NBM v The Queen - [2021] SASCA 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NBM v THE QUEEN
[2021] SASCA 105
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)
30 September 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant was convicted after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child, namely his biological daughter. The alleged offending occurred when the complainant was between seven and ten years old; she was 19 at the time of trial. The complainant's credibility and reliability were the key issues at trial. Under cross-examination, the complainant gave evidence that she had blocked out/repressed her memory of the alleged sexual offending for a period of approximately 6 years. The appellant called expert evidence from a psychologist that such presentation was atypical. The Trial Judge accepted the complainant's evidence as credible and reliable and found the appellant guilty beyond reasonable doubt as charged. The appellant was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months.
The appellant appealed against both conviction and sentence. The appellant contended that the Trial Judge had failed to provide adequate reasons for his findings that the complainant was credible and reliable; had failed to adequately deal with the expert evidence; and misdirected himself on the issues of consciousness of guilt and delay in making a complaint. The appellant contended that the verdict was unsafe. The appellant further contended that the sentence imposed was manifestly excessive.
Held (by Doyle JA, Kelly P agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 5, and dismissing the appeal against conviction on all grounds:
1. The Trial Judge’s reasons, read as a whole, adequately expose his Honour’s reasons for finding the complainant’s evidence to be credible and reliable, despite the expert evidence;
2. The Trial Judge was entitled to use the evidence of the November 2011 telephone conversation between Mr Miller and the appellant on the issue of consciousness of guilt;
3. The Trial Judge did not err in his directions with respect to consciousness of guilt or delay in making a complaint.
Held (by Lovell JA), granting permission to appeal and allowing the appeal against conviction on Grounds 1 and 2, but dismissing Grounds 3 and 4:
1. The Trial Judge failed to give adequate reasons when assessing the complainant's credibility and reliability;
2. The Trial Judge failed to give adequate reasons as to how the expert evidence was used and the weight afforded to it;
3. The Trial Judge erred in failing to consider the complainant's reliability as distinct from credibility;
4. The appellant failed to establish that the Trial Judge must have, as opposed to might have, had a reasonable doubt as to the appellant’s guilt.
Held (by Doyle JA, Kelly P and Lovell JA agreeing), refusing the application for permission to appeal against sentence:
1. The starting point of 12 years imprisonment and the non-parole period of slightly greater than 60% of the head sentence were appropriate;
2. The sentence imposed was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53; DES v The Queen [2020] SASCFC 32; DL v The Queen (2018) 266 CLR 1; Douglass v R (2012) 290 ALR 699; Edwards v The Queen (1993) 178 CLR 193; Fleming v The Queen (1998) 197 CLR 250; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; IMM v The Queen (2016) 257 CLR 300; JGS v The Queen [2020] SASCFC 48; Kirkland v The Queen [2021] SASCA 14; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Papps v Police (2000) 77 SASR 210; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85; Pell v The Queen (2020) 268 CLR 123; Pettitt v Dunkley [1971] 1 NSWLR 376; R v Adamson [2018] SASCFC 114; R v Becirovic [2017] SASCFC 156; R v Bjordal (2005) 93 SASR 237; R v Bonython (1984) 38 SASR 45; R v Burns (2009) 103 SASR 514; R v Cluse (2014) 120 SASR 268; R v D (1997) 69 SASR 413; R v Dickson [1983] 1 VR 227; R v Fowler (1985) 39 SASR 440; R v Helps [2019] SASCFC 66; R v Jones [2018] SASCFC 80; R v Keyte (2000) 78 SASR 68; R v MAS (2013) 118 SASR 160; R v Mayger (2013) 116 SASR 488; R v Rendell (2018) 131 SASR 201; R v Ricciardi (2017) 128 SASR 571; R v Wildy (2011) 111 SASR 189; Ramsay v Watson (1961) 108 CLR 642; Rhoden v Wingate [2002] NSWCA 165; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

NBM v THE QUEEN
[2021] SASCA 105

Court of Appeal – Criminal: Kelly P, Lovell and Doyle JJA

KELLY P: I would dismiss both the appeal against conviction and the appeal against sentence. I agree with the orders proposed by Doyle JA and with his reasons.
LOVELL JA: After a trial by a judge sitting without a jury the appellant was found guilty of one count of maintaining an unlawful sexual relationship with a child, his daughter. At trial, the appellant called expert evidence which he contended, if accepted, cast doubt on the credibility and reliability of the complainant’s evidence. How the Trial Judge dealt with the complainant’s credibility and reliability was the major issue on appeal.
Background
The appellant was charged with maintaining an unlawful sexual relationship with a person under the age of 17 years,[1] his daughter, by engaging in two or more unlawful sexual acts, namely:
a)     touching her pubic area with his hand on more than one occasion;
b)    touching her vagina with his fingers on more than one occasion;
c)     touching her chest on more than one occasion;
d)    touching her upper thigh on more than one occasion,
e)     pressing his penis against her buttocks on one occasion,
f)     masturbating in her presence on more than one occasion;
g)     inserting a finger in her vagina on more than one occasion.
[1] Pursuant to s 50 Criminal Law Consolidation Act 1935 (SA).
The appellant elected for trial by judge alone. The Trial Judge found him guilty of the charge.
The trial
The respondent called six witnesses: the complainant, the complainant’s mother and brother, Mr Adrian Miller (a counsellor), Ms Alexandra Brooks (a psychologist), and an investigating officer. The appellant gave evidence, along with calling his father and a psychologist, Mr Richard Balfour. The prosecution case relied heavily upon the complainant’s evidence. As mentioned earlier, the credibility and reliability of the complainant were the central issues at trial.
The following is a summary of facts as alleged by the respondent.
The complainant, who was born in February 2001, is the daughter of the appellant and his former wife. The alleged offending occurred between 2008 and 2011 when the complainant was between seven and ten years old. She was 19 years old at the time of the trial.
Following their parent’s separation in 2005, the complainant (then aged 4) and her younger brother were in the primary care of their mother. The complainant and her brother spent time with the appellant pursuant to Family Court orders. The complainant was emotionally closer to her mother. The complainant often resisted going to stay overnight with the appellant; she would be tearful as the access times approached and expressed fear as the appellant was inclined to anger. The complainant considered the appellant favoured her younger brother, who considered his sister’s relationship with their father as “not quite as good” as his own, but “still pretty good”.[2] A cooking accident in 2007 wherein the complainant sustained serious scalding whilst in the care of the appellant further adversely impacted the complainant’s perception of the appellant as a responsible parent.
[2] R v M, NB [2020] SADC 164 at [59] (“Reasons for Verdict”).
The appellant lived in various rental accommodation until 2008, when he moved into his father’s home at Woodcroft. The complainant (then aged 7) and her brother would stay overnight at the Woodcroft home when in the care of the appellant. The complainant and her brother each had a bed in a shared bedroom. The appellant’s bedroom was adjoined to the laundry, which was close to the toilet.
Around the same time that the appellant moved into the Woodcroft home, the complainant began developing symptoms of obsessive compulsive disorder (“OCD”). These symptoms included fears that drove her to frequently go to the toilet at night and then wash her hands excessively. The beginning of the alleged offending occurred after the complainant returned to her bed after a visit to the toilet. She was around eight or nine years old. The complainant alleged that the appellant asked if she was having trouble sleeping and then climbed into her bed. He put his arm over her, rubbed her chest, stomach and thighs before putting his hand on her vagina over her underwear, progressing to put his hand on her vagina under her underwear. He was moaning softly and breathing heavily. The touching lasted for about 10 minutes.
The appellant engaged in the same conduct a week or so later; the third occasion was about a month later. The conduct escalated to the appellant moving his fingers down the side of the complainant’s vagina and then inserting a finger into her vagina on at least three occasions. The appellant was also alleged to have masturbated whilst touching the complainant. By this time, the appellant had stopped announcing himself (by asking if the complainant was struggling to sleep) and would get straight into her bed. The complainant tried to supress her urges to use the toilet so to avoid waking the appellant but her impulses continued.
The alleged offending ceased when the complainant told the appellant his actions were not helping her sleep and “if you want to help me sleep go back to your own room.” She stated that on that last occasion the touching was hurting her and she was angry.
The complainant continued to stay overnight with the appellant until shortly after he moved from the Woodcroft home to Glenelg in 2013 or 2014. The complainant refused to stay overnight with the appellant from around the age of 12. She turned 12 in February 2013. In the short period that she did stay overnight at the Glenelg home, the complainant slept alone in the appellant’s bed; the appellant would sleep on the lounge or in the bottom bed of a bunkbed with his son. The complainant explained that she feared sleeping in the bunkbed, namely that she feared the top bunk would collapse on her. The appellant is not alleged to have sexually abused the complainant whilst at the Glenelg home. The alleged offending occurred between 2008 and 2011 at the Woodcroft home.
The appellant himself gave evidence; he denied the alleged offending. He stated that he loved his daughter and considered they got along with each other. The appellant stated that he had not noticed any obsessive behaviours displayed by the complainant except for her shaking her hands dry, opposed to using a handtowel, which he considered began in around 2014 or 2015. The appellant denied ever hearing the complainant going to the toilet in the night. The appellant’s father gave similar evidence of not noticing the complainant demonstrate any unusual habits, save for the hand shaking. The appellant also tendered a number of documents, including family photographs[3] and excerpts from the complainant’s diaries.[4] The content of a “Worry Box” was also tendered; it contained notes of the complainant’s thoughts and feelings of things worrying her in accordance with a therapeutic technique initiated by Mr Miller.[5]
[3]     Exhibit D2.
[4]     Exhibit D3.
[5]     Exhibit D4.
Disclosure of the alleged offending
The complainant did not disclose the alleged offending to her mother. She stated that the appellant had told her to keep quiet about the alleged offending. Her compliance with his request was due to her fear of him becoming angry and in the context of him often telling her not to tell things to her mother.
Between 2011 and 2018, the complainant saw a number of practitioners relating to her mental health conditions. These practitioners included Mr Miller and Ms Brooks. The purpose of seeking counselling for the complainant was initially to address her obsessive behaviours.
The complainant consulted Mr Miller between 20 September 2011 and 20 June 2012, when she was aged 10 to 11 years. She was referred to Mr Miller specifically for counselling about her anxiety, including concerns about the harshness of her father’s behaviour towards her. The alleged offending preceded the complainant’s consultations with Mr Miller. She did not disclose the alleged offending to Mr Miller. In November 2011, Mr Miller rang the appellant in attempt to discuss the complainant’s concerns with respect to her relationship with him. According to Mr Miller, that conversation was cut short by the appellant, who expressed his discomfort with Mr Miller counselling his daughter.
Throughout 2017 and 2018, when the complainant was aged 16 and 17 years, she consulted Ms Brooks. During a consultation with Ms Brooks on 21 May 2018, the complainant disclosed to Ms Brooks an incident occurring at her school earlier that year (the “triggering incident”). On 4 June 2018 in a follow-up consultation, when asked directly by Ms Brooks whether anyone had touched her in a sexual way as a child, the complainant disclosed the alleged offending involving the appellant for the first time (the “initial complaint”). Further details of the alleged offending were disclosed in a subsequent session with Ms Brooks on 14 June 2018. The alleged offending was reported to police and the appellant was arrested on 10 July 2018.
The memory evidence
Whilst there was no dispute that the initial complaint and further details given by the complainant to Ms Brooks were consistent with the complainant’s evidence in court, the allegations of particulars (f) and (g) on the Information were first made during, or just after, a proofing session in July 2020.
The issue that was largely the focus of the appeal arose during cross-examination of the complainant at trial. Counsel for the appellant elicited from the complainant that she had “blocked” the details of the alleged offending. It was put to the complainant that she had “repressed” the memory of the alleged offending which only returned after the triggering incident at school; she agreed. Counsel returned to this topic a number of times in cross-examination. Sometimes the complainant referred to “repressed memory” and on other occasions “suppressed memory”.
At the completion of the complainant’s evidence, counsel for the appellant made an application for a mistrial due to the respondent’s lack of disclosure of the issue of a blocked, suppressed or repressed memory. That is, the appellant complained about the respondent’s lack of disclosure that the complainant “had no memory for six years” of the details of the alleged offending. The Trial Judge dismissed the application for a mistrial.
The trial continued with Ms Brooks, the clinical psychologist to whom the complainant made the initial complaint, giving evidence before the appellant had an opportunity to obtain an expert report. Self-evidently, when leading Ms Brooks, the respondent was unaware of what any expert might say on the topic of the complainant’s evidence about memory. Ms Brooks was not recalled to give evidence in response to the expert evidence and opinion later adduced from Mr Balfour. Ms Brooks did not address the question of blocked out/repressed memories.
Mr Balfour was called by the appellant in response to the evidence elicited in cross-examination of the complainant’s “repressed” memory. Mr Balfour was provided the trial transcript of the complainant’s evidence and Ms Brooks’ evidence only. He provided a report but did not consult with the complainant.[6] Mr Balfour described how memory was laid down. Mr Balfour considered the complainant’s suggestion of a repressed or suppressed memory of such a traumatic event was atypical. He opined that traumatic events, by their nature, meant that memories of such events were “intrusive” rather than repressed or suppressed. The appellant contended that Mr Balfour’s evidence undermined both the credibility and reliability of the complainant’s evidence.
[6] Exhibit D9.
Trial Judge’s findings
Counsel for the appellant submitted in his closing address that the claim of a repressed memory was a falsehood to cover the complainant’s failure to complain and failure to remember some of the details of the alleged abuse. While the alleged falsehood was the thrust of the appellant’s submission, it was not the only criticism. The topic of repressed memories also became central to the defence criticism of the complainant’s reliability.
The Trial Judge accepted the complainant’s evidence as “credible and generally reliable.”[7] He considered her to be an “impressive witness”.[8] The Trial Judge rejected the suggestion that the complainant had a motive to lie, noting her frankness about her OCD, her resistance to stay overnight with the appellant and her closer relationship with her mother.[9] Despite accepting the evidence of Mr Balfour, the Trial Judge did “not accept that the complainant’s describing her memory as repressed damages her credit.”[10]
[7] Reasons for Verdict at [122].
[8] Reasons for Verdict at [122].
[9] Reasons for Verdict at [123]–[127].
[10] Reasons for Verdict at [136].
The Trial Judge rejected the appellant’s evidence where it conflicted with that of the complainant.[11] He found the appellant to be an unsatisfactory witness.[12]
[11] Reasons for Verdict at [143].
[12] Reasons for Verdict at [138].
Having accepted the complainant’s evidence, the Trial Judge was satisfied beyond reasonable double of the appellant’s guilt and convicted the appellant. He was sentenced to 12 years imprisonment with a fixed non-parole period of seven years and six months. The appellant appealed both the conviction and sentence.
The appeal
The appellant agitated five grounds of appeal against conviction summarised as follows:
1.The Trial Judge erred by giving inadequate reasons for finding the appellant guilty and in particular did not consider whether the evidence concerning the repressed memory affected the reliability of the complainant;
2. The Trial Judge failed to give adequate weight to the evidence of Mr Balfour and failed to give adequate reasons as to why he did not accept the evidence of Mr Balfour;
3.The Trial Judge erred in how he directed himself with respect to the evidence of Mr Miller and in particular whether the evidence was capable of demonstrating a consciousness of guilt and whether the evidence amounted to discreditable conduct;
4.The verdict is unsafe and unsatisfactory and cannot be supported on the evidence; and
5.The Trial Judge misdirected himself on the question of delay.
Permission to appeal was granted on Grounds 3 and 4 by Kelly P. Permission on Grounds 1, 2 and 5 was referred to this Court.

It is helpful to group, and address, the essence of the grounds of appeal as follows. Grounds 1 and 2 are interrelated; they are complaints that the Trial Judge gave inadequate reasons for his finding of guilt and in particular that he gave inadequate reasons for his conclusion that the complainant’s evidence was reliable, in light of the repressed memory evidence elicited in her cross-examination and from the expert evidence of Mr Balfour. Further, the latter ought to have been, in the appellant’s submission, afforded greater weight. Grounds 3 and 5 allege errors of law which, if successful, may result in a retrial. The catch-all complaint in Ground 4 is that a proper assessment of the evidence raised in Grounds 1 and 2, and the consequence of the misdirection raised in Ground 5, renders a conviction unsafe and unsatisfactory.
The appellant has further appealed against sentence on the ground that it is manifestly excessive. Permission to appeal is required.
In summary, I would grant permission to appeal and allow the appeal on Grounds 1 and 2. Given my findings on Grounds 1 and 2, it is not necessary for me to consider Ground 5. I would dismiss Grounds 3 and 4. In my view, the conviction should be quashed and the matter remitted for retrial.
Grounds 1 and 2
As summarised above, Grounds 1 and 2 are interrelated. I will deal with them together. The complaint was that the Trial Judge gave inadequate reasons for his finding of guilt; in particular, the Trial Judge did not consider the repressed memory evidence when assessing the complainant’s reliability, given the respondent’s case relied upon the complainant’s evidence. That is, the appellant contended that the Trial Judge failed to properly consider the expert evidence of Mr Balfour. Further, the appellant contended that the Trial Judge failed to adequately explain how he dealt with the evidence of Mr Balfour.
Credibility and reliability
The credibility and reliability of the complainant were the major issues at trial. On appeal, the appellant contended that the Trial Judge failed to give adequate reasons for his finding that the complainant was credible and reliable.
At common law, a distinction is drawn between the concepts of credibility and reliability. As Nettle and Gordon JJ observed in IMM v The Queen:[13]
The credibility of the witness was commonly understood as meaning the “truthfulness” of the witness – whether the witness genuinely believe that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’s ability to observe and remember facts.
[13] (2016) 257 CLR 300 at [114]. Justices Nettle and Gordon were in the minority in relation to the result of the appeal.
The reliability of evidence is a matter of degree. At a level of abstraction there is always a risk that the evidence of a witness may not be reliable in every respect. The standard direction to juries refers to the fact that a jury may accept part of a witness’s evidence but reject other parts. Credibility and reliability are sometimes inextricably entwined, sometimes only one or the other is in dispute and on occasions both are challenged independently.
It is not always necessary for a judge to address the issues separately.[14] Much depends on the facts of the case and the way the issues arise at trial. In cases where the credibility and reliability of a witness are directly in issue, it is important that the judge draws the distinction between credibility and reliability and does not simply assume the latter because of a belief in the former.[15] The converse is also true.[16] Where it is a serious issue at trial, the judge must deal adequately with both issues in their reasons, or in the case of trial by jury, in the directions given to the jury.[17]
[14] Kirkland v The Queen [2021] SASCA 14 at [29]–[43] (Kelly P) (Lovell and Bleby JJA agreeing at [124], [188]).
[15] R v Dickson [1983] 1 VR 227 at 231.
[16] MacKenzie v The Queen (1996) 190 CLR 348 at 374.
[17] R v MAS (2013) 118 SASR 160 at [86]–[88], [106].
For the reasons that follow, I would grant permission to appeal and allow the appeal on Grounds 1 and 2. The issues of the complainant’s credibility and reliability were raised by the appellant at trial and evidence adduced relating to both issues. The Trial Judge failed to adequately deal with the evidence of Mr Balfour on the question of the complainant’s credibility and did not deal at all with his evidence on the question of the complainant’s reliability.
Before turning to the analysis of these grounds, it is necessary to consider the topic of expert evidence generally.
Expert evidence
The general rule is that a witness may give evidence only as to matters mediated by their senses. While that generally relates to what a witness saw or heard, it can extend to what a witness tasted, smelt or felt. However, the opinion of a witness is not admissible. A recognised exception to this rule relates to the opinions of an expert. The law recognises that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw the proper inferences from the facts stated by witnesses.
In South Australia, the conditions governing the admissibility of evidence tendered as expert opinion are governed by the common law. Those conditions were outlined in Makita (Australia) Pty Ltd v Sprowles, where Heydon JA stated:[18]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
(citations omitted)
[18] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].
The decision in Makita has been consistently followed in South Australia.[19] Opinion evidence, like any evidence, is subject to the principle of relevance. Assuming the evidence is relevant, the principles governing whether the opinion which the expert seeks to address forms part of a field of specialised knowledge was addressed in R v Bonython.[20] Chief Justice King stated:[21]
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgement on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[19] See R v Bjordal (2005) 93 SASR 237.
[20] (1984) 38 SASR 45.
[21] R v Bonython (1984) 38 SASR 45 at 46–47.
As opinion evidence involves the drawing of inferences and conclusions from facts, the admissibility of the opinion depends upon proof or admission of the facts upon which the opinion is based.[22] However, this does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. It is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value.[23] In any case, but particularly in a criminal case, it is very important that the assumptions of fact upon which the opinion is given be clearly stated and that the evidence be confined to opinions expressed upon those assumed facts. The validity of the opinion in a criminal case is necessarily dependent upon the acceptance “of those facts at least as a reasonable possibility and that to the extent that the assumed facts are not so accepted the [trier of fact] should consider the extent, if any, to which such validity as the opinion might otherwise possess is affected by [the] non-acceptance of any of the assumed facts”.[24]
[22] Ramsay v Watson (1961) 108 CLR 642.
[23] Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87–88.
[24] R v Fowler (1985) 39 SASR 440 at 443 (King CJ) (emphasis added).
In Rhoden v Wingate, Sheller JA observed:[25]
In an Arcadian forensic setting, if expert evidence is to be used, a party would first put its primary factual material before the court either in chief or in the course of cross-examining its opponent’s witnesses and then call expert witnesses to express opinions based on assumptions of fact that that party claimed the court would find proved to its satisfaction on the evidence. In practice that order of events is rare.
[25] [2002] NSWCA 165 at [1].
Unfortunately, due to the way the topic of the complainant’s memory arose, the expert evidence in the case at bar was not produced in an orderly way. That is not intended as a criticism of the appellant’s counsel, as the issue first arose during his cross-examination of the complainant. The appellant’s counsel completed his cross-examination of the complainant and the trial continued until after the appellant had finished giving his evidence. It was only then that the trial was adjourned to allow the appellant to obtain an expert opinion. It would have been preferable for counsel for the appellant to have obtained the expert opinion before cross-examination of the complainant was completed; a number of issues may have then been clarified.
To understand how the Trial Judge dealt with the expert evidence it is necessary to review the complainant’s evidence on this topic before considering the evidence of Mr Balfour.
Complainant’s evidence
The complainant gave three statements to police in addition to giving oral evidence at trial. She did not mention, in any of her statements or in her evidence-in-chief that she had, for approximately six years, in any way “blocked”, “supressed” or “repressed” any memory of the alleged offending. The topic of her memory of the alleged events, although tangentially referred to in evidence-in-chief, did not arise properly until cross-examination.
During cross-examination, the complainant stated:
Q.That’s a fairly vivid memory, isn’t it.
A.Yeah, now it is, yeah.
Q.What do you mean ‘Now it is’.
A.For years it was all blocked out of my mind, like all of it. It wasn’t something that I thought about. The only things that I used to be able to remember from that was dad made me uncomfortable in bed, that’s about it. That’s all, like, after all this finished, that’s all I could remember in my head. I didn’t really try to think about it until the very beginning of year 12 when I had [the triggering incident] and then that triggered a lot of other memories from dad to come up because it was like the same feelings if that makes sense, it was like the same feelings that were brought up.
(emphasis added)
Counsel for the appellant returned to this topic later in the cross-examination. The complainant stated:
Q.And you would have thought about the stuff that you say your father had done to you as the years went on.
A.No, not really. I think that’s where PTSD came in for me and I blocked a lot of that stuff out of my memory. All I remember is knowing that I really felt uncomfortable around dad and I didn’t like the way he acted with his affection and stuff, and that continued on after the offending, so I knew all of that and I could identify those feelings, but the actual events were just kind of - I don’t know how to describe it. I don’t know too much about how trauma works but, yeah, I guess it was just blocked out of my mind for a bit until something else, which was the other thing with the other guy, kind of brought those feelings back up and I was, like ‘Oh, I think there’s something else here’.
(emphasis added)
It is difficult to know what to make of the complainant’s reference to her suffering a Post-Traumatic Stress Disorder (“PTSD”). It appears that the complainant was referring to a PTSD that existed during the time she blocked out or suppressed the memories of abuse. This was not a topic pursued with any focus by either the appellant or the respondent.
Counsel for the appellant turned to the issue of the complainant’s failure to mention the alleged sexual abuse to Mr Miller. She said:
Q.When you saw Adrian you were 10/11. You knew by then, didn’t you, that if an adult physically sexually assaults a child they’re in big trouble. You knew that, didn’t you.
A.Yes.
Q.And when you spoke to Adrian about your father you knew that you had been sexually assaulted by him, didn’t you.
A.Yes, but, like I said, with PTSD I’d suppressed all that. Like, it wasn’t even something that I thought of literally up until [the triggering incident].
Q.There is a difference between suppressing the detail and suppressing the existence of the entire incidents. Are you saying that you completely suppressed from your mind, something like six years, the fact that you had been sexually molested by your father. Is that what you’re saying.
A.The only thing I hadn’t suppressed was the feeling and remembering that I didn’t like being in bed with dad, and I could think of those memories of him climbing into bed with me, but then as soon as I got to that point that was where my brain just cut off. Like, that wasn’t something I wanted to think about. Like, my heart would start going faster and I would get anxiety, and I wasn’t quite sure why, but I was like ‘Oh, okay, obviously that’s, like, something that I don’t really want to think about’, or ‘I don’t know why my brain is doing this to me’. So it was just, like, pushed back.
(emphasis added)
Concerning her feeling uncomfortable around her father the complainant stated:
Q.So you had a feeling of uncomfort (sic) about your father.
A.Yes, and I had a feeling if I’d made myself think about the specific memories, well, the one memory that I always had was him climbing into bed with me and then I’d feel uncomfortable around my chest area and my vagina area, like I could feel, I could feel an emotion and I could feel something that had happened but I didn’t have an image of it in my head, if that makes sense.
Q.You felt uncomfortable when others touched you, for example, your mother’s father, when he touched you.
A.Yes.
Q.He wasn’t a sex offender, was he.
A.No, it was a different sort of uncomfort (sic), him touching me or thinking him about touching me doesn’t raise the same sort of feelings and the same imagery in my head as thinking about what dad did.
(emphasis added)
In an attempt to clarify her evidence, counsel for the appellant asked:
Q.Your evidence is that you suffered a repressed memory about six years in round terms and had no recall of any of these acts apart from him hopping into bed with you.
A.Sorry, can you repeat that?
Q.There might be two questions there: you had a repressed memory of him touching you on any of your private parts.
A.Yes.
Q.Somehow that all became returned to your brain after mid-2018, is that what you’re saying.
A.Yes.
The complainant was further asked:
Q.What was the process, did it all come out at once.
A.No, it took - it was a really gradual process. So when [the triggering incident occurred] that raised a lot of feelings and I remembered being, like my brain, like even now if I think about that my brain just immediately leads me back to dad in my bed. So that was when I went hang on a second this is a bit full on and then I started speaking to Alex [Brooks] about it, [about the triggering incident], and we started broadening it out, well realising that I broadened, like I’ve said before, any sort of touching affectionately into something negative and why that is and the fact that I had these feelings before [the triggering incident], and then I think, I mean I don’t know exactly what led Alex to asking me these questions but eventually it led her to asking me about mum’s past partners and whether they’d ever been violent towards me in any way, touched me in any way and then I said ‘Yeah, dad has’. And then more feelings came out in that moment, probably triggered by the questions being asked because it wasn’t something that my brain voluntarily thought about, but being asked the questions directly made me think about it and I think that’s why in that moment I thought more about it, like what areas I was touched. And then throughout the statements that I did, slowly more and more details and it became a lot more clearer to me.
(emphasis added)
The complainant was asked:
Q.When did you repress the memories.
A.I tried to repress the memories, like, when it happened. Like, this is an example. I’m recognising that he does do inappropriate things but I don’t even want to think about the fact that he actually did it. So instead of mentioning that as an example, I use a different example. But then I completely blocked it out altogether probably after I stopped seeing Adrian [Miller] because I decided that I didn’t really have someone to talk to about it, even if I wanted to, and this obviously isn’t something that I want to think about, and so whether it was a conscious or unconscious decision, I completely blocked all of it out for years, yeah, after seeing Adrian.
(emphasis added)
The prosecutor, in trying to clarify the above evidence, appropriately asked in re-examination:
Q.Finally, you were asked questions about your memory and Mr Vadasz asked if you had repressed a memory and during your evidence you were asked questions about school reports, and during that evidence you used the word ‘suppressed’. Are you able to explain to us what you mean when you say that you either repressed or suppressed your memory.
A.I don’t know which word is the correct word to use in that situation, but basically what I’m saying is it was just in the back of my memory completely, it wasn’t something that I thought about. If I wanted to think about anything to do with those emotions at all, the extent of it would be, like I said about getting into bed. Other than that, all I can remember is the feeling of feeling uncomfortable around my breast area and my vagina. I didn’t have a clear image in my head, which all had to do with my memory of being thrown back to the back of my mind and over time obviously the time that [the triggering incident occurred] brought up the same feelings, which triggered me to remember dad touching me in a sexual way and then over time more memories came back to the front of my mind, being triggered by whatever would trigger them; looking at my statement, or stuff like that.
(emphasis added)
Consideration of the complainant’s evidence

Terms such as “blocked out”, “repressed memory” and “supressed memory” were used somewhat loosely. The complainant did not herself introduce the expression “repressed memory” but acceded to the term when answering a question. The complainant stated on a number of occasions that she “completely blocked” the memories. None of the terms were meant to refer to any specific psychological process. Nothing turns on the different expressions used. The trial was not concerned with a repressed memory being retrieved under therapy. The importance lies in what the complainant described, not the label it was given.
The complainant consistently stated that she felt discomfort in the presence of, and at the touch of, the appellant. She described having a clear memory of the appellant climbing into bed with her, and this thought caused a distinct feeling of discomfort, often in her chest and vagina. She explained the memories following that of the accused climbing into bed with her was the point “where my brain just cut off”. What is clear from the complainant’s evidence is that she described an absence of memory apart from “the feeling” of being uncomfortable. She conceded that she did not have a clear memory of the details of the alleged offending behaviour until the initial complaint made to Ms Brooks, but experienced “just the feeling”.
The complainant also made clear that her memory of the details of the alleged offending, once triggered, continued to “develop”; that is, she did not claim that her entire vivid memory was instantly retrieved.
Thus, while there was some minor variation in her evidence, the consistent theme of the complainant’s evidence on the topic of her memory of the alleged offending was that she had blocked out (repressed or suppressed) all alleged abuse apart from feeling uncomfortable around her breasts and vagina area and the memory of the appellant “in bed” with her. It was upon being asked directly by Ms Brooks whether she had been sexually abused that “made” her think about the offending behaviour. It was then that the specific memories came back to her, although gradually over some time.
Mr Balfour’s evidence
Mr Balfour, a psychologist, was called by the appellant to give evidence about the complainant’s blocked out/repressed memory. Mr Balfour was provided the full transcript of evidence given at trial by the complainant and Ms Brooks, respectively. He subsequently prepared a report dated 6 August 2020 which was tendered.[26] The report, and the opinions contained within the report, formed an important part of his evidence. In oral evidence, he elaborated on the opinions contained in his report. Mr Balfour’s qualifications were not challenged at trial.
[26] Exhibit D9.
It does not appear that Mr Balfour was asked to make any assumptions. Being an experienced witness, Mr Balfour, from his reading of the transcript, isolated in his report what he considered the issues to be. That is, he set out in his report what assumptions he made about the complainant’s evidence. He described his understanding of the issues as follows:
My understanding is that your client has been charged with maintaining an unlawful sexual relationship with his biological daughter, TM, who was born during February 2001. Her parents had separated during 2005. She and her brother, L, were allowed to stay with their father, and this is when the offending is alleged to have occurred. The alleged offending is said to have occurred between the ages of 8 and 10 years between 2011 and 2012.
The complainant first recalled her alleged childhood sexual abuse approximately six years later while being psychologically treated by Alexandra Brooks, as clinical psychologist.
Furthermore, during cross-examination, the complainant could only initially recall the feeling of being uncomfortable with her father and not any specific details of the alleged sexual abuse. Her recall of her memories happened gradually over time. …
You are therefore seeking a general psychological opinion regarding the concept of recovered suppressed memories in adults of childhood sexual abuse in regard to the current case.
(emphasis added)
In his report, Mr Balfour summarised the fundamental principles of the functioning of human memory. This was not contested at trial.
Mr Balfour, in the report, referred to individuals suffering from a PTSD. He considered that such individuals normally have very vivid memories of the precipitating super stressor. He stated:
One of the primary features of the disorder is they find themselves constantly re-experiencing the precipitating super stressor (e.g. intrusive thoughts, ruminations, traumatic nightmares, flashbacks et cetera). They may try to escape from these traumatic mental intrusions by utilising a variety of maladaptive coping strategies such as intoxication with drugs and alcohol; and behavioural avoidance of stimuli associated with the precipitating event.
…
During times of acute psychological distress and trauma, individuals can experience psychic numbing in the form of disassociation, derealisation, and depersonalisation. However, they are still able to identify the super stressor responsible for their acute traumatic reaction. They rarely suppress the memory for years, and then spontaneously experience a delayed recall of the precipitating trauma.
Importantly, Mr Balfour proffered the following opinions in his report:
The relationship between the emotional truth of a specific memory and the objective factual reality is complex. A person’s intuitive emotional feeling about the veracity of the memory may have no bearing with the factual reality of what has happened. The human mind is prone to errors of thinking and logic that can lead to misinterpreting events.
…
The developmental stage of the child when they are exposed or traumatic event will also influence their recall as an adult. For example, an adult is unlikely to have detailed recollections of events traumatic nature that occurred to them prior to the age of three or younger. I note that the complainant was approximately eight to 10 years of age when the alleged sexual offending occurred. I believe that a child of this age would have a reasonably detailed memory of any traumatic events that have occurred in their life, and they will be able to recall them as an adult. … The majority of eight to 10-year-old children would have a continuous memory as an adult if they had been sexually assaulted by a parent. They just choose not to talk about their childhood abuse because it is very upsetting, and they may suffer from survivor guilt and shame.
(emphasis added)
Mr Balfour’s opinion that “a person’s intuitive emotional feeling about the veracity of the memory may have no bearing with the factual reality of what has happened” was not challenged by the respondent.
Mr Balfour, in his report, went on to describe how, during his 30 years as a psychologist, he had only encountered one client who had a repressed memory of childhood sexual abuse that was, later, objectively verified as an adult.
Mr Balfour elaborated on these opinions when giving oral evidence. Rather than being asked to make certain assumptions, when giving his evidence-in-chief, Mr Balfour was taken to various parts of the transcript and asked whether they were matters that he had read and taken into account when preparing his report. This method of leading the witness did not make clear the assumptions made by Mr Balfour upon which his opinions were based.
Mr Balfour was asked:
Q.Subsequently, your evidence was that she had forgotten not only that there had been any sexual interference with her, not only the detail of the sexual interference but that there had been sexual interference; for example, she had forgotten that she had been touched on the vagina by her father, at that period, as a child. I would like to ask you some questions, firstly, about a loss of memory and secondly, the recall of memory. I suppose you start off with the nature of her memory and you refer to the nature of memory at p.3 of your report, paras.1-6.
A.Yes, I try to provide a summary of current memory research which is extremely complex and diverse.
Q.In lay terms people sometimes say ‘I blanked it out of my mind’. Is it possible to do that, deliberately.
A.You can choose not to think about something.
Q.Does it mean that you don’t think about it for seven years; assuming it’s a traumatic experience that affects the course of her life, at that stage.
A.So we are talking about traumatic memory versus everyday memories?
Q.We are talking about the traumatic memory associated with sexual abuse by your parent, on you.
A.That would be classified as a traumatic memory. It would place the person at risk of developing post-traumatic stress disorder. One of the clinical key features of post-traumatic stress disorder, similar to OCD, is that the person has intrusive, ruminating, distressing memories about the precipitating super stressor, whatever it is, and they can’t forget it. They can try and use strategies like getting drunk or using drugs and maybe, momentarily, distract themselves from those traumatic intrusive memories but based on current memory research, it does not fit the pattern that someone would have a traumatic event as a child and then have absolutely no recollection of it for six years and then, suddenly, would have detail recollection. That would be a very atypical way for a person to recall and process a traumatic memory. I base that statement on - I have been doing this job for a long time and, on a weekly basis, I interview people about their traumatic childhood and the overwhelming majority of them can say whether events have or have not occurred to them, depending how young or developmentally immature they were when the event occurred, they might have some problems of the details of that, but they are quite clear from about the age of seven years onwards.
…
Her being sexually assaulted would be classified as a high impact emotional event and I would have expected her to have developed significant memories around that event; that I believe would most probably be less resistant to forgetting than regular memories like what you had for lunch.
(emphasis added)
Later he was asked:
Q.I’ve asked you about repressed memory. Can I ask you your views about the recall of these traumatic events that she had completely forgotten about, the recall in the detail that you have read in the transcript. What’s the likelihood of the human mind not being able to recall those traumatic events for six or so years and then recalling it in such detail.
A.The most dominant memory process to all of us is forgetting.
Q.Is what, sorry.
A.Forgetting things. Over time we forget things. The difference with traumatic memories is that people are plagued by these intrusive memories where they relive whatever it was that caused the trauma. So I would describe it that it would be very atypical, in my experience and based in my understanding of the literature, for someone to have some traumatic event in their childhood and then to have no memories for many, many years other than a vague discomfort and then later on to be able to vividly recall those memories in detail. The majority of the people who have traumatic childhood memories try to escape them but they’re there in their mind and it’s different that they may not have told anyone about it for many years for a variety of good reasons but the memory is there.
(emphasis added)
Mr Balfour made the same point a number of times in his evidence. During cross-examination, Mr Balfour was asked:
Q.So when a person speaks of actively choosing to repress something, is it more likely that what they mean to say is they’re choosing not to think about it.
A.Yes.
Q.If a person has a memory and puts it to one side of their mind and chooses not to think about it, that doesn’t give rise to any concern about reliability apart from the ordinary difficulties with human memory, does it.
A.Are we talking about traumatic memories or everyday memories?
Q.Traumatic memories.
A.Okay. No. They keep trying to avoid that memory and not think about it but it keeps breaking through and haunting them in various distressing ways.
Q.In your evidence you used the word ‘atypical’ a number of times. Can you explain what that means.
A.Not very commonly encountered, low frequency.
Q.So it’s not the usual course.
A.No.
(emphasis added)
Thus, Mr Balfour specifically rejected the respondent’s proposition that the complainant’s description of her memory was that she was “choosing not to think about it”.
Consideration of Mr Balfour’s evidence
As can be seen from the above summary, Mr Balfour was consistent in his evidence. He considered that sexual abuse, particularly if it occurred over a long period of time, was so traumatic that it was most likely that a victim would have intrusive memories of it. That is, a victim might try and avoid the memory but it would break through and “haunt them” in distressing ways. For someone to have no memory other than the feeling of discomfort, as suggested by the complainant, was “very atypical”. His evidence was clearly relevant to both the credibility and reliability of the complainant’s evidence.
Mr Balfour identified in his report (and elaborated in his oral evidence) only one example over the course of his 30-year career[27] whereby a patient recalled a “lost” memory in detail. The patient was a young lady who grew up in a stable, middle-class household with loving parents, however she was a “severely disturbed adolescent”. When reading a book in her twenties, she had a memory “flashback” to being seriously sexually assaulted by a 13-year-old boy when she was about six or seven years old. She had no memory of the offending during her childhood; this was the first time the memory surfaced. A complaint was made to the police and the now-adult man was interviewed. He confessed to the alleged offending.
[27] Possibly up to 6,000 cases.
Mr Balfour, in his evidence, clarified that this example was a suppressed memory of a single act of childhood sexual assault, as opposed to a course of conduct. Further, he, of course, had to rely on the report of the victim being true. He explained that where sexual abuse comprises of a course of conduct, it increases the number of opportunities to form a traumatic memory, consequently reinforcing the strength of the traumatic memory.
Appellant’s submissions at trial
Unsurprisingly the appellant, at trial, relied heavily on the evidence of Mr Balfour as creating a reasonable doubt (at least) about the credibility and reliability of the complainant’s evidence. In his closing submissions, counsel for the appellant submitted:
So your Honour will have to in order to accede to the prosecution ignore the expert evidence that memory doesn’t work the way she [the complainant] says it does and except that she was capable of deliberately exorcising it from her memory, it (sic) having no recall of specific actions, any specific actions other than a general feeling of uncomfortableness with her parent, even though she felt like that with most people, it seems, and then restore that memory, or whether she is too unreliable to accept and maybe she genuinely believes now that things happened but the question is did they really happen? Where is reality, where is a troubled mind?
(emphasis added)
There were two aspects to the appellant’s submissions. First, counsel for the appellant submitted that the Trial Judge should find the complainant knowingly lied about suppressing or blocking out her memory. He contended that she had done so to account for her failure to complain about the appellant’s behaviour during the earlier counselling sessions. This, counsel contended, affected her credibility. Secondly, he contended that although she may genuinely believe her version of events, Mr Balfour’s evidence cast doubt on her reliability. As counsel for the appellant submitted:
[I]t is difficult to work out whether she is lying about these events or genuinely believes they happened, even though they didn’t, except for one thing and that is she has lied by [o]mission to a number of people about repressed memory.
(emphasis added)
It was therefore necessary for the Trial Judge to deal with Mr Balfour’s evidence when assessing both the credibility and reliability of the complainant’s evidence.
Prosecution’s submissions at trial
The prosecutor submitted at trial that Mr Balfour’s evidence, at least in part, could be seen as consistent with the complainant’s evidence. That is, Mr Balfour agreed that when a person speaks of actively choosing to suppress something, it is more likely that they are talking about choosing not to think about it.[28]
[28] As discussed earlier in these reasons, Mr Balfour specifically rejected that proposition where it referred to traumatic memories.
The prosecutor submitted that a proper analysis of the complainant’s evidence revealed that she was, like so many victims of child sexual abuse, simply experiencing an adult’s memory of a child’s abuse. The complainant had not at first understood what the appellant was doing. She thought it might be over-affection. In the clinical experience of both Ms Brooks and Mr Balfour, in the forensic context, victims of child sexual abuse do remember events in a piecemeal manner. The prosecutor submitted that even though the complainant adopted the description of repressed memory, the reality was that she had more likely chosen not to think about the details of the offending. Like the victims of child sexual abuse referred to in the report of the Royal Commission into Institutional Responses to Child Sexual Abuse, the complainant had found a way to sustain what she could of her relationship with her father and pushed to one side of her mind what he had done to her over a period of time when she was young. Consistent with his cross-examination of Mr Balfour, the prosecutor was critical of Mr Balfour’s evidence about certain matters and in particular his treatment of “betrayal abuse theory” in the case at bar.
The prosecutor submitted that the Court should not find that the complainant had repressed her memory. The complainant’s evidence was not that she had repressed her memory, as Mr Balfour appeared to assume. In any event, the prosecutor submitted that it was not “impossible” for a person who had repressed their memory to recover it and to do so in a reliable way.
The Trial Judge’s findings
In his Reasons for Verdict, the Trial Judge set out the complainant’s evidence in some detail. His summary of Mr Balfour’s evidence was brief in comparison. When turning to discuss and consider the evidence, the Trial Judge stated:[29]
I found the complainant to be an impressive witness. At nineteen she was giving evidence about events she says occurred when she was aged from about eight or nine to eleven. Making allowances for an adult giving evidence of events ten years or so ago I found her evidence credible and generally reliable.
(emphasis added)
[29] Reasons for Verdict at [122].
The Trial Judge then discussed, in some detail, some of the issues that led to the above finding. In that discussion, the Trial Judge stated:[30]
The prominent defence criticism of the complainant’s credibility is her evidence that she repressed for several years any explicit memory of her father’s offending. The complainant did not assert that she had suppressed the memories, but she assented to that description in cross-examination. She did give evidence that may be interpreted as a repressed memory. The complainant said that she was always conscious in later years of her father making her feel uncomfortable in bed (T99). However, she did not recall the details of his behaviour until the [triggering incident] in 2018.
… It was not clear to me why the complainant might falsely claim to have repressed the memory of her father’s sexual abuse. If she was lying about the abuse, why risk damaging her credit by lying about the repressed memory? I asked Mr Vadasz during his address what he submitted on that topic. He submitted that the lie might be told to cover for an inability to remember details of the abuse. It might be a cover for the failure to complain about the abuse. As to the former, I do not think that the complainant did demonstrate any inability to remember details of the offending except in regard to the late disclosure of the particulars (f) and (g). In my view the complainant was frank about the late recollection of those particulars.
(emphasis added)
[30] Reasons for Verdict at [128], [131].

During oral submission, counsel for the appellant suggested that in addressing delay the trial judge overlooked the consideration that if she had no memory of the offending for a period of years (because it was repressed), then this must have been the reason for delay. Whilst counsel did not say so, I assume the point of this submission was to suggest that the complainant’s articulation of her reasons was therefore unreliable.
I reject this submission. It overstates the complainant’s evidence as to her lack of memory. As explained earlier, her evidence was not that she had no memory at all (which would have prevented her making a complaint prior to her memory being recovered). Rather, her evidence was that she retained a memory, but that it was limited to an uncomfortable feeling because she had otherwise blocked out or suppressed what had happened. Understood in this way, the trial judge did not overlook this feature of the case. Rather, it was part of, or at least complemented and reinforced, the reasons given for the delayed complaint.
I would refuse permission to appeal on this ground.
Ground 4: Unreasonable verdict
I agree with the reasons of Lovell JA for rejecting this ground of appeal.
Appeal against sentence
The appellant was sentenced to 12 years imprisonment, with a non-parole period of seven years six months. The appellant seeks permission to appeal this sentence on the sole ground that it is manifestly excessive.
It is appropriate to commence by summarising the matters relevant to the sentence imposed, before then turning to consider the appellant’s proposed ground of appeal.
The appellant was convicted of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment.
The child victim of the appellant’s offending was his daughter. The detail of the offending is set out in the reasons of the trial judge, and summarised in the reasons of Lovell JA, and need not be repeated. It is sufficient for present purposes to note that the offending against the appellant’s daughter occurred when she was between the ages of about eight and 10 years of age. It began with indecent assaults, consisting of indecent touching. It proceeded to acts of gross indecency and non-penile unlawful sexual intercourse. The Judge described the offending as brazen, it having occurred at night in the daughter’s bed and while her younger brother was sleeping in the same room. It occurred during overnight access visits that the appellant had with the children after he and his wife had separated. The offending commenced about four years after that separation.
The Judge received a victim impact statement from the victim in which she explained how the offending had affected her over the years, albeit that she had developed a degree of resilience. His Honour also received a victim impact statement from the victim’s mother (being the appellant’s former wife) in which she described the effects of the appellant’s offending on her and the wider family.
Turning to the appellant’s personal circumstances, he was 56 years of age at the date of sentencing. He was brought up in Adelaide, and was the fourth of five children. He left school at the end of year eight. He became a qualified farrier at the age of 20, having been apprenticed to his father. Since then, he had always worked as a farrier, including running his own business in that trade.
He had no prior convictions for similar sexual offending. However, the Judge noted that he did have some antecedents: for assaulting his former wife’s partner in 2013; for an assault involving the kissing of a young female in 2012; for driving with drugs in his fluid or blood in 2014 and 2019; and for driving disqualified in 2014. As the Judge explained, he only mentioned these antecedents because they bore on the weight he could give to the character references tendered on the appellant’s behalf. His Honour then outlined those character references, which generally attested to the referees’ belief that the appellant was a person of good character.
In announcing the appellant’s sentence, the Judge noted that the offending involved a course of sexual offending against his daughter, when she was aged between about eight and 10 years of age, and involving a gross breach of trust. The Judge also observed that the appellant was not entitled to any discount by reason of a guilty plea. And as he maintained his innocence, he had not shown any remorse.
It was against this background that the Judge imposed a head sentence of 12 years imprisonment, and fixed a non-parole period of seven years six months. His Honour added that the offending was too serious for there to be any question of suspending the sentence, or ordering that it be served on home detention.
The principles governing an appeal against sentence on the ground of manifest excess are well known and need not be restated.
The appellant’s counsel acknowledged that the starting point of 12 years reflected the sentencing standard set out in R v D[57] for offending of this type. However, he noted Doyle CJ’s observation in that case that suggested that the 12 years starting point for such offending was not intended as a precise figure; and that in an appropriate case the starting point might be higher or lower (for example, where there has been a plea of guilty, cooperation with the authorities, or genuine contrition, or where the personal circumstances of the offender otherwise make this appropriate).[58]
[57] R v D (1997) 69 SASR 413.
[58] R v D (1997) 69 SASR 413 at 424.
The appellant’s counsel relied upon two matters that he contended were capable of lowering the appropriate starting point in the present case: namely (i) that the offending was predominantly in the nature of indecent assaults, and the acts of penetration were limited to digital penetration as opposed to penile penetration: and (ii) that the offending came to an end, and the complainant continued to attend overnight access visits for a number of years without any repeat of the offending.
In my view, while the nature of the acts committed and the circumstances of the offending coming to an end are relevant considerations, they are not of sufficient moment in the present case to have demanded a lower starting point than 12 years imprisonment. To the contrary, I consider that the sentence imposed was appropriate.
The appellant also contended that the proportion of the non-parole period to the head sentence (being slightly greater than 60 per cent) was too great. In my view, there is no merit in this contention. Again, I consider that the non-parole period was appropriate.
I would dismiss the application for permission to appeal against sentence.
Conclusion and orders
In relation to the appeal against conviction, noting that the appellant has already been granted permission to appeal on Grounds 3 and 4, I would also grant permission to appeal on Grounds 1 and 2, but would refuse the application for permission to appeal on Ground 5, and would dismiss the appeal.
In relation to the appeal against sentence, I would refuse the application for permission to appeal.