Park (a pseudonym) v The King - [2022] SASCA 132

Supreme Court of South Australia
(Court of Appeal: Criminal)
PARK (A PSEUDONYM) v THE KING
[2022] SASCA 132
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
8 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
The appellant was convicted of seven counts of unlawful sexual intercourse against his then teenage foster sister. The offending took place when the complainant was between 14 and 16 years of age and living with her foster family, the Parks, at their rural property.
The appellant appeals against his convictions on eight grounds, including that the trial Judge inadequately dealt with the complainant's admitted lies, erred in his assessment of the evidence of the complainant's former foster mother and, in any event, that the verdict was unreasonable and could not be supported having regard to all of the evidence.
Held, per the Court, granting permission to appeal, allowing the appeal on Grounds 2, 3 and 4 and remitting the matter to the District Court for retrial:
1.   The trial Judge failed to adequately explain how he dealt with the question of the complainant's admitted lies.
2.   The trial Judge did not err in his assessment of Mrs N's evidence.
3.   The trial Judge erred in finding that the complainant's evidence at trial was not inconsistent with any prior out-of-court statements. Such a finding had the effect of bolstering the complainant's credit.
4.   It was open to the trial Judge to find that, in the circumstances, the complainant's knowledge of the appellant's circumcision demonstrated esoteric knowledge.
5.   In considering the complainant's evidence on Count 6, the trial Judge was not in error in failing to acknowledge the agreed fact of the Volvo truck having a synchromesh gear box.
6.   Notwithstanding the significant forensic disadvantage suffered by the appellant, the Court does not consider that the trial Judge must have entertained a doubt about the guilt of the appellant.
Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to.
Dansie v The Queen [2022] HCA 25; DL v The Queen (2018) 266 CLR 1; Goldsmith v Sandilands [2002] HCA 31; JGS v The Queen [2020] SASCFC 48; Kirkland v The Queen [2021] SASCA 14; M v The Queen (1994) 181 CLR 487; Macks v Viscariello (2017) 130 SASR 1; Palmer v The Queen (1998) 193 CLR 1; Patterson (a pseudonym) v The Queen [2022] SASCA 57; Pell v The Queen (2020) 268 CLR 123; Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; R v Bucca; R v Castle [2018] SASCFC 42; R v HS (2004) 90 SASR 28 ; R v Sexton [2018] SASCFC 28; R v W,CT [2019] SASCFC 18, considered.

PARK (A PSEUDONYM) v THE KING
[2022] SASCA 132
Court of Appeal – Criminal: Lovell, Bleby and David JJA

THE COURT: After a trial by judge alone, the appellant was convicted of seven counts of unlawful sexual intercourse against his then teenage foster sister.[1] The offending took place when the complainant was between 14 and 16 years’ old and living with the appellant and her foster parents at their rural property. The appellant is approximately 12 years older than the complainant. Each of the seven complaints relate to occasions of sexual intercourse between the complainant and the appellant, typically in the appellant’s bedroom at his parents’ house.
[1] Contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case at trial depended solely upon the evidence of the complainant. Her credibility and reliability were challenged.
The appellant appeals his convictions on eight grounds including, inter alia, that the trial Judge’s inadequate and erroneous reasoning led to a miscarriage of justice, that the appellant was denied procedural fairness resulting in a miscarriage of justice and that the verdict was unreasonable and could not be supported having regard to all of the evidence.
Overview
Procedural history
This matter has an unfortunate history. Prior to this trial, the appellant had been tried before a jury in the District Court on three occasions, each ending in a mistrial. On the third of these aborted trials, the complainant’s evidence was recorded. The appellant was tried before a jury on a fourth occasion and was convicted by majority of the seven counts.
The appellant appealed his convictions before the Court of Criminal Appeal. The Court allowed the appeal, quashed the convictions and ordered a retrial.
The appellant was retried before a jury on two occasions, both of which ended in a mistrial. On the first of those occasions, the cross-examination and re-examination of the complainant was again recorded. The appellant then elected for trial by judge sitting without a jury. The recordings of the complainant’s evidence at the previous trials were tendered on the second trial by Judge alone.
As the appellant challenges the reasoning of the trial Judge and several of his findings, it is necessary to set out the evidence in some detail.
Evidence at trial
The complainant did not give evidence in person. As mentioned, the prosecution tendered videos that recorded the complainant’s evidence given in two earlier trials and the transcript of that evidence. The prosecution tendered plans and photographs of the house where the offending allegedly took place. A number of facts were agreed. Finally, the prosecution tendered the incomplete evidence-in-chief given by the accused at one of the earlier trials.
Prosecution evidence
The complainant was born on 24 May 1986. She lived under the foster care of Mr and Mrs N from July 1990 to October 1999, when she was between four and 13 years’ old. From October 1990 at age 13, the complainant ceased living with Mr and Mrs N and was placed under the foster care of Mr and Mrs Park at their farmhouse (“the property”).
The appellant is the biological son of Mr and Mrs Park and was also living at the property at the same time as the complainant. He was 26 years’ old when the complainant moved in. The complainant remained in the care of Mr and Mrs Park until June 2002 when she was 16 years’ old.
The prosecution alleged that during a two-year period in which the complainant lived at the property, from between 2000 to 2002, the appellant regularly had sexual intercourse with her in his bedroom. The complainant was between 14 and 16 years’ old during this time. The prosecution case relied on the recorded evidence of the complainant given at two previous trials.
The circumstances of the alleged offending can be summarised as follows:
·Counts 1 and 2: the complainant gave evidence that the appellant entered her bedroom while she was in bed. They went to the appellant’s bedroom, got into his bed and watched television. He inserted his finger into her vagina. That act was followed by an act of penile/vaginal sexual intercourse the subject of Count 2. Following Counts 1 and 2, the complainant gave evidence that the appellant routinely had sexual intercourse with her in his bedroom, typically while she was lying on her back. Counts 3–7 involved specific occasions of sexual intercourse recalled by the complainant in the context of this routine offending.
·Count 3: the complainant recalled an occasion of penile/vaginal sexual intercourse which occurred while she was on top of the appellant. She specifically remembered this occasion as it was not the “usual” position.
·Count 4: when the complainant was approximately 14 years’ old, she entered the appellant’s bedroom and saw that he held the barrel of a rifle in his mouth. The appellant told the complainant that he had broken up with his girlfriend. The complainant thought he was contemplating suicide. After some discussion, the complainant fellated the appellant.
·Count 5: the night following the offending the subject of Count 4, the complainant and the appellant had penile/vaginal sexual intercourse. The complainant believed them to be in a romantic relationship.
·Count 6: an act of penile/vaginal sexual intercourse in the back of a Volvo F12 truck, which the appellant had allowed the complainant to drive for a short distance on the farm.
·Count 7: the complainant was driving a chaser bin in the paddock and the appellant was driving a header. The appellant asked her to get into the header and proceeded to have penile/vaginal intercourse with her.
When cross examined, the complainant stated that she had unprotected sex with the appellant every night for nearly two years. This occurred at approximately the same time every night. Specifically, she said; “It was usually pretty routine, going into his bedroom”. The appellant never used a condom; he always ejaculated but never inside her. She never became pregnant. The complainant’s evidence was that the appellant is circumcised.
It was an agreed fact that the complainant lived with Mr and Mrs N from 10 July 1990 to 5 October 1999 and with the Parks from 5 October 1999 to 15 June 2002.
Other issues arose at trial. By way of agreed facts and documents, the prosecution accepted that the complainant told her biological mother, on at least four occasions over a period of approximately eight to 10 years, that she had consensual sexual intercourse while under the age of consent with her foster brother, LN. Despite the prosecution position and the agreed facts, the complainant denied having sex with LN or telling her mother on any occasion that she had done so. The defence submitted that the complainant lied in her evidence at trial.
The complainant also gave evidence about her time living with Mr and Mrs N. The complainant stated that she left the Ns’ home because both Mr and Mrs N were violent to her, Mr N more so than Mrs N. She gave some examples. The complainant said that Mr N was violent and an alcoholic. The appellant, in cross examination, challenged the complainant’s evidence about why she left the Ns’ home. The complainant denied that Mr and Mrs N were caring foster parents. In particular, she said that Mrs N “whacked” her face and head and struck her on the knuckles with a metal ruler. The complainant also alleged that Mrs N had broken many wooden spoons on her and her sisters.
Another issue at trial was the complainant’s ability to drive a farm truck. The complainant gave a detailed account of being taught how to double declutch the Volvo truck. She said that she took over the driving on an occasion because the appellant wanted to see if she could “double declutch and split shift the gears”. She described the process, and how she mastered it. The appellant said it was “a fluke” that she had managed to do it but went on to say that he was proud of her. It was an agreed fact that the truck had synchromesh gears and double declutching was unnecessary.
Defence evidence
The appellant did not give evidence at trial. The appellant’s incomplete evidence in chief, given at a previous trial, was tendered by consent.[2]
[2] The trial miscarried during the appellant’s evidence in chief.
The appellant called Mrs N to give evidence. Her evidence related to the issue of the complainant’s reasons for leaving the Ns’ home. The appellant submitted that the issue was relevant to the honesty and credibility of the complainant. Mrs N said that the complainant, when aged between four and thirteen years, lived with her and her husband. Their biological son, LN, was living at the home at the same time as the complainant.
On the issue of whether she or her husband were violent to the complainant, Mrs N admitted to “tapping” the complainant for disciplinary reasons but denied that she had beaten the complainant. Mrs N also denied that she had ever broken a wooden spoon on the complainant or her sister. She denied ever having rapped the complainant over the knuckles with a steel ruler.
Mrs N said that she could only remember three occasions when she hit the complainant. On one of those occasions, Mrs N gave the complainant a “tap” on the bottom. When the complainant and her sister were about eight and nine years’ old, they were misbehaving the back seat of the car. Mrs N said that on that occasion, she “tapped” them both on the hands; “they both got their fingers smacked”. She said in cross-examination; “I just flicked at them with my hand and it just happened to hit their hands.”
Mrs N said that, generally speaking, she was at home when her husband was there. Mrs N stated that never saw him hit the complainant. She said that her husband was definitely not an alcoholic and was not violent. Mrs N said that her husband’s “bark is worse than his bite”. She agreed that he had threatened to hit the girls.
At some time before trial, Mrs N produced to the appellant’s solicitors two letters which the complainant had sent to her many years before. The letters, which were tendered, are written in terms that contradict the complainant’s evidence that she was treated badly by the Ns.
Grounds of appeal
The appellant agitates eight grounds of appeal as follows:
1.A miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of the complainant.
a.The trial Judge’s denials of procedural fairness to the appellant resulted in a miscarriage of justice.
2.A miscarriage of justice resulted from the trial Judge’s findings about the authenticity of the complainant’s testimony.
3.A miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning in relation to whether the complainant’s lies to her mother about having had sex with her foster brother LN demonstrated a disposition by her to make false allegations of sexual conduct against her foster brothers.
4.A miscarriage of justice resulted from the trial Judge’s erroneous reasoning that the complainant, out of court, had told a consistent story.
5.A miscarriage of justice resulted from the trial Judge’s reliance on the complainant’s knowledge that the appellant was circumcised as demonstrating esoteric knowledge that supported her credibility.
6.A miscarriage of justice resulted from the trial Judge’s finding that he did not know whether or not it was necessary to double declutch the Volvo truck to drive it, when it was an agreed fact that this was unnecessary.
7.A miscarriage of justice resulted from an accumulation of the errors made by the trial Judge, as set out above.
8.The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence
Permission to appeal was granted on Grounds 1, 2, 3 and 7.
Grounds 2 and 3
It is convenient to deal with these grounds together.
As mentioned, the complainant and her sisters lived in foster care with Mr and Mrs N from the time the complainant was about four years of age. When she was approximately 13 years’ old, the complainant left the Ns’ house and went to live at the Parks’ farm.
While the complainant was in foster care with the Ns, the Department of Human Services monitored her welfare. Both the complainant and the Department had contact with the complainant’s biological mother. There were a number of agreed facts about the contact.
It was agreed that the complainant’s biological mother reported to the Department that the complainant had told her in 1999 that she had sex with LN. The complainant mentioned again in 2001 that she had sex with LN. It was also agreed that if called to give evidence, the complainant’s biological mother would say:
·that when the complainant was about 11 or 12 years’ old, she told her biological mother that LN was having sex with her. Her mother remembered this because the complainant spelt out the word “S E X”, rather than saying it. The complainant told her it was a secret.
·when the complainant was about 16 years’ old and went to live with her biological mother in Queensland, she again told her about LN having sex with her.
·when the complainant was 22 years’ old, in or around August 2008, at the Modbury Hospital, the complainant told her biological mother again about her having sex with LN.
These agreed facts about what the complainant’s mother would say if called led to the issue of whether the complainant lied when she gave evidence. In her previously recorded evidence, the complainant:
·denied that she and LN had ever had sex;
·denied that she had ever told her mother that she had sex with LN;
·denied she had told her mother on a number of occasions that she had sex with LN; and
·said that if she had told her mother she had sex with LN, that would have been a lie.
As can be seen, in her evidence the complainant denied telling her mother that she had sex with LN in direct contrast with the statement of agreed facts. In those circumstances, the prosecution accepted that the complainant had been untruthful, that is, deliberately lied, when she told her biological mother that she had sex with LN.
The appellant submitted that the agreed facts demonstrated that the complainant had told repeated lies about having sex with an older foster brother, the same allegation as in this matter, and therefore she had a “disposition” to tell lies in a sexual context. The appellant relied upon the fact that she told the same lie on four separate occasions, the first occurring in 1999 and the last in or around August 2008.
The trial Judge was left with little alternative, given the agreed facts and the prosecution submission, but to accept that the complainant, despite her denials at trial, had told lies to her mother about having sex with LN.
The appellant also submitted that the complainant lied in Court when she denied saying such a thing to her mother. The trial Judge did not accept that submission. He found that the complainant had forgotten what she had told her mother and therefore had not lied in Court. The trial Judge relied upon the fact that there was a gap of 12 years between the last time the complainant told her biological mother about having sex with LN and when she gave evidence in Court.
Underpinning that conclusion was the trial Judge’s explanation for the lies themselves. The trial Judge observed:
While I have carefully considered the lies when assessing [the complainant’s] evidence, I do not accept that her telling those lies demonstrates a disposition on her part to make false allegations of sexual conduct against her. At the time [the complainant] spoke to her mother on 13 August 2002, she had recently only left school to avoid being expelled, left the Park’s, and gone to spend about six weeks with her mother, from whom she was estranged. I do not know what prompted [the complainant] to lie about LN. It is clear from Ms Kenny's note that [the complainant] was not complaining about LN’s conduct and did not wish to get him into any trouble. I know nothing about the circumstances of the lie told at the Modbury Hospital. There is no suggestion that her allegations were ever reported to the police. That she told those lies many years ago does not lessen my faith in her honesty as a witness.
Against that background, the appellant submits that the trial Judge made “glaringly improbable” findings and failed to adequately explain how he excused the complainant’s lies about the reasons why she left the Ns’ residence.

It is convenient to deal with Ground 3 first; namely, that the trial Judge’s reasoning for rejecting the appellant’s submissions about the lies was “inadequate and erroneous”.
The appellant relied upon two matters to support these grounds of appeal. First, the appellant submitted that the trial Judge failed to deal with the fact that the complainant told the same lie on four occasions. The trial Judge only dealt with two of the complainant’s lies, namely the admitted lies in 2002 and 2008. The appellant submitted that the trial Judge said nothing about those lies and gave no reasons for discounting their effect on her credibility. Secondly, while there was evidence that the complainant did not complain to the police about LN’s conduct, that fact by itself said nothing about the lie. The trial Judge also disregarded the 2008 lie because he knew “nothing about the circumstances” of the lie told in the Modbury Hospital.
The appellant submitted that the above-quoted passage was the trial Judge’s reasoning to the conclusion that the complainant did not have a “disposition” to tell lies and further, that such reasoning was inadequate.
The respondent submitted that the trial Judge set out the four lies in an earlier part of his reasons. The trial Judge, in his reasons, stated that he had “carefully considered the lies when assessing [the complainant’s] evidence”. It could not be said that he had overlooked two of the lies. The respondent submitted that when the trial Judge’s reasons were read as a whole, his reasoning was adequate.
Discussion
A submission that a judge’s reasons are inadequate is a complaint that it is not possible to discern how the judge rationally arrived at their determinative conclusions. A submission of inadequate reasoning is a complaint that the reasons and intermediate findings of fact do not support the finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that reasons are inadequate to a complaint that the judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict.[3] The difference between an allegation of inadequate reasons and inadequate reasoning can be, in some cases, difficult to discern. Sometimes inadequate reasoning can result from a failure to resolve, or adequately resolve an issue leaving the reasoning unsound.
[3] R v Sexton [2018] SASCFC 28; JGS v The Queen [2020] SASCFC 48.
As Kiefel CJ, Keane and Edelman JJ observed in DL v The Queen:[4]
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.”
(citations omitted)
[4] (2018) 266 CLR 1 at [33].
The Full Court observed in Macks v Viscariello:[5]
Reasons are not necessarily adequate because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all of the relevant facts, and where necessary, an explanation as to how the “inconvenient” facts can be put to one side or given little weight. As has often been said a fact does not cease to exist because it is ignored.
[5] (2017) 130 SASR 1 at [523].
It was an important step in reasoning to guilt that the trial Judge adequately explain how he dealt with the four lies told by the complainant. The lies, although not related specifically to the alleged sexual acts with the appellant, did relate to the issue of whether the complainant told lies about having “sex” with the son of her then foster parents. The similarity with the main issue at trial is manifest. In that sense the question of lies on this topic, whilst capable of being described as “collateral”, was an important issue requiring resolution.
The trial Judge had to consider the fact that there were in effect two lies. First, that the complainant had sex with LN and secondly, that she told her mother on four occasions that she had.
The complainant denied in Court that she ever had sex with LN. However, the prosecution accepted that she had told her mother she had, on four occasions. While the trial Judge found that the complainant had “forgotten” what she had told her mother when giving evidence in Court, the fact remained that she had told her mother on those four earlier occasions that she had sex with LN. The trial Judge stated that he did not know “what prompted [the complainant] to lie about [LN].”
We accept the respondent’s submission that, given the trial Judge’s earlier reference to all of the lies, he did not overlook two of them. While it may be said that he did not overlook them, his reasons fail to explain how he dealt with those two lies. His observation that he has carefully considered the lies is a conclusion that says nothing about how he considered them and how he resolved the issue.
Further, the explanations provided for the remaining two of the lies are problematic. The trial Judge records that the complainant, when she spoke to her mother in August of 2002, had only recently left school to avoid being expelled and gone to live with her mother for six weeks. That may be factually accurate, but the observation says nothing about the lie.
The trial Judge stated that he knew “nothing about the circumstances of the lie told at the Modbury Hospital. There is no suggestion that her allegations were ever reported to the police”.
The fact that the allegations were not reported to the police, while again factually accurate, says nothing about the lies. That the trial Judge knew nothing about the circumstances of the lie told at the Modbury Hospital simply leaves the lie unexplained.
Neither of the trial Judge’s observations provide an explanation for the lies. The lack of any explanation for the lies (all four) does not assist the complainant’s credibility and reliability. Further, the trial Judge’s conclusion that the complainant had “forgotten” what she told her mother, a lie she had told on four separate occasions over a 10-year period, in itself requires some explanation. The fact that she could tell a lie over such a long period about a serious matter, and then forget about each of those instances, was a matter that affected her credibility and reliability and needed to be considered by the trial Judge.
The trial Judge observed that he did not know what caused the complainant to lie, and continue to lie, to her mother about LN. The lack of explanation is a reason to treat the complainant’s evidence with considerable caution.
It is not always an easy task for a trial judge to explain why he or she is satisfied beyond a reasonable doubt of the credibility and reliability of a complainant, particularly where the evidence establishes that the complainant has, on some important issue, lied.
However, more was required in this case. The trial Judge’s reasons do not adequately explain how he was able to reach the conclusion that the lies, even if the complainant had forgotten about them, did not lessen his “faith in her honesty as a witness”.
It is unnecessary to determine whether the finding that the complainant had forgotten the lies was “glaringly improbable”. As discussed, the trial Judge failed to adequately explain how he dealt with the question of the complainant’s admitted lies. His failure to do so undermines his finding that the complainant did not lie “in court” as she had “forgotten”. That finding must be set aside.
These grounds of appeal are made out.
Grounds 1 and 1A
It is convenient to deal with these grounds together as they relate to the evidence of Mrs N and the manner in which the trial Judge dealt with that evidence.
The appellant submitted that the reason the complainant left the Ns’ home was, as the trial Judge acknowledged, a significant issue at trial. When dealing with this issue the trial Judge stated that:
·He did not accept that the complainant lied about suffering some violence at the hands of the N’s.
·He did not know the extent of that violence.
·The complainant’s perception of events may differ from the facts as she was giving evidence about matters that happened more than 20 years before. The difference in recollections did not mean the complainant had lied.
·Mrs N downplayed the extent of the discipline administered by her and her husband.
The appellant submitted that the trial Judge had failed to satisfactorily resolve the issue of whether the complainant had lied in her evidence about these matters. Further, the appellant submitted that the trial Judge made an error in relation to the timing of the complainant’s two letters written by the complainant. The trial Judge found that the complaint was 17 years’ old when she wrote the first letter when she was in fact 18 years and five months’ old. The second letter was written after the first.
It is necessary to consider Ground 1A as well. The appellant submitted that the trial Judge made findings adverse to Mrs N in circumstances where the prosecutor had not challenged Mrs N’s evidence in cross examination. Nor had the prosecutor, in her closing address, suggested it was open to the trial Judge to make such findings. This, the appellant submitted, was a breach of procedural fairness in that trial counsel had not had the opportunity to make submissions on the matters on which the trial Judge eventually made findings.
The respondent submitted that the evidence of Mrs N was a collateral credit issue only. The complainant’s evidence on this topic only went to her reason for leaving the Ns’ home. As it was a peripheral issue, it was not one the trial Judge needed to resolve. Specifically, once the trial Judge found that the complainant did not deliberately lie, it was not necessary for him to resolve the issue any further by way of adverse findings in relation to Mrs N’s evidence.
The respondent submitted that it was open to the trial Judge to make such findings. Further, the respondent submitted that while the prosecutor did not squarely assert that Mrs N was lying, the cross examination made it clear that her evidence was contested.
Discussion
The general rule is that a court will only receive evidence that is relevant. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. This general rule is qualified by other rules based upon considerations of justice or practicality. One such qualification is the limit of investigation of collateral matters.[6] Collateral facts are “facts not constituting the matter directly in dispute between the parties”.[7]
[6] Goldsmith v Sandilands [2002] HCA 31 at [2] (per Gleeson CJ).
[7] Piddington v Bennett& Wood Pty Ltd (1940) 63 CLR 533 at 546 (per Latham CJ).
As a general rule, a cross-examiner is bound by the answer to a question that only goes to credit. That is, the cross examiner will not be permitted to lead evidence to contradict the answer of the witness. However, questions of degree arise both as to relevance and whether a fact is collateral.[8] As McHugh J observed in Palmer v The Queen, the “line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful”.[9] In some cases the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue.[10] Much will depend upon what the witness has represented to the court.
[8] Goldsmith v Sandilands [2002] HCA 31 at [3] (per Gleeson CJ).
[9] (1998) 193 CLR 1 at [51].
[10] Palmer v The Queen (1998) 193 CLR 1 at [51].
Here, the trial Judge allowed the evidence of Mrs N to be given. The complainant gave evidence that she left the Ns’ residence due to the violence inflicted by Mrs N and her husband. While the credibility and reliability of the complainant were the main issues at trial, this issue itself was collateral. Whether the complainant lied or not about how she was treated by the N’s could only have marginal relevance to the question of whether she was lying about having sex with the appellant.
Having heard the evidence, the trial Judge concluded that the complainant had not lied in court about the issue. He noted the length of time since the complainant had left the Ns’ residence in addition to the fact that when she left, she was only 14 years of age. As the trial Judge observed, the complainant’s “perception when she gave evidence may well differ from the actual facts but that does not mean that she has lied”. On the facts, that finding was open to the trial Judge. We agree with the respondent’s submission that once the trial Judge made that finding there was no need for him to resolve the other issues suggested.
That finding is also relevant to a determination of Ground 1A. We accept the respondent’s submission on this issue. The tenor of the prosecutor’s questions, while not putting squarely to Mrs N that her evidence was, at least, exaggerated or not true, certainly challenged her evidence. While the prosecutor’s closing submissions were focussed on the question of the relevance, or more precisely, the irrelevance of Mrs N’s evidence, there could be no doubt that appellant counsel was on notice that the prosecution’s position was that the complainant was a credible and truthful witness and thus Mrs N’s evidence was either irrelevant or incorrect. While a breach of the rule of procedural fairness may, in certain circumstances, lead to an unfair trial,[11] this is not such a case.
[11] Kirkland v The Queen [2021] SASCA 14.
We would dismiss both Grounds 1 and 1A.
Ground 4
During the prosecutor’s closing address, the trial Judge asked:
In any cross-examination, has it been established that she’s given inconsistent accounts … of what she says happened between her and the accused?
The prosecutor responded:
No. The cross-examination that your Honour has, that Mr Barklay embarked upon, doesn’t bear that at all and that’s all I suggest your Honour could infer from that, that there’s no inconsistent accounts in relation to what she says about the charged offending. It’s not borne out in the cross-examination by either Mr Jolly, that you’ve seen, or Mr Barklay.
(emphasis added)
The exchange between the trial Judge and prosecutor about “inconsistent accounts” is suggestive of a reference to out-of-court statements of the complainant. That the trial Judge was referring to out-of-court statements of the complainant was confirmed in his reasons:
I find that [the complainant] was a truthful witness who gave a credible and reliable account of her relationship with the accused and of her life on the farm. She told a coherent and consistent story; at no stage was it ever suggested that there were any inconsistencies between her evidence and anything she had said out of court on any earlier occasion.
(emphasis added)
The appellant accepted that it was unobjectionable for the trial Judge to find the complainant told a “coherent and consistent story”. However, the appellant submitted that it was not open to the trial Judge to find that there were no inconsistencies between her evidence in Court and her out-of-court statements. That was a finding, in effect, that the complainant’s out-of-court statements were consistent with her evidence in Court. If the trial Judge was limiting himself to only whether there were inconsistencies, the appellant submitted that there was no need for him to refer to the out-of-court statements. The trial Judge’s reference to the fact of out-of-court statements establishes the submission that he had regard to that fact. The appellant submitted that the trial Judge was not entitled, on the evidence before him, to make such a finding. The appellant submitted that the trial Judge erred as there was no evidence about the content of any out-of-court statements made by the complainant.
The respondent submitted that the trial Judge’s finding was in fact two independent points. First, that the complainant did tell a coherent and consistent story. Secondly, that there were no inconsistent statements alleged. The respondent submitted that prior inconsistent statements are part of a trial and require proof before they can potentially undermine a witness. If the existence of a prior inconsistent statement is relevant, then their absence is also relevant and a proper point to note in a trial judgment. Thus, the respondent submitted, an implication as to positive consistency is very different to an observation of a lack of established inconsistencies.
Here it is common ground that the complainant was not cross examined about out-of-court prior inconsistent statements. It was open to the trial Judge to comment upon the consistent evidence given at trial by the complainant. However, the trial Judge went further. He observed that there had been no suggestion that there were “any inconsistencies between her evidence and anything she had said out of court on any earlier occasion”. As a statement of fact that was correct, but it was irrelevant. The appellant submitted, correctly in our view, that there was no evidence at all before the trial Judge that the complainant had made consistent out-of-court statements. For a variety of forensic reasons, counsel may choose not to put an inconsistent out-of-court statement to a witness. The fact that no inconsistent statement is put to a witness during cross examination cannot establish a positive inference that therefore any out-of-court statements are consistent with the witness’s evidence. We agree with the appellant’s submission that there was simply no basis in the evidence for the prosecutor’s submission and the trial Judge was in error in making the finding.
The trial Judge’s finding suffers from a more fundamental problem. While as sections 28 and 29 of the Evidence Act 1929 (SA) enable, subject to certain conditions, an opposing party to establish an out-of-court statement that is inconsistent with a witness’s evidence in court, evidence of an out-of-court prior consistent statement is hearsay evidence and cannot be admitted for a testimonial purpose. Nor, ordinarily, can it be admitted to aid in the assessment of, that is to bolster, the credit of a witness. As the Court in R v Bucca; R v Castle observed:[12]
[12] [2018] SASCFC 42 at [129]–[130]; R v W,CT [2019] SASCFC 18 at [32].
In The Nominal Defendant v Clements Windeyer J stated the following general principle in terms which have not been doubted.
The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing.
Evidence of a prior consistent statement is hearsay evidence and not to be admitted for a testimonial purpose. Nor, ordinarily, can it be admitted in order to aid in the assessment of, that is to bolster, the witness’ credit.
However, there is an exception to this general position, as explained by Dixon CJ in The Nominal Defendant v Clements.
If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.
(citations omitted)

The trial Judge’s finding that the complainant’s evidence was not inconsistent with any prior out-of-court statement had the effect of bolstering the complainant’s credit. It was not open to the trial Judge to reason in that way.
The respondent’s submission that if the existence of a prior inconsistent statement is relevant, then their absence is also relevant and a proper point to note in a trial judgment, fails to acknowledge that prior consistent statements are generally inadmissible to bolster a witness’s credit. We reject the respondent’s submission on that issue. A trial judge is restricted to deciding the credibility of a witness only on the evidence in court. The trial Judge was in error in referring to and taking into account the complainant’s out-of-court statements. This ground of appeal is established.
Ground 5
The appellant submits that the trial Judge erred in finding that the complainant’s evidence that the appellant was circumcised demonstrated esoteric knowledge and supported the complainant’s credibility and reliability. The appellant relied on the reasoning of Duggan J in R v HS to support his submission.[13]
[13] (2004) 90 SASR 28 at [19].
We reject this ground of appeal. The facts in R v HS are significantly different. The trial Judge specifically found that although the complainant and the appellant lived in the same house it was “unlikely that there would have been innocent occasions when she may have seen his penis”. That finding was clearly open to the trial Judge. Although, as Duggan J observed, being circumcised is an “unremarkable” feature, the evidence, in the circumstances of this matter, could be described as esoteric knowledge.
We would dismiss this ground of appeal.
Ground 6
The appellant complains that the trial Judge erred when considering the complainant’s evidence that she had been taught by the appellant how to double declutch the gears of the farm Volvo truck, by overlooking an agreed fact that the truck had a synchromesh gear box, and it was therefore not necessary to double declutch the gears. The complainant gave evidence that she was involved in driving the truck. She alleged (Count 6) that an act of sexual intercourse occurred in the truck.
The question of changing gears in the truck was a peripheral issue. As the respondent submitted, the fact that the truck had a synchromesh gear box did not prevent the appellant from teaching the complainant how to double declutch the gears. The appellant did not say that it was necessary for the gears to be changed by double declutching. She simply said that she had been taught how to do it. No error has been demonstrated.
We would dismiss this ground of appeal.
Ground 7
Given our earlier findings on Grounds 2, 3 and 4, it is not necessary to decide this ground of appeal.
Ground 8
The function of this Court in determining an appeal on an unreasonable verdict ground was settled in M v The Queen.[14] The question this Court must ask itself is whether it thinks that upon the whole of the evidence it was open to a jury to be satisfied beyond reasonable doubt that the accused was guilty.[15] The Court must make its own independent assessment of the evidence in arriving at its answer.[16]
[14] (1994) 181 CLR 487.
[15] (1994) 181 CLR 487.
[16] Dansie v The Queen [2022] HCA 25.
In this case, given the trial was by Judge alone, the reasons of the trial Judge are to be approached “with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence”.[17] The question nevertheless remains whether on an independent assessment of the totality of the evidence, the Court is left with a reasonable doubt as to guilt which is not assuaged by having regard to the trial Judge’s advantage in seeing and hearing the evidence at trial.[18]
[17] Dansie v The Queen [2022] HCA 25 at [16].
[18] Dansie v The Queen [2022] HCA 25 at [16].
In Pell v The Queen the High Court stated:[19]
It should be understood that when the joint reasons in M v The Queen spoke of the jury's “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
(citations omitted)
[19] (2020) 268 CLR 123 at [38]–[39].
The appellant relied upon three matters:
1.The forensic disadvantage suffered by the appellant.
2.The prosecution accepting that the complainant lied to her biological mother on four occasions over an approximately 10-year period.
3.The evidence that the complainant lied about how she was treated by her former foster parents.
Forensic disadvantage
The appellant accepted that the trial Judge correctly directed himself on the question of the significant forensic disadvantage he suffered. On appeal, the appellant submitted that the Court must have regard to the significant forensic disadvantage he suffered when it conducts a review of the evidence.
We accept the appellant’s submission. In Patterson (a pseudonym) v The Queen, Livesey P and Lovell JA observed:[20]
… as this was a trial where it was accepted that the accused was under a significant forensic disadvantage, the appeal court must take that disadvantage, and the operation of s 34CB of the Evidence Act, into consideration when conducting its own review of the evidence.
[20] [2022] SASCA 57 at [46].
President Livesey and Lovell JA further observed: [21]
The forensic disadvantage to an accused caused by delay ordinarily lies in the inability of the defence to adequately test allegations, or adequately marshal a defence, in one or more respects, compared with what the defence may have been able to do if the trial had taken place closer in time to the alleged offending. The jury are therefore asked to determine whether guilt has been proved beyond reasonable doubt on the strength of evidence that has not been tested as it might have been, or on testimony or documents that might have been answered by the calling of other evidence. Section 34CB requires that the trial judge bring the effect of that forensic disadvantage to the attention of the jury when it is undertaking fact finding.
A jury will usually make allowance for the undisputed fact that memory fades over time when assessing the evidence of any witness, including a complainant. However, where delay is sufficient to produce a significant forensic disadvantage to an accused, some tension is created between the operation of s 34CB and the way in which delay may affect the memory, and therefore the evidence and assessment, of prosecution witnesses, including a complainant. As mentioned, only the accused is conferred the benefit of s 34CB. Following a substantial delay an accused may only be able to offer a blanket denial. A complainant can often provide some detail. Accordingly, inconsistencies in the evidence may arise by reason of the delay which has elapsed since the alleged offending. As Peek J warned in R v Maiolo (No 2), when directing a jury the trial judge must be careful not to suggest that inconsistencies within a complainant’s evidence, apparently caused by the deterioration of memory brought about by delay, results in both an accused and the prosecution suffering a forensic disadvantage. To put that proposition another way, though the jury should understand that delay may explain errors or inconsistencies in a complainant’s evidence, when scrutinising the evidence the jury must take into account that it is only the accused who has suffered a relevant forensic disadvantage caused by delay which is recognised by s 34CB.
Accordingly in this case it was necessary to consider the extent to which the appellant was suffering from forensic disadvantage caused by delay when reviewing the prosecution case and the extent to which it was answered.
[21] Patterson (a pseudonym) v The Queen [2022] SASCA 57 at [49]–[51].
The appellant submitted that due to the lapse of time, he was unable to test the complainant’s account in detail. In particular, he submitted that he was forensically disadvantaged as:
·He cannot now be expected to remember relevant times and occasions as he would have been able to if there had been a prompt complaint.
·Had there been a prompt complaint, the appellant may have had the opportunity to make enquiries and to explore the surrounding circumstances close to the time of the alleged events.
·Had there been a prompt complaint, the appellant may have been able to uncover additional evidence which threw doubt on the complainant’s allegations or supported his denial of those allegations.
·He has lost the opportunity to interview potential witnesses.
·He has lost the opportunity to find witnesses with clear recollections of relevant times.
·The complainant has not been able to specify with accuracy, the dates and times of the alleged crimes; for example, the timing of the Volvo incident related to the alleged offending in the harvester.
·It was not possible for him to establish an alibi.
The appellant submitted that in a case involving significant forensic disadvantages such as this, and in circumstances where it was not possible for the appellant to test the complainant’s evidence properly, a comparatively lesser level of inconsistency, discrepancy, or other inadequacy in a complainant’s evidence, or other evidence, is sufficient for the Court of Appeal to conclude that a trial judge ought to have experienced a reasonable doubt about an accused’s guilt, even if the trial judge assessed the complainant’s evidence as credible and reliable.
Lies to her biological mother
We have dealt with this topic earlier in these reasons. We have accepted that the trial Judge’s reasons and reasoning on this topic were inadequate. However, that is not a finding that the trial Judge could not have come to that conclusion.
Alleged lies about how she was treated by her former foster parents
We have also dealt with this topic earlier in these reasons. We have accepted that it was open for the trial Judge to find that the complainant did not lie in Court about these matters.
The respondent submitted that the appellant’s main criticisms relate to what could be described as “collateral” matters. The evidence of Mrs N related to an issue that was, at its highest, of marginal relevance. While the respondent accepted that the lies the complainant told about LN to her biological mother were more significant, the telling of the lies did not damage her credibility and reliability irreparably.
In accordance with the reasons of the plurality in M v The Queen, we must ask ourselves whether we think that, upon the whole of the evidence, it was reasonably open to the trier of fact to be satisfied beyond reasonable doubt that the appellant was guilty. Put another way, we must ask ourselves whether the trier of fact must have, as distinct from might have, entertained a doubt about the appellant’s guilt.
We have considered all the evidence. We have taken into account the significant forensic disadvantage suffered by the appellant. We generally agree with the respondent’s submissions on this ground. We do not consider that the trial Judge must have entertained a doubt about the guilt of the appellant. We dismiss this ground of appeal.
Conclusion
Grounds 2, 3 and 4 have been established. Given the nature of the errors, any application of the proviso is inappropriate.
The appellant urged this Court, given the lengthy history of the matter, to consider not remitting the matter for a further trial if error was established. Practically, that is asking this Court to stay the prosecution. While the history is indeed unfortunate, the question of whether the case should be prosecuted again is a matter for the Director of Public Prosecutions to consider.
Orders
We would grant permission on Ground 4 and allow the appeal on Grounds 2, 3 and 4. We would remit the matter to the District Court for retrial before a different judge.