Pham (a pseudonym) v The King - [2025] SASCA 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PHAM (A PSEUDONYM) v THE KING
[2025] SASCA 94
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
4 September 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
This is an application for permission to appeal against conviction.
After a trial by judge alone, the application was convicted of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
By amended grounds of appeal, the applicant contends that there was a miscarriage of justice resulting from the trial judge’s inadequate reasoning on various issues relevant to his assessment of the credibility and reliability of the complainant.
The applicant abandoned a complaint that the verdict was unreasonable or unsupported by the evidence.
Held (the Court), refusing permission to appeal and dismissing the application for permission to appeal:
1.The reasons of the trial judge must be considered as a whole, recognising that acceptance of key aspects of the complainant’s evidence by the trier of fact was essential to the prosecution case.
2.It was a matter for the trial judge as the trier of fact to determine what evidence was accepted and why, as well as the weight to be given to the various issues that arose on that evidence.
3.It cannot be said that the reasoning of the trial judge concerning the credibility and reliability of the complainant’s evidence was so flawed, irrational or illogical that the high bar required for a conclusion of inadequate reasoning has been met in this case.

4. It is not reasonably arguable that the trial judge has engaged in inadequate reasoning.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 28, 29, referred to.
Bowen (A Pseudonym) v The King [2025] SASCA 36; Brown (A Pseudonym) v The King [2025] SASCA 40; Donald v The King [2024] SASCA 121; DL v The Queen (2018) 266 CLR 1; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; R v PLN [2024] SADC 97; R v Trabolsi (2018) 131 SASR 297, considered.

PHAM (A PSEUDONYM) v THE KING
[2025] SASCA 94
Court of Appeal – Criminal: Livesey P, S Doyle and David JJA
THE COURT:
Introduction

This is an application for permission to appeal against conviction. The applicant was convicted after a trial by judge alone of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).[1]
[1] R v PLN [2024] SADC 97 (

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pham (a pseudonym) v The King

Details

AGLC: Pham (a pseudonym) v The King [2025] SASCA 94
Case: [2025] SASCA 94
Decision Date: 4 September 2025

CaseChat Overview and Summary

The appeal concerned the applicant, Pham (a pseudonym), who sought leave to appeal against a decision of the trial judge. The core of the dispute revolved around allegations of inadequate reasoning by the trial judge, which Pham contended constituted an error of law. The matter was heard by the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the trial judge's reasons for their decision were so inadequate as to amount to an error of law, thereby justifying an appeal. This required the Court to assess the quality and sufficiency of the reasoning provided by the trial judge in light of the arguments presented by the applicant.

The Court concluded that it was not reasonably arguable that the trial judge had engaged in inadequate reasoning. Consequently, permission to appeal was refused. The Court also noted an unsatisfactory situation regarding the unavailability of a Vietnamese interpreter for the applicant, despite efforts by court staff. Although the applicant could view and hear the proceedings via audio-visual link, he could not provide instructions or have the argument interpreted. With the parties' consent, the appeal was heard, and the applicant's legal advisors were given an opportunity to make further submissions after consulting with the applicant, with the benefit of an interpreter and a transcript. However, counsel for the applicant later informed the Court that no further submissions would be made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, it is not reasonably arguable that the trial judge has engaged in inadequate reasoning. Conclusion Permission to appeal should be refused. It should be recorded that, despite the efforts made by Court staff in the day or so before the hearing, it was not possible to confirm the attendance of a Vietnamese interpreter. That was unsatisfactory. That meant that though the applicant was able to view and hear proceedings by an audio-visual link, he could not provide instructions nor have what was said in the course of argument interpreted. With the consent of the parties, the Court heard the appeal argument and, whilst it may have been unduly cautious to do so,[13] gave the applicant’s legal advisors the opportunity following the hearing to make further submissions after speaking with the applicant with the benefit of an interpreter and a transcript of the hearing.[13] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329. As it transpired, the Court was later told by counsel for the applicant that no further submissions would be made.

Ratio Decidendi

Legal Principle Established

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