R v CH - [2016] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v CH
[2016] SASCFC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Doyle)
27 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE
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 - EXTENT OF OBLIGATION TO GIVE REASONS
EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL - YOUNG CHILDREN
Appeal against conviction.
The Appellant was charged in the Youth Court with five counts of indecent assault of a child under 14 years old.
At trial, the complainant, who was 11 years old, gave evidence on oath deposing to the conduct the subject of the charges. The appellant gave evidence on oath denying that conduct.
A Judge found the first count proved and, although he accepted the complainant’s evidence that the conduct occurred more than once, found that the remaining counts were not proved because they were not adequately delineated.
The appellant appeals against the conviction on the grounds that:
1.       the Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry into her understanding of the oath obligation;
2.       the Judge failed to give adequate reasons for the decision; and
3.       the finding of guilt was incapable of being supported having regard to the evidence.
Held (Blue J, Stanley and Doyle JJ agreeing):
1.       The Judge did not err in not conducting an inquiry into the complainant’s understanding of the oath obligation before she gave evidence (at [37]).
2.       The Judge's reasons for decision were not inadequate (at [112]).
3.       The finding of guilt was capable of being supported having regard to the evidence (at [116]).
4.       Appeal dismissed (at [117]).
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 9, s 34CA, s 34LA, s 34M, referred to.
H, SA v Police (2013) 116 SASR 547; Nichols v Police (2005) 91 SASR 232; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Beard [2004] SASC 411; R v Byerley (2010) 107 SASR 517; R v Dennis (2010) 202 A Crim R 453; R v French (2012) 114 SASR 287; R v J, JA (2009) 105 SASR 563; R v Keyte (2000) 78 SASR 68; R v P, BR [2004] SASC 323; R v Power (2003) 141 A Crim R 203, discussed.
Papps v Police (2000) 77 SASR 210, considered.

R v CH
[2016] SASCFC 112
BLUE J:

This is an appeal against conviction.
The appellant was found guilty by a Judge of the Youth Court of indecent assault of a child under 14 years old.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 56(1).
The appellant appeals against the conviction on the grounds that:
1.the Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence;[2]
2.the Judge failed to give adequate reasons for the decision;[3]
3.the finding of guilt was incapable of being supported having regard to the evidence.[4]
[2]    Ground 2 in the notice of appeal but argued first.
[3]    Ground 1 in the notice of appeal but argued second.
[4]    Ground 3 in the notice of appeal.
Factual circumstances
In term two of 2012, the appellant was 14 years old in year 9 at a country area school. The complainant was nine years old in year 4 at the same school. They each travelled to and from school in a school bus. The complainant lived approximately 45 kilometres from the school at the end of the bus route. The appellant lived approximately 25 kilometres from the school part way along the bus route.
The complainant gave evidence that on one occasion travelling home on the bus the appellant put one hand on her mouth and pulled her upper body towards his lap. She gave evidence that on a subsequent occasion he reached into her knickers from the back, touched the front of her vagina and pulled. She gave evidence that this occurred on four or five occasions.
On 1 July 2012, the complainant told her mother that the appellant had been putting his hand inside her knickers. On 17 July 2012, they met with the school principal and coordinator and the complainant gave a brief account of the touching.
On 20 July 2012, the appellant was informed of the general nature of the allegations by a police officer.
On 26 July 2012, the complainant was interviewed by a police officer. While an audio visual record was made of the interview, it was subsequently lost by the police and only a synopsis based on viewing the audio visual record survived.
On 24 August 2012, the appellant was formally interviewed, declining to answer substantive questions on legal advice.
On 21 February 2013, the appellant was charged with five counts of indecent assault.
On 7 March 2014, the complainant was re-interviewed by another police officer. An audio visual record was made of the interview.
The trial proceeded in June, July and August 2014. On the second day of his evidence, the appellant displayed unusual behaviour and gave unusual answers in cross-examination. The trial was adjourned and he was later diagnosed as suffering from a major depressive illness with psychotic features. In September 2015, the trial resumed and he completed his evidence.
In November 2015, the Judge delivered reasons for judgment finding count 1 proved but counts 2 to 5 had not been proved because the evidence did not sufficiently delineate subsequent occasions.
The Judge’s reasons
The Judge narrated the history of the matter in some detail to explain why the matter took so long to reach judgment. The Judge summarised the complainant’s evidence in respect of count 1 and her evidence that the appellant’s conduct was essentially similar on subsequent occasions. The Judge recorded that the appellant denied any inappropriate touching in his police interview and in his evidence.
The Judge referred to rulings made during trial rejecting the admission of evidence under section 34CA of the Evidence Act 1929 (SA) (the Evidence Act) of statements made by the complainant on 17 July 2012, 26 July 2012 and 7 March 2014.
The Judge held that the evidence of the complainant’s mother of the initial complaint on 1 July 2012 was admissible for the limited purposes specified in section 34M of the Evidence Act. The Judge held that evidence of the statement by the complainant on 17 July 2012 was not admissible as evidence of initial complaint.
The Judge referred to evidence about what his Honour characterised as peripheral incidents and said that it did not impact adversely on the complainant’s reliability or credibility in relation to the central allegations of indecent assault.
The Judge said that his Honour was persuaded beyond reasonable doubt that the appellant was giving a truthful version of the essential elements that happened to her and that the appellant touched her in the manner she described on more than one occasion during the bus trips. The Judge found that count 1 was proved beyond reasonable doubt. The Judge said that, although he accepted the complainant’s evidence that the conduct occurred more than once, because the evidence of the other occasions was generic and non-specific, counts 2 to 5 had not been adequately delineated and proved beyond reasonable doubt.
Inquiry into understanding of sworn evidence
The first ground of appeal is that the Judge erred in allowing the complainant to give sworn evidence without conducting an inquiry whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
Section 9 of the Evidence Act relevantly provides:
9—Unsworn evidence
(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)     the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)    tells the person that it is important to tell the truth; and
(b)     the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
Section 9 does not expressly address whether or in what circumstances a Judge should embark upon an inquiry under subsection (3) whether a person may not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (the oath obligation) under subsection (1). However, as a matter of statutory construction, three principles are now clearly established:
1.The starting point is the presumption that a person has sufficient understanding of the oath obligation and, absent good cause, a judge is not obliged to embark on an inquiry into that question.
2.What amounts to good cause depends on the particular circumstances of the case drawn to or coming to the attention of the judge.
3.The mere fact that the person is a child does not amount to good cause but ordinarily an inquiry will be warranted when the child is of very tender years.
In R v P, BR,[5] Mullighan J (with whom Nyland and Anderson JJ agreed) said:
I do not think that there is any obligation on the part of a judge to conduct any inquiry under s 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted. Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, although it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given or of what a witness has said in a statement or otherwise to an investigator which suggests the need for an inquiry. Information provided by counsel may require an inquiry to be undertaken. It is not difficult to think of other reasons. S 9(1) does not require an inquiry merely because the person is a young child.
…
The first observation to be made is whether there was any need to conduct an inquiry in relation to any of the girls. There is nothing about their respective ages which demanded an inquiry. If that was so, the law would have remained as in the repealed s 12(1) under which a young child could not take an oath unless the judge was satisfied that the child understood the obligation of an oath. That was a condition precedent to the taking of the oath. Under s 9(1) a young child, like any one else, is presumed to be capable of giving sworn evidence unless the judge determines that he or she does not have the requisite understanding.[6]
[5] [2004] SASC 323.
[6] At [119], [122].
In Nichols v Police,[7] Gray J said:
There is no obligation on the part of the judge to conduct any inquiry under s 9(1) unless there is some matter relating to the person who is to give evidence which raises in the judge’s mind that the presumption may be rebutted. Mental illness or psychological impairment may suggest such an inquiry is required. Mere young age does not, but it is to be expected that there will usually be the need to conduct some inquiry of a child of very tender years. There may be features of the evidence to be given, or of what a witness has said in their statement, or otherwise to an investigator, which suggests the need for an inquiry.[8]
[7] [2005] SASC 106, (2005) 91 SASR 232.
[8] At [31].
In R v French,[9] Sulan J (with whom Gray and White JJ agreed) said:
The legal principles relating to unsworn evidence can be summarised as follows:
·Section 9(1) presumes a person capable of giving sworn evidence. There is no obligation to conduct an inquiry as to the ability to do so unless some matter relating to the person raises in the judge’s mind that the presumption may be rebutted. No such inquiry is required merely because the person is a child, though an inquiry will usually be necessary of a child of very tender years.
·If a matter raises in a judge’s mind that the s 9(1) presumption may be rebutted, the judge must determine whether the person has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.[10]
[9] [2012] SASCFC 118, (2012) 114 SASR 287.
[10] At [35].
During opening address, the police prosecutor foreshadowed an intention to lead evidence under section 34CA of the Evidence Act of three out of court “statements” made by the complainant. The first was on 17 July 2012 to the school principal P, school coordinator (described by P as the vice principal) VP and the complainant’s mother M (the school meeting) but there was no verbatim record of it (only recollections of the participants and P’s notes). The second was on 26 July 2012 to Senior Constable Bryson (the 2012 police interview) but there was no verbatim record of it (only the recollection of Senior Constable Bryson based on notes). The third was a video recorded interview undertaken on 7 March 2014 by Senior Constable Burden (the 2014 police interview).
The structure and drafting of section 34CA, which has since been replaced by the quite different section 34LA, was extremely unfortunate and gave rise to great complexities and difficulties of construction, some of which were identified by this Court in R v J, JA,[11] R v Byerley[12] and H, SA v Police.[13] Those complexities included the interaction between section 34CA and section 9.
[11] [2009] SASC 401, (2009) 105 SASR 563 at [41]-[42] and [56]-[59] per Duggan J (with whom Nyland J agreed) and [160]-[162] and [169]-[180] per White J.
[12] [2010] SASCFC 3, (2010) 107 SASR 517 at [18]-[35] per Doyle CJ, [53]-[56] per White J and [77]-[115] per Kourakis J.
[13] [2013] SASCFC 86, (2013) 116 SASR 547 at [53] per Kelly J, [125]-[168] per Blue J and [180]-[190] per Nicholson J.
During opening address, the police prosecutor submitted to the Judge that the effect of the decisions of this Court was that before the Judge could admit evidence of any of the three “statements” by the complainant pursuant to section 34CA, the Judge would first have to conduct an inquiry under section 9 and be satisfied that the complainant had sufficient understanding of the oath obligation. This was a misconception of section 34CA and the decisions of this Court concerning it, as was pointed out by counsel for the appellant in submissions to the Judge.
The prosecutor did not suggest to the Judge that the complainant might lack sufficient understanding of the oath obligation. Counsel for the appellant made a strong submission to the Judge that there was no reason to conduct an inquiry under section 9. Counsel for the appellant said:
I don't have any evidence at all from anyone that there is anything in this child who is now aged 11 which would suggest - and her mother's statement certainly doesn't suggest it - suggest that she wouldn't be capable of giving sworn evidence.
The prosecutor also sought the admission of evidence of “complaints” by the complainant to her school friend F in 2012, M on 1 July 2012 and P, VP and M on 17 July 2012.
The Judge proceeded to hear evidence on the voir dire from P, VP, M, Senior Constable Bryson and F relevant to the admissibility of evidence of the three “statements” pursuant to section 34CA and the three “complaints” pursuant to section 34M of the Act. The Judge also heard evidence from the school bus driver B concerning her observations of and interactions with the complainant and the appellant.
The Judge made rulings at the conclusion of the voir dire rejecting the admission of evidence of the three “statements” under section 34CA.[14] The Judge ruled that evidence of M of what she was told by the complainant on 1 July 2012 was admissible, and subject to determining whether it contained an elaboration upon that first complaint the evidence of P and VP of what they were told on 17 July 2012 was admissible, as evidence of complaint under section 34M (although ultimately the Judge did not admit the evidence of P or VP as evidence of complaint for lack of elaboration).
[14] The first two statements were rejected because the Judge was not satisfied that they had sufficient probative value to justify their admission, which is not surprising given that there was no verbatim account of what the complainant had said. The third statement was rejected as a matter of discretion because it was taken two years after the events in question and only three months before commencement of trial.
The prosecutor then called the complainant to give evidence. No issue was raised as to her capacity to give evidence on oath. She gave evidence on oath and was cross-examined.
On appeal, the appellant accepts that there was no obligation by the Judge to conduct an inquiry under subsection 9(1) into the complainant’s understanding of the oath obligation by reason of the complainant’s age alone (the complainant being 11 when she gave evidence). The appellant accepts that at the beginning of the prosecution case there was no reason for the Judge to conclude that an inquiry should be conducted. However, the appellant contends that by the time the complainant was called to give evidence the position had changed because the Judge had by then heard evidence of her accounts given in July 2012, and her account given on 7 March 2014 had notably shifted from those earlier accounts.
It is significant that no suggestion was made by the appellant at trial that the Judge should conduct an inquiry into the complainant’s understanding of the oath obligation due to variations in her accounts or for any other reason. Nor was there any suggestion by the prosecutor when the complainant was called that the Judge should conduct an inquiry. The appellant’s attitude from the outset of the trial was that there was no need to conduct an inquiry. It may be accepted that if objectively there is good reason to conduct an inquiry a trial judge should take the initiative and invite submissions from the parties on that question: the mere fact that the parties do not request an inquiry is not fatal to a contention that it should have been conducted. However, particularly in circumstances such as the present case, the attitude of the parties is a good guide to the objective question whether there is good reason to conduct an inquiry.
The alleged differences between the accounts given by the complainant in July 2012 and in March 2014 (or more particularly during her sworn evidence given in 2014) are considered in detail in the context of the next ground of appeal involving adequacy of the Judge’s reasons. The alleged differences between the evidence given by other witnesses and the complainant’s accounts are also considered in detail in that context. These alleged differences did not give rise to good reason for the Judge to conduct a subsection 9(1) inquiry.
It may be observed that in most trials there are differences between accounts given by different witnesses and between accounts given by the same witness at different times. The mere existence of such differences does not usually give rise to the need for a subsection 9(1) inquiry into the understanding of the witness of the oath obligation. Given the limited nature of a subsection 9(1) inquiry, it would not usually be appropriate to explore such differences on such an inquiry. This is not to say that the nature of a witness’s account might not be so extraordinary on its face, or conflicts and inconsistencies in a witness’s account might not be so grave, as to call for a subsection 9(1) inquiry. However that is not this case.

This ground of appeal is not established.
Adequacy of reasons
It is common ground that a judge sitting alone has an obligation to give adequate reasons for the verdict.[15]
[15] Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA and 387-389 per Moffitt JA (with whom Manning JA agreed); Papps v Police [2000] SASC 183, (2000) 77 SASR 210 at [33] per Gray J (with whom Olsson and Wicks JJ agreed); R v Keyte [2000] SASC 382, (2000) 78 SASR 68 at [51] per Doyle CJ (with whom Wicks J agreed) and [64] per Williams J.
The matters on which reasons are required to be given, and the depth of those reasons, will vary depending on the issues and evidence in the case. Ordinarily, the reasons will need to address at least the essential grounds of the decision, namely contested substantial issues of law and contested substantial relevant issues of fact.[16]
[16] Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA approved in Papps v Police (2000) 77 SASR 210 at [24] per Gray J (with whom Olsson and Wicks JJ agreed) and R v Keyte (2000) 78 SASR 68 at [44] per Doyle CJ (with whom Wicks J agreed).
In Pettitt v Dunkley,[17] Asprey JA said that:
where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose.[18]
Moffitt JA (with whom Manning JA agreed) said:
It is against this background that the judicial duty to give reasons must be examined in order to determine when error arises in giving no reasons. It is neither possible nor desirable precisely to define the area of that duty. However, at least, if a case involves mixed questions of fact and law and is such that once the facts are determined in a particular way or ways its resolution will involve some considerations of law, it is the duty of the judge, unless there are exceptional circumstances, to give some indication of the basis of his decision. The purpose of so doing, of course, is directed to indicating his decision on the law either directly or by inference from the facts he has found.[19]
[17] [1971] 1 NSWLR 376.
[18] At 382. This passage was approved by this Court in Papps v Police (2000) 77 SASR 210 at [24] per Gray J (with whom Olsson and Wicks JJ agreed) and R v Keyte (2000) 78 SASR 68 at [44] per Doyle CJ (with whom Wicks J agreed).
[19] At 390.
In Soulemezis v Dudley (Holdings) Pty Ltd,[20] in passages subsequently approved by this Court, Kirby P said:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.[21]
Mahoney JA said:
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.[22]
McHugh JA said:
If an obligation to give reasons for a decision exists its discharge 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. In many cases the reasons for preferring one conclusion to another also need to be given.[23]
[20] (1987) 10 NSWLR 247.
[21] At 259. Approved in Papps v Police (2000) 77 SASR 210 at [24] per Gray J (with whom Olsson and Wicks JJ agreed) and R v Keyte (2000) 78 SASR 68 at [44] per Doyle CJ (with whom Wicks J agreed).
[22] At 271 (quoting Mahoney JA in Housing Commission f New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). Approved in R v Keyte (2000) 78 SASR 68 at [49] per Doyle CJ (with whom Wicks J agreed).
[23] At 280. Approved in R v Keyte (2000) 78 SASR 68 at [52] per Doyle CJ (with whom Wicks J agreed).
In R v Keyte,[24] Doyle CJ (with whom Wicks J agreed) said:
I should make it clear that, in what I have already said, there is no assumption that in such a case the reasons for decision must replicate the instructions that would be given to a jury, and also include detailed findings on all issues of fact.[25]
[24] (2000) 78 SASR 68.
[25] At [54].
The question whether, and to what extent, reasons are required to be given for credit findings, accepting the evidence of a witness or preferring the evidence of one witness over another will vary depending on the issues and evidence in the case.
In R v Keyte, [26] Doyle CJ (with whom Wicks J agreed) said:
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.[27]
[26] (2000) 78 SASR 68.
[27] At [56].
In R v Power, [28] Perry J (with whom Williams and Bleby JJ agreed) said:
Mr Cuthbertson for the appellant complained that the trial judge did not adequately explain in his reasons why he rejected the evidence of the appellant and accepted beyond reasonable doubt the evidence of V.
However, it seems to me that this is one of those cases where the trial judge’s preference for the evidence of V over that given by the appellant “... rests substantially upon the impression made by” the witnesses when giving evidence. In those circumstances, in my view, there is no requirement that the trial judge should attempt to give a detailed explanation for the decision to prefer the evidence of the one witness against that of another. …
Mr Cuthbertson submitted that it was unsatisfactory and likely to create a “feeling of injustice” for his client to be told that he was disbelieved and that the evidence of the complainant was accepted with a more detailed explanation.
As to that submission, I would make two comments.
In the first place, there will sometimes be cases where very little can be given by way of an explanation for preferring one witness to another. As I have suggested, in my view, this is one such case.
In the second place, the decisions reached by a jury, including the jury’s decisions as to the central factual issues in a case, are inscrutable, in the sense that no reasons are given. I have seen no evidence to support the view that this is likely to create a “feeling of injustice” in an accused person, or that it otherwise operates to impair public confidence in the administration of justice.[29]
[28] [2003] SASC 77, (2003) 141 A Crim R 203.
[29] At [58]-[59], [62]-[64]. (Citations omitted)
In R v Beard,[30] Vanstone J (with whom Doyle CJ and Perry J agreed) said:
I consider the judge’s reasons were adequate and sufficient. What needed to be determined was a single issue. That was whether the judge accepted V’s evidence beyond reasonable doubt, notwithstanding the appellant’s sworn denial. If there were a discrete reason for rejecting the appellant’s account, no doubt the judge would have given it. But the judge was entitled to find as he did, without identifying, or indeed without there being, any particular reason for rejecting the appellant’s version, over and above acceptance of the competing account. It was not essential that any specific shortcomings in the appellant’s evidence be identified. This was a case where the preference for the victim’s evidence was very much a matter of impression made by the victim in her evidence, rather than a matter of logic. Where a decision rests on such a basis – as it well may – it is difficult to see how a judge might elaborate upon his reasons for decision.[31]
[30] [2004] SASC 411.
[31] At [13]. (Citations omitted)
In R v Dennis,[32] Vanstone J (with whom Nyland and Kourakis JJ agreed) said:
In a case where a witness and an accused person give evidence which cannot stand together and where it is plain that one witness must be lying, it is often difficult for a tribunal to express reasons for preferring the one account to the exclusion of the other.[33]
[32] [2010] SASC 69, (2010) 202 A Crim R 453.
[33] At [29]. (Citations omitted)
Previous inconsistent statements
The appellant contends that there were inconsistencies between the complainant’s evidence at trial and previous statements made by the appellant in July 2012 and the Judge did not give adequate reasons addressing those inconsistencies.
Evidence of Senior Constable Bryson
The appellant contends that there were inconsistencies between what the appellant told Senior Constable Bryson on 26 July 2012 and the complainant’s evidence in August 2014 and the Judge did not give adequate reasons addressing those inconsistencies.
The interview of the complainant by Senior Constable Bryson was recorded audio visually at the time. Subsequently, Senior Constable Bryson typed a three-page synopsis based on watching the video. The audio visual record was later lost and only the synopsis was available at trial.
The first difference identified by the appellant relates to whether the first touching incident occurred on the way to or from school. Senior Constable Bryson recorded in the synopsis that count 1 occurred on the bus on the way to school (like counts 2 and 3 and in contradistinction to counts 4 and 5 which occurred on the way home from school). The appellant contends that the effect of the complainant’s evidence at trial was that the conduct the subject of count 1 occurred on the way home from school, this was inconsistent with her statement to Senior Constable Bryson and it adversely affected her credibility.
In her evidence in chief, the complainant described the first time when the appellant touched her on the vagina. She was not sure whether this was on the way home or to school, saying “I think on the way back from school I think it was”. The complainant said that the appellant touched her on the vagina four or five times in total, she could not remember exactly which ones were before or after school but she knew a few of them were before school. She said that she thought that she remembered that the first one was after school.
Later in her evidence in chief the complainant described the first time when the appellant touched her, during which he put one hand on her mouth and pulled her upper body towards his lap, saying that this occurred on the way home and he stopped doing this when he hopped off the bus. There was a degree of confusion between the prosecutor and the complainant as to whether, when reference was made by one of them to the first time or the first incident, reference was being made to the first occasion of touching (the hand on the mouth incident) or the first occasion of touching the complainant’s vagina (the first indecent incident).[34] The complainant clarified that the hand on the mouth incident was during the trip from school but she wasn’t sure which of the indecent incidents were during the trip from or to school.
[34] I use these two shorthand terms for convenience recognising that it was in issue at trial and is in issue on appeal whether such incidents occurred.
In cross examination, the complainant was asked about the hand on the mouth incident. The complainant was then asked “So the next thing that happens a few weeks later you tell us, he's sitting beside you again and this is on the way home again is it”, to which she answered yes and she was then asked about the first indecent incident.
The Judge referred in his Honour’s reasons to the appellant’s submission in closing address about the difference in the complainant’s accounts as to the direction of travel of the bus during the first indecent incident. The Judge accurately narrated that Senior Constable Bryson’s synopsis showed the incident recorded as count 1 occurring on the way to school. The Judge observed that:
One difficulty with this suggested prior inconsistent statement is that it occurs in a synopsis. I do not have the actual statement that [the complainant] made to Senior Constable Bryson. I therefore do not know whether it is an accurate reflection of what [the complainant] said; whether there could be error or ambiguity; whether the interviewer and [the complainant] could have been at cross purposes; the context in which it was said; or the specificity with which it was said.
The Judge then said:
More importantly, even on the hypothesis that [the complainant] specifically told Senior Constable Bryson that the first occasion of touching was on the bus on the way home; I am not greatly troubled with this inconsistency between that statement in July 2012, and [the complainant’s] evidence in 2014. In my view, [the complainant] is giving a truthful account of touching that occurred on a number of times on the school bus. In her evidence she agrees that she cannot say exactly how many times but thinks it was four or five. In her evidence she cannot say how many times it occurred on the way to school and how many on the way home; save that she can say there was a specific occasion of touching, which she describes in her evidence, which happened on the way home.
The appellant contends that the Judge’s reasoning is vitiated by the mistaken reference in the first sentence extracted in the previous paragraph to the synopsis showing that the first occasion of touching was “on the way home”. This contention must be rejected. The reference to the incident occurring on the way home was plainly a slip of the tongue. The Judge had four sentences earlier correctly recorded that the synopsis showed that it was on the way to school and more importantly there would have been no arguable inconsistency if the synopsis had recorded that it was on the way home.
The appellant also contends that the Judge should have been troubled by the inconsistency. However, the Judge heard and saw the complainant give evidence. It is almost universal that witnesses will provide different details of incidents when they give accounts two years apart. The Judge was entitled to conclude that the difference did not reflect adversely on the complainant’s credibility.
The appellant contends that the Judge’s reasons are inadequate because the Judge did not address other inconsistencies between the synopsis and the complainant’s evidence.
The first contended inconsistency relates to the complainant’s description of the actions of the appellant during the relevant incidents. Although the appellant does not articulate the differences, in the synopsis under the heading “Count 1” Senior Constable Bryson described the appellant placing his hand in the complainant’s undies from the back and reaching through to her vagina, grabbing hold of it and pulling backwards. Senior Constable Bryson also described the appellant grabbing the complainant’s hand, placing it behind her neck, forcing the complainant’s hand down her back to her bum and putting his hand over her mouth. Senior Constable Bryson described the incidents the subject of counts 2 to 5 as involving the appellant putting his hand down the complainant’s back, reaching through to the front and pulling on her vagina without reference to grabbing the complainant’s hand and placing it behind her neck or putting his hand over her mouth. However, Senior Constable Bryson also described the incidents the subject of counts 2 to 5 as being exactly the same as count 1, which would not be the case on the face of Senior Constable Bryson’s description of counts 2 to 5 if the conduct the subject of count 1 included the appellant grabbing the complainant’s hand, placing it behind her neck, forcing the complainant’s hand down her back to her bum and putting his hand over her mouth.
In assessing whether the Judge was required in his Honour’s reasons to address this alleged inconsistency, it is critical to observe that the complainant was not cross-examined on the alleged inconsistency. It was not put to her at any stage that she had said what Senior Constable Bryson recorded under the heading count 1.
The apparent inconsistency between the synopsis and the complainant’s evidence is readily explained if Senior Constable Bryson conflated in her synopsis two separate incidents being the hand on the mouth incident and the first indecent incident. As the Judge observed in the passage extracted at [55] above, in the absence of the video recording, it was impossible to know whether the synopsis reflected the interviewer and the complainant being at cross purposes or contained error or ambiguity. It is clear that the Judge turned his Honour’s mind to the content of the synopsis. Given the nature of the synopsis and the absence of cross-examination about it, there was no obligation on the Judge to address specifically this alleged inconsistency.
The second contended inconsistency relates to the synopsis recording that F told the bus driver B what had occurred, whereas the complainant in her evidence said that she told the bus driver that the appellant was hurting her. On their face, these two statements are not inconsistent and the reference by Senior Constable Bryson to the discussion between F and B was so cryptic that it could not form the basis for a prior inconsistent statement by the complainant. Again, the complainant was not cross-examined on the alleged inconsistency and it was not put to her at any stage that she said what Senior Constable Bryson recorded. In the circumstances, there was no obligation on the Judge to address specifically this alleged inconsistency.
Evidence of mother
The appellant contends that there were inconsistencies between the evidence given by the complainant and that given by her mother of what she was told on 1 July 2012. The first contended inconsistency is that the complainant gave evidence that the appellant reached his hand to the front of her vagina from behind; whereas the complainant’s mother gave evidence that the appellant touched her at the front.
There was no inconsistency between this evidence. M gave evidence that she asked a series of questions of the complainant of increasing seriousness. M first asked whether the appellant touched her on the outside of her clothes and the complainant said no, inside her pants. M asked her whether she meant outside her knickers and the complainant said no, inside her knickers. M then asked “Do you mean he touches you at the front or the back?” and the complainant said “The front”. In context, having regard to the evidence given by the complainant, this was clearly understood by the complainant to refer to touching her vagina rather than her bum. M did not ask what route the appellant used to reach her vagina.

The second contended inconsistency relates to the number of occasions on which the appellant indecently touched the complainant. The complainant gave evidence that this occurred on four or five occasions. M gave evidence that the complainant told her that it happened on several occasions and that it seemed like it happened most weeks. There is no inconsistency between these two bodies of evidence.
In the circumstances, it was not incumbent on the Judge to address the evidence of M in the two respects identified by the appellant on appeal.
Evidence of P and VP
The appellant contends that there were inconsistencies between the evidence given by the complainant and that given by P and VP of what they were told on 17 July 2012. The contended inconsistency is that the complainant gave evidence that the appellant reached his hand to the front of her vagina from behind; whereas P and VP gave evidence that the appellant touched her at the front.
P gave evidence that he recorded in his notes made at the time “He puts his hand between her legs”. P said that predominantly the complainant expressed herself verbally rather than by gestures. He said that he did not ask any questions about that description to tease out any further detail and no further specificity was given.
VP gave evidence that the complainant said that the appellant “put his hand down there” and that she wanted him to “stop putting his hand down there”. VP said that she did not make any explicit inquiry with respect to the comment about “down there” as to specifically what that meant. In cross examination, VP said that the complainant demonstrated what she meant by motioning between her legs with her hand. VP said that the complainant was sitting on the other side of the table and motioned with her hand in front of her.
M gave evidence that at the meeting with P and VP the complainant said that the appellant “puts his hands down my pants”. M said that she could not remember if the complainant was specific about the front or the back.
As is to be expected, there were variations in the accounts given by P, VP and M as to what the complainant said and did. P, VP and M were concerned to ascertain from the complainant which part of her body was being touched by the appellant and confirmed that it was at the front. They did not ascertain the direction of approach of the appellant’s hand. On any view, for the same reasons as in respect of what the complainant said to M on 1 July 2012, the evidence of P, VP and M was not inconsistent with the evidence given by the complainant at trial.
External inconsistencies
The appellant contends that there were inconsistencies between the complainant’s evidence and the evidence of other witnesses and the Judge did not give adequate reasons addressing those inconsistencies.
Evidence of bus driver
The first contended inconsistency relates to evidence given by the bus driver B and the complainant concerning an incident on the bus that B said involved the complainant licking the appellant (the licking incident). B gave evidence as follows:
I had stopped the bus, had turned around and she had grabbed him arm and wouldn't let him get off the bus, and had licked his arm and I had told her that that was inappropriate behaviour and that I didn't think it was necessary and she proceeded to tell me that it tasted like chicken and I said I didn't think we needed to know that and that it was unnecessary and she wouldn't let [the appellant] go. And I said 'Let go of [the appellant], he is hopping off the bus', and yes, when she was spoken to and he hopped off the bus.
The complainant was cross-examined in the following terms:
Q.    Was there ever a time that you licked him on the arm.
A.    No.
Q.    That never happened.
A.    It didn't.
…
Q.    See isn't true that the bus driver told you off for licking [the appellant's] arm.
A.    I do not remember that.
The Judge addressed this evidence in the following terms:
There was evidence of a number of incidents involving [the complainant] and [the appellant], said to have occurred around this time. Firstly, the bus driver [B], and [the appellant], gave evidence of an occasion when [the complainant] licked [the appellant’s] arm as he was about to disembark from the bus. [The complainant] denied any recollection of this… Those are three examples of incidents which were explored in the evidence, but which in my view, do not really assist me. None of those incidents are directly relevant to the allegations made by [the complainant]. Insofar as the evidence on one or more of those incidents may be said to undermine her reliability or credibility, I need to be mindful of her age; the chronology set out above, including the number of times that [the complainant] has been required to give detailed statements; and the scope for her to have forgotten, confused, or moved on in her mind from the events of 2012. For those reasons I do not consider the evidence in relation to those peripheral incidents, impacts adversely on [the complainant’s] reliability or credibility, in relation to the central allegations of [the appellant’s] alleged conduct on the bus. Nor do I consider I need to make findings on precisely what did or did not occur with respect to those incidents.
The appellant first contends that the Judge erred in characterising the complainant’s evidence as denying any recollection of this because in the first two answers extracted at [75] above the complainant denied that the incident occurred. However at that point in the cross-examination only a general question was asked whether the complainant ever licked the appellant on his arm. No detail or context was included and in particular the account given by B extracted at [74] above was not put to the complainant. When some context was included and it was specifically put that B told the complainant off for licking the appellant’s arm, the complainant merely said that she did not remember it. Given the nature of the cross-examination and the complainant’s evidence, the Judge did not err in his Honour’s characterisation of that evidence.
The appellant next contends that in any event it was incumbent on the Judge to make a finding whether the arm licking incident occurred and if so what impact it had on the credibility and reliability of the complainant.
It is evident that the Judge proceeded on the basis that B’s evidence was accepted. It was led by the prosecution, not challenged by the defence and in closing address both counsel submitted that B’s evidence should be accepted. The Judge considered that there was scope for the complainant to have forgotten or moved on from the incident. The Judge saw and heard the complainant give evidence and it was open to the Judge to take this attitude. It is notorious, and juries are directed in every trial, that a witness may be unreliable or even dishonest in relation to one matter, particularly a peripheral matter, and yet be accepted as honest and reliable in relation to the central issues.
The appellant contends that there was another area of inconsistency between the evidence of B and the evidence of the complainant that the Judge did not address. The appellant contends that B refuted the complainant’s evidence that she complained to B about the appellant having hurt her.
The complainant gave the following evidence:
Q. Did you ever speak to the bus driver [B] about what was happening on the bus.
A.I did tell her once [the appellant] was hurting me, but I didn't say anything other than that. She told me to sit somewhere else then but I couldn't really do that because then he'd just sit beside me again.
B gave the following evidence in chief:
Q.Did [the complainant] ever make any report to you or complaint to you about not wanting to sit next to [the appellant], at any stage.
A.Not that I can remember.
The appellant contends that the evidence of B and the complainant was inconsistent. However, B did not deny that a complaint was made to her by the complainant and merely said that she did not remember one. Given that it would not be unusual for a school bus driver to receive complaints from schoolchildren about each other, there was no particular reason why B would have recalled such a vague and general complaint as the complainant said she had made to B.
The appellant contends that B gave evidence in cross-examination refuting that any complaint was made by the complainant about the appellant. The passage of cross-examination relied upon by the appellant was part of a series of questions about discussions with the complainant’s family. This was in the context that the complainant’s mother had given evidence in cross-examination that her husband, the complainant’s father, had complained to B after the hand on the mouth incident and asked B not to let the appellant and complainant sit together on the bus. The passage relied on by the appellant is the last answer given by B in the following passage of cross-examination.
Q.Right, and would you stop at the [appellant’s surname] family and have a cup of tea before you left -
A.No.
Q.- or was it just a parking arrangement.
A.Just a parking arrangement.
Q.Did you know them very well.
A.Well, I've grown up there, lived there all my life.
Q.Right, small town.
A.Small town. But, no, I never - I think I might have had one cup of tea once because I had a flat tyre.
Q.And if there was ever any occasion that one of [the appellant’s family [, either the children or the adults, complained about [the appellant’s] behaviour towards [the complainant]-
A.Yes.
Q.- you would have remembered that.
A.Yes. The only -
Q.And that didn't happen, did it.
A.No. The only time I was aware that there was possibly something that may have happened was when [the complainant’s father] had come into my business during the school holidays.
It is clear from the context that the last answer was referring to complaints by the complainant’s family and not by the complainant herself. This is reinforced by the next question in which it was put to B that there was never an occasion when the appellant complained to her and she reiterated her evidence in chief “Not that I recall”.
In the circumstances, it was not incumbent on the Judge to address the evidence of the complainant and B on the topic of a complaint about the appellant hurting the complainant.
Evidence of school friend
The appellant contends that there were inconsistencies between the evidence given by the complainant and that given by the complainant’s school friend F. The first contended inconsistency is that F gave evidence that the complainant sat at seats 2 and 3, whereas the complainant gave evidence that she sat at seats 4 and 5.
The school bus had approximately seven rows each comprising a single seat on the left and a double seat on the right of the aisle. There was a very generalised pecking order that the youngest students tended to sit at the front and older students progressively sat further towards the back with the oldest students at the back. The bus had a fixed run and in 2012 the maximum number of students carried was 19.
F gave evidence that she and the complainant were both in year 4 in 2012 and became friends. Students on the bus did not have assigned seats and could sit where they liked. F tended to sit around the middle and the complainant tended to sit either in the middle or at the front. F sometimes sat next to the complainant. The appellant sometimes sat next to the complainant and when this occurred it was usually towards the front. The complainant sometimes had no one sitting next to her. In cross-examination, F said that when she saw the complainant and the appellant sitting next to each other, they were sitting around row 2 or 3.
The complainant gave evidence that she thought the bus had about six rows and she tended to sit in the middle. In cross-examination, she said that she tended to sit in row 3 or 4.
The evidence of F and the complainant as to where the complainant tended to sit on the bus was not inconsistent. No suggestion was made in closing address that their evidence was inconsistent in this respect.
The second contended inconsistency is that the complainant gave evidence that she tended to sit where she did on the bus because she was waiting for F to get on the bus so that they could sit together; whereas F gave evidence that she sat with the complainant approximately two times a week but often she sat next to another friend of hers, E. The appellant contends that the complainant’s evidence that she did not sit in a single seat to avoid the appellant sitting next to her after he began to mistreat her because she was waiting for F to sit next to her is inconsistent with the evidence given by F which demonstrated that F did not necessarily want to sit with the complainant.
The evidence of F and the complainant is not inconsistent. The complainant did not suggest that F always sat next to her and her evidence that she was hopeful that F would sit next to her was not inconsistent with F choosing on occasions to sit next to her other friend E. No suggestion was made in closing address that their evidence was inconsistent in this respect.
In the circumstances, it was not incumbent on the Judge to address the evidence of F in the two respects identified by the appellant on appeal.
Admission of evidence of initial complaint
The appellant contends that the Judge failed to explain the basis upon which his Honour found that the initial complaint made to M was evidence of “consistency of conduct of the alleged victim” within the meaning of section 34M(4)(a)(ii) of the Evidence Act.
Section 34M of the Evidence Act relevantly provides:
34M—Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
…
(3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•      when the complaint was made and to whom;
•      the content of the complaint;
•      how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•      why the alleged victim did not make the complaint at an earlier time.
(4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
…
(6)     In this section—
“complaint”, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
“initial complaint”, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The only condition under subsection (3) for admissibility of evidence of a statement made by a complainant in relation to a sexual offence is that it comprises an initial complaint within the meaning of the section. It is not a condition of admissibility that the complaint show consistency of conduct.
The Judge summarised and quoted from the evidence given by M about her discussion with the complainant on 1 July 2012. The Judge said:
I have no hesitation in accepting [M’s] evidence as to the occurrence of that conversation on the Sunday. I also have no hesitation in finding that what was said by [the complainant] on that occasion amounts to an initial complaint, pursuant to s 34M of the Evidence Act.
The statement made by the complainant to her mother on 1 July 2012 was manifestly an initial complaint within the meaning of section 34M. The Judge was not required to give any further reasons why evidence of the conversation was admissible or admitted.
The Judge then said:
Accordingly, that evidence is admissible for the limited purposes specified in that provision; to inform me as to how the allegations first came into light; and as evidence of consistency of conduct of [the complainant].
The Judge in that paragraph was merely directing himself with respect to the permissible uses of the evidence under subsection (4)(a). The Judge was not required for that purpose to identify how this evidence was evidence of consistency of conduct. In any event, it is clear from the content of M’s evidence that it was evidence of consistency of conduct and also how it was so. M gave evidence that she was told by the complainant that the appellant had been putting his hand inside her knickers on several occasions and touching her at the front. This was consistent with the evidence given by the complainant at trial.
Implausibility
The appellant contends that the Judge did not address what he submits is the inherent implausibility of the complainant’s story. The appellant contends that it is implausible that the appellant would have been so brazen as to commit the alleged indecent conduct on four or five occasions on a school bus in daylight in the presence of a bus driver and other schoolchildren. The appellant contends that it is implausible that the complainant would not have called out or taken action to avoid the continuation of the conduct.
The circumstances relied on by the appellant as making the complainant’s story implausible were manifest in the evidence given by the complainant set out by the Judge in his Honour’s reasons for judgment. The Judge plainly took those matters into account as part of the context against which his Honour decided to accept the complainant’s evidence of the essential events that happened to her. There was no need for the Judge to refer further to the obvious circumstances in which the alleged conduct occurred.
Common experience shows that many persons commit quite brazen crimes and the mere fact that a crime is committed brazenly does not render it implausible. This applies a fortiori to a 15-year-old child who, on his mother’s evidence, had from an early age according to his doctors displayed symptoms of ADHD, autism and Asperger’s syndrome. Equally, it is common experience that persons who are the victims of crimes often do not take what objectively appears to be obvious action for their own protection. This applies a fortiori to a nine-year-old child vis a vis a boy six years older.
Evidence of the appellant
The appellant contends that the Judge gave no reason why his Honour rejected the appellant’s evidence. The appellant accepts that in certain circumstances it is not necessary to give reasons for rejecting a defendant’s version when it is the antithesis of a complainant’s version. The appellant ultimately does not contend that the Judge’s reasons were inadequate in this respect but rather that the reasons were inadequate in analysing the evidence of the complainant. I have addressed the latter contentions above.
In any event, for the reasons given in the cases cited above, the Judge’s reasons were not inadequate in not elaborating on why the Judge rejected the appellant’s evidence beyond saying that his Honour was persuaded beyond reasonable doubt that the complainant was giving a truthful version of the essential events that happened to her and that the appellant did touch her in the manner she described.
The appellant makes a specific complaint that, when the Judge was narrating the chronology of events to explain why the matter had taken an unusually long time to reach judgment, one of the events mentioned was a conversation between Brevet Sergeant Meek and the appellant on 20 July 2012. The Judge recorded that during the conversation the appellant was told that there was going to be an investigation of an allegation that something of a sexual nature had happened on the school bus and the appellant said “I have no idea how this happened but the only time I have ever touched [the complainant] is when she was hitting me, to stop her from hitting me when she would sit next to me.”

The appellant contends that the Judge was insinuating that the appellant possessed a guilty conscience because he seemingly had prior knowledge as to the identity of the complainant, whereas Brevet Sergeant Meek told the appellant that the complainant was the subject of the investigation. This contention must be rejected. There was no insinuation by the Judge, who at that point was merely narrating the chronological history of events leading up to the conclusion of the trial.
The appellant contends that later in the Judge’s reasons for judgment the Judge misapprehended what was common ground between the evidence of the appellant and the complainant. The appellant refers to a passage which appears after the Judge explained that during the second day of his evidence the appellant began to display behaviour and symptomology later diagnosed as psychotic. The Judge said that in those circumstances his Honour decided not to make any adverse inferences from the appellant’s evidence. The passage is:
This leaves his denials of any inappropriate touching; together with the more innocuous aspects of his evidence which are common ground in this trial; that he and [the complainant] regularly took the bus to and from school in 2012 and that there were occasions when they sat together, and had conversations.
The appellant contends that it was not common ground that there were occasions when the appellant and complainant had conversations because the complainant’s evidence was that she hardly spoke to the appellant. However, the complainant gave evidence that there were occasions when she and the appellant sat together and she did not deny that there were conversations. She denied that there were conversations while the appellant was mistreating her.
The appellant contends that the Judge failed to consider whether there was any motive for the complainant to make false accusations. It had been submitted to the Judge that the complainant might have told a “white lie” to her mother and then became committed to maintaining and expanding on the story. No particular motive was identified for the complainant telling the “white lie” in the first place. In any event, it is clear from the Judge’s explicit acceptance of the evidence of the complainant about the indecent touching that the Judge rejected any contention that the complainant made the incidents up.
Conclusion
This ground is not established.
Verdict cannot be supported having regard to the evidence
The third ground of appeal is that the finding of guilt was against the weight of the evidence.
The appellant does not put any substantive submissions in support of this ground, merely adopting all of the submissions made under the other two grounds.
Ultimately, the Judge’s determination of guilt depended on his Honour’s assessment of the complainant’s evidence as against the appellant’s evidence by way of denial. The matters identified by the appellant as being relevant to the credit and reliability of the complainant’s account of the offence are not matters that necessarily required the Judge to reject the complainant’s account. It cannot be said that the Judge’s credit finding was glaringly improbable or that the evidence of the complainant on its face contained such discrepancies, inadequacies or taints that it was required to be rejected.
This ground is not established.
Conclusion
I would dismiss the appeal.
STANLEY J:
I would dismiss the appeal. I agree with the reasons of Blue J.
DOYLE J:
I agree with the reasons of Blue J, and would dismiss the appeal.