Ferris (a pseudonym) v The King - [2025] SASCA 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
FERRIS (A PSEUDONYM) v THE KING
[2025] SASCA 62
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
5 June 2025
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 - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Following a trial by judge alone, the appellant was found guilty of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution alleged that the appellant engaged in unlawful sexual acts with the complainant when she was between 13 and 17 years of age. The appellant and the complainant subsequently married when she was 24 years of age and had one child together. The prosecution case relied primarily on the complainant’s evidence, as supported by the evidence of family members and associates as to the nature of the relationship. There was also evidence of a text message sent by the appellant to his brother allegedly containing an admission.
The defence case was that the appellant’s sexual relationship with the complainant did not commence until she was 21 years of age. The appellant gave evidence at trial, and also called evidence from various members of his family. There was also documentary evidence tendered as part of the defence case which purportedly provided an alibi for an alleged act of sexual intercourse.
The trial Judge found the complainant’s evidence to be logical, credible and convincing. The trial Judge rejected the appellant’s evidence, and found the offence proven beyond reasonable doubt.
The appellant seeks permission to appeal against his conviction on eight grounds. Grounds 1 and 2 relate to the trial Judge’s conduct of the trial; Grounds 3, 4 and 6 relate to the trial Judge’s failure to give various directions as part of his reasons for verdict; Ground 5 relates to the trial Judge’s failure to provide adequate reasons for his verdict; Ground 7 relates to an application for the receipt of fresh evidence; and Ground 8 complains that the verdict is unreasonable and cannot be supported having regard to the evidence.
Held, per the Court, granting permission to appeal on Grounds 5 and 8, allowing the appeal on Ground 5, but dismissing Ground 8:
1.The trial Judge failed to bring to account various aspect of the evidence called, or tendered, as part of the defence case when assessing the credibility and reliability of the complainant’s evidence. The cumulative effect was such that the trial Judge did not provide adequate reasons for accepting the complainant’s account and finding the offence proven beyond reasonable doubt.
2.Upon this Court’s independent assessment of the whole of the evidence, having regard to the appellant’s submissions and challenges to the credibility and reliability of the complainant’s evidence, and the alleged weaknesses in the prosecution case more generally, it was open to the trial Judge to be satisfied beyond reasonable doubt of the appellant’s guilt.
3.Given the conclusions reached on Grounds 5 and 8, it is not necessary, in the circumstances of this matter, for this Court to consider and determine the remaining grounds of appeal.

4. The conviction is quashed.
5. The matter is remitted to a different judge of the District Court for re-trial.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA), referred to.
Bowen (a pseudonym) v The King [2025] SASCA 36; Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92; Dansie v The Queen (2022) 274 CLR 651; DL v The Queen (2018) 266 CLR 1; JGS v The Queen [2020] SASCFC 48; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v Sexton [2018] SASCFC 28; R v Shah [2007] SASC 68; R v V,D [2023] SADC 176; Sondhi v The King [2024] SASCA 7, considered.

FERRIS (A PSEUDONYM) v THE KING
[2025] SASCA 62
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: Following a trial by judge alone, the appellant was found guilty of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act1935 (SA) (‘the CLCA’).[1] The prosecution case at trial was that the appellant maintained an unlawful sexual relationship with the complainant by engaging in multiple unlawful sexual acts with or towards her between 1 July 2001 and 30 June 2005. During those four years, the complainant was between 13 and 17 years of age, and the appellant between 21 and 25 years of age.
[1] Prior to the commencement of the Criminal Law Consolidation (Child Sexual Abuse) Amendment Act 2023 (SA), after which it is now described as sexual abuse of a child.
The appellant and the complainant subsequently married in February 2013, had a child together, and eventually divorced in May 2016.
The appellant seeks permission to appeal against his conviction on eight grounds. The grounds of appeal can be broadly summarised as follows:
·the procedural irregularities that occurred prior to and after the commencement of the trial, and as part of the trial Judge’s reasons for verdict, individually or collectively, occasioned a miscarriage of justice (Grounds 1 to 4);
·the trial Judge erred by failing to provide adequate reasons for his verdict (Ground 5);
·the trial Judge erred in his directions relating to the appellant’s forensic disadvantage suffered as a consequence of the delay up until trial (Ground 6);
·this Court ought to receive fresh evidence relating to the basis for the appellant’s Disability Support Pension, which was the subject of evidence in rebuttal and adverse credit findings by the trial Judge (Ground 7); and
·the verdict is unreasonable and cannot be supported having regard to the evidence (Ground 8).
For the reasons which follow, we grant permission to appeal on Ground 5 and uphold that ground of appeal. We reject appeal Ground 8. It is not necessary, in the circumstances of this matter, to consider and determine the remaining grounds of appeal given that a re-trial will be heard by a different District Court judge.
We allow the appeal, quash the conviction and remit the matter to a different judge of the District Court for re-trial.
Before turning to consider the relevant appeal grounds, it is necessary to provide a brief overview of the procedural history, evidence and issues at trial.
This matter has a protracted history and was a re-trial. The first trial proceeded before a jury who found the appellant guilty of the same offence. On 30 January 2020, the Court of Criminal Appeal (as it then was) set aside the conviction and ordered a re-trial.
The appellant elected for trial by judge alone, which was granted. The appellant subsequently sought to revoke his application for trial by judge alone. This was declined. During the trial, the appellant also applied to the trial Judge to recuse himself, which was also declined.
The re-trial (the subject of this appeal) commenced on 16 August 2022 and proceeded over 29 sitting days and over a period of one year and eight months.
During the trial, the main issue in dispute was whether the appellant’s sexual relationship commenced when the complainant was under 17 years of age. As mentioned earlier, it was alleged that the appellant and the complainant had a sexual relationship from 1 July 2001 until 30 June 2005. The complainant turned 17 years of age in July 2005.
The prosecution case
The prosecution called the complainant, the investigating officer, the complainant’s brother (RS), the complainant’s mother (JS), the complainant’s aunt (ES), and two family friends (JE and TC). The prosecution case relied on the credibility and reliability of the complainant’s evidence as supported by the evidence of family members and associates. There was also evidence of a text message from the appellant to his brother where he allegedly admitted to having been in a relationship with the complainant for ‘13+ years’ (meaning their relationship commenced in 2003). Notwithstanding the text message which purportedly directly implicated the appellant, the prosecution case as to the sexual acts relied primarily on the complainant’s evidence. The trial Judge was required to accept the complainant’s evidence as truthful and reliable in order to find the appellant guilty of the offence.
The complainant gave evidence that she and the appellant kept their relationship a secret for the first few years, and it was not until the complainant was around 15 years of age, that they became more open with their families about the nature of their relationship.
The complainant explained how their relationship developed over time. She developed a crush on the appellant when she was around 12 years of age. She said their first physical intimacy occurred when they surreptitiously drove to a look out where they kissed. At this time, the complainant was around 13 years of age. They engaged in furtive touching under blankets when they were watching movies with their siblings in the appellant’s bedroom which progressed to the appellant inserting his fingers into her vagina and penile-vaginal sexual intercourse in the appellant’s bedroom.
The complainant’s brother, RS, gave evidence that he and his sister would go to movie nights at the appellant’s house and watch movies in the loungeroom, and that sometimes the appellant and the complainant would go into the appellant’s bedroom ‘to do who knows what’.
The complainant said that the appellant also became interested in other types of sexual activity, emulating acts depicted in pornography that the complainant and the appellant would watch together. The complainant gave evidence that they would watch pornography together on a laptop computer in his bedroom before engaging in sexual activity. This included the appellant engaging in anal sexual intercourse with the complainant on his queen size bed when the complainant was around the age of 15 years.
The complainant also gave evidence that the appellant engaged in acts of cunnilingus upon her, and, at his instigation, she performed acts of fellatio upon him.
The complainant said these sexual acts occurred at the appellant’s family home and at a unit he purchased in October 2003.
In public, the couple would appear friendly but would not display overt affection. Various witnesses gave evidence that they understood them to be in a relationship by reason of their interaction with each other. However, none witnessed any sexual activity between them.
In 2006, the appellant sold his unit and purchased a café on Waymouth Street in Adelaide. The prosecution alleged the café was bought by the appellant and the complainant together; however, the complainant was too young to sign any documents. They worked together at the café for a number of years. A witness, TC, gave evidence of going to the appellant and complainant’s café, and them attending TC’s fruit and vegetable shop. TC gave evidence that while speaking to the appellant about the complainant in 2006, the appellant said, ‘I trained her while she was young’.
Images and videos
The prosecution tendered photographs[2] and a video[3] which were allegedly taken when the complainant was under 17 years of age and depicted an intimate relationship between her and the appellant.
[2] Trial Exhibit P3; Trial Exhibit P7.
[3] Trial Exhibit P5.
Two images depicted the complainant and appellant at a beach in 2002. The first image was purportedly a ‘selfie’ taken by the appellant, showing the complainant’s arms around him and her kissing him on the cheek. The second image was a photo of the complainant standing alone on the beach. There was a contest at trial as to the age of the complainant when these were taken; the complainant did not have braces indicating they were taken either before she was 15, or after she was 18 years of age. The complainant and her mother gave evidence the images were taken before her braces were fitted.
There were also two photographs purportedly taken at the appellant’s parents’ house before a wedding. One image depicted the appellant with his arm around the complainant’s waist, and the other showed the complainant’s arm through his. The complainant stated she was 15 years of age at that time.
There was another photograph which depicted the appellant and complainant standing together, with the appellant’s hand around her waist with his hand on her rib cage, and thumb near her breast area. The image was taken by the complainant’s mother, who gave evidence that the complainant was about 15 years of age and she understood them to be in a relationship at this time.
Photographs from two separate family occasions depicted the complainant and appellant sitting next to each other, looking at each other and smiling. The complainant was 15 years of age.
The text message
The prosecution also tendered an exchange of text messages between the appellant and his brother, AV, from May 2016,[4] relating to the breakdown of AV’s relationship. The appellant sent a message to AV (shortly after the appellant’s divorce from the complainant was finalised in May 2016), stating ‘I loved her in a caring way. I was with her for 13+ years [AV]. had [sic] a Child together!!!!!! Don’t even go there’. This text message was relied upon by the prosecution as supportive of the complainant’s account as to when the sexual relationship commenced.
[4] Trial Exhibit P14.
Attendance at police stations
The complainant and her mother gave evidence that prior to October 2003, her father took her to a police station about the amount of time she was spending with the appellant. The complainant stated she refused to speak to the police. There was no police record of this attendance.
On 18 October 2003, the complainant attended the Glenelg police station and reported that her father had been physically abusive towards her. Defence counsel tendered the police record of this attendance.[5] The complainant gave evidence that the appellant encouraged her to make that report to prevent her father interfering with their relationship and, in fact, drove her to the police station.
[5] Trial Exhibit D8.
The morning after pill
The complainant gave evidence of an occasion when the appellant ejaculated during sexual intercourse and, on the following day, the appellant drove her to a doctor’s appointment for the ‘morning after pill’. A general practitioner confirmed the complainant attended his clinic on 17 November 2003 (when she was 15 years of age) and was prescribed the morning after pill.[6]
[6] Trial Exhibit P11.
The defence case
The defence case at trial was that the complainant and appellant were family friends but not involved in a romantic relationship until late 2010, or early 2011, when the complainant was 21 years of age.
The appellant gave evidence at the trial, along with his younger brother (AV), older brother (RV) and his mother (MV). There were also various documents and photographs tendered in support of the defence case.
The appellant denied any sexual interaction with the complainant before 2010. He said that leading up to the commencement of their relationship, he felt significant pressure from the complainant’s family to marry her, and he relented to that pressure in late 2010. He said that he did not love the complainant, and they had, in effect, an arranged marriage.
The appellant gave evidence that the physical relationship between them commenced in late 2010 when they were at his house and he was hanging up washing. The complainant approached him, pulled his pants down, and they then subsequently went inside and engaged in sexual activity. The complainant was about 21 years of age at the time. The appellant denied any earlier sexual interaction with the complainant at all.
The appellant denied ever watching movies in his bedroom or at his house with the complainant alone, or with the complainant in the company of his brothers. His younger brother, AV, gave evidence that there were never any movie nights at his family home involving the complainant, although AV gave contrary evidence at the first trial. The appellant’s older brother, RV, was also not aware of the complainant watching movies at their house. Their mother, MV, gave evidence that the complainant would only come over to the house with her mother, and that the complainant, RS, and her sons never watched movies at the house together.
The appellant gave evidence that he did not take the complainant to the police station on 18 October 2003 to report her father’s abusive behaviour, although it was a ‘known fact’ her father would be abusive, and that the complainant would threaten to report him. In support of his evidence, the appellant produced documents that he was rostered to work at the relevant time.[7]
[7] Trial Exhibit D22 consisting of a letter from his employer; Trial Exhibit D23 consisting of a work roster.
The appellant also gave evidence that he was on leave from work at the time the complainant went to the doctor to obtain the ‘morning after pill’. He said he was camping with his then girlfriend, ‘Amy’, at Marion Bay. The appellant produced employment records which indicated he had ‘approved leave’ from 12 to 19 November 2003,[8] along with photographs from the holiday,[9] that were date stamped 13 or 16 November 2003. None of the photographs depicted Amy.[10]
[8] Trial Exhibit D19 consisting of a notebook; Trial Exhibit D21 consisting of a work roster.
[9] Trial Exhibit D16; Trial Exhibit P25.
[10] The appellant gave evidence that the complainant had destroyed all photographs depicting any girlfriend he had.
In relation to the text message, the appellant’s evidence was that ‘13+’ years was a typographical error and that he meant ‘3+’ years. He emphasised that he was married to the complainant for three years.
The appellant gave evidence that he suffered from various medical conditions which, on the defence case, reduced the likelihood of the appellant offending in the way alleged by the complainant. The medical conditions were also the subject of agreed facts.[11]
[11] Trial Exhibit D30.
The appellant also gave evidence that he did not own a laptop until March 2006 (after the charged period). In that regard, he tendered a receipt which recorded the date of purchase of the laptop.[12] There was also a note from the salesperson dated 31 March 2006 which referred to the appellant as ‘newbie notebook owner’ suggesting he had not previously used a laptop. On the defence case, this evidence undermined the complainant’s account that the appellant showed her pornography on a laptop prior to engaging in sexual activity with her.
[12] Trial Exhibit D15.
Further, contrary to the complainant’s evidence, the appellant (as well as AV and MV) gave evidence that the only computer in their home during the latter stages of the charged period was a desktop computer situated in AV’s bedroom. This was depicted in a photograph of AV’s bedroom dated from 2002.[13]
[13] Trial Exhibit D28.

In relation to the complainant’s evidence that anal sexual intercourse occurred on a queen size bed when she was 15 years old (in 2003 or 2004), the appellant gave evidence that he first purchased a queen size bed on 29 June 2005 (on the penultimate day of the charged period) and tendered a receipt for that purchase.[14] There was also a note on the receipt that a single bed was also to be removed after delivery. Again, the defence relied on this evidence to undermine the complainant’s account as to the alleged acts of anal sexual intercourse.
[14] Trial Exhibit D17.
The trial Judge’s reasons for verdict
The trial Judge commenced his reasons by outlining the parties’ respective cases before summarising the evidence adduced at trial, as well as the parties’ closing addresses. His Honour stated, correctly, that the principal issue for determination was whether the prosecution had proved, beyond reasonable doubt, that the appellant committed two or more of the particularised sexual acts, noting there was no dispute that any of the other ingredients of the charge had been established.
The trial Judge then considered in greater detail the evidence adduced at trial. His Honour found the complainant’s evidence to be logical and credible, and said:[15]
There was a logical development in her evidence and no obvious attempt at exaggeration. That is despite giving an account of intrusive sexual experimentation. The complainant said that she was reluctant to engage in some sexual activities, but she does not allege undue coercion such as would negate consent. Of course she could not legally consent to any sexual activity before she was aged 17 but I am making observations about the nuanced aspects of parts of her evidence.
In fact, despite the complainant’s account of some controlling behaviour by the accused, she said she was defiant in the face of her parents trying to dissuade her from spending time with him. Her mother confirmed that defiance. The accused, and his witnesses, speak of the complainant being defiant towards her parents, although they say that defiance was a result of the relationships she was having with other boyfriends or other men.
…
There was a logical progression in the way she said the relationship escalated. She was asked to be the accused’s girlfriend. There was not an immediate escalation to sexual activity. There was a credibly thwarted plan for sexual contact, a plan thwarted by her mother discovering the cover story.
[15] R v V,D [2023] SADC 176 at [247]-[248], [250] (‘Reasons for Verdict’).
As to what occurred in the appellant’s bedroom, the trial Judge found the complainant’s evidence convincing, stating:[16]
Despite being brazen, the complainant’s account of gradually escalating sexual activity in the accused’s bedroom had convincing detail. It began with furtive touching underneath the blankets on the movie nights in his bedroom. The couple were sitting on the bed, with the two brothers in front of them, watching a film.
[16] Reasons for Verdict at [252].
The trial Judge then referred to several pieces of evidence which he said supported the complainant’s account of being in a romantic relationship with the appellant when she was 14 and 15 years of age. In relation to the photographs tendered by the prosecution, and the evidence of ES as to her observations of the relationship, his Honour found the following:[17]
… She turned 14 years old in July 2002. The trip with her mother and brother to Croatia occurred between 25 September and 2 December 2002. There are two exhibits which are evidence of the romantic relationship. The first is the first two photos in Exhibit P3 which were taken at the beach. In my view, the first photo of the complainant kissing the accused on the cheek is plainly a selfie taken by the accused. I reject the evidence of the accused and his mother that the accused’s mother took the photo. In my view the body language is suggestive of a romantic relationship rather than a familial one. The date of the photo is contested. The second photo is of the complainant alone. She does not appear to be wearing braces on her teeth. It is not disputed that she had the braces fitted when she was aged 15, but there is no evidence of exactly when they were fitted. In cross-examination [defence counsel] put to the complainant that the braces were fitted on 9 December 2003 but she was unable to be sure, except that she said she was 15 at the time. It is agreed the braces were removed on 5 July 2006, a few days after her 18th birthday.
The complainant says that the photos at the beach were taken a few months before she went to Croatia. The accused’s mother said that she took both photos when the complainant was 15 or 16. She then said that, because of the cap that the accused is wearing, it could well have been after 2006. The accused said that the photographs would have been taken in 2005 or 2006, at a minimum. I reject the evidence of both the accused and his mother about who took the photos and when they may have been taken. However I cannot find as a fact that they were taken before the trip to Croatia. I find that they were taken before the braces were fitted when the complainant was aged 15.
…
The complainant’s aunt, ES, says that she was at the complainant’s house on, or shortly after, the family’s return from Croatia. She observed the complainant to be particularly dressed up and made up. The complainant left the house with the accused.
There are pieces of evidence supporting the complainant’s evidence of there being a romantic relationship with the accused when she was aged 15. She turned 15 in July 2003. I refer to three photographic exhibits. The first is the photos on the beach. While I cannot find that those photos were taken in 2002, I do find that they were taken before the braces were fitted, not after they were removed. I have already found as a fact that the photos were taken by the accused and they depict a romantic relationship rather than a familial one.
The second exhibit is the pre-wedding photos on page 2 of Exhibit P3. The complainant said that those photographs were taken when she was aged 15 and that evidence does not appear to be disputed. The circumstances surrounding the taking of the photographs are disputed but not the timing.
In my assessment, the photographs are consistent with the complainant’s evidence of there being a romantic relationship between the two. The two are depicted arm in arm. The photos are not consistent with the accused’s evidence of him being reluctantly forced to have the complainant tag along with him to the wedding.
(Footnotes omitted.)
[17] Reasons for Verdict at [255]-[256], [259]-[262].
As to the complainant’s account that she attended twice at the police station: once, with her father to report her relationship with the appellant; and again, on 18 October 2003 with the appellant to report that her father had been physically abusive, the trial Judge found:[18]
There is no doubt that the complainant attended the Sturt Police Station on 18 October 2003 to make a report about violence by her father. The police report is Exhibit D8. The complainant says that the report was made because the accused was angry about what he saw as her father’s earlier interference in the relationship. Her account of the earlier incident is nuanced, and gained some support from her mother.
Both mother and daughter say that the father became angry about the complainant spending so much time with the accused. The complainant had been forbidden to go to the accused’s place but had defiantly attempted to go. Mother and daughter both say that, in frustration, the complainant’s father took her to the police station to get police to help. The complainant said that at the police station her father reported that she was keeping company with an older man but she refused to say anything. The police could do nothing. There is no police record of that visit but I find that it occurred. The complainant’s account is credible. What was said on that occasion is hearsay but in my view the evidence is admissible to explain what the complainant says happened as a result of that visit. There is a telling detail about her account. She said that she refused to leave the police station with her father and, instead, it was arranged that she would be taken home by the accused’s older brother’s partner. She was taken to the accused’s place by that partner and then taken to her own home.
When the complainant was recalled to be further cross-examined, she said that the first visit took place a couple of months before she went to the police station on 18 October 2003.
The complainant said that the accused was angry about her father’s interference and that he himself took the complainant to the police station on 18 October. He suggested that she make a report of violence against her father so he could no longer interfere. The accused denies taking the complainant to the police station. He says he was working at the time. He and other members of his family also contend that the complainant’s father was violent towards her. Accordingly, it is not suggested that the report made to the police was untruthful. Instead, the defence submits that the complainant is untruthful when she denied in court that her father was violent towards her. Further, she is untruthful in saying that the accused told her what to say and he took her to the police station.
[18] Reasons for Verdict at [265]-[268].
As to the appellant’s evidence, the trial Judge found him a ‘poor witness’, stating:[19]
In my view, the accused was a poor witness who gave an implausible account of his relationship with the complainant. He and his witnesses took many opportunities to gratuitously disparage her. While the accused was extremely discursive in his answers, I do not criticise his evidence on that account, at least not generally. Discursiveness may well be an unconscious characteristic of his, but there were occasions when his discursive answers smacked of deliberate exaggeration and avoidance.
…
The explanations the accused and his mother gave for photos were not credible. They both made claims that they provided the police with many more exculpatory photos and materials which the prosecution have improperly withheld from this trial. Other exculpatory photos were destroyed by the complainant.
[19] Reasons for Verdict at [281], [283].
The trial Judge rejected the appellant’s evidence, and that of his mother, that they took photos and other material to the police five or six times after his arrest. His Honour stated:[20]
… While police records can be deficient, Detective Attard said that there is no record of there ever being such events. It would of course be highly improper for the police to seek, even receive, materials from a charged accused without disclosing them. It is highly unlikely that, as the accused claims, the police were seeking information from him to disprove what they told him were lies being told by the complainant. It is also highly unlikely that four police officers, including Detective Attard, were involved.
[20] Reasons for Verdict at [289].
As to the material tendered by defence counsel in relation to the complainant’s evidence that the appellant had taken her to the police station on 18 October 2003, and her evidence that following sexual intercourse with the appellant, she consulted a doctor on 17 November 2003, the trial Judge stated the material ‘[does] not have the strength attributed to them by defence’.
The trial Judge also considered the appellant’s explanation for the text message as a typographical error as not credible and ‘a disingenuous diversion’.
The trial Judge rejected the appellant’s evidence, and the evidence of members of his family, in material respects. His Honour ‘put aside their evidence’ and turned to consider whether he was satisfied of the prosecution case beyond reasonable doubt. His Honour concluded:[21]
I am so satisfied. For the reasons I have already mentioned, I am satisfied beyond reasonable doubt of her evidence in material respects. I find that the accused did commit two or more of the particularised sexual acts. I find he committed all of the acts particularised from paragraphs (a) to (i) inclusive, more than once. In respect of particular (j), I am not satisfied that the completed act of insertion of the baseball bat occurred. The complainant’s evidence falls short of saying that penetration occurred. I accept her evidence that he tried. I find that particular not proved. I find the other ingredients of the charge proved beyond reasonable doubt.
(Footnote omitted.)
[21] Reasons for Verdict at [313].
Appeal grounds
The appellant seeks permission to appeal against his conviction on eight grounds. Relevantly, in relation to appeal Grounds 5 and 8, the appellant complains:
Inadequate Reasons
5.   The Learned Trial Judge erred by failing to provide adequate reasons for his verdict.
Particulars
5.1   The Learned Trial Judge did not in his reasons identify the sexual offences (and their respective elements) that he found proven beyond reasonable doubt: Reasons [313], which limit the relevant finding to the commission of ‘sexual acts’, as opposed to sexual offences.
5.2   The Learned Trial Judge in his reasons for verdict does not explain in sufficient detail, or indeed at all:
5.2.1why he was prepared to accept the evidence of the Complainant and her mother as to her alleged attendance at the police station with her father in circumstances where it was in conflict with the evidence of Det. B/Sergeant Attard, who said there was no record of such an attendance;
5.2.2how he arrived at the finding that the photographs taken at the beach (exhibit P3) were taken before the Complainant had braces fitted to her teeth at age 15: Reasons, [256] and [260];
5.2.3how he reached the conclusion that the pre-wedding photographs (exhibit P3) were consistent with the Complainant’s evidence and not consistent with the [appellant’s] evidence: Reasons, [262];
5.2.4how he was able to reject the [appellant’s] evidence beyond reasonable doubt in respect of his being unable to take the Complainant to the Police Station as alleged on 18 October 2003 in circumstances where he was working: Reasons, [292];
5.2.5how he was able to reject the [appellant’s] evidence beyond reasonable doubt in respect of his being unable to take the Complainant to the doctor as alleged on 17 November 2003 in circumstances where he was on holiday at Marion Bay: Reasons, [291], [293] and [295];
5.2.6how he was able to reconcile the Complainant’s evidence with exhibits D15, D17 and D28;
5.2.7how he was able to reconcile the inconsistency between the evidence of the Complainant and the Complainant’s brother, RS, that they did not watch movies in the [appellant’s] bedroom: Reasons [50];
5.2.8how he was able to reconcile the inconsistency between the evidence of the complainant and the [appellant’s] brother, AV, that the Complainant never watched movies in the [appellant’s] bedroom;
5.2.9how he was able to reconcile the inconsistency between the evidence of the Complainant and the [appellant’s] brother, RV, that the [appellant] slept on a single bed until around 2004/2005;
5.2.10how he was able to reconcile the Complainant’s evidence with the evidence and agreed facts relating to the [appellant’s] medical conditions;
5.2.11the use, if any, that he made of the evidence of the witness TC and the hearsay statement purportedly made to him by the [appellant]: Reasons [75] – [76]; and
5.2.12whether and to what extent the Complainant’s false report to the Police regarding the conduct of her father impacted upon her credibility and reliability.
Unreasonable Verdict
8.   The verdict of guilty should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence.
Particulars
8.1   A verdict of guilty was dependent upon an acceptance of the Complainant’s evidence alone. The [appellant] denied the allegations on oath and relied on tendered documents and witnesses called by him.
8.2   Notwithstanding the alleged sexual offending (and incident of bestiality and violence), on her account the Complainant remained in a relationship with the [appellant], agreed to marry him, did marry him, and bore his child.
8.3   No witness, other than the Complainant, gave evidence of having observed or becoming aware of any sexual acts performed by the [appellant] upon the Complainant whilst she was a child.
8.4   The Complainant’s brother, RS, gave evidence for the prosecution that he and the Complainant watched movies in the [appellant’s] lounge room and not in his bedroom.
8.5   The [appellant] led evidence (including documents and photographs) that provided him with an alibi for certain events that the Complainant said that he was present for.
8.6   The [appellant] tendered evidence that was objectively inconsistent with the evidence of the Complainant as to the nature and timing of certain of the alleged sexual acts.
8.7   The [appellant] gave evidence as to the medical conditions that he suffered during the offending period, and which made the offending less likely, which evidence was not rebutted by the Crown and was the subject of agreed facts (exhibit D30).
8.8   The Complainant, on her own evidence, made a false report to the police about her father’s conduct towards her.
(Footnotes omitted.)
We turn now to consider those appeal grounds. As mentioned earlier, appeal Grounds 1 and 2 relate to the trial Judge’s conduct of the trial (and an allegation of apprehended bias and that the ordering of a report pursuant to s 269WA of the CLCA was ultra vires). Appeal Grounds 3, 4 and 6 relate to the trial Judge’s failure to give various directions as part of his reasons for verdict. Ground 7 relates to an application for the receipt of fresh evidence relating to the appellant’s medical condition and his disability support pension (to place into its proper context evidence called in rebuttal). Given our conclusion that appeal Ground 5 should be upheld, but the complaint of unreasonable verdict under appeal Ground 8 be dismissed, it is not necessary to consider these grounds. Any determination in respect of those grounds does not have the capacity to affect the conduct of a re‑trial to be heard before a different judge of the District Court. It should not be thought that the approach taken to s 269WA of the CLCA by the trial Judge is correct or has been sanctioned by this Court.
Ground 5: Inadequate reasons
The appellant complains that the trial Judge failed to provide adequate reasons for his verdict. More particularly, the appellant contends that his Honour failed to bring to account evidence which materially undermined the credibility and reliability of the complainant’s account. In support of this contention, during the hearing of this appeal, the appellant emphasised the following five bodies of evidence.
Watching movies in the appellant’s bedroom
The complainant gave evidence that the appellant sexually touched her whilst watching movies together, along with their brothers, in his bedroom. These acts occurred on multiple movie nights. She said that on one occasion, the appellant asked the others to leave the room, locked the door, and then proceeded to have penile-vaginal sexual intercourse with her in his bedroom.
The complainant’s evidence was contradicted by her brother, RS, who said that they watched movies in the loungeroom. However, he also gave evidence that there was an occasion when the appellant and the complainant went into the bedroom alone ‘who knows what for’. The trial Judge did not refer to the inconsistency between the complainant and her brother on this topic in his reasons. The appellant submits it is a significant inconsistency on a material matter, which undermined the credibility and reliability of the complainant’s account.

On the other hand, the respondent contends it was not necessary for the trial Judge to resolve this inconsistency to find that sexual activity occurred and, in fact, RS’s account materially supported the complainant’s account about the appellant’s opportunity to commit the alleged sexual acts on at least one occasion.
The provision of documents to police
The appellant gave evidence that he and his mother provided various exculpatory documents and materials to the police after his arrest. In particular, the appellant gave evidence that he provided the police with the original photographs of his trip to Marion Bay in November 2003. The investigating officer gave evidence that she had seen ‘digital evidence’ of these photographs provided by the appellant to police. Without referring to this concession, the trial Judge made adverse findings against the appellant on this topic, to the effect that he did not accept the appellant, or his mother, had provided any original exculpatory material to the police, notwithstanding the concession made by the investigating officer.[22]
[22] Reasons for Verdict at [289].
The attendance at the police station on 18 October 2003
As mentioned earlier, the appellant tendered a letter and roster indicating that he was working on 18 October 2003 such that he could not have driven the complainant to the police station (to report her father for abusive behaviour and remove a perceived impediment to their relationship).
The documents tendered at trial were:
·a handwritten logbook of his work hours containing a note ‘18/10/03 — 0730–1800 Saturday [initials]’;[23]
·a letter from his employer setting out his shift for 18 October 2003 (‘0730–1800 hours’) and various handwritten notations;[24] and
·a work roster for ‘SA Water Thebarton’ noting a shift on 18 October 2003 (‘0730–1800 hours’).[25]
[23] Trial Exhibit P19
[24] Trial Exhibit D22
[25] Trial Exhibit D23
The police records indicate that the complainant attended the Glenelg police station at 5.27pm on 18 October 2023.[26]
[26] Trial Exhibit D8
The appellant submits the trial Judge did not adequately consider the appellant’s evidence on this topic, as supported by those documents, nor did he properly bring them to account when considering the cogency of the complainant’s evidence.
The trial Judge found the records did not ‘have the strength attributed to them by the defence’ to the extent that the records established he had been rostered to work, but did not prove he did in fact work. His Honour said:[27]
In respect of 18 October 2003, the accused says he was working. He produced a letter from his employer dated 11 August 2003, Exhibit D22, confirming that he would take a replacement work shift on Saturday 18 October. The roster, Exhibit D23, shows him rostered to work from 7:30 am to 6:00 pm on that day. The report to the police was made at 5:27 pm that day. The accused was not able to produce payslips, or any other evidence, that he actually did work that day, or that he worked those hours. I bear in mind his forensic disadvantage in that respect.
[27] Reasons for Verdict at [292].
On the other hand, the respondent contends that this evidence must be viewed against the whole of the evidence at trial and the trial Judge’s finding that the appellant was a ‘poor witness’. In addition, none of the records established that he worked the whole of that shift, thus preventing him from driving the complainant to the police station. The records contain handwritten notes suggesting that the documents were his own records, and not verified by his employer. The respondent submits that it is not inherently implausible that the appellant could have finished work early to drive the complainant to the police station. In addition, this incident was only relevant to the credibility or reliability of the complainant’s account and did not directly relate to the occurrence of an alleged sexual offence.
Attendance at a doctor’s clinic for the morning after pill on 17 November 2003
As outlined earlier, the complainant gave evidence that she and the appellant had penile-vaginal sexual intercourse during which he ejaculated, and on the following day, he took her to a medical appointment for the morning after pill. The prosecution adduced evidence of her consultation with a general practitioner on 17 November 2003 (at which time she was aged 15 years) during which the doctor prescribed the morning after pill.
The appellant gave evidence that he was on holiday at Marion Bay from 12 to 19 November 2003 with a girlfriend, ‘Amy’. In support of his evidence, he produced timestamped photographs she purportedly took of him at Marion Bay,[28] and employee records indicating that he had been given leave during the relevant time period. The appellant tendered his personal notebook,[29] a letter from his employer,[30] and a roster.[31]
[28] Trial Exhibit D16; Trial Exhibit P25.
[29] Trial Exhibit P19.
[30] Trial Exhibit D20.
[31] Trial Exhibit D21.
The evidence was relied upon by the appellant to establish an alibi with respect to the act of sexual intercourse which allegedly occurred on the previous day or evening.
The trial Judge found:[32]
Concerning 17 November, the accused produced a letter from his employer dated 31 October 2003 foreshadowing that he would be on leave from 12 to 19 November, inclusive, with a reference to his proposed visit to Marion Bay, Exhibit D20. There is also a roster, Exhibit D21, showing he was on leave for that period. He has written ‘Marion Bay’ over those days. He has produced what he describes as an employer’s log but which is in fact an exercise book in which he has written various shifts he was working at the time.
There were produced two batches of photos purported to have been taken at Marion Bay at the time. They are Exhibits D16 and P25. The accused says that Amy took those photographs. The originals were given to the police but not now disclosed. It was put to the accused that he has himself put the relevant date stamps on the photos in an effort to prove their provenance. The accused denied that. Questions are not evidence, but it can be seen on the two photos of the accused depicted on a jetty, one in Exhibit P25 and one in Exhibit D16, that the date stamps are in slightly different positions. The photos appear in every other respect to be identical. The date stamps are 16 November 2003. That is the date on which the complainant says the accused had intercourse with her in the unit causing her to fear pregnancy and go to the doctor the following day.
While acknowledging the accused’s forensic disadvantage on this topic, that is, the difficulty in locating Amy, I do not find that these materials cast reasonable doubt on the complainant’s evidence on this topic.
[32] Reasons for Verdict at [293]-[295].
The appellant contends that the reasons do not explain the basis upon which the trial Judge found that the materials did not undermine the complainant’s account. Nor did his Honour make a finding as to whether he considered the documents were fabricated (as suggested by the prosecutor) and if so, why and how that finding bore upon his ultimate conclusions.
By contrast, the respondent submits that the trial Judge’s reasons for rejecting the appellant’s evidence were sufficient to explain why this body of evidence did not undermine the complainant’s evidence. These reasons included: the appearance of the ‘employer’s log’ which was in fact an exercise book in which the appellant had written his various shifts; the appellant said that he had given the original photographs to the police but there is no record of this; and while the photographs in exhibits P25 and D16 were ‘identical’, the date stamps were in slightly different positions noting the prosecutor’s suggestion to the appellant (which he denied) that he had placed the relevant date stamps on the photographs in an effort to prove their provenance.
During the appeal hearing, the respondent added that the images were not tendered in the first trial;[33] the images purportedly taken by Amy are more consistent with images taken by himself as a ‘selfie’; and the level of detail in some of the annotations on the exhibit are consistent with a ‘studied level of detail’ designed to meet the complainant’s account following the first trial.
[33] When giving evidence, the appellant stated he only realised the significance of the dates after the first trial.
The queen size bed and laptop computer
The complainant gave evidence that several of the sexual offences including an act of anal sexual intercourse occurred on a queen size bed in the appellant’s bedroom. The appellant gave evidence that he did not have a queen size bed in his bedroom until the very end of the charged period. In support of his evidence, the appellant tendered a tax invoice for his purchase of a queen size bed dated 29 June 2005[34] (the last day of the charged period). On the delivery instructions, there is a note referring to the removal of a single bed. The trial Judge does not deal with this matter in his reasons for verdict.
[34] Trial Exhibit D17.
The complainant also gave evidence that the appellant showed her pornography on a laptop computer in his bedroom as a prelude to sexual intercourse. The appellant, his mother and brother all gave evidence that he did not purchase a laptop until 2006 (that is, after the charged period). The appellant produced a receipt for the purchase of a laptop in March 2006. The trial Judge also does not refer to this matter in his reasons.
The appellant submits that the evidence relating to the queen size bed and the laptop significantly undermined the complainant’s account such that the trial Judge’s failure to address these matters rendered his reasons for accepting the complainant’s account inadequate.
By contrast, the respondent submits that it was not essential to resolve the contradictory evidence as to the queen size bed and the laptop in order to accept or reject the complainant’s account. Accordingly, a failure to do so does not render his reasons inadequate. More specifically, the fact the complainant may have been mistaken about the size of the bed in the appellant’s bedroom does not materially affect her credibility or reliability. As to the purchase of a laptop in 2006, the respondent submits this does not prove the appellant did not own a laptop prior to that time, and as such, the evidence did not undermine the complainant’s account in a material way.
Consideration
The principles relevant to a complaint of inadequate reasons are well known and have been repeatedly stated by this Court.[35] A trial judge when hearing a trial without a jury is obliged to provide reasons which sufficiently identify the principles of law applied by the judge and the main factual findings relied upon when reaching a verdict. This allows an appellate court to discharge its statutory function on appeal and to facilitate public accountability of judicial decision‑making.[36] A failure to explain a significant factual or evidential dispute which is a necessary step in reaching the ultimate conclusion will usually render reasons inadequate.[37]
[35] See, for example, Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92; Sondhi v The King [2024] SASCA 7; Bowen (a pseudonym) v The King [2025] SASCA 36 at [30]-[39] (Livesey P, S Doyle and David JJA).
[36] Bowen (a Pseudonym v The King [2025] SASCA 36 at [30] (Livesey P, S Doyle and David JJA); JGS v The Queen [2020] SASCFC 48 at [204] (Lovell J, Peek and Bampton JJ agreeing).
[37] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
A judge however is not required to address in detail every contested matter, particularly if the matters are peripheral to the key issues at trial.[38] As the High Court in DL v The Queen explained:[39]
... 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.)
[38] Bowen (a pseudonym) v The King [2025] SASCA 36 at [31] (Livesey P, S Doyle and David JJA); R v Sexton [2018] SASCFC 28 at [179] (Kourakis CJ, Peek and Nicholson JJ agreeing).
[39] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
The adequacy of reasons will depend on the issues in dispute in the trial, their relevance in proof of the elements of the offence, and importantly, the parties’ conduct of the case before the trial Judge.
In the present case, as outlined earlier, the central issue at trial was whether the prosecution had proved that the sexual relationship between the appellant and the complainant commenced when she was about 13 years of age. The prosecution case relied heavily on the complainant’s evidence as supported by various pieces of documentary evidence, as well as oral testimony adduced from members of her family as to their observations of the relationship, and the text message.
The defence case was that the sexual relationship commenced when the complainant was 21 years of age. The appellant gave evidence in his own defence and adduced evidence from various family members. In support of the appellant’s evidence, defence counsel tendered, and relied on, alibi evidence in the form of documents and photographs as to the appellant’s movements on 18 October 2003 and 16 November 2003 (the latter date referring to a specific alleged act of sexual intercourse with the complainant). Defence counsel also challenged the complainant’s credibility and reliability by emphasising various inconsistencies between her account and other evidence adduced on the prosecution case.
It is to be accepted, as submitted by the respondent, that the trial Judge’s reasons relating to each of the various bodies of evidence should not be viewed in isolation and must be considered in the broader context of his Honour’s reasons, generally, for rejecting the appellant’s evidence. In particular, his Honour made explicit findings as to the implausibility of the appellant’s account as to how the sexual relationship commenced and his evidence that their relationship was, in effect, an arranged marriage put upon him by her family. His Honour also noted that the appellant and his family members took every opportunity to disparage the complainant.
However, notwithstanding those matters, the five bodies of evidence individually, and in combination, were important parts of the defence case and, to varying degrees, capable of not only undermining the complainant’s credibility and reliability as a witness, but also providing material support for the appellant’s evidence. The trial Judge was required to expressly consider those matters and, in relation to the disputed documents and materials, make relevant findings as to their authenticity. He was required to bring his findings to account when assessing the evidence of both the complainant and the appellant, and when reaching his verdict.
For the reasons which follow, we have reached the conclusion that the trial Judge’s reasons were inadequate in that regard.
First, in relation to the conflict between the complainant’s evidence and the evidence of her brother, RS, as to where they watched movies, the trial Judge should have explicitly had regard to this inconsistency in the evidence as it related to where the complainant alleged some of the particularised unlawful sexual acts occurred. It was also an integral part of the complainant’s evidence as to the circumstances in which the sexual relationship began, and defence counsel understandably placed some emphasis on this conflict during submissions. Having said that, this matter alone would not have rendered the reasons inadequate, particularly bearing in mind that other aspects of RS’s evidence materially supported the complainant’s account as to the appellant’s opportunity to commit the alleged sexual acts.
Secondly, the trial Judge did not have regard to the investigating officer’s concession in cross-examination that it was possible that she had seen ‘digital evidence’ of photographs provided by the appellant to police. This was not an insignificant concession as the prosecution case (clearly put to the appellant in cross-examination and during the closing address) was that he had altered or concocted material to meet the prosecution case. It was important that his Honour explicitly had regard to that concession before reaching his adverse findings against the appellant on this topic. It was also directly relevant to his consideration of the alleged unlawful sexual act committed on 16 November 2003. However, again, this matter alone would not have rendered the reasons inadequate, particularly bearing in mind that it was also the defence case that the police were seeking information from him to disprove ‘lies’ told by the complainant, and it was open to the trial Judge to find this aspect of the evidence unlikely, irrespective of the concession.
Thirdly, as to the complainant’s attendance at the police station on 18 October 2003, and whether the appellant drove the complainant there to make false allegations against her father, the trial Judge did not adequately explain his reasons for rejecting the appellant’s evidence on this topic (as supported by the documents relating to his work roster). Nor did his Honour properly bring this evidence to account when considering the cogency of the complainant’s evidence.
It is true, as the trial Judge found, that the records only went so far as to establish that the appellant had been rostered to work on 18 October 2003. They did not confirm that he, in fact, completed the rostered shift. His Honour noted that the appellant did not produce payslips or other evidence that he worked that day, while also acknowledging that the appellant was at a forensic disadvantage in this respect. Notwithstanding those matters, unless the employer documents were concocted by the appellant (as expressly put to the appellant by the prosecutor, and denied by the appellant), they represented strong support for his evidence that he was at work at the relevant time, rather than driving the complainant to the police station to make false allegations against her father.
The trial Judge made no finding as to whether he accepted that the documents were genuine or, alternatively, concocted. In the absence of such a finding, the evidence was capable of materially undermining the complainant’s credibility and reliability on this topic notwithstanding the trial Judge’s observations as to its limitations. It rendered it less likely that the appellant drove the complainant to the police station as he was rostered to work at the relevant time. His Honour was also required to take into account the documents as material support for the appellant’s evidence on this topic, and more generally.

While it is to be accepted that this topic did not directly relate to the occurrence of an alleged sexual offence, it was an important aspect of the prosecution case as to the nature of their relationship and their growing intimacy during the charged period. The appellant’s evidence that he did not drive the complainant to the police station, as supported by his work records, was a significant part of the defence challenge to the prosecution case. For those reasons, we are satisfied that the trial Judge’s reasons in this regard were inadequate.
Fourthly, in relation to the complainant’s evidence as to her consultation with a general practitioner on 17 November 2003, for the morning after pill, following sexual intercourse with the appellant on the previous day, the trial Judge found that the documents relied on by the appellant to show he was in Marion Bay at the relevant times did not ‘cast reasonable doubt on the complainant’s evidence on this topic’.
There can be no doubt that the trial Judge was obliged to have regard to the various work documents and photographs tendered by the appellant which allegedly showed he was at Marion Bay on 16 November 2003. They were material support for his evidence that he did not have sexual intercourse with the complainant on that day. On the defence case, this material, in effect, constituted alibi evidence for one of the particularised acts of sexual intercourse. It was a significant and important part of the defence challenge to the complainant’s credibility.
In his reasons, the trial Judge referred to the tendered work documents noting that the appellant ‘produced what he describes as an employer’s log but which is in fact an exercise book in which he has written various shifts he was working at the time’. His Honour did not make any finding as to whether the document was genuine or concocted (as expressly put by the prosecutor to the appellant and denied). His Honour then referred to the prosecutor’s suggestion that the appellant placed the relevant date stamps on the photographs to prove their provenance; and said that the two photographs of the accused on the Marion Bay jetty are identical in every respect except the date stamps that are in slightly different positions. His Honour, without making any finding as to the authenticity of the materials, then concluded that they ‘do not … cast reasonable doubt on the complainant’s evidence’.
There were several difficulties with the trial Judge’s reasons in this regard. The photographs of the appellant at Marion Bay jetty[40] were not in fact identical and therefore, the different position of the date stamp in each photograph did not necessarily undermine their authenticity as suggested by the prosecutor and as alluded to by the trial Judge. To the extent that this factor influenced his Honour’s ultimate conclusion as to the force of the evidence, it was an error.
[40] Trial Exhibit D16; Trial Exhibit P25.
In addition, the trial Judge made no findings as to whether he, in fact, found the letter from his employer which confirmed he was rostered to take leave from 12 November 2003 to 19 November 2003 for a trip to Marion Bay, and the associated roster, was genuine or alternatively, concocted by the appellant and why that was so. It was insufficient to simply refer to the features of the evidence highlighted by the prosecutor as undermining their authenticity and probative value without reaching a finding in this regard.
If the trial Judge could not exclude as a reasonable possibility that the material was genuine, it directly supported the appellant’s evidence that he was in Marion Bay on 16 November 2003 and did not have sexual intercourse with the complainant. The appellant’s evidence on the topic, as supported by the material, had the capacity to directly undermine the complainant’s credibility as to an alleged incident of sexual intercourse, and her credibility and reliability more generally.
Conversely, if the trial Judge rejected the alibi material as reasonably possibly genuine (to the extent that the work records were concocted after the alleged offending to establish an alibi and the date stamps on the photographs were added by the appellant to photographs taken at another time), it had the capacity to significantly undermine the appellant’s credibility. However, it did not necessarily mean that the appellant was not telling the truth when he said he was at Marion Bay or when he denied having had sexual intercourse with the complainant on 16 November 2003.
Depending upon the findings made by the trial Judge, and the reasoning when reaching those findings, the use to be made of that evidence required careful analysis.
The importance of the alibi material in the context of this trial is plain. In those circumstances, the trial Judge was required to articulate whether he could exclude the authenticity of the alibi material and if so, the basis for doing so. If the trial Judge was not able to exclude that the documents were authentic, he was also required to explain the impact of any such finding on the complainant’s credibility and reliability as to the alleged act of sexual intercourse on 16 November 2003, and more generally. If the trial Judge had found that this material was concocted, it was also important that he give careful directions as to the use of that evidence. This was so as it had been expressly put to the appellant in cross-examination that he concocted the documents and altered the photographs to meet the prosecution case.
For those reasons, we are satisfied that the trial Judge’s reasons did not adequately explain his conclusion that the alibi material did not ‘cast any doubt on the complainant’s evidence on [that] topic’.
Fifthly, as to the appellant’s evidence that he did not have a queen size bed until the very end of the charged period, and the documents tendered to support this evidence,[41] the trial Judge did not refer to this evidence or material at all when assessing the credibility and reliability of the complainant’s evidence.
[41] Trial Exhibit D17.
The appellant’s evidence relating to his purchase of the queen size bed (as supported by the tendered receipts of purchase) was capable of undermining the complainant’s account as to various acts of anal sexual intercourse which allegedly took place in the appellant’s bedroom on a queen size bed. This was a matter upon which defence counsel placed some emphasis when challenging the complainant’s evidence.
While it is to be accepted that a finding that the complainant was mistaken about the size of the bed did not necessarily materially affect her credibility, this was nonetheless a matter which was closely connected to the reliability of her account as to one of the particularised types of sexual intercourse. In those circumstances, the trial Judge was required to bring this matter to account in his assessment of the complainant’s evidence and explain why the evidence did not affect his ultimate assessment of her credibility and reliability.
Similarly, the evidence relating to the appellant’s purchase of a laptop computer contradicted the complainant’s account that the appellant showed her pornography on a laptop before committing various sexual acts during the charged period. Again, this was a matter which defence counsel emphasised as undermining the complainant’s evidence. As to the respondent’s submission that the purchase receipt does not prove the appellant did not own a laptop prior to that time, and as such the evidence did not undermine the complainant’s account in a material way, this submission cannot be sustained on a close inspection of the materials. Attached to the receipt is a document dated 31 March 2003, which relates to the appellants request for a new mouse and refers to ‘newbie notebook owners’.
Again, the evidence relating to the date of purchase of the queen size bed and laptop contradicted important features of the complainant’s account and was capable of adversely affecting her credibility and reliability. There may well have been various explanations as to why the evidence did not in fact undermine the complainant’s account, but they needed to be the subject of analysis by the trial Judge. The failure by his Honour to bring this evidence to account in his assessment of the complainant’s evidence contributed to the provision of inadequate reasons.
It follows that we are satisfied the trial Judge failed to bring to account various aspects of the evidence called, or tendered, as part of the defence case when assessing the credibility and reliability of the complainant’s evidence. The cumulative effect was such that his Honour did not provide adequate reasons for accepting the complainant’s account and finding the offence proved beyond reasonable doubt. It follows that we uphold this ground of appeal.
Grounds 8: Unreasonable verdict
The appellant contends that it was not open to the trial Judge to find the appellant’s guilt proved beyond reasonable doubt, as the challenges to the credibility and reliability of the complainant amounted to a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’.[42]
[42] R v Shah [2007] SASC 68 at [4] (Doyle CJ).
In support of this contention, the appellant relies on the five bodies of evidence (raised and discussed under appeal Ground 5), as well as the following matters:
·there was no evidence that any witness observed any sexual activity between the appellant and the complainant during the charged period. In that regard, the photographs tendered and relied upon by the prosecution were equivocal;
·there was limited opportunity to offend given the likely proximity of other persons; and
·the agreed facts[43] confirmed that the appellant had longstanding medical conditions which adversely affected his sexual libido and sexual functioning making the allegations less likely.
[43] Trial Exhibit D30.
The appellant contends that upon an independent assessment of the whole of the evidence, and notwithstanding the advantages of the trial Judge in having seen and heard the witnesses, this Court should entertain a reasonable doubt as to the appellant’s guilt.
Consideration
When considering a complaint of an unreasonable verdict, the applicable test was outlined by the High Court in M v The Queen:[44]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted.)
[44] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).
The same approach applies when an appellate court is determining an unreasonable verdict ground following a trial by judge alone. As the High Court explained in Dansie v The Queen:[45]
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. …
[45] Dansie v The Queen (2022) 274 CLR 651 at [16]-[17] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
In the present case, the appellant has raised legitimate criticisms of the complainant’s evidence, and indeed of the prosecution case. However, upon our independent assessment of the whole of the evidence, we are satisfied that none of these criticisms, individually or cumulatively, present a ‘solid obstacle’ to a finding of guilt on the charged offence beyond reasonable doubt.[46]
[46] R v Shah [2007] SASC 68 at [4] (Doyle CJ).
This was a relationship of some complexity which, on the prosecution case, occurred over many years in a particular cultural context. This was a re-trial of events which occurred many years ago. It is to be expected that there will be inconsistencies in the evidence, and indeed in the complainant’s account. While the matters raised by the appellant at trial, and under this ground of appeal, are all legitimate matters which are capable of undermining the complainant’s account, we do not consider that any of these matters, individually or collectively, are such that it was not open to the trial Judge to accept the complainant’s evidence beyond reasonable doubt.
Moreover, there was independent support for material aspects of the complainant’s evidence including the following matters:
·the photographs and videos depicting the appellant and complainant which displayed a level of intimacy inconsistent with a purely platonic relationship as family friends;
·the evidence from the complainant’s brother that during the movie nights the appellant and the complainant would go alone into his bedroom ‘to do who knows what’; and
·the appellant’s text message to his brother in May 2016 stating that he had been in a relationship with the complainant for ‘13+ years’ (placing the commencement of their relationship at a time when the complainant was about 14 years of age).
Ultimately, upon an independent assessment of the whole of the evidence, having regard to all the appellant’s submissions and challenges to the credibility and reliability of the complainant’s evidence and as to the weaknesses in the prosecution case more generally, we are satisfied that it was open to the trial Judge to be satisfied beyond reasonable doubt of the appellant’s guilt. This was not a case where the trier of fact must, as distinct from might, have entertained a doubt of the appellant’s guilt.[47] We grant permission but dismiss this ground of appeal.
[47] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
Orders
1.    Permission to appeal is granted on Grounds 5 and 8.
2.    The appeal is allowed on Ground 5, but Ground 8 is dismissed.
3.    The conviction is quashed.
4.    The matter is remitted to the District Court for re-trial.