Hill v The King - [2022] SASCA 114

Supreme Court of South Australia
(Court of Appeal: Criminal)
HILL v THE KING
[2022] SASCA 114
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
3 November 2022
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 - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
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 jury, the appellant was convicted 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 alleged offending involved numerous unlawful sexual acts by the appellant touching the complainant on her vagina when she was between seven and nine years old. The appellant denied the offending in a police interview.
The appellant appeals against his conviction on four grounds. The appellant complains that the trial Judge erred; first, by not providing any or adequate reasons for rejecting the appellant’s denials and/or his version of events; second, by accepting that the unlawful sexual acts occurred on nine to 10 occasions; third, in failing to adequately address the issue of prior inconsistent statements made by the complainant; and fourth, in failing to provide adequate reasons for his verdict.
Held, per the Court, granting permission to appeal on all grounds but dismissing the appeal:
1.The trial Judge provided adequate reasons in rejecting the appellant’s denials and version of events.
2.There was no error by the trial Judge in making the impugned finding that the unlawful sexual acts occurred on nine to 10 occasions and, in the circumstances of this case, any alleged error in that regard did not result in a miscarriage of justice.
3.The trial Judge either expressly took each prior inconsistent statement into account or the inconsistency was peripheral and not of any material relevance. None of the inconsistencies, considered singly or in combination, were material to an assessment of the complainant’s credibility and reliability. That being so, a failure by the trial Judge to expressly address some of those matters did not result in a miscarriage of justice.

4. The reasons for verdict were not inadequate.
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 12AB, 13BA, referred to.
AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Henry v The Queen [2022] SASCA 60; Murray v The Queen (2002) 211 CLR 193; R v H, JH [2022] SADC 11; R v Keyte (2000) 78 SASR 68; R v M, DV (2019) 133 SASR 470; R v Mann (Question of Law Reserved on Acquittal (No 1 of 2000) (2020) 135 SASR 457; R v Schulz (2016) 126 SASR 476, considered.

HILL v THE KING
[2022] SASCA 114
Court of Appeal – Criminal: Lovell, Doyle and David JJA
THE COURT:

Following a trial without a jury, the appellant was convicted 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) (‘CLCA’).
The appellant appeals against his conviction on the following four grounds:
1.     The trial Judge erred in not providing any or adequate reasons for excluding the appellant’s denials and/or version of events beyond reasonable doubt;
2.     The trial Judge erred in accepting beyond reasonable doubt that the sexualised offending occurred on nine to 10 occasions when the evidence did not identify, substantiate or support that number of occasions;
3.     The trial Judge erred by failing to adequately address the issue of, and give appropriate weight to, the prior inconsistent statements raised during the trial; and
4.     The trial Judge erred by failing to provide adequate reasons for his verdict.
Permission to appeal was granted on Grounds 2 and 3. The question of permission to appeal with respect to Grounds 1 and 4 was referred to this Court for consideration.
Background
It was alleged that the appellant maintained an unlawful sexual relationship with the complainant (‘KF’) between 1 January 2019 and 15 January 2020, when she was between seven and nine years old. The offending involved two or more unlawful sexual acts, namely touching KF’s vagina. These acts were alleged to have occurred at her family home in Elizabeth Vale and on a single occasion at the appellant’s home in Salisbury East.
The appellant is the de facto partner of KF’s eldest sister (‘JS’).
KF made an initial complaint to her second eldest sister (‘RH’) on 15 January 2020. She participated in two prescribed interviews with police:[1] the first on 22 January 2020; and the second on 9 April 2020. Both interviews were tendered at trial.[2] KF also gave unsworn evidence at a pre-trial special hearing on 12 July 2021.[3]
[1] This evidence was admitted pursuant to s 13BA of the Evidence Act 1929 (SA).
[2] Trial Exhibit MFI P2; Trial Exhibit MFI P4.
[3] That hearing was convened pursuant to s 12AB of the Evidence Act 1929 (SA).
The prosecution called the complainant’s mother (‘NF’), stepfather, Mr Wayne Lindsay, RH and JS, to adduce evidence as to the various familial connections and the periods of contact between the families. There was also evidence led from RH as to the initial complaint.
Evidence of unlawful sexual acts
In her first prescribed interview, KF estimated there were about nine to 10 occasions the appellant had touched her, but she conceded it could have been more or less. She said it happened whenever the appellant and JS visited. She said the offending had been happening for a few months and it was ‘too long, too many times he’s done it’.[4] KF said the accused put his fingers down below and sometimes moved his fingers around. She said that sometimes, when he touched her, it hurt.
[4] Trial Exhibit MFI P2 at line 714.
In both her prescribed interviews, KF described specific occasions of the appellant touching her at various locations in her home, and, on one occasion, at the appellant’s home. In her second prescribed interview, KF elaborated in more detail about the specific occasions of touching she described in her first interview. Those occasions were as follows.
Bedroom incidents
In her prescribed interviews, KF said that there were three occasions when the appellant touched her in her bedroom. However, in cross-examination at the pre-trial special hearing, she said that there were two.
Bedroom incident – Hanging up clothes
In her first prescribed interview, KF described an occasion when the appellant touched her on the vagina in her bedroom when she was hanging up her clothes. She said the appellant came into her bedroom and said ‘stop for a minute I want to do it’.[5] She remained silent. He then reached down beneath her underwear and touched her ‘private part’.[6] He touched her ‘in the middle’ with his fingers.[7]
[5]     Trial Exhibit MFI P2 at line 296.
[6]     Trial Exhibit MFI P2 at line 320.
[7]     Trial Exhibit MFI P2 at line 330.
In her second prescribed interview, KF again described this same incident and said it occurred six months ago or more when the appellant and JS were visiting. At home was NF, Mr Lindsay, JS, KF’s younger sister (‘LL’), and the appellant’s son (‘KS’). She said the touching occurred when everyone was outside, at the front of the house. She said she was hanging her clothes in her cupboard when the appellant came into her bedroom and asked if he could wiggle his fingers down her private part. She stayed silent. She said he then closed the door and wiggled his fingers down her front private part for a couple of seconds. When everyone came inside, he stopped.
Bedroom incident – Cleaning out her bedroom
In her first prescribed interview, KF described another occasion of touching in her bedroom. She thought it happened when she was cleaning out her bedroom. She said the appellant came into her bedroom and asked if he could do it. She stayed silent. She said that he put his fingers on the outside of her vagina.
Bedroom incident – Playing in her bedroom
In her second prescribed interview, KF described an occasion of touching in her bedroom when she was playing and the appellant knocked on her door. She said he asked if he could put his finger below her front part. She kept silent. She said that he then closed the door, put his finger down below, and then started wiggling it on the outside. It lasted less than a minute.
Kitchen incident
In her first prescribed interview, KF gave a specific account of the appellant touching her in the kitchen. She said they were alone in the kitchen and everybody else was outside. She was standing near the sink when he came over and asked if he could ‘do it’.[8] He then touched her on the outside. She said that when everybody came inside, he stopped. She said she stayed silent when he did it.
[8] Trial Exhibit MFI P2 at line 658.
In her second prescribed interview, KF elaborated on the same incident of the appellant touching her in the kitchen. She said that it occurred around sunset. She said the appellant walked over to her and asked ‘can I do the thing?’[9] She did not say anything in response. He then put his finger down below on the front of her private part and wiggled it on the outside of her private part. The incident lasted less than a minute. KF said the appellant stopped touching her when the others came back inside.
Lounge room incidents
[9] Trial Exhibit MFI P4 at line 244.
KF described occasions of touching in the lounge room. She said that there were four or five occasions when the appellant sat next to her in the lounge room and touched her on the outside and the inside (of her clothing). In her first prescribed interview she was unable to provide specific detail about an occasion in the lounge room. In her second prescribed interview, KF provided detail about two specific incidents of touching in the lounge room.
Lounge room incident – Dinner
KF said there was an incident of touching when the appellant and JS were over for dinner. She said that it happened in the lounge room at night-time when everyone else was out the back of the house. She said the appellant, herself, and KS were in the lounge room at the time. She thought KS would have been two years old at that time.
Lounge room incident – Other
In her second prescribed interview, the complainant also described an occasion of touching in the lounge room on a sunny day. The appellant, JS and KS came over to her home about midday or 1:00pm. The appellant and KF were sitting next to each other and everyone else was outside. The appellant asked her, ‘can I put my finger below?’[10] KF did not say anything. The appellant then put his finger down the front of her private part and wiggled it. He stopped when the others came inside. She said that it was a brief incident, lasting less than a minute.
Incident at the appellant’s home
[10] Trial Exhibit MFI P4 at line 504.
KF also described an occasion of the appellant touching her at his home when she was there for a sleepover. She said the appellant came over to her and asked if he could put his fingers below. He then wiggled his fingers around on the outside of her private part. The complainant described the area where he touched her as the ‘curve part’.[11] She said it stopped when her older sister, JS, came into the room. She said that her, the appellant, JS and KS were at the house when it happened.
[11] Trial Exhibit MFI P4 at line 854.
The initial complaint
In the first prescribed interview, KF said the first person she told about the offending was her sister, RH. She thought this was one or two weeks before her first prescribed interview. The appellant told her ‘it’s our secret’.[12] KF said she told her sister because ‘I just couldn’t handle it anymore’ and ‘I had … to tell my sis, sister’.[13] In the second prescribed interview, KF confirmed that the first person to whom she disclosed the offending was her sister, RH, and then her stepfather.
[12] Trial Exhibit MFI P2 at line 864.
[13] Trial Exhibit MFI P2 at lines 864–6.
In relation to the initial complaint, RH said that on 15 January 2020 she was visiting her family at their home. During the evening she was in the bathroom putting KF’s hair up. They were alone. KF said to her, ‘I want to tell you something’.[14] She said KF looked scared. KF then said, ‘Jimmy put his hands down my pants’.[15] RH said she told KF that the appellant had done the same thing to her.
[14] Trial Transcript T119.21–5.
[15] Trial Transcript T119.6–12.
In cross-examination, RH denied that her mother had pressured her to make up allegations against the appellant in 2017 and that she had offered to buy her presents if she did. RH said that apart from her comment to KF that the appellant had done the same thing to her, she had not discussed with KF anything that the appellant had done to her of a sexual nature.
Mr Lindsay gave evidence that on 20 January 2020, he was at home and KF told him, ‘I hate Jimmy’ and then went on to say that he rubs her legs.[16] That conversation was not led by the prosecution as an elaboration of her initial complaint. Rather, it was adduced by defence counsel to prove a prior inconsistent statement by KF.
[16] Trial Transcript T161.26–162.23.
Other evidence as to opportunity
NF is the complainant’s mother. She has five daughters: JS, RH, KF, LL and EL. Mr Lindsay is the father of the two youngest daughters, LL and EL. NF has been in a relationship with Mr Lindsay for about four years.
NF said that the appellant and JS visited her home on a weekly basis throughout 2019, except for a three month period from August to October 2019, during which time she had no contact with the appellant and JS.
She said KF was present on the occasions when the appellant visited her home. NF also recalled KF going to visit the appellant and JS at their home in 2019. She said that there were occasions when KF stayed the night at the home of JS and the appellant.
NF agreed that RH previously alleged that the appellant had done something sexual to her. For that reason, NF was advised by police not to see the appellant or JS and did not see the appellant or JS from early 2017 until November 2018. After resuming contact in November 2018, she said she saw JS weekly. She said she resumed contact with the appellant towards the end of 2018. NF agreed that she had concerns about the appellant being around her daughters in 2019.
NF initially gave evidence that there was an occasion when the appellant was in KF’s bedroom alone with her, but later in cross-examination said that she thought JH may have been in the bedroom as well.
NF denied that she told KF to make up the allegations of a sexual nature against the appellant. She also denied asking her daughter, RH, to fabricate allegations of a sexual nature against the appellant. She agreed that she wished to have a son but denied that she was jealous of the fact JS had a son.
Mr Lindsay gave evidence of an occasion that the appellant (with JS and KS) came over to his house to help him unload a heavy glass table he had recently purchased. He said that during this visit, NF and JS went to the shops to buy some food and drinks. Whilst they were at the shops, Mr Lindsay was outside for a while doing some work alone. He said that when he walked back into the lounge room, he saw the appellant sitting on the couch with KF. Her legs were dangling between the appellant’s legs. The appellant’s hands were on her legs and KF was leaning her head into one of his shoulders. Mr Lindsay said he told KF to move to the other side of the lounge room and she did. He then went back outside to finish his work. When he returned to the lounge room again, KF was sitting in the same position as before, near the appellant.
Mr Lindsay also recalled an occasion in the 2019 October school holidays when KF spent the weekend at the appellant’s home.
Mr Lindsay could recall three or four times the appellant had come to their home in 2019. He said there could have been other occasions.
The prosecution also called evidence from JS, the appellant’s partner. JS said that from January to July 2019, she did not have any contact with her family. In about July 2019, she resumed visiting her mother and sisters at their home. From August 2019, the appellant accompanied her on an estimated 10 occasions. They generally stayed for an hour and a half to two hours at the home.
JS gave evidence about an occasion that she and the appellant went to her family’s home to assist in moving a glass table. She said she could not recall on this occasion leaving the house to go to the shops.
JS denied that there was ever an occasion when the appellant was in a room alone with KF. JS said there was no possibility that on the 10 or so occasions that they had visited her family that the appellant had been alone with KF. She said that every moment she was at her family’s house, KF was in front of her.
JS also recalled one occasion where KF stayed overnight with her and the appellant at their home. She said that occurred in October 2019. JS said the appellant’s daughter from a previous relationship was also staying overnight. JS did not allow for the possibility that the appellant was ever alone with KF during that sleepover.
In cross-examination, JS said that she was aware of previous sexual allegations made by RH against the appellant. She said she believed the allegations were false. For that reason, she agreed she was careful to keep the appellant in view whenever she was at her family’s house, so in the event of further false allegations, she could say they could not possibly have happened.
The appellant’s police interview
The appellant was interviewed by police on 1 February 2020. In that interview, he admitted that he had contact with KF over the alleged period, but denied the sexual allegations put to him.
The appellant admitted to going to KF’s home with his partner and their son, KS, ‘once a week if that’ and said that they would stay for, at most, two hours.[17] He admitted to direct contact with KF at the house. The appellant described KF as his ‘little sister’.[18] When asked if he was ever alone with KF, he responded ‘[no], never at all, absolutely never’.[19] He said that he had always been in view of everybody. He said ‘I never stay in one spot for too long with, while I am by myself at … that house’ and ‘I’ve never been alone out of view of anybody’.[20]
[17] Trial Exhibit MFI P18 at line 102.
[18] Trial Exhibit MFI P18 at lines 134–6.
[19] Trial Exhibit MFI P18 at line 151.
[20] Trial Exhibit MFI P18 at lines 343–5, 377.
During the course of the interview, the appellant said ‘why the hell would I touch [KF] yet I have my daughter every second weekend and for every on and off week over the holidays and not touch her?’[21]
[21] Trial Exhibit MFI P18 at line 261.
The appellant did not give evidence at trial, nor was any evidence called on his behalf.
The trial Judge’s reasons for verdict
In his reasons for verdict, the trial Judge set out the elements of the offence, outlined some general directions, the evidence adduced during the trial, and the submissions of counsel (both oral and written). His Honour then proceeded to analyse the issues in the trial and reached his factual and legal conclusions from that analysis.

The trial Judge noted that the main issue in dispute at trial was whether the appellant had engaged in two or more unlawful sexual acts with KF. During his closing address, defence counsel also raised an issue as to whether the prosecution had proved the appellant knowingly maintained a relationship with her. It was agreed that at all relevant times KF was a child and the appellant was an adult.
The trial Judge correctly noted the defence case was found in the appellant’s plea of not guilty, his police interview, and in the matters raised by defence counsel at trial. His Honour considered that the defence case was that the unlawful sexual acts did not occur. His Honour outlined defence counsel’s closing submissions that: first, there was insufficient evidence to prove there was any kind of relationship between the appellant and KF; second, that there were inconsistencies in the evidence of KF that should cause the Court to have a reasonable doubt; and third, that in light of the evidence of JS, there was no opportunity for the appellant to have committed the alleged unlawful sexual acts.
His Honour accepted the evidence of KF and RH as to the circumstances and content of the complaint but, because of its brevity, did not regard the evidence ‘as providing any additional probative weight on the basis of “consistency”’.[22] The trial Judge rejected the purported motive for KF to fabricate the allegations.
[22] R v H, JH [2022] SADC 11 at [113] per Stretton DCJ.
In relation to the evidence of JS as to opportunity for the appellant to commit the offence, the trial Judge considered that her evidence was unconvincing, and found she was aligned with the appellant and lacked independence. In his Honour’s words, ‘she demonstrated palpable antipathy towards the complainant’s mother, and promulgated the baseless suggestion, in her words an ‘impression’, that her mother was jealous she had a boy’.[23] The trial Judge also noted that:[24]
[S]he is the accused’s partner, committed to him, and has two young children with him. In those circumstances there is an obvious motive for her to see things the accused’s way, view history in a light favourable to him, and see the facts more absolutely in his favour’.
[23] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
[24] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
The trial Judge found KF to be ‘an honest and reliable witness whose evidence was truthful and accurate and should be accepted beyond reasonable doubt’.[25] As to her evidence, the trial Judge concluded:[26]
After the closest of scrutiny, at the end of the day, the complainant’s evidence at trial by way of her prescribed interviews and special pre-trial hearing was convincing. In particular, her in court unsworn evidence was serious, careful, moderate, and thoughtful. Whilst the court bears in mind the accused’s denials, and all the matters raised, tendered and submitted by the defence, the court finds that the complainant was an honest and reliable witness whose evidential material was truthful and accurate and should be accepted beyond reasonable doubt.
[25] R v H, JH [2022] SADC 11 at [117] per Stretton DCJ.
[26] R v H, JH [2022] SADC 11 at [117] per Stretton DCJ.
His Honour was satisfied beyond reasonable doubt that the appellant had an ongoing familial relationship with KF; and that on nine to 10 occasions, he deliberately and intentionally touched KF on her vagina with one or more fingers. His Honour found that the touching constituted an indecent assault on each occasion and thus an ‘unlawful sexual act’. As mentioned earlier, there was no dispute that at the relevant times, the appellant was an adult and KF a child. Accordingly, the trial Judge found the appellant guilty of the offence.
Ground 1 – Inadequate reasons for rejecting the appellant’s denials
The appellant complains that the trial Judge erred by not providing any, or adequate, reasons for excluding his denials and/or version of events beyond reasonable doubt.
As outlined earlier, the appellant participated in a record of interview with police on 1 February 2020. In his reasons for verdict, the trial Judge summarised the record of interview as follows:[27]
The accused answered all questions put to him and denied that he had sexually or inappropriately touched the complainant at any time. He agreed that he would see the complainant when he and the complainant’s eldest sister would visit the complainant and her family but repeated his denials, categorising the allegations as ‘bullshit’. The accused indicated he thought of the complainant as his own little sister and was ‘absolutely at a loss of why they would do this shit again – especially with (the complainant). Done nothing wrong by her at all’. He said there were never any times he would be alone with the complainant. When taken through the specific allegations he categorised them as ‘absolute bullshit’.
The accused advanced the argument ‘why the hell would I touch (the complainant) yet I have my daughter every second weekend and for every on and off week over the holidays and not touch her?’. He said that even if the complainant came up to him for a cuddle on the couch, he would move her to the side and never had any sort of physical, sexual contact with her whatever [sic]. He suggested that the complainant’s mother was jealous because he and the complainant’s eldest sister were happy, he had a full-time job and they had a son which the complainant’s mother had been trying to have for years and observed that every time the complainant’s mother had a girl she would form a relationship with someone different and try and have a boy. The accused told police he had never been in the complainant’s bedroom. It is fair to categorise the accused’s demeanour throughout the interview as angry, verging on aggressive.
(citations omitted)
[27] R v H, JH [2022] SADC 11 at [94]–[95] per Stretton DCJ.
The trial Judge went on to say:[28]
The accused in his record of interview angrily and vehemently rejected the allegations put to him and maintained his innocence. The court has regard to his categoric denials, and indeed all the matters raised in his record of interview. The argument he proffered to police to the effect of why would he offend against the complainant when, in effect, he had access to his own daughter was however a somewhat unsettling and discordant element.
[28] R v H, JH [2022] SADC 11 at [110] per Stretton DCJ.
The appellant contends that the trial Judge articulated no proper basis for the rejection of his denials, save for a comment that he found the appellant’s argument to the effect of why he would offend against KF when he had access to his own daughter ‘a somewhat unsettling and discordant element’.[29]
[29] R v H, JH [2022] SADC 11 at [110] per Stretton DCJ.
The appellant also submits that the trial Judge did not adequately deal with his primary contention that he was never alone with KF for any of the offending to have occurred. He submits that the trial Judge, when considering the record of interview, only referred to the demeanour of the appellant, which he described as ‘angry, verging on aggressive’.[30] The trial Judge did not explain whether the appellant’s demeanour enhanced or detracted from his credibility.
[30] R v H, JH [2022] SADC 11 at [95] per Stretton DCJ.
The appellant contends that the trial Judge rejected the appellant’s denials solely on the basis of a finding that KF was an honest and reliable witness and more was required to safely reject the appellant’s denials.
In support of this ground of appeal, the appellant primarily relies on the authorities of Murray v The Queen (‘Murray’)[31] and Douglass v The Queen (‘Douglass’).[32]
[31] (2002) 211 CLR 193.
[32] (2012) 86 ALJR 1086.
In Murray, the appellant was convicted of murder. At trial, he admitted to having pointed the gun at the deceased with the intention of frightening him but denied having intentionally pulled the trigger. The defence case was that the discharge of the firearm was accidental. The trial judge outlined the prosecution and defence cases and instructed the jury that they had to decide which versions of those events they accepted. The High Court held that the trial judge had erred in her instructions; the issue for the jury was not whether it should accept the accused person’s version of events, but whether the prosecution had negatived it as a reasonable possibility. That is, the relevant question was whether the prosecution has proved the elements of the offence beyond reasonable doubt.
As Gummow and Hayne JJ (as part of the majority) said:[33]
Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
(emphasis in original)
[33] Murray v The Queen (2002) 211 CLR 193 at [57].
In Douglass, in upholding the appeal, the High Court specifically approved the abovementioned passage in Murray. The Court held that the resolution of a criminal trial does not depend on whether the evidence of one witness is to be preferred to another; rather, it depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The Court explained that the trial Judge’s acceptance of the complainant as a truthful witness was not inconsistent with a reasonable doubt as to guilt. The Court said:[34]
To dismiss the appellant’s complaint respecting the sufficiency of the reasons on the footing that the judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.
(citation omitted)
[34] Douglass v The Queen (2012) 86 ALJR 1086 at [13].
The Court held that in the absence of adequate reasons, in particular the failure to record any finding in relation to the accused’s evidence, there remained the possibility that the trial Judge simply preferred the evidence of the complainant to the appellant and proceeded to a finding of guilt applying a standard less than proof beyond reasonable doubt.[35]
[35] Douglass v The Queen (2012) 86 ALJR 1086 at [14].
Thus, the High Court in Murray and Douglass made clear that the ultimate issue for determination by the trier of fact is not whether the accused’s evidence is to be accepted or preferred to the evidence of the prosecution witnesses; it is whether, notwithstanding the accused’s evidence, the prosecution has proved its case beyond reasonable doubt.
In this matter, the appellant contends that the trial Judge did not expressly reject his denials and version of events (as provided in his police interview) as a reasonable possibility, and in failing to do so, there remains the possibility that the trial Judge fell into error by simply preferring the evidence of KF to the appellant’s version given in his record of interview.
We do not accept that contention.
In his reasons, the trial Judge was required to identify and assess the issues that were in dispute. At trial there were two issues: the first, whether a relationship existed between the appellant and KF; and the second, whether the appellant committed two or more unlawful sexual acts against KF in the manner alleged. The trial Judge was then required to assess whether, considering the entirety of the evidence, including the appellant’s denials and version of events as provided in his police interview and defence counsel’s submissions more broadly, the prosecution had proved each of the elements of the offence beyond reasonable doubt.
In his reasons for verdict, the trial Judge summarised what the appellant said to police about the allegations. His Honour noted the following matters:
·The appellant answered all questions that were put to him and denied that he had sexually or inappropriately touched the complainant at any time;[36]
·That when the specific allegations were put to the appellant by police, he categorised them as ‘absolute bullshit’;[37]
·The appellant’s statements that there was never a time where he was alone with KF and that he had never been in her bedroom;[38]
·That the appellant told police that even if KF did approach him while he was sitting on the couch ‘for a cuddle’, he would move her to the side. He said he never had any sort of physical or sexual contact with her;^[39]and
·The alleged motive for KF to lie, namely ‘that the complainant’s mother was jealous because he and the complainant’s eldest sister were happy, he had a full-time job and they had a son which the complainant’s mother had been trying to have for years’.[40]
[36] R v H, JH [2022] SADC 11 at [94] per Stretton DCJ.
[37] R v H, JH [2022] SADC 11 at [94] per Stretton DCJ.
[38] R v H, JH [2022] SADC 11 at [94]–[95] per Stretton DCJ.
[39] R v H, JH [2022] SADC 11 at [95] per Stretton DCJ.
[40] R v H, JH [2022] SADC 11 at [95] per Stretton DCJ.
The trial Judge also stated that he had had ‘regard to [the appellant’s] categoric denials, and indeed all the matters raised in his record of interview’.[41]
[41] R v H, JH [2022] SADC 11 at [110] per Stretton DCJ.
While the trial Judge did not explicitly state that he rejected the appellant’s version of events and denials as a reasonable possibility, when his reasons are read as a whole, it is plain that the trial Judge did in fact do so. In relation to the appellant’s opportunity to commit the offence, the trial Judge was critical of the evidence of JS that the appellant was never alone with KF. He described it as ‘unconvincingly absolute’.[42] In his reasons, the trial Judge also expressly rejected the motive put forward by the appellant in his police interview for KF to lie.
[42] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
Apart from the appellant’s explanations as to his lack of opportunity to commit the offence and a likely motive for KF to fabricate the allegations, his version of events, in effect, constituted a blanket denial of the offending. It is difficult to envisage what further reasons the trial Judge could provide in rejecting those denials.
This was also not a case where the trial Judge juxtaposed the evidence of KF with the appellant’s version and then preferred one to the other. When analysing the prosecution case, the trial Judge indicated that the Court had ‘scrutinised the complainant’s evidence with particular care, given the complainant’s young age, that the evidence was not on oath, that the prosecution is entirely dependent on it, and that its content is vigorously disputed by the defence’.[43] The trial Judge gave reasons for why he found KF to be a credible and reliable witness and why he had rejected the motive for her to have made up the allegations, as raised by the appellant in his record of interview.
[43] R v H, JH [2022] SADC 11 at [103] per Stretton DCJ.
In reaching a finding of guilt, the trial Judge also referred to the appellant’s denials and ‘all the matters raised, tendered and submitted by the defence’ and then found that KF was an ‘honest and reliable witness whose evidential material was truthful and accurate and should be accepted beyond reasonable doubt’.[44] His Honour expressly referred to the appellant’s version of events before finding the offence proved beyond reasonable doubt.
[44] R v H, JH [2022] SADC 11 at [117] per Stretton DCJ.
It is readily apparent from the trial Judge’s reasons that he did not reason in the manner denounced in Murray and Douglass; that is, by preferring the evidence of KF to the appellant’s account, and on that basis, proceeding to a finding that the offence was proved beyond reasonable doubt.
As Vanstone J explained in R v Schulz (‘Schulz’) (in the context of a complaint as to directions given in a jury trial), it is erroneous for a trial judge to leave to the jury a dichotomy of either accepting or rejecting an accused’s evidence.[45] The jury needs to be instructed that an acceptance of an accused person’s evidence is not essential to a not guilty verdict.[46] In Schulz, the Court of Criminal Appeal (the ‘CCA’) held the directions were erroneous because they had the effect of ‘obliging the appellant to satisfy the jury that his evidence should be accepted as a prerequisite to using it at all’.[47]Justice Vanstone considered that the High Court in Murray and Douglass provided trial judges with ‘strong advice’ to avoid discussing an accused person’s evidence in terms of acceptance of it.[48] Her Honour explained:[49]
Much depends on the structure of the summing up and the way in which the judge discusses the defence case. If there is a reference to the possibility of “accepting” the defence evidence, then plainly the full spectrum of other possibilities must be put as well. However, it would appear to be a better course to simply direct the jury to consider the defence evidence, direct them as to proof of which element is put in issue by it, and instruct them that the question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved.
[45] (2016) 126 SASR 476 at [32] (with whom Blue J and Lovell J agreed).
[46] R v Schulz (2016) 126 SASR 476 at [30] per Vanstone J (with whom Blue J and Lovell J agreed).
[47] (2016) 126 SASR 476 at [32] (with whom Blue J and Lovell J agreed).
[48] R v Schulz (2016) 126 SASR 476 at [35] (with whom Blue J and Lovell J agreed).
[49] R v Schulz (2016) 126 SASR 476 at [35] (with whom Blue J and Lovell J agreed).
In the present matter, and in accordance with the ‘strong advice’ articulated in Schulz, we are satisfied that the trial Judge had regard to the appellant’s denials and version of events (as provided in his police interview) on the primary issue of whether he had committed the alleged unlawful sexual acts. His Honour then proceeded to conclude on the whole of the evidence, including his finding that KF was a credible and reliable witness, and notwithstanding the appellant’s denials, that he was guilty of the offence beyond reasonable doubt.
We are satisfied that the trial Judge provided adequate reasons in rejecting the appellant’s denials and version of events as a reasonable possibility. The trial Judge did not simply proceed to convict the appellant on the basis that he preferred the evidence of KF to the appellant’s version of events.
We dismiss this ground of appeal.
Ground 2 – The trial Judge erred in finding that the sexual offending occurred on nine to 10 occasions
The appellant contends that the trial Judge erred by accepting beyond reasonable doubt that the appellant committed unlawful sexual acts on KF on nine to 10 occasions, when the evidence did not ‘identify, substantiate or support’ that number of occasions beyond reasonable doubt.
At trial, the prosecution case was that the appellant had touched the outside of KF’s vagina on six to seven specific occasions, as disclosed in her two prescribed interviews and evidence during the pre-trial special hearing.
The appellant contends that the trial Judge was required to identify the unlawful sexual acts constituting the actus reus of the offence. As such, the appellant submits that it was ‘simply impossible’,[50] based on the state of the evidence, for the trial Judge to have been satisfied beyond reasonable doubt that the appellant touched KF on the vagina on nine to 10 occasions.
[50] Appellant’s Summary of Argument at [2.5].

KF gave evidence of six or seven specific incidents of touching, which on the prosecution case, constituted the unlawful sexual acts. Most of those alleged acts of touching occurred on what KF described as the ‘outside’ of her private part. There was reference to one of the occasions of touching having occurred on the ‘inside’. The prosecution alleged that each act of touching constituted an indecent assault.
KF gave evidence in some detail of specific incidents which allegedly occurred at the appellant’s home and at her home in her bedroom, kitchen, and lounge room. Whilst KF gave evidence of two specific occasions during which the appellant touched her vagina in her lounge room, she said that it occurred in total on four or five occasions. However, she was simply unable to recount the detail of all of the touching in the lounge room. Therefore, it was not KF’s evidence that the incidents of touching were limited to only six or seven occasions.
The trial Judge, in finding that the appellant committed nine to 10 unlawful sexual acts on KF, relied upon her evidence. His Honour accepted KF as a credible and reliable witness and as having given a truthful account. However, as submitted by the respondent, there was other evidence, independent of that of KF, which supported her account as to the number of occasions for which there was opportunity for the appellant to commit those acts.
In her first prescribed interview, KF estimated that the appellant touched her on the vagina ‘nine or 10 times’.[51] She said that it occurred whenever the appellant and JS visited. She also said that it could have occurred more or less than nine or 10 times. In her second prescribed interview in April 2020, KF said the offending began about six months earlier, that being in about October 2019. KF confirmed that the appellant would touch her on the vagina every time he visited her home, until she disclosed the offending.
[51] Trial Exhibit MFI P2 at line 364.
JS gave evidence that she and the appellant visited her family at their home on a maximum of 10 occasions from August 2019 to January 2020. NF gave evidence that JS and the appellant visited weekly after November 2018.
The trial Judge, in finding that the appellant touched KF on the vagina on nine to 10 occasions, relied on more than KF’s assertions to that effect. It is apparent from the whole of the reasons that his Honour had regard to KF’s evidence that the touching occurred on every visit by the appellant to her home, as well as the evidence of JS and NF as to the regular nature of those visits, in reaching a conclusion that the appellant committed unlawful sexual acts on nine to 10 occasions.
We are satisfied that on the evidence of KF, and the evidence of NF and JS in relation to the regularity of the appellant’s visits, the trial Judge was not in error making the impugned finding.
Further, to prove the charged offence, the trial Judge only needed to be satisfied beyond reasonable doubt that the appellant had committed an unlawful sexual act against KF on two or more occasions during the charged period (along with the other elements of the offence). As set out earlier, KF recounted in some detail six or seven separate occasions on which the appellant touched her on the vagina. Notwithstanding our view that it was open for the trial Judge to find that the appellant touched KF on the vagina on nine to 10 occasions, in any event, KF gave a detailed account of two or more separate occasions on which the appellant committed an unlawful sexual act, sufficient to satisfy this element of the offence. There was no error by the trial Judge in making the impugned finding and, in the circumstances of this case, any alleged error in that regard did not result in a miscarriage of justice.
Ground 3 – The trial Judge erred by failing to adequately address, and give appropriate weight to, prior inconsistent statements raised during the trial
This ground of appeal is directed towards the trial Judge’s alleged failure to address, and give appropriate weight to, the purported inconsistencies of KF. A complaint as to the inadequacy of his reasons in that regard also form part of Appeal Ground 4.
The appellant contends that the trial Judge failed to properly consider prior inconsistent statements made by KF when assessing her credibility. The appellant emphasised that the prosecution case rested almost entirely on the evidence of KF and that her credibility and reliability was of the utmost importance in proof of the offence. The relevant prior inconsistent statements and inconsistencies by KF raised at trial and on this appeal are as follows:
1.     In her prescribed interviews, KF said there were three incidents of touching in her bedroom. During cross-examination in the pre‑trial special hearing, KF said there were only two occasions of touching in her bedroom.
2.     In relation to the first incident in the bedroom, KF allegedly gave different versions in her prescribed interviews as to what the appellant said to her. In her first interview, KF said the appellant told her ‘stop for a minute’,[52] then ‘stop for a minute and I do the thing’,[53] and lastly, she said the appellant said, ‘can I do the thing’.[54] In her second interview, KF said that upon entering her bedroom, the appellant said ‘can I do it’[55] and ‘am I allowed to wiggle my fingers down your private part’.[56]
3.      In relation to the second incident of touching in the lounge room, which occurred during the day, KF said she was sitting next to the appellant on the couch at the time he touched her.[57] Later, she said she was not sitting on the couch next to the appellant before he touched her.[58]
4.      Mr Lindsay said that KF told him that the appellant had rubbed her legs. That assertion did not form part of the account given by KF during the prescribed interviews or the pre-trial special hearing. Rather, evidence was adduced from the investigating officer, Brevet Sergeant Trent Turnbull, that he took a statement from KF on that topic. Brevet Sergeant Turnbull asked KF: ‘Do you remember when you were with Wayne, ripping up cardboard out the back of your house?’ She responded ‘yes’. Brevet Sergeant Turnbull asked: ‘And on that occasion did you tell Wayne what Jimmy had done to you?’ KF said ‘yes’. Brevet Sergeant Turnbull then asked: ‘Do you remember exactly what you had told Wayne what Jimmy had done to you?’ KF answered ‘no’.[59]
Defence counsel relied upon the inconsistency between Mr Lindsay’s evidence as to KF’s assertion that the appellant had rubbed her legs and her initial complaint to RH. It was also submitted that her statement to Mr Lindsay that the appellant had rubbed her legs was different from her allegations of touching in the prescribed interviews, such as to undermine her credibility and reliability. It is to be noted that the alleged statement by KF was never put directly by Brevet Sergeant Turnbull to KF when taking her statement.
5.     As to the incident which allegedly occurred during a sleepover at the appellant’s home, KF said that it only occurred a few months before the second interview on 9 April 2020,[60] that is, assumedly at a time after KF had disclosed the offending. KF said that on this occasion, when the appellant touched her on the vagina, only the appellant, JS, and their son, KS, were present.[61] Defence counsel submitted to the trial Judge that the preponderance of evidence was that the appellant’s child (with another partner), KH, was present at the sleepover. To that end, JS gave evidence that KF had a sleepover on one occasion only and that KH was present.[62] NF recalled KF staying at the appellant and JS’ house in 2019 with both children, KH and KS. She said KF liked seeing KH.[63]
Defence counsel submitted to the trial Judge that the inconsistency was relevant to both a lack of opportunity to commit the offence and to the reliability and credibility of KF.
[52] Trial Exhibit MFI P2 at line 288.
[53] Trial Exhibit MFI P2 at lines 296–8.
[54] Trial Exhibit MFI P2 at line 432.
[55] Trial Exhibit MFI P4 at line 72.
[56] Trial Exhibit MFI P4 at line 942.
[57] Trial Exhibit MFI P4 at line 502.
[58] Trial Exhibit MFI P4 at line 996.
[59] Trial Transcript T243.37–244.7.
[60] Trial Exhibit MFI P4 at line 812.
[61] Trial Exhibit MFI P4 at lines 824–30.
[62] Trial Transcript T215.20–5.
[63] Trial Transcript T53.16–54.6.
In relation to all of the alleged inconsistencies, we are satisfied that the trial Judge either expressly took them into account or they were peripheral and not of any material relevance.
It is apparent from the trial Judge’s reasons that there is no express reference to KF’s prior inconsistent statements in relation to the first incident of touching in her bedroom and the second incident of touching in the lounge room (numbered 1, 2 and 3). Rather, the trial Judge simply concluded that there was no material inconsistency in the evidence of KF, without specific reference in his reasons to those purported inconsistencies.
In his assessment of KF as a witness, his Honour said:[64]
A close analysis of the content of the interviews and the pre-trial evidence discloses no material inconsistency as to the amount of contact between the families, and the number of, and central facts of, each of the events that she could specifically recall and describe.
[64] R v H, JH [2022] SADC 11 at [105] per Stretton DCJ.
His Honour went on to say:[65]
The overwhelming impression given was of a young but intelligent and serious child, honestly describing what happened to her. She appeared to think carefully before answering the serious questions asked to her, particularly when being asked to think back and remember and describe particular events, and then appeared careful to answer only to the extent her memory permitted.
[65] R v H, JH [2022] SADC 11 at [105] per Stretton DCJ.
As set out earlier, the trial Judge ultimately found KF to be an honest and reliable witness.
In his reasons for verdict, the trial Judge also referred to defence counsel’s argument that[66]
there were overt problems of inconsistency in the complainant’s evidence that should cause the court not to accept it, and even at its highest, by virtue of significant shortcomings in the complainant’s statements and pre-trial evidence, that evidence should not satisfy the court.
[66] R v H, JH [2022] SADC 11 at [101] per Stretton DCJ.
It may be accepted that the trial Judge did not expressly address all the inconsistencies in the evidence of KF before concluding that there was no material inconsistency. However, in the circumstances of this case, we are satisfied he was not required to do so. The purported inconsistencies were of limited weight and significance (although not irrelevant) in assessing the credibility and reliability of KF. They related to either peripheral matters, or were readily explicable, bearing in mind that KF was a child aged nine when she gave her interviews and 10 when she gave evidence, involving allegations that were largely similar in nature. The offending occurred over a period of four months, a not insignificant period of time for a child of that age. When considering the second alleged inconsistency in relation to the differences in her accounts as to what the appellant said to her before touching her for the first time in her bedroom, bearing in mind KF’s young age, those differences are limited and verging on the semantic.
Further, contrary to the appellant’s submissions, the trial Judge did expressly consider some of KF’s prior inconsistent statements.
In relation to inconsistency (4), namely KF’s purported statement to Mr Lindsay that the appellant rubbed her legs, the trial Judge expressly rejected the evidence of Mr Lindsay on that topic in the context of considering the cogency of the initial complaint. His Honour said:[67]
Whilst the complainant’s stepfather was an honest witness, and was trying to accurately recall matters, he was not reliable as to detail and where his evidence is at any variance with the complainant or her sister [RH] as to how events or matters surrounding the circumstances of the complaint occurred or were described to him by them, I discount what he says and do not regard it as affecting the veracity and reliability of the complaint evidence from the complainant and her elder sister.
[67] R v H, JH [2022] SADC 11 at [111] per Stretton DCJ.
The trial Judge also found that the evidence of Mr Lindsay was generally unreliable as to matters such as the detailed content of conversations. His Honour said:[68]
He gave the overwhelming impression of an honest witness, reliable as to primary matters, but with a poor and hence unreliable memory for dates, detail, sequence, and the content of conversations beyond the rough gist of what the conversation may have been about.
[68] R v H, JH [2022] SADC 11 at [107] per Stretton DCJ.
It is plain from the trial Judge’s reasons that he rejected the evidence of Mr Lindsay that KF had told him the appellant rubbed her legs. Bearing in mind that the specific statement was never directly put to KF by Brevet Sergeant Turnbull and given the trial Judge’s assessment of the evidence of Mr Lindsay more generally as unreliable, there is no error by the trial Judge in rejecting his evidence on this topic.
In relation to inconsistency (5), that is the divergence between the evidence of KF and JS as to whether the appellant’s daughter, KH, was present during the sleepover, the trial Judge referred to the evidence of JS that the appellant was never alone with KF during the sleepover. His Honour noted JS’s explanation that ‘they tried to spend as much family time as they could because that was their weekend for access with “another child”’.[69] Presumably, that child was the appellant’s daughter, KH. His Honour later referred to the evidence of JS as ‘unconvincingly absolute’.[70]
[69] R v H, JH [2022] SADC 11 at [87] per Stretton DCJ (emphasis added).
[70] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
On a consideration of the trial Judge’s reasons as a whole, we are satisfied that he rejected the evidence of JS that there was not a sleepover where KH was not present. Again, there was no error by the trial Judge in doing so, in light of JS’s relationship with the appellant and his observations as to her refusal to make any reasonable concessions in her evidence.
We are satisfied that the trial Judge either expressly took each prior inconsistent statement by KF into account or it was peripheral and not of any material relevance. None of the inconsistencies, considered singly or in combination, were material to an assessment of KF’s credibility and reliability. That being so, a failure by the trial Judge to expressly address those matters did not result in a miscarriage of justice. The trial Judge had regard to the inconsistencies of any significance in accepting KF as a credible and reliable witness.
For those reasons, we dismiss this ground of appeal.
Ground 4 – Inadequate reasons for the trial Judge’s verdict
The appellant complains that the trial Judge did not provide adequate reasons for his verdict. The appellant contends that the inadequacy of the reasons lay in first, the trial Judge’s failure to identify which of the two or more alleged unlawful sexual acts were found proved; and second, the failure to adequately address or resolve a number of defence counsel’s criticisms of KF’s evidence.
It is well-established that there is an obligation on a judge to give reasons for a decision which has the same effect as the verdict of a jury and a failure to do so is an error of law. The reasons for this obligation were explained by Doyle CJ in R v Keyte.[71] One of those reasons is so an appellate court can properly discharge its statutory function on an appeal from a decision.[72]
[71] (2000) 78 SASR 68 per Doyle CJ (with whom Wicks J agreed).
[72] Douglass v The Queen (2012) 86 ALJR 1086 at [14]; DL v The Queen (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ; R v Keyte (2000) 78 SASR 68 at [38] per Doyle CJ (with whom Wicks J agreed).
The adequacy of reasons will depend on the nature and detail of the contested issues that arise in the case. The extent of the reasons will depend on the evidence heard and the way in which the trial was conducted. As the High Court said in

DL v The Queen
(‘DL’):[73]
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.
(citations omitted)
[73] (2018) 266 CLR 1 at [33] per Kiefel CJ, Keane and Edelman JJ.
In DL, the High Court approved the following summary of what is required for adequate reasons, as outlined in AK v Western Australia:[74]
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.
(citation omitted)
[74] (2018) 266 CLR 1 at [33] per Kiefel CJ, Keane and Edelman JJ quoting AK v Western Australia (2008) 232 CLR 438 at [85] per Heydon J.
In the present matter, in applying those general principles, it is necessary for this Court to first consider the way the defence case was put at trial. As outlined earlier, the central issue in dispute was whether the prosecution had proved that the appellant had committed two or more unlawful sexual acts, namely two or more acts of indecent assault particularised as the appellant touching KF on her vagina. There was also a submission that the prosecution had not established that the appellant had knowingly maintained a relationship with KF. There was no dispute as to the other legal elements of the offence.
The prosecution case relied almost entirely on the evidence of KF, as given in her prescribed interviews and at a pre-trial special hearing.
The appellant did not give evidence nor call any evidence at trial. The defence position was found in the appellant’s not guilty plea, record of interview, and submissions put by defence counsel on his behalf. In submitting that the prosecution had not proved their case, defence counsel focused on matters allegedly undermining the credibility and reliability of KF. This included the implausibility of her account, prior inconsistent statements by KF, her motive to lie (and that of her mother), and the lack of opportunity for the appellant to have been alone with KF to commit the unlawful sexual acts.
As to the first contention, the appellant submits that the reasons for verdict are inadequate as they do not precisely identify which two or more of the unlawful sexual acts ‘constituted the offence’. During the appeal hearing, it became apparent that the appellant contends that there was a qualitative difference in respect of the specified unlawful sexual acts about which KF gave a more detailed account and the unspecified occasions, and in those circumstances, the trial Judge has not adequately identified the actus reus of the offence.

The proper construction of s 50 of the CLCA is relatively settled following the decisions of the CCA in R v M, DV and R v Mann.[75]
[75] Henry v The Queen [2022] SASCA 60 at [87] per Doyle JA (with whom David JA agreed) citing R v M, DV (2019) 133 SASR 470 and R v Mann (Question of Law Reserved on Acquittal (No 1 of 2020)) (2020) 135 SASR 457.
Pursuant to s 50(1) of the CLCA, an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The trier of fact must be satisfied that the evidence establishes that an unlawful sexual relationship existed.[76] An unlawful sexual relationship is defined to mean ‘a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period’.[77] For present purposes, it is sufficient to note that the definition of an unlawful sexual act includes an indecent assault or an indecent touching of the nature alleged in this case.
[76] Criminal Law Consolidation Act 1935 (SA) s 50(3).
[77] Criminal Law Consolidation Act 1935 (SA) s 50(2) (definition of ‘unlawful sexual relationship’).
As Doyle JA said in Henry v The Queen, the actus reus of the offence has two elements. The first is the existence and maintenance of a relationship between an adult and child. The second element is that the adult corrupted the relationship by engaging in two or more unlawful sexual acts with the child.[78]
[78] Henry v The Queen [2022] SASCA 60 at [88]–[89] per Doyle JA (with whom David JA agreed).
Under s 50(4)(b), the requirements for particularity with which the two or more unlawful sexual acts must be proved have modified the common law in that ‘the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence’. Rather the trier of fact must be satisfied ‘as to the general nature or character of those acts’.
Thus, in proof of this offence, the prosecution must establish the following legal elements:
1.The appellant was an adult (over the age of 18 years);
2. KF was under the prescribed age (17 years in this matter) during the relevant period;
3.The appellant knowingly maintained a relationship with KF; and
4. While the relationship was in existence, the appellant intentionally committed two or more unlawful sexual acts with, or towards, KF.
In his reasons, the trial Judge set out the main issue in dispute. His Honour noted that the prosecution case rested primarily on the unsworn evidence of a young child, KF, and for that reason he had scrutinised her evidence with particular care. After considering the evidence and submissions, the trial Judge found that KF was ‘an honest and reliable witness whose evidential material was truthful and accurate and should be accepted beyond reasonable doubt’.[79] His Honour found beyond reasonable doubt that on ‘nine to ten occasions’,[80] the appellant committed unlawful sexual acts, those being the nine to 10 occasions the appellant touched KF on her vagina. As outlined in relation to Appeal Ground 2, the evidentiary basis for so finding was the evidence of KF, as detailed in her prescribed interviews and pre-trial special hearing and as supported by other evidence as to opportunity.
[79] R v H, JH [2022] SADC 11 at [117] per Stretton DCJ.
[80] R v H, JH [2022] SADC 11 at [119] per Stretton DCJ.
In this case, the trial Judge was not in a position to identify or reach any conclusion as to the circumstances in which the unspecified incidents of touching occurred. Nor was he required by the terms of s 50 of the CLCA to do so. While proof of the offence requires two or more distinct unlawful sexual acts to be identified, it is not necessary for the occasions of those acts to be particularised other than in respect of the conduct constituting the acts. The trial Judge’s conclusion that the appellant on nine to 10 occasions intentionally touched KF on her vagina (that touching constituting an indecent assault) was not an error for the reasons articulated in relation to Appeal Ground 2. That finding meant that the fourth element of the offence was proved. It was not necessary for the trial Judge to go further and precisely identify each unlawful sexual act constituting part of the actus reus of the offence in circumstances where he expressly found all of the alleged touching as described by KF occurred.
We are satisfied that the reasons of the trial Judge were not inadequate on the basis of this first contention.
The appellant also complains that the trial Judge did not address or resolve some of the alleged inconsistencies and criticisms made of KF’s evidence and the prosecution case. The appellant focused on the following issues:
1.     The submission that KF’s evidence was inherently implausible in that it was unlikely that all of the occasions of touching occurred in less than a minute, whilst everyone was usually outside. There was evidence from NF and Mr Lindsay that socialising did not occur at the back of the house, nor at the front of the house. Rather, they usually entertained inside;
2.     The prior inconsistent statements made by KF outlined earlier in relation to Appeal Ground 3;
3.     Whether there was opportunity for the appellant to be alone with KF to commit the offence. Defence counsel relied on the evidence of JS that the appellant was never alone with KF and the evidence of NF that she kept KF under supervision on the occasions the appellant was at her home because of the previous allegations of sexual abuse made by RH against him;
4.     Whether NF was lying when she gave evidence that she saw the appellant go into KF’s bedroom; and
5.     Whether Mr Lindsay was lying in his evidence when he said that he saw the appellant with KF seated on his lap in the lounge room.
In relation to the submissions numbered (1) and (2) as to the implausibility of KF’s evidence and prior inconsistent statements made by her, in finding that KF was a credible and reliable witness, the trial Judge repeatedly referred to the submissions made by counsel in this respect. Further, for the reasons given in relation to Appeal Ground 3, none of KF’s prior inconsistent statements considered singly or in combination were material to an assessment of her credibility and reliability. In those circumstances, it was not necessary for the trial Judge to have individually addressed each of those inconsistencies in the manner contended on appeal.
In relation to the submission numbered (3) as to opportunity, the evidentiary basis for that submission relies on the evidence of JS and the appellant’s assertions in his police interview. JS was the appellant’s partner and the mother of two of his children. She had an obvious interest in the appellant being acquitted. She also had an acrimonious relationship with her mother and ‘demonstrated palpable antipathy’ towards her.[81] She was no longer in contact with KF. Her evidence could not be described as independent.
[81] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
The trial Judge expressly rejected the evidence of JS and gave reasons for doing so. Those reasons included her relationship with JS and the appellant and that ‘when asked about the opportunities the accused may have had to commit the alleged offence her evidence became unconvincingly absolute’.[82]
[82] R v H, JH [2022] SADC 11 at [109] per Stretton DCJ.
In relation to the issues numbered (4) and (5), the appellant submits that the trial Judge did not make any finding as to which part of the evidence of NF and Mr Lindsay he accepted or rejected. That submission may be disposed of shortly. As to issue (4), the trial Judge set out in detail the evidence of NF on the topic of whether she observed the appellant alone with KF in her bedroom. The summary of evidence reveals the contradictory and confusing nature of it. His Honour concluded by remarking that ‘[h]er answers on this topic were not, at the end of the day, clear’.[83]
[83] R v H, JH [2022] SADC 11 at [62] per Stretton DCJ.
In his reasons for verdict, the trial Judge described NF as stressed and upset throughout her evidence. His Honour said:[84]
The overwhelming impression given was of a highly traumatised witness, further traumatised by the matters raised with her in cross-examination, consequently giving evidence which was at times jumbled and unclear, and sometimes inconsistent with her earlier evidence and with extracts from her police statements as put to her. The final impression was of an honest but highly upset and traumatised mother, whose consequent recall and description of detail was problematic and unreliable.
[84] R v H, JH [2022] SADC 11 at [106] per Stretton DCJ.
The trial Judge referred in his reasons to the recall of NF as ‘problematic and unreliable’.[85] The trial Judge also did not, at any stage, say that the evidence of KF as to the incidents of touching in the bedroom was supported by the evidence of NF. Bearing in mind the trial Judge’s characterisation of NF’s evidence and his remarks that NF’s evidence on the topic was not clear, we are satisfied that the trial Judge’s reasons made it plain that he placed no weight on her purported observations of the appellant and KF alone in her bedroom.
[85] R v H, JH [2022] SADC 11 at [106] per Stretton DCJ.
As to issue (5), the trial Judge outlined in detail the evidence of Mr Lindsay. Later in the reasons, his Honour said that he considered Mr Lindsay ‘an honest witness, reliable as to primary matters, but with a poor and hence unreliable memory for dates, detail, sequence, and the content of conversations beyond the rough gist of what the conversation may have been about’.[86]
[86] R v H, JH [2022] SADC 11 at [107] per Stretton DCJ.
The trial Judge did not expressly state whether he accepted or rejected the evidence on this topic. However, his Honour’s finding that Mr Lindsay was unreliable as to detail gives sufficient indication that he did not place any weight on this evidence. The trial Judge also did not say, at any stage, that the evidence of KF as to the incidents of touching in the lounge room was supported by this aspect of the evidence of Mr Lindsay. Whilst acknowledging that the trial Judge made no express reference to this topic in his reasons, we are satisfied that it is clear from his findings as to Mr Lindsay’s lack of reliability that the trial Judge placed no reliance on this aspect of his evidence.
We are satisfied that none of the matters raised by the appellant mean that the reasons were inadequate.
We dismiss this ground of appeal.
Conclusion
We grant permission to appeal on Grounds 1 and 4 but dismiss the appeal.