Longman v The King - [2025] SASCA 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LONGMAN v THE KING
[2025] SASCA 100
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Justice McDonald)
12 September 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS
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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
This is an appeal against conviction.
The appellant was tried before a judge alone on multiple charges involving two child complainants who were unknown to each other, in that they had never spoken.
In relation to the first complainant, the charges were attempted rape (count 1), aggravated indecent assault in the alternative (count 2), rape (count 4), and aggravated indecent assault (count 5). In relation to the second complainant, the charge was sexual abuse of a child (count 3).
The offences were tried jointly as the trial judge found the evidence was cross-admissible for the purpose of similarity of account or improbability reasoning.
The appellant was convicted of counts 1 and 3 and acquitted on counts 4 and 5. As count 2 was an alternative to count 1, it was not further considered following the conviction on that count.
The grounds of appeal were that:
1.The trial judge erred in finding that the evidence was cross-admissible for similarity of account or improbability reasoning; and further, erred in not ordering a separate trial in respect of the complainants, resulting in a miscarriage of justice (ground 1);
2.The trial judge erred in his treatment of discreditable conduct evidence admitted under s 34P(2)(a) of the Evidence Act 1929 (SA), or in the alternative, that his reasons were inadequate in explaining how the acquittals on counts 4 and 5 bore on his findings in relation to the other counts (ground 2); and
3.The trial judge’s reasons were inadequate in explaining the conviction on count 1, given the appellant was acquitted of counts 4 and 5, noting that the acquittal arose from a doubt held by the trial judge, who was troubled by the child’s failure to report the alleged offending in Count 4 at an earlier stage, ultimately challenging whether the trial judge properly applied his doubts regarding that child’s evidence in reaching the verdict on count 1 (ground 5).

Permission to appeal was granted on Grounds 2 and 5. Ground 1 was referred to the Court of Appeal for argument as on appeal and was therefore an application for permission to appeal.
The respondent contended that the evidence was properly cross-admissible and properly admitted, that the trial judge adequately addressed his reasons for using the discreditable conduct evidence, and that it was open to the trial judge to be satisfied of one count while not being satisfied of another, and that again, this was adequately addressed within his reasons.
Held:
1.The evidence was properly cross-admissible and properly admitted in circumstances where two children, who had no reason to fabricate conduct and lacked the opportunity to collude, had a significant degree of similarity in their accounts. The significant similarities in their accounts rendered the evidence probative, with its value outweighing any prejudicial effect. Accordingly, it was found that no miscarriage of justice resulted from the joint trial.
2.The trial judge did not err in his treatment of discreditable conduct evidence as it was properly cross-admissible for the purposes of similarity of account reasoning. The court did not accept that the trial judge, having found the appellant not guilty on counts 4 and 5, then used that evidence to arrive at the verdict of guilty on count 1. The trial judge’s reasons were found to be adequate.
3.In circumstances where a trial judge had a reasonable doubt on one count, that does not necessitate a finding of reasonable doubt on other counts. The doubt the trial judge had turned on whether the element of indecency had been proved for that specific count (count 4), and not on the child’s reliability generally or specifically. The trial judge’s reasons were found to be adequate.
4.While the Court granted permission to appeal on ground 1, the court dismissed grounds 1, 2 and 5.
5.The appeal was dismissed.

Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to.
House v The King (1936) 55 CLR 499; Lloyd v The King [2023] SASCA 106; McRoberts v The King [2024] SASCA 92, applied.
Phillips v The Queen (2006) 225 CLR 303; R v C, CA [2013] SASCFC 137; R v Marshall [2023] SASCA 105, discussed.
DES v The Queen [2020] SASCFC 32; Douglass v The Queen (2012) 86 ALJR 1086; Hoch v The Queen (1988) 165 CLR 292; MDM v The Queen (2020) 136 SASR 360; R v March [2014] SASFC 54; Sexton v R [2022] SASCA 73; Slape v The Queen [2022] SASCA 91, considered.

LONGMAN v THE KING
[2025] SASCA 100
Court of Appeal – Criminal: Bleby, Stanley JJA and McDonald AJA
THE COURT:
Introduction

This is an appeal against conviction. The appellant was convicted after a trial by judge alone of one count of attempted rape of the first complainant (IRD) contrary to s 48(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of sexual abuse of a child, namely, of the second complainant (SRC), contrary to s 50 of the CLCA. In relation to IRD, the appellant was acquitted of one count of rape and one count of aggravated indecent assault.
Factual background
In 2013 IRD lived next door to the appellant. She turned nine on 13 October 2013. During this year, IRD and her brothers stayed overnight with the appellant and the appellant’s partner, SL, on two occasions while their mother (RD) was in hospital. On one of those occasions the appellant came into the bedroom where IRD was sleeping and tried to digitally penetrate her vagina. He placed his hand over her mouth. The appellant was convicted of this count (count 1).
As an alternative to the charge of attempted rape, count 1, the appellant was charged with one count of aggravated indecent assault of IRD. In the circumstances of conviction on count 1 it was not necessary to decide this count (count 2).
The appellant was also alleged to have committed offences of rape and aggravated indecent assault against IRD in 2018. The appellant and SL had separated by this time. The appellant lived on the Eyre Peninsula but returned to Adelaide occasionally to visit his son. On at least one occasion in 2018 the appellant stayed with IRD’s family. IRD alleged she awoke to the appellant digitally penetrating her. She went into RD’s room. While RD was in the bathroom the appellant came into the bedroom and rubbed IRD’s leg. The appellant was acquitted of the charges of rape and aggravated indecent assault in relation to these counts (counts 4 and 5).
SRC is the daughter of LL, who is the sister of SL. SRC turned eight in January 2016. By 2016 the appellant and SL were living on the Eyre Peninsula. SRC and her brother were occasionally left overnight in the care of the appellant and SL. On multiple occasions when SRC was eight years of age the appellant came into the bedroom in which she was sleeping and carried her into another room where he digitally penetrated her vagina (count 3).
The judge ruled that the evidence of IRD and SRC was cross-admissible for the purposes of similarity of account, or improbability reasoning.
Grounds of appeal
The appellant appeals from his convictions on three grounds.[1]
·first, a miscarriage of justice occurred by reason of the joint trial of the counts relating to IRD and SRC (ground 1);
·second, the judge erred, resulting in a miscarriage of justice, in the manner he used discreditable conduct evidence admitted pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (Evidence Act), or in the alternative, the judge’s reasons were inadequate to explain how the verdict on counts 4 and 5 bore on the judge’s findings in relation to the other counts (ground 2); and
·third, that the judge’s reasons for verdict were inadequate in that they did not properly explain the finding of guilt in relation to count 1 when he found the appellant not guilty in relation to counts 4 and 5 (ground 5).
[1] Grounds 3 and 4 have been abandoned.
Permission to appeal was granted on grounds 2 and 5. The question of permission to appeal on ground 1 was referred to the Court of Appeal for argument as on appeal.
An extension of time is required. The question of an extension of time was referred to this Court.
The evidence at trial
IRD, her mother RD and SL, all gave evidence on the prosecution case relevant to the offending against IRD.
In relation to counts 1 and 2, in 2013 the appellant and SL lived next door to IRD and her family in Elizabeth Park. RD and SL were friends. In 2013 RD was pregnant with a child that was born on 29 November 2013. RD stayed in hospital overnight due to a complication with her pregnancy. IRD and her younger brothers stayed at the house occupied by the appellant and SL while their mother was in hospital.
IRD slept in the appellant’s son’s bedroom which was just off the lounge room, while her brothers slept in the lounge room. IRD gave evidence that she awoke in the night to see the appellant in the doorway. He approached her and unzipped his fly. He placed his hands inside her shorts and underneath her underwear. IRD felt the appellant attempting to insert his penis into her vagina. She moved around and tried to say stop but he placed his hand over her mouth. He attempted to insert himself a number of times, but IRD kept attempting to wriggle away. IRD says that the accused stopped what he was doing to her when SL was heard in the lounge room.
In relation to counts 4 and 5 the evidence was that the appellant and SL had moved from the house at Elizabeth Park to the Eyre Peninsula, but during 2018 he occasionally came to stay with IRD’s family. On one occasion IRD woke briefly to see the appellant in her bedroom, place his bedding down on the floor and then walk out again. She went back to sleep. She gave evidence of waking later to feel the appellant digitally penetrating her vagina. When she opened her eyes the appellant removed his fingers. He laid on the floor and she lifted her younger sister who was sleeping next to her and carried her into RD’s bedroom. She laid in RD’s bed and observed the appellant in the doorway of the bedroom.
RD woke and went to the bathroom. The appellant came into the bedroom and placed his hand on IRD’s leg over the blanket and began rubbing his hand up and down. He asked whether he had upset her. IRD responded in the negative, thinking that was the quickest way to get rid of the appellant. He responded saying “Good, I’m not doing anything that will upset you”. He left the room.
The appellant left IRD’s house the next morning. He returned later. IRD was on RD’s bed with her siblings and the appellant started to move closer to her. She “freaked out” and started kicking out with her legs and screaming at him to “fuck off”. The appellant left the house.
In 2020 IRD met SRC at SL’s engagement party but they did not speak. This was the only occasion on which they were together.
In cross-examination IRD said that she had overheard a conversation between RD and SL and recalled them saying something about how the appellant had sexually offended against SL, although she did not know any details.[2] IRD denied that either RD or SL had told her what to tell the police about the appellant.
[2] R v Longman [2023] SADC 132 at [126]; Trial Transcript 36.
IRD conceded that she did not tell police about the digital penetration alleged to have occurred in 2018 when she provided her first statement to police. The first time she told the police about the digital penetration was on 3 August 2023.
RD gave evidence that there were two occasions in 2013 when her children stayed with the appellant and SL, once due to complications with her pregnancy and subsequently when she gave birth. In addition, RD said there was an occasion in 2018 when the appellant stayed at her house. She recalled waking up during the night to use the bathroom and hearing IRD running. When she returned, she realised that IRD had ran into her bedroom and was now in her bed. RD climbed into her bed and then noticed the appellant standing in the doorway. She asked what he was doing and he answered “Nothing”, that he was “checking where IRD was”. RD told him to leave and the appellant went back to the lounge.
The following evening the appellant was at their house. He asked IRD for a hug as he was leaving and IRD screamed at him to get away from her. She said she wanted him to leave.
SL gave evidence that on an occasion, when RD was pregnant, IRD and her brothers stayed at her house. She said the brothers slept in the lounge room while IRD slept in the bedroom next to the lounge room. SL recalled hearing noise coming from the bedroom where IRD was sleeping. She opened the door and saw IRD in the bed pulling up the blanket. The appellant was on the floor looking at IRD. She also recalled that the appellant would give lollies to IRD but not to her brothers. She said he gave all his attention to IRD.
Offending against SRC
SL is the aunt of SRC. SRC gave two interviews which were recorded pursuant to s 13BA of the Evidence Act. Those interviews had been conducted in July and September 2020. At trial SRC gave some limited additional evidence-in-chief. She was cross-examined.
In her first interview SRC gave evidence that on many occasions when she was staying overnight at the appellant’s house he would carry her from the lounge or her cousin’s bedroom where she was sleeping with her cousin and her brother. The appellant would take her into another bedroom where there was a live python in a glass container. This was referred to in the evidence as the snake room. She gave evidence that he would put his finger “up my private area”. She complained it hurt a lot. However, she denied that he put his fingers inside her, asserting that it was not physically possible. She said that on occasions the appellant placed his hand over her mouth to stop her calling out. She alleged that the offending by the appellant occurred in the same year, when she was eight years old. She said that the appellant’s offending was committed “lots of times”, but not every time she stayed with him. She said she devised methods to prevent it. One of these was to sleep between her cousin and her brother. The first complaint she made about the appellant’s offending was to Ms Emma Nield, a support officer at the Cleve Area School.
In her second interview SRC alleged that the appellant touched her inside her vagina. She said he had placed his hand over her mouth on two occasions. In examination-in-chief SRC said that the appellant’s fingers went inside her vagina. When questioned about her evidence in the first interview, that it was not possible for his fingers to go inside, she explained that since she has gotten older she understands what really happened. She believes that the appellant’s fingers had gone inside her and he had torn her hymen. She also gave evidence denying knowing IRD.
In cross-examination SRC was questioned about a report of her being sexually abused by her 12-year-old uncle when she was five years of age. She gave evidence that she had no memory of making a complaint to police about that matter. She denied that RD had told her the appellant had sexually offended against others and denied that RD had told her what to tell police. She denied that the reason why the appellant moved her on occasions was because her brother and cousin were kicking her.
Evidence of other witnesses
SL gave evidence that SRC had stayed overnight at the house she shared with the appellant on the Eyre Peninsula. SL said the appellant was very friendly to SRC and would sit her on his lap to watch television and give her lollies. He did not do this with her brother.
SRC’s mother, LL, gave evidence that there were about half a dozen occasions where her children stayed with SL and the appellant. In 2013 the school had told LL that SRC had reported being sexually abused by LL’s then 12-year-old brother. There was an investigation into the matter. Ms Nield gave evidence of SRC becoming distressed and emotional while completing an autobiography at school on 23 June 2020. Ms Nield spoke to SRC in private and SRC told her that she had been sexually abused by her uncle four years earlier. Ms Nield said that SRC told her the appellant sexually abused her several times. He would take her into his bedroom, cover her mouth and sexually abuse her.
Appellant’s evidence
The appellant gave evidence at his trial. He said he had commenced a relationship with SL in 2010 and they had separated on 9 March 2016. The appellant agreed that IRD had stayed at the house he shared with SL. This occurred probably four times, including a time during RD’s pregnancy. The appellant said IRD slept in his son’s bedroom with her brothers. He considered it was quite possible that he may have stood in the doorway of that room, but denied the allegations of the offending. There were occasions when IRD was staying over that he would go into the bedroom where IRD was and talk to her. He said it may have been 1:00 a.m. when he went to talk to her while the others were asleep. He denied intentionally giving more lollies to IRD than the other children but he agreed that he spent more time with her.
He gave evidence that in 2018, subsequent to his separation from SL, he travelled to Adelaide and stayed with IRD’s family. On the night of the alleged offending, he took bedding into IRD’s bedroom and placed it beside the bed while they engaged in “general talking” in the middle of the night. At some stage he said he fell asleep and when he awoke IRD was no longer in the bedroom. He went looking for her in RD’s bedroom. He was not sure if he spoke to RD. He denied touching IRD’s leg or having a conversation about upsetting her. In cross-examination he said that on the night of the alleged rape he spoke to IRD for about 20 minutes and then went to get his bedding. He wanted the bedding because he thought he might be talking to IRD for some time and sitting on the floor was uncomfortable. He had been in IRD’s bedroom before for long talks at night. He conceded that it was possible he asked IRD if he had done anything to upset her.
The following day he entered RD’s bedroom. IRD was on the bed. He sat on the bed and IRD told him to “fuck off”. He left. Later that day he sent a message to RD asking what he had done. She did not respond for a few days. When she did respond she accused him of doing “a whole bunch of stuff to my daughter”.
SRC and her brother stayed overnight at the appellant’s house on five or six occasions when RD was working. All the children would sleep on the fold-out sofa in the lounge room. The appellant gave evidence of an occasion where he moved SRC because her brother and cousins were kicking her. He carried her into the snake room. He said there were two occasions that he moved SRC. He could not recall why he moved her on the second occasion. He denied touching her vagina.
Cross-admissibility

In R v C, CA[3] Kourakis CJ explained the application of the governing principles for the admission of similarity of account evidence. He said:[4]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence … outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
[3] [2013] SASCFC 137.
[4] R v C, CA [2013] SASCFC 137 at [61].
In McRoberts v The King[5] Kourakis CJ went on to make the point that:[6]
Where the evidence of multiple complainants is sought to be adduced as cross-admissible on the basis of similarity of account reasoning, the focus of the analysis must be on the circumstances of the offending as described by each complainant and the degree of similarity in their accounts. The strength of the evidence may lie in the “unusual features” or “underlying unity” or “system” or “pattern” established by the evidence. However, it is not necessary to establish a “striking similarity” between the accounts or a unique modus operandi for the evidence to meet the threshold for admissibility. What is required is that the similarities in the complainants' accounts raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated or imagined their allegations.
[5] [2024] SASCA 92.
[6] McRoberts v The King [2024] SASCA 92 at [39].
The admissibility of evidence of discreditable conduct pursuant to s 34P(2)(a) of the Evidence Act is an evaluative question of law admitting of only one answer.[7] The question is whether the evidence is cross-admissible in accordance with s 34P(2)(a) of the Evidence Act.[8] Where the permissible use of the evidence sought to be admitted is similarity of account reasoning, the probative value of the evidence lies in the improbability of the complainants giving accounts of the conduct having the requisite degree of similarity unless the conduct occurred.[9]
[7]     McRoberts v The King [2024] SASCA 92 at [35].
[8]     McRoberts v The King [2024] SASCA 92 at [35].
[9]     Hoch v The Queen (1988) 165 CLR 292 at 294.
This Court is ultimately required to stand back and form an evaluative judgment as to the overall probative value of the similarities of the complainants’ accounts.[10] In this regard it is important to remember that allegations of sexual abuse of children are well outside the ordinary human experience. While that factor of itself is not enough in isolation to establish the cross-admissibility of such evidence, as a starting point it is a matter bearing upon the requisite analysis.[11] The evaluative judgment required is to be discharged by answering the question whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences is so improbable that the probative value of the evidence outweighs its prejudicial effect.[12] The focus must be on the similarities between the complainants’ narratives of the alleged sexual abuse and not upon the personal characteristics of the complainants.[13] The starting point is the inherent unlikelihood of more than one child known to an adult, of whom is accused of alleged sexual abuse, and that that accused was the offender.[14] In considering similarities, the focus is on the peculiarity and detail of those narrative accounts, rather than features which are commonplace and unremarkable.[15] It follows that it is not possible to detail prescriptively or exhaustively features which are, or are not, relevant to similarity of account reasoning.[16]
[10] R v C, CA [2013] SASCFC 137 at [61].
[11] R v Marshall [2023] SASCA 105 at [161].
[12] R v C, CA [2013] SASCFC 137 at [61].
[13] DES v The Queen [2020] SASCFC 32 at [70]; MDM v The Queen (2020) 136 SASR 360 at [14]-[16], [128]-[135]; Slape v The Queen [2022] SASCA 91 at [57]-[58].
[14] McRoberts v The King [2024] SASCA 92 at [40]; R v Marshall [2023] SASCA 105 at [162].
[15] Slape v The Queen [2022] SASCA 91 at [58]; Phillips v The Queen (2006) 225 CLR 303 at [56].
[16] R v C, CA [2013] SASCFC 32 at [70]; MDM v The Queen [2020] 136 SASR 360 at [128]-[136]; Slape v The Queen [2022] SASCA 91 at [56]-[57], [60]; McRoberts v The King [2024] SASCA 92 at [52]-[54].
Whether a complainant’s account as to their relationship with an accused person and any similarity between complainants as to that fact, is relevant to evaluating the admissibility of similarity of account evidence, depends upon the circumstances of each case. The relevant circumstances include matters such as the nature of the relevant relationship, how that relationship features in a complainant’s narrative of the alleged offending, and the similarities that may exist in the complainant’s account as to how the relationship between an adult and a child may have been manipulated or exploited by an accused, so as to enable the commission of sexual offences with children.
The analysis of similarity of account reasoning focusses on the similarities between the complainants’ narratives of the alleged sexual abuse. However, the analysis is not confined to a consideration of similarities between the physical acts of sexual abuse or even to the immediate setting in which they occur. This is because the relationship between an accused person and a complainant, and other features of that relationship, may well form an integral part of the complainant’s account as to the alleged offending. It may inform the circumstances and context in which the offending occurred.[17]
[17] McRoberts v The King [2024] SASCA 92 at [52]-[54].
Trial judge’s reasons for finding the evidence of IRD and SRC cross-admissible
The judge identified five similarities between the accounts of IRD and SRC which he found made it improbable that they were false or unreliable. The trial judge also noted a number of dissimilarities before addressing the terms of ss 34P(1), 34P(2)(a) and 34P(3) of the Evidence Act. The judge directed himself that a permissible use was “the similarity of the accounts of the two complainants making it less likely that each was concocted or unreliable”.[18] The judge ultimately concluded that the similarities of account of IRD and SRC rendered their evidence of discreditable conduct cross-admissible for the purposes of similarity of account reasoning.[19]
[18] R v Longman [2023] SADC 132 at [137].
[19] R v Longman [2023] SADC 132 at [139].
The judge also found the evidence of IRD relevant to counts 1, 4 and 5 was cross-admissible. This was on the basis that the same parties were involved, the occasion of the commission of each offence was similar, and there was a brazenness attending each occasion for which the appellant was charged.[20] The similarity in each of the complainants’ accounts as to the offending occurring in the circumstances alleged was capable of removing a doubt which the brazenness of the appellant’s conduct might have suggested.
[20] R v Longman [2023] SADC 132 at [140].
Proof of count 1
The judge found IRD’s evidence in relation to count 1 compelling.[21] The judge found that IRD’s account of the appellant putting his hand over her mouth was similar to SRC’s account. While not expressed in terms, it is evident that the trial judge used the discreditable conduct evidence concerning SRC for the purposes of similarity of account reasoning in proof of the offending against IRD, which is count 1. The judge found IRD’s evidence was also supported, at least peripherally, by the evidence of SL. The judge considered the finding that the appellant had also put his hand over IRD’s mouth probative in deciding whether he was satisfied of the charge on count 1.[22]
[21] R v Longman [2023] SADC 132 at [208].
[22] R v Longman [2023] SADC 132 at [209].
Proof of count 3
The judge found that SRC was a credible witness who gave her evidence with “significant nuance and without exaggeration”. The judge set out those features of SRC’s evidence which supported that finding, including that she, like IRD, described the accused putting his hand over her mouth. The judge ultimately concluded that SRC’s evidence was compelling. He noted again that SRC’s account of the appellant putting his hand over her mouth was similar to IRD’s account. The judge used the discreditable conduct evidence in relation to IRD on count 1 in proof of count 3.
Proof of counts 4 and 5
The judge commenced his analysis of counts 4 and 5 by observing that he found IRD’s evidence to be credible. However, he explained that he was troubled by IRD not mentioning the alleged rape in count 4 until giving a statement to the police just before the trial. The judge then identified several other aspects of IRD’s evidence which were relevant to an assessment of this issue. This included the acceptance that aspects of sexual offending may come to mind over time and memories may be triggered, while also considering that it could be embarrassing for a child to report sexual matters to police. [23]
[23] R v Longman [2023] SADC 132 at [211].
The Judge, in comparison, found that IRD had disclosed to RD and SL that the appellant had come into her bedroom; that he had touched her leg; and that IRD had reported the conduct the subject of count 1 to police. While the judge did not reject IRD’s evidence, indeed he found her credible, he was not able to be satisfied beyond reasonable doubt of the guilt of the appellant on count 4. The appellant contends that weighed against the finding that IRD’s evidence was credible, it is evident that the above findings must be referable to entertaining a reasonable doubt about IRD’s reliability generally. While the judge found the conduct the subject of count 5 proved, his difficulty was that he was not satisfied that the element of indecency was proved. The judge could not be satisfied that the touching was for a sexual purpose. The judge also found that the appellant was likely to have been very conscious that at any time IRD’s mother might return from the bathroom, making it possible he did not have an intention of offending against IRD on that particular occasion because of the substantial risk of detection.
Ground 1: did a miscarriage of justice result from the joint trial of IRD and SRC?
As we have said earlier, the question of permission to appeal on ground 1 was referred to this Court for argument as on appeal.
The applicant complains that the judge erred in failing to order separate trials. The applicant submits that a miscarriage of justice was occasioned by the joint trial of IRD and SRC in that the evidence in relation to each was not cross-admissible. He acknowledges that his trial counsel did not seek an order for separate trials in relation to each complainant, nor submit that the evidence of each was not cross-admissible. Notwithstanding that failure on the part of the defendant’s counsel, the judge did however consider the question of whether the evidence was cross-admissible.
The applicant submits that the evidence relating to each complainant did not have the necessary probative value in proof of the charge, or charges, concerning the other, and as such the discreditable conduct evidence was not admissible pursuant to s 34P(2)(a) of the Evidence Act.
Section 34P provides:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
…
The decision whether to order separate trials is discretionary and the principles in House v The King[24] apply. However, the admissibility of the evidence of discreditable conduct under s 34P(2)(a) of the Evidence Act is an evaluative question of law admitting of only one answer. As was observed in McRoberts v The King,[25] the task for this Court is to evaluate whether the evidence was cross-admissible, rather than determining whether it was open for the judge to find that it was. Whether or not each complainant’s evidence of the alleged offending is admissible under s 34P(2)(a) of the Evidence Act will usually, but not always, be determinative of whether the judge erred in the exercise of the discretion not to order separate trials. At issue, pursuant to s 34P(2)(a) of the Evidence Act is the question of whether the accounts of the complainants had such a degree of similarity as to raise the improbability that they independently fabricated, imagined or otherwise were mistaken about the offences.
[24] (1936) 55 CLR 499 at 505-506.
[25] [2024] SASCA 92 at [35].
The applicant submits that the judge misdirected himself as to the way in which the test prescribed by s 34P(2)(a) of the Evidence Act should be applied, by having regard to similarities which did not have relevance for similarity of account reasoning. Further, and in the alternative, he submits that the similarities were of a relatively general and unremarkable nature. As a result, the probative value of these similarities did not outweigh the prejudicial effect of both sets of allegations being made and considered in the same trial. Accordingly, the judge erred in ruling that the complainants’ evidence was cross-admissible.
The five similarities identified by the judge were:
(i)In SRC’s case and in the case of IRD in 2013, both of the complainants were sleeping at the applicant’s residence while other people were present but otherwise occupied creating an opportunity for the applicant to offend;
(ii)In SRC’s case and in the case of IRD in 2018, both of the complainants alleged that the applicant digitally penetrated their vagina;
(iii)In SRC’s case and in the case of IRD in 2013 the applicant put his hand over the mouth of both of them;
(iv)There was some similarity in the ages of the complainants at the relevant times. SRC was eight years of age in 2016. IRD was nine years of age in 2013 and 13 years of age in 2018; and
(v)The applicant groomed each of the complainants, to the extent that he gave them lollies more frequently than their brother or brothers.
The applicant submits that the judge considered the similarities in his conduct towards IRD and SRC at a high level of generality and says further that when the similarities are examined in closer detail, the alleged conduct became more elusive.
He submits that the fact that each of the complainants were sleeping in the applicant’s residence while their parents were otherwise occupied, as well as their similar ages at the time of the charged offending, does not make it less probable that the complainants had independently come to make false complaints against the applicant. IRD only stayed at the applicant’s house on two occasions while SRC stayed more frequently.
The applicant further submits that the mechanics of the acts of unlawful sexual intercourse, namely, the digital penetration of the vagina of both complainants, only arises at a high level of generality. Moreover, the sequence and nature of the acts were different. In SRC’s case she alleged the applicant entered her bedroom, picked her up and took her to another room where he digitally penetrated her vagina. She alleges this happened on multiple occasions, and that she was always awake when the conduct occurred. The actus reus usually lasted five to 10 minutes. By contrast, in the case of IRD, she alleged the applicant entered her bedroom while she was sleeping, laid down his bedding before the offending occurred, and would immediately stop offending the moment he realised she was awake. IRD was not alone at the time of the offending as her sister was in bed with her.
The applicant accepts that both complainants allege he placed his hand over their mouths to stop them from making noise, but he submits this is unremarkable at a general level, being common to many accused charged with sexual offending. In any event, this only occurred with IRD in 2013 and not in 2018. In the case of SRC the applicant only placed his hand over her mouth on two occasions, and this was when she made noise. The applicant submits this was not a regular feature of his alleged offending.
The applicant submits that while there is a degree of similarity of the evidence of him grooming each complainant by treating only them to lollies, and in turn favouring them over their brother, or brothers, this is not something either complainant gave evidence about. It did not form part of each complainant’s evidence about their relationship with the applicant, nor did it constitute an integral part of the alleged offending. The applicant submits that the evidence of grooming was relatively innocuous, and that these factors all tend to reduce the probative value of this evidence.
In deciding whether evidence is cross-admissible the Court must consider the evidence of similarity of accounts. Nonetheless, in assessing the evidence of similarity, the Court cannot overlook evidence of dissimilarity. For example, one of the similarities was the particular circumstances of the offending which occurred when adults were nearby but otherwise occupied. Those circumstances afforded the opportunity for the offending. On the other hand they created a significant risk of detection. However, it is that very risk factor which identifies the brazenness of the appellant’s conduct which makes the circumstances of the offending materially similar. In fact the very concept of an underlying unity envisages potential variation or disparity in offending conduct. Consideration of the factual scenarios of the authorities demonstrates that evidence will often be cross-admissible despite variation or factual disparity as between the complainants’ accounts.[26] In R v Marshall[27] the Court said that when looking at the similarities between the accounts of different complainants, the enquiry is concerned with the extent to which the similarities, or otherwise, bear on the improbability of collusion, concoction or coincidence by the complainants.[28]
[26] R v March [2014] SASCFC 54; DES v The Queen [2020] SASCFC 32 at [63]; Sexton v R [2022] SASCA 73.
[27] [2023] SASCA 105.
[28] R v Marshall [2023] SASCA 105 at [161].

The analysis undertaken by the judge accorded with established principle. It relied on the fact that each of the complainants was a prepubescent girl, that the applicant had access to each of them, the similarities in the circumstances of the offending which mostly consisted of digital penetration of the vagina, the covering of their mouth with his hand, and the grooming behaviour. For the judge to have ignored these similarities would have been a failure to have regard to relevant considerations.[29]
[29] R v Marshall [2023] SASCA 105 at [161]-[164].
In this case the relevant circumstances are that the offending occurred when IRD and SRC were staying overnight at the applicant’s house; that the applicant entered the bedroom in which they were sleeping or were in bed going to sleep and then either committed sexual offending against them or took them to another room for that purpose; that each of them was a prepubescent girl at the relevant time; and that the offending occurred in brazen circumstances which created a risk of detection by other adults in close proximity, while at the same time affording the applicant the opportunity to offend in another room of the house. A telling similarity was the nature of the offending conduct itself involving touching the vagina and covering their mouths with his hand. These factors must be considered together rather in isolation.[30] These circumstances form a proper basis for their evidence being found to be cross-admissible.
[30] R v Sutton (1983) 32 SASR 553 at 582.
When the complainants’ accounts are considered in their entirety, and in context, the similarities are such as to render the hypothesis that both complainants had independently fabricated, imagined or were otherwise mistaken about the allegations so improbable, that the probative value of the evidence outweighed its prejudicial effect. We do not accept the applicant’s submission that the similarities between the accounts of IRD and SRC were unremarkable and at such a high level of generality that the prejudicial effect of the evidence of the other complainant outweighed its probative value to as to render their evidence inadmissible.
On the contrary, these circumstances evidence a significant similarity of account by two girls who had no reason to fabricate conduct, lacked the opportunity to collude, and for which, there is no evidence they had any knowledge of such conduct by adults or children. Their accounts do not need to betray a unique or particular modus operandi to attain the requisite probative force. The allegations made by IRD and SRC had a sufficient degree of similarity to render their evidence, when considered in context and as a whole, cross-admissible. That was not in error even allowing for the acquittal on ground 4. The acquittal did not make the guilty verdicts a miscarriage of justice. The acquittal on count 4 may have diluted the force of the prosecution case but did not make the admission of the evidence contrary to section 34P. The evidence was properly cross-admissible and properly admitted.
We would grant permission to appeal on ground 1, but dismiss the appeal on this ground.
Grounds 2(a) and 2(b): the use of the discreditable conduct evidence admitted pursuant to s 34P(2)(a) of the Evidence Act
It is convenient to do as the appellant has done, and deal with grounds 2(c) and 2(d) when dealing with ground 5.
Grounds 2(a) and 2(b) concern the way in which the judge used the discreditable conduct evidence relating to IRD for the purposes of similarity of account reasoning in proof of the offending against SRC (count 3).
These grounds complain the judge reasoned erroneously in engaging in similarity of account reasoning by having regard to matters in the similarity matrix[31] that the judge did not accept, namely, the allegations of digital penetration. The appellant submits that the judge’s use of this evidence, without more, was erroneous.
[31] i.e. the five similarities set out above at page 11.
The appellant submits the premise of the judge’s analysis of count 4, where the judge found that while IRD was credible, he was troubled by her failure to mention the rape, is that he entertained a doubt as to the reliability of IRD’s evidence. The appellant submits it is implicit in the verdict of not guilty on count 4 that the judge was unable to accept IRD’s evidence that she was in fact digitally penetrated by the appellant. The appellant says that the consequence of this finding is that the strength of the similarity of account reasoning was diminished, and as a result the judge was unable to accept the evidence of one of the very factors relied upon to raise the improbability that the complainants had independently come to make false complaints against the appellant.
The appellant submits that the judge’s approach was problematic for three reasons. First, the judge used the totality of the similarity of account matrix, despite not accepting one of the key integers relied upon to render that matrix admissible. The appellant submits that acceptance of this evidence was a necessary prerequisite for its admissible use.[32] Second, and alternatively, the appellant submits that the judge engaged in similarity of account reasoning while apparently having regard to the allegation of digital penetration in relation to count 4. But, as noted above, the acquittal on count 4 diminished the force of that process of reasoning. Without this allegation, in fact even with it,[33] the appellant submits the evidence relating to IRD did not have sufficient probative value to be rendered admissible in proof of count 3 which was the charge of sexual abuse of a child, being SRC. Third, the appellant submits the opacity of the judge’s reasons is such that it is not possible to determine whether the judge engaged in either process of reasoning. The appellant submits this frustrates this Court’s ability to discharge its appellate function, including analysing whether the judge complied with s 34P(2)(a), and indeed s 34Q and s 34R of the Evidence Act,[34] or whether the judge relied upon discreditable conduct evidence, the probative value of which was outweighed by its prejudicial effect.
[32] Sexton v R [2022] SASCA 73 at [128]-[134].
[33] See ground 1.
[34] MDM v The Queen (2020) 136 SASR 360 at [137]-[140].
Accordingly, the appellant submits that the judge deployed similarity of account improbability reasoning by reference to evidence which was not admissible pursuant to s 34P(2)(a) of the Evidence Act.[35] As a result, he contends a miscarriage of justice has occurred.
[35] Slape v The Queen [2022] SASCA 91 at [69].
It is important to recognise the distinction between whether evidence is cross-admissible and whether it is persuasive. The appellant’s submission conflates the test applicable to the admission of evidence with reasoning that ultimately leads to the acceptance or rejection of evidence which, by an anterior step in the trial process, has been found to be admissible. We accept the submission of the respondent that the former necessarily occurs at a precursory stage of the trial according to the probative value the evidence discloses on its face. The latter occurs only after all of the evidence is heard, tested, and considered together. This process can lead to evidence which has been admitted being rejected, and a contraction of the evidence actually adopted and applied when compared with the evidence which has been admitted.
Once evidence of one complainant is admissible in relation to the other complainant, as the trier of fact, the judge was entitled to place weight and rely on whichever aspects of that evidence he was satisfied was probative. In arriving at his verdicts of guilty the judge relied on the complainants’ accounts that the appellant placed his hand over their mouth. This evidence was properly before the judge and he was entitled to rely upon it.
The judge first addressed the 2013 offence committed against IRD which was count 1. In finding the appellant guilty of this offence the judge commenced by outlining his reasons for rejecting the appellant’s evidence in relation to this offending, noting that those findings did not necessarily lead to the appellants conviction on either account. The judge then proceeded to consider whether he was satisfied beyond reasonable doubt of IRD’s evidence. In reaching his verdict the judge weighed the fact that he found her evidence on this count compelling. In addition, his conclusion was supported in a peripheral way by the evidence of SL, who gave evidence that while IRD had gone to sleep in the bedroom by herself, she saw the appellant on the floor beside IRD’s bed on this occasion. The judge was satisfied beyond reasonable doubt of IRD’s account, including that the appellant had placed his hand over her mouth. The judge was satisfied that the count of attempted rape on count 1 was established. In reaching this conclusion he did not rely upon any similarity of account of SRC or any evidence in relation to counts 4 and 5.
The judge next turned to consider the offending alleged against IRD in 2018, namely counts 4 and 5. He again commenced by rejecting the appellant’s evidence and then considered whether he was satisfied beyond reasonable doubt of the evidence of IRD. The judge did not reject IRD’s evidence in relation to the rape charge on count 4. However, he was plainly troubled by her failure to have reported this offending when she complained to RD and SL and when she gave her first statement to the police.[36] As a result the judge felt a doubt concerning the appellants guilt on this charge. Nonetheless, this doubt did not shake his finding that the evidence given by IRD on these counts was credible. So much is apparent from his acceptance of IRD’s evidence in relation to count 5. The judge was prepared to rely on IRD’s evidence on this count. The verdict of not guilty merely reflected his inability to be satisfied to the requisite standard of the element of indecency. That the judge harboured a doubt on one count did not necessarily give rise to a miscarriage of justice by reason of his verdicts of guilty on other counts. In addition, it is clear the judge considered there was a real possibility that in the particular circumstances of this occasion the appellant did not form the requisite intention when there was such a significant risk of detection once RD returned from the bathroom. Neither matter reflected upon IRD’s credit or reliability.
[36] R v Longman [2023] SADC 132 at [211].
Accordingly, we do not accept the appellant’s submission that given the verdict of not guilty in relation to the alleged offending against IRD on count 4, the verdict of guilty on count 3 in relation to the offending against SRC resulted in the occurrence of a miscarriage of justice.
Grounds 2(c) and 2(d) and ground 5: were the judge’s reasons concerning proof of count 1 inadequate?
Critical to the appeal on grounds 2(c) and 2(d) and 5 is the manner in which the judge had regard to the conduct the subject of counts 4 and 5 when coming to his verdict of guilty on count 1; whether as discreditable conduct evidence[37] or as a matter relevant to whether the judge was satisfied beyond reasonable doubt of IRD’s essential reliability and credibility.[38] While the judge held the evidence relevant to counts 4 and 5 was cross-admissible in proof of count 1 and vice versa, the appellant submits the judge did not identify the basis of admissibility. The appellant submits the balance of the judge’s reasons[39] refers to considerations relevant to the question of severance.
[37] Grounds 2(c) and (d)
[38] Ground 5.
[39] R v Longman [2023] SADC 132 at [140].
While the judge found that IRD was a credible and reliable witness,[40] he approached each tranche of offending involving IRD in a compartmentalised fashion. The judge made findings in relation to count 1,[41] before addressing counts 4 and 5.[42] The appellant submits that the judge did not address the intersection of these counts. He only dealt with that evidence when dealing with the question of cross-admissibility as distinct from the use that could be made of that evidence in coming to a verdict on each count.
[40] R v Longman [2023] SADC 132 at [174]-[199].
[41] R v Longman [2023] SADC 132 at [205]-[209].
[42] R v Longman [2023] SADC 132 at [210]-[215].
The appellant submits that the judge’s subsequent analysis does not disclose that he engaged in propensity reasoning, nor does the evidence of a single complainant lend itself to similarity of account reasoning. However, the appellant submits that the judge’s consideration of count 1 does not reveal the extent to which he had regard to the discreditable conduct evidence comprising counts 4 and 5, if at all, when considering his verdict on count 1.[43] Though the judge expressly found the evidence was cross-admissible, the appellant submits it is no answer to postulate that the disjunctive nature of the judge’s reasoning meant he did not utilise the evidence concerning counts 4 and 5 in proof of count 1. As a result, the appellant submits the judge’s reasons do not exclude the possibility that he used IRD’s account of counts 4 and 5 in proof of count 1, notwithstanding that he found the appellant not guilty of those counts. For this reason the appellant submits that the judge’s reasons are inadequate.
[43] R v Longman [2023] SADC 132 at [140].
Grounds 2(c) and (d) complain that the judge failed to expose his reasoning in relation to the cross-admissibility of count 1 with counts 4 and 5. Further, the reasons do not identify whether the judge used the evidence of counts 4 and 5 in finding the appellant guilty of count 1. The appellant complains that the reasons do not explain how the judge found the appellant guilty of count 1 where he entertained a reasonable doubt concerning the evidence of IRD on counts 4 and 5.
We do not accept this submission.
The principles relevant to the adequacy of a trial judge’s reasoning are well settled. Those principles were recently explained by the Court of Appeal in Lloyd v The King[44] in the following terms:[45]
[44] [2023] SASCA 106.
[45] Lloyd v The King [2023] SASCA 106 at [29]-[33]
Section 7(4) of the Juries Act 1927 (SA) provides:
If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
In R v Keyte Doyle CJ, with whom Williams and Wicks JJ agreed, held that s 7(4) impliedly requires a judge to give reasons for a verdict following upon the trial of a charge by judge alone. The failure to give adequate reasons is an error of law. Unlike similar provisions in other jurisdictions, s 7 does not prescribe requirements for the contents of the reasons for judgment.
The principles applicable to the statutory obligation imposed on a judge to provide reasons are well settled.
In DL v The Queen Kiefel CJ, Keane and Edelman JJ, in considering an appeal from a criminal conviction, said that:
The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
… Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
In Whisprun Pty Ltd v Dixon Gleeson CJ, McHugh and Gummow JJ said, albeit in the context of a civil trial, that a judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[citations omitted].
There is no prescriptive form by which a judge’s reasons for verdict are to be structured or written. What the law requires is conformity to the obligations set out in the authorities as to the adequate provision of reasons. We are satisfied that the judge did so. The judge outlined why the evidence of the two complainants was capable of being cross-admissible.[46] This followed from consideration of what was said by the defence at trial to be motives to lie.[47] The judge rejected the possibility of collusion between the complainants.
[46] R v Longman [2023] SADC 132 at [132]-[140].
[47] R v Longman [2023] SADC 132 at [121]-[132].
The unchallenged evidence was that the complainants had only met once. That was at the engagement party in 2020, but there had not been any communication between them. While s 34S of the Evidence Act provides that the exclusion of the possibility of collusion or concoction is not a condition precedent for the admissibility of similarity of account evidence, in this case the judge expressly rejected any suggestion of collusion or fabrication.
The judge did not err when considering the discreditable conduct evidence which was relevant to similarity of account between the two complainants. The judge also noted dissimilarities in the evidence of IRD and SRC.[48] In his reasons for verdict the judge explained[49] why he found the evidence of the two complainants capable of being cross-admissible, including that there was no contamination or collusion between the complainants.[50] This finding followed from consideration of a submission by the appellant of what was said to be the complainants motive to lie. This was relevant to the capacity of the evidence of the complainants to be used for similarity of account reasoning. This passage in the judge’s reasons addressed the question of admissibility, not the use the judge ultimately made of the evidence in arriving at his verdict. Later in his reasons the judge set out the matters that he weighed when evaluating the evidence relating to the allegations of offending against each complainant in reaching his intermediate findings.[51] The judge then proceeded to his ultimate findings and verdict.[52]
[48] R v Longman [2023] SADC 132 at [134].
[49] R v Longman [2023] SADC 132 at [132]-[140].
[50] R v Longman [2023] SADC 132 at [121]-[132].
[51] R v Longman [2023] SADC 132 at [103]-[107] (in relation to IRD); R v Longman [2023] SADC 132 at [200]-[204] (in relation to SRC).
[52] R v Longman [2023] SADC 132 at [205]-[222].

The judge’s reasons are sufficient to identify the principles of law applied by him and the main factual findings on which he relied.[53]
[53] Douglass v The Queen (2012) 86 ALJR 1086 at 1089.
The manner in which the judge structured his reasons discloses that he first dealt with the evidence relevant to the 2013 offending against IRD. The content of the reasons indicates that the judge did not rely on the evidence of any other count to reason to guilt in relation to count 1. At trial neither party suggested any possible use of the discreditable conduct evidence the subject of counts 4 and 5 in relation to count 1. As a result the judge was not required to address this issue unless he intended to use the evidence in this way. There is no suggestion in his reasons that he did so.
We do not accept the appellant’s submission that the reasons fail to disclose whether the judge had regard to the discreditable conduct evidence in grounds 4 and 5 in arriving at his verdict of guilty on count 1.
Neither do we accept that an experienced criminal judge, having found the appellant not guilty on counts 4 and 5, then used that evidence to arrive at the verdict of guilty on count 1. There is nothing he said in his reasons to suggest he did. It is clutching at straws to submit otherwise.
In any event, the reasoning in relation to count 5 is based on the judge’s acceptance of IRD’s account of the relevant events that occurred. He accepted her evidence that the appellant touched her leg in RD’s bedroom and spoke to her in the terms she alleged. The not guilty verdict was the result of a doubt the judge entertained as to whether the element of indecency had been proved. That is not inconsistent with acceptance of IRD’s evidence concerning the actus reus. That the judge entertained a doubt about the appellant’s intention when touching IRD’s leg while she was in RD’s bedroom and RD was in the bathroom, is not inconsistent with the judge’s verdict on count 1.It was not a finding capable of adversely affecting any assessment of IRD’s reliability generally or specifically.
In relation to count 4 the judge was generally satisfied that the evidence of IRD was credible.[54] The judge did not reject her evidence, but felt a reasonable doubt given the failure by IRD to have complained earlier of the alleged rape. That doubt is not necessarily inconsistent with the judge’s verdict that the appellant was guilty of the charge of attempted rape in count 1. That evidence was independently supported by the evidence of SL of hearing a noise and seeing the appellant with IRD in her son’s bedroom.[55] The judge found IRD’s evidence was credible and the accused’s evidence unsatisfactory. The verdict further supported by the evidence of complaint accepted by the judge.[56]
[54] R v Longman [2023] SADC 132 at [211].
[55] R v Longman [2023] SADC 132 at [106]-[107].
[56] R v Longman [2023] SADC 132 at [175].
Conclusion
We would grant the extension of time. We would grant permission to appeal on ground 1 but dismiss the appeal on this ground.
We would dismiss grounds 2 and 5.
We would dismiss the appeal.