F, B v Commissioner of Police

[2024] SASCA 25

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

F, B v COMMISSIONER OF POLICE

[2024] SASCA 25

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)

21 March 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - PROOF AND EVIDENCE - BURDEN OF PROOF

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

Following a trial before a Magistrate of the Youth Court, the appellant was found guilty of one count of aggravated rape, contrary to s 48(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstances of aggravation were that at the time of the alleged offence, the appellant committed the offence knowing that he was in a relationship with the complainant, JF, who is his half-brother, and, knowing that JF was under the age of 12.

The prosecution alleged that between 1 January 2014 and 1 December 2015, the appellant committed a single act of penile anal rape against JF. It was also alleged that the appellant committed several uncharged acts of rape and unlawful threats upon JF in the 12 months following the charged offence.  The appellant was alleged to have raped JF in a portable sleepout at the family home which he used as a bedroom.

The appellant was found guilty. The trial Magistrate discharged the appellant without conviction and without penalty being imposed. He was ordered to enter a bond to be of good behaviour for 12 months.

The appellant now seeks permission to appeal against his conviction on the following, summarised, grounds:

1.The verdict of guilty was contrary to the evidence.

2.The trial Magistrate erred by reversing the onus of proof with respect to an element of the offence, namely the identity of the offender.

3.The trial Magistrate erred in admitting the evidence of uncharged acts. 

4.The trial Magistrate erred in law in failing to direct herself in accordance with s 13(7) of the Evidence Act 1929 (SA) ('the Evidence Act'). 

5.The trial Magistrate erred in finding that the sleepout was installed on, and not before, 27 November 2023, and the rebuttable presumption of doli incapax did not arise.

6.The trial Magistrate erred by providing inadequate reasons for her apparent rejection of the appellant’s denial of guilt during his police interview.

7.The trial Magistrate erred by failing to direct herself that she could not convict the appellant unless she rejected, beyond reasonable doubt, the evidence of his denial of guilt during the police interview.

8.The trial Magistrate’s reasoning was inadequate in finding that the appellant was recklessly indifferent to the complainant’s lack of consent.

At the appeal hearing, the appellant sought an extension of time to file his notice of appeal and permission to add Grounds 6, 7 and 8. Permission was granted in respect of both matters. The appellant abandoned Ground 4.

Held, per the Court, granting permission to appeal on all grounds, but dismissing the appeal:

1.The prosecution established beyond reasonable doubt that the complainant did not consent, to the charge act of anal sexual intercourse, and that the appellant was recklessly indifferent to his lack of consent.

2.The trial Magistrate did not reverse the onus of proof nor infringe the principle in Palmer v The Queen (1998) 193 CLR 1.

3.The evidence of discreditable conduct was admissible for non-propensity purposes pursuant to s 34P(2)(a) of the Evidence Act.

4.The combined effect of the trial Magistrate's reasons for verdict, together with the correct identification of the impermissible use of the evidence of discreditable conduct in the pre-trial ruling, rendered it clear that the trial Magistrate gave the direction mandated by s 34R of the Evidence Act.

5.The trial Magistrate did not err in finding that the portable sleepout was installed on, and not before, 27 November 2013, and the rebuttable presumption of doli incapax did not arise.

6.As to the appellant’s state of mind, the trial Magistrate did not find that alternative states of mind existed simultaneously, but rather the evidence of the uncharged threat was relevant to proving the element generally. Moreover, the evidence of the appellant's conduct and the threat uttered to the complainant established that the appellant was, at least, recklessly indifferent to the fact that he did not consent to sexual intercourse.

7.The trial Magistrate's reasons were not inadequate. In the circumstances of this case, the trial Magistrate was not required to give a Calides direction or Liberato direction.

Criminal Law Consolidation Act 1935 (SA) s 48(1)(a); Evidence Act 1929 (SA) ss 34M, 34P, 34R, 53; Magistrates Court Act 1983 (SA) s 42; Youth Court Act 1993 (SA) s 22; Joint Criminal Rules 2022 (SA) r 191.1, referred to.

JGS v The Queen [2020] SASCFC 48; Palmer v The Queen (1998) 193 CLR 1; R v Calides (1983) 34 SASR 355; R v Uhrig, unreported, Court of Criminal Appeal (NSW), 24 October 1996 , discussed.

Allison v Police [2005] SASC 447; C, GM v Police [2007] SASC 310; Douglass v The Queen (2012) 86 ALJR 1086; Gipp v The Queen (1998) 194 CLR 106; H, A v Minister for Families and Communities & H, J v Minister for Families and Communities [2005] SASC 339; Lawn v Police (2013) 116 SASR 136; Liberato v The Queen (1985) 159 CLR 507 ; Police v A, TG [2006] SASC 299; Police v B, F [2022] SAYC 23; Police v Cadd & Ors (1997) 69 SASR 150; Police v Dorizzi (2002) 84 SASR 416; Police v F, B [2022] SAYC 41; R v Carroll [2010] SASC 156; R v Keyte (2000) 78 SASR 68; R v Nieterink (1999) 76 SASR 56; Taylor v Hayes (1990) 53 SASR 282; Tazroo v Police [2002] SASC 155; Wigg v Architects Board of South Australia (1984) 36 SASR 111, considered.

F, B v COMMISSIONER OF POLICE
[2024] SASCA 25

Court of Appeal – Criminal: Livesey P, David JA and Kimber AJA

1. THE COURT: Following a trial before a Magistrate of the Youth Court, the appellant was found guilty of one count of aggravated rape, contrary to s 48(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstances of aggravation were that at the time of the alleged offence, the appellant committed the offence first, knowing he was in a relationship with the complainant (‘JF’), being his half-brother, and second, knowing that JF was under the age of 12.

2. The prosecution alleged that between 1 January 2014 and 1 December 2015, the appellant committed a single act of penile anal rape against JF. It was also alleged that the appellant committed several uncharged acts of rape and unlawful threats upon JF (‘the uncharged acts’) in the 12 months following the first act of anal sexual intercourse.

3. At the time of the charged offence, the appellant was aged between 14 and 15 years old, and JF was aged between 10 and 12 years old.  The appellant was alleged to have anally raped JF in a portable sleepout which was used by the appellant as a bedroom, adjacent to the family home in Murray Bridge (‘the sleepout’). The sleepout was installed on the premises at some point during the charged period.

4. The appellant was found guilty of the offence of rape on 13 September 2022. The trial Magistrate provided written reasons for her verdict. On 28 February 2023, the appellant was discharged without conviction and without penalty being imposed. He was ordered to enter a bond to be of good behaviour for 12 months.

5. The appellant now seeks permission to appeal against the Magistrate’s finding of guilt on the following grounds:

   1.    The verdict of guilty was contrary to the evidence.

   1.1The trial Magistrate erred in finding it proved beyond reasonable doubt that the complainant did not consent to the sexual act the subject of the charge;

   1.2The prosecution adduced no evidence from the complainant that he did not consent to the charged conduct, and there was no other evidence which could shed light on this topic;

   1.3In finding that the complainant did not consent, the trial Magistrate placed undue weight on the fact, if it was a fact, that ‘no issue was taken by defence with respect to this element of the offence’;

   1.4    Such a finding, if it was a fact, did not relieve the prosecution of the burden of proving this element beyond a reasonable doubt.

   2.    The trial Magistrate erred by reversing the onus of proof with respect to an element of the offence, namely the identity of the offender.

   2.1    The trial Magistrate, in finding that the prosecution had excluded as a reasonable possibility that the offender was the complainant’s eldest brother, relied upon a finding that ‘there was no suggestion in the evidence of animosity by JF towards the accused, which might lead JF to accuse him wrongfully’.

   2.2    The trial Magistrate engaged in the prohibited line of reasoning referred to in Palmer v The Queen[1] (‘Palmer’).

   3.The trial Magistrate erred in admitting the following evidence, the admission of which caused the appellant’s trial to miscarry:

   3.1    evidence of other sexual acts committed by the appellant against the complainant on occasions after the singular, charged act of rape; and

   3.2    evidence of threats to kill made by the appellant to the complainant on occasions after the singular, charged act of rape.

   5.The trial Magistrate erred by using Exhibit P5 to find that the sleepout was installed on, and not before, 27 November 2023. 

   6.The trial Magistrate erred by neglecting to provide any reasoning for her apparent rejection of the appellant’s denial of guilt during his interview with police.

   7.The trial Magistrate erred by failing to direct herself that she could not convict the appellant unless she rejected, beyond reasonable doubt, the evidence of his denial of guilt during the police interview.

   8.The trial Magistrate exhibited inadequate reasoning in that her Honour:

   8.1    found that the appellant knew the complainant was not consenting to the sexual intercourse; and

   8.2    determined that the appellant was recklessly indifferent to the fact of consent in circumstances where these mental states could not have coexisted.

   [1] (1998) 193 CLR 1.

6. At the appeal hearing, the appellant sought an extension of time to file his notice of appeal and permission to add Grounds 6, 7 and 8. Permission was granted in respect of both matters. The appellant abandoned Appeal Ground 4.

7. For the following reasons, we grant permission to appeal on all grounds but dismiss the appeal.

   Evidence at trial

8. The prosecution called four witnesses at trial: the complainant, JF, the complainant’s foster mother, Ms D; the Business Information Officer for Housing SA, Ms Hackel; and Detective Brevet Sergeant Muske (‘DBS Muske’), the investigating officer. 

9. JF was born on 23 September 2003 and was 18 years old at the time of trial.  JF and the appellant are half-brothers, having the same mother but different fathers. JF has another older half-brother, HH, who did not live with them at the time of the alleged offence, and whom JF rarely saw.

10. JF gave evidence about the alleged incident of rape. This was the first occasion there was any sexual activity between the appellant and JF. He said that the appellant invited him into the sleepout to play Xbox. They spent a brief period ‘just chilling’ before the appellant began playing pornography on his laptop. After a few minutes, the appellant pulled down his own pants and then pulled down JF’s pants before pushing JF onto the bed, causing him to land on his stomach. JF said the appellant then inserted his penis into JF’s anus. JF said that apart from slight movements to alleviate pain, he remained motionless because he was scared and confused. This continued for a few minutes before the appellant withdrew his penis. JF said nothing. After the appellant stood up and pulled his own pants back up, he warned JF not to disclose the events, threatening to hurt him if he did. JF said he acknowledged the threat by nodding his head in response. The appellant then instructed JF to leave the sleepout, which he promptly did.

11. Upon returning to the main house, JF went straight to his bedroom without disclosing the incident to anyone.

12. JF gave evidence that there were other occasions when the appellant had penile anal sexual intercourse with him in a similar manner. The next incident occurred a couple of weeks after the charged offence, and then once or twice every week or two after that. According to JF, this persisted until the appellant moved out of home. JF was not sure when the appellant stopped living at the home but thought the sexual activity continued for about eight to 12 months following the charged offence.

13. It was JF’s evidence that the only place sexual activity occurred was in the sleepout. He said the appellant would close the door and curtains, play pornography on his laptop, remove his and JF’s pants, push JF onto the bed and then put his penis in JF’s anus for several minutes. He said that after each sexual incident, the appellant would threaten to harm him if he disclosed the incident. In response, JF would nod in acknowledgement.

14. JF said that he did not disclose the sexual activity to anyone when it was occurring. When questioned why he continued to go to the sleepout at the appellant’s request, he explained it was due to his fear of the appellant, and feeling uncertain about what to do because the appellant was his half-brother.

15. JF gave evidence that in 2015, when he was nearly 12 years old, his father briefly returned to live with the family. Subsequently, JF, his mother and his two younger siblings relocated to Naracoorte and then Mount Gambier to reside with another family member. On 25 August 2015, JF, the appellant and their siblings were removed from their mother’s care. Then, on 10 December 2015, they were placed under the guardianship of the Minister of the Department for Child Protection (‘DCP’). Following this, JF had sporadic contact with the appellant through supervised visits facilitated by the DCP, occurring every couple of months for an hour or two.

16. JF was first interviewed by police on 15 December 2015, when he was 12 years old (‘the December interview’). Although JF could not remember the circumstances leading to the interview, he recalled being taken there by a DCP worker. During the interview, police inquired if the appellant had touched or hurt him. Specifically, JF was asked whether the appellant had touched his private parts, to which he responded ‘no’. An audio-visual recording of this interview was played during the trial and tendered as evidence.[2]

    [2]     Trial exhibit P6 – record of interview with the complainant in December 2015. 

17. JF gave evidence that he had not been truthful during the December interview when he denied that the appellant had touched him. When questioned about why he had not disclosed this to police during that interview, he explained that at the time, he and his siblings were still having family contact visits. Being family-orientated, he did not want to divulge anything that might disrupt the family dynamics.

18. JF gave evidence regarding the circumstances surrounding his initial complaint. At around the age of 13, he met Ms D, a teacher at his school. About five months later, she and her husband became his full-time foster parents. He described his relationship with Ms D as ‘really good’. On JF’s account, Ms D was the first person he confided in about the alleged rape, and he did so about three months after he commenced living with her family. He said he recalled sitting in a room when Ms D asked him if anything had happened to him and his biological siblings. He said he initially denied anything had happened, but after further discussion, he revealed that the appellant had raped him some years earlier. Although he could not recall if he specified where it occurred (that being in the sleepout), he told her that it had happened a few times a week for a period of time. He estimated their conversation lasted about an hour and he described feeling upset afterwards. Subsequently, Ms D suggested JF write a letter to police, which he did in the presence of Ms D.

19. In cross-examination, JF agreed that when he was around five or six years old, the appellant informed their mother (in his presence) that HH, another half‑brother, had raped them. At that point, HH was not living with the family but visiting occasionally. JF admitted agreeing with the appellant’s assertion but explained that he did so because the appellant had instructed him to do so. JF said that that it was not the truth. He said he was unable to recall the events in detail due to his young age at the time, but he understood that because of the conversation he had no contact with HH for several years.

20. When questioned about why he had not confided in his mother about the offending, especially given her previous support when the appellant alleged HH had raped both him and the appellant, JF explained that while she had been supportive when he was younger, at the time of the charged offence, his mother was dealing with a drug addiction, and she was no longer a supportive mother. 

21. The prosecution called Ms D, the complainant’s foster mother. She gave evidence of the circumstances in which JF disclosed the allegations. This was led as part of the evidence of initial complaint.

22. The prosecution also adduced evidence from Ms Hackel, a business information officer for Housing SA. This evidence is discussed in detail in relation to Ground 5. Briefly, the prosecution tendered documents through this witness, including an archive record entry indicating the allocation of a sleepout at the property on 27 November 2013;[3] and a Housing SA invoice stamped with a ‘completion date’ of 27 November 2013 (‘Housing SA invoice’). [4]  Defence counsel tendered a separate excerpt of customer notations and highlighted an entry indicating the endorsement of an application for a sleepout to be given priority listing on 25 January 2013,[5] thereby implying that a request for a sleepout to be installed at the premises was made from as early as January 2013. During cross‑examination, Ms Hackel said that the records indicated the completion of the sleepout on 27 November 2013. However, she could not determine from the documents when the portable sleepout was ‘put on the property’. Subsequently, the trial Magistrate determined that ‘the sleepout was installed no earlier than, and on about, 27 November 2013’, and the rebuttable presumption of doli incapax did not arise as the appellant was 14 years old at the time of the alleged offending.

    [3]     Trial Exhibit P4 – Housing SA customer notations excerpt (‘Trial Exhibit P4’).

    [4]     Trial Exhibit P5 – Housing SA Invoice (‘Trial Exhibit P5’).

    [5]     Trial Exhibit D1 – Housing SA customer notations excerpt (‘Trial Exhibit D1’).

1. The investigating officer, DBS Muske, conducted an interview with the appellant on 4 September 2020. A recording of that interview was played during the trial and tendered as evidence,[6] as was a transcript of the interview.[7] During the interview, the appellant denied the allegations, claiming that ‘the only person that’s touched him [JF] is his other brother, [HH]’ and ‘when we were younger he touched us …’. During the interview, the appellant was also asked why he thought JF had made the allegations against him, to which he responded, ‘I have no clue … All I know is that me and him never got along at all and we were at each other’s throats a lot as kids and then as we got older, we just kept getting worse and worse.’   

   [6]     Trial Exhibit P7 – Recording of interview with appellant conducted on 4 September 2020.

   [7]     Trial Exhibit MFI-8 – Transcript of interview with appellant conducted on 4 September 2020.

   Defence case

2. The appellant did not give evidence nor call any evidence.

3. In her closing address, defence counsel submitted that the prosecution had not proved the offence beyond reasonable doubt. The defence case was that either JF had fabricated the allegations of having been raped or, in the alternative, the prosecution had not excluded as a reasonable possibility that it was not the appellant who had raped JF, but HH. Defence counsel said:

   There are two main things in issue in this trial: whether in fact the complainant was raped at all, and if he was whether it was [the appellant] who raped him. We know from the complainant’s evidence that he told his mother that he had been raped by his older brother, [HH].

4. By putting the contested issues in this way, defence counsel challenged both the credibility and reliability of JF. In particular, defence counsel emphasised the following points when submitting that the trial Magistrate should not accept the truthfulness or reliability of JF’s evidence:

   ·That JF acknowledged the possibility that he continued to have sleepovers with the appellant in the sleepout after the alleged offence took place. However, it is to be noted that JF later clarified that he may have had a sleepover after he had been raped but doubted it and just could not recall.

   ·That JF continued to go to the sleepout at the request of the appellant after the charged offence had occurred (despite the fact, according to his evidence, that the appellant continued to commit uncharged sexual acts against him). 

   ·During the December interview, JF denied that the appellant, or anyone, had touched him. Defence counsel posited that JF did so because the real offender was HH, not the appellant, and JF was not questioned about HH during the interview.

   ·When he was five or six years old, JF agreed with the appellant’s assertion to their mother that HH had raped them. JF also agreed under cross-examination that he tended to lie as a child.

   ·Before the sleepout was installed, the appellant and JF shared a bedroom, creating a ‘perfect opportunity’ for the appellant to rape JF, even though no such claim was made.

   The trial Magistrate’s reasons

5. The trial Magistrate commenced her reasons for verdict by outlining the particulars of the charged offence, the elements of the offence, and the broad categories of evidence adduced at trial. Her Honour then provided a summary of her rulings delivered prior to, and during, the trial. Of relevance to this appeal were the rulings relating to the admissibility of the discreditable conduct evidence, the admissibility and use of Exhibit P5, and her finding that the appellant was at least 14 years old at the time of the alleged offence and therefore not entitled to the rebuttable presumption of doli incapax.

6. The trial Magistrate provided a detailed summary of the evidence of JF, as well as the other evidence adduced as part of the prosecution case, including the appellant’s record of interview with police wherein he denied the allegations. The appellant’s police interview is discussed in more detail in relation to Grounds 2, 6 and 7. The trial Magistrate summarised the evidence of Ms Hackel, through whom the prosecution tendered business documents relating to the sleepout.[8]  By reference to the evidence of Ms Hackel and the tendered documents, her Honour found that the sleepout was installed no earlier than, and on about, 27 November 2013. Her Honour also found proved a series of uncontested dates of relevant events, referred to as a ‘timeline’.

   [8]     Namely, Trial Exhibits P4, P5 and D1.

7. As to legal directions, the trial Magistrate directed herself on the onus and standard of proof in orthodox terms. Her Honour also gave a direction as to the evidence of initial complaint, in accordance with s 34M of the Evidence Act 1929 (SA) (‘the Evidence Act’). There was no challenge before this Court as to the admissibility of the evidence of initial complaint, nor as to the adequacy of the directions.  

8. The trial Magistrate turned to consider the credibility and reliability of JF. Her Honour expressly considered defence counsel’s criticisms of his evidence, including: he was dismissive and evasive in answering questions; his assertion that he was never raped by HH, contrary to what he told his mother when he was about five years old; his interview with police in December 2015 in which he denied the appellant had engaged in any sexual activity with him; and purported inconsistencies between his evidence at trial and his initial complaint.

9. Notwithstanding those criticisms raised by defence counsel, her Honour found JF to be an ‘honest and compelling witness’. In relation to the initial complaint, her Honour considered that ‘[h]is evidence provided the cogency and detail that might be expected of a witness recounting the alleged offence in the way it occurred.’ Her Honour also found that his complaint ‘was made at a time when it might be expected, and not earlier’ and ‘showed consistency with the evidence.’ The trial Magistrate referred to the appellant’s record of interview wherein he denied the offence. Despite the appellant’s denials in his record of interview, her Honour was satisfied beyond reasonable doubt that she could ‘rely on the evidence of the complainant in the face of the accused’s denial that the offending occurred.’ 

10. The trial Magistrate then considered whether the prosecution had proved each element of the charged offence. Her Honour’s reasoning in this regard is the subject of several appeal grounds and is discussed later in this judgment. Her Honour found each element of the offence proved beyond reasonable doubt and excluded the possibility that ‘JF had conflated the alleged offence with behaviour of HH’.  

11. The trial Magistrate concluded that she was satisfied beyond reasonable doubt that the prosecution had proved the appellant’s guilt of the charged offence of rape.

    The appeal

12. The appeal is brought pursuant to s 22 of the Youth Court Act 1993 (SA) (‘the Youth Court Act’), which provides that an appeal against a judgment of a Magistrate of the Youth Court on a major indictable matter lies with the Court of Appeal. The appeal is by way of rehearing[9] and is similar in nature to an appeal under s 42 of the Magistrates Court Act 1983 (SA).[10]

    [9]     Joint Criminal Rules 2022 (SA) r 191.1

    [10]   H, A v Minister for Families and Communities & H, J v Minister for Families and Communities [2005] SASC 339 at [31] per White J; Police v A, TG [2006] SASC 299.

13. An appeal by way of rehearing is neither confined to the evidence before the lower court nor is it an appeal de novo.[11] Rather, it involves a determination of whether the decision below ought to be affirmed or overturned upon an assessment of the material before the appellate court.[12] Accordingly, an appellate court is obliged to reconsider the evidence before the magistrate, along with any additional evidence it may decide to admit, and draw its own inferences and conclusions. This process must make proper allowance for the fact that the Magistrate has had the advantage of seeing and hearing from the witnesses.[13]

    [11]   Police v Cadd & Ors (1997) 69 SASR 150 at 189 per Lander J.

    [12]   Wigg v Architects Board of South Australia (1984) 36 SASR 111.

    [13]   C, GM v Police [2007] SASC 310 at [42] per Sulan J, referring to Taylor v Hayes (1990) 53 SASR 282 at 290 per Perry J; Police v A, TG [2006] SASC 299 at [14]-[15] per Perry, Nyland and Sulan JJ, referring to Police v Cadd (1997) 69 SASR 150; Police v Dorizzi (2002) 84 SASR 416; Allison v Police [2005] SASC 447; Tazroo v Police [2002] SASC 155.

    Ground 1 – proof of a lack of consent

14. The appellant contended there was no evidence, or insufficient evidence, capable of establishing that JF did not consent to the charged act of anal sexual intercourse. The appellant submitted that on a rehearing of the evidence, this Court should conclude that the prosecution did not prove this element beyond reasonable doubt. The appellant emphasised that JF did not give evidence that he was not consenting to the charged act of anal sexual intercourse and submitted that there was no other evidence from which his lack of consent could be inferred. Alternatively, the appellant contended that if the prosecution had proved JF’s lack of consent, there was insufficient evidence to establish that the appellant knew JF was not consenting or was recklessly indifferent to his lack of consent.

15. The trial Magistrate made the following findings on this topic:

    JF’s evidence was that the accused asked him into his bedroom to play Xbox. On the evidence I find there was no consensual physical contact between them that might give rise to some suggestion of consent. They sat on the bed and watched the pornography that the accused had played on his laptop. Then JF described how his brother pulled down his pants, pushed him onto his stomach on the bed and proceeded to engage in an act of sexual penetration. I find the following are relevant to the issue; JF’s young age and vulnerability relative to his older brother, their difference in size whereby JF described the accused as larger than him, and the accused’s threat to JF after the act of sexual intercourse that if he told anyone, the accused would hurt him.

    In my view, the very young age of JF is relevant when determining whether a complainant of that age is capable of freely and voluntarily agreeing to sexual activity.

    I am satisfied beyond reasonable doubt that the whole of the evidence, including JF’s age, his relative position in the family as a younger and smaller sibling of the accused, being pushed onto the bed before the accused proceeded to have intercourse with him, and the accused’s threats after the act that he was not to tell anyone else about it or he would be hurt, taken together, demonstrates beyond reasonable doubt that there was no consent by JF to the sexual intercourse.

16. As can be seen from the reasons, the trial Magistrate identified the following matters as relevant to her finding that JF did not consent to the act of anal sexual intercourse the subject of the charged offence:

    ·JF’s young age;

    ·the relative position of JF in the family, being the younger brother of the appellant;

    ·that he was pushed onto the bed;

    ·the absence of any evidence of consensual physical contact before the charged act; and

    ·the threat uttered by the appellant following the act of anal sexual intercourse.

17. The respondent conceded that the evidence of the threat by the appellant to JF was not relevant to prove JF’s lack of consent. However, the respondent submitted that this error should not lead this Court to conclude that the prosecution did not prove this element beyond reasonable doubt. The respondent submitted that there was other evidence which established this element, and it was proved irrespective of the error.

18. It is to be accepted that JF did not give explicit evidence that he did not consent to anal sexual intercourse with the appellant. He was not asked the direct question whether he agreed to have anal sexual intercourse with the appellant. However, a person’s lack of consent does not need to be the subject of direct evidence; it may be inferred from the words or conduct of a complainant, or by other circumstantial evidence.[14]

    [14]   R v Carroll [2010] SASC 156 at [54]-[61] per Sulan J.

19. The appellant submitted that the trial Magistrate erroneously relied upon the prosecutor’s submission that ‘[n]o issue was taken by defence with respect to this element of the offence’ when no such concession was made on behalf of the appellant at any stage during the trial.

20. It is to be observed that the central focus of defence counsel’s address at trial was that the prosecution had not proved the appellant had engaged in an act of sexual intercourse with JF, nor excluded beyond reasonable doubt that HH was the person who had raped JF. Indeed, there were no submissions made regarding JF’s lack of consent nor any cross-examination on the topic. It is presumably for this reason the trial Magistrate considered that there was ‘no issue taken’ in respect of this element of the offence. It was, of course, still incumbent on the prosecution to prove this element of the offence. The trial Magistrate clearly recognised this as her Honour then considered the relevant evidence and concluded that the prosecution had proved this element of the offence.

21. Contrary to the appellant’s submissions, and after considering all the material before this Court, we are satisfied that the prosecution established JF’s lack of consent by reason of the following evidence. Firstly, JF described the appellant using force to have anal sexual intercourse with him. He said that the appellant ‘turned me around, and then he grabbed my pants by the waist and pulled them down’; ‘pushed me onto the bed’ and he ‘fell forwards onto the bed’. JF said the appellant then pulled his pants down and, after watching pornography for a little longer, ‘put his dick, like, in my bum’. While it is true, as the appellant asserted, that JF did not describe the push as ‘forceful, rough or violent,’ JF’s description of how he came to be face down on the bed immediately prior to penetration revealed an element of force, particularly in circumstances where JF was aged only 10 years at the time, and the appellant was older and physically stronger.

22. Secondly, when JF was asked if he moved after the appellant pushed him onto the bed, he said: ‘Not a lot. I was – I was, like, scared and confused.’ This state of mind supports the prosecution case that JF did not consent to anal sexual intercourse. When JF was asked how he felt afterwards, he said: ‘I feel pretty shit’. 

23. Thirdly, JF said he did not move, except a little to avoid pain. Contrary to the appellant’s submission, the fact that JF did not move while the appellant was having anal sexual intercourse with him does not support the possibility of consent; indeed, it is consistent with his earlier evidence that he was ‘scared and confused’ and reflected his young age and the fact his perpetrator was his older half-brother who had some authority over him. 

24. Fourthly, JF did not say or do anything during the act of sexual intercourse which suggested that he agreed to have anal sexual intercourse with his half-brother.

25. The appellant also relied on other evidence which, he submitted, cast doubt on JF’s lack of consent. This included the fact that JF continued to return to the sleepout on multiple occasions after the alleged rape and JF’s denials during the December interview when asked whether ‘anything happened to you, between you and [the appellant] which you don’t like?’.  As the trial Magistrate acknowledged, both matters are readily explained by the very young age of JF and his relationship with the appellant. 

26. While the trial Magistrate erred in relying on the threats made by the appellant towards JF as a relevant factor in proof of a lack of consent, the other evidence clearly established JF’s lack of consent. Upon a review of all of the material before this Court, we are satisfied that this element of the offence was proved beyond reasonable doubt.

27. To the extent that the appellant challenged the finding of the trial Magistrate that the appellant knew or was recklessly indifferent to the fact JF was not consenting to the charged act of sexual intercourse, we are also satisfied that the evidence proved this element of the offence beyond reasonable doubt. That evidence includes:

    ·the appellant removed JF’s clothing without any assistance by JF;

    ·the appellant pushed JF onto the bed;

    ·there were no words or conduct between the appellant and JF prior to, or during, the sexual act from which the appellant could have inferred that JF was consenting;

    ·JF was a young child aged 10, and the appellant’s half-brother, suggesting that it is unlikely he agreed to such an act, or had the maturity or strength to physically resist the appellant;

    ·threats of harm were made by the appellant to JF after they had engaged in anal sexual intercourse.

28. Ultimately, upon a rehearing of the evidence, we are satisfied that the prosecution established beyond reasonable doubt JF’s lack of consent, and that the appellant knew or was recklessly indifferent to whether JF consented to the charged act of anal sexual intercourse.

29. We grant permission to appeal but dismiss this ground of appeal.

    Ground 8 – inadequate reasoning

30. Next, it is convenient to deal with Ground 8, which challenged the trial Magistrate’s reasoning in finding that the appellant was recklessly indifferent to JF’s lack of consent. The relevant findings of the trial Magistrate were as follows:

    The third element of the offence requires a finding that the accused was either aware of the fact of non-consent or otherwise recklessly indifferent to the fact of non-consent. Defence counsel did not take issue with this element of the offence. The threats of harm made by the accused, as described by JF and which I have accepted were made, is evidence that the accused knew JF was not consenting, continued regardless and was therefore recklessly indifferent to the fact of consent.

    (emphasis added)

31. The appellant sought to rely on the remarks by Lovell J in JGS v The Queen,[15] where his Honour (with whom Peek and Bampton JJ agreed) stated:[16] 

    There is however a distinction between a complaint of inadequate reasons and a complaint of inadequate reasoning. The distinction is not always obvious. However, the two concepts should not be conflated. The appellant’s complaints fall more naturally into the concept of inadequate reasoning. That is, the complaint is that the Trial Judge’s reasons, although given, do not rationally support the ultimate finding of facts and therefore the verdicts. The appeal was largely conducted on this basis.

    …

    The appellant attacks the reasoning process of the Trial Judge. To put that another way, the appellant submits that the Trial Judge’s reasoning, in some instances, is clearly exposed but flawed. As Kourakis CJ observed in R v Sexton, the appellant here is alleging a miscarriage of justice in that the reasoning actually employed does not support the convictions even though there may be a rational basis on which guilt might have been proved on the evidence. If the appellant is successful in that submission, namely there has been a miscarriage of justice, the Court should order a retrial.

    (emphasis original)

    [15]   [2020] SASCFC 48.

    [16]   JGS v The Queen [2020] SASCFC 48 at [205], [209] per Lovell J (with whom Peek and Bampton JJ agreed).

32. The appellant contended that, while the reasoning process of the trial Magistrate is clear, it cannot support the conclusion that the ‘third element’ of the offence was proved beyond reasonable doubt. The appellant submitted that the trial Magistrate could not have been satisfied beyond reasonable doubt that the appellant held both states of mind simultaneously – that is, that the appellant knew the complainant was not consenting and was recklessly indifferent to the fact of consent. The appellant submitted that the trial Magistrate’s inadequate reasoning meant that the basis upon which the charge was found proved is unknown and, for this reason, a miscarriage of justice has occurred.

1. In considering this ground of appeal, it is necessary to have regard to the entirety of the trial Magistrate’s reasoning with respect to the third element of the offence. First, the trial Magistrate correctly identified that she must find proved ‘either’ that the appellant was aware the complainant was not consenting ‘or’ that he was recklessly indifferent to that fact.[17] The trial Magistrate then referred to the fact that defence counsel did not ‘take issue with this element of the offence’. Presumably, this was to explain that defence counsel made no submissions on the topic which the trial Magistrate, in turn, needed to address in considering whether this element was proved. The trial Magistrate then referred to the threat made by the appellant following the act of sexual intercourse. Her Honour had earlier in her reasons accepted JF’s evidence that such a threat was uttered. That evidence was capable of bearing on the issue of whether the appellant knew or was recklessly indifferent as to whether JF consented to the act of anal sexual intercourse.

   [17]   Emphasis added.

2. It is evident that the trial Magistrate, in stating that ‘the threats of harm’ is evidence that the ‘accused knew JF was not consenting,’ was intending to express the relevance of the threat to the appellant’s state of mind (and this third element of the offence), generally. The trial Magistrate then proceeded to find that the appellant was recklessly indifferent to JF’s lack of consent. Her Honour did not find that both states of mind existed, rather that the evidence of the threat was relevant to proof of the element generally, and either state of mind was sufficient, to prove the element. There was no error by the trial Magistrate.

3. We are also satisfied on a rehearing of the matter that the evidence of the appellant's conduct, and threat uttered to JF, established beyond reasonable doubt that he was, at least, recklessly indifferent to the fact that JF did not consent to sexual intercourse.

4. We grant permission to appeal but dismiss this ground of appeal.

   Ground 2 – reversal of the onus of proof

5. The appellant contended that the trial Magistrate erred by reversing the onus of proof with respect to an element of the offence, namely the identity of the offender. The appellant submitted that the trial Magistrate erroneously relied on a finding that ‘there was no suggestion in the evidence of animosity by JF towards the accused, which might lead JF to accuse him wrongfully’.  The appellant submitted that by relying on this finding, the trial Magistrate engaged in the line of reasoning prohibited in Palmer;[18] reversed the onus of proof with respect to an element of the offence, namely that the appellant was the offender; and misused an inherently neutral factor (the absence of animosity) to impermissibly bolster the complainant’s credibility. Moreover, the appellant submitted there was, in fact, evidence of animosity between the appellant and JF.

   [18] (1998) 193 CLR 1.

6. It is necessary to consider this complaint in the context of the manner in which defence counsel conducted the trial. The defence case at trial was that the appellant did not have anal sexual intercourse with JF, and if a rape had occurred, the offender was not the appellant but rather HH. In her opening address, defence counsel invited the trial Magistrate to ‘keep an open mind’ as to who it was that was the perpetrator of the incident. Defence counsel challenged both the credibility and the reliability of JF. As to the credibility of JF, defence counsel relied on the appellant’s record of interview, in which he denied the allegations and said that there was a degree of animosity between himself and JF when they were younger. 

7. In his police interview, the appellant said:

   All I know is that me and him never got along at all and we were at each other’s throats a lot as kids and then as we got older we just kept getting worse and worse … [t]o the point where think it was [2013] … [m]e and my brother got into an argument and I well I call it a bipolar episode and tried actually killing him and then my Mum … and then Mum slapped me and got me out of the episode … A neighbour Karen called the cops.

8. The appellant also mentioned during the police interview that the last interaction he had with JF resulted in a disagreement. 

9. At trial, JF was also cross-examined as to a motive to lie about the allegations. It was put to him that he had a ‘tough childhood’, ‘[wanted] to blame [the appellant]’ and blaming him was the ‘easy option’. JF denied wanting to blame the appellant. In this way, it was suggested to JF that he did harbour some sort of animosity towards the appellant, which motivated him to lie and falsely accuse the appellant of raping him when the real offender was HH.  

10. Defence counsel also challenged the reliability of JF’s evidence that the appellant was the offender. It was suggested to JF that he was, at the very least, confused about the identity of the offender. In advancing this submission, defence counsel referred to the earlier allegation by the appellant and JF (when JF was five or six years old) to their mother that HH had raped them.

11. The forensic contest at trial required the trial Magistrate to assess whether the prosecution had excluded HH as the perpetrator. Her Honour needed to consider defence counsel’s submissions both as to the credibility and reliability of JF, and whether JF had told a deliberate untruth when he said that the person who committed the rape was the appellant or, in the alternative, whether JF was honestly mistaken as to the identity of the perpetrator. 

12. The trial Magistrate, in her reasons, found JF to be a reliable and credible witness. Her Honour was satisfied that she could accept JF’s account of the charged act of sexual intercourse beyond reasonable doubt. Her Honour had explicit regard to the appellant’s denials in his record of interview before accepting JF’s evidence as to the charged act beyond reasonable doubt. Her Honour then found each element of the offence of rape proved beyond reasonable doubt.

13. The trial Magistrate also explicitly considered whether the appellant was the person who committed the charged offence and concluded that ‘I exclude the possibility that JF has conflated the alleged offence with behaviour of HH’. The trial Magistrate set out five reasons for so finding. They were: firstly, HH was not residing with JF at the relevant time; secondly, HH had minimal contact with the family at the relevant time; thirdly, given the ongoing nature of the conduct, it was unlikely JF would be mistaken about the offender’s identity; fourthly, JF was old enough to be capable of accurately identifying the offender; and fifthly, there was no evidence of animosity between the appellant and JF.

14. It is evident from the trial Magistrate’s reasons that she considered defence counsel’s submissions on this topic. The first four reasons given by the trial Magistrate addressed defence counsel’s challenge to JF’s reliability, and the fifth reason referred to the challenge to JF’s credibility, namely his purported motive to lie. Her Honour’s reference to there being ‘no suggestion in the evidence of animosity by JF towards the accused, which might lead JF to accuse him wrongfully,’ is, in effect, an acceptance of the evidence of JF (notwithstanding the contrary assertions by the appellant in his police interview) that he did not have a motive to lie.

15. To the extent that the appellant contended that this finding was not open to the trial Magistrate, we do not agree. JF denied there was animosity between himself and the appellant while they were growing up. JF described his relationship with the appellant before the alleged offence as ‘pretty good’ albeit it changed after the offending. In fact, JF still wanted to visit the appellant after they were separately placed in the care of DCS. Moreover, as JF had not seen the appellant for several years at the time he first made the allegations, the alleged animosity (said to exist two to three years earlier) was of less relevance than if it had allegedly existed at the time of JF’s disclosure.

16. The trial Magistrate did not infringe the principles enunciated in Palmer. In Palmer, the High Court held that cross-examining a defendant to demonstrate his lack of knowledge about any fact from which it could be inferred that a complainant had a motive to lie was impermissible. Brennan CJ, Gaudron and Gummow JJ said:[19]

    It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred.  But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. 

    [19]   Palmer v The Queen (1998) 193 CLR 1 at [7] per Brennan CJ, Gaudron and Gummow JJ.

17. The High Court approved the statement by Hunt CJ at CL in R v Uhrig:[20]

    What this Court said in Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case.

    [20]   Unreported, Court of Criminal Appeal (NSW), 24 October 1996 at 16-17 per Hunt CJ.

18. The High Court considered that to ask the rhetorical question, ‘Why would the complainant lie?’ is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the defendant,[21] and, to that extent, involves a reversal of the onus of proof.

    [21]   Palmer v The Queen (1998) 193 CLR 1 at [8] per Brennan CJ, Gaudron and Gummow JJ.

19. In the present case, the appellant clearly alleged that JF had a motive to lie. He suggested in his police interview, and through his counsel’s cross‑examination of JF, that JF harboured animosity towards him. In those circumstances, it was open to the prosecution to challenge the purported motive, and the trial Magistrate was obliged to make a finding in that regard, particularly in the context of whether the prosecution had proved the identity of the offender and excluded that HH was the offender. 

20. The trial Magistrate limited the use of her finding of a lack of animosity between the appellant and JF to reject the reason proffered by the appellant for JF to have lied about the allegations. Her Honour did not, at any stage, suggest that the appellant had to provide a reason for why JF might lie about the allegation.  Nor did the trial Magistrate use her finding of an absence of animosity to impermissibly bolster the credibility of JF.

21. We grant permission to appeal but dismiss this ground of appeal.   

    Grounds 6 and 7 – rejection of the appellant’s denial of guilt

22. Under Appeal Grounds 6 and 7, the appellant challenged the approach of the trial Magistrate to the record of interview. The appellant contended that the trial Magistrate erred by failing to provide any reasons for her apparent rejection of the appellant’s denials of guilt during his record of interview (Ground 6); and erred by failing to direct herself that she could not convict the appellant unless she rejected his denials beyond reasonable doubt (Ground 7). 

23. Relevantly, the trial Magistrate in her reasons first referred to the appellant’s police interview when discussing the evidence of the investigating officer. Her Honour said:

    Detective Brevet Sergeant Muske gave evidence that in 2020 he was tasked in relation to allegations that the accused had been involved in sexual offending against JF. He travelled to the regional town in which the accused was living and attended at his address. The accused was not present, so he called him on a mobile number that had been provided. The accused agreed to meet with him. The accused was then arrested, and an interview was conducted which was recorded. The interview was played during the trial and tendered in evidence. The allegations were put to the accused in the interview. He did not exercise his right to silence. He denied the allegations and said that JF’s older brother HH had touched them both when they were young.

    It was put to the accused that his offending against JF occurred approximately three times a week for a period of time, that JF did not fight back but he cried on most of those occasions and the fact that JF did not tell anyone about it was because the accused threatened that if he did, he would do something to hurt their younger brother.

    The accused denied all of these allegations in the interview.

24. Later, her Honour observed that the appellant had exercised his right to not give evidence, and then considered the interview:

    I note that the accused did not give evidence on oath. That was his right. Nevertheless, prosecution tendered his record of interview following his apprehension by police. I note the accused answered their questions and I take into account that he cooperated and provided a version of events in circumstances where he did not have to. In the record of interview, he denied the offence.

25. Her Honour then made the following finding:

    Although not subject to cross-examination, I’ve taken into account that the accused denied the offence and suggested it was HH that assaulted JF. Notwithstanding the accused’s denial I am satisfied beyond reasonable doubt that I can rely on the evidence of the complainant in the face of the accused’s denial that the offending occurred.

    In the final assessment, however, I am required to consider the whole of the evidence, in considering the charged offence.

26. The appellant submitted that the trial Magistrate did not provide any explanation for rejecting the appellant’s denials, and there was no indication in the reasons that her Honour rejected his denials beyond reasonable doubt. The appellant submitted that the fact that his denials were made during a police interview, tendered as part of the prosecution case, and not by sworn evidence, did not absolve the trial Magistrate of that responsibility.[22]

    [22]   Douglass v The Queen (2012) 86 ALJR 1086 at [13] per French CJ, Hayne, Crennan, Kiefel and Bell JJ; Lawn v Police (2013) 116 SASR 136 at [33] per Blue J.

27. The appellant emphasised that the trial Magistrate did not give herself the following directions. Firstly, that the appellant could only be convicted if his denials were rejected beyond reasonable doubt.  Secondly, that the onus of proof remained with the prosecution, and merely favouring the complainant’s version of events over the appellant’s denial was an insufficient basis to find him guilty (a ‘Calides’ direction).[23] Thirdly, even if she did not positively believe the appellant’s account, his evidence could still give rise to a reasonable doubt about his guilt (a ‘Liberato’ direction).[24]

    [23]   R v Calides (1983) 34 SASR 355 at 358 per Wells J (with whom Legoe and Matheson JJ agreed).

    [24]   Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J (with whom Deane J substantially agreed).

28. It is to be accepted that the appellant’s record of interview was crucial to his defence and the subject of considerable focus at the trial. However, except for his comments as to alleged animosity between himself and JF, and his assertion that HH had raped JF (and himself) in the past, his account consisted largely of bland denials of the offence. This is not a criticism of the appellant but rather an observation of the version he provided to police when the allegations were put to him. The alleged offending occurred approximately four to five years earlier. There is often little more that a defendant can do than generally deny the alleged offending. However, the level of detail provided by a defendant in denying the allegations will, in turn, affect what is required of the trbunal of fact in providing adequate reasons for rejecting a defendant’s account. It will obviously vary from case to case and will depend on the circumstances of the case and the nature of the denials.

29. In determining whether the trial Magistrate provided adequate reasons for rejecting the appellant’s denials, those reasons must be read as a whole. In her reasons for verdict, her Honour expressly rejected the appellant’s suggestion in his interview (which was later explored by defence counsel in cross-examination) that JF was either lying or mistaken about the identity of the offender. Her Honour gave comprehensive reasons for why she rejected that aspect of the appellant’s account. The trial Magistrate also specifically rejected the appellant’s assertions that there was animosity between him and JF.

30. While her Honour did not explicitly state in her reasons that she rejected the accused’s denials, her Honour expressly referred to, and rejected, the two significant points raised by the appellant during his interview when denying the offence. As outlined earlier, these included the assertion that it was HH who had raped JF and the claim of animosity between himself and JF, which could provide JF with a motive to lie.  For that reason, we consider the reasons were not inadequate and dismiss this ground of appeal.

31. With respect to Ground 7, the appellant submitted that the trial Judge erred in failing to give herself a ‘Calides’ direction[25] or a ‘Liberato’ direction.[26]  It is not necessarily the case that the reasons for a verdict delivered by a trial Magistrate (or Judge) will mirror the legal directions given to a jury.[27] It is presumed that judicial officers understand the correct onus of proof during trial proceedings. Moreover, these directions are generally only necessary in trials where there exists a risk of the jury engaging in impermissible reasoning or inadvertently shifting the onus of proof when a defence case is presented.

    [25]   See R v Calides (1983) 34 SASR 355.

    [26]   See Liberato v The Queen (1985) 159 CLR 507.

    [27]   R v Keyte (2000) 78 SASR 68.

32. The case of R vCalides[28] (‘Calides’) involved a contest between two bodies of evidence. On one hand, the prosecution witnesses including two accomplices, and on the other, the accused’s evidence given on oath. The trial Judge directed the jury that it was for them to decide where the truth lay. In allowing the appeal, the Full Court held that it was a misdirection for the trial Judge to fail to direct the jury that if they were unable to determine where the truth lay, it would amount to a reasonable doubt as to guilt, and the verdict should be ‘not guilty.’ 

    [28] (1983) 34 SASR 355.

33. In the present case, the appellant did not give evidence on oath, and it was open to the trial Magistrate to accord his police interview less weight than if it had been tested in cross-examination. Notwithstanding that fact, the contest at trial did involve two opposing versions of events: JF’s evidence on oath, supported by the evidence of his initial complaint to his foster mother on one hand, and the appellant’s denials and explanations provided in his police interview on the other.

34. We do not consider that in a trial without a jury, involving two opposing versions of event, where a judicial officer is presumed to understand the onus and burden of proof, a ‘Calides’ direction is generally not necessary. In any event, early in her reasons for verdict, the trial Magistrate directed herself in orthodox terms as to the onus and burden of proof. More significantly, after summarising the evidence, and when returning to her legal directions, her Honour said:

    In respect of the charge, the prosecution must prove it beyond reasonable doubt. It is not enough that it shows a suspicion of guilt or even shows that the accused is probably guilty. Because the burden always lies on the prosecution it follows that if, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth or I am left with a reasonable doubt as to any element of the charge, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.

1. It is evident that, despite it being unnecessary to do so, her Honour in fact gave herself what was in effect a ‘Calides’ direction. 

2. It is true that the trial Magistrate did not give herself a ‘Liberato’ direction to the effect that, even if she preferred the evidence of JF to the appellant’s account in his police interview, she could not find the charge proved unless she was satisfied beyond reasonable doubt as to the truth of the evidence of JF, and even if she did not positively believe the appellant’s account, it may still give rise to a reasonable doubt. However, there was nothing in the reasons for verdict which suggested the trial Magistrate found the charge proved by reasons of her preference for, or choice of, the evidence of JF over the appellant’s version of events, as distinct from being satisfied beyond reasonable doubt of the evidence of JF, and the elements of the offence. Indeed, her Honour specifically stated that ‘(n)otwithstanding the accused’s denial. I am satisfied beyond reasonable doubt that I can rely on the evidence of the complainant in the face of the accused’s denial that the offending occurred’. Her Honour then considered whether the prosecution had proved beyond reasonable doubt each element of the offence and, specifically, whether the prosecution had excluded as reasonable possibility that HH was the offender, before finding the appellant guilty of the offence.

3. We are satisfied that the trial Magistrate’s reasons were not inadequate. Rather, when considered as a whole, her Honour comprehensively explained why she rejected the appellant’s version of events given in his police interview, and found the offence proved beyond reasonable doubt.

4. We grant permission to appeal on both grounds, but dismiss those grounds of appeal.

   Ground 3 – evidence of the uncharged acts

5. The trial Magistrate admitted evidence of uncharged acts of anal sexual intercourse between the appellant and JF, and threats uttered by the appellant to JF (‘the uncharged acts’) for non-propensity purposes under s 34(P)(2)(a) of the Evidence Act. The uncharged acts occurred on separate occasions in the eight to twelve months following the charged offence. There are three limbs to this appeal ground. Firstly, the appellant contended that the trial Magistrate applied the wrong test for the admission of the uncharged acts. Secondly, the trial Magistrate erred in finding the uncharged acts admissible under s 34P(2)(a) of the Evidence Act. Thirdly, the trial Magistrate did not comply with s 34R by failing to direct herself as to the impermissible use of the evidence.

6. It was common ground that the evidence of uncharged acts was discreditable conduct which engaged s 34P of the Evidence Act.

7. The question for this Court is not whether the trial Magistrate applied the wrong test for admissibility but whether the evidence of uncharged acts was admissible under s34P of the Evidence Act.

8. Relevantly, s 34P provides:

   34P—Evidence of discreditable conduct

   (1)     In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—

   (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

   (b) is inadmissible for that purpose (impermissible use); and

   (c) subject to subsection (2), is inadmissible for any other purpose.

   (2)     Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—

   (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

   (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

   (3)     In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

   (4)     Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

   (5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).

9. By way of background, the prosecution sought to lead evidence of uncharged acts for non-propensity purposes, and defence counsel challenged the admissibility of the evidence. In a ruling delivered on 9 May 2022, and before the commencement of the trial proper, her Honour determined that the evidence was admissible under s 34P(2)(a) of the Evidence Act.[29] In a written ruling, her Honour said:

   In my view, the uncharged acts of sexual misconduct and threats relied upon by the prosecution constitute important explanatory evidence in that they place the charged offence in its proper context, provide an explanation for the delay in complaint and the accused’s confidence to act as alleged, and serve to rebut the implausibility of a single, isolated act of sexual misconduct occurring.

   In the circumstances I find that the evidence of the uncharged acts is relevant and admissible for non-propensity purposes. Without such evidence, the Court would be considering the charged offence in an artificial vacuum, without clarity as to the true nature of the relationship between the accused and the complainant and the context in which the offending took place. I find that the evidence is relevant and admissible to address questions which might ordinarily arise, such as that the offending was not isolated to a single occasion such that it appears implausible and to explain why the complainant remained silent and submissive following the charged act.

   [29]   Police v BF [2022] SAYC 23 at [18] per Magistrate Adair.

10. Her Honour then considered whether the probative value of the evidence outweighed its prejudicial effect. Her Honour said:

    In my view, the evidence of the uncharged acts is admissible as its probative value outweighs its prejudicial effect on the defendant for the following reasons;

    a)   It explains the nature of the relationship between the accused and the complainant and the context in which the charged act took place, including the relative power each had within the relationship;

    b)   It might explain and give context as to why the complainant may have difficulty recalling every aspect of the accused’s alleged offending;

    c)   It provides an explanation for the complainant's subsequent behaviour, including why he tolerated the offending and why he did not complain immediately following the charged act;

    d)   It would demonstrate that the alleged offending was not isolated to a single occasion, which may put the charged act in its proper context and thereby make more plausible the account given by the complainant;

    e)   It provides evidence of opportunity of the charged act;

    f)   It would provide an explanation of the complainant’s delay in reporting the charged act.

    The probative value of the evidence of the uncharged acts is its capacity to assist in evaluating the evidence of the charged act. I consider this probative value outweighs any risk of prejudicial effect.

    Accordingly, the evidence of uncharged acts will be admitted for a permissible use pursuant to s 34P(2)(b). In my view, this permissible use can be kept sufficiently separate and distinct from the impermissible use identified in s 34P(1)(a).

11. It is to be accepted that the trial Magistrate did not accurately state the test enshrined in s 34P(2)(a). It is also true that the trial Magistrate erred by stating in the penultimate paragraph of her ruling that the evidence was admitted for a permissible use pursuant to s 34P(2)(b) of the Evidence Act.[30]

    [30]   See Police v BF [2022] SAYC 23 at [20] per Magistrate Adair.

12. However, the question for this Court is whether the evidence of uncharged acts was admissible for non-propensity purposes and met the test for admissibility under s 34P(2)(a) of the Evidence Act. 

13. On a trial of a sexual offence, the evidence of uncharged sexual acts between a defendant and a complainant can be relevant for various non-propensity purposes. These include establishing the nature of the relationship and the context in which the offence occurred, explaining any delay or failure by the complainant to complain, elucidating how a defendant became emboldened to commit the offence, or to rebut any suggestion that the offending ‘came out of the blue’.[31]

    [31]  R v Nieterink (1999) 76 SASR 56 at [43] per Doyle CJ; Gipp v The Queen (1998) 194 CLR 106 at [72] per McHugh and Hayne JJ.

14. Additionally, the evidence of uncharged sexual acts may be admissible to explain why there is a lack of particularity or confusion regarding one or more of the alleged incidents that are the subject of the charge.

15. In this case, we are satisfied that the evidence of uncharged acts had several potential uses in proof of the charged offence. The evidence of the subsequent acts of anal sexual intercourse was relevant to prove the identity of the offender, and to rebut the suggestion put by defence counsel that the prosecution had not excluded that it was HH who committed the rapes. It was also relevant to show a pattern of behaviour by the appellant which potentially explained any confusion or vagueness by JF in his description of the charged act. That is, the charged act was not isolated and, for that reason, JF might not provide the same clarity in his description of the incident nor recall every detail, than if it had been a ‘one-off’ sexual incident.

16. The evidence of the uncharged threat by the appellant immediately after the charged act was directly relevant to the appellant’s state of mind to prove that he knew, or was recklessly indifferent to, JF’s lack of consent. It could also provide some explanation for why JF did not complain of the offending at the time it occurred. As to the uncharged threats attending the subsequent uncharged sexual acts, they were relevant to explain JF’s delay in making his complaint, and why he continued to submit to the alleged sexual offending.

17. We are satisfied that the evidence of the uncharged acts was highly probative, and admissible for the abovementioned non-propensity purposes. The probative value of the uncharged acts substantially outweighed any impermissible effect it may have had on the appellant. The evidence was admissible pursuant to s34P(2)(a) of the Evidence Act.

18. It is to be accepted (as conceded by the respondent) that the evidence of uncharged acts was not probative of the appellant’s opportunity to commit the charged offence; the uncharged acts occurred on separate occasions following the charged offending, and thus was not admissible for that purpose. While the trial Magistrate, in determining the admissibility of the evidence of discreditable conduct, referred to several potential uses, her Honour ultimately relied upon only three permissible uses, which were:

    ·The evidence of the threat made after the charged act as relevant to prove the appellant’s state of mind.

    ·The evidence of subsequent threats as relevant to explaining why the complainant remained silent and continued to visit the appellant in the sleepout.

    ·The evidence of the uncharged sexual acts as relevant to establishing the identity of the offender.

19. For the aforementioned reasons, the evidence was admissible for each of those purposes. The erroneous use for which the evidence was admitted (to prove opportunity) was not later relied upon by the trial Magistrate in her reasons for verdict. Consequently, no miscarriage of justice can arise.

20. Although not expressly raised as a ground of appeal, during the appeal hearing the appellant complained that the trial Magistrate did not comply with s 34R of the Evidence Act. Specifically, the appellant contended that the trial Magistrate failed to identify the impermissible uses of the evidence of discreditable conduct in her reasons for verdict and failed to instruct herself against adopting impermissible reasoning.

21. Section 34R(1) provides:

    (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.

22. In her ruling, the trial Magistrate identified both the permissible and impermissible uses of the evidence of uncharged acts.  Her Honour stated:

    Accordingly, the evidence of uncharged acts will be admitted for a permissible use pursuant to s 34P(2)(b). In my view, this permissible use can be kept sufficiently separate and distinct from the impermissible use identified in s 34P(1)(a).

23. The trial Magistrate, in her reasons for verdict, referred to her ruling and the impermissible use,[32] and in this way adopted the mandatory direction given in that ruling.

    [32]   See Police v F, B [2022] SAYC 41 at [11] per Magistrate Adair.

24. Before the trial Magistrate, defence counsel did not identify any other impermissible use of the discreditable conduct evidence. At the appeal hearing, the appellant suggested that there was also a risk of a ‘substitution’ of the evidence of the uncharged sexual acts for the evidence of the charged act in proof of the offence. Given the vague nature of the evidence of the uncharged sexual acts, where very little detail was provided by JF about those incidents, we consider there was no real risk the trial Magistrate impermissibly substituted the evidence of the uncharged acts in proof of the charged act.  

25. We are satisfied that the combined effect of the reasons for verdict, together with the correct identification of the impermissible use of the discreditable conduct evidence in the ruling, renders it clear that the trial Magistrate gave the direction mandated by s 34R of the Evidence Act.

26. We grant permission but dismiss this ground of appeal.

    Ground 5 – admission of trial Exhibit P5

27. This ground of appeal concerns the inferences drawn by the trial Magistrate from a Housing SA Maintenance Invoice dated 29 November 2013 (Exhibit P5). The appellant complained that it was not open to the trial Magistrate to infer from the evidence that the sleepout was installed on or after 27 November 2013. The appellant’s fourteenth birthday was on 17 October 2013, and if the alleged offending occurred prior to that date, the rebuttable presumption of doli incapax would have applied. The appellant contended that it was not open to the trial Magistrate to draw an inference from the evidence that the sleepout was installed ‘no earlier than, and on about, 27 November 2013’. Accordingly, the appellant submitted that the prosecution did not establish that the offence occurred after the appellant turned 14 years old, and thus the rebuttable presumption of doli incapax was available, thereby occasioning a miscarriage of justice.

28. At trial, the prosecution called Ms Hackel, an employee of the SA Housing Authority. Through Ms Hackel, the prosecution tendered Exhibits P4 and P5 as business records pursuant to s 53 of the Evidence Act.

29. Exhibit P4 is an extract of the customer notation relating to the family residence of the appellant and JF. On 4 June 2014, there is a note stating that a Portable Sleepout had been relocated from one property and allocated to the family premises on 27 November 2013.

30. The document, Exhibit P5, is a maintenance record that contains the following information:

    ·Completion date: 27 November 2013.

    ·Declaration signed on 29 November 2013, certifying the work on this invoice was completed by the date shown, payment was not claimed previously, and the information provided is true and correct.

    ·Received by Housing SA Murray Bridge in December 2013.

    ·Returned Accounts Payable on 6 December 2013.

    ·Work inspected on 9 December 2013 (signed).

31. During evidence, Ms Hackel said that she came to be in possession of the document Exhibit P5 because she had ‘requested to confirm the date of allocation of the portable sleepout, and staff were able to locate a copy of the maintenance invoice which indicated and confirmed that the installation date was … 27 November 2013’.

32. Ms Hackel said that she first made the request to the staff of the Murray Bridge office of the SA Housing Authority, which managed the home where the appellant and the complainant lived with their family. Subsequently, she was referred by that office to a specific person in Housing SA’s maintenance branch who was responsible for coordinating ‘The Portable Sleepout Program’. Ms Hackel said this was the only document she received from the maintenance division.

33. During cross-examination, Ms Hackel was directed to another document, tendered as Exhibit D1, titled ‘customer notations re a portable sleep-out (PSO)’. The document Exhibit D1 was tendered as a ‘business record’ of Housing SA. Exhibit D1 featured a series of dates and a chronological record of events relating to the property.

34. Exhibit D1 includes the following information:

    ·Between 25 January 2013 and 12 April 2013, there were various notations indicating that an application for a sleepout had been submitted ‘based on social and medical grounds of [the appellant]’, but it was not considered a priority listing. 

    ·On 12 April 2013, a sleepout application approval letter was sent to the tenant (the tenant being the appellant and the complainant’s mother), and the applicant was placed on a ‘normal wait list’.

    ·On 28 August 2013, there was a note stating that an SA Housing Authority officer spoke to the tenant on 20 August 2013, regarding her sleepout application. The note also confirmed that all occupants were still residing at the property and advised that Housing SA was required to seek Council approval before the sleepout could be installed. 

    ·On 20 December 2013, the tenant called to inquire if she could move her son (the appellant) into the sleepout as she was unsure whether all of the repairs had been completed (‘the December telephone call’).

    ·On 23 December 2013, AF, the appellant’s grandmother, inquired as to whether the sleepout was ready to be occupied.

    ·On 4 June 2014, there was a note stipulating that the sleepout was ‘allocated’ on 27 November 2013.

35. Ms Hackel agreed in cross-examination that, by reference to the documents (Exhibits P4, P5 and D1), she could not say ‘when the portable sleepout was put onto the property’ as that was not expressly stated in the documents, and she was not personally involved.

36. The trial Magistrate made the following finding:

    Ms Hackel is a business information officer for Housing SA. Through Ms Hackel the prosecution tendered several documents relating to the Housing SA property which was the residence of the accused and JF during the period of the alleged offending. The documents tendered include an archive record entry indicating a portable sleepout had been relocated from one Housing SA property to the house in which JF and the accused were living on 27 November 2013.A further document was a Housing SA invoice with a stamp showing a 'Relocation of the portable sleepout' and a 'completion date' of 27 November 2013. That invoice also showed an accounts payable stamp of 6 December 2013 and a work inspection date of 9 December 2013. it was put to Ms Hackel by defence that she was not able to know when the sleepout was actually installed. She agreed she did not know that personally but that the records indicated the sleepout installation was completed on 27 November 2013. As a result I find that the sleepout was installed no earlier than, and on about, 27 November 2013.

1. The appellant contended that the trial Magistrate erred by drawing an inference that the sleepout was installed on or after 27 November 2013. The appellant submitted that Ms Hackel’s inability to say when the sleepout was ‘put onto the property’ precluded the trial Magistrate from making this finding.

2. As stated earlier, the relevant documents were tendered pursuant to s 53 of the Evidence Act, which provides:

   53—Admission of business records in evidence

   (1)     An apparently genuine document purporting to be a business record—

   (a) is admissible in evidence without further proof; and

   (b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).

   (2)     A document must not be admitted in evidence under subsection (1) if the court is of the opinion—

   (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or

   (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or

   (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.

   (3)     For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

   (4)    In this section—

   business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;

   business record means—

   (a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or

   (b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.  

3. There was no challenge to the admissibility of the documents as business records. Pursuant to s 53(1)(b), the documents were evidence of the facts stated therein.

4. In support of this ground of appeal, the appellant relied on the fact that Ms Hackel could not say from the documents or her personal knowledge when the sleepout was physically put onto the premises before completion. In considering this contention it is important to recognise that the forensic issues in contest at trial involved a consideration of when the appellant commenced occupying the sleepout as a bedroom. The timing of the installation of the sleepout was an anterior fact relevant to this issue. That Ms Hackel could not say when the sleepout was ‘put onto the property’ had limited relevance to the question of when the appellant commenced using the sleepout as his bedroom. Ms Hackel’s evidence on the topic did not preclude the trial Magistrate from finding that the sleepout was installed on, and not before, 27 November 2013. Indeed, Ms Hackel gave evidence that she believed, from the documents, that the sleepout was completed on 27 November 2013. This evidence, combined with other notations on the documents, provided an evidentiary basis for the trial Magistrate to make the finding she did.

5. In particular, Exhibit P4 records that a sleepout had been ‘relocated’ from one property to the family premises on 27 November 2013. In Exhibit P5, there is a completion date of 27 November 2013, and a declaration signed on 29 November 2013, certifying the work on this invoice was completed by the date shown. Moreover, in Exhibit D1, there is a note from 20 December 2013, stating that the tenant called to inquire if she could move her son (the appellant) into the sleepout as she was unsure whether all the repairs had been completed. On 23 December 2013, AF, the appellant’s grandmother, inquired as to whether the sleepout was ready to be occupied. Both records are evidence of the facts therein stated from which it can be inferred that the appellant had not commenced using the sleepout as his bedroom prior to 20 December 2013.

6. It was open to the trial Magistrate to find the relevant fact proved (that is, the sleepout was installed at the property and the appellant moved into the sleepout sometime after 27 November 2013) from the documents in conjunction with other evidence.

7. There was also other evidence which supported the trial Magistrate’s finding as to the installation date and, more importantly, that the appellant moved into the sleepout after the installation date. JF gave evidence that the sleepout was installed when he was 10 years old (his date of birth being 23 September 2003), and the appellant moved into the sleepout a couple of months later. The appellant’s fourteenth birthday was on 17 October 2013. Accordingly, on JF’s account, the appellant moved into the sleepout after the appellant’s fourteenth birthday.  In any event, JF also gave evidence that the charged act did not occur until a couple of months after the appellant had moved into the sleepout. Thus, there was no scope, based on the evidence, for the rebuttable presumption of doli incapax to arise.

8. Moreover, defence counsel at trial abandoned any argument as to the presumption of doli incapax when she said:

   The fact of a sleep-out really falls on somewhat – it’s really neither here nor there as it would only be relevant as to time. Now, that would only be relevant if [BF] was, of course, under the age of 14 when these allegations occurred if your Honour found that they did in fact occur as that would enliven doli incapax. But during the charged period, [the appellant] was 14, and so we’re not pressing the fact of doli incapax, but the evidence of the sleep-out ultimately just proves that there was a sleep-out there. The evidence that your Honour should prefer is that of [JF] both now and in 2015 and the fact that there are quite significant inconsistencies in what he said.

   (emphasis added)

9. For those reasons, we are satisfied there was an evidentiary basis for the trial Magistrate to find that the sleepout was installed on, and not before, 27 November 2013. Upon reviewing the material before this Court, we are also satisfied that the prosecution established that the sleepout was installed on, and not before, 27 November 2013; and that the appellant did not use the sleepout as a bedroom until a couple of months after that date, and the rebuttable presumption of doli incapax did not arise on the evidence. Accordingly, there was no miscarriage of justice. 

10. We grant permission to appeal but dismiss this ground of appeal.

    Conclusion

    1.   We grant permission to appeal on all grounds but dismiss the appeal.