R v C, AP - [2006] SASC 334

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v C, AP
[2006] SASC 334
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
8 November 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Trial by Judge alone - Appellant convicted of three counts of incest and one count of indecent assault - Appeal against conviction - Whether verdicts alleged unreasonable and not supported on evidence, or unsafe and unsatisfactory - Whether trial Judge gave adequate reasons - Alleged inconsistencies and implausibility of evidence - No recent complaint - Finding on credibility of complainant and accused - Use of uncharged acts - Appeal dismissed.
M v The Queen (1994) 181 CLR 487; R v Nieterink (1999) 76 SASR 56, applied.
Jones v The Queen (1997) 191 CLR 439; R v C, AP [2006] SADC 53; R v Hetherington (unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994); R v Keyte (2000) 78 SASR 68, discussed.
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

R v C, AP
[2006] SASC 334
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J. I would dismiss the appeal. I agree with the reasons of Layton J.
LAYTON J. This was an appeal against convictions found against the appellant upon a trial by Judge alone.[1] The appellant was charged with five counts of sexual offences against his daughter (“SLC”) between the period 12 September 1994 to 31 December 2004. SLC was just 3-4 years of age when the offending began and the last offences occurred when she was aged 13. The appellant was found guilty of all counts save the first, on which the trial Judge was not satisfied beyond reasonable doubt.
[1] R v C, AP [2006] SADC 53.
A number of grounds were argued on appeal, but the prime argument was Ground 3, namely that the verdicts on Counts 2–5 were unreasonable and cannot be supported by the evidence or were unsafe or unsatisfactory. This argument was based on alleged inconsistencies and the implausible nature of the evidence of SLC.
The Charges
The appellant was charged with the following offences:
Count 1
Unlawful Intercourse pursuant to s 49(1) of the Criminal Law Consolidation Act 1935 (CLCA) namely that between 13 September 1994 and 15 September 1996 he had vaginal sexual intercourse with SLC being a person under the age of 14 years.
Count 2
Incest pursuant to s 72 of the CLCA in that between 13 September 2002 and 15 September 2004 he had vaginal sexual intercourse with SLC being her parent
Count 3
Incest pursuant to s 72 of the CLCA in that between 13 September 2002 and 31 December 2003 he had sexual intercourse with SLC being her parent.
Count 4
Indecent assault pursuant to s 56 of the CLCA in that between 1 January 2003 and 31 December 2004, he indecently assaulted SLC being a person under the age of 16 years.
Count 5
Incest pursuant to s 72 of the CLCA in that between January 2003 and 31 December 2004 in that he had sexual intercourse with SLC being her parent.
The first count was alleged to have occurred at the family home and the last four counts were alleged to have occurred at the house of the appellant.
At the trial there was no dispute that SLC had been the victim of sexual activity, the issue at trial was whether the appellant was the perpetrator.
Overall grounds of appeal
There were three grounds of appeal:

Ground 1 was that the learned trial Judge erred in law in that he failed to give adequate reasons.
Ground 2 was that the learned trial Judge had erred in law in that he failed to appropriately or adequately warn or direct himself in relation to credibility and reliability of the evidence of SLC having regard to the matters set forth in Ground 3.
Ground 3 was that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence, or that they are unsafe and unsatisfactory.

It was appropriately conceded by Mr Charman, counsel for the appellant, that if Ground 3 could not be made out, then Ground 2 would similarly fail as it was subsumed in Ground 3. Further, that the outcome of Ground 3 was relevant to whether Ground 1 could be made out.
Ground 3 - Verdict unreasonable, cannot be supported on the evidence, or unsafe and unsatisfactory
In relation to Ground 3 Mr Charman submitted that the convictions depended solely upon the evidence of a single witness, namely SLC. It was submitted that SLC was shown to be incorrect in some important aspects of her evidence and that her evidence was inconsistent in material respects with the evidence of her brother, JC and her mother, KLA.
In approaching matters concerning credibility of witnesses on appeal, the following principles in the High Court decision of M v The Queen[2] apply:
·Whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence is a question of fact. The question which the court must decide by making its own independent assessment of the evidence, is whether, notwithstanding that there is evidence upon which a jury may convict, it might nonetheless be dangerous to allow the verdict to stand.[3]
·This ground differs from a verdict which may be “unsafe or unsatisfactory”, which does not require that the verdict be unreasonable or incapable of being supported by the evidence. It must constitute a miscarriage of justice requiring a verdict to be set aside.[4]
·The question which the appeal court must ask itself in relation to an allegation of “unsafe and unsatisfactory”, is whether the appeal court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering this question, the court must not disregard or discount that the jury is the body entrusted with determining guilt or innocence, or that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations.[5]
·In most cases a doubt experienced by an appeal court will be a doubt which a jury ought also to have experienced.[6]
[2] (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ.
[3] (1994) 181 CLR 487, 492-493.
[4] (1994) 181 CLR 487, 493.
[5] (1994) 181 CLR 487, 492-493.
[6] (1994) 181 CLR 487, 494.
These principles were later reinforced by the High Court in Jones v The Queen.[7]
[7] (1997) 191 CLR 439, Gaudron, McHugh and Gummow JJ, 450-451.
In relation to a trial by Judge alone, an appellate court has the advantage of being able to consider the reasons of the trial Judge in the process of reviewing the evidence to determine whether the verdict is unreasonable, unsupported by the evidence, or unsafe and unsatisfactory. However, as this Court said in R v Hetherington,[8] the general principles of appeal should not be affected by the fact that an appellant was tried by judge alone.[9] Further the appeal court must have regard to the great advantage which the trier of fact has in seeing and hearing the witness, but is not bound to act upon their views of the credibility of the witnesses.[10]
[8] (1994) (unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994).
[9] Ibid.
[10] R v Hetherington (1994) (Unreported, CCA(SA), Nyland, Mohr and Debelle JJ, 24 August 1994).
In the light of these principles, I will first consider each of the alleged inaccuracies and inconsistencies in turn, and then address the argument that they should be considered collectively and in the context of the matters arising from Grounds 1 and 2.
Sleeping arrangements and the issue of plausible opportunity
Mr Charman submitted that there was contradictory evidence as to where SLC slept, and that this indicates that there was no plausible opportunity for the appellant to have committed the offences. It was common ground on the evidence of SLC, her brother JS, and her mother KLA, that KLA was always in and out of the house and also stayed at the appellant’s house on most nights.
SLC gave evidence that when she was at the appellant’s house, which is the venue for Counts 2-5, her mother would leave at about 9 or 10 o’clock in the morning and that SLC would go out with her mother in the afternoon after lunchtime. She was then cross-examined as to whether it was between 10 o’clock in the morning and lunchtime that she said the appellant had sex with her. The following questions were put and answered as follows:
Q.The time that you were in the house without your mother being present was, what, from about 10 o’clock in the morning and lunchtime.
A.Yes.
…
Q.It is that this time you say that your father had sex with you.
A.Yes.
Q.That was holidays, weekends and week days. It was in the morning only when he had sex with you.
A.Or probably at night time.
Q.But you said earlier your mother was back with you at night time.
A.Not all the time.
It was submitted that there was an internal inconsistency and a lack of credibility in SLC initially agreeing that the sexual acts took place between 10 o’clock in the morning and lunchtime, and then later saying it was “or probably at night-time”.
In my view the above passage does not necessarily indicate such an inconsistency. SLC had not given any evidence-in-chief as to the time of day that sexual acts took place. The initial question asked of SLC on this topic was in cross-examination and was put to her as an assumption that the time of sexual acts was the period when her mother was usually away from the house in the morning. The affirmative answer given by SLC to the question, did not exclude that sexual acts also took place at another time. It was later put to SLC that it was “in the morning only”, and in answer to that question SLC indicated it was not only in the morning but also “probably at night time”. It was also indicated by SLC that her mother was not always at the appellant’s house at night. There is in my view no clear inconsistency in the above evidence.
It was further argued by Mr Charman that the evidence of SLC that the commission of sexual acts also occurred at night, especially lacked credibility because it was inconsistent with the evidence regarding the sleeping arrangements which were given by the brother and the mother.
The sleeping arrangements described by the complainant’s brother was that SLC normally slept in the lounge room with him, and his father would sleep in his own room. When his mother stayed the night, she would also sleep in his father’s room.
The evidence of the complainant’s mother was that SLC varied her sleeping arrangements between the lounge room, the spare room and occasionally the end of the bed in the father’s room. She also testified that SLC mainly slept in the lounge room and the spare room, and that JC mainly slept in the lounge room.
SLC’s evidence was that the sexual conduct occurred in the appellant’s bedroom as well as the spare room and the lounge room. She testified that the appellant would either put a chair against the door or lock the door whenever her brother was in the house. She also testified that her brother would sometimes knock on the door to get her to come outside. SLC’s evidence as to the locking of the door or putting a chair against the door was also supported by her brother’s evidence.
Having regard to the whole of this evidence, there is nothing inherently inconsistent about the appellant being found guilty of the offences. There was opportunity for the appellant to commit the offences, either in the mornings when the mother was not there, or on other occasions including night-time when she was absent. The mere fact that the mother may have come in at any time, clearly did not prevent the appellant taking an opportunity when only her brother was there, to be involved in clandestine behaviour with SLC, either behind a locked door, or with a chair against the door, to prevent it from being opened. The evidence by JC and KLA indicated that there were many variations for sleeping arrangements.
Further, at paragraph [66] of his reasons, the learned trial Judge dealt with the alleged inconsistencies in the following way.[11]
He [Mr Charman] pointed to inconsistencies in the evidence of KLA, JC and SLC as to the sleeping arrangements. He stressed what he submitted was the absence of opportunity for the accused to have performed any of the sexual acts, given the presence of JC and the fact KLA may turn up any time.
[11] R v C, AP [2006] SADC 53, [66].
In addition, the learned trial Judge also indicated on numerous occasions in his reasons for decision that he accepted the evidence of SLC, particularly at paragraph [92] in which his Honour stated, “SLC’s evidence as to each of the four remaining counts had a ring of truth about it”. The trial Judge in particular also noted at paragraphs [72] and [73] of his reasons that he found JC:[12]
…was a very impressive witness who was genuinely attempting to tell [him] the truth … I accept his evidence generally and have no doubt that he had seen the accused, and SLC in both the lounge room and the accused’ bedroom over the years with the door locked or with a chair jammed up against the door to keep it locked. While his evidence could not be used to corroborate the evidence of SLC, it is generally supportive of the prosecution case as to the opportunities open to the accused.
[12] Ibid [72]-[73].
The favourable finding of the trial Judge regarding the credibility of JC is the subject of a separate ground of appeal, which I deal with later in these reasons.
In my view, having regard to the whole of the evidence in conjunction with the assessment by the trial Judge of the credibility of SLC and JC, it was open for the trial Judge to be satisfied that there was opportunity for the appellant to commit the offences.
No recent complaint and implausibility
The appellant submitted that there was no recent complaint and that implausible reasons were given for her failure to complain. It was submitted that there was her failure to yell out or tell her brother who was in the lounge room at the time when the offences occurred; a failure to later complain to her mother who was in and out of the house all of the time; a failure to run to her mother’s parents or her mother’s friend who lived a couple of hundred metres away; and further that SLC had denied being sexually abused when specifically asked by her longstanding medical practitioner Dr Allen.
In considering the allegations made concerning her failure to complain, it is relevant to note that SLC was aged between 11 and 12 when the offences in Counts 2-5 took place. When she gave her evidence at trial she was only 14 years old.
When the complainant was cross-examined as to her failure to yell out to JC, she gave the following evidence:
Q.Is there any reason why you simply didn’t yell out to [JC] at the time.
A.NOT ANSWERED.
Q.If you need a little bit of time, you take it.
A.What would I – what would my brother have done if I ever did yell out to him?
Q.Are you alright.
A.Yes.
Q.If you need to take a drink take a drink.
A.No.
It is to be noted that JC was aged between 13 and 15 at the time when Counts 2–5 took place. JC gave evidence that he had been aware of behaviour of his father in relation to SCL and her situation since he was eight years old and he did not raise or report his concerns with any person. JC was examined about this failure to tell anyone, which he acknowledged was the case. The rhetorical response of SLC, “what would my brother have done…” appears to have validity in that situation.
As to why she did not go to her mother’s parents’ house 150 metres away, the following evidence was given:
Q.Isn’t it the fact that you could have yelled out and [JC] could have run to your grandparents’ place.
A.He could of.
Q.Isn’t it the fact that any time you could have run to your grandparents’ place.
A.How could I run there if I didn’t even know if they were home or not.
Q.The fact is you could have run to see whether they were home.
A.I could of, but I wouldn’t waste my energy.
Q.You said you didn’t want to waste your energy.
A.I said I wouldn’t.
She was asked further questions in which she responded:
A.Why go over there if you didn’t know they were there? So if they weren’t there you would have to run all the way back, or run all the way over the country side to see if anyone else were home, plus I was probably little.
Q.Your mother had a friend a couple of hundred metres from your father’s house, is that correct.
A.Yes but she had to work.
…
Q.If something so horrible was happening to you, as you say, isn’t it the fact that you would have taken any chance to leave the house and run and find someone to help.
A.I was scared for my safety. I don’t who if he would have gone in the car and tried to run me over.
Q.You have never made that allegation before, have you.
A.No but he is mad enough to do it.
There was further questioning on the same topic when she repeated that she was scared.
SLC gave an explanation for her failure to complain. There is nothing about her explanation which necessarily lacks coherence. She was only a child at the time of the offences and was still a child when giving evidence. It is very understandable that a young girl being sexually abused by her father would feel vulnerable and fear physical consequences for accusing her father of such conduct. Her father is in a powerful position and she is relatively powerless. Her fear of potential adverse consequences is not inconsistent with the offences having occurred.
As to SLC denying that she had been sexually abused when specifically asked by her practitioner Dr Allen, she was asked a number of questions about this occasion when her mother went with her to Dr Allen. Dr Allen asked her in front of her mother whether she had been sexually abused or had experimented with sex to which the SLC had said “no”. When cross-examined about this she gave the following evidence:
Q.You were with a doctor you had known for a long time.
A.Yes.
Q.And with your mother.
A.Yes.
Q.That would have been the time when you would have said “Yes I have been”.
A.I wouldn’t have told her.
Q.You just say you wouldn’t have told her.
A.I was too scared to tell her.
Q.You were in the company of your mother with a doctor you’d known for a long time.
A.How could I say it to my mum?
Q.After you denied that to Dr Allen, in November 2003.
A.Yes.
Q.Why didn’t you tell your mother after the appointment with the doctor.
A.Because I don’t know what my mum would do.
The trial Judge dealt with the issue of complaint specifically in the following way:[13]
The evidence of course was plain that there was no recent complaint made by SLC, nor was there any evidence of distress in respect of any of the five charged counts or any of the uncharged acts. I am acutely aware that SLC had had many opportunities to complain to her mother and several opportunities to complain to doctors who had directly raised the issue of sexual conduct with her. In fact she had positively denied such abuse. Again the accused gave evidence on oath in which he denied all of the allegations against him.
There was nothing in SLC’s presentation as a witness to suggest any improper motive. Of course I do not pose for myself the improper question of why would she make these allegations? The reason why such a question is improper is because there could be a myriad of reasons, and one should not speculate. Palmer v The Queen (1998) 151 ALR 16.
…
SLC’s evidence as to each of the four remaining counts had a clear ring of truth about it. I reject entirely the evidence of the accused on the remaining four counts and the uncharged acts. I remind myself that it does not follow that the accused is guilty of any charge simply because I have disbelieved him. There is no onus upon the accused to prove anything.
[13] R v C, AP [2006] SADC 53 [89]-[90], [92].

Bearing in mind the age of SLC at the time, and the overall circumstance of her father being the perpetrator, it is understandable that she did not complain to her mother, or to her grandparents or a neighbour. There is nothing in her evidence which necessarily demonstrates an improbable explanation for her failure to complain. The absence of complaint was specifically addressed by the learned trial Judge. His Honour correctly considered the potential for an improper motive. His Honour was impressed with the evidence of SLC, which contrasted with his assessment of the evidence of the appellant.
In summary, there is nothing unreasonable about the verdict. There is an explanation for her failure and it was open for the trial Judge to find the accused guilty of the offences not withstanding her failure to complain.
I therefore reject the appellant’s argument.
Count 2 - Evidence different from an earlier statement given to police – the use of gel
This ground alleged that the complainant’s evidence in relation to Count 2 was implausible as a result of a difference between her evidence and earlier statements given to police on 10 January and 23 January 2005. In those statements SJC said that before performing the act of anal intercourse, the appellant had put “slippery gel stuff” on his penis. She said the appellant had used gel on other occasions. In her words “sometimes dad would put some slippery gel on his thing and he would put it inside me”. She also said in her statement of 10 January 2005, that the gel was stored in the kitchen.
The appellant submitted that these earlier statements of SLC to police were inconsistent with her evidence in court and indicated that her account of the anal/vaginal intercourse was implausible. The contention of Mr Charman was that the combination of the following matters led to the inconsistency and implausibility of her account, namely, that SLC when giving her evidence in court:
·did not give evidence about the use of gel before the anal intercourse;
·agreed that the gel was kept in the kitchen;
·agreed that in order to get to the kitchen from the spare room where SLC said that the offence occurred, the appellant would have to walk from the bedroom to the kitchen down a passage way;
·did not mention that the appellant had gone to the kitchen, but instead gave evidence that the appellant followed her into the spare room and remained until leaving after the offence had occurred;
·agreed that the offences occurred at a time when there was a possibility of her brother being in the lounge room and the mother possibly being home.
It was submitted that her evidence was implausible and should have been rejected by the trial Judge.
In order to address this argument, it is necessary to review her evidence on this topic.
SLC in examination-in-chief described the anal intercourse, but made no mention of the use of any gel. Her attention was not directed to the topic until cross-examination.
In cross-examination she was asked:
Q.He didn’t leave the room at any stage, is that correct.
A.Yes.
Q. Then he pushed you down on your front.
A.Yes.
Q.And he then placed his penis into your bottom.
A.Yes.
Q.And that happened almost immediately upon you going into the room, is that correct.
A.Yes.
Q.And your father, you say, followed you into the room immediately, is that correct.
A.Yes.
Q.He shut the door immediately, is that correct.
A.And locked it.
Q.And he didn’t leave and you didn’t leave until such time as he finished, is that correct.
A.Yes.
Q.And after he’d finished you both got up and went back outside.
A.Yes.
Q.Can you remember where [JC] was at that time.
A.He was in the lounge room.
Q.And you say this happened in the spare room, is that correct.
A.Yes.
In relation to the statement given by her on 23 January 2005, the following questions were put to her in cross-examination:
Q.In your statement of 23 January, do you remember saying that your father kept some gel.
A.Yes.
Q.Do you remember where he kept that gel.
A.He kept it in the medicine cabinet.
Q.Where was the medicine cabinet.
A.It was in the kitchen. Near on the left corner.
…
Q.If someone wanted to walk from the spare room to the kitchen.
A.Yes.
Q.They would have to go down the passage way, past that door opening from the kitchen to the lounge, to near where the fridge is, is that correct.
A.Yes, but the medicine cabinet is near the toilet in the corner.
…
Q.You gave evidence yesterday that there was only one occasion when your father placed his penis in your bottom, is that correct.
A.Yes.
Q.I think I’ve just asked you some questions which you answered by saying that he followed you into the room and stayed in the room at all times.
Thereafter over three pages, she was cross-examined about the gel and her evidence was as follows:
Q.But in your statement of 10 January, you say that he placed some of this slippery gel on his penis.
A.Yes, but I didn’t see where he got it from.
…
Q.At no stage yesterday or today did you even mention the fact that, on this occasion, he had slippery gel on his penis when he placed it into your bottom, did you.
A.No.
Q.That’s different to what you said in your statement of 10 January, isn’t it.
A.Yes.
In relation to this evidence, firstly no further questions were put to establish whether or not SLC adopted what she had said in her earlier statements about the use of gel, having been reminded about the topic only when being cross-examined. Secondly, the alleged inconsistency was a failure to give evidence about the use of gel on that particular occasion, being an inconsistency by omission rather giving differing evidence as to the use of gel. Thirdly, this omission is in the context of the appellant having used gel on other occasions. Fourthly, her answers as to the gel being kept in the kitchen is not necessarily inconsistent with the appellant following her into the spare room and remaining there. In cross-examination about her statement given on 10 January 2005 in relation to the use of the gel, she said that she did not see where the gel came from.
In short, whilst there is an inconsistency by omission of the evidence of SLC on the use of the gel, that does not suggest in the circumstances set out above, that the verdict on Count 2 is unsafe or unsatisfactory by reason of that evidence.
Counts 4 and 5 – Implausible evidence
A further argument was addressed on the implausibility of her account in relation to Counts 4 and 5, namely, that after the anal penetration occurred, SLC gave evidence that he pulled his penis out and “rushed to the bathroom and chucked the condom away”. SLC was cross-examined about what was submitted as her implausible evidence, to explain why her mother never saw such acts. In summary, her evidence was to the effect that if her mother had returned the appellant, her father would have jumped up quickly; that she would have heard the car; or if her mother had walked instead of driving, her mother would have knocked at the door, as she did not remember her mother having keys to get into the appellant’s house. In my view, this evidence is not implausible and it does not suggest that the finding by the trial Judge was not open on the evidence. The trial Judge specifically and appropriately directed his attention to these arguments of counsel and stated as follows:[14]
In considering these two counts together I was conscious of the submissions made by Mr Charman as to the suggested implausibility of the evidence of SLC as to the evidence as to the use of the condom and how the accused allegedly disposed of it.
I have considered in respect of these two counts the Longman and other directions, and the findings in count 1.
The evidence of SLC in respect of both the penile/vaginal intercourse shortly after her 13^th birthday and its particularly with respect to the “glow-in-the-dark condom” and the placement of the pillow was so compelling that I have no doubt that it occurred in the manner deposed by SLC. As to the touching of the breasts that evidence was again given without any embellishment. It was quite particular. She did not suggest the direct touching of flesh on flesh. She was quite clear that the touching occurring by the accused feeling her breasts through the fabric of her bra.
I am satisfied that the prosecution case has proved beyond reasonable doubt counts 4 and 5. Again I am convinced that there is no reasonable possibility consistent with the accused’s innocence despite his denials of the offending.
Given the finding of the trial Judge about the compelling nature of her specific detailed evidence and its credibility, I reject the appellant’s argument.
[14] R v C, AP [2006] SADC 53, [104]-[107].
Acceptance of the evidence of JC
It was submitted by counsel for the appellant, that the trial Judge’s acceptance of the evidence of JC in support of there being an opportunity to commit the offences, was done in circumstances where the evidence of JC was entirely implausible. In particular, reliance was placed on the evidence of JC in which the following evidence was given:
Q.You indicated that in some circumstances you looked under the door.
A.Yes.
Q.How big was the crack under the door, half an inch. Do you know what half an inch is, or 1cm.
A.Yes, it’s probably 2cm.
Q.You say that you, what, put your head on the ground at the bottom of the door, is that correct.
A.Yes.
Q.You say that from putting your head on the ground and looking under the door you could see inside the room.
A.Yes.
Q.If I suggested to you that simply that is impossible what would you say to that.
A.I would say how come it can’t be possible. I seen what I saw.
Q.I am suggesting that all you could see at most, if you look under the door, is perhaps a few feet of the floor the other side of the door. What do you say about that.
A.NOT ANSWERED.
Q.You are not able to answer that.
A.Yes.
Q.By saying yes are you saying you can’t answer it.
A.Yes.
In relation to this evidence of JC, none of the evidence given by him was directed to the five charged offences. The evidence concerned uncharged acts. His evidence was that he had seen the accused and SLC in rooms together “having sex”. The evidence of JC was dealt with in some detail in his Honour’s reasons at paragraphs [49]-[53], including a reference to the evidence of JC checking through “a slight gap under the door”. His Honour was clearly mindful of the precise point raised by counsel at the time, which point was repeated before this Court on appeal.
In relation to the evidence of sexual conduct, his Honour indicated that JC had admitted that they were “merely assumptions, which he had drawn”. It is clear from the reasoning of the trial Judge that the supporting evidence found by the trial Judge was limited to his acceptance that JC had given evidence that the accused and SLC were both the lounge room, and in the accused’s bedroom on occasions over a number of years, with the door locked, or with a chair jammed up against the door to keep it locked. His Honour was therefore mindful of the assumptions made by JC and also correctly used the acceptance of this evidence as significant in supporting the prosecution case as to the opportunities open to the accused to commit sexual offences on SLC.
The appellant’s conduct was highly suspicious and supportive of furtive behaviour in relation to SLC. Further, the evidence of JC accorded with the specific evidence of SLC about the doors being locked or jammed by a chair on occasions when the appellant committed sexual acts on her, and her brother knocking on the door to get her to come out. The fact that only one inch gap was available for JC to allegedly see the sexual acts is less relevant given that in cross-examination that he agreed that had made assumptions about the sexual conduct of the appellant, in relation to SLC. Of greater importance is the suspicious and furtive conduct of the appellant and that the trial Judge formed the view that JC was “a very impressive witness who was genuinely attempting to tell the truth”.
Whilst this Court on appeal is not bound to act upon the views of the trial Judge as to the credibility of JC, the Judge appropriately restricted the use which could be made of the evidence of JC to those matters on which he found him to be consistent and plausible, and did not for example rely on the evidence JC as supporting that the appellant was seen to have engaged in sexual acts with SLC. Having read the evidence of JC, I consider that the approach of the trial Judge was open to him and was correct. I therefore reject the appellant’s submission.
Verdict of not guilty on Count 1 indicated that the verdicts on Counts 2–5 were unsafe and unsatisfactory
The essential argument of the appellant was that bearing in mind that the evidence of SLC was uncorroborated, that SLC had a positive recollection of the incident in Count 1 and yet the appellant was found not guilty of Count 1 but guilty of Counts 2–5, indicated that the verdict with regards to Counts 2–5 was unsafe or unsatisfactory.
It was argued that the finding of not guilty on the first count, suggested that the plausibility and credibility of SLC were undermined because the trial Judge did not find Count 1 proved beyond reasonable doubt.
His Honour in his reasons for decision dealt with Count 1 in some detail at paragraphs [25 ]-[ 28] and [75]-[ 87]. In particular at paragraph [85] where His Honour said as follows:[15]
Count 1 as in a different category to the other charged acts. I have no doubt that she had to reflect in late 2004 as to when the alleged sexual contact with the accused had commenced. The remaining four counts related to events which were allegedly relatively recent within her memory namely between the ages of 11 and approximately 13 years.
I had the opportunity to observe SLC’s demeanour in the witness box and the simple manner in which she expressed her relationship with the accused over that number of years.
I do not accept the submission of Mr Charman that because I do not accept the reliability of SLC’s evidence in respect of count 1 that I cannot be satisfied beyond reasonable doubt of the remaining four counts. However given my concern about her evidence on count 1, I have quite strictly and carefully scrutinised her evidence with respect to each of the remaining counts and the uncharged acts.
[15] R v C, AP [2006] SADC 53, [85].
His Honour therefore specifically addresses the submissions made to him by Mr Charman and explains why it is that he places Count 1 in a different category from the other charged acts. Further he also stated at paragraph [82].
I have no doubt that she genuinely and honestly believes that an event occurred at Wickstein Close, in which, to put it neutrally, she was sexually abused by the accused. While I have no doubt that the incident, the subject of count 1 did not occur at age 3 or 4, I am satisfied that SLC has merged in her mind subsequent events with an event which occurred at Wickstein Close. She has therefore reconstructed when it was that the first penetrative sexual conduct must have occurred.
The trial Judge did not find a lack of genuineness and honesty of the evidence of SLC. On the contrary, the trial Judge expressed no doubt that the incident which was the subject of Count 1 had occurred, but he was not satisfied that it had occurred when SLC was aged three or four. Her credibility overall was therefore not impaired and the trial Judge was simply not satisfied of that particular offence having been committed when she was that age. There is no basis for suggesting that the verdicts in relation to Counts 2-5 lacked sufficient cogency[16] and are thereby rendered unsafe or unsatisfactory.
[16] Jones v The Queen (1997) 191 CLR 439.
Erroneously used uncharged acts
The learned trial Judge made the following use of uncharged acts:[17]
I admitted the evidence of both the specific and non-specific uncharged sexual acts for quite limited purposes. It places the last four counts on the Information in context. It could explain the accused’s confidence, both, that SLC would submit to the charged sexual acts, and in the accused taking opportunities to commit offences notwithstanding the presence of JC and the proximity of KLA. It could also explain the failure of SLC to complain and as to why she may be uncertain as to precise dates, if the charged acts were part of a pattern that continued for some time. It was not led by the prosecution as propensity evidence.
It may however be used by the accused in assessing SLC’s honesty and reliability. I can only use this evidence of the specific and non-specific uncharged acts for the purposes I have identified. I must not use the evidence of uncharged acts nor indeed of the other charged acts to reason that (if they or any of them are proved to my satisfaction), the accused is the sort of person who is likely to have committed any of the charged offences.
…
Uncharged acts
Notwithstanding R v IK, I am satisfied beyond reasonable doubt that all of the specific and non-specific uncharged acts occurred in the manner deposed to by SLC. I accept that there was some confusing evidence about the size of the bath and whether it was physically possible for it to have occurred in the manner suggested. I am not left in any reasonable doubt that it did so occur. The evidence given about the other uncharged acts was compelling both in the manner in which SLC gave that evidence but also in its particularity. I repeat that I may only use this conduct in the manner I have previously indicated. In this case it places the charged acts in context and provides an explanation as to why no complaint was made. It is evidence of the confidence of the accused that he could exploit the opportunities available to him and that his conduct would not be exposed to KLA. I have reached this conclusion conscious of the Longman direction as to this conduct and of my expressed concerns about the credibility of SLC in respect of count 1.
[17] R v C, AP [2006] SADC 53, [37] and [94].
It was argued that the trial Judge in stating in paragraph [38] that the uncharged acts may in addition “be used in assessing SLC’s honesty and reliability”, went beyond the use which was set out by Doyle CJ in R v Nieterink,[18] by suggesting that it could be used to “bolster” the evidence of SLC .
[18] (1999) 76 SASR 56, 65
It was submitted that the relevance of uncharged acts was limited to those matters described by his Honour the Chief Justice, namely: [19]
·understanding the context of the alleged offences;
·explaining how a particular incident did not “come out of the blue”;
·disclosing series of incidents which make it believable or understandable that the victim may not have complained about the charged incidents;
·showing a pattern of behaviour of the accused by which the accused obtained submission of the victim and a pattern of guilt;
·explaining uncertainty about precise dated of offences charged; and
·are relevant to establishing a sexual attraction of the accused to the victim.
[19] Ibid.
There is no suggestion in Nieterink that relevance is restricted to the matters specifically outlined by the Chief Justice. The trial Judge correctly stated that the uncharged acts could not be used as propensity evidence, to show that if they were proved that the accused is the sort of person who would be likely to commit the offence. The trial Judge specifically indicated that he was using the uncharged acts to explain context, as providing an explanation of why no complaint was made and why the appellant was able to exploit opportunities without his conduct being known to KLA. It is implicit in such use, that it was necessary for the trial Judge to assess the credit and reliability of the complainant on the uncharged acts before they could be so used.

A complainant’s evidence about uncharged acts forms part of their evidence which of course includes evidence about the specific acts charged. It follows that the uncharged acts may be used in assessing the honesty and reliability of SLC as stated by the trial Judge. This is not using uncharged acts to “bolster” the evidence of SLC, nor is it using uncharged acts for an improper purpose. I reject the appellant’s argument.
The appellant further argued in respect of the uncharged acts that one of the uncharged acts, being the evidence by SLC of the “bath incident” which occurred close to SLC’s 12^th birthday, was implausible. This was discussed in the reasons of the trial Judge at paragraph [46], and the trial Judge concludes at paragraph [94] that whilst he found SLC’s evidence on this point “confusing” as to whether it was physically possible to have occurred in the manner described by SLC, nonetheless he finds that he did not have any reasonable doubt that it had occurred. SLC’s evidence does not satisfy me that the trial Judge erred in his assessment of this issue. In any event it was one of four specific uncharged acts, the other three uncharged acts are not challenged on appeal.
No sufficient basis to reject the evidence of the appellant
The trial Judge made the following findings as to the credibility of the appellant:[20]
Even making allowance for the stressful position in which the accused found himself while giving his answers to the police, and when cross-examined and indeed for his apparent poor memory, I find that he was a most unimpressive witness. None of what he said had the ring of truth about it.
[20] R v C, AP [2006] SADC 53, [91].
By contrast he considered that the evidence of SLC had “a ring of truth about it” and stated:[21]
SLC’s evidence as to each of the four remaining counts had a clear ring of truth about it. I reject entirely the evidence of the accused on the remaining four counts and the uncharged acts. I remind myself that it does not follow that the accused is guilty of any charge simply because I have disbelieved him. There is no onus upon the accused to prove anything.
[21] Ibid [92].
The appellant claims that there were insufficient reasons given by the trial Judge for his conclusions. In considering this criticism I note the comments made by Doyle CJ in R v Keyte[22] in which he said at page 81:
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[22] (2000) 78 SASR 68, 81.
In my view, it is not necessary for the trial Judge to detail the examples of the appellant’s apparently poor memory, which was apparent over a number of passages of transcript, or for him to give reasons why he found the appellant to be unimpressive. One could rhetorically ask what further words should be used to convey the conclusion that the trial Judge did not accept evidence of the appellant as truthful for the short reasons given.
In conclusion on Ground 3, none of the matters raised either individually or collectively as to alleged inconsistencies or lack of corroboration of the evidence of SLC, persuade me that the verdicts of the Judge were either unreasonable or could not be supported having regard to the evidence, or were unsafe and unsatisfactory leading to a miscarriage of justice. I therefore reject the appeal on the grounds set forth in Ground 3.
Ground 2 – Failure to warn or direct
In view of the concession made by Mr Charman, the rejection on Ground 3 also disposes of the appeal on the basis of Ground 2.
Ground 1 – Failure to give adequate reasons
I have dealt with some aspects of this alleged failure to give reasons in considering Ground 3, but I now do so having regard to the specific requirements to give reasons.
It has been recognised that a failure to provide reasons or adequate reasons amounts to an error of law.[23]
[23] R v Keyte (2000) 78 SASR 68, 75-79; More recently Papps v Police (2000) 77 SASR 210 at 215-218.
In the decision of Keyte, the Full Court in the leading judgment of Doyle CJ, indicated that whether or not reasons are adequate will depend upon the particular circumstances of an individual case.[24] The Full Court did not consider it appropriate to give a comprehensive overview of the extent to which there is an obligation to give reasons.[25] In many ways this could not be done because of the differing nature of cases.
[24] R v Keyte (2000) 78 SASR 68, 81.
[25] Ibid, 79.
So far as there has been judicial recognition of the extent of the obligation to give reasons, generally this has been an expression as to what was not required, as distinct from what was required.
In Soulemezis v Dudley (Holdings) Pty Ltd[26] Kirby P, as he then was, indicated that a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process was not required.
[26] (1987) 10 NSWLR 247, 259.
In that same case Kirby P adopted the approach taken by Mahoney JA when he said that the obligation to give reasons for decision does not require lengthy or elaborate reasons, but it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
Further, Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd[27] indicated that the basis of the decision of a trial Judge should be made apparent and that reasons need be given only so far as is necessary to indicate to the parties why the decision was made and how to allow them to exercise such rights as may be available to them in respect of it.
[27] (1983) 3 NSWLR 378, 385-386.
In this case the trial Judge gave extensive reasons. For the reasons as indicated previously in Ground 3, the major issues which were raised in the trial were dealt with. A number of the matters which had been of concern to the Full Court in R v Nieterink,[28] were not problems in this case. As to the matters of credibility, I have already referred to the observations of Doyle CJ and that there is not a need to provide detailed explanation when the relevant decision rests substantially upon the impression made by the witness when giving evidence.
[28] (1999) 76 SASR 56.
In this case the trial Judge clearly did not rely simply on the demeanour of witnesses, but on other matters such as the particularity of the information given by SJC who was only a child at the time, the plausibility of the evidence, and in the case of the appellant, the unimpressive answers he gave to police, and his evidence, which I have previously adverted to.
In these circumstances I consider there is no basis for suggesting that there was a failure by the trial Judge to give adequate reasons and I reject the first ground of appeal.
In conclusion, contrary to the vigorous submissions made by Mr Charman, the trial Judge appears to have been comprehensive and accurate with his directions, warnings, and assessment of the evidence. He specifically addressed the more important allegations of inconsistency, and there is no foundation for criticism of his findings or the verdicts, which in my view are amply supported by the evidence.
The appeal should be dismissed on all grounds.
DAVID J. I agree with the reasons of Layton J. I would dismiss the appeal.