R v ADW

R v ADW
[2002] SASC 331
Court of Criminal Appeal: Doyle CJ, Debelle and Williams JJ

DOYLE CJ: I have read the reasons of Williams J. It is unnecessary for me to repeat the facts.
I agree that the appeal should be allowed, that the conviction should be set aside and that a new trial should be ordered. I agree generally with the reasons of Williams J.
However, I wish to deal with the basis upon which the Court allows the appeal, for reasons that will become apparent.
Facts
M gave evidence, as did her mother, that M first told her mother about the alleged offences by the appellant about two weeks before a family meeting called to discuss the possibility of the appellant being given the custody of M’s younger brother. However, M denied that her reason for raising the allegation was a concern that her brother might not be safe with the appellant. Her explanation for raising the allegation at this time was this:
“Because I was old enough to realise that I needed to tell someone and it had to be then.”
On the other hand, M’s mother said that M raised the allegation in connection with M’s concern about her brother going to live with the appellant. M’s mother also said that this occurred before the family meeting.
The Judge’s finding that “these allegations surfaced” after the family meeting appears to be wrong. As well, the Judge has not referred to the conflict between M and her mother over the context in which M raised the allegation.
These are significant points. If M and her mother had discussed the allegation before the family meeting, why did they not raise it at the meeting? M was cross-examined to suggest that she had made up these allegations to prevent the appellant getting custody of M’s brother. It was put to her that if the meeting had been told about the allegations, that might have prevented the appellant getting custody. M said that she did not realise this. When M’s mother was cross-examined about the failure to raise the allegations at the family meeting, she said in effect that there was no point in doing so. When she and M got to the family meeting, departmental officials had obviously made up their minds already.
The Judge did not miss the point that the allegation might have been fabricated to stop the appellant getting custody of M’s brother. He referred specifically to the defence contention on this point, noting that the fact that M made a complaint to the police about five days after the family meeting, and noting that M was a child who might be “easily influenced and manipulated by her mother”. Accordingly, although the Judge made an error about the sequence of events, and did not address the conflict between M and her mother, or the failure to raise the allegations at the family meeting, he certainly considered the suggestion that M had fabricated her evidence to prevent the appellant from getting custody of M’s brother.
The Judge accepted M as a witness of truth. He relied on her demeanour, and on the careful way in which she answered questions. He considered the significance of the delay in making the allegations. As I have said, he considered the suggestion that M had fabricated her allegations to prevent the appellant from getting custody of her brother. The Judge was clearly impressed by M. In finding the charge proved beyond reasonable doubt, the Judge relied on evidence from M’s mother and from another woman, each of whose evidence tended to support M’s evidence about the incident in question, although that support was circumstantial only.
In short, there was adequate material upon which the Judge might have concluded that M was a truthful witness, and might have found the charge proved beyond reasonable doubt. But the Judge’s reasoning in relation to M’s credibility discloses a material misapprehension as to the evidence. The Judge has misdirected himself on the facts.
That raises the question of whether this Court can and should set aside the verdict.
Powers of the Court
The trial was by judge without a jury. Section 7(4) of the Juries Act 1927 (SA) provides as follows:
“Where a criminal trial proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.”
Accordingly, in the present case the Judge’s verdict and finding of guilt has “for all purposes” the same effect as a jury’s verdict.
The Judge has given reasons for reaching that verdict. In R v Keyte [2000] SASC 382; (2000) 78 SASR 68 I held that in such a case there is an obligation on the judge to give reasons for the verdict reached, but did not find it necessary to decide the full extent of that obligation: see in particular at [52]-[57]. Nor is it necessary to do so in this case.
The appeal is against the conviction: s 352(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The conviction is a consequence of the verdict of guilty.
On such an appeal the powers of this Court (usually referred to as the Court of Criminal Appeal, although strictly the Full Court) are found in the provision that is common throughout Australia. Section 353(1) of the CLCA provides:
“The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The first of these grounds raises the question of whether, although there is evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt: see M v The Queen (1994) 181 CLR 487 at 492-493 Mason CJ, Deane, Dawson and Toohey JJ; Gipp v The Queen (1998) 194 CLR 106 at 144 Gaudron J, 146-150 Kirby J; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [10]-[12] Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
In a case such as this, the first ground, referring to “the verdict of the jury”, directs attention to the decision of the judge on the ultimate finding of guilt, and to the evidence before the judge, and not to the judge’s reasons: Fleming at [26].
In this case it cannot be said that the Judge ought to have entertained a reasonable doubt as to guilt. On the evidence it was open to him to convict. The issue is the significance of the disclosed error in his reasons dealing with the facts and the credibility of M.
The second ground does not arise here. There is no suggestion of a wrong decision on a question of law.
The third ground requires consideration of the question of whether there has been a miscarriage of justice on any ground. Although the issue of whether, on the evidence, the judge or jury ought to have had a reasonable doubt is sometimes raised under this ground, because of the continued reference to verdict as being unsafe and unsatisfactory, this ground raises matters not embraced by the first ground.
The question is whether the error exposed here falls under the third ground.
Interfering with findings of fact
There is a further aspect of this Court’s powers that warrants mention.
An appeal under s 353 of the CLCA is not an appeal by way of rehearing. This Court does not have the wide powers that it has, for example, in an appeal under s 53 of the Supreme Court Act 1935 (SA). In particular, this Court does not have power to substitute its own findings for those of the trial judge: see Fleming at [18].
In O’Donoghue (1988) 34 A Crim R 397 the Court of Criminal Appeal of New South Wales said at 401:
“It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge’s findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Merritt and Roso (1985) 19 A Crim R 360 at 372-373; Kyriakou (1987) 29 A Crim R 50 at 60-61.”
The Court adhered to that view in Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 at [17]-[18].
These observations relate to findings by a trial judge on the voir dire, dealing with the admissibility of evidence. However, they appear equally applicable to findings of fact made on the trial. In Fleming the High Court noted this view, but did not have to consider its correctness: Fleming at [26].
It is not necessary to resolve that issue here. There are two reasons for that. First, even if a more liberal test is applied, I would not be prepared to hold that the Judge was wrong in concluding that M was a witness of truth. I am not satisfied that the error in his reasoning means that the conclusion was wrong. In any event, it is apparent from the Judge’s reasons that he has significantly misdirected himself in relation to the issue of M’s credibility. As I see it, the question in this case is whether it is open to this Court to set aside the verdict on the basis that the Judge misdirected himself in this way, without having to conclude that the Judge was wrong in concluding that M was a witness of truth.
Miscarriage of justice
The Court’s power under the third ground is a wide one. In Davies and Cody v The King (1937) 57 CLR 170, in words often cited with approval, the High Court said at 180:
“From the beginning, that court has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria (Crimes Act 1928, sec. 594 (1)). It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”
In many cases the suggested miscarriage of justice has been one that involves linking the suggested error or irregularity to the verdict of guilt, in the sense that the error or irregularity affected or might have affected the verdict of guilt. Such cases often involve the consideration of the proviso to s 353(1) of the CLCA: see, for example, Driscoll v The Queen (1977) 137 CLR 517.
On the other hand, that link has not been necessary when an error or irregularity means that the trial is fundamentally flawed: Wilde v The Queen (1988) 164 CLR 365.
In the present case it could not be said that the trial was fundamentally flawed. The Judge’s error or reasoning does not have that effect.
However, there may be an irregularity which amounts to a miscarriage of justice, even though it cannot be said that the trial is fundamentally flawed. It may suffice that the trial was not conducted according to law.
In R v Starrett [2002] SASC 175; (2002) 82 SASR 115, on a trial by judge sitting alone, the Judge permitted the complainant to give evidence unsworn without making the determination that was required to be made, if the witness was to give unsworn evidence, by s 9 of the Evidence Act 1929 (SA). I said at [28]:
“Such authority as there is suggests to me that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form.”
I referred to some similar cases. Perry J and Lander J agreed with my reasons. Thus, the verdict was set aside on the basis of a substantial irregularity which did not impugn the quality of the evidence upon which the judge acted in finding the appellant guilty.
In Szabo [2000] QCA 194; (2000) 112 A Crim R 215 the defence counsel and the Crown Prosecutor had lived in a de facto relationship until about three months before the trial in question, occupied the same motel room shortly after the trial, and resumed their relationship some three months later. The accused was not informed of the association. He appealed, arguing that this gave rise to a miscarriage of justice. There was no suggestion that his representation at trial was other than competent. The prosecution case was strong. Nevertheless, Thomas JA concluded at [81]:
“The Crown case was strong, and the instructions now revealed by the appellant do not provide much promise of weakening it. The appeal is not allowed on any perception that an innocent man has been convicted, but on the ground that it may be perceived that he did not have a fair trial according to the process by which criminal trials are conducted. To uphold the conviction would send the wrong message to professional persons entrusted with a vital role in the administration of criminal justice, and would in the end lower public confidence in the integrity of the system.”
Early in his reasons he explained that the case was one in which the basis for the court intervening was a miscarriage of justice: at [49]-[58]. De Jersey CJ agreed with him on this point, as did Davies JA.
In the course of his reasons Thomas JA referred to some analogous situations, including cases in which there is an unauthorised communication with the jury, and the content of the communication is not known. In such cases the court appears to have acted on the basis of a risk of a miscarriage of justice, and also on the basis that the requirement of a trial according to law has been infringed by the irregularity.
In Webb v The Queen (1994) 181 CLR 41, on the morning of the day on which the trial Judge commenced his summing up, one of the jurors gave a bunch of flowers to a person at the courthouse with a request that it be given to the mother of the man whose death gave rise to the charge of murder that the jury was trying. The Judge refused to discharge the jury. That decision was challenged on appeal. It can be seen that the challenge to the conviction raised a matter that in no way impugned the finding of guilt on its merits. The Court was divided on the question of whether a fair minded observer would have apprehended a lack of impartiality on the part of the jury, and whether accordingly the judge should have discharged the jury. Only Brennan J adverted to the basis upon which the verdict might be set aside, were that to be appropriate. He said that what happened was “an irregularity of a fundamental kind which vitiated the conviction”: at 62.
I refer to these cases to demonstrate that the Court of Criminal Appeal may set aside a verdict of guilt even though it is not demonstrated that the verdict was, on its merits, flawed.
But the question remains of whether it is open to this Court to say that there has been a miscarriage of justice because, on one aspect of the facts, the trial Judge misdirected himself. I have already explained why I would not conclude that the Judge was wrong in deciding that M was a witness of truth.
Because of that decision it is not necessary to embark upon the important issue of the role of this Court, on an appeal against conviction after a trial by judge alone, in relation to findings of fact by the trial judge. It remains to be determined whether, in such a case, this Court can and should review those findings of fact, and on what basis.
Conclusion
I am satisfied that the misdirection was a material one. It resulted in the Judge failing to consider a significant aspect of the defence case. Had the case been tried with a jury, and had the trial judge similarly misdirected the jury, I consider that this Court would have set aside the verdict on the grounds that there had been a miscarriage of justice. I consider it is appropriate to do so in the present case.
I wish to emphasise that I so conclude only because the misdirection means that in a substantial respect the Judge has failed to deal with the defence case at trial. I do not accept that every misdirection on the facts in a trial by judge alone, or even any misdirection that might possibly have affected the ultimate finding of guilt, would necessarily provide a basis for this Court to interfere. And, as I have already emphasised, nor do I accept that it is necessarily the function of this Court to review findings of fact to determine whether or not they were correctly made. But, in the present case, I am satisfied that what has occurred amounts to a miscarriage of justice.
DEBELLE J: I have had the advantage of reading the reasons of the Chief Justice and of Williams J. I agree with the substance of them. I agree that the appeal should be allowed, that the conviction should be set aside and that a new trial should be ordered.
WILLIAMS J: This is an appeal against conviction upon one count of unlawful sexual intercourse with a person under 12 and one count of inciting a child to commit an indecent act. The appellant was tried in the District Court by Judge alone who on 19 April 2001 delivered ex tempore reasons for conviction.
The victim of each of these offences was the appellant’s natural daughter M who at the time of the offences was aged nine. Each count arises out of an alleged incident in a country town at a party during the Christmas/New Year holiday period of 1993-1994. The matter was not the subject of a complaint to police until 4 November 2000 when the victim was aged 16.
Upon the prosecution case the victim together with her father (the appellant) and mother (C) attended a social gathering at the home of J and his partner R. M went to the toilet during the afternoon but accidentally found that it was already occupied by the appellant. According to M, the appellant placed two of his fingers in M’s vagina and then caused her to place her own fingers in her vagina. The appellant then released his daughter who was found by her mother near the toilet upset and crying. M’s mother saw the appellant emerge from the direction of the toilet. Soon after this the appellant, C, M and her brother X together left the gathering prematurely by reason of M’s distress. The appellant and C had separated at the time of this incident but nevertheless the appellant, his wife and two children attended this function together.
R gave evidence that she observed M’s distress outside the toilet whilst the appellant himself was still within the cubicle. According to this witness the appellant remarked that he “didn’t hurt her”.

The appellant denied the allegations and sought to prove that M’s story was a fabrication to which her mother was party. The complaint to the police was made five days after a Family Care conference arranged by Family and Youth Services (FAYS) to consider the welfare of X (the 14 year old son of the appellant and C) who was then in foster care. The conference was arranged to explore a proposal that X should live with the appellant. Although C was aware of M’s complaint, neither C nor M (both of whom attended with the appellant at the Family Care conference) mentioned the incident at the party during the conference. This meeting was held in the presence of various Family and Youth Services officers and according to the trial judge lasted for a whole day.
The gravamen of the appellant’s complaint upon this appeal (although expressed in various ways) is that upon the face of his reasons the trial judge misunderstood the thrust of the defence case as to the timing and sequence of events which are critical to an evaluation of the evidence of the victim and her mother. The trial judge mistakenly concluded that the matters of complaint were first disclosed by M to her mother after the Family Care conference. In his reasons the trial judge mentioned the meeting on 30 October 2000 and a subsequent court order made on 14 November 2000 that X be released into the appellant’s custody; His Honour then said:
“I mention these dates because it was apparent that, after the conference, a discussion occurred between [M] and her mother where these allegations surfaced. On 4 November 2000, [M] attended at the Mount Gambier Police Station and a female police officer took a statement.
I mentioned the date because I have had quite detailed submissions by [the appellant’s] counsel in support of the argument that [M], supported by her mother, had fabricated these allegations, because, in some way that would reflect on that custody application.”
(My emphasis added).
His Honour found that the mother’s evidence (together with that of R) was convincing and supportive of the evidence of M. The appellant gave evidence and denied the charges but the trial judge disbelieved him.
On 23 August 2002 the appellant was granted leave to appeal on the following grounds:
1“The Learned Trial Judge erred when finding as a matter of fact that the Complainant first raised the allegations at bar with her mother after a Family and Youth Services conference, held on 30 October 2000, where the evidence was that the complainant and her mother discussed the allegations some weeks prior to the 30 October Family Conference.
2The verdict is unsafe and unsatisfactory.
PARTICULARS
iThe Complainant failed to raise the 1994 allegation until October 2000.
iiThe allegation was raised at a time of family hostility when the applicant was seeking the care of the Complainant’s younger brother and that application was opposed by the Complainant’s mother and other members of her family.
iiaThe allegation was not raised at the Family and Youth Service conference, notwithstanding the opportunity to do so.
iiiThe Learned Trial Judge erred in his reasons as to the timing of the complaint and therefore failed to understand the issue of motive.
ivThe Learned Trial Judge failed to give any, or adequate, weight to the issue of motive.
vThe Complainant “was a child who might be easily influenced and manipulated by her mother”.
viThe Complainant had some degree of cognitive impairment.
viiThe Learned Trial Judge had before him evidence of the appellant’s previous conviction for a similar offence.”
The victim and her mother are in agreement that some weeks before the Family Care conference M told her mother about the appellant’s offending. However, the evidence shows that there are significant differences in the evidence of M and her mother which ought to have been dealt with by the trial judge. M says that at the time when she reported the incident to her mother she was not aware of the proposed Family Care conference; she denied that she raised the matter out of concern for the welfare of her brother X; on the contrary she said that she raised her allegations with her mother “because I was old enough to realise that I needed to tell someone”.
This evidence is at variance with the mother’s version. Her mother gave evidence that M was aware of the proposed Family Care conference when M first complained to her; according to C, M told her about the appellant’s conduct because of the concerns then expressed by M about her brother going to live with his father; according to C her daughter had then declared her intention to raise the matter at the forthcoming conference.
The allegations were not in fact raised at the Family Care conference but M was driven by her mother to the Mt Gambier police station on 4 November 2000 when she provided a statement to police which gave rise to this prosecution.
Upon this evidence the trial judge was required to assess the differences in the evidence of mother and daughter and the reason why such a serious allegation was not raised at the conference on 30 October 2000 but pursued vigorously a few days later. The trial judge found that “It may well be that M was a child who might be easily influenced and manipulated by her mother”. There was evidence that M’s intellectual development was retarded. The mother gave evidence that she was represented by a lawyer at the Family Care conference but did not mention M’s complaint to him. There is some difference between M and her mother whether or not at the Family Care conference her mother voiced her opposition to the son going to live with the appellant. According to M her mother “could have said something like that” whereas C denied this. The decision as regards the son’s future was actually made at a Youth Court hearing on 14 November 2000 when an approval was given for the appellant to have the care of his son.
There was thus evidence which was capable of casting serious doubt upon the credibility of M and her mother. There was evidence from which the conclusion might be drawn that C chose to keep a card up her sleeve at the Family Care conference if indeed the story was not manufactured more recently. The defence case alleges either recent invention or an inexplicable failure to bring a serious allegation to the attention of the proper authority promptly. The defence contends that the evidence of M and her mother had been undermined to the point where the trial judge ought to have grappled with serious doubts as to the veracity of the prosecution evidence. The reasons given by the trial judge do not face up to conflicts which are apparent on the face of the evidence. These can only be resolved by a new trial.
Upon the hearing of this appeal counsel applied to add an additional ground of appeal, namely:
“That the Learned Trial judge failed to deal adequately with the issue of credit of witnesses.”
The Court reserved its decision upon this application. However having heard argument it is apparent that the proposed amendment (insofar as it is limited to M and her mother as witnesses) does not really add to what is already implicit in the grounds upon which leave was granted. The grounds of appeal deal with the trial judge’s error as to the timing of events which inferentially raise the suggestion of a fabricated complaint and call in question the motive of the mother. In my view the existing grounds of appeal necessarily put in issue the credit of M and her mother and the trial judge’s treatment of their evidence. Although the trial judge’s analysis of questions of credit was inadequate it becomes unnecessary to pursue the matter further by reason of the views which I have already expressed. I would refuse leave to amend.
This is not the first time that a question of sexual involvement between the appellant and his daughter has been raised. In 1991 there was sexual offending by the father against his daughter to which the appellant confessed in January 1992. He was placed on a bond in July 1992 and received treatment. In the present case the trial judge admitted evidence of the appellant’s offending in 1991 but in his reasons stated that he placed no weight at all upon the 1991 conduct and excluded those matters completely from his consideration of the charges before him. This evidence deserved to be brought to account as some evidence of the appellant’s unnatural sexual interest in his daughter and it was relevant to an assessment of M’s explanation of her relationship with her father and her reasons for delay in making her present complaint. According to the appellant this earlier offending was put against him during the Family Care conference. If this be so the question may fairly be asked as to why the incident at the party was not also raised. Again the trial judge has not brought to account in his reasons this topic which bears so strongly upon the motivation of M and her mother.
On appeal against conviction under s 352 of the Criminal Law Consolidation Act this Court acts as a court of error - that is to say, in providing a remedy, the Court considers whether the order of the Court under appeal was right on the material which the court from which the appeal is brought had before it (see Victorian Stevedoring & General Contracting Co Pty Ltd (1931) 46 CLR 73 at 109 per Dixon J).
The application of this principle to an appeal against conviction from a trial by judge alone is explained by Hunt CJ at CL when dealing with corresponding New South Wales legislation in Kurtic (1996) 85 A Crim R 57 at 59-60:
“On appeal against conviction pursuant to s 5, this Court acts as a court of error. Under the old practice at common law, a court of error, if it thought that error was established, could only order a new trial. This Court is in the same position, subject only to the proviso to s 6(1) whereby it may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Except where specifically provided by s 6A, it has no power under ss 5, 6 or 8 to rehear the issues at the trial. It has no power to make any finding which could have been made in the court of trial. That is clear from the structure of the Act to which I have referred. Although this Court will - in well-defined circumstances - permit further evidence to be admitted on the hearing of an appeal pursuant to s 5, that evidence is used by it only for the purpose of determining whether a new trial should be granted by reason of the miscarriage of justice resulting from the absence of that evidence at the original trial, and not for the purpose of deciding for itself what could or should have been found in the court of trial.
Where the appeal against conviction pursuant to s 5 is from a trial by a judge alone pursuant to s 33 of the Criminal Appeal Act, the position is exactly the same. This Court has no power to rehear the issues at the trial or to make any finding which could have been made in the court of trial. In some of such appeals in which this issue has arisen, the stated attitude of the court has been complicated by the fact that it has been considering a ground of appeal that the verdict was unsafe and unsatisfactory. In such a case, it is the duty of this Court - whether the appeal is from a jury trial or a judge alone trial - to make its own independent assessment of both the sufficiency and the quality of the evidence, in order to see whether the jury (or judge trying the case alone) ought to have a reasonable doubt or whether this Court itself experiences such a doubt or is persuaded that there is a significant possibility that an innocent person has been convicted. It has nevertheless been accepted by this Court that an appeal against conviction from a trial by a judge alone pursuant to s 33 of the Criminal Appeal Act is not an appeal by way of rehearing. In the statutory context to which I have referred, this must be so. As the finding of a judge in such a trial is to be given the same effect as a verdict of a jury for all purposes, error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice.”
(Footnotes omitted, emphasis added).
In my opinion the position in South Australia is not different.
Section 7(4) of the Juries Act 1927 provides that:
“…the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.”
Bearing in mind this provision and the form of s 352 and s 353 of the Criminal Law Consolidation Act of this State it seems to me that the principles identified by Hunt CJ are applicable to the present appeal.
Error in the present case may be demonstrated on the footing that the judge misdirected himself as to the facts leading to a miscarriage of justice. However, the remarks of Hunt CJ show that there may be other paths leading to the same result based upon the appeal court’s own independent assessment of the sufficiency and quality of the evidence. However it be categorised the trial judge’s misapprehension of the facts leads me to conclude that the verdict is unsafe and unsatisfactory.
The appeal should be allowed, the conviction should be set aside and a new trial should be ordered.

[2002] SASC 331

24 October 2002