JGS v The Queen

[2020] SASCFC 48

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

JGS v THE QUEEN

[2020] SASCFC 48

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

5 June 2020

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 - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

The appellant was convicted by a judge sitting without a jury of eight counts of Unlawful Sexual Intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).

The appellant and complainant lived as part of a closed community referred to as “the Group”. The complainant alleged that the appellant was the leader of the Group and that her role was to “serve” the appellant. The complainant alleged that the appellant sexually abused her regularly. The complainant’s mother, who was also a member of the Group, gave evidence which supported some aspects of the complainant’s account. The truthfulness, credibility and reliability of the complainant and her mother were the main issues at trial.

The appellant appealed on numerous grounds, including that the Trial Judge erred by failing to appropriately assess the truthfulness, credibility and reliability of the complainant and her mother.

Held per Lovell J (Peek and Bampton JJ agreeing), allowing the appeal on Ground 2 and refusing permission on Ground 7, but dismissing the appeal on Grounds 1, 3, 4, 9, 10, 12 and 13:

1.The Trial Judge erred in his approach to the evidence relating to the truthfulness, credibility and reliability of the evidence of the complainant and her mother.

2.The verdicts on counts 1 to 8 are set aside. The matter is remitted to the District Court for a retrial.

Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34CB, s 34R, s 34P; Criminal Procedure Act 1921 (SA) s 158(3), referred to.
Nicholls v The Queen (2005) 219 CLR 196 ; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 225 ALR 161; R v Birks (1990) 19 NSWLR 677; Crampton v The Queen (2000) 206 CLR 161; R v Moores (2017) 128 SASR 340; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Singh [2019] SASCFC 51; R v Tran [2017] SASCFC 99; MWJ v The Queen (2005) 222 ALR 436; R v R, PA [2019] SASCFC 19; R v Bakhuis (2012) 112 SASR 536; R v Maiolo (No 2) (2013) 117 SASR 1; R v M, RS (2018) 131 SASR 24; R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; Richardson & Ors v The Queen (1974) 131 CLR 116; R v O’Brien (1996) 66 SASR 396; Mahmood v The State of Western Australia (2008) 232 CLR 397; Jones v Dunkel (1959) 101 CLR 298; Dyers v The Queen (2002) 210 CLR 285; Police v Kyriacou (2009) 103 SASR 243; Fleming v The Queen (1998) 197 CLR 250; R v Becirovic [2017] SASCFC 156; DL v The Queen (2018) 356 ALR 197; Macks v Viscariello (2017) 130 SASR 1; R v Y, K [2015] SASCFC 94; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33; R v Sexton [2018] SASCFC 28; Goldsmith v Sandilands & Ors (2002) 190 ALR 370; Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; R v Trabolsi (2018) 131 SASR 297; Pell v The Queen [2020] HCA 12; R v Baden-Clay (2016) 258 CLR 308; Filippou v The Queen (2015) 256 CLR 47; DES v The Queen [2020] SASCFC 32; Fennell v The Queen (2019) 373 ALR 433, considered.

JGS v THE QUEEN
[2020] SASCFC 48

Court of Criminal Appeal:       Peek, Bampton and Lovell JJ

1. PEEK J:     I would allow the appeal, set aside the convictions and order a re-trial before a different Judge alone. I agree with the reasons of Lovell J.

2. BAMPTON J:     I would allow the appeal for the reasons given by Lovell J. I agree with the orders proposed.

   LOVELL J:

   Overview

3. The appellant was tried before a judge sitting without a jury of nine counts of Unlawful Sexual Intercourse with Han G, the complainant, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant pleaded not guilty to all counts. The appellant was convicted on counts 1 to 8 and acquitted on count 9. The prosecution alleged a course of conduct over some years and led evidence of uncharged acts. The appellant appealed on numerous grounds but the major attack was on the Trial Judge’s findings that the complainant and her mother were truthful, credible and reliable witnesses.

4. I would allow the appeal. My reasons follow.

   Background

5. At the time of the alleged offending, the appellant and the complainant lived as part of a closed community in the Adelaide Hills (‘the Group’). They lived at a property called the “S Estate”, comprised of a house referred to as “the Mansion” and a dormitory style accommodation termed “the Barracks”. The Group was established by the appellant many years before the alleged offending and consisted mostly of his immediate and extended family. There were up to 30 members at one time. The complainant was the appellant’s niece, her father, the appellant’s brother, was a member of the Group.

6. The Group pursued what it believed to be the Ideal Human Environment (‘IHE’). The Group’s beliefs were important on the prosecution case. The complainant’s evidence needed to be placed in the context of her environment.

7. In their pursuit of the IHE, members of the Group followed certain philosophies. On the complainant’s evidence, this included adherence to strict rules, on occasions punishment and in particular deference by all members to the appellant. The prosecution alleged that the appellant was the “head” of the Group. Establishing primacy (as it was described in the evidence) was an important aspect of the prosecution case, as it was his position in the Group that enabled the sexual abuse to occur undetected.

8. Although only charged with nine counts, the complainant gave evidence that the sexual abuse began when she was 13 and persisted for the ensuing five to six year period. The complainant alleged that the appellant, apart from times when he went away, regularly sexually abused her. Often the sexual abuse occurred more than three times a week and sometimes twice a day.

   The Background Evidence

9. Before turning to consider the evidence in relation to each count, it is necessary to discuss the background evidence relating to the Group.

10. The Trial Judge was asked to rule pre-trial on the admissibility of certain evidence. To assist in that process the prosecution opened the case prior to the Trial Judge considering the questions of admissibility of evidence.

11. The prosecutor, during his opening, stated:

    The evidence about these group dynamics and, as opposed to a normal family dynamic, will I hope assist your Honour to understand how the (appellant) could commit these offences whilst living within this group that included the complainant's parents. That is, from his perspective, how he would expect to get away with it and continue to get away with it and from hers, why she would submit to what was being done to her, despite her parents being close at hand.

12. The prosecutor outlined in some detail the “dynamics” of the Group that he alleged were relevant. Mr Edwardson QC, senior counsel for the appellant at trial, accepted that many of the matters alleged were relevant and admissible (although denied). However, he submitted that the prosecution was not entitled “to impose on the court the prosecution’s view or sinister overtones that he says arise from an unorthodox family”. That is, the prosecution was not entitled to present a case that the Group dynamics meant members of the Group groomed the complainant for the appellant to have sex with her. That was an entirely appropriate submission.

13. In the event much evidence was led from the witnesses about the Group dynamics. The Trial Judge made numerous findings about the Group dynamics; the findings were generally in line with the complainant’s, and her mother’s, evidence. Evidence given by the appellant, and some of his witnesses, challenged the account of the Group dynamics given by the complainant and her mother. This evidence was generally rejected by the Trial Judge. Indeed, the Trial Judge on occasions used evidence of the Group dynamics to criticise the appellant’s evidence and the evidence of other witnesses. The evidence thus formed an important, if not critical, part of the Trial Judge’s reasons for finding the appellant guilty of counts 1-8.

14. It is necessary for me to summarise the Trial Judge’s findings about the Group dynamics. The appellant challenged a number of these findings. I will deal with those challenges later in these reasons. However, in understanding how the Trial Judge reasoned towards the appellant’s guilt, it is necessary to understand the background that he found existed.

    The Group

15. The appellant, who is now aged 73, is also known by the nickname Taipan. This nickname was given to him during his time in the Australian Army. Having served a tour of duty in Vietnam, the appellant decided to commence research with the idea of establishing what he described as the Ideal Human Environment. It is unclear when this research commenced although it was many years before the alleged sexual abuse commenced. The intention of IHE was to create an environment where people could learn to live as a member of a group in a peaceful environment and, using IHE principles, resolve any differences that might arise between them. Physical punishment of any of the members was inconsistent with the concept of IHE. The IHE principles required that the members of the Group live communally, and devote their resources, energy and earnings for the benefit of the Group. The goal of achieving the IHE was the general focus of people who joined the Group. The Group purchased properties and, it appears, operated some businesses. As such, the structure of the Group was commercial in nature. The structure was later granted charitable status.

16. The appellant was the initiator of the concept IHE; he formulated its first set of rules. As the Trial Judge found:[1]

    … In the pursuit of the IHE, the task of the members of the Group was to align their thoughts with the thoughts of the (appellant) because his thoughts were pure, they were correct and right; they were to be preferred to the thoughts of an individual member. Thus, it is that the activities of the (appellant) in any particular work or projects were never determinative of his status in the Group. His primacy existed in a different and more important context.

    [1] Reasons at 13 [47].

17. Within the Group, and consistent with IHE concepts, many decisions were made by use of a “Wisdom Bank”. Where there were difficulties or disagreements between members of the Group such difficulties or disagreements would be resolved by another member or by a selection of them meeting as a Wisdom Bank.

18. Consistent with the development of the “Wisdom Bank” was the concept of “Emotional Quotient” (‘EQ’). The appellant decided that different people had different levels of EQ and so from the outset there was a system of classifying a member’s EQ. This was described as an EQ ranking. The appellant proposed the ranking process and its method was based on his experience in the army. This ranking system, which was a largely random and subjective assessment,[2] affected the composition of the Wisdom Bank. A higher EQ ranking gave the member more control over other members within the Group. The complainant had a low EQ ranking, as did her father. The complainant’s mother had a higher ranking. A feature of life in general within the Group, complemented by the ranking structure, was loyalty to the Group itself rather than a person’s family. Children were not seen as members of a family unit but, rather, members of the Group. As the Trial Judge found:[3]

    Their fate and so their futures were to be determined by a wisdom bank comprising people often other than their parents. Their parents may have been consulted but it was obviously necessary for those parents to be Group members and if they disagreed, to attempt to challenge the wisdom bank decision for this child. This reflected the authority of the wisdom bank structure and the disassociation of members of families

    [2]    The appellant and his immediate family had the highest rankings.

    [3] Reasons at 17 [58].

19. The appellant was at “the apex” of all the Group activities. His status as head of the Group was separate from and not dependent upon his contribution to any particular work or project.

20. The primacy of the appellant’s position was consistent with a philosophy of the Group as explained by the complainant’s mother to “... just go there”. This philosophy meant that a member of the Group had to align his or her thoughts with the thoughts of the appellant. Members were required to discern the appellant’s thoughts and “just go there” as well as ignoring their own thoughts. The universal belief within the Group was that the thoughts of the appellant were pure and trusted; they were the right thing. Any Group member who was assessed as having the thoughts of the appellant also enjoyed a higher rank.

21. The Trial Judge also found that there were women’s group meetings held in the bedroom of the appellant, with him present. Training was given to the women by the appellant about being a “good female”. That is, how a woman should dress and how a woman should behave around a man. The appellant instructed the women that the proper order of things was that males deferred to God and females deferred to males. A group of women, of which the complainant was one, “served” the appellant by doing his washing, preparing meals and manicuring his nails. There were also “healing meetings”. These were conducted by the appellant and he taught women how to be good healers. This process involved the woman or women placing their hands upon some part or another of the appellant’s body. The meetings occurred with groups of women or separately. The complainant was one of the females who looked after the appellant in such a healing process.

22. The alleged offending commenced while the Group was living at S Estate in the Adelaide Hills. The appellant occupied a double master bedroom on the first level of the Mansion.[4] Adjacent to his bedroom was a study, which could be accessed from his room, and a bathroom. The bathroom could be used by other occupants using other bedrooms situated on the first floor. Other members of the appellant’s immediate family occupied these other rooms.

    [4]    Ex P2.

23. The downstairs areas included the kitchen and living areas but also contained bedrooms. These bedrooms were occupied by D H-S and her family: D H-S was described as the appellant’s personal assistant. Other members stayed in the adjacent building known as the Barracks.

24. Over the years, while the alleged offending continued, the Group moved locations. Some of the alleged offending making up the uncharged acts occurred interstate and overseas. The charged offences generally occurred while the appellant was living at S Estate.

25. The complainant began looking after or, as it was referred to at trial, “serving” the appellant when she was 12 or 13 years old. She was taught how to do so by D H-S. Other women in the Group would also serve the appellant. The complainant said she would often be called by D H-S to go to the appellant’s bedroom. The complainant’s evidence was supported by her mother, Vic S.

26. I acknowledge that the background I have related was disputed by the appellant and his witnesses. The appellant denied the offending. The appellant’s evidence, and the evidence of other witnesses called by the appellant, was to the effect that that he did not occupy any particular place of importance within the Group. That is, the appellant was treated and was to be treated within the Group no differently to any other member of the Group; he held no elevated position within the Group. The Trial Judge rejected this aspect of their evidence. The appellant, and his witnesses, denied that there was any “punishment”, as described by the complainant.

    Conduct of the Trial

27. Having set out in summary form the fundamental findings of the Trial Judge, it is necessary to comment on the way the trial was conducted. The appellant now complains that the Trial Judge was “distracted” by peripheral issues and allowed the peripheral issues to influence, impermissibly, his reasoning in the case.

28. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. Thus, not all evidence admitted in a trial is direct evidence of a fact in issue, or more particularly, a fact proving an element of the offence. Often evidence is indirect. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact.[5] That is, evidence may go to prove a fact from which the existence of a fact in issue may be rendered more probable and therefore inferred.

    [5]    Nicholls v The Queen (2005) 219 CLR 196 at 215 [37] per McHugh J.

29. Evidence may also be led which does not go either directly or indirectly to a fact in issue; it may be relevant only to a question of “credit” and therefore subject to the collateral question rule.

30. In this case the complainant gave direct evidence of the acts the subject of the charges. However, she also gave evidence of the dynamics and structure of the Group; it was evidence which explained how members of the Group behaved towards each other and the appellant. On the prosecution case, the appellant was the head of the Group, which meant he received certain privileges. One of the privileges on the prosecution case was that a number of the female members of the Group “served” him. That is, they did his cooking, washing and bathed him. The complainant was one of this group. While the evidence of the Group’s dynamics did not go directly to the facts proving the elements of the offences, it explained how the appellant had the opportunity to sexually abuse the complainant and could do so without arousing the suspicion of the complainant’s parents or other members of the Group. The evidence, in proving opportunity and explaining how the conduct was concealed, if accepted, was evidence the Trial Judge could use to infer the existence of facts going directly to proof of the elements of the offence. From the prosecution perspective, it was extremely important evidence.

31. Senior counsel at trial challenged the complainant’s direct evidence about the acts of intercourse, putting to her that she was fabricating her evidence.  He cross-examined the complainant and established factual matters which he submitted undermined the credibility and reliability of her evidence. Senior counsel also challenged her evidence that D H-S had taught her how to “serve” the appellant by doing his laundry, running his bath, serving his food and manicuring his nails. There were challenges to other parts of her evidence. The complainant’s evidence of the primacy of the appellant’s position within the Group was not challenged directly. I accept that challenging her evidence about her “serving” the appellant was a challenge to his primacy but she gave other evidence about having the appellant’s “intent”. The EQ ranking system varied depending on who had Taipan’s intent the most. Those who believed what Taipan believed and carried out what Taipan wanted would be ranked higher. This included believing that Taipan was “the God”. There was no direct challenge to this evidence.

1. The evidence of the complainant’s mother, Vic S, supported the complainant’s evidence that the appellant held a position of primacy in the Group. Vic S gave evidence of the Group dynamics; this included the Group’s belief that Taipan’s thoughts were pure and that they were expected to align their thoughts with his. What he said and thought was “the right thing”. Vic S stated that there was a “core group” of women who looked after him. That is, they washed his clothes, prepared his food and manicured his nails. This was consistent with the complainant’s evidence. Vic S’s evidence on these aspects was also not specifically challenged.

2. These observations are not intended as a criticism of senior counsel for the appellant. He conducted the case by concentrating on, what he submitted, were factual errors and inconsistencies in the complainant’s account and also Vic S’s account. These inconsistencies and errors were such, he submitted, that the Trial Judge should have had a reasonable doubt generally about their evidence. He also relied upon evidence called on behalf of the appellant that contradicted the evidence of the complainant and, to a lesser extent, her mother. Senior counsel relied also on what he submitted were implausible aspects of her account. This was an appropriate way to conduct the defence. However, the way in which trial counsel conducts the case is an important matter.

3. The appellant’s position in the Group was important to the prosecution case. The Trial Judge accepted the evidence of the complainant and her mother about the position of the appellant within the Group. He considered it to be an important finding from which other facts could be inferred. The Trial Judge did not accept the appellant’s evidence or his witnesses on that topic, preferring the evidence of the complainant and her mother.

4. However, a number of the appeal grounds need to be assessed against the background of how the issues of the Group dynamics and the primacy of the appellant within the Group were contested at trial. Some grounds raise matters not pursued by senior counsel at trial.

5. The general rule is that a party is bound by the conduct of counsel.[6] The judgment of Gleeson CJ in R v Birks[7] is frequently cited in this context. Gleeson CJ said:[8]

   As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.

   [6]    TKWJ v The Queen (2002) 212 CLR 124 at 128 [8] per Gleeson CJ; Nudd v The Queen (2006) 225 ALR 161 at 183 [79] per Kirby J.

   [7] (1990) 19 NSWLR 677.

   [8]    R v Birks (1990) 19 NSWLR 677 at 683.

6. Later in Nudd v The Queen,[9] Gleeson CJ observed:[10]

   Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.

   (Footnotes omitted)

   [9] (2006) 225 ALR 161.

   [10] Nudd v The Queen (2006) 225 ALR 161 at 164 [9].

7. As Gleeson CJ also observed, in Crampton v The Queen:[11]

   … it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.

   [11] Crampton v The Queen (2000) 206 CLR 161 at 172 [16].

8. Issues argued on appeal need to be considered in the context of the manner in which the trial was conducted.[12] Decisions, for example, such as not objecting to evidence, not asking for specific directions and pursuing, or not pursuing, a particular line of defence are part of the wide discretion that counsel exercises at trial. For example, the absence of a request of the Trial Judge to consider giving himself various directions affords some practical indication of their relevance to the issues at trial.[13] Thus, while there are exceptions, an appellant is generally bound by the case he ran at trial.

   [12] R v Moores (2017) 128 SASR 340 at 348 [33] per Blue J (Vanstone and Doyle JJ agreeing).

   [13] Perara-Cathcart v The Queen (2017) 260 CLR 595 at 619 [60] per Kiefel, Bell and Keane JJ.

   The Charged Offences

9. I set out briefly the charges and the complainant’s evidence in relation to each charge. The direct evidence in relation to the counts was given against the background of the manner in which members of the Group conducted themselves.

   Count 1 – Unlawful Sexual Intercourse

10. It was alleged that, between 24 October 2003 and 26 October 2004 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina. This, it was alleged, was the first sexual encounter with the appellant.

11. The complainant agreed to accompany the appellant on a walk to an area on the S Estate known as the “deer paddock”. When walking past the chapel building, the appellant stated that in Aboriginal culture, the role of the uncle is to teach their niece how to “become a lady”. While the complainant did not understand what the appellant meant, he said that they would talk later and requested that she not speak to anyone about their conversation.

12. At approximately 11 pm that night, D H-S, who worked as the appellant’s assistant or carer, woke the complainant from her sleep. She told the complainant that the appellant wanted to see her. The appellant would often call late night meetings and the complainant would not question his decision to do so. When she arrived at the appellant’s room, he was seated on his La-Z-Boy chair. The complainant said she was told to lock the doors. The appellant, who was wearing a maroon robe, said that on the following night, the complainant should meet him in the Barracks with a blindfold, some massage oil, an oil burner and music. The appellant again told her that it was his job to assist her in becoming a lady.

13. At about 11:20 pm the following night, the complainant, who was wearing frog-print pyjamas, collected her things and went to the room where she was told to meet the appellant (room 12 as shown on Exhibit P4). When she arrived at the room at 11:25 pm, she turned on the oil burner and waited for the appellant. The complainant said that there was a white futon mattress on the floor. Ten minutes later, the appellant, who was wearing baggy grey tracksuit pants and a green polo shirt, knocked on the window. After asking if anyone had seen the complainant, he came inside the room and locked the door behind him.

14. The complainant said that the appellant asked her to remove her top and bra and to lie face down on the mattress. The appellant began massaging the complainant’s shoulders and back before moving on to the rest of her body. While the room was quiet, she could hear the appellant removing some clothing. She turned to see the appellant was naked from the waist down. The appellant removed the complainant’s pants and laid on top of her. The complainant said that the appellant then rolled her over so that she was on her back, used his hands to part her legs, and told her to relax. The appellant told the complainant that “it might hurt a little bit but you’ll enjoy it”.

15. The appellant then put his penis inside the complainant’s vagina. It is this act that forms the basis of count 1. The complainant said that the pain was “excruciating” but the appellant kept telling her to relax. The complainant did not remember for how long the penetration continued. She said that she did not think he ejaculated. After the appellant stopped, he told the complainant not to tell anyone about what had happened as they would not understand, and he said that she should go and get some sleep. She returned to her room in the Barracks (room 3 as shown on Exhibit P4).

    Count 2 – Unlawful Sexual Intercourse

16. It was alleged that between 24 October 2003 and 26 October 2004 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

17. At about 5 am the following morning, the appellant came to the complainant’s room and told her to meet him back in the room where the events comprising count 1 had taken place. The complainant gave evidence that she followed the appellant five minutes after the appellant left her room.

18. When the complainant arrived at the room 12 in the Barracks, the appellant locked the door and again told her to lie face down on the mattress for a massage. The appellant told the complainant to strip naked from the waist up, and the appellant commenced massaging her. The appellant removed his and the complainant’s pants before rolling her over and placing his penis inside her vagina (‘count 2’). The appellant told the complaint to relax; she said that penetration was deeper than on the first occasion. Although the complainant told the appellant that she was in pain, the appellant said that it would be more enjoyable as she becomes used to it. The appellant did not ejaculate.

19. Afterwards, the appellant told the complainant to wait a few minutes after he had left, before returning to her room. If she saw anyone, she was to say that she had been removing J McD’s dogs from the building. It was close to 6 am by the time she returned to her bedroom. On the walk back to her room, the complainant saw her mother and, as instructed, told her that she had been attending to the dogs. The complainant gave evidence that there was blood in her underwear following the act of intercourse comprising count 2. The next day, the appellant assured her that bleeding was normal following sex.

20. Contrary to the complainant’s evidence on counts 1 and 2, the appellant asserted that he did not go down to the Barracks. He gave evidence that he only remembered having gone to the Barracks once while living at the property, to visit his son.

21. The complainant turned 13 on 25 October 2003. She said that counts 1 and 2 occurred prior to her 13^th birthday. The complainant then said that the sexual abuse took place approximately six months after she finished school in November 2003. She believed the sexual abuse occurred at this time as there were few people at the S Estate because of the Blackwater contract in Queensland. In cross-examination, the complainant confirmed that the sexual abuse began in 2003 when members of the Group were at Blackwater. The complainant then asserted that the Blackwater project occurred in early 2004 and not at a later time. Vic S also stated, initially at least, that the Blackwater project occurred in the latter half of 2003. Other evidence confirmed that the Blackwater project took place in 2005. I deal with the references to Blackwater and its significance later in these reasons.

    Count 3 – Unlawful Sexual Intercourse

22. It was alleged that between 24 October 2003 and 26 October 2004 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by causing her to perform an act of fellatio upon him. This, it was alleged, was the first occasion when the complainant performed an act of fellatio upon the appellant.

23. The complainant stated that the incident occurred approximately two weeks after the first two counts. However, in cross-examination she stated that it occurred “in 2004 because it was after the Blackwater …”. The complainant gave evidence that further uncharged acts of abuse took place after the first two counts and prior to count 3.

24. The complainant stated that the incident occurred in the appellant’s bedroom after he had returned to the Mansion from an afternoon coffee meeting. She went to his room after D H-S told her that the appellant wanted a massage. The appellant was wearing a maroon robe and seated in a La-Z-Boy chair, watching television.

25. The complainant said that she began massaging the appellant’s lower legs. The appellant told the complainant that he enjoyed having “his balls and penis played with” before moving her hand to his groin. While kneeling, the complainant used her right hand to touch his erect penis and testicles. The appellant then pushed the complainant’s head onto his penis (‘count 3’). The appellant manipulated the complainant’s head up and down for a number of minutes. He did not ejaculate.

26. The complainant stated that she began looking after the appellant when she was 12 or 13 years old. She was taught how to do so by D H-S. Vic S supported her evidence and said that the complainant would often be called by D H-S to go to the appellant’s bedroom. The appellant in his evidence stated that the complainant was never required to attend to his personal needs, and that he did not enjoy massages. Dr P and Ol S supported the evidence of the appellant and stated that the complainant did not provide additional domestic duties in service of the appellant. The complainant said that everyone knew she was performing tasks for the appellant.

    Count 4 – Unlawful Sexual Intercourse

27. It was alleged that between 24 October 2003 and 26 October 2004 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

28. Immediately following count 3, the appellant told the complainant to undress and get into the bed. The complainant said that she began massaging him before being asked to get on top of the appellant. The appellant held the complainant’s thighs and bottom and pulled her up and down on top of him. The appellant was naked. The complainant said the appellant rolled her onto her back and had intercourse with her (‘count 4’). The complainant was told not to be a “starfish”. The appellant told the complainant that men enjoy being touched, told how good they are, and want to hear her moan. She did as he suggested out of fear of potential consequences. The appellant ejaculated on the complainant’s stomach while she was lying on her back. The complainant cleaned herself with tissues and left the room upon being dismissed by the appellant.

    Count 5 – Unlawful Sexual Intercourse

29. It was alleged that between 24 October 2003 and 26 October 2005 at Charleston, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

30. The complainant said that in 2004 when she was 13 years old, she attended a camping trip at the Woodside Reserve with the appellant, Dart and S H-S. The complainant’s father, Ben S, drove them to the campsite. The children slept in small dome tents which the complainant described as “Mozzie Domes”. The appellant stayed in his blue Toyota Sahara Landcruiser that he parked approximately 15 to 20 metres away from the children’s campsite.

31. The complainant said that the appellant told her to put Dart to bed and then to give him a healing in the Landcruiser. The complainant was aware that a “healing” was a type of massage. The appellant’s car had a mattress in the back and the boot was open. The complainant said that the appellant was lying on his back under a blanket. He told her to undress and to get under the blanket with him. She did as she was told. The appellant was naked. The complainant recalled looking through the open sunroof. The complainant recalled there being a piece of cardboard blocking out the front windscreen.

32. The complainant said that the appellant then rolled on top of her while she was on her back. He inserted his penis into her vagina (‘count 5’). The intercourse lasted approximately five minutes. The complainant does not think that the appellant ejaculated. Afterwards, the appellant told the complainant to get dressed and go to sleep.

33. The appellant acknowledged that the complainant camped with him and others at the Reserve. He denied having sexual intercourse with the complainant.

34. Issues raised during the cross-examination of the complainant included whether Mozzie Domes had been used in South Australia rather than Queensland, and the colour of the appellant’s car.

    Count 6 – Unlawful Sexual Intercourse

35. It was alleged that between 24 October 2003 and 26 April 2006 at Charleston, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

36. Approximately two months after count 5 in 2004, D H-S told the complainant that she was to go on another camping trip to Woodside Reserve with the appellant. No other members of the Group attended. After arriving in the afternoon, the complainant and the appellant went for a walk in the Reserve. The appellant had his hand over the complainant’s shoulder and was “playing with her breasts” through her clothes. This conduct was an uncharged act.

37. When the pair returned to the appellant’s car, it was dark. The complainant and the appellant got in the back of the appellant’s vehicle (the same vehicle as that in count 5). The complainant said that while she was on her back, the appellant had penile vaginal intercourse with her (‘count 6’). She could not remember if the appellant ejaculated. That night, the complainant slept in a tent. The appellant slept in his vehicle, which was parked approximately 10 to 15 metres away.

38. The complainant said that the following morning, she and the appellant went for a walk in the Reserve. At the suggestion of the appellant, both he and the complainant removed their clothes and carried them as they continued to walk. When they came across a large log, the appellant leaned the complainant against the log and had penile vaginal intercourse with her. The act of sexual intercourse continued for approximately three to five minutes. The complainant said that the pain was “excruciating”. She was unable recall if the appellant ejaculated. This is an uncharged act.

    Count 7 – Unlawful Sexual Intercourse

39. It was alleged that between 24 October 2003 and 26 April 2006 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

40. The complainant gave evidence about her general duties at S Estate. She was responsible for running a bath for the appellant and this often led to sexual activity. The complainant was taught by D H-S that the bath needed to be the correct temperature and depth. Essential oils and Epson salts were to be added in a way which would foster the pure energy of the water. The appellant would always walk naked from his bedroom to the bath.

1. The events comprising count 7 took place in 2004, prior to the camping trips relevant to counts 5 and 6. On the first occasion that she ran a bath for the appellant, the complainant told him it was ready and then as required, waited five minutes before checking that everything was alright. When the complainant entered the bathroom to check on him, she locked the doors behind her. The appellant asked if she would like to join him in the bath. She agreed because she feared the consequences of rejecting his offer. The complainant said that the appellant was someone to be feared and to say “no” to him would amount to insubordination worthy of punishment.

2. Once in the bath, the complainant began washing the appellant’s legs, testicles and penis in the way that she had been trained. The appellant’s penis became erect and she was told to get dressed and to meet him in his bedroom in 10 minutes.

3. The complainant went to the appellant’s bedroom and locked the door behind her. The appellant was sitting in his chair, wearing a Velcro towel. He stood up and led the complainant to the bed. The appellant laid the complainant on her back and had penile vaginal intercourse with her (‘count 7’). The sexual intercourse lasted for about five minutes and the appellant ejaculated.

4. The complainant said that this occurred late at night. She said she would only ever run the appellant’s bath at night. The complainant said that the lighting in both rooms was very dim. Candles provided the lighting.

5. The appellant gave evidence that the complainant did not tend to his bath. He said that he would not have wanted her to do so as he was very particular.

6. The appellant stated that he has an aversion to candles as a result of two incidents many years ago. The appellant said that he would choose the dark over candles. The appellant would not keep candles in his bedroom or the bathroom.

7. Vic S gave evidence that the healing meetings, which often took place late at night, were dimly lit and commonly featured burning candles. The appellant’s evidence was that healing meetings would take place in the daytime or early evening.

   Count 8 – Unlawful Sexual Intercourse

8. It was alleged that between 24 October 2003 and 26 April 2006 at Aldgate, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

9. The complainant said that after an uncharged act of sexual intercourse the appellant asked her to speak to Dr P about her menstrual cycle and when she could and could not fall pregnant. The complainant spoke to Dr P but she “didn’t understand anything she was saying”. The complainant could recall Dr P said “something about 14 days after not being able to get pregnant”. Dr P, in her evidence, said a conversation occurred in 2008 in the context of the complainant’s relationship with Lincoln H.

10. When the appellant asked her whether she had comprehended what Dr P had told her, the complainant lied about what she understood to avoid another conversation.

11. A day or two after the complainant’s conversation with Dr P, the appellant had sexual intercourse with her in his bedroom (‘count 8’). The appellant was on his back and instructed the complainant to kneel on top of him. The appellant inserted his penis into the complainant’s vagina. He placed his hands on her thighs, and forced her to move up and down on top of him. He told her that “guys really like it when you’re on top of them …”.

12. During sexual intercourse, the appellant asked the complainant “where” she was in her menstrual cycle. She responded that it was after 14 days. The appellant ejaculated inside the complainant.

    Count 9 – Unlawful Sexual Intercourse

13. It was alleged that between 24 October 2004 and 26 October 2005 at Coober Pedy, the appellant had sexual intercourse with Han G, a person under the age of 17 years by inserting his penis into her vagina.

14. The complainant gave evidence that there was “a lot” of sexual activity that took place in Coober Pedy. The events comprising count 9 occurred when the complainant was about 14 years old, in the context of a trip to Uluru. The complainant remembers travelling through Coober Pedy and staying at the Desert Caves Resort with the appellant, D H-S, Dart and J Bond.

15. D H-S came to the complainant’s room and told her that the appellant wanted a healing. The complainant went to the room and saw the appellant lying on the bed wrapped in only a towel. The complainant said that she began to massage his legs before moving to his penis and testicles. This led to penile vaginal intercourse (‘count 9’). The appellant asked the complainant where she was on her menstrual cycle. She could not remember her response. She could not recall whether he ejaculated, or what position she was in during the intercourse.

16. The complainant gave evidence that the Group, including her and the appellant, travelled to Uluru twice and on both occasions sexual intercourse occurred in Coober Pedy. However, at trial, conflicting evidence was given about the number of times the Group travelled through Coober Pedy.

    Uncharged Acts

17. In addition to the evidence of the charged acts, the complainant gave evidence of several uncharged acts. The complainant gave evidence that:

    ·the appellant engaged in penile-vaginal intercourse with the complainant against a log at Woodside Reserve on the day after count 6. The complainant alleged that this occurred when she was 13 years old.

    ·the appellant engaged in penile-vaginal intercourse with the complainant on two occasions when she was menstruating. The complainant alleged that the first instance occurred at S Estate when she was 14 years old. The complainant alleged that the second instance occurred at Cooper Pedy when members of the Group were on their way back from a trip to Uluru.

    ·the appellant engaged in penile-vaginal intercourse with the complainant while they were on a trip to India. The complainant was between 14-15 years of age at the time.

    ·the appellant engaged in sexual intercourse with the complainant before the conversation in which he asked her to have a conversation with Dr P about her menstrual cycle.

18. In addition, the complainant gave general evidence that the acts of sexual intercourse occurred many times, often two to three times a week. The sexual activity continued after the complainant and the Group moved to Queensland.

    Grounds of Appeal

19. The appellant initially appealed on 13 grounds. Permission to appeal was granted in respect of grounds 1-6, 8-10, 12 and 13. The applications for permission to appeal on grounds 7 and 11 were referred to this Court. The appellant abandoned grounds 5, 6 and 11. Ground 8 was also abandoned as a standalone ground; however, the issues it raises may bear upon grounds 1 and 2.

20. The appellant appeals to this Court against his conviction on the following grounds:

    1.   The verdicts of guilty in respect of counts 1 – 8 are unreasonable or cannot be supported having regard to the evidence.

    2.   The learned trial judge erred in law by failing to give reasons, or alternatively by failing to give sufficient reasons, to explain why or how he concluded that matters raised by the applicant did not give rise to reasonable doubt or a reasonable possibility of innocence.

    2.1.His Honour’s reasons did not properly address the implications of the internal inconsistency in the complainant’s chronology of events.

    2.2.The judge’s reasons did not properly address the significant of Vic S giving evidence corresponding with the evidence of the complainant.

    2.3.The judge’s reasons do not properly address the implications of the rejection of the complainant’s evidence regarding the Coober Pedy allegations.

    2.4.The judge’s reasons do not properly address the implications arising from the incorrect details of the complainant’s account of counts 5 and 6.

    2.5.The judge’s reasons do not properly explain why he essentially rejected the evidence of all the defence witnesses.

    2.6.The judge’s reasons failed to adequately explain how, in light of the inconsistencies in the complainant’s evidence as to timing of key events, including the alleged commission of counts 1 and 2 after the birth of Em S’s daughter in May 2006, he was able to conclude beyond reasonable doubt that counts 1-8 occurred prior to the complainant attaining the age of 17 years.

    3. The learned trial judge erred in law by misdirecting himself, or alternatively in failing properly to direct himself in accordance with s 34R of the Evidence Act 1929 (SA), as to the permissible and impermissible use of evidence of uncharged acts.

    4.   The learned trial judge erred in law by failing to direct himself, or alternatively by failing to heed any direction, as to the permissible or impermissible use of evidence of discreditable conduct or character as being probative of the applicant’s guilt in respect of the charged acts.

    7.   The learned trial judge misdirected himself in law by failing to identify the proper issues or alternatively by identifying false issues and resolving them adversely to the applicant.

    9.   The learned trial judge erred in law by misdirecting himself as to the permissible use and relevance of Exhibit P5.

    10.   The learned trial judge erred in law by rejecting or considering there was little basis to accept there was a forensic disadvantage to the applicant by reason of the complainant’s delay in making the allegations.

    12.   The applicant’s trial miscarried because of the failure of the prosecution go call D H-S and Jul S.

    13.   The learned trial judge erred in failing to direct himself to consider the prosecution’s failure to call witnesses including but not limited to D H-S and Jul S when determine whether the prosecution had proved the charged acts beyond reasonable doubt.

21. Many of the grounds overlap. Further, it is convenient to deal with grounds 1 and 2 last.

    Ground 3 and 4: s 34R of the Evidence Act

22. The appellant complains that the learned Trial Judge erred in law by misdirecting himself, or alternatively in failing properly to direct himself in accordance with s 34R of the Evidence Act 1929 (SA) (Ground 3). Further, the appellant complains that the learned Trial Judge erred in law by failing to direct himself, or alternatively by failing to heed any direction, as to the permissible or impermissible use of evidence of discreditable conduct or character as being probative of the appellant’s guilt in respect of the charged acts (Ground 4).

23. Section 34R(1) provides that, in the case of evidence admitted under s 34P as discreditable conduct evidence, the judge must “identify and explain the purpose for which the evidence may, and may not, be used”.

24. Compliance with s 34R is mandatory, including when the trial is conducted without a jury. Whether there has been compliance with s 34R will depend on the circumstances of the case. For a direction under s 34R(1) to be sufficient it must identify the purpose for which that evidence may be used and the purpose for which it may not be used. Section 34R does not require the Trial Judge to instruct a jury using the precise language of s 34P. While the focus of consideration of this ground must be the terms of the Trial Judge’s directions, the adequacy of those directions must nevertheless be assessed and determined in the context of the way in which the trial was conducted, including the way in which the parties may have invited or encouraged the jury to use, or not use, the evidence of discreditable conduct.

25. As Doyle J observed in R v Singh:[14]

    When identifying the permissible use(s) of discreditable conduct evidence, precision and specificity are generally desirable.  This is so both so as to ensure that the jury are able to properly understand and employ the permissible use of that evidence, and so as to reduce the risk that they will stray into reasoning that involves an impermissible use of that evidence.  It is for this reason that (in different factual contexts) general descriptors of the relevance of the evidence, such as “background”, “context” or “relationship” evidence, have been deprecated as seldom illuminating.

    It does not follow, however, that the articulation of the permissible use need be lengthy or detailed. Further, as the extent of the trial judge’s obligation under s 34R(1) is to be determined in the context of the conduct of the particular case, it does not extend to identifying or explaining every conceivable or theoretical line of reasoning, or every aspect of the permissible lines of reasoning. Nor does it extend to instructing the jury in logic, or in what would otherwise be obvious to them. Often a quite simple and succinct identification of the permissible and impermissible uses of the discreditable conduct evidence will be appropriate and sufficient, leaving it to the jury to determine whether and to what extent they are assisted by that evidence.

    (Footnotes omitted)

    [14] [2019] SASCFC 51 at 16 [69] - [70] (Peek and Parker JJ agreeing).

26. As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of the directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.[15]

    [15] R v Tran [2017] SASCFC 99 at 38 [163] per Doyle J.

27. The Trial Judge admitted evidence of discreditable conduct pursuant to s 34P(2)(a). A direction pursuant to s 34R was therefore required. A Discreditable Conduct Notice (seeking to make conduct admissible pursuant to s 34P(2)(b)) was filed pre-trial by the prosecution alleging that both the charged and the uncharged acts of sexual intercourse committed by the appellant were admissible as evidence demonstrating a specific sexual attraction to the complainant and a tendency for the appellant to act in furtherance of that attraction. There was no need for the prosecution to file a discreditable conduct notice relating to discreditable evidence admitted pursuant to s 34P(2)(a).

28. The first step is to identify what evidence was admitted pursuant to s 34P (2)(a).

29. There is no doubt that the uncharged acts of sexual intercourse alleged by the complainant amounted to “discreditable conduct” attracting a direction in accordance with s 34R. The same can be said about the appellant’s alleged involvement in the punishment of children in a way that exceeded the boundaries of reasonable chastisement. However, I do not accept the appellant’s submission that the Trial Judge’s findings as to the nature and structure of the Group required a direction pursuant to s 34R.

30. It is not necessary for evidence to disclose the alleged commission of an offence before s 34P is engaged. However, the evidence of the different, and what one might call unusual, nature of the Group did not mean it was evidence of discreditable conduct. It was, simply put, a different and unusual lifestyle. Leaving aside the allegations in this matter it was not suggested that the Group, or any member of the Group, acted unlawfully. The Group had existed for many years prior to this alleged offending and indeed conducted projects in various states. The Trial Judge made findings as to the structure and lifestyle of the Group but did not suggest, nor does a fair reading of his reasons suggest, that the lifestyle and structure of the Group, was in itself, discreditable. It is correct to observe that the Trial Judge placed importance on the structure of the Group and the appellant’s role as being at the “apex” of the Group. Evidence that the appellant travelled “first class” when travelling overseas and that his children attended private schools (paid for by the pooling of funds) does not, of itself, demonstrate discreditable conduct. Such conduct was not hidden from the other members of the Group and, by inference at least, they must have accepted it. It was relevant to the question of where the appellant “ranked” within the Group demonstrated by the fact that he appeared to have privileges others did not.

31. The significance of the evidence, however, as the Trial Judge observed, was that the structure and lifestyle of the Group enabled the appellant to manipulate the complainant as she alleged. The evidence was clearly admissible, as the prosecutor stated in opening, to place in context the complainant’s evidence and to establish, if accepted, a reason for how the appellant could have a young girl attend his bedroom without raising concerns by the complainant’s parents or other members of the Group.

32. The Trial Judge was entitled to look at the commercial structure of the Group as evidence assisting the determination of the appellant’s role within the Group. Observations by the Trial Judge on the ranking structure and the EQ of various members simply reflected the evidence that he accepted. The Trial Judge was also entitled to consider the question of the appellant’s role in establishing what could be described as an unorthodox lifestyle when considering the appellant’s position within the Group.

33. A sporting coach may abuse and manipulate the rules and regulations of a particular club to achieve access to children without arousing parental suspicion. A trial judge would be entitled to examine the rules and regulations so that he or she might establish how the offending continued for a period apparently undetected. That of course does not make the sporting club, or its aims, discreditable. While the Trial Judge did find that the Group structure was used by the appellant to serve his own selfish ends, that is not a finding that the structure and purpose of the Group was itself discreditable. It was not the prosecution case that the Group was established, along with the IHE, EQ and the “Wisdom Bank” so that the appellant could sexually abuse this complainant, or indeed anyone else in the Group (of which there was simply no evidence). The prosecution case was that the appellant took advantage of his position within the Group to sexually abuse the complainant.

34. However, in my view even if that conduct amounted to discreditable conduct, the Trial Judge clearly directed himself as to the correct use of the evidence as discussed below.

    The Discreditable Conduct

35. The complainant gave general evidence of numerous uncharged acts of abuse. Examples included alleged abuse while she was menstruating, abuse whilst she and the appellant were travelling in India and incidents at S Springs in Queensland. The abuse also occurred in Western Australia.

36. The complainant also gave some particulars of specific acts. She gave evidence of a particular act of sexual intercourse that occurred at S Estate while she was menstruating, evidence of a particular act of sexual intercourse that occurred in Coober Pedy and also an act of sexual intercourse occurring on a trip to Mumbai.

37. In addition to the uncharged acts of sexual intercourse, the complainant gave evidence of corporal punishment that took place within the Group environment. Although this type of punishment did not seem to be a regular feature of the Group, the complainant gave evidence of two particular incidents. There was a brief reference to two other incidents but these were not particularised events.

38. The complainant described an incident when her father, Ben S, was punished. Ben S, having disrespected A, was ordered to kneel in the middle of a group, and Em S, the appellant’s daughter, obtained a big stick from the appellant’s room. Em S instructed the children that they were to knock him over the head with the stick while looking him in the eye. I note it was not suggested that the appellant personally was involved in this act of punishment or even knew about it.

1. The second incident the complainant described did involve the appellant. Having called Ol S an “arsehole”, the complainant was reported. A meeting was convened. Members of the Group were required to form a circle around the complainant while Ol S described what had occurred. The appellant told the complainant that she was a disgrace and instructed Ol S to knock her to the ground, which he did. The complainant was told she could not eat until the appellant granted permission.

2. The other matters which were referred to arose during cross-examination. The complainant said she had been hit with the punishment stick on two occasions by Em S and/or the appellant. No further details were given.

   The Use of the Evidence

3. The prosecutor, during the voir dire and his opening, identified and explained the relevance and purpose of the discreditable conduct evidence:

4. As to the Ben S incident, he said:

   This evidence is proposed to be led to show the almost complete destruction of the complainant's family unit before the offending commenced and to show it was replaced with this ranking structure at the top of which sat the (appellant).

5. As to the complainant’s punishment, he said:

   That incident, on the prosecution case, further reinforces that the (appellant) was in charge in this situation, that the complainant had every reason to fear him and to submit to him and that the (appellant) well knew that.

6. The number of acts of sexual intercourse, both charged and uncharged acts were led to explain why the complainant was no longer able to be specific about each incident. The Group dynamics were led to assist the court to understand how the appellant had the opportunity to commit the offences and was able to so without arousing suspicion within the Group and the complainant’s parents in particular.

7. In the event the Trial Judge identified the use to be made of the evidence and then used it in the manner suggested.

8. As to the complainant’s evidence about the punishment stick, the Trial Judge found that it was illustrative of the Group’s structure; in particular, that “the only way to deal with problems between siblings or between children was to talk to people higher up in the ranking structure”. The Trial Judge found that the incident was consistent with the true position of the appellant “as disclosed on Exhibit P5”. He further found that it was consistent with the continuing subjugation of those in the lower ranks. The Trial Judge found that it confirmed that the appellant had a God-like status and that “everyone was required to align their thoughts with his and those in the higher ranks were seen to have their thoughts more aligned with those of the (appellant)”. He found that it also explained why the complainant “submitted to the (appellant) in the way that she did and concomitantly why he became more emboldened over time”.[16]

   [16] Reasons at 40 [145].

9. The Trial Judge did give himself a warning about not using the evidence for propensity purposes. Although that was a warning particularly in relation to the evidence admitted pursuant to s 34P(2)(b), as the respondent submitted, it would be fanciful to suggest that the Trial Judge was aware of the prohibition on such reasoning in relation to s 34P(2)(b) evidence but not for evidence led pursuant to s 34P(2)(a). Nothing in the reasons would suggest that the Trial Judge reasoned impermissibly.

10. In the Discreditable Conduct Notice, the prosecutor outlined that the uses of the evidence of the uncharged acts were as follows:

    The use of the evidence said to be permissible under section 34P(2)(b) in respect of each count is a circumstantial evidence which demonstrates a specific sexual attraction to (the complainant) and a tendency for the (appellant) to act in furtherance of that attraction.

11. In relation to this evidence, it was unnecessary for the Trial Judge to discuss that as he, independently of the evidence the subject of the Notice, found the appellant guilty of counts 1-8. The appellant criticised the Trial Judge for not giving himself directions on evidence he specifically said he did not intend to use. Directions in such circumstances, particularly in a trial by a judge sitting without a jury, would be completely futile. There was no risk of the Trial Judge misusing the evidence; he simply didn’t use it. Nothing in the Trial Judge’s reasons suggests that he used the uncharged acts as evidence of sexual attraction and a tendency for the appellant to act in furtherance of that attraction.

12. The appellant did not point to any specific example of misuse. In those circumstances, a direction on the permissible and impermissible uses of the evidence would simply be formulaic and serve no purpose. The Trial Judge had, as outlined above, identified the use of the uncharged acts for the purposes stated, not for “propensity reasoning”.

13. Even if the Trial Judge ought to have given himself a direction as to the permissible and impermissible uses of the evidence he stated he would not use, a failure to do so in the circumstances could not amount to a miscarriage of justice. The proviso would apply.

14. I would dismiss grounds 3 and 4.

    Ground 7: False Issues

15. The appellant submitted that the learned Trial Judge misdirected himself in law by failing to identify the proper issues or alternatively by identifying false issues and resolving them adversely to the appellant.

16. I have already dealt, in part at least, with some of these matters. The issues postulated above, far from being false, were all relevant, and indeed important, on the prosecution case. In my view, this ground lacks merit. However, I will deal individually with each of the alleged false issues.

17. The issues identified by the appellant were as follows:

    (1)  the character of the Group and the obliqueness of the evidence concerning its commercial structures and undertakings;

    As discussed earlier, the commercial structure was relevant to the status and position of the appellant in the Group.

    (2)  the appellant's status within the Group;

    As discussed earlier, the appellant’s status was relevant to the opportunity to offend and have a young girl in his bedroom without raising the suspicion of the other Group members. Further, it explained why the complainant felt she was unable to complain to other Group members.

    (3)  the unscientific method by which "Emotional Quotients" were attributed to members of the Group;

    The appellant was responsible for establishing the principle of EQ within the Group. EQ was directly relevant to the appellant’s status within the Group. The complainant’s status within the Group, as determined by her EQ, was a reason why she acquiesced to the appellant’s demands and felt unable to challenge him. The method of attributing an EQ to a member was wholly unscientific. The EQ, on the prosecution evidence was dependent, in part at least, on who best aligned their thoughts with appellant’s thoughts. The Trial Judge did no more than state the obvious. The appellant did not point to any use the Trial Judge made of the fact that it was unscientific.

    (4)  the circumstances in which the Group had acquired a tax-exempt charity status and the pooling of members' income;

    This was relevant to the appellant’s status within the Group; he benefitted from the pooling of incomes. The fact that he lived a more extravagant lifestyle than, for example, the complainant and her mother and father demonstrated his status within the Group. Again, the Trial Judge did no more than state what was a historical fact.

    (5)  the complainant's schooling, or lack thereof, in contrast with the private education enjoyed by the appellant's children;

    The complainant’s educational achievements, or lack of achievements, was relevant to her status within the Group. Her educational standard was relevant to her vulnerability. The fact that the appellant’s children attended private schools while others in the Group did not, demonstrated his status within the Group.

    (6)  that, according to Vic S, female members of the Group were to defer to males, who in turn deferred to God;

    The appellant’s attitude was that women were to serve him and perform menial tasks. It was not just the complainant who performed menial tasks; other women did. The fact that women were subservient and performed such tasks was relevant as to why suspicion would not be aroused by the complainant attending his room. It also informed the nature of the belief system to which the complainant was exposed.

    (7)  whether the appellant had a typical marital relationship with Ker S - which the trial judge found, contrary to the appellant's evidence, that he did not;

    The appellant’s marital status was directly relevant to the issue of opportunity. If Ker S was present in the rooms, the complainant would not have been able to attend to the appellant so frequently.

    (8)  who laundered the appellant's clothing and manicured his nails; and

    I repeat what I stated earlier under point 6.

    (9)  the circumstances in which the appellant received group massages or healing sessions.

    Again, this is relevant to his status within the Group and as to why the complainant’s attendance in his bedroom would not arouse suspicion.

18. It cannot be said that these were false or insignificant issues. To the contrary, on the prosecution case, they were highly significant and probative issues. The prosecutor made the relevance and importance of the issues very clear during his opening. As discussed earlier, much of this evidence was not, or not significantly, challenged. That of course does not mean that the evidence must be accepted.[17] However, it was open to the Trial Judge to determine these issues and also to use the issues in relation to the reliability and truthfulness of both the complainant and the appellant (and witnesses for the appellant). I reject the submission that these issues had no rational capacity to bear on an assessment of the truthfulness and reliability of the complainant. As stated earlier, many of these issues bore directly on the account given by the complainant.

    [17] See MWJ v The Queen (2005) 222 ALR 436.

19. The appellant further submitted that the appellant suffered prejudice given that he was not facing trial on those issues and “did not come prepared to meet them”. I reject that submission. As mentioned, the prosecutor at trial opened on the relevance of the structure and dynamics of the Group. The complainant gave evidence about these matters as did her mother. Senior counsel for the appellant at trial made no complaint about the admission of the evidence. Nor did he seek an adjournment or apply for a mistrial due to the admission of the evidence. The appellant suffered no prejudice other than the probative nature of the evidence. The appellant is bound by how the issues were dealt with at trial.

20. I would refuse permission on this ground of appeal.

    Ground 9: The Relevance and Use of Exhibit P5

21. The appellant complained that the Trial Judge erred in law by misdirecting himself as to the permissible use and relevance of Exhibit P5.

22. It was common ground that in 2009 the complainant and her brother Ol S, decided to leave the Group. It was around this time that she received a letter, Exhibit P5. The letter, addressed to the complainant, of course speaks for itself, but the contents and tone of the letter are critical of the complainant and her brother for leaving the Group. The letter is unsigned but the names Vic S (the complainant’s mother) and Ben S (the complainant’s father) appear at the bottom of the letter. The letter, on its face, is written in the first person by the complainant’s mother and incorporates the views of Ben S. However, the authorship of the letter was in dispute. Vic S stated that the appellant was the author of the letter. Vic S stated that the appellant told her that the complainant and her brother Ol S “were the enemy” now. Vic S’s evidence on authorship of Exhibit P5 was not challenged during cross-examination. The appellant during his evidence denied that he was the author. The appellant stated that Ben S wanted to write to the complainant and his assistance was limited to the spelling and setting out of the letter. He said he wrote what Ben S wanted him to write. The appellant agreed, when cross-examined, that the contents of the letter were not consistent with the “laws of the IHE”.

23. The use that could be made of Exhibit P5 depended upon who was the author. The Trial Judge found that the appellant was the author. That finding was clearly open to him on the evidence. The appellant’s submissions do not acknowledge the finding of the Trial Judge that the appellant was the author of the letter. Once that issue was determined then the letter became relevantly probative of various issues. The appellant complains that the Trial Judge misused the evidence and drew inferences that were not open to him.

24. The appellant submitted that difficulties arose from the Trial Judge’s use of Exhibit P5.

25. First, the appellant submitted that Exhibit P5 contains no admissions against interest nor did it disclose any sexual interest in the complainant. So much can be accepted. That does not detract from the relevance of the letter to other important issues at the trial. At trial, a major issue was the position of the appellant within the Group and whether he could, and in fact did, exercise control over the complainant and indeed over other members of the Group such as the complainant’s parents. The relevance of the appellant’s position within the Group has already been discussed. The letter and its contents were clearly relevant to that issue.

26. Secondly, the appellant submitted that the Trial Judge adopted a speculative approach to the drawing of inferences from various passages in the letter. In particular the appellant submitted that the contents of the letter could not bear on the question of whether members of the Group were subject to physical discipline.

27. In my view, a fair reading of the entire reasons of the Trial Judge demonstrates that he approached the question of physical discipline appropriately.

28. The Trial Judge stated:[18]

    Exhibit P5 is a manifestation of the control of the (appellant) over the philosophy of the Group, over the members of the Group and their lives. It discloses the status of the (appellant), it confirms the evidence of both Vic S and the complainant that the (appellant) stands at the apex of the Group and he stands separately from and in a very special relationship with the Group. He is not just another foot soldier, he holds and exercises the power of the primacy of his position.

    [18] Reasons at 78 [318].

29. This finding was open to the Trial Judge. In relation to the question of corporal punishment, the Trial Judge referred to Exhibit P5 in response to a submission by senior counsel for the appellant. Senior counsel had submitted that corporal punishment was contrary to the spirit and intention of the IHE which was designed to avoid confrontation and resolve disputes; therefore physical punishment could never have occurred. The Trial Judge noted that this submission was contrary to the terms of Exhibit P5, which he found the appellant had written. Indeed, the appellant, in his evidence, agreed that the contents of Exhibit P5 were inconsistent with the principles of the IHE. Exhibit P5 bore directly on that issue. The Trial Judge did not misuse the evidence.

30. Thirdly, the appellant submitted that the compatibility of Exhibit P5 with the principles of IHE could not establish the offences.

31. I do not understand this submission. The relevance of the letter has already been discussed. The Trial Judge used the contents of the letter correctly. It bore on the likelihood or unlikelihood of issues in dispute. The Trial Judge did not suggest that it could prove any of the elements of the offences. However, it was clearly relevant to important issues in the case. The contents of the letter were consistent with the complainant’s, and her mother’s, evidence.

32. Further, the Trial Judge was entitled to use the contents of the letter, given his finding that the appellant wrote it, when assessing the credibility of the appellant and his witnesses. As the respondent submitted, some of the appellant’s evidence could not be reconciled with the terms of the letter. The Trial Judge was entitled to use it when assessing the appellant’s evidence and those of his witnesses, whose evidence was also contradicted by the letter.

33. I would reject this ground of appeal.

    Ground 10: Forensic Disadvantage

34. The appellant submitted that the learned Trial Judge erred in law by rejecting or considering there was little basis to accept there was a forensic disadvantage to the appellant by reason of the complainant’s delay in making the allegations.

35. In particular the appellant submitted that:

    1the Trial Judge erred in dismissing forensic disadvantage as an important consideration when evaluating if the prosecution had discharged the burden of proof on the basis that the appellant (or other defence witnesses) did not proclaim a defective memory on account of the passage of time;

    2the Trial Judge erred in using delay to explain away shortcomings in the complainant’s account; and

    3the Trial Judge erred in restricting his consideration of forensic disadvantage by reference to s 34CB of the Evidence Act 1929 (SA).

    I reject the appellant’s submissions.

36. Section 34CB of the Evidence Act 1929 (SA) provides:

    34CB—Direction relating to delay where defendant forensically disadvantaged

    (1)    A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.

    Note— See Longman v The Queen (1989) 168 CLR 79

    (2)    If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—

    (a)explain to the jury the nature of the forensic disadvantage; and

    (b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.

    (3)    An explanation or direction under subsection (2) may not take the form of a warning and—

    (a)must be specific to the circumstances of the particular case; and

    (b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.

37. Section 34CB relieves a trial judge from the obligation of giving a “Longman” warning to a jury. The terms of the section suggest that there is no requirement on a trial judge, hearing a matter without a jury, to consider the question of whether an accused has suffered a “significant forensic disadvantage” and therefore enlivening the obligation to direct him or herself in accordance with ss 34CB(2)(a) and (b).[19] Presumably Parliament considers that judicial officers are aware of, and will give the appropriate weight to, the difficulties faced by an accused when confronted with the forensic disadvantages envisaged by s 34CB. However, in some cases it may be necessary as part of the trial judge’s obligation to give adequate reasons to consider and comment upon circumstances which, in the trial judge’s opinion, do give rise to a significant forensic disadvantage to the accused or indeed forensic disadvantages that cannot be said to be “significant”.[20]

    [19] R v R, PA [2019] SASCFC 19 at 17 [85] per Parker J (Kourakis CJ and Nicholson J agreeing).

    [20] R v Bakhuis (2012) 112 SASR 536 at 547 [57] per Kelly J (Doyle CJ and David J agreeing).

38. The allegations against the appellant date back to 2003 and 2004. The appellant’s trial did not commence until 2018. The Trial Judge noted that at trial, the appellant made no submission suggesting he had suffered a forensic disadvantage whether from the delay or otherwise. Despite that, the Trial Judge dealt with the question of forensic disadvantage in some detail.[21] The appellant now raises on appeal matters on which he made no submissions before the Trial Judge.

    [21] Reasons at 155 [581] – 159 [590].

1. While there was the stark inconsistency referred to earlier which required an explanation, there was also the similarity of the errors and the likelihood of the two errors coincidentally arising in Vic S’s and the complainant’s police statements that the Trial Judge was required to assess when considering the question of the truthfulness, credibility and reliability of Vic S and then the complainant. This was an important part of the appellant’s case. The Trial Judge was also required to consider the cumulative effect of these matters. The Trial Judge failed to assess these matters or assess them on the proper factual foundation. The Trial Judge returned to this topic when dealing with senior counsel’s final submissions. The same problems arise.[61]

   I deal with the consequences of these errors later in these reasons.

   [61] Reasons at 127 [498] - 128 [503].

   3.    The Landcruiser

2. The third complaint of the appellant under this heading relates to count 5 on the information. The complainant alleged that count 5 occurred in the blue Sahara Landcruiser used by the appellant when she was about 13 years of age. It was established at trial that this vehicle was not acquired by the appellant until September/October 2015.

3. There was evidence at trial that prior to the purchase of the blue Sahara Landcruiser the appellant had driven a silver Sahara Landcruiser. The Trial Judge was not troubled about the error in the colour. In isolation, such a mistake may be of little moment.

4. The appellant complains that the Trial Judge failed to consider the cumulative effect of the “mistakes”. I accept the appellant’s submissions on this point. The Trial Judge did not consider, directly, the cumulative effect of the complainant’s “mistakes” in relation to these three matters.

   Claims of Physical Punishment

5. The complainant gave evidence that from time to time children were subjected to physical punishment. The suggestion of physical punishment did not feature prominently in the complainant’s evidence but she did give some specific examples. The relevance in the evidence, if accepted, was that the complainant could be punished for not complying with the Group’s rules. This was relevant, although indirectly, to the question of why the complainant considered herself to be subservient to members who had a higher EQ and, of course, to the appellant.

6. While the issue itself could be thought of as peripheral, it assumed some prominence at trial. The complainant gave two specific examples, only one of which involved the appellant. In cross-examination, the complainant gave non-specific evidence of two incidents in which the appellant and/or Em S hit her with the punishment stick.

7. The complainant described one incident where she was required by Em S to hit her father with a stick. The complainant also described an incident where she was hit by her brother Ol S after she had called him an “arsehole” at a birthday party. After they returned from the party, the appellant was informed and a meeting was called. The appellant was present and indeed supervised this incident. The appellant told the complainant that she had disrespected the family and instructed Ol S to knock her to the ground. The complainant described being knocked to the ground twice by her brother Ol S. Whether this incident involved the use of the stick was not made clear. The appellant denied the incident. When giving her evidence in chief, she did not describe her mother, Vic S, as being present at either incident. When cross-examined, the complainant mentioned that her mother was present at an incident when she was hit with a stick by Em S and the appellant. It is not clear whether she was referring to the earlier specified occasion or some other occasion. However, the point remains that the complainant alleged her mother was present when she was hit with a stick by the appellant and/or Em S.

8. Ol S was called by the appellant. Under cross-examination, he denied any incident where he was instructed to push the complainant to the ground. He denied that Em S made the complainant hit Ben S with the punishment stick. He later stated that he couldn’t “remember a punishment stick” or “remember any of it”. Whether this was a qualification to his earlier outright denial was not pursued. The appellant denied the incident involving him occurred.

9. It is correct to observe that the Trial Judge in his reasons did state, in relation to the question of physical punishment, that the evidence of other witnesses rose no higher than that they were not aware of any punishment being inflicted. That statement could not apply to the evidence of Ol S. However, the Trial Judge’s reasons need to be read in their entirety. What is clear is that the Trial Judge dealt specifically with Ol S’s evidence on this topic and rejected it. He disbelieved Ol S’s evidence and found that his evidence did not give rise to a reasonable possibility.

10. When dealing with Ground 9, I dealt with the use the Trial Judge made of Exhibit P5. He was entitled to use it in the manner he did. However, the Trial Judge did not simply use Exhibit P5 when assessing Ol S’s evidence. Ol S gave evidence about the activities of the Group generally. The Trial Judge found that Ol S’s evidence was “contradictory” and that he would not accede “to propositions that were relatively simple and straightforward”. The Trial Judge formed the impression that Ol S would not say “anything that may harm” the appellant and considered his evidence to be “contrived”. It was reasonably open on the evidence for the Trial Judge to form these views about Ol S.

11. The appellant also complained about the way the Trial Judge dealt with the evidence of Vic S on this topic. Vic S gave general evidence about the consequences to the children if they had not performed allocated tasks. She described the consequences as the child having to miss a meal, do extra jobs, go for a run or have a personal item taken from them. Otherwise she stated that the Wisdom Bank resolved issues between members of the Group. The prosecutor did not ask whether children were subject to physical punishment (such as being hit). Nor did the prosecutor ask whether the children would hit an adult. In particular, she was not asked whether she was present, as the complainant alleged, at an incident when the complainant was hit with a stick. Given the lack of evidence on the topic, senior counsel for the appellant, unsurprisingly, did not cross-examine Vic S on the issue.

12. Vic S’s lack of support for the complainant on this topic was pursued by senior counsel during closing submissions. The Trial Judge acknowledged that counsel “made much of” the lack of support and stated that he had taken the submission into account. He resolved the issue by stating: ^[62]

    … In such a situation and over a long period of time, it is not possible to say that some thing or other never happened. Such a contention is inconsistent with human experience and plain common sense. The same may be said of the evidence that someone such as Vic S does not recall seeing people struck with this stick. This is as much as she could say and she could not say that an event never happened. All of this evidence does not detract from the accuracy, reliability and truthfulness of the evidence of the complainant for that reason.

    [62] Reasons at 63 [249].

13. It was not open to the Trial Judge to characterise the evidence of Vic S in this way. Vic S gave direct evidence of what she did observe by way of punishment of children. While she was not asked directly about what may be described as “physical” punishment, her evidence clearly adhered to the concept of IHE. A departure from the concept of IHE, such as imposing physical discipline, may well have been something she would remember. However, that does not matter as she gave no evidence that physical punishment occurred and she did not support the complainant’s evidence on this topic. It was not open for the Trial Judge to characterise her evidence as not being able to recall seeing people struck with a stick and that she was “could not say that an event never happened”. The correct position is that her evidence on the punishment of children within the Group did not include hitting and she was not asked about the specific incident where the complainant said she was present.

14. The Trial Judge mischaracterised Vic S’s evidence and did not engage with the points made by counsel. The Trial Judge was required to assess the complainant’s evidence, taking into account the fact that Vic S did not support her account of being hit.

    Abuse at the Desert Caves Hotel

15. Count 9, an act of sexual intercourse, was alleged to have occurred at the Desert Caves Hotel in Coober Pedy. The Trial Judge acquitted the appellant of this count.

16. The complainant alleged that an act of sexual intercourse occurred at Coober Pedy when some members of the Group travelled to the Northern Territory to look for Lassiter’s gold reef. She also gave evidence of an uncharged act occurring at the same hotel on a different trip to the Northern Territory. There was little to distinguish between this uncharged act and count 9 other than the complainant stated that she was menstruating at the time of the uncharged act.

17. The complainant also said that “a lot” of sexual incidents occurred at Coober Pedy.

18. In relation to count 9 and the uncharged act, the complainant said that D H-S was on these trips and indeed D H-S, in relation to the charged act, asked her to go to the appellant’s room. The complainant said that Vic S was present on the trip during which the uncharged act occurred. However, Vic S said there was only one trip involving the search for Lassiter’s gold reef and that D H-S did not accompany the members of the Group on that occasion. Dr P, who gave evidence on behalf of the appellant, also stated that D H-S did not attend on that specific trip.

19. The Trial Judge accepted, without reservation or hesitation, the evidence of Vic S in relation to the trip. The Trial Judge was satisfied that there was “only one trip” and that D H-S did not attend. He therefore had “some doubt about the evidence of the complainant in respect of this matter”. He did not find the uncharged act proved beyond reasonable doubt. Nor could he be satisfied beyond reasonable doubt, for the same reasons, of the charged act count 9.

20. The appellant submitted that the complainant’s claim to have a specific memory of these events was such that the rejection of the foundation for them casts significant doubt on the credibility and reliability of the complainant.

21. The appellant does not complain about the approach of the Trial Judge in deciding to acquit him on count 9. The complaint is that the Trial Judge ought to have had more regard to the doubt he had on the uncharged act and count 9 when assessing the truthfulness, credibility and reliability of the complainant on the other counts.

22. The respondent submitted that a fair reading of the Trial Judge’s reasons demonstrate that he did not find that no sexual intercourse occurred on trips to Coober Pedy. Rather, given the conflict in the evidence about whether D H-S attended on the Lassiter’s gold reef trip, the complainant may have conflated the two incidents of sexual intercourse. As the Trial Judge stated the doubt raised in relation to the uncharged act was that “sexual intercourse occurred in this instance as she said”.

23. I agree with the respondent’s submissions on this point. The Trial Judge did not find that no sexual intercourse occurred at Coober Pedy. He was not satisfied of the particulars alleged to comprise count 9. It is also clear that the Trial Judge, as he was required to do, considered the effect of the acquittal on count 9 when considering the other counts.  He found that the acquittal on count 9 did not affect his overall finding that the complainant was truthful, reliable and credible. That finding was reasonably open to him on his assessment of the truthfulness, credibility and reliability of the complainant. However, this was another matter where the Trial Judge put to one side a mistake made by the complainant. As discussed earlier, he did not assess the effect of the accumulation of the “mistakes”.

    Lack of Corroboration of her Account

24. The complainant gave evidence that the appellant sexually abused her over a five to six-year period often more than three times a week and sometimes twice a day. This abuse occurred regularly unless the appellant was away.

25. The appellant submitted that there was a total lack of corroboration for the complainant’s allegations. I accept that there was no corroboration of the complainant’s account in the strict legal sense of the meaning of corroboration. However, there was support for the complainant from Vic S as to the way the Group operated and in particular that a number of women “served” the appellant.

26. The appellant submitted that there was no suggestion that other members of the Group were aware of/or complicit in the sexual relationship between the appellant and the complainant. He submitted that it is improbable, and not reasonably possible, that such a relationship would not have become known to other members of the Group.

27. The appellant submitted that Vic S did not suggest she had any awareness of the sexual relationship and when other members of the Group gave evidence, namely Dr P and Ol S, the prosecution did not suggest they were aware of the relationship either. The appellant submitted that the lack of knowledge of other members of the Group was particularly important given that the weight of the evidence was that the complainant did not begin to adopt the role of serving the appellant until late 2006. This was clearly a reference to a time after the birth of Em S’s daughter.

28. I have dealt earlier in these reasons with the question of timing and the birth of Em S’s daughter. As I pointed out during that discussion, senior counsel for the appellant did not attempt with his questions to prove inconsistencies in the evidence of the complainant and Vic S. Senior counsel did not attempt to challenge their evidence in chief about when the complainant began to serve the appellant. Rather he made the point about the similarities in their errors. During the course of their evidence, neither the complainant nor Vic S (she was not asked) retreated from their position that the complainant started serving the appellant when she was 13. Whilst the submission can be made that their evidence on this topic was challenged and open to doubt, there was in fact no evidence that the complainant began to serve the appellant from 2006. The complainant did not retreat from her position as stated in evidence in chief and Vic S was not asked to reconcile her evidence in chief and her statement to the police. However, it is not correct to say that the weight of the evidence was that the complainant began to serve the appellant in late 2006. Indeed, the correct position is that there was no evidence that the complainant began to serve the appellant from late 2006.

29. Putting that point to one side, I have also already dealt with the relevance of the Group dynamics and rules to the issue of opportunity and the fact that the presence of the complainant in the appellant’s room would arouse no suspicion. I reject the appellant’s submissions on this point.

    Improbability of her account of the number of occasions of sexual intercourse with the appellant without her falling pregnant

30. The evidence established that sexual intercourse occurred on numerous occasions. The complainant said that the appellant asked her to speak to Dr P (a chiropractor) about when she could and could not get pregnant. She said she spoke to Dr P about it.

31. The complainant was asked:

    QDid you go and have that conversation with (Dr P)

    AYes.

    QWhat did she say.

    AI can’t remember exactly what she said, I didn’t understand anything she was saying. I just remember her saying something about 14 days after not being able to get pregnant, so that’s all I went off of.

    QHow old were you when you had that conversation with (Dr P).

    AAbout 13.

32. During cross-examination the complainant was asked:

    QYour evidence was, I think, that you spoke to doctor, who was it, (Dr P), at his request about the best time during the menstruation cycle, to have sex.

    ANot the best time to have sex, the time that you couldn’t get pregnant.

    QThe time you couldn’t get pregnant.

    AYes.

    QBut are we to understand your evidence that you would have sex sometimes twice in one day, sometimes every day, sometimes two or three times a week.

    AYes, that’s correct.

    QSo it would seem that from what you’ve told his Honour, at no stage did you or he have any regard at all to your menstrual cycle.

    AHe would ask me where I was on my cycle and if I was after the 14 days, which was what I thought you couldn’t get pregnant in, then he would ejaculate in me. If I wasn’t then he wouldn’t ejaculate in me and he would ejaculate on me.

33. The complainant was unable to remember what questions she asked Dr P nor did she understand the answers. The complainant said that the appellant asked her if she had spoken to Dr P and if she had understood what she had been told. The complainant said that she told the appellant that she did understand it even though she hadn’t. It is unclear on the evidence what 14-day period in her menstrual cycle the complainant was talking about. In any event, the appellant asked her where “she was on her cycle” and if it was after the 14 days, her answer would determine whether the appellant ejaculated in her or not.

34. Dr P recalled a conversation with the complainant about her menstrual cycle and pregnancy that occurred around 2008 and in relation to the complainant’s then boyfriend Lincoln H. She was asked whether the complainant “ever raised the issue of her menstrual cycle” with her whilst living at S Estate. Dr P was certain that she did not. The Trial Judge did not accept her evidence about that topic.

35. When cross-examined, the prosecutor put to Dr P that she had spoken to her “about when in her cycle she could and couldn’t get pregnant”. Dr P replied:

    Definitely not and I'll be very worried if a young girl came to me and said that somebody had asked her to speak to me about her not getting pregnant. I'll be very concerned. That would raise major concerns with me.

36. Dr P’s answer assumes that the complainant had said to her that somebody had asked her to speak to her about her not getting pregnant. No doubt she would be concerned if a 13-year-old girl asked her that question. But that was not the proposition being put nor was it the complainant’s evidence.

37. The Trial Judge stated in his reasons that the complainant asked questions of Dr P “generally about fertility including about pregnancy”. The appellant complained that the Trial Judge in doing so mischaracterised her evidence. I reject that criticism. The evidence was very unclear, and indeed the complainant could not remember the questions she asked of Dr P. However, from the answers the complainant gave on the topic the Trial Judge was entitled to form the view that the conversation had been conducted in a general way and not specifically about getting pregnant.

38. Looking at Dr P’s entire evidence on the topic, it was open to the Trial Judge to put aside Dr P’s denials on the basis that “what Dr P understood was being put” was not what the complainant had said.

39. The complainant’s evidence is clear that the appellant attempted a form of contraception.

40. On the whole of the evidence, it was not improbable for the appellant to have asked the complainant to talk to Dr P generally about her menstrual cycle and fertility. Such an enquiry by a young girl entering puberty would not necessarily be a topic Dr P would have remembered if asked in a benign manner.

41. The respondent submitted that the risk of pregnancy was of course always present but that the appellant took steps to minimise the risk. I agree with that submission. The Trial Judge correctly assessed the evidence.

    Rejection of the Defence Witnesses

1. The appellant, under this ground of appeal, complained about the emphasis the Trial Judge put on Exhibit P5 and the use he made of it. I have already dealt with those arguments in relation to Ground 9.

2. The appellant also complained about the way the Trial Judge dealt with the evidence of Lincoln H. Lincoln H was the complainant’s boyfriend, the relationship beginning when the complainant and other members of the Group, including the appellant, were in Queensland. The complainant said the appellant knew about her relationship with Lincoln H and, in part at least, controlled it.

3. Lincoln H said that the complainant told him she was a virgin. In relation to their first sexual encounter, he believed she was a virgin. The complainant admitted that she told Lincoln H she was a virgin. She said that was a lie. There was no conflict in the evidence on that topic.

4. The Trial Judge rejected the rest of the evidence of Lincoln H “out of hand”. I do not stop to set out the evidence. On my review of the evidence, it was open to the Trial Judge to do so. No basis or background was led to underpin the opinions of Lincoln H. His evidence reeks of implausibility and of being contrived. I reject the appellant’s submissions on this point.

5. Finally, the appellant submitted that the Trial Judge used “preferential” reasoning, albeit inadvertently, when dealing with the appellant’s evidence and that of the witnesses he called. That is, although on a number of occasions the Trial Judge stated that he arrived at his conclusions having regard to “the whole of the evidence”, he in fact slipped into reasoning that because he preferred the evidence of the complainant and Vic S, he rejected the defence evidence.

6. I do not have to decide this point. I have found that the Trial Judge erred in failing to properly assess Vic S’s evidence in relation to a number of matters and this must have, logically, affected his assessment of the complainant’s evidence.

   Discussion

7. The attack by the appellant on the credibility, reliability and truthfulness of the complainant and Vic S was the central plank of his defence. It was squarely raised by senior counsel at trial both in cross-examination and in final submissions. The Trial Judge erred in his approach to these issues. The credibility, reliability and truthfulness of the complainant and Vic S were intertwined.

8. The Trial Judge also erred in failing to consider the accumulation of mistakes made by the complainant and Vic S. The Trial Judge was required to consider the errors discussed in relation to the timing, the lack of support from Vic S on the question of physical punishment and the doubt he had in relation to count 9 individually but also the accumulation of them. While it is correct to observe that the Trial Judge did say he had regard to the whole of the evidence when reaching his conclusions, he does not explain how he dealt with the accumulation of these issues.

9. The Trial Judge made it clear, on numerous occasions, that he considered that both the complainant and her mother were truthful, credible and reliable witnesses. It may be that had he addressed the matters raised above he would still have reached the same conclusion. However, the Trial Judge’s reasoning is flawed on this fundamental issue and, accordingly, there is a risk of a miscarriage of justice.

10. I would allow the appeal on Ground 2 on the basis that the appellant has established an inadequacy of reasoning.

    Ground 1: Verdicts were unreasonable or unsupported by the evidence

11. In Pell v The Queen,[63] the High Court stated:[64]

    [63] Pell v The Queen [2020] HCA 12.

    [64] Pell v The Queen [2020] HCA 12 at 13 [43] - 14 [45].

    At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:

    "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".

    The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:

    "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt."

    As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.

    (Footnotes omitted)

12. The High Court observed in R v Baden-Clay:[65]

    It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

    With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court 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”.

    (Emphasis added)

    [65] (2016) 258 CLR 308 at 329 [65] - 330 [66] per French CJ, Kiefel, Bell, Keane and Gordon JJ.

13. In Filippou v The Queen[66] the High Court considered that test in the context of a trial conducted without a jury. The plurality observed:[67]

    Authority makes plain that a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge’s finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury’s verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. To adopt and adapt the language of M v The Queen :

    “It is only where a [judge’s] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

    [66] (2015) 256 CLR 47; while the Court was dealing with the NSW legislation there is no substantive difference with the South Australian legislation (see Criminal Procedure Act 1921 (SA) s 158 and Juries Act 1927 (SA) s 7(4)).

    [67] Filippou v The Queen (2015) 256 CLR 47 at 53 [12] per French CJ, Bell, Keane and Nettle JJ.

14. The question for an appellate court is not whether it is “satisfied that the judge’s account was correct” but whether the judge’s findings were not reasonably open.[68] However, an appellant need not establish that the inconsistencies necessarily render his or her account incredible or unreliable. An appellant need only show that the inconsistencies are such that, notwithstanding the acceptance of a complainant’s testimony as honest and credible, no reasonable jury could have taken the further step of being satisfied beyond reasonable doubt of the commission of the offence.[69]

    [68] Filippou v The Queen (2015) 256 CLR 47 at 67 [56] per French CJ, Bell, Keane and Nettle JJ.

    [69] Pell v The Queen [2020] HCA 12; DES v The Queen [2020] SASCFC 32 at 1 [4] per Kourakis CJ.

15. When reviewing the evidence, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.[70]

    [70] Fennell v The Queen (2019) 373 ALR 433 at 452 [81] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ.

16. Many of the submissions made by the appellant under Ground 2 were repeated in relation to this ground. The appellant generally submitted that an examination of the substantial weaknesses in the complainant’s account, viewed together with the general consistency in the evidence adduced in the defence case, should have left the Trial Judge with a doubt about the appellant’s guilt as to counts 1-8. In relation to the complainant’s evidence, the appellant submitted that the flaws in the complainant’s evidence gave rise to an ineradicable doubt as to the credibility and reliability of her evidence. If this Court is of the view that “a reasonable jury” (trier of fact) must have entertained a reasonable doubt, the appellant is entitled to be acquitted.

17. I am required to conduct a full review of the evidence. I have done so. Under Ground 2, I have already discussed the issues of:

    ·timing and detail;

    ·the question of physical punishment;

    ·the Coober Pedy incidents;

    ·the lack of corroboration;

    ·the improbability of the complainant’s account given that she did not become pregnant; and

    ·the evidence of Lincoln H.

18. I do not need to repeat my findings in relation to those matters under this ground.

19. The appellant raised one further matter under Ground 1. The appellant submitted that the appellant denied the matters on oath and was not cross-examined on many of the specific matters upon which his evidence conflicted with the prosecution case. This it was submitted should have led the Trial Judge to have had a doubt about his guilt.

20. The appellant was cross-examined about many of the matters in issue. The Trial Judge found that on those issues the appellant was prepared to give contrived evidence and rejected it. The Trial Judge gave reasons for those findings. In particular, the appellant denied he occupied a position of primacy within the Group. It was open on the evidence for the Trial Judge to disbelieve that evidence. The appellant denied being serviced by the complainant or indeed any female within the Group. Again, it was open on the evidence for the Trial Judge to reject the evidence. There were other issues where the appellant was challenged in cross examination and the Trial Judge rejected his evidence.

21. It is correct to observe that the prosecutor only put the global question to the appellant about committing the sexual acts. The Trial Judge dealt with that in his reasons and there has been no complaint about his reasoning. The complaint is that because the prosecutor only put a global question to the appellant about the charged acts that, in combination with the other matters raised pursuant to this ground of appeal, the Trial Judge should have had a doubt about the guilt of the appellant. That is a doubt, the appellant submitted, that this Court should have on its review of the evidence.

22. I reject the premise of that submission. The finding that the appellant was an unimpressive and untruthful witness was open on the evidence. The appellant was cross-examined about a number of the contentious issues. I reject the appellant’s submissions on this issue.

    Discussion

23. A trial judge has the advantage of hearing and watching the witnesses being examined and tested in cross-examination, against other evidence, their prior inconsistent statements and inherent probabilities and improbabilities disclosed by the evidence. Certainly, the issues raised by the appellant do challenge the truthfulness, reliability and credibility of the complainant and also Vic S. However, the significance of the inconsistencies and errors in the complainant’s evidence depends upon an evaluation of them by the trier of fact. A judge or jury might reasonably accept the credibility and reliability of the complainant despite the matters raised by the appellant. None of the credibility issues I have discussed, taken either in isolation or taken together, lead me to the conclusion that there is an ineradicable doubt as to the truthfulness, credibility and reliability of the complainant’s evidence. This is not a case where a judge or jury must have entertained a doubt.

24. I would dismiss Ground 1, that the verdicts are unreasonable or cannot be supported by the evidence.

    Conclusion

25. My findings on appeal relate to the inadequacy of the reasoning of the Trial Judge not that the issues were incapable of resolution by a trial judge. To put that another way the reasoning employed by the Trial Judge does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. As discussed, the matters relied upon by the appellant are all matters that could be resolved by a trial judge.

26. While it follows that there is an inadequacy in the reasoning of the Trial Judge as to the assessment of Vic S’s evidence and also in relation to the complainant’s evidence (as discussed under Ground 2), I do not think it can be characterised as an inadequacy of reasons constituting an error of law. The problem here is not the failure to give reasons but rather the flawed or erroneous nature of the reasoning as discussed in Ground 2. However, the flaws, as identified, go to the major issue in the case namely the credibility, reliability and truthfulness of the complainant.

27. The errors in the reasoning of the Trial Judge are sufficient to give rise to a miscarriage of justice for the purpose of s 158(3) of the Criminal Procedure Act 1921 (SA).

28. I would allow the appeal. I would set aside the convictions on counts 1, 2, 3, 4, 5, 6, 7 and 8. I would remit the matter to the District Court before a different judge for a retrial on those counts.