R v Cotton - [2015] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COTTON
[2015] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
20 February 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED
Appeal against conviction. The defendant was convicted following a trial by judge alone of two counts of assault, two counts of aggravated assault, three counts of aggravated assault causing harm, one count of threatening to cause harm and four counts of doing an act creating a risk of harm. The trial concluded on 5 June 2013. The Judge’s verdict and reasons were delivered on 24 September 2014.
Whether the reasons of the Judge were inadequate. Whether the Judge erred in failing to make findings of fact capable of sustaining verdicts of guilty.
Held per Gray J (Kourakis CJ and Stanley J agreeing) allowing the appeal:
(1) The Judge failed to make findings in relation to inconsistencies in the evidence given by the various prosecution witnesses.
(2) The task of the appellate court has been severely compromised.
(3) The Judge has not explained how he reached his satisfaction beyond reasonable doubt on each of the counts, with the possible exception of the counts of doing an act creating a risk of harm.
(4) In relation to the counts of doing an act creating a risk of harm, the Judge had regard to some unspecified “earlier conduct towards [the complainant]” and regarded this conduct as being relevant to his conclusion as to the defendant’s state of mind. The Judge was obliged to identify the earlier conduct and explain his use of that conduct.
(5) Appeal allowed and retrial ordered.
Evidence Act 1929 (SA) s 34R; Criminal Law Consolidation Act 1935 (SA) s 29(2), referred to.
R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Maxwell (1998) 217 ALR 452; Monie v Commonwealth of Australia (2005) 63 NSWLR 729; Goose v Wilson Sandford & Co (1998) 142 SLJB 92; Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273, considered.

R v COTTON
[2015] SASCFC 17
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Gray J.
GRAY J.
This is an appeal against conviction.
Following a trial by Judge alone in the District Court, the defendant and appellant, Alan John Cotton, was convicted of two counts of assault, two counts of aggravated assault, three counts of aggravated assault causing harm, one count of threatening to cause harm and four counts of doing an act creating a risk of harm. The appeal is against all convictions.
The incidents the subject of the charges occurred between October 2007 and July 2010. The defendant was first arraigned in the District Court on 9 May 2011. The trial commenced on 28 May 2013 and addresses concluded on 5 June 2013. The defendant was remanded on bail, pending the Judge’s verdict on a date to be fixed. The Judge’s verdicts and reasons were delivered on 24 September 2014. The defendant was remanded for sentencing submissions on 28 October 2014. His bail continued. Following submissions on sentence, the defendant was remanded on continuing bail to 27 November 2014. On that occasion, on the defendant’s application, he was further remanded on bail for sentence on 12 March 2015.
Introduction
The defendant was found guilty of 12 offences, nine committed against his former domestic partner, the complainant, two against their children, and one committed against the complainant’s sister.
The complainant was born in Liberia and came to Australia in November 2005. On arrival, she lived at Port Adelaide with an uncle. She was aged between 18 and 21 years at the time of the charged incidents, and 24 years at the time of trial.
The defendant was aged between 19 and 22 years at the time of the offending and 25 years at the time of trial. The defendant and the complainant met in mid-2006 and commenced a relationship in 2007. Their relationship ended on 23 July 2010, when the events the subject of count 12 occurred.
The complainant and the defendant had three children together: A, born on 14 January 2008; S, born on 16 August 2009; and K, born on 12 March 2011, after the relationship had ended.
The complaints of assault, aggravated assault and aggravated assault causing harm involving the complainant may be briefly summarised as follows. Count 1 occurred in August or September 2007 and involved an assault following a road rage incident when the complainant was struck by the defendant on the chest and pushed backwards. Count 2 occurred in November 2007 and involved a threat to cause harm when the defendant threatened to harm the complainant with a knife. Count 3, arising from the same incident as count 2, involved an assault causing harm when the defendant placed the knife against the stomach of the complainant. Count 4 occurred in December 2007 and involved an aggravated assault when the defendant held a knife against the complainant. Count 5 occurred in January 2008 and involved an assault when the defendant struck the complainant to her head and kicked her. Count 6 occurred on 14 June 2008 and involved an aggravated assault when the defendant struck the complainant against a wall and kicked her. Count 7 occurred in June or July 2009 and involved an aggravated assault causing harm when the defendant pushed the complainant to the floor, kicked her and used a belt around her throat. Count 12 occurred on 23 July 2010 and involved an aggravated assault causing harm when the defendant pushed the complainant against a wall, kicked her, and applied pressure to her neck.
Counts 8 to 11 involved an incident that occurred in September 2009. It was the prosecution case that the defendant was driving a motor vehicle in which the complainant, their two children and the complainant’s sister were passengers. The defendant was angry following an argument and threatened to crash the car. He then drove at an excessive speed and applied the brakes suddenly. The same act of driving gave rise to each count, with each count relating to a different victim. The charge on each count was that the defendant committed an act creating a risk of serious harm.[1] An alternative verdict of each of counts 8 to 11 was the offence of doing an act creating a risk of harm.
[1] Contrary to section 29(2) of the Criminal Law Consolidation Act 1935 (SA).
The Prosecution Case
The complainant became pregnant with their first child, A, in about June 2007. The defendant was not upset; he was happy and remained happy for several months.
The complainant said that when she was three or four months pregnant with A, the relationship changed. The defendant began behaving violently toward her. From that time on, the complainant said that the defendant physically abused her on a number of occasions, sometimes in the presence of others.
The prosecution presented evidence from the complainant, her sister, a Liberian friend said to have witnessed a number of the assaults and two other African witnesses. The complainant was recalled for further cross-examination as a consequence of the late provision of her victim impact statement to the defence.
The Defence Case
The defendant gave evidence. He denied all the charges. He said that the incidents the subject of counts 1, 2, 3, 4, 5 and 7 did not occur at all. In respect of the remaining counts, it was the defendant’s case that incidents occurred, but not as described by the prosecution witnesses and that his involvement in those incidents did not give rise to any offending conduct on his part. The defendant had no criminal antecedents. His good character was supported by evidence from his father, who also gave evidence supporting the defence case in respect of count 6.
The Judge’s Verdicts and Reasons for Verdicts
As noted above, the Judge recorded convictions on each count. However, in regard to counts 8 to 11, the Judge returned verdicts of guilty on the alternative charges. As earlier noted, the Judge’s verdicts and reasons for verdicts were delivered more than 15 months after the conclusion of the trial.
The Judge, in his reasons, having dealt with matters of background and general observation, identified the elements of the offences of assault, aggravated assault, aggravated assault causing harm, threatening to cause harm and doing an act creating a risk of serious harm. No complaint was made about this aspect of his reasons.
The Judge then summarised the evidence of each of the prosecution witnesses and the evidence of the defendant and his father. On the appeal, counsel for the defendant submitted that this treatment of the evidence amounted to no more than a short recitation drawing directly on the transcript of evidence given in the trial.
The Judge’s reasons then made comment under the heading “Some Observations and the Incidents”. The observations were primarily concerned with the difficulty confronting the African born witnesses in coping with the English language and the problems encountered through the efforts to have their evidence interpreted. The Judge also noted that the complainant had particular difficulty when cross-examined about alleged prior inconsistent statements. The Judge took the view that language difficulties should be brought to account when assessing the credibility and reliability of the complainant and the other African witnesses.
The Judge turned to the incidents, saying, “I now try to summarise, in my words, the effect of the evidence as to each incident.” The Judge then addressed each of the counts, as well as two uncharged acts. This treatment did not include any findings.
The Judge then discussed several specific matters. These included whether the defendant should be given credit for giving evidence, the defence evidence of good character, the relevance of the evidence of uncharged conduct and the lack of relevance of a number of allegations.
To this point of the Judge’s reasons, no findings of fact had been identified or made.
The final section of the judgment is headed “Findings, Conclusions and Verdicts”. It is this part of the reasons that was subjected to close analysis on the appeal. It was the defendant’s contention that the Judge’s reasons called for close scrutiny because of the 15 month delay between the conclusion of the trial and the verdicts.
The Appeal
Grounds of Appeal
Six primary grounds of appeal were advanced.
It was said that the verdicts on all counts were bad at law, or were alternatively uncertain in that it was not possible to identify the actus reus sustaining each finding of guilt. A particular complaint was made of duplicity, including latent duplicity.
It was submitted that the trial miscarried. The reasons advanced included: the failure of the trial Judge to consider the proof of each count separately and by reference only to the evidence admissible in relation to the individual count; the erroneous admission of evidence; the impermissible buttressing of the complainant’s evidence; and the failure to comply with the terms of section 34R of the Evidence Act 1929 (SA).
It was contended that the Judge’s reasons were inadequate, had regard to irrelevant considerations and involved a misapplication of the burden of proof. More than 20 particular complaints were advanced under this heading.
It was said that the Judge had erred in his treatment of the use and the significance of prior inconsistent statements made by the complainant.
A complaint was advanced that there had been a denial of procedural fairness. This complaint related to observations made, it was said, without notice concerning the topic of whether the defendant loved the complainant and on the topic of the attitude of the defendant and his parents toward the complainant, in particular, regarding her inferiority, lack of intelligence, stupidity and silliness, and the fact that she was uncivilised. It was said that the Judge used these matters as a basis for inferring motive. This complaint also included an allegation regarding the way in which the Judge interpreted the evidence of the complainant, having regard to the unusual use of language and difficulties with evidence given through an interpreter.
The final matter of complaint was that the verdicts were unreasonable and could not be supported having regard to the evidence. This complaint was supported by more than 40 particulars, with complaints being advanced against the Judge’s verdicts in respect of each count.
The Adequacy of Reasons
It is convenient to first address the adequacy of the Judge’s reasons.
The obligations on a trial judge sitting without a jury to provide reasons have been the subject of comment, both in this Court and in the High Court. In Keyte,[2] Doyle CJ provided a detailed review of the relevant principles. Having observed that under the South Australian legislation there was no statutory obligation to provide reasons, Doyle CJ considered that, notwithstanding this circumstance, a trial judge did have an obligation to provide reasons. Doyle CJ considered that there were three bases upon which an obligation to give reasons should be implied. The first was that Parliament would have assumed that this would be done as a necessary incident to the power to decide innocence and guilt. The second basis lay in the circumstance that there was a right of appeal and that the remedy of an appeal might be frustrated or substantially contracted in scope if there were no obligation to give reasons. The third basis concerned the community’s real interest in the administration of criminal justice and the consequent need for a proper explanation for verdicts of guilt or innocence.
[2] R v Keyte (2000) 78 SASR 68.
Doyle CJ then turned to the authorities and observed:[3]
[3] R v Keyte (2000) 78 SASR 68, [44]-[50].
There is authority to support the view that in a case like this, that is, a judicial decision subject to appeal, there is a requirement to give reasons, and that the failure to give reasons when required is itself an error of law. In Pettitt v Dunkley [1971] 1 NSWLR 376, a decision often referred to with approval by other courts, the Court of Appeal of the Supreme Court of New South Wales decided that in a civil action tried without a jury, the failure of the trial judge to give adequate reasons for his decision was an error of law, because that failure made it impossible for the appellate court to determine whether or not the decision was based on an error of law, and so frustrated the statutory right of appeal. I respectfully adopt the following remarks of Asprey JA (at 382):
“In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish 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. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.”
I also respectfully adopt what Moffitt JA said (at 388):
“The observations of Jordan CJ recognise that an obligation, concerning the giving of reasons, lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court. The necessity referred to is, of course, of particular significance in a trial at first instance, when mixed questions of fact and law are involved and an appeal on a question of law only is given. It is important to observe, however, that the judicial obligation to give reasons in an appropriate case is directed to facilitating the exercise of a right of appeal.”
That decision was approved by Gibbs CJ in Osmond, in a judgment which was approved of by other members of the Court, although Gibbs CJ remarked (at 66) that:
“The decision in that case that the failure to give reasons was an error in law may have broken new ground … ”
However, more recently in Fleming the High Court appears to me to have approved of the decision in Pettitt v Dunkley in unqualified terms, and added (at 260) that:
“We should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley … ”
The requirement for reasons was affirmed by the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. Although there was some divergence of views as to the extent of the obligation, all members of the Court agreed that there was an obligation to give adequate reasons for a decision that was subject to appeal. The extent of the obligation depended upon the scope of the appellate review. I agree with what Kirby P said (at 259):
“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.”
I also agree, without setting it out, with the approach taken by Mahoney JA and his adoption of the approach of McHugh JA when he said (at 280):
“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 … the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.”
More recently, in Papps v Police (2000) 77 SASR 210 the Full Court of this Court, approving of the same decisions, has held that a failure to give adequate reason (that is reasons adequate for the purpose of appellate review) is an error of law: at 218 [33].

Doyle CJ then addressed the extent of the reasons required and, on this topic, referred to the remarks of McHugh JA that he had earlier extracted. Reference was then made to the observations of Kirby P in Winner.[4] Doyle CJ then turned to the particular circumstances of the proceeding then before the Court.
[4] R v Winner (1995) 79 A Crim R 528, 530-1.
In AK v Western Australia,[5] the High Court considered the obligation on a trial judge when giving reasons for verdict in a judge alone trial. Gleeson CJ and Kiefel J referred to the earlier High Court decision in Fleming[6] and observed:[7]
[5]    AK v Western Australia (2008) 232 CLR 438.
[6]    Fleming v The Queen (1998) 197 CLR 250.
[7]    AK v Western Australia (2008) 232 CLR 438, [16].
… All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant's arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution.
[Emphasis added.]
Gummow and Hayne JJ observed:[8]
… The principles of law that are relevant will be identified by reference to the issues in the case. Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached”.
…
As the Court's reasons in Fleming explained, if a judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding the failure, the principle was applied. Adapting what was said in Fleming to the applicable Western Australian provisions, if that is so, there has been a breach of s 120(2) of the Criminal Procedure Act by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 120(2), there has been an error of law which would attract at least s 30(3)(b) of the Criminal Appeals Act (wrong decision on a question of law) or, we would add, s 30(3)(c) (miscarriage of justice). And as the Court went on to say, “[u]nless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded”.
[Footnotes omitted. Emphasis added.]
Heydon J summarised the obligation of the trial Judge as follows:[9]
… The failure was almost as complete a failure as could be imagined, for apart from stating that the complainant was “generally a thoughtful and truthful witness”, noting the absence of prompt complaint, recording his conclusion that the events she described took place, and recording that the appellant was responsible for them, he said nothing more about any findings of fact he relied on. The appellant submitted correctly that the obligation created by s 120(2) is not “satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict”. It is clear from the trial judge's interventions in argument that he was attracted towards a particular reasoning process; the problem is that he did not state it in his judgment. In the circumstances it is not necessary to elaborate on the various ways in which the trial judge might have fulfilled the s 120(2) obligation, beyond the following. Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. …
[Footnotes omitted. Emphasis added.]
[8]    AK v Western Australia (2008) 232 CLR 438, [44], [48].
[9]    AK v Western Australia (2008) 232 CLR 438, [85].
The defendant submitted that the Judge failed to make findings of fact sufficient to support each of the counts, with the possible exception of counts 8 to 11. It was pointed out that several counts involved evidence, not only from the complainant, but also from another witness. It was said that there were material differences in the accounts of the incidents and that the Judge, although recording some of the differences in his summary of the evidence, failed to further address or resolve the differences. I accept those submissions. The point is readily demonstrable on a consideration of count 1.
The incident the subject of this count was alleged by the complainant to have occurred in August or September 2007. She said that the defendant was driving to the home of the complainant’s friend, Ms Gbele. The defendant’s vehicle was stationary at an intersection when another vehicle flashed its lights into the defendant’s face. He became agitated and started swearing at the driver of the other vehicle. The complainant tried to calm him down, but this led the defendant to swear at her. He then struck her twice on the chest with his open hand. The defendant then lent over the complainant, opened the passenger’s side door from inside the vehicle and pushed her out of the car. According to the complainant, she was three to four months pregnant with their first child.
Ms Gbele gave a very different version. She described an argument developing between the complainant and the defendant. She said that the complainant was six to seven months pregnant at the time. She said the defendant was angry and that, when the car was stopped in traffic, the defendant went and opened the door from the complainant’s side and dragged the complainant from the car. She said that the complainant held onto something close to the seatbelt and the defendant pulled her hand away. She said that the defendant did not hit the complainant before he walked out of the car and opened her door and pulled her out. Although she said she heard an argument, she did not hear swearing.
The defendant denied that any such incident had occurred, whether as described by the complainant or by Ms Gbele.
During his final address, defence counsel drew specific attention to the differing accounts given by the complainant and Ms Gbele, emphasising the stark conflict and suggesting that the differences should lead to adverse conclusions concerning the credibility and reliability of the complainant.
In the above circumstances, it was critical for the Judge to make findings of fact as to how the suggested incident occurred. It was not possible to proceed to consider the count without doing so. The Judge’s reasons do not disclose which account he preferred, nor do they explain why he was satisfied beyond reasonable doubt of the commission of the assault described by that account having regard to the starkly conflicting testimony given by the complainant and Ms Gbele. The Judge did not address the defence submissions. The Judge failed to meet his obligation as referred to in AK v Western Australia.[10]
[10] AK v Western Australia (2008) 232 CLR 438.
These problems were compounded by the Judge’s conflicting conclusions as to reliability. He first contended that “much of [the complainant’s] evidence is believable and reliable” and that this was not only in respect of her evidence concerning the charged and uncharged acts and the conduct of the accused, but also in regard to the surrounding circumstances. The Judge concluded that he was satisfied that the account of Ms Gbele of what she saw and heard formed a reliable basis upon which to consider and determine the verdicts.
In my view, the Judge’s verdict on count 1 should be set aside. The Judge failed to make findings of fact sufficient to support his verdict. The Judge failed to explain how he had resolved the conflict in the accounts of the complainant and Ms Gbele. The Judge failed to address defence counsel’s pertinent submissions. The Judge failed to consider the impact on the complainant’s credibility and reliability of the stark conflict between the complainant and Ms Gbele. It was incumbent on the Judge to explain through his reasons how he resolved such conflicts, particularly in circumstances where there had been a considerable delay between the conclusion of the trial and the provision of reasons. He did not do so.
There was conflicting evidence between the complainant and prosecution witnesses in regard to a number of the counts. For example, on count 2, the complainant gave evidence that the defendant hit her with his open hand to the back of her neck, pushed her onto the floor and kicked her in the stomach. He then went to the kitchen, saying that he was going to get a knife to “open [the complainant’s] stomach to take this baby out”. The defendant came back from the kitchen with a large knife and told her again that he was going to open her stomach. He pressed the knife down on her stomach and it broke her skin a little. According to the complainant, Ms Gbele came out of her room and, on seeing the accused, said, “Oh my God”. The defendant stood up, threw the knife into the kitchen and said to Ms Gbele, “Please don’t call the police”. The complainant said that the cut from the knife caused a scrape.
Ms Gbele’s evidence was that she saw the defendant hit the wall with his hand and that he went outside, then came back in, went straight to the kitchen and came back with a knife. The complainant was sitting in the chair and the defendant pulled the knife across her stomach, very close to her skin. She could not recall any conversation with the defendant. She did not recall seeing any bleeding. She did not give evidence of the defendant kicking the complainant and did not see the complainant on the floor.
The differences in the accounts given by the complainant and Ms Gbele are significant, although not perhaps as stark as in regard to count 1. There were also differences regarding the complainant’s evidence in regard to count 6 and in regard to one of the uncharged acts.
Again it was incumbent on the Judge to make findings. He did not do so.
Defence counsel at trial placed particular emphasis on what were said to be material and significant inconsistencies between the complainant’s evidence and her out of court statements. In regard to several counts, the complainant had told the police and other hospital staff that she had been assaulted by persons other than the defendant. The Judge dealt with these complaints in generality and simply concluded that they were, in his view, of little or no significance.
Leaving aside counts 8 to 11, the Judge’s failure to make findings of fact in regard to the other counts represents a significant departure from the obligation of a judge to make findings and, in the light of those findings, consider whether the elements of each particular count were made out. The inconsistencies in the complainant’s accounts, not only with respect to other prosecution witnesses, but also in respect of inconsistent out of court statements, needed to be addressed. The Judge failed to address these issues.
The Judge has not explained how he reached his satisfaction beyond reasonable doubt on each of the counts, with the possible exception of counts 8 to 11. This created a major difficulty. To adopt the earlier extracted observations of Gummow and Hayne JJ:[11]
… The principles of law that are relevant will be identified by reference to the issues in the case. Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached”.
…
As the Court's reasons in Fleming explained, if a judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding the failure, the principle was applied. Adapting what was said in Fleming to the applicable Western Australian provisions, if that is so, there has been a breach of s 120(2) of the Criminal Procedure Act by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 120(2), there has been an error of law which would attract at least s 30(3)(b) of the Criminal Appeals Act (wrong decision on a question of law) or, we would add, s 30(3)(c) (miscarriage of justice). And as the Court went on to say, “[u]nless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded”.
[Footnotes omitted. Emphasis added.]
[11] AK v Western Australia (2008) 232 CLR 438, [44], [48].
Earlier in these reasons, reference has been made to the relevance of a right of appeal. It is necessary for a trial judge to provide reasons that are adequate to enable the appeal court to perform its function. The Judge has not attended to this obligation. It is not possible for this Court to understand what findings of fact the Judge considered appropriate and how such findings could be arrived at. It is not possible for this Court, on a reading of the transcript, to reach any conclusions as to credibility and reliability. The task of the appellate court has been severely compromised.
In my view, the consequences of these observations is that the verdicts on counts 1, 2, 3, 4, 5, 6, 7 and 12 should be set aside and a retrial ordered.
The circumstances surrounding counts 8 to 11 were addressed by the Judge. According to the complainant, following an argument and swearing, the defendant said that he was going to crash the car, baby or no baby, and kill everyone. The defendant then started speeding and, when he saw a police car ahead, he braked. The complainant said she was thrown forward, striking her head on the side of the car. The baby in the middle car seat was thrown forward and struck the seat in front. According to the complainant, the defendant then drove into a side street and parked. The defendant got out of the car, undid the restraining harness for one of the children, picked the child up and threw her onto the road.
According to the complainant’s sister, the defendant said, following an argument, that he was sick of everyone in the car and that he was going to kill everyone in the car. The complainant’s sister said that the defendant then accelerated, that there was an incident with another car, that she saw a police car, that the defendant stopped and that her head hit part of the car. The defendant then said that everyone should get out of the car and he went to the boot and removed a pram. In cross-examination, the complainant’s sister said that the braking of the car followed a near miss with another car. She said that no one was injured. The complainant’s sister provided no support for the assertion that a child had been thrown onto the road and that another child had been ejected from a car seat.
The defendant acknowledged that an incident occurred, but denied that he had committed an offence. His account of the incident differed to that of the prosecution witnesses.
The Judge made the following findings in regard to counts 8 to 11:
Counts 8, 9, 10 and 11 charge the accused with an act creating a risk of serious harm. The same act is alleged in each of these four counts. That act was that he, without lawful excuse, drove a motor vehicle at excessive speed knowing that that act was likely to cause serious harm, respectively to [the complainant], [the complainant’s sister], A and S, intending to cause such harm to them or being recklessly indifferent as to whether such harm was caused.
These charges relate to the evidence of [the complainant] and [the complainant’s sister] that on their way home from a party at a house at Modbury the accused, when he was driving the car, said that he was going to crash the car, baby or no baby, and kill everyone ([the complainant]) or that he was sick of everyone in the car and he was going to kill everyone in the car ([the complainant’s sister]). I consider that those statements are to the same effect and I am satisfied and find that the accused said that he was going to kill everyone in the car. I find that having said that the accused accelerated such that the car was travelling at least at 80kph when he saw a police car ahead at a testing station and braked hard.
I am satisfied beyond reasonable doubt that the accused consciously and deliberately performed that act which was likely to cause serious harm to all of the occupants of the car, including [the complainant], [the complainant’s sister], A and S.
I am also satisfied beyond reasonable doubt that at the time he did that the accused knew that his act was likely to cause serious harm to each of his four passengers.
I am also satisfied beyond reasonable doubt that the accused did not have any lawful excuse for his act.
Following the making of these findings, the Judge then addressed the defendant’s state of mind and concluded:
As to the accused’s state of mind, I consider that the accused probably intended to cause serious harm to each of his four passengers or he was probably recklessly indifferent as to that. However, I consider that there is a reasonable possibility that he did not intend to cause any of them serious harm, or that he was recklessly indifferent as to causing any of them serious harm.
I am, however, satisfied beyond reasonable doubt that the accused was recklessly indifferent as to whether what he did would cause harm to each of his four passengers. I am not satisfied that the accused’s state of mind was such that I can find that he positively intended to cause any of his passengers serious harm or even harm. I am not satisfied beyond reasonable doubt that the accused was recklessly indifferent as to whether what he did would cause serious harm to any of them. His earlier conduct towards [the complainant], when at the very least he was recklessly indifferent as to whether he caused her serious harm, in the incident the subject of these four counts [the complainant’s sister] was in the car as well as his two children. In those circumstances I cannot be satisfied other than that the accused was recklessly indifferent as to whether what he did would cause harm to each of his four passengers. I am satisfied of that beyond reasonable doubt as to each of these four counts.
[Emphasis added.]

The failure of the Judge to make findings resolving the conflicting testimony on the other counts compromises the Judge’s conclusions on these counts. As the emboldened sentence shows, the Judge’s finding as to the defendant’s state of mind when driving as he did was necessarily dependent on findings about his previous conduct against the complainant. The Judge’s failure to give adequate reasons for his findings about that conduct also leaves his conclusion that the defendant was recklessly indifferent as to the causation of harm unexplained.
A Comment About Delay
Mere delay is not, of itself, a ground of appeal. It does not, in and of itself, indicate that a trial miscarried or that the verdict is in any way unsafe.[12] In Maxwell,[13] the Court of Criminal Appeal of New South Wales dealt with an appeal against conviction for murder after a trial by judge alone. There was a delay of 10 months between the conclusion of the trial and the Judge's decision. On the issue of delay, the Court observed:[14]
… Delay is not, however, of itself, a ground of appeal. Nor does the delay in and of itself indicate that the trial miscarried or that the verdict is in any manner unsafe. Nevertheless, a comparison between the judgment and the issues in the trial may indicate that the effect of delay has been such as to constitute a miscarriage of justice. …
Reference was made to the decision in Goose v Wilson Sandford & Co,[15] where the English Court of Appeal commented on the effect of the eroding of public confidence in the judicial process through delay between trial and judgment. The Court in Maxwell further observed:[16]
Public confidence in the judicial process is of particular significance in the administration of the criminal law. Indeed one of the most important aspects of the welfare and stability of Australian society is the hard earned, but widespread, belief that judges administering the criminal law do so with competence, fairness and impartiality. The administration of criminal justice is of great significance in the preservation of the liberty of Australian citizens. This court must be rigorous in ensuring that judicial conduct in the course of criminal trial does nothing to disappoint the high expectations which the community as a whole has of the judiciary in this regard.
Although mere delay is not a ground of appeal, this court must apply the strictest of scrutiny to a criminal judgment which may have been affected by the inevitably adverse consequences of delay.
[12] R v Maxwell (1998) 217 ALR 452, 462; Monie v Commonwealth of Australia (2005) 63 NSWLR 729, [44].
[13] R v Maxwell (1998) 217 ALR 452.
[14] R v Maxwell (1998) 217 ALR 452, 462.
[15] Goose v Wilson Sandford & Co (1998) 142 SLJB 92.
[16] R v Maxwell (1998) 217 ALR 452, 463.
Reference should also be made to the following observations of the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Planning Commission (WA), where there had been lengthy delay in civil proceedings between trial and judgment:[17]
Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell, unreported; CCA SCt of NSW; 23 December 1998. Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve. …
[17] Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273, [28]-[36].
As noted above, a court of appeal is to apply strict scrutiny to a judgment which may have been infected by the adverse consequences of delay. Delay is likely to require a more comprehensive statement of the basis of the findings of a trial judge and for the basis of his satisfaction of the elements of the offence than would normally be required.[18] That did not occur in the present proceeding.
[18] R v Maxwell (1998) 217 ALR 452, 463.
Where there is significant delay, it is incumbent upon the appellate court to look with special care at any findings of fact challenged on appeal. The usual advantage that a trial judge has in seeing and hearing the evidence is likely to be weakened.[19] Delay may assist in establishing error because the inference might more readily be drawn that a failure to deal with particular matters upon which an applicant relied in contradiction of the prosecution case resulted from those matters being overlooked, either because of the time which has passed or because of the pressure on the judge to complete the judgment.[20]
[19] R v Maxwell (1998) 217 ALR 452, 463; citing Goose v Wilson Sandford & Co (1998) 142 SLJB 92.
[20] Monie v Commonwealth of Australia (2005) 63 NSWLR 729, [44].
Conclusion
For these reasons, I would allow the appeal and order that the defendant be retried. As there is to be a retrial, it is not appropriate to comment further in regard to the factual allegations giving rise to the complaints. It is also unnecessary to consider further the detailed complaints advanced by the defendant on the appeal. Issues of duplicity, including latent duplicity, can be addressed at the retrial in accordance with the well established authorities on those topics. Issues concerning the admissibility of evidence and the proper use of evidence will be matters to be the subject of submission to the Judge conducting the retrial.
STANLEY J: I agree that the appeal should be allowed for the reasons given by Gray J. I would set aside the verdicts of guilty in relation to each of the counts and order a retrial.