR 250 [28].
The adequacy of reasons must be assessed by reference to the forensic issues at the trial. Matters that were of limited significance or were not relied on by the parties at trial do not require detailed consideration by the trial Judge. The reasons should deal with the critical matters at issue in the proceedings. It would only be productive of unnecessarily long reasons if judges were required to mention every fact or argument relied on by the losing party as relevant to an issue. A judge’s failure to mention such facts and arguments cannot be presumed to be evidence that he or she has not properly considered the losing party’s case.[33]
[33] Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 [62]; Lloyd v The King [2023] SASCA 106 [33].
In DL v The Queen,[34] the High Court explained that inadequacy of reasons is not always established by a failure to resolve every matter in dispute, nor because they fail to provide a minute explanation for every step in the reasoning process. Kiefel CJ, Keane and Edelman JJ said:[35]
The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obligated to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. 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”. 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. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
(citations omitted)
[34] DL v The Queen (2018) 266 CLR 1.
[35] DL v The Queen [32]-[33].
Whilst it is not necessary for a judge to give extensive or elaborate reasons, an 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 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.[36]
[36] DL v The Queen (2018) 266 CLR 1 [130]-[131]; NBM v The Queen [2021] SASCA 105 [91].
In assessing the adequacy of reasons, it is important to consider them as a whole. It is not appropriate to focus on specific aspects of the reasons or to divorce those aspects from the context of the arguments put at trial.[37]
[37] NBM v The Queen [2021] SASCA 105 [91].
Reasons may be inadequate because it is impossible to discern how the Judge arrived at the conclusion he or she did. This failing is one of insufficiency – that is, that the reasons do not deal with some issue in the trial that it was necessary to resolve. Reasons may also be inadequate because the reasoning process which is set out does not rationally support the findings of fact or the verdict. This failing is one of illogicality – that is, the reasons do not as a matter of logic and sound reasoning support the conclusion reached. The distinction is not always obvious, but the two concepts should not be conflated.[38] In the present case most of the appellant’s complaints fall into the category of inadequate reasoning. That is, that the reasons given do not rationally support the ultimate findings of fact and therefore the verdict. In Trussel v The King,[39] this Court expressed the distinction in the following terms:
It is necessary, however, to be clear that there is a difference between the complaints. A complaint of inadequate reasons involves a submission that it is not possible to discern how the judge arrived at their determinative conclusions or findings. That is to be distinguished from an allegation as to inadequacy of reasoning, where it is contended that a trial Judge’s reasoning, although apparent, does not properly support or justify their findings and ultimate verdict.
[38] JGS v R [2020] SASCFC 48, [205].
[39] Trussell v The King [2023] SASCA 5, [117].
The approach of the appellant was to identify parts of the trial Judge’s reasons dealing with an asserted inconsistency. Each relevant part of the reasons is the subject of one of the particulars of ground 1. In submissions the appellant then sought to challenge the sufficiency of the reasons or the reasoning process in each of those parts. It is convenient to follow the same approach, remembering always that the reasons need to be viewed as a whole. It will also be necessary to refer to the relevant evidence in order to provide the context for the reasons.
Particular 1.1 – the complaint - relevant evidence
In her evidence-in-chief, JM said that there were two relevant telephone calls with her mother when she was over 18 years old and attending university. In the first call, her mother asked her whether she was sexually abused by the appellant (her sister having already made a complaint). JM’s grandmother was also on the line at the time. JM said that she was embarrassed and scared when this question was put to her. She was afraid that if she revealed the abuse it would break the family apart. She was also concerned about the impact it may have on her future career prospects. For these reasons, she answered ‘no’ when her mother asked her if she had been abused in this first conversation.[40]
[40] Trial ts 227-228.
Sometime later JM spoke again with her mother by telephone. On this occasion JM told her mother about the sexual abuse. In examination-in-chief, JM said:[41]
[41] Trial ts 226.
Q.Using the exact words, if possible, if you can, [JM], what did you tell your mum on that occasion about what [the appellant] had done to you.
A.I rang her in tears and if only - the first thing that I really said is 'He did it to me too'.
Q.Apart from 'He did it to me too', did you say anything else to your mum at that time.
A.I told my mum that [the appellant] had touched me too. I told - I apologised to her that I didn't tell her sooner and I told her I - I told her that I apologised to [JM’s sister], that 'I want to apologise to [JM’s sister]' because I didn't want her to hate me after I didn't believe her originally. I remember just crying to her and she reassured me that it wasn't - it wasn't my fault, that I wasn't to blame and that [JM’s sister] wouldn't hate me for not speaking up sooner.
Q.Did you tell your mum any details at that time about what [the appellant] had done to you.
A.No.
Q.Did you tell her anything at all about what [the appellant] had done to you.
A.No, only that he touched me.
In cross-examination, JM gave the following evidence:[42]
[42] Trial ts 302-304.
Q.As I understand your position, the extent of what you told your mother was that [the appellant] had touched you.
A.Yes. No details about what had happened to me were expressed at the time.
Q.And what about at any time.
A.No.
Q.So you've never told your mother any details about what you say [the appellant] did to you other than that he touched you.
A.No. I was very cautious in what I said. So I left - remained that he touched me.
Q.And you're absolutely sure about that; that the extent of any detail you gave to your mum was that he touched you.
A.I believe so.
Q.And you're certain about that.
A.I can't be certain exactly to what extent I told my mum, but I know for a fact that no details or anything in regards to when it happened, the duration, dates, nothing was expressed in regards to what happened to me. I'm not sure whether or not I expressed any other 'He touched me' or 'He pinched me' or 'groped me' but no details were ever expressed.
Q.When you said yesterday in chief that you told your mum no detail other than that he touched you, is it the case that that's not quite right.
A.It's the case of that I can't be certain that I only said 'He touched me' as 'touched me' is such a broad thing. I can't say whether or not, in the event of, if she asked me what happened, I'd say 'He touched me' or 'He had sexual contact with me', but no details of how old I was, when it happened was ever expressed. It was a general sense of what happened.
Q.But you accept what you said yesterday was 'no details'.
A.Around the lines of no details and I still stand by that.
Q.And you didn't provide any qualification that 'Well, I might have told her about some of the acts' or anything like that, like you just told us now.
A.Yes, I didn't say that at the time but it's what I meant.
Q.So you say, do you, that when you said 'details' yesterday, you were talking about times and dates.
A.Yes, or what happened to me, the events of what happened. As I've disclosed - so, for example, on the couch, I've never disclosed anything, or hide the key game. Only along the lines of 'He touched me' or there might have been sexual nature. Never in detail about what happened.
Q.So never in detail about any of the acts even.
A.No, no detail about the acts.
JM’s mother, JLM, gave evidence after JM. She was also asked about the relevant telephone conversation. There was no dispute between the parties that JM and JLM were talking about the same conversation. In evidence-in-chief, JLM said:[43]
[43] Trial ts 343-345.
A.So I had rung [JM] just to have a general chitchat with her because she had moved out of home at that stage so I was trying to keep in contact with her. The conversation went along the lines of 'Hey, do you know what [her sister] has just come out with?', or 'Your sister exploded on Sunday at your brother, this is what was said', so I would have told her the situation of what [her sister] had said to me and then [JM] went very, very quiet on the other end of the phone and I was like 'Hello, are you there?', and [JM] turned around to me and she said 'Mum, I'm really sorry, I was very confused' didn't know why she was saying 'Mum, I'm really sorry', and then she turned around to me and said 'I lied to you'.
Q.Were they the words that she used 'I lied to you'.
A.That is correct, yes.
Q.After telling you that, what, if anything else, did she say.
A.She then went on to say to me 'Please don't disown me, please don't kick me out, I am sorry I lied to you' and I'm all confused on the phone going - I said to her 'What are you on about?', I had no clue about what she was about to tell me. After she said to me 'I lied to you', she then said to me that [the appellant] had done some stuff to her.
Q.Did she give you any more detail about what she meant when she said [the appellant] had done some stuff to her.
A.She told me that there had been many occasions that she had been at [the appellants’] and that he had touched her inappropriately and that a few things had happened. I cannot remember the conversation exactly, but I do recall that she had said - she told me something about a couch and the lounge room and that [the appellant] had gone down on her, but as for the exact conversation, I cannot recall exactly what was said.
Q.How did [JM] sound on the phone at the time that she was telling you about [the appellant].
A.Upset, embarrassed. I would say probably more embarrassed and felt very, very guilty. That was her tone of voice that I had over the phone, was very embarrassed and felt very, very guilty and upset.
Q.Can you say anything about her emotions as she was talking to you on the phone.
A.She - her emotional - probably in her voice was - she was very, very upset. I do remember her saying to me that if she had said something sooner, it wouldn't have happened to [JM’s sister].
It should be noted at this point that JLM’s police statement included additional information about what JM had told her. In particular, in her police statement JLM had said that JM told her about a particular incident that had occurred when JM was aged 17 and had just come out of the shower (“the shower incident”). This part of the evidence was not led by the prosecution. It is apparent from what later transpired that this was a deliberate decision based on a view that this part of the conversation did not relate to the alleged sexual abuse that was the subject of the charge. However, the evidence was adduced in cross-examination.
In cross-examination, JLM was asked:[44]
[44] Trial ts 389-340.
Q.If I can just go back slightly to this conversation that you had over the phone with your daughter [JM], which was just before she came back to Barmera. She told you during that phone call that she was 17 years of age and that she was staying at [the appellants’] house in Renmark and that she was in the shower. Do you remember this.
A.I cannot remember the conversation, no.
Q.What I suggest she told you that she was 17 years of age and she was staying at the house in Murray Price Drive, Renmark, she was in the shower, that after she finished showering the accused made her sit on the couch in the lounge room, stood in front of her with no pants on and that he started touching her and placed his fingers inside her vagina.
A.I believe that is correct, yes.
HIS HONOUR
Q.What does 'I believe that's correct' mean. Do you mean that's correct, that's what she says, or are you uncertain or -
A.It was - the conversation was three years ago, I cannot recollect it completely to 100% of the conversation that I had with her, so I am only going off what I know is in my statement.
Q.So what does 'I believe' mean.
A.I am just going off what I believe that is obviously the truth. If I had said that at the time, yes, it is definitely the truth.
Particular 1.1 – the hearing on 18 December 2023
Some months after the trial had ended and closing submissions were complete, the trial Judge requested further submissions from the parties as to the significance of the difference between the evidence of JM and JLM regarding the shower incident. His Honour was concerned as to how to deal with this inconsistency in circumstances where no questions had been put to JM in cross‑examination as to whether she had referred to the shower incident in her conversation with her mother. In these circumstances, there had been no opportunity for JM to provide any possible explanation for the inconsistency.[45]
[45] Directions ts, 18 December 2023, 2.
At a specially convened hearing on 18 December 2023, the prosecution submitted that evidence of the shower incident was not led from JLM by the prosecution because it did not relate to the matters that were the subject of the charge and was not, therefore, a relevant complaint. The prosecution’s position was that the defence had chosen to adduce this evidence in cross-examination of JLM as, in effect, a prior inconsistent statement. In those circumstances, s 28 of the Evidence Act should have been complied with, in that the contention that JM had given JLM details of at least one incident of sexual abuse during the complaint conversation should have been put to JM. That not having occurred, the prosecution submitted that the alleged inconsistency could be given little weight.[46]
[46] Directions ts, 18 December 2023, 11-13.
The defence submitted that the shower incident formed an integral part of JLM’s evidence regarding the complaint and should have been led by the prosecution. The evidence was included in JLM’s witness statement, and the defence had an expectation it would be led. No objection to the evidence had been raised by the defence (given the possible prejudice arising from the fact that it referred to an additional uncharged act). The defence position was that the evidence was relevant in assessing whether the complaint, taken as a whole, was consistent with the account given of the sexual abuse by JM.[47]
[47] Directions ts, 18 December 2023, 4-8.
In effect, the defence suggested that there was inconsistency in two respects. First, there was inconsistency between JM and JLM as to what was said in the complaint conversation. Secondly, if JLM’s account was accepted and the shower incident was referred to by JM, there was inconsistency between the terms of the complaint and the evidence that JM had given regarding the sexual abuse. Both aspects were said to reflect adversely on the credibility and reliability of JM. As to the second aspect, the defence pointed to the fact that the shower incident claim was inconsistent with evidence that JM had given that the abuse ended when she was in year 8 at school.
Particular 1.1 – the submissions on appeal
The appellant accepts that the trial Judge adequately identified and explained the impermissible use of the sexual attraction evidence, proscribed by s 34P(1). However, the appellant submits that his Honour at no stage directed himself as to the permissible use or uses of the inheritance proposition and the penis photograph evidence. His Honour’s failure to comply with the requirements of s 34R, is said to constitute an error of law.[81]
[81] Appellant’s written submissions, filed 23 August 2024, 21.
The appellant contends that to the extent the respondent suggests that the evidence was of limited significance and did not feature in any express way in the operative section of the trial Judge’s reasons, that this is no answer to the complaint that his Honour failed to comply with his obligations. The appellant accepts that the trial Judge said that he had not used the penis photograph or inheritance proposition evidence in any way to support JM’s account. However, the appellant submits that his Honour used his satisfaction as to that uncharged act evidence as a factor relevant to any inconsistency between JM and JLM on the topic of the shower incident. It is submitted that his Honour used the evidence to minimise or neutralise the challenge to JM’s credibility and reliability in a case that depended on satisfaction of both matters beyond reasonable doubt.[82]
[82] Appellant’s written submissions, filed 23 August 2024, 21-22.
The respondent submits that the trial Judge’s reasons reveal that he did not admit the sexual attraction evidence pursuant to s 34P. His Honour was not satisfied that the sexual attraction evidence met the test for admissibility under that section. The effect of that finding was that while the evidence was adduced it was not admitted in the prosecution case pursuant to s 34P, and 34R was therefore not engaged.[83]
[83] Respondent’s written submissions, filed 6 September 2024, 16-17.
At the appeal hearing the appellant advanced a different argument. That argument principally relied on something that the prosecutor had said in opening address at the trial. In opening the prosecutor had referred to the uncharged acts being used as relationship evidence or evidence to put into context the nature of the relationship between the appellant and JM. The prosecutor said that the evidence would be led for the purpose of ‘completing the picture of the alleged offending’ and, thereby, giving ‘the entire context of the charged offending’.[84] It was submitted that this permissible use of the evidence was not mentioned by the trial Judge in his reasons. His conclusion that the evidence could not be used for a propensity purpose did not deal with this other permissible use.[85]
[84] Trial ts 59
[85] Reasons at [25].
Ground 2 – the merits
The trial Judge summarised the parties’ positions and the uses for which both the prosecution and defence contended that the sexual attraction evidence could be used at [98]-[100]. It is apparent from this that the trial Judge understood the only permissible use of the sexual attraction evidence that was ultimately contended for by the prosecution was that the evidence established a relevant propensity, namely that the appellant was sexually attracted to JM. His Honour accepted that the evidence could be capable of establishing that the appellant was sexually attracted to JM when she was an adult. However, he said that this had very little probative value as to whether the appellant had been attracted to JM as a child. He concluded that the evidence was incapable of demonstrating a sexual attraction towards JM in the charged period. His Honour said in conclusion that he had “not used the evidence in any way to support JM’s evidence about the charged offending” (emphasis added).
The trial Judge then considered whether the evidence had relevance to an assessment of the credibility of the complainant, as had been suggested by defence counsel. The contention was that the evidence was inherently implausible and reflected on the complainant’s credibility more generally. This has been dealt with earlier in respect of ground 1 particular 1.5. To use the evidence in this way did not involve a permissible use of evidence admitted under s 34P.
Whilst the sexual attraction evidence was adduced at the trial as discreditable conduct evidence, the ultimate conclusion of the trial Judge was that it was not admissible under s 34P, and he expressly did not rely on it. If his Honour did not use this evidence in any way that was adverse to the appellant then there was no necessity to give a s 34R direction. That evidence was not admitted under s 34P. Having heard the evidence, it was appropriate that his Honour gave himself a direction, as he did at [100], not to engage in bare propensity reasoning, or bad person reasoning, however, there was no need to give any direction as to any permissible use under s 34P.
As to the suggestion that the trial Judge did not deal with the permissible use of the evidence as relationship evidence, this contention needs to be understood in the context of the trial. Beside brief mentions in the prosecutor’s opening and closing addresses, no express reference was made to reliance being placed on this evidence as relationship evidence. In the closing address, the prosecutor said that she did not intend to take his Honour through the uncharged acts evidence and that she had addressed that evidence and what use could be made of it at the start of the prosecution case. The possibility that the evidence could be used for any other purpose was not an issue that was afforded any attention by the parties in the course of the trial. Indeed, it is telling that the reference in the prosecutor’s opening address was entirely overlooked by counsel for the appellant (who was also trial counsel) until shortly before the appeal hearing, when it was pointed out by counsel for the respondent. In these circumstances it is unsurprising that it was not expressly referred to by his Honour. His Honour was entitled to take the view that the only basis on which the prosecution ultimately sought to rely on the sexual attraction evidence was as propensity evidence.
In any event, the statement by the trial Judge that he had not taken the evidence into account in any way adverse to the appellant must be taken at face value as meaning that the evidence was not admitted under s 34P for any purpose. Certainly, there is nothing in the reasons to indicate that the evidence was used by the trial Judge in any other way adverse to the appellant. The appellant sought to suggest that the evidence could have been used by his Honour as relationship evidence when he was considering what weight to give to the inconsistencies – but there is nothing in the reasons to support this suggestion.
The trial Judge only went on to consider whether the evidence was relevant to the credibility of the complainant, because he had been invited by the defence to do so. It may well be said that, absent an admissible basis under s 34P, it was not open to use the evidence in this way as there was no other proper basis for admission of the evidence. However, if this was an error it was one that only favoured the appellant. His Honour’s consideration of whether the evidence was inconsistent with the evidence given by the complainant (and for no other purpose), was an exercise that he was invited to undertake by the defence and one that could only assist the defence. It was not suggested by anyone that this evidence could support the credibility of the complainant and it was not used in that way.
Whilst we would grant permission to appeal on this ground (given the statements in the prosecution opening and closing addresses), on consideration of all of the circumstances of the trial it must fail.
Conclusion
The trial Judge’s reasons were not inadequate and ground 1 fails. There was no necessity to give a s 34R direction in the circumstances of this case and ground 2 must also fail. We make the following orders:
1.Permission to appeal in respect of ground 2 is granted.
2.The appeal is dismissed.
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