Kirkland v The Queen
[2021] SASCA 14
•25 March 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KIRKLAND v THE QUEEN
[2021] SASCA 14
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)
25 March 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
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
Following a trial by judge alone, the appellant was found guilty of one count of maintaining an unlawful sexual relationship with a child. The complainant was the de facto step-daughter of the appellant. The appellant offended against the complainant on three occasions when she was approximately 13 years old. On each occasion, he sucked her breasts and touched her vagina and breasts. On the third occasion, he tied her up before assaulting her.
The appellant appeals against his conviction on the basis that the fair trial of the appellant miscarried due to the use made by the Trial Judge of evidence of the complainant’s mother, as well as the failure of the Trial Judge to provide adequate reasons. He further contends that the verdict was unsafe and unsatisfactory.
Held, per Lovell JA (Bleby JA agreeing) granting permission to appeal in respect of ground 3, allowing the appeal in respect of grounds 3 and 4, quashing the conviction and remitting the matter for retrial:
1. The Trial Judge’s use of the complainant’s mother’s evidence in the circumstances constituted a breach of procedural fairness leading to a miscarriage of justice.
Held, per Kelly P (dissenting) dismissing the appeal in respect of grounds 3, 4 and 5:
1. The Trial Judge’s remarks do not reveal any propensity reasoning or any error.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 12A, 13A(12), 13BA(6), 34CB, 34P; Juries Act 1927 (SA) s 7, referred to.
R v T, WA (2014) 118 SASR 382; R v Haak (2012) 112 SASR 315; R v W, CT [2019] SASCFC 18; JGS v The Queen [2020] SASCFC 48 ; Nicholls v The Queen (2005) 219 CLR 196; Baini v R (2012) 246 CLR 469; R v ADW (2002) 84 SASR 178; Nudd v The Queen (2006) 80 ALJR 614; Douglass v The Queen (2012) 290 ALR 699; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Macks v Viscariello (2017) 130 SASR 1; R v Becirovic [2017] SASCFC 156; TKWJ v R (2002) 212 CLR 124, applied.
R v Turney (1990) 52 SASR 438; R v Sierke [2011] SASCFC 53; Cawthray v The Queen [2013] NSWCCA 105; Cesan v The Queen (2008) 236 CLR 358; R v Kirkland [2020] SADC 88, discussed.DL v The Queen (2018) 266 CLR 1; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; R v Mann (2020) 135 SASR 457; Davies v The King (1937) 57 CLR 170; Quartermaine v The Queen (1980) 143 CLR 595; Wilde v The Queen (1988) 164 CLR 365; R v Ireland (1970) 126 CLR 321; R v Kotzmann [1999] 2 VR 123; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 94 ALJR 394; R v Lobban (2000) 77 SASR 24, considered.
KIRKLAND v THE QUEEN
[2021] SASCA 14
Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA
KELLY P:
Introduction
The appellant, Damian Paul Kirkland, was convicted on 6 July 2020 after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The complainant was 13 years old at the time of the offending and was the de facto step-daughter of the appellant. The appellant was 39 years old at the time of the offending.
The appellant appeals against his conviction on six grounds:
1.The trial Judge erred by failing to direct himself adequately, or at all, and thereafter failed to provide sufficient related reasons, as to his evaluation of the complainant’s reliability as distinct from her credibility.
2.The trial Judge erred by failing to provide adequate reasons for his verdict.
3.The fair trial of the appellant miscarried due to the trial Judge’s use of the evidence given by the complainant’s mother as to the manner in which she and the appellant had used the ‘rope’ and ‘restraints’, so as to corroborate or bolster the evidence given by the complainant.
4.Further and in the alternative to ground 3, the trial Judge erred in utilising the said evidence of the complainant’s mother for a propensity purpose, where such a purpose was not open and/or not the subject of submissions by counsel.
5.Further and in the alternative to grounds 3 and 4, the trial Judge erred in failing to direct himself adequately or at all as to the permissible and impermissible use of the said evidence.
6.The verdict is unsafe, unsatisfactory and against the weight of the evidence.
On 9 November 2020, the Chief Justice granted permission to appeal on grounds 1, 2 and 6. The application for permission to appeal on ground 3 was referred to the Court of Criminal Appeal. Permission to appeal on grounds 4 and 5 was not required.
Background
In 2012, the appellant commenced a de-facto relationship with the complainant’s mother. The appellant lived in a country town in South Australia and the complainant’s mother lived in metropolitan Adelaide with her children. The complainant first met the appellant in January 2012.
In 2015, the complainant’s mother moved into the appellant’s home in the country town. The complainant and the complainant’s younger brother moved with her. The complainant’s younger brother is four years younger than the complainant and suffers from attention deficit hyperactivity disorder (‘ADHD’).
The appellant’s house had three bedrooms. The appellant and the complainant’s mother shared a bedroom and the complainant had her own bedroom. The complainant occasionally slept in her younger brother’s room due to pest removal and renovation works being undertaken in her bedroom. When she shared a room with her brother, she would not initially be put to bed in his room until he was asleep, as he had difficulty sleeping with other people in the room. As a result, the complainant was initially put to bed in the bedroom of the appellant and her mother. It was only when the complainant’s brother had fallen asleep that the complainant would move to her bed in his bedroom.
At times, the complainant’s mother was not at the house during bedtime, as she would be out dancing. The complainant’s mother took up dancing in late 2018.
The complainant’s evidence
The offending took place in the appellant’s home between late 2018 and February 2019. The complainant was approximately 13 years of age. Two of the acts occurred in the appellant’s bed. One of the acts occurred in the complainant’s bed.
The complainant’s evidence was received by playing two records of interview conducted by police on 19 February 2019 and 18 May 2020. Further evidence was led from the complainant at trial and she was cross-examined on pre-approved topics.
During the first interview with police, the complainant asserted that the appellant had touched her inappropriately by sucking her breast and touching her vagina and breasts on multiple occasions. She said the appellant had tied her up with straps on his bed while her mother was out. The complainant stated that the appellant did the same things to her the other times he offended against her.
The first occasion occurred in the complainant’s bedroom. The complainant stated that she had gone to the toilet and the appellant came into her bedroom and sat on her bed. The appellant then straddled her, lifted up her top and sucked her breasts. The complainant thought that this occurred in mid-2018. In evidence, the complainant stated that this incident was the second instance of offending and that her brother was asleep in his bedroom at the time. She also stated that her mother was out, but could not remember where she was.
The last occasion occurred in the bedroom of the appellant and the complainant’s mother when school resumed in late January 2019. It was made clear during the second interview and at trial, that this occasion involved two restraints and was the only incident in which the appellant had used restraints on the complainant. The appellant restrained the complainant’s wrists using Velcro straps that were retrieved from the side of the bed. He touched her on the vagina over her clothes. The complainant managed to undo one of the straps with her mouth, which led to the appellant tying her wrists behind her back with a rope-like restraint. On this occasion, the complainant stated that she kneed the appellant in the jaw. The complainant gave evidence in Court that this was the first time she had ever seen the restraints used by the appellant.
During the second interview with police, the complainant disclosed details of offending that occurred between the first and last occasion. This offending occurred in the appellant’s bedroom and did not involve restraints. In evidence, the complainant stated that this was the first instance of offending. She stated that her brother was asleep in his bedroom and her mother was either out dancing, shopping or at a friend’s house.
In Court, the complainant stated that the first incident occurred during the last school term of 2018. It was an agreed fact that the fourth school term commenced on 15 October 2018 and ended on 14 December 2018. The second incident occurred during the Christmas holidays, which was between 14 December 2018 and 29 January 2019.
Evidence of initial complaint
The complainant told her school friend, TH, about the appellant’s actions shortly after the last instance of offending. She told TH ‘what he did, and that he was like, touching me’ but did not go into any depth. TH told the complainant to report the offending to a teacher, which the complainant put off doing for several days to possibly a week.
The complainant eventually told her home group teacher, Ms Johns, who took the complainant and TH to the school counsellor, Ms Pendry. The teachers immediately called the police and the complainant’s first interview was conducted.
TH was interviewed by police and gave sworn evidence in Court. The Judge considered that the accounts of the complaint given by the complainant and TH were not materially different and concluded that TH’s evidence amounted to evidence of complaint.
Ms Johns and Ms Pendry also gave evidence. They stated that the complainant had told them that her stepfather had touched her breasts and vagina, had pinned or pushed her on a bed and had sucked her breasts. The Judge found that this evidence and the evidence of TH was admissible to demonstrate how the matter came to light and could demonstrate consistency of conduct and consistency of account. His Honour concluded that the complaint evidence was capable of demonstrating consistency of account on the complainant’s part.
The complainant gave evidence that she did not tell her mother about the offending because her mother was in a relationship with the appellant and she did not think her mother would believe her.
Crime scene evidence
The appellant’s house was searched shortly after the complainant’s first interview with police on 19 February 2019. In the appellant’s bedroom, restraints consistent with what was described by the complainant were located. Four Velcro ties were located between the mattress and the bed base, two designed to restrain arms and two to restrain legs. The police also found a rope-like restraint designed to restrain arms in a chest of drawers, adjacent to the bed. Both restraints were photographed and the Velcro straps were seized.
The Velcro straps were sent for DNA analysis. Forensic scientist, Dr Phillippa Hearnden gave evidence to the effect that there was extremely strong support for the hypothesis that the complainant was a contributor to the DNA found on the two Velcro straps designed for the arms. However, it was acknowledged that this could have occurred due to secondary transfer. The complainant was excluded as a contributor to the DNA found on the foot straps.
On the defence case, the complainant’s DNA was transferred from the bed to the straps, as the complainant sometimes slept in the bed.
Evidence of the complainant’s mother about the restraints
The complainant’s mother gave evidence that she and the appellant had acquired the restraints in November 2018. They were kept between the bed base and the mattress in the bedroom, or in a chest of drawers next to the bed. The Velcro restraints were used to restrain her wrists and feet during consensual sexual activity. When they were around her wrists, they allowed for limited movement. She stated that the rope restraints were used to tie her hands behind her back and were kept in the chest of drawers.
In cross-examination, the complainant’s mother said she did not recall ever catching the complainant ‘snooping around’ in the bedroom. She also clarified that there was no elastic component to the Velcro restraints.
The defence case
The appellant exercised his right to decline to call or give evidence at trial.
The defence case was that the sexual acts did not occur. To cast doubt on the prosecution case, the defence identified aspects of the complainant’s accounts that were either inconsistent or did not ‘ring true’. Relevantly, this included the fact that the complainant had every opportunity to come across the restraints previously and that it was implausible for the complainant to have kneed the appellant if she was being straddled. In addition, a number of other inconsistencies in the complainant’s evidence were highlighted, including the following:
•In her first interview, the complainant said that the kneeing of the appellant ended the incident. However, in her evidence, the complainant said that after she kneed and injured the appellant, he continued to suck on her breast.
•In her first interview, the complainant said the appellant offended against her four times but in her evidence, it was three.
•The location and account of the first and second incident were reversed in her evidence as compared to her police interview.
It was further submitted that there was no supporting evidence for the first two incidents and limited support for the third incident.
The trial Judge’s findings
Based on the evidence, the Judge was satisfied beyond reasonable doubt that on each of the three occasions, the appellant touched the complainant on the breasts, sucked or licked her breasts and touched the complainant in the area of her vagina over her clothes. His Honour was satisfied that on the last occasion, the appellant used restraints on the complainant.
I now turn to discuss the grounds of appeal advanced by the appellant.
Ground 1: Evaluation of the complainant’s reliability as distinct from her credibility
The first ground of appeal is a complaint that the Judge erred in his analysis of the complainant’s evidence, by failing to deal with her reliability as distinct from merely considering issues as to her credibility.
The appellant’s submission was that, in considering both the credibility and reliability of a witness, a Judge must undertake what counsel for the appellant described as ‘a two-stage enquiry’. The appellant complained that the Judge failed to identify any directions which he gave himself as to the complainant’s reliability or provide any reasons as to the enquiry he undertook to satisfy himself of the complainant’s credibility as well as her reliability. Further, the appellant complained that the trial Judge’s treatment of the various inconsistencies in the complainant’s evidence required more than ‘a very brief passing reference’, particularly in circumstances where the inconsistencies raised important questions as to the complainant’s overall reliability and credibility, which were at the centre of the prosecution case.
It was a central plank in the defence case that there were issues with the complainant’s credibility and reliability. The trial Judge’s awareness of this was made clear by remarks made at the outset of his Honour’s reasons:[1]
[3]The defence case may be summarised as follows:
• Although the accused did not give or call evidence his plea of not guilty on all counts means he denies all the allegations of sexual offending.
• The alleged sexual acts did not occur.
• The complainant’s evidence lacks creditability and reliability.
• The evidence of the prosecution witnesses, together with the exhibits, is insufficient to prove beyond reasonable doubt any of the three charges.
[1] R v Kirkland [2020] SADC 88 at [3].
Later, after summarising the evidence and both counsel’s addresses, the Judge said:[2]
[75]I find that the complainant was a compelling witness. Both in her statements and in her evidence she spoke in a straightforward manner. I saw no efforts to exaggerate her account. For example, she did not claim that the accused had used all four of the Velcro restrains on her. She did not allege the extensive abuse over a long time. When asked if the accused had touched her vagina over or under her clothes, she replied “over”.
[76]She appeared to answer questions in a frank manner, doing her best to address the questions appropriately and as completely as she could. She did not suggest a course of grooming by the accused. She did not suggest that the accused had attempted to swear her to secrecy.
[2] R v Kirkland [2020] SADC 88 at [75]-[76].
To my mind, on any fair reading of those passages, the finding that the complainant was a compelling witness was also a finding that the witness was both credible and reliable. That conclusion is reinforced by the trial Judge’s finding at [84] of his reasons that the complainant truthfully and accurately described the appellant committing sexual acts upon her on the three occasions between October 2018 and February 2019.
The appellant’s submission that the facts of this case called for the so called ‘two-stage enquiry’ appears to be based on what fell from David J in R v Sierke[3] and a more recent decision of the New South Wales Court of Appeal in Cawthray v The Queen.[4]
[3] [2011] SASCFC 53.
[4] [2013] NSWCCA 105.
Both decisions need to be appreciated in the context of the facts of those cases.
In Sierke, the appellant was convicted of raping the complainant. The complainant had ingested cocaine, smoked marijuana, consumed alcohol and was, on her own evidence, intoxicated at the time of the offending. The appellant and the complainant had been in a sexual relationship at the time of the alleged offence. The Court held that the facts of the case demanded attention to the question of the complainant’s reliability.[5]
[5] R v Sierke [2011] SASCFC 53 at [33].
In Cawthray, the complainant was a child who was aged six or seven at the time of the offending, around 10 years old at the time of the police interviews, and approximately 11 years old when she gave evidence in Court. The trial Judge accepted evidence of the complainant’s mother as to significant matters about which the complainant’s evidence was wrong. It was in that context that the Court found that the Judge had failed to properly consider the complainant’s reliability, by only confining himself to the question of whether she was lying about the event or giving honest evidence.[6]
[6] Cawthray v The Queen [2013] NSWCCA 105 at [133]-[134].
Properly understood, neither decision stands as authority for the proposition that reliability and credibility always have to be considered separately and distinctly.
Rather, both Sierke and Cawthray reinforce what I consider to be axiomatic; that before accepting the evidence of a witness, a Judge must find their evidence to be both credible and reliable in all material respects.
Here, in support of the submission that the complainant lacked reliability, the appellant relied on what was said to be many inconsistencies in the accounts given by the complainant, both in the two interviews with police and later at trial.
The trial Judge identified and discussed in detail the various inconsistencies at [11]-[28] of his Honour’s reasons for verdict. It is necessary to repeat his Honour’s discussion here:[7]
[7] R v Kirkland [2020] SADC 88 at [11]-[28].
[11]In her first interview with the police the complainant said that the accused had touched her inappropriately by sucking her breast and touching her vagina and breasts (MFI P1A, p 4). She said that it had happened four times “last year” (2018) and then in the holidays (p5). She said the accused had tied her up with straps on the bed. She had kicked him in the jaw and run away (pp 4 and 5). She said she had told him to stop (p5). In this first interview the complainant appears to focus on the occasion when the accused tied her to the bed in the adults’ bedroom. She said that at that time she was sharing a bedroom with her brother so she had gone to bed in the adults’ bedroom first. Her mother was out.
[12]Early in the interview the complainant said that the accused did the same thing to her the other times he had offended against her.
[13]She said that when the accused put the straps on her wrists, she had got one of them off with her mouth. The accused then used something else to tie her wrists behind her back (p7).
[14]As the interview progressed the complainant said that the incident she had been describing, the one where the accused had used straps and where she had kneed him and got away, was the last occasion anything happened (p10). She thought that that occasion had happened three or four weeks earlier (mid to late January 2019). The last occasion had happened when school resumed. It was agreed that the first school term in 2019 began on 29 January.
[15]The interviewer then tried to find out when the first offending took place. The complainant said that she thought it occurred in her bedroom (p13). The complainant said that she had gone to the toilet. The accused had come into her bedroom and sat on her bed. He then straddled her, lifted up her top and sucked her breasts (pp. 14-16). She thought that that occasion had been in the middle of the previous year (2018).
[16]The interviewer then questioned the complainant about the other occasions, that is the occasions between the first and the last.
[17]The complainant said she was not sure whether there was one or two more occasions (p17). She said that the other occasion or occasions were not really much different from the others.
[18]The interviewer returned to the last occasion. The complainant gave details of the straps the accused had used. The complainant clarified that when the accused touched her on the vagina it was on the top of her clothes, not under (p21).
[19]The complainant said she had told her best friend at school what the accused was doing. She said she told her friend that “he was, like, touching me. I didn’t tell her, like, in depth …” (p23).
[20]The complainant was re-interviewed by a different police officer on 18 May 2020 (P2, MFI P2A). The interviewer first sought brief clarification of the last incident, the one where the complainant had told the first interviewer that she had kneed the accused and had got away. Neither the interviewer nor the complainant mentioned at that stage anything about the use of the straps (p1). The complainant had in fact said to the first interviewer that the straps were used on the last occasion of offending.
[21]On page 3 of the second interview there arises some confusion. In the first interview, some fifteen months earlier on 19 February 2019, the complainant had spoken of only one occasion when the accused had used straps. She said it occurred in the adult bedroom. It was the last occasion when any offending occurred. She had got one of the straps undone with her mouth, whereupon the accused had tied her wrists behind her back with something else. On this occasion she had kneed the accused in the jaw and ran away.
[22]She had spoken of the first incident occurring in her own bedroom. On that occasion there was no suggestion of straps being used and the accused had left her in her own bed after the sexual acts.
[23]There was no precision at the time of the first interview about any other sexual act between the first in the complainant’s bedroom and the last in the adult bedroom involving the restraints. The complainant said there was sexual offending between the first and the last incident but she was not sure whether there was one or two occasions of such offending.
[24]In the second interview the interviewer began the detailed questioning by revisiting what the complainant had said in the first interview about the restraint incident. This exchange took place been the interviewer and the complainant.
“47. Interviewer Okay, so you said the first time he tried to do that, I got them off with my mouth and he used this other thing like that went around your wrist and then behind your back and it wasn’t stretchy, so I couldn’t do anything.”
The complainant replied by saying:
“48. Yeah it was, like, they were Velcro and it was just, like, rope, and was, like, I couldn’t move my arms or do anything so.”
[25]Plainly the interviewer thought that the complainant was referring to two separate incidents. The reference to “the first time he tried to do that” and the two restrains, that is the Velcro and the rope, might have given that impression. After the accused’s[8] answer at par 48 the interviewer asks a double barrelled question.
“49.Interviewer Okay, so was that a different time to when you told Kym. Did you tell Kym about that time?
50. Complainant No.
51. Interviewer Okay, so I would like to talk about that time that that happened. So what were you doing before that happened that time.”
[26]The interviewer asks the complainant to tell her about the occasions she appears to be talking about. The complainant tells her about the accused sucking her breasts and touching her vagina on an occasion in the adult bathroom. She makes no mention of restraints or kneeing the accused or running away (pp 4-9).
[27]Plainly the interviewer was expecting that the incident the complainant was talking about would involve the restraints. When the answer did not involve the restraints the interviewer returned to the account of the restraints incident in the first interview (par 157).
[28]In the questions which followed, the complainant said that there was only one occasion when restrains had been used, but when she removed one of the Velcro restraints with her mouth, the accused had tied her wrists with a rope like restraint. On that occasion she had kneed the defendant in the jaw and run away. That was the last occasion (pp 9-13).
[8] It is assumed that the trial Judge meant the complainant.
On any fair reading of those paragraphs, it is apparent that the trial Judge dealt with the various inconsistencies before ultimately concluding that they did not materially detract from the complainant’s credibility.[9] The Judge’s finding that the complainant was a compelling witness made it clear enough that he was referring to her overall reliability and credibility.
[9] R v Kirkland [2020] SADC 88 at [78].
I would dismiss this ground of appeal.
Ground 2: Adequacy of the Judge’s reasons
The second ground of appeal raises again the issue of whether, in all the circumstances, the trial Judge discharged the obligation to give adequate reasons for his verdict.
The relevant principles have been canvassed in recent decisions of both the High Court and this Court. Those principles are well settled and do not need to be repeated in any detail here.[10]
[10] DL v The Queen (2018) 266 CLR 1; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68.
Here, the appellant contends that the trial Judge’s reasons were inadequate for a number of reasons, including the failure to set out in sufficient detail, or at all, the elements of the offences charged, the principles of law that he applied, the general and specific directions required, and in particular, two directions relating to the admission of evidence pursuant to s 13A(12) and s 13BA(6) of the Evidence Act 1929 (SA) (‘the Evidence Act’) and finally, the failure to grapple with key aspects of the defence case.
I shall deal with each of these contentions in turn.
Elements of the offence
As to the complaint that the Judge failed to address the elements of the offence charged, it is relevant to note that the only issue at trial was whether the sexual acts complained of actually occurred.
Section 50(1) of the CLCA, the offence of maintaining an unlawful sexual relationship with a child, is an offence with which trial Judges are only all too familiar. The elements of that offence are:
1.the accused was an adult (over the age of 18 years);
2.the complainant was under the prescribed age during the relevant period (17 years in this case);
3.the accused knowingly maintained a relationship with the complainant; and
4.while the relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or towards, the complainant.
The first three elements of that offence were not in dispute. The first element as to the appellant’s age was an agreed fact.
The second element of the offence was proved by the complainant’s mother and through the tender of the complainant’s birth certificate. None of that evidence was challenged.
As to the third element of the offence, the complainant gave evidence that at the time the offences occurred, the appellant was in a relationship with her mother. The complainant’s mother gave the same evidence. During the relevant period, the appellant was living in the same house as the complainant and her mother. It is well settled that persons sharing a home are necessarily in a domestic relationship.[11] The third element of the offence was not challenged.
[11] R v Mann (2020) 135 SASR 457 at [33].
The only element in dispute at trial was the fourth element, and that is as to whether the offences alleged by the prosecution actually occurred.
It was therefore not necessary for the trial Judge to set out the other undisputed elements of the offence, which he would have undoubtedly been familiar with.
Adequate directions
As to the appellant’s complaint that the trial Judge failed to give himself any directions relating to the admission of the complainant’s evidence and the evidence of the two complaint witnesses pursuant to s 13A(12) and s 13BA(6) of the Evidence Act, I do not accept that there was any obligation on the Judge to warn himself in accordance with those sections.
Section 13A(12) and s 13BA(6) of the Evidence Act state:
13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings
…
(12)If, in a criminal trial, a court makes special arrangements for taking the evidence of a vulnerable witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
…
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
…
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
It can be seen that s 13A permits a trial court to make special arrangements for the taking of evidence of a vulnerable witness. Those arrangements might include evidence being given outside the court by closed circuit television, or by way of a one-way screen being placed between an accused and a witness. By its very terms, subsection (12) of that section requires a Judge to warn the jury not to draw from that fact any inference adverse to the defendant and not to allow the special arrangements to influence the weight to be given to the evidence.
Subject to the criteria set out in the section, s 13BA permits a court to make an order that the evidence of a witness be admitted in the form of an audio-visual record. On its terms, s 13BA(6) requires the Judge to explain to the jury that the law allows the court to admit evidence in this form, and to warn the jury not to draw from the admission of evidence in that form any inference adverse to the defendant. The Judge must further warn the jury not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
There is nothing in the text, context or purpose of either s 13A(12) or s 13BA(6) of the Evidence Act that supports the construction of the word ‘jury’ to include a Judge sitting without a jury.
In R v T, WA,[12] Kourakis CJ (Vanstone and Anderson JJ agreeing) held that s 34CB of the Evidence Act, which concerns the requirement to warn a jury of any forensic disadvantage suffered by an appellant, does not apply to a trial which proceeds without a jury.
[12] (2014) 118 SASR 382.
In R v Haak,[13] Kourakis J as he then was (Sulan and Stanley JJ agreeing), held that another section, s 12A of the Evidence Act, which requires warnings to the jury relating to uncorroborated evidence of a child in criminal proceedings, applies in its terms only to a jury trial.
[13] (2012) 112 SASR 315.
In both cases, this Court observed that these warnings are self-evidently required to be given to juries in order to safeguard against the risk that the jury might reason impermissibly. That risk does not exist when the trial proceeds without a jury.[14]
[14] R v T, WA (2014) 118 SASR 382 at [21]; R v Haak (2012) 112 SASR 315 at [38].
In my view, that reasoning applies to the warnings required under s 13A(12) and s 13BA(6) of the Evidence Act.
Failure to deal with important aspects of the defence case
I turn now to consider the key aspect of the appellant’s submission in respect of this ground. It is contended that the trial Judge’s reasons were inadequate because the Judge did not grapple with key aspects of the defence case.
The appellant complained that the reasons do not contain any meaningful analysis but, when distilled, comprise no more than a summary of the evidence given and then an ultimate decision by the trial Judge.
It may be accepted that the trial Judge’s reasons were brief. However, in order to assess the complaint that the Judge failed to grapple with key aspects of the appellant’s defence, it is necessary to identify what that defence was and whether the Judge adequately dealt with it.
It is apparent that the appellant’s defence was based on three main propositions, which counsel for the appellant articulated in her closing address. The first proposition was that the complaint appeared to come out of nowhere. Contrary to many allegations of sexual abuse, there was no context or background, just three occasions which all seemed to come out of the blue and with very little detail given by the complainant.
The second matter counsel for the appellant emphasised was that the complainant had ample opportunity to snoop around in her mother’s bedroom and find the restraints. There was uncontested evidence that she slept on the bed with her mother for a few hours at night for several months. With that not contested, there was nothing particularly significant about the presence of DNA on the Velcro straps.
Finally, the appellant’s counsel emphasised the implausibility of the complainant’s account of how she extricated herself from one of the straps by removing it with her mouth. The appellant’s counsel contended that the position of the straps under the weight of the mattress and their lack of elasticity, a fact confirmed by the complainant’s mother, necessarily resulted in the complainant’s account being implausible.
In addition, the appellant’s counsel pointed to the lack of detail given by the complainant about incidents which occurred in a relatively short period of time and the fact that there were many inconsistencies in her evidence given out of Court and in Court. These inconsistencies were important because they had the capacity to influence the credibility and reliability of the complainant, which in turn, impacted on his Honour’s acceptance of the prosecution case over aspects of the defence case outlined above.
To determine whether the inconsistencies were of such a magnitude that they undermined the complainant’s reliability and credibility, it is necessary once again to consider the whole of the evidence and what the Judge had to say about it. I have earlier referred to the Judge’s treatment of some of the inconsistencies when discussing the first ground of appeal.[15]
[15] See [41] above.
The first category of inconsistencies relied on by the appellant were the inconsistencies said to be contained in the interviews tendered by the prosecution. It is necessary to say a little more about those interviews which need to be read together as a whole.
Although the complainant was criticised for alleged inconsistencies, it is plain from the transcript of those interviews that much of the lack of clarity in the first interview can be attributed to the way in which the interview was conducted. With due respect to both the interviewers, neither interviewer was particularly clear in the way they phrased their questions and in many respects the so-called inconsistences were in reality not inconsistencies at all.
For instance, it is true that the complainant only gave detail as to two occasions of sexual acts in the first interview. However, it is significant that the following exchange occurred between the complainant and the interviewer during the complainant’s first interview:
[Interviewer]: … So you have told me that the first time, that something like this happened, and you told me about the last time, something like this happened. Is there, how many other times
[Complainant]: Don’t know. Maybe once, or twice, I’m not sure.
[Interviewer]: Once or twice? And, can you tell me about another time that this happened?
[Complainant]: It was just like the same as the others, not really much different.
[Interviewer]: Yeah. Do you remember where?
[Complainant]: No
[Interviewer]: Was it at home?
[Complainant]: Yeah
[Interviewer]: Yeah. Ok. Right. Tell me about [the appellant].
It is obvious from that exchange that even in the first interview, the complainant did mention other instances of sexual abuse in addition to the two she had spoken of. The interviewer did not give her an opportunity to provide details of what occurred, but simply moved on to a new topic. A more competent interviewer may have avoided the necessity of the second interview, which took place some 16 months later. When asked in the second interview to provide further detail on an occasion between the first and the last acts, the complainant did so.
When read in the context of the whole interview, the complaint that the complainant did not give sufficient detail and described each occasion as occurring ‘in exactly the same way’, is understandable.
However, the fact is that the complainant did give details on the way in which she was sexually abused on each occasion. It is apparent from the way the complainant expressed herself that her use of the phrase ‘almost the exact same way’ was her way of saying that he had continued to engage in inappropriate sexual acts towards her.
For these reasons, I consider that the defects in the two interviews reflect more upon the competence of the interviewers than upon the credibility of the complainant. Contrary to the appellant’s submission that the Judge failed to engage with the inconsistencies, which were a key aspect of the defence case, I consider that his Honour did discuss the key matters relied on by the appellant and explained why, in the end, he was able to conclude that these inconsistencies did not impact materially on the complainant’s credibility.
After the extensive discussion between [11]-[28] of his reasons,[16] his Honour concluded at [29]-[31]:[17]
[29]That account is consistent with what the complainant said in the first interview. There was only one incident involving restraints but that incident involved two restraints, the Velcro one followed by the rope like one. When the complainant freed one of the Velcro restraints with her mouth the accused tied up both her wrists with the rope. This was the occasion when the complainant kneed the accused in the jaw and ran away. It was the last time anything of a sexual nature occurred.
[30]The second account is consistent with the first in another sense. In the first interview the complainant had spoken of the first offending occurring in her bedroom. That topic was not revisited in the second interview. In the first interview the complainant said that there were one or two incidents between the first and the last. In the second interview she speaks of an incident in the adult bedroom which did not involve restraints.
[31]In her evidence in court the complainant said there were three incidents, two in the adult bedroom and one in her own bedroom. The only difference between her account in court and the account in the first interview is that in court she said the offending in her own bedroom was the middle one of the three, whereas in the first interview she said the incident in her bedroom was the first.
[16] See [41] above.
[17] R v Kirkland [2020] SADC 88 at [29]-[31].
It is apparent from the passages cited above and earlier in the trial Judge’s reasons,[18] that not only did the Judge discuss these matters at some length, he explained clearly enough why, in the end, he was able to conclude that the various inconsistencies did not matter or were only peripheral. Considered as a whole, the Judge’s reasons, although brief, make it clear enough why he rejected the defence case.
[18] R v Kirkland [2020] SADC 88 at [11]-[28].
For these reasons, I would dismiss ground 2.
Grounds 3, 4 and 5: The use made by the trial Judge of evidence given by the complainant’s mother and the complainant as to the use of restraints by the appellant
These grounds of appeal concern the evidence led at trial in relation to the restraints that were located by police in the appellant’s bedroom, which were consistent with what the complainant described when recounting one of the sexual assaults.
The complainant’s mother was asked in both examination-in-chief and cross-examination about those straps and how they were used in the course of her consensual sexual relationship with the appellant.
The complaint made by the appellant arises out of the trial Judge’s observations at [59] and [77] of his reasons:[19]
[59]Ms Harper submitted that there was support for the complainant’s evidence in the discovery by the police of the restraints. The complainant’s evidence is consistent with what the police found. The Velcro straps were under the mattress so they might be accessed while on the bed. The rope was in the drawer which is where the complainant said the accused got it from. The use to which the accused says the complainant put on the restrains is consistent with the mother’s account of how the devices were used by the two adults, except that the Velcro straps were only applied to the complainant’s hands not her feet.
…
[77]The account of the use of the restraints is a striking one, but an unusual one to make up. Her account gets support from the discovery of the straps and the DNA evidence. Her account of the accused tying her wrists behind her back with the rope is unusual, but the mother said that is precisely what the accused did to her.
[19] R v Kirkland [2020] SADC 88 at [59], [77].
The appellant submits that the above passages demonstrate that the Judge has used the evidence for a propensity purpose, potentially requiring a notice pursuant to s 34P(4) of the Evidence Act.
In making that submission, the appellant relied on what fell from this Court in R v Turney.[20] In Turney, the appellant was charged with a number of counts alleging unlawful sexual intercourse with a child. The complainant gave evidence that the appellant’s sexual assaults on her included anal and oral intercourse. At trial, the prosecution led evidence that the appellant and the complainant’s mother had also engaged in oral and anal intercourse.
[20] (1990) 52 SASR 438.
King CJ (Cox and Duggan JJ agreeing) held that the evidence of oral and anal intercourse given by the complainant’s mother was not such a distinctive or unusual practice as to justify admitting the evidence. The Court found that the impugned evidence was not sufficiently probative so as to pass the threshold test of relevance.[21]
[21] R v Turney (1990) 52 SASR 438 at 444.
The current appeal can be distinguished from Turney in two respects. Firstly, as highlighted by the respondent, the trial Judge here did not engage in impermissible propensity reasoning. Secondly, I consider the evidence led in this case to be qualitatively and relevantly different to the evidence that was sought to be led in Turney.
Here, the police located an item of evidence in the form of restraints. They were photographed in situ under the mattress where they were found. The photographs and the physical restraints, comprising black nylon straps, were tendered at trial. What gave these items high probative value was that they were similar to the restraints described by the complainant as having been used in the course of the third assault charged. In addition, the complainant’s mother gave evidence that the restraints were used by her and the appellant in the course of their consensual sexual relationship.
The complainant’s mother’s evidence was quite narrow. She said the restraints were used by her and the appellant in the course of their consensual sexual relationship. It is true that to some extent, the evidence of the complainant’s mother was capable of supporting an inference that the appellant had a predilection for the use of some form of restraint in the course of having sexual relations. However, the complainant’s mother did not describe any unlawful conduct on the part of the appellant. I do not consider that such a practice between the appellant and the complainant’s mother could fairly be said to amount to discreditable conduct in the relevant sense necessary to engage s 34P of the Evidence Act.
There are many and varied sexual practices engaged in between consenting adults in the course of adult consensual sexual relations. As King CJ observed in Turney, ‘In our plural society, what is discreditable may be a matter upon which opinions differ. This is particularly true in sexual matters.’[22] King CJ went on to remark, somewhat prophetically, that if the exclusionary rule regarding the admission of evidence said to amount to discreditable conduct were to be extended, ‘the blurring of the criteria for exclusion, and therefore for admissibility, which presents such a problem to trial judges under the present rule, would become even more pronounced.’[23]
[22] R v Turney (1990) 52 SASR 438 at 441.
[23] R v Turney (1990) 52 SASR 438 at 441.
I acknowledge that, by the enactment of s 34P of the Evidence Act, the exclusionary rule has been extended to include discreditable conduct, whether or not it constitutes an offence. However, the point I make is that this Court should be slow to unnecessarily extend that rule to include practices engaged in between consenting adults of the kind referred to in this case.
In Turney, King CJ did not consider that the evidence was inadmissible on the basis that it possessed the character of inadmissible propensity evidence, but on the basis of relevance. In concluding as much, his Honour relevantly observed that a demonstrated predilection on the part of an accused person for a bizarre form of sexual activity, may, in some circumstances provide confirmation of an allegation that an accused person engaged in that form of sexual activity with an alleged victim.[24] Here, as the trial Judge observed, the complainant’s account of the use of restraints was somewhat unusual. The finding of restraints similar to the ones she described under the very mattress where the offence was said to have occurred, is what gave the evidence such high probative value.
[24] R v Turney (1990) 52 SASR 438 at 439.
To illustrate the point with an example divorced from the facts here; let it be supposed that the complainant had given evidence that the appellant required her to wear a set of fishnet stockings during the sexual assaults. Let it be further supposed that a pair of fishnet stockings was found under the bed and the complainant’s mother gave evidence that the appellant always required her to wear them during sexual relations. To my mind, the evidence about such a practice is quite innocuous. However, its probative value would lie in the fact that the very item described by the complainant was located in the room where the assault was alleged to have happened and the complainant’s mother’s evidence that the appellant had in the past engaged in a similar practice when having sexual relations with her.
That being said, I do not consider that the evidence of the complainant’s mother relating to the restraints could fairly be said to amount to discreditable conduct evidence in the relevant sense necessary to engage s 34P of the Evidence Act. That conclusion is reinforced by the fact that no one at trial thought to raise the issue, and it is plain that it did not occur to the trial Judge either.
Even if I am wrong about characterising the complainant’s mother’s evidence as innocuous, I consider that it would meet the threshold test under s 34P(2)(a) or s 34P(2)(b) of the Evidence Act for the reasons I have provided.
I consider that the Judge’s reasons at [77][25] make it plain enough what the evidence was used for. There were a number of aspects of that evidence which the trial Judge recognised were relevant and probative of guilt. They were:
1.That the complainant’s account of sexual activity included the appellant’s use of wrist straps and rope in a particular way;
2.The complainant’s account was supported by the evidence from the complainant’s mother that the appellant had used wrist straps and rope in a similar way in the course of consensual sexual activity; and
3.The complainant’s account was also supported by the real evidence, being the straps found under the mattress and the rope in the drawer near the bed on which the unlawful sexual activity had occurred.
[25] See [84] above.
In the reasons at [77] the Judge made it clear that the ‘unusual’ account given by the complainant, together with the corroboration provided the mother’s account and the real evidence, rendered the evidence of the complainant both probative and unlikely to have been fabricated. Whilst the fact that the ankle straps were used on the complainant’s mother but not on the complainant was a matter to be considered, that did not detract from the admissibility and proper use of the evidence. The same might be said about the fact that the complainant’s DNA on the wrist straps (but not on the ankle straps) could have resulted from transference.
In these circumstances, I consider that the Judge’s reasons read as a whole provide no support for the proposition that the trial Judge engaged in mere propensity or bad person reasoning with respect that that evidence.
It is difficult to articulate any possible misuse of that evidence apart from the permissible use, or to articulate what else he might sensibly have said about the purpose for which the evidence could not be used.
For these reasons, I consider it plain that the reception of that evidence did not engage s 34P of the Evidence Act and the Judge’s remarks at [77] do not reveal any propensity reasoning or any error.
Ground 6: Unsafe and unsatisfactory verdict
The principles that apply when determining whether evidence at trial is sufficient to support a conviction are well settled. I refer to the High Court’s articulation of the principles in M v The Queen:[26]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[Citations omitted]
[26] (1994) 181 CLR 487 at 493.
More recently, the High Court in Pell v The Queen stated: [27]
[39]The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[Citations omitted]
[27] Pell v The Queen (2020) 94 ALJR 394 at [39].
The appellant’s complaint under this ground can be summarised as a complaint that the verdict is unsafe because the complainant’s evidence, which was uncorroborated, was infected with such imprecision and inconsistency that, notwithstanding the fact that there was evidence upon which the trial Judge might convict, he must nevertheless have entertained a reasonable doubt as to the appellant’s guilt.
The submission that the complainant’s evidence was imprecise and inconsistent rested substantially on the evidence given by the complainant in her two interviews with the police. In particular, the appellant emphasised the complainant’s evidence relating to how many occasions of offending there were, the chronology of the offending and the complainant’s assertion that the incidents occurred in ‘almost the exact same way’ when, in fact, the three incidents were quite different.
In discussing these grounds, I have already touched on some of the inconsistencies relied on by the appellant when discussing the issues which arose in respect of grounds 1 and 2. I do not propose to repeat what I have said about the alleged inconsistencies in the complainant’s interviews and her evidence concerning the restraints, except to say that the Judge dealt with the inconsistencies and found that they were peripheral and did not detract from the complainant’s credibility.
It is true that the Judge did not explicitly deal with the defence argument as to the implausibility of the complainant’s account of being able to remove the restraints.
It is also true that he did not explicitly deal with the evidence that on one occasion, the complainant claimed to have screamed and yelled for the appellant to stop, though there was an absence of evidence from the complainant’s brother, who was said to be present in the house at all relevant times, about that occurring.
However, given the complainant’s description of her screaming on that occasion as ‘not very loud’,[28] it was open to the trial Judge to treat that evidence as of little moment.
[28] Transcript of proceedings, R v Kirkland (District Court of South Australia, DCCRM-20-289, Judge Barrett, 2 June 2020) 47/17-19.
Q.How loudly did you scream.
A.Not very loud. I told him to get off and I raised my voice.
When assessing these complaints, it needs to be borne in mind that the evidence led at the trial was not extensive. In fact, the evidence taken at trial, including counsels’ addresses, although spread over four days, occupied barely more than one sitting day. There was only one real issue at trial and that is whether the acts complained of occurred. This was a case where acceptance of the complainant as a reliable witness of truth was central to the guilty verdict.
As to the issue relating to the implausibility of the complainant’s account of escaping from the restraints, it is true that the Velcro straps she described as elastic were not elastic. However, the complainant’s mother gave evidence on that topic, which was important when assessing the credibility of the complainant’s account. She said:[29]
Q.And were they all affixed to the bed. Do you understand what I mean by ‘affixed’. Were they actually held onto the bed by anything when they were used.
A.No, only the mattress being put on top of it.
Q.So am I right in thinking it was the weight of the mattress -
A.Yeah.
Q.- that would hold the straps in position. They weren’t actually chained into anything or anything like that.
A.No, they’re not tied or chained or anything, yeah, just the mattress.
[29] T69/30-70/2.
The Judge was plainly aware of that evidence and the defence argument with respect to it. He referred to it numerous times throughout his reasons at [33]-[34], [59] and [60]:[30]
[33]The complainant said that the first time she had ever seen the restraints was when the accused used them on her during the third incident.
[34]In cross-examination the complainant was unable to explain how she managed to remove the Velcro strap on one of her wrists with her mouth. She said the straps were elastic. The crime scene police officer and the complainants’ mother said that the Velcro straps were not elastic.
…
[59]Ms Harper submitted that there was support for the complainant’s evidence in the discovery by the police of the restraints. The complainant’s evidence is consistent with what the police found. The Velcro straps were under the mattress so they might be accessed while on the bed. The rope was in the drawer which is where the complainant said the accused got it from. The use to which the accused says the complainant put on the restrains is consistent with the mother’s account of how the devices were used by the two adults, except that the Velcro straps were only applied to the complainant’s hands not her feet.
[60]The inconsistency between the complainant’s account of the Velcro straps having some elasticity about them, and the contrary evidence, may be explained. The complainant’s evidence that the straps were elastic may be because she was able to move one of them to her mouth and remove it from her wrist. That ability might be explained by the fact that the straps were not secured to the bed in any way and thus, they, or at least one of them, might be moved to enable the complainant to get it to her mouth to detach it.
[30] R v Kirkland [2020] SADC 88 at [33]-[34], [59]-[60].
At [65] and [66] of his Honour’s reasons, the Judge expressly summarised the defence argument with respect to the removal of one of the straps by the complainant:[31]
[65]In respect of the last alleged incident Ms Demertzis submitted that the complainant’s account was implausible. The account of how the complainant detached one of the Velcro straps with her mouth is implausible. Her account of the accused obtaining the rope after the Velcro strap has been removed does not have about it the ring of truth.
[66]The DNA evidence provides limited support for the complainant’s evidence. Although the complainant denied ever seeing the straps before the accused used them on her, she had ample opportunity to do so. When she was not in her own bedroom she was put to bed every night in the adult bedroom. Further, her DNA might easily have been transferred from the bed to the straps.
[31] R v Kirkland [2020] SADC 88 at [65] and [66].
To my mind, it is implicit in the Judge’s reasons that he considered the defence argument concerning implausibility and rejected it.
Acceptance of the complainant’s evidence necessarily meant he accepted that her account about the restraints was truthful and credible. That also included her evidence that she had never seen them before and that she had not been snooping around in her mother’s bedroom.
To my mind, a trial Judge’s obligation to give adequate reasons does not extend to a requirement that he or she state the plainly obvious conclusion that he or she has reached in respect of all disputed matters. This was one such disputed matter. Having specifically identified both the prosecution and defence contentions with regard to the restraint issue, I do not regard it as necessary for the trial Judge to have said: ‘I accept the complainant’s evidence about the presence of the restraints and the use of them upon her by the appellant, and I do not accept the defence argument that her account is implausible’.
Having viewed the whole of the evidence, I consider that, in respect of the other inconsistencies relied upon by the appellant, the Judge was entitled to conclude that most of them were, in fact, peripheral. For example, the appellant suggested that there were inconsistencies in the complainant’s evidence about what happened after she kneed the appellant. During the first interview, the complainant told the interviewer that the incident finished when she kneed the appellant. However, the complainant later said that the appellant continued to suck on her breasts afterwards. A careful reading of the interviews and the transcript shows that nowhere did the complainant say or suggest that the appellant stopped sucking on her breast immediately after she kicked him in the face. All she said was that, at some point, he stopped after being kicked.
In addition, the appellant highlighted another inconsistency in relation to the same set of facts. In her first interview, the complainant stated that after kneeing the appellant in the face, the appellant unstrapped her and she was able to run away to the outside toilet. However, during the second interview, she stated that after the rope was removed, she saw the appellant put it back in the drawer. In reality, there is nothing inconsistent between the appellant putting the rope back in the drawer and the complainant running out of the room.
After conducting my own review of the evidence, I consider that this was a strong prosecution case. The finding of the restraints in the position they were found and the presence of the DNA found on the Velcro straps strongly corroborated the complainant’s evidence. In light of the Judge’s finding that she was a compelling witness, it is implicit that he rejected any suggestion that the complainant was lying.
The other matters that the appellant claims must have caused the Judge to have entertained a reasonable doubt about the appellant’s guilt were all factors the Judge was entitled to take into account for or against the complainant. This included the lack of evidence about any grooming by the appellant, the lack of detail given by the complainant and the fact that the appellant had not sworn her to secrecy.
His Honour’s conclusion at [75]-[76][32] makes it plain that these matters did not detract from the complainant’s credibility, but reinforced it.
[32] R v Kirkland [2020] SADC 88 at [75] to [76].
In summary, I consider that the Judge’s reasons, though brief, were adequate and reflected the fact that this was a short trial, in which only one matter was in issue.
Conclusion
For these reasons, I would dismiss the appeal on all grounds.
LOVELL JA:
I have had the advantage of reading Kelly P’s draft reasons. I gratefully adopt her Honour’s summary of the background facts. I also agree with her Honour’s reasons and conclusions in relation to Grounds 1 and 6 of the appeal. Regrettably I am unable to agree with her Honour’s conclusions in relation to Grounds 3 and 4. It is unnecessary for me to decide Ground 5. While I generally agree with her Honour’s reasoning in relation to Ground 2 it is unnecessary for me to decide Ground 2.
Given that I agree with Kelly P’s reasons and conclusions in relation to Grounds 1 and 6, there are two issues that need to be considered. First, was there a breach of procedural fairness in the trial process that led to a miscarriage of justice. Secondly, were the Trial Judge’s reasons adequate.
Grounds 3 and 4
It is convenient to deal with Grounds 3 and 4 together. They state:
3. The fair trial of the applicant miscarried as a consequence of the use made by the learned trial judge of the evidence given by the (complainant’s mother) as to the manner in which she and the applicant had used the “rope” and “restraints”, so as to corroborate or bolster the evidence given by the complainant.
Particulars
3.1 The prosecutor lead evidence from [the complainant’s mother] that the applicant would, with her consent, use sexual restraints upon her so as to tie a rope around her wrists and place her arms in various positions, including behind her back.
3.2 The complainant’s evidence was that the applicant applied restraints to her wrists and then tied them behind her back.
3.3 The learned Trial Judge noted in his reasons that the “account of the accused tying her wrists behind her back with a rope is unusual, but the mother said that is precisely what the accused it to her”.
4. Further and in the alternative to ground 3, the learned Trial Judge erred in utilising the said evidence for a propensity purpose where such a purpose was not open and, or not the subject of submissions by counsel.
The combination of Grounds 3 and 4, in effect, complain that the trial was unfair and miscarried as the Trial Judge used evidence in a manner not opened on by the prosecutor and not the subject of any submissions by either counsel at any stage during the trial. Implicit in the grounds of appeal is that the impugned evidence was inadmissible if its only use was for a proclivity or propensity purpose.
The complainant gave evidence that on one occasion, the accused used restraints when sexually assaulting her. On this one occasion he used two different types of restraint. First, the accused used a restraint that had Velcro attached to it to bind the complainant’s hands to the bed. After the complainant freed herself from that restraint, the accused used a rope restraint to tie her hands behind her back. On the topic of restraints, the complainant’s mother in evidence stated:
Q.Can I ask you please to turn to page number 11. I’m going to refer you to the top photograph there. Do you recognise those items.
A.Yes.
Q.What are they.
A.They are other sexual restraints that we used.
Q.Where were those restraints kept.
A.In that top drawer on the black drawers.
Q.Were they ever, to the best of your knowledge, left around the room, in the bedroom -
A.No.
Q.- when you weren’t using them.
A.No.
Q.They were always kept away in that top drawer.
A.In the top drawer, yeah.
Q.I’ll ask you a few questions just about that top black item that looks a bit like some rope. Do you see that.
A.Yep.
Q.Can you describe how they were used please.
A.They were used around the wrist to restrain as well.
Q.Were you a user of those ropes.
A.Yes.
Q.Did those ropes go around your wrist to restrain you.
A.Yes.
Q.When your wrists were restrained, what position would your arms be in.
A.That would differ from, you know, every different - they’d either be on top of my head or behind my back.
Q.I’ve finished with the photo booklets now, thank you.
No objection was taken by the appellant’s counsel to the evidence. The evidence was not challenged in cross examination. However, it is important to note that the prosecutor did not open on this evidence nor explain to the Trial Judge what use could be made of it.
Mrs Shaw QC, counsel for the appellant on the appeal,[33] contended that the evidence of the use of the rope by the complainant’s mother, while admitted, could not, and should not have been used by the Trial Judge in the manner in which he did. The appellant further contended that, although no objection was taken to the evidence, the questions on the topic of the rope’s specific use, that is to tie the wrists and particularly tie the wrists behind her back, ought not to have been asked as the evidence was inadmissible.
[33] Mrs Shaw QC was not counsel at the trial.
With any issue regarding the admissibility of evidence it is important to determine two questions. First, for what purpose is the evidence led and secondly to what fact in issue does the evidence go to prove (or disprove)?[34]
[34] R v W, CT [2019] SASCFC 18 at [30].
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.[35]
[35] JGS v The Queen [2020] SASCFC 48 at [28]; Nicholls v The Queen (2005) 219 CLR 196 at [37].
The question to be determined is the relevance of the evidence of the complainant’s mother to the issue(s) at trial. To put that another way, what fact in issue, or fact going to prove a fact in issue, did the evidence relate and for what purpose was it led?
Assuming the evidence of the complainant’s mother was accepted it established a number of matters. First, that the restraints were kept in the bedroom. Secondly that they were used by her and the appellant during consensual sexual activity. This evidence has a dual purpose. First it established that the appellant knew of the presence of the restraints in the bedroom. Secondly, it potentially had a proclivity purpose. That is the restraints had a “sexual use” and further the appellant had a proclivity to use restraints during consensual activity. The fact that he used them during sexual activity with his partner made it more likely that he used them during the alleged offending. The prosecution did not identify the dual purpose of the evidence.
As mentioned, no objection was taken to this evidence. The evidence was relevant and admissible on the prosecution case although the question of the dual purpose of the evidence required consideration.
But the evidence did not stop there. The prosecutor asked “Can you describe how they were used please”. The complainant’s mother responded by explaining how her wrists were “restrained” and then, she was specifically led as the fact that her wrists were “restrained” behind her back during sexual activity. I infer she was describing how her hands were tied behind her back. The complainant had given evidence that during one of the offences the appellant had tied her hands behind her back in a similar manner.
Other than the similarity in the accounts, it is difficult to see the relevance of how the restraints were specifically used. That is, the evidence goes further than simply the finding of the restraints. It establishes that they were used during sexual activity, that the appellant had knowledge of them but it finally encompasses a specific method of use by this appellant. In my view, it was unnecessary for the prosecution to lead evidence as to how the restraints were actually used if the evidence of the restraints was only admitted, as submitted by the respondent, to place the complainant’s evidence in context and explain the “unusual” nature of her evidence. The evidence of the particular use of the restraints is not contextual evidence.
In summary, the evidence of the complainant’s mother therefore had a number of uses. First, that the restraints were kept in the bedroom. That evidence was clearly admissible. Secondly the evidence of the general use of the restraints had a dual purpose as described. Thirdly the evidence of the particular use of the restraints (the impugned evidence) could only be used for a proclivity purpose.
It is important to note that the prosecutor did not suggest, either in her opening or closing address, that any of the evidence could be used to demonstrate a particular sexual proclivity of the appellant. Indeed, as explained earlier the prosecution did not identify any purpose for the evidence. That is not intended as a criticism of the prosecutor, as although the evidence appears to have been deliberately produced, the use that could be made of the evidence may not have been appreciated.
The appellant submitted on appeal that, as the evidence of how the restraints were used had a propensity purpose, s 34 P of the Evidence Act1929 (SA) was engaged. Section 34P prescribes the approach a court must take to the admissibility of discreditable conduct evidence that has a propensity purpose. It was common ground on appeal that no notice was given by the prosecution of an intention to lead discreditable evidence disclosing a propensity purpose. However, in my opinion, there was no requirement for the prosecution to do so as the evidence led is not discreditable evidence.
For s 34P to be engaged the conduct in question must be discreditable. “Discreditable conduct” is not defined in the Evidence Act. However, it is not necessary for the evidence to disclose the alleged commission of an offence for the conduct to be classified as discreditable. Something less than criminal conduct can be discreditable. However, there is nothing about the evidence led in this case that would suggest that consensual sexual acts, however conducted, could amount to discreditable conduct. I agree with Kelly P, in relation to the impugned evidence, that s 34 P is not engaged.
If s 34P is not engaged then whether the evidence should have been received is governed by the ordinary rules of admissibility. The evidence could only be relevant and admissible if it was capable of demonstrating a distinctive proclivity which could be probative of the guilt of the appellant of the offence(s) charged.
It is important to bear in mind the difference between “propensity reasoning” as it is referred to in s 34P and “proclivity reasoning”. Sometimes the expressions proclivity and propensity are used interchangeably but that is apt to mislead. The expression propensity evidence in the context of s 34P means that the evidence under consideration is discreditable. It is impermissible to reason that because he was a bad person before (discreditable conduct) he is therefore more likely to have committed the crime charged. No such reasoning applies where proclivity evidence, as demonstrated in this case, is led but the evidence is not of itself discreditable. The relevance of proclivity evidence is to provide confirmation of an allegation that the accused person engaged in that form of sexual activity with an alleged victim. That is, the evidence is led as being logically probative of the guilt of an accused on the offence(s) charged or at the very least can be used to bolster the credibility and reliability of the complainant’s evidence.
On this issue, the remarks of King CJ in R v Turney[36] are instructive.
[36] (1990) 52 SASR 438.
In Turney, the accused’s wife gave evidence that she had participated in consensual acts of oral and anal intercourse with the accused. The complainant in Turney gave evidence that the accused forced her to have oral and anal intercourse. The trial judge left the issue to the jury by saying “it would be an extraordinary coincidence if it were not true, that the daughter comes forward with allegations now which echo the experience of the mother.”
On the admissibility of this evidence King CJ remarked:[37]
I acknowledge that demonstrated predilection on the part of an accused person for a bizarre form of sexual activity might in some circumstances, provide confirmation of an allegation that the accused person engaged in that form of sexual activity with an alleged victim. The variety of forms of sexual activity in which human beings engage is such, however, that the probative force of such evidence must be judged with the utmost caution. Experience in the courts and the literature on the subject alike disclose that anal and oral sexual intercourse are far more common that might be supposed. I think that it would be extremely dangerous to treat evidence of anal and oral sexual intercourse between the appellant and his wife as tending to confirm the alleged victim’s evidence that the appellant had had those types of sexual intercourse with her. I think that it would be quite unsafe for the jury to conclude that the occurrence of these forms of sexual intercourse between the appellant and his wife would render the allegations of the daughter, if they were not true, "an extraordinary coincidence". I consider that the evidence of the mother as to what occurred between her and her husband have no tendency to prove the truth of the allegations against the appellant on the basis upon which they were admitted and left to the jury.
(emphasis added)
[37] (1990) 52 SASR 438, 439.
Duggan J remarked:[38]
In my view, however, a more obvious difficulty arises from his Honour’s ruling and direction that the disputed evidence was capable of demonstrating a distinctive proclivity which could be probative of the guilt of the appellant on the offences charged. In order to justify admission as similar fact evidence of the type contemplated by his Honour, the appellant’s sexual conduct would have to be of a unique or distinctive character such that the fact that it occurred between the appellant and his wife and was the same type of conduct alleged by the complainant, could not be explained away as mere coincidence. If in the present climate of rapidly changing attitudes to morality, courts are required to follow Lord Wilberforce’s advice in Director of Public Prosecutions v Boardman [1975] AC 421 at 444 and "keep close to current mores" then oral and anal sexual intercourse could not be said to possess features so unusual as to justify admission into evidence as being probative of the appellant’s guilt.
(emphasis added)
[38] (1990) 52 SASR 438, 444.
Thus, evidence of this type may be admissible but requires conduct which is “unique”, “bizarre” or so distinctive that it could not be explained away as mere coincidence.
The question of whether the conduct alleged here met the requirements for admissibility was not raised at trial. The questions of admissibility or the purpose or dual purpose of part of the evidence was not opened on nor discussed during the trial.
In those circumstances, the question raised by Grounds 3 and 4 is whether the appellant received a fair trial if the Trial Judge has used the impugned evidence to prove a particular sexual proclivity of the appellant when that issue was not raised by, or relied upon, by the prosecution.
The use of the evidence
It is necessary to determine the use the Trial Judge made of the impugned evidence.
The Trial Judge, in his reasons for the verdict, summarised the prosecution address. He stated:[39]
Ms Harper submitted that there was support for the complainant’s evidence in the discovery by the police of the restraints. The complainant’s evidence is consistent with what the police found. The Velcro straps were under the mattress so they might be accessed while on the bed. The rope was in the drawer which is where the complainant said the accused got it from. The use to which the accused says the complainant put on the restraints is consistent with the mother’s account of how the devices were used by the two adults, except that the Velcro straps were only applied to the complainant’s hands not her feet.
(emphasis added)
[39] R v Kirkland [2020] SADC 88 at [59].
With respect to the Trial Judge, the passage underlined does not, in the context of the case, make sense. The passage refers to the “use to which the accused says the complainant put on the restraints”. The accused did not give evidence nor did he participate in a record of interview. The defence at trial was that the acts never took place. I consider that the Trial Judge has in his reasons accidentally transposed the accused and the complainant. That is the Trial Judge meant to say was “the use to which the complainant says the accused put on the restraints.” I proceed on that assumption. In the passage quoted, the Trial Judge was summarising the prosecutor’s final address and asserted that the prosecutor, during her address pointed to the similarity of the accounts of the mother and complainant. The appellant contended on appeal that the prosecutor made no such submission. This was accepted by the respondent. I can find no reference in the prosecutor’s address to her raising the similarity of accounts between the complainant and her mother. As previously mentioned the prosecutor did not open on the similarity of accounts nor did she suggest in her closing address that the Trial Judge could use the similarity of the accounts in any manner.
The Trial Judge later stated:[40]
The account of the use of the restraints is a striking one, but an unusual one to make up. Her account gets support from the discovery of the straps and the DNA evidence. Her account of the accused tying her wrists behind her back with the rope is unusual, but the mother said that is precisely what the accused did to her.
(emphasis added)
[40] R v Kirkland [2020] SADC 88 at [77].
The first aspect of the Trial Judge’s findings is unremarkable. The complainant’s account does get support from the discovery of the straps and the DNA evidence. The evidence of the discovery of the straps and the detection of the complainant’s DNA on the restraints is clearly admissible. It is the final sentence of the paragraph that is problematic. The appellant contends that the Trial Judge has compared the two accounts, found them similar, and then used the similarity to reason by use of “proclivity” towards guilt of the appellant.
Ms Boord SC, for the respondent, submitted that all the evidence of the complainant’s mother, including the impugned evidence, is admissible to place the complainant’s evidence in context. She submitted that the Trial Judge expressly found that the use of the restraints was “unusual”. The unusual nature of the allegation may affect the credibility and reliability of the complainant but her account became less unusual when the evidence disclosed that straps had been used by the appellant and the complainant’s mother during sexual activity. Ms Boord submitted that the Trial Judge used the evidence as only a species of “context” evidence. The Trial Judge, she submitted, had used it only for that purpose and had not reasoned in the manner suggested by the appellant. Ms Boord submitted that nowhere in the Trial Judge’s analysis had he reasoned that because the appellant had used them on the complainant’s mother in a similar manner it was therefore more likely he used them on the complainant. Ms Boord did not concede that the evidence could not be used for a proclivity purpose; her submissions were that the Trial Judge had not used it for that purpose.
I accept that the evidence of the complainant’s mother about the use of the restraints during sexual activity and that they were kept in the bedroom was admissible as “context” evidence. As discussed earlier, it potentially had a “proclivity” use as well. However, there is nothing in the Trial Judge’s reasons that suggest he used that evidence for a proclivity purpose. If the evidence had been restricted to only those aspects no issue would arise.
I have difficulty in accepting that the evidence of how the restraints were specifically used by the complainant’s mother puts anything in “context”. The evidence is not confined to the general use of the restraints, that is sexual activity, but went further and referred to a particular method of restraint, namely having her hands tied behind her back. That in my view cannot be relevant to “context”. It can only be relevant to a proclivity possessed by the appellant. I agree that the Trial Judge did not indulge in “bad person” or propensity reasoning in the manner prohibited by s 34P of the Evidence Act. The Trial Judge’s remarks can be construed, and in my view only construed, as him having used the evidence as demonstrating a proclivity.
The Trial Judge’s reasons need to be read against the background that the prosecution did not identify during the trial how the evidence was to be used and did not, contrary to the Trial Judge’s summary of the prosecution address, invite the Trial Judge to use the similarity of the accounts in any manner. While objection should have been taken by the appellant’s counsel at trial to the evidence of the specific use of the rope restraint, counsel was not on notice that the evidence was to be used for a proclivity or propensity purpose. It could not be said that counsel made a forensic choice not to object. Further, it is unsurprising that the appellant’s counsel did not address the Trial Judge on the issue, as prosecuting counsel did not address on the point in the first instance.
The evidence was prejudicial. Whether its probative value, taking into account the remarks of King CJ and Duggan J in Turney, exceeded its prejudicial value, nor whether the “fairness” discretion discussed in R v Lobban[41] should be exercised were never the subject of submissions or consideration by either counsel or the Trial Judge. As noted earlier, the respondent has not conceded on appeal that the impugned evidence is inadmissible for a proclivity purpose. Rather the respondent submitted that the Trial Judge had not used it for that purpose.
[41] (2000) 77 SASR 24.
Was there a miscarriage of justice?
Criminal appeals in South Australia are governed by s 158 of the Criminal Procedure Act 1921 (SA) which states:
158—Determination of appeals in ordinary cases
(1)The Court of Appeal, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) on any ground there was a miscarriage of justice.
(2)The Court of Appeal may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The appellant submitted that Grounds 3 and 4 invoke the third of the subsections found in s 158(1). The appellant submitted that he had established a breach of procedural fairness by the Trial Judge using the impugned evidence as proclivity evidence. This, it was submitted, led to an unfair trial resulting in a miscarriage of justice under s 158(1)(c).
A court’s power under s 158(1)(c) is wide. The words “on any ground” do not postulate the demonstration of error but simply require that something occurred or did not occur in the trial.[42] In Davies v The King,[43] the High Court observed;
From the beginning, that court has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria (Crimes Act 1928, sec. 594 (1)). It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.
[42] TKWJ v R (2002) 212 CLR 124.
[43] (1937) 57 CLR 170, 180.
The plurality of the High Court in Cesan v The Queen[44] accepted that when applying the criterion in paragraph (c), where there is an irregularity falling short of a failure to observe some condition essential to a satisfactory trial, the appellant is required to establish that the irregularity might have affected the result. However, in doing so, the appellant will not necessarily succeed in negating the application of the proviso. It remains open to an appellate court to apply the proviso to uphold the conviction if the court is persuaded to conclude that the evidence properly admitted at trial proved the appellant’s guilt beyond reasonable doubt.[45]
[44] (2008) 236 CLR 358.
[45] (2008) 236 CLR 358 at [112]-[122]; Baini v R (2012) 246 CLR 469 at [56] (Gageler J).
Thus, in many cases the suggested miscarriage of justice is one that can only be made out by the appellant where the suggested error or irregularity is causally linked to the verdict. However, the establishment of such a link is not always necessary. An example is where the error or irregularity has led to the trial being fundamentally flawed.[46] There may also be a miscarriage of justice where, although it cannot be said that the trial was fundamentally flawed, the trial was not conducted according to law. An appellate court may set aside a verdict of guilt even though it is not demonstrated that the verdict was, on its merits, flawed.[47]
[46] Quartermaine v The Queen (1980) 143 CLR 595, 600-601; see also Wilde v The Queen (1988) 164 CLR 365.
[47] R v ADW (2002) 84 SASR 178 at [28]-[39].
There are a number of errors that led to the Trial Judge using the impugned evidence. First the prosecutor, as discussed earlier, did not open on the fact that she would lead that evidence, nor the use that could be made of it. It is not a requirement, nor is not necessary, for a prosecutor to open on all aspects of a prosecution case. However, where evidence to be led is significant and arguably contentious, prudence would dictate that it should be opened on and its use explained. It is likely here that the prosecutor did not appreciate the significance of the impugned evidence.
The present case is further complicated by the fact that the impugned evidence was admitted without objection. I accept that the principle that an appellant is bound by the conduct of their counsel at trial stands as a potential impediment to a finding of a miscarriage of justice.[48] However the law does not pursue that principle at all costs; it is not an inflexible principle. Much depends on the circumstances. I am satisfied here that the failure to object to the evidence was not a forensic choice by counsel for the appellant. Like the prosecutor it is likely that defence counsel did not appreciate the significance of the evidence.
[48] Nudd v The Queen (2006) 80 ALJR 614.
The failure of either counsel to address the Trial Judge on the impugned evidence, or indeed in any significant manner, the complainant’s mothers evidence generally, supports the position that counsel did not appreciate the significance of the evidence. Had the prosecutor, in her final address, discussed the use to be made of proclivity evidence, defence counsel, even at that late stage, may have sought to have the evidence excluded.
Another complication is that the Trial Judge, as discussed earlier, appears to have misunderstood the prosecutor’s position. The Trial Judge appears to have proceeded on the assumption that the prosecutor had submitted that the “similarity” evidence could be used. I am unable to find that the prosecutor did so.
It is against all those factors that I turn to consider the question of whether there has been a miscarriage of justice. I do not have to decide whether the evidence of the specific use of the rope restraint was admissible. The undisputed facts here establish that no consideration was given to that use by the parties. There were a number of errors leading to the Trial Judge using the impugned evidence as he did. Errors identified, which when looked at in isolation do not amount to a miscarriage of justice, may be aggregated such that the total effect of the errors can be considered.[49] Whether the court looks at the aggregation of the errors or simply to the fact that the Trial Judge used evidence on which the parties had not joined issue does not matter as in my view there was a breach of procedural fairness.
[49] R v Ireland (1970) 126 CLR 321; R v Kotzmann [1999] 2 VR 123 at [114].
The significance of the breach of procedural fairness has not been an easy matter to resolve. However, I am of the view that the breach of procedural fairness here was significant enough to result in an unfair trial for the appellant. That is, the breach of procedural fairness led to a miscarriage of justice. Had the significance of the evidence been appreciated, I am satisfied that it is likely an objection would have been taken. I do not have to determine whether the evidence would have been admitted. If the evidence had been admitted, after objection, I am satisfied that the appellant’s case may have been conducted differently. Certainly, the lack of appreciation of the significance of the evidence has deprived the appellant of the opportunity to challenge it.
I do not need to decide whether the breach of procedural fairness was so fundamental that the appellant does not have to establish a causal link between the breach and the conviction. In my view that causal link is apparent simply from the way in which the Trial Judge used the impugned evidence. It formed a plank, and likely a substantial plank, in his reasoning towards guilt or at the very least in his findings that the complainant was credible and reliable. That link having been established, and it being apparent that it is a strong link, I do not consider that it would be appropriate to apply the proviso.
I would allow the appeal on Grounds 3 and 4. I have found that s 34P is not engaged. In those circumstances, it is unnecessary to further consider Ground 5.
Ground 2
It is strictly unnecessary for me to decide Ground 2. However, if I am wrong in my conclusion in relation to Grounds 3 and 4 it becomes necessary for me to say something about Ground 2.
Yet again there is a challenge to the adequacy of a trial judge’s reasons. The task of a trial judge, one who is often juggling numerous court commitments, to write reasons is not easy. Judgment writing generally is a difficult and time-consuming task. The task of producing adequate reasons has become, of recent times, more demanding. A judge’s failure to deliver adequate reasons is an error of law productive of a miscarriage of justice, which, subject to the proviso, means a conviction will be set aside.
A judge is required to give reasons for a verdict following upon the trial of a charge by judge alone under s 7 of the Juries Act 1927 (SA).[50] Reasons are necessary in order that an appellate court can discharge its statutory duty on appeal and also so the parties can understand the basis of the decision for the purpose, at the very least, of exercising any right of appeal.
[50] R v Keyte (2000) 78 SASR 68 (Doyle CJ); Douglass v The Queen (2012) 290 ALR 699.
As the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the matter the subject of the decision, it is not possible for an appellate court to state, other than at a level of generality, rules to guide trial judges as to what will amount to adequate reasons. Clearly the requirement for adequate reasons depends upon the circumstances of the case and the issues that fall to be decided. That said the cases establish some general principles that trial judges should bear in mind.[51]
[51] DL v The Queen (2018) 266 CLR 1.
The reasons must identify the relevant principles of law, refer to the relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings. The judge must provide explanations for his or her ultimate conclusions.[52] It is not necessary for a judge to resolve every argument and issue that might arise during a trial.[53] Nor is it necessary for a trial judge to set out and discuss all of the evidence called during the trial. Indeed, a recitation of the evidence followed by findings, without more, would not amount to adequate reasons. A judge is not required to give himself or herself all the legal directions that may be required if the trial was by jury.[54]
[52] DL v The Queen (2018) 266 CLR 1.
[53] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
[54] R v Keyte (2000) 78 SASR 68.
A trial judge should bear in mind that the test of adequate reasons will not be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict.[55]
[55] AK v Western Australia (2008) 232 CLR 438 at [85] (Heydon J).
Thus, what is required is that the trial judge expose his or her reasoning on points critical to the contest between the parties. If a judge rejects relevant and cogent evidence he or she should provide an explanation for so doing. If the parties produce conflicting evidence on a significant matter, the evidence should be set out and reasons provided for accepting or rejecting the evidence.
While a trial judge does not have to deal with every argument that arises at trial, any important argument should be acknowledged and if rejected, reasons given for the rejection.
However, a trial judge should bear in mind that reasons are not necessarily adequate simply because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all relevant facts and, where necessary, an explanation given as to how the ‘inconvenient’ facts can be put to one side or given little weight.[56]
[56] Macks v Viscariello (2017) 130 SASR 1; R v Becirovic [2017] SASCFC 156.
The appellant complains that the Trial Judge failed to set out or address a number of matters in his reasons. The criticisms made by the appellant are contained in the judgment of Kelly P. I generally agree with the reasons of Kelly P in relation to Ground 2.
In my view, the appellant’s criticisms are misconceived. While it is correct to observe that the Trial Judge did not address the matters raised by the appellant there was, given the way this trial was conducted, no need for him to do so. The real matter in issue, and the way in which the trial was conducted, was whether the acts occurred at all. It is precisely that issue that the Trial Judge resolved. There was no need for him to set out what was not disputed. While the appellant points to various omissions, his submissions fail to address the fundamental point of reasons, namely whether the reasons are sufficient for the appellate court to discharge its function. The appellant has not pointed to any omission of the Trial Judge that has impeded this court from discharging its statutory function.
My remarks, however, are subject to the following qualification. Grounds 3 and 4, as discussed, raise the issue of how the Trial Judge used particular evidence. On appeal, the respondent submitted that the impugned evidence was relevant to “context”. Given that I have allowed the appeals on Grounds 3 and 4 it is not strictly speaking it is not necessary for me to finally determine Ground 2. However, I make the following observations.
Accepting for the moment that the evidence of the precise use made of the restraints by the mother was a species of “context” evidence, the Trial Judge was required, as the evidence had a dual purpose, to identify the purpose for which he used it and, if necessary, how he did not use it. The Trial Judge did not do so. To that extent his reasons, arguably, are inadequate. However, I do not accept that the evidence was admissible for “context” and so there was no requirement on the Trial Judge to explain its use. It is clear, given it was admissible only for proclivity purposes, how the Trial Judge used it.
Order
I would allow the appeal. As discussed I agree with the conclusions reached by Kelly P in relation to Ground 6. The verdicts of the Trial Judge should not be set aside on the basis that they are unreasonable or could not be supported having regard to the evidence. In those circumstances I would set aside the convictions and remit the matter to the District Court for trial before a different District Court Judge.
BLEBY JA: I agree with Lovell JA that the trial judge’s use of the complainant’s mother’s evidence in a manner not contemplated by the parties’ joining of issues at trial constituted a breach of procedural fairness, and that this has resulted in an unfair trial. I consequently agree that the appeal should be allowed on Grounds 3 and 4. I agree with Kelly P that Grounds 1 and 6 should be dismissed. I agree generally with Kelly P on Ground 2, subject to the qualification offered by Lovell JA and conclude that it is not necessary to decide this ground. It is not necessary to decide Ground 5. I would order that the matter be remitted to the District Court for trial before a different judge.
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