R v D, L - [2015] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v D, L
[2015] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)
10 March 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
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
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - PARTICULAR CASES
This is an appeal against conviction, by a Judge alone, of one count of persistent sexual exploitation of a child, in contravention of section 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant gave evidence of various acts, that comprise indecent assault or unlawful sexual intercourse, by the defendant while the complainant was between 5 and 15 years old. While the prosecution called various other witnesses, including members of the complainant’s family, the prosecution case was largely reliant upon acceptance by the Judge of the credibility and reliability of the complainant’s evidence. The defendant gave evidence denying any sexual activities with the complainant.
The first ground of appeal is that the Judge erred as a matter of law in his application of the burden of proof. This ground is based on a statement by the Judge in his reasons, that, although not determinative of the case, having listened to the complainant over a number of days, the Judge simply believed him and found him to be reliable and the Judge had the same view at the end of all of the evidence.
The second ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence. The defendant contends that there were inconsistencies and implausibilities in and in relation to the complainant’s evidence, which must have led to a reasonable doubt about acceptance of his evidence; and there was no reason to reject beyond reasonable doubt the defedant’s evidence.
The third ground is that the Judge erred as a matter of law in failing to give adequate reasons. The defendant contends that the Judge did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant.
Held: by Blue J (Kourakis CJ and Bampton J agreeing):
1. The Judge’s reasons, read in context, demonstrate that the Judge only made a tentative and provisional assessment of the complainant’s evidence at the end of his evidence and only made a final assessment at the end of all of the evidence (at [50], [52]).
2. Observations about what must be established to make out a ground of appeal that the verdict is unreasonable or cannot be supported having regard to the evidence and common confusion between this ground and a ground challenging adequacy of reasons in a trial by judge alone (at [63]-[67]).
3. It was open to the Judge to accept the complainant’s evidence and reject the defendant’s evidence. The verdict is not unreasonable or incapable of being supported, having regard to the evidence (at [130]-[131]).
4. The Judge’s reasons were not inadequate as a matter of law (at [138]-[140], [143], [145], [147]-[149]).
5. Appeal dismissed (at [150]).
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 353(1), s 352, s 353; Evidence Act 1929 (SA) s 34M; Juries Act 1927 (SA) s 7(4), referred to.
Haw Tua Tau v Public Prosecutor [1982] AC 136, applied.
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; M v The Queen (1994) 181 CLR 487; R v Dennis [2010] SASC 69, (2010) 202 A Crim R 453; R v Keyte (2000) 78 SASR 68, discussed.
AK v The Queen [2008] HCA 8, (2008) 232 CLR 438; Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; Lawson v Lee (1978) 19 SASR 442; Papps v Police [2000] SASC 183, (2000) 77 SASR 210, considered.

R v D, L
[2015] SASCFC 24
Court of Criminal Appeal: Kourakis CJ, Blue and Bampton JJ

KOURAKIS CJ: I agree that the appeal should be dismissed for the reasons given by Blue J.
BLUE J:
This is an appeal against conviction.
The defendant was convicted after a trial by Judge alone in the District Court of persistent sexual exploitation of a child between 1984 and 1994.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 50(1).
The defendant appeals and seeks permission to appeal against his conviction on three grounds:
1.the Judge erred as a matter of law in his application of the burden of proof;[2]
2.the verdict is unreasonable or cannot be supported having regard to the evidence;[3] and
3.the Judge erred as a matter of law in failing to give adequate reasons insofar as he did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant and consequently his conclusion of proof beyond reasonable doubt.[4]
[2]    Ground 2 in the notice of appeal but argued by the parties first. Permission to appeal on this ground was refused by a Judge. The defendant renews his application for permission to appeal to this Court.
[3]    Ground 1 in the notice of appeal. Permission to appeal on this ground was granted by a Judge.
[4]    Ground 3 introduced by amendment pursuant to permission to amend the notice of appeal granted during the hearing of the appeal. Permission to appeal on ground 3 is sought from this Court.
Background
The defendant was born in October 1952 and was 31 years old in 1984 when the offending allegedly began. He was then married to W. They had one daughter and lived in a house at Christies Beach.
The complainant was born in February 1979 and was five years old in 1984 when the offending allegedly began. He was living at Moana at that time with his father, mother, older sister and younger brother. He is a nephew of the defendant, his mother being W’s sister. The complainant and his family moved to Mount Compass when he was nine years old.
The complainant’s father worked seven days a week and his mother worked full time. The complainant and his siblings stayed with the defendant and his family from time to time. There was a dispute at trial about the extent to which this occurred.
When the complainant was young, the defendant had a slot car track set up in the lounge room of his house at one point. There was a dispute at trial whether it was permanent or temporary and whether the complainant played with it more than once. The complainant gave evidence, and the defendant denied, that the defendant touched him on his private parts or genital area over his clothing while they were in the lounge room playing with the slot cars and this was subsequently repeated “quite often” over the next few years. The complainant said that he was “about five” (about 1984[5]) when this started.[6]
[5] The complainant gave evidence generally by reference to his approximate age at the time or the number of years before he gave evidence or another event occurred. The complainant did not give evidence by reference to the year except indirectly by calculating it from his age or the number of years before he gave evidence. The year is included in parentheses to give an objective indication when the complainant was of a certain age.
[6] The complainant gave evidence that he was not good with dates. He generally referred to being “about” or “close to” or “going on” an age in years. He did not necessarily give evidence that events occurred in the order set out herein.
The complainant gave evidence that the defendant told him that what occurred was normal and not to tell anyone about it. He gave evidence that the defendant later said about various activities between them that the complainant was not to tell anyone because the defendant would get into trouble and he would not want that to happen to his uncle. He gave evidence that the defendant later said that the defendant would use a gun that he had on the complainant and his family if he told anyone. The defendant denied that these things were said.
The complainant gave evidence, and the defendant denied, that later on the defendant showed him pornographic videos and magazines with Asian content in the lounge room and this was subsequently repeated. The complainant said that he was “about seven” (about 1986) when this started. The defendant denied showing to the complainant pornographic videos or magazines.
The defendant had a computer in the house on which the complainant played computer games. The complainant gave evidence, and the defendant denied, that the defendant masturbated himself and showed the complainant what to do and subsequently they both masturbated on more than one occasion, which he described in cross-examination as being about three, four times. The complainant said that he was “about seven” (about 1986) when this started.
The complainant gave evidence of an occasion when the family visited his grandmother’s house on Christmas day and the defendant was present. He gave evidence, and the defendant denied, that the defendant gave him a remote control monster truck and touched him on his genital area over his clothing. The complainant said that he was “nine ... or seven” (1988 or 1986) when this incident occurred.
The complaint gave evidence that the defendant took him to a slot car venue called Redline. The complainant gave evidence, and the defendant denied, that the defendant touched him on his genital area over his clothing in the car on the way and this was repeated on subsequent visits to Redline. The complainant said that he was “close to nine” (about 1988) when this started.
The defendant permitted the complainant to ride his Yamaha motorbike. The complaint said that he was “nine, ten, onwards” when he started riding the motorbike “right up until about 15”. The defendant said this did not occur until the complainant was at least 15.
The defendant used to grow marijuana in a shed at his house (shed 1). He initially grew marijuana outside the shed and later grew it hydroponically inside the shed. The complainant gave evidence, and the defendant denied, that the defendant gave him marijuana to smoke and this was repeated nearly every time he stayed with the defendant after that. The complainant said that he was “age nine” (about 1988) when this started.
In July 1989 (when the complainant was ten years old), a second daughter, D, was born to the defendant and W.
The defendant built a second shed at his house (shed 2). He started growing marijuana hydroponically in shed 2 instead of in shed 1. He installed a slot car track in shed 2. The complainant gave evidence, and the defendant denied, that they performed oral sex on each other in shed 2 and subsequently this was repeated numerous times in shed 2. The complainant said that he was “around 12” (about 1991) when shed 2 was built and that he was “past nine going on to 12” when the oral sex in shed 2 started. The defendant gave evidence that the shed was built in 1991 but he did not install the slot car track or marijuana in the shed until June 1993 (when the complainant was 14 years old).
The defendant also grew marijuana at Cherry Gardens. The complainant gave evidence, and the defendant denied, that the defendant took him to Cherry Gardens and they performed oral sex on each other and this was repeated several times. The complainant said that he was “over 12, 12 nearly” (about 1991) when this started.
While the defendant was still married to W, he commenced an affair with another woman. The defendant took the complainant to her unit in Adelaide and the defendant set up hydroponic equipment to grow marijuana. The complainant gave evidence, and the defendant denied, that the defendant gave him oral sex at the unit. The complainant said that he was “close to 12” (about 1991) when this occurred and it only occurred once. He said that he did not meet the other woman and did not see any marijuana growing there.
When the complainant was 15 years old, and his cousin D was five years old, he put his finger into D’s vagina in shed 2. It was an agreed fact at trial that this occurred on 28 August 1994. The complainant gave evidence, and the defendant denied, that on the same day he had performed oral sex on the defendant in shed 2 and been allowed to ride the motorbike as a reward. That day or the next day, D’s mother W told the complainant’s mother, who in turn told the complainant, that D had been molested. The complainant admitted to his mother what he had done to D. W told the defendant about it a week later. After that, the complainant was not permitted to stay with the defendant’s family, although he did visit.
The complainant was charged with indecent assault of D and appeared in the Youth Court. He agreed at a family conference to undergo counselling with a psychologist for at least a year, which he did.
In about 1998 or 1999, the defendant and W permanently separated and then divorced.
The complainant subsequently entered into a relationship with his now wife and after about a year moved in to live with her at her father’s house. They later moved into rental properties and then bought a house at Aldinga. They married and in due course had two children.
The complainant gave evidence that “at the beginning” of the relationship he told his now wife that he had been sexually abused as a child. He did not say by whom or give any other details. He was asked in evidence-in-chief what year the relationship began and he said “We have been together for around 11 years now, so that would have been 2003, 2004.”
In 2007 or 2008, D made a claim for compensation under the Victims of Crime Act 2001 (SA) in relation to the 1994 indecent assault. She was encouraged to make and assisted in making the claim by the defendant. In October 2009, an order was made by the District Court that she be paid compensation of $50,000. The complainant gave evidence that he received a telephone call from the Director’s office and attended at the office. He was told that D had made a claim for compensation arising out of the indecent assault. He asked whether he would have to pay any compensation and was told that he would not because of his age at the time. He gave evidence that he later learnt that the defendant had encouraged D to make the claim.
In the year or two before the complainant went to the police (about 2010), he visited the defendant at the defendant’s Christies Beach house. They smoked marijuana and the complainant asked for a cannabis cutting. The complainant gave his phone number to the defendant. The complainant said nothing about sexual abuse when he was a child. The complainant gave evidence that he had gone to the house because he told his counsellor about having been sexually abused as a child and she suggested that he do something about it, stand up for himself and see what the defendant was doing.
The complainant later made a second visit to the defendant. The complainant sold some marijuana to the defendant. The complainant said nothing about sexual abuse when he was a child.
On 21 December 2011, the complainant attended the Christies Beach police station and told a police officer that he had been sexually abused by the defendant when he was a child. Constable Vaninetti prepared a four page statement arising out of that conversation.
On 28 December 2011, the complainant attended at the Christies Beach police station and spoke to Detective Perry. Detective Perry prepared a statement arising out of that conversation which the complainant in due course signed.
On 27 April 2012, the complainant attended at the Director’s office and spoke to Detective Perry and an employee of the Director’s office. A statement arising out of that conversation was prepared which the complainant in due course signed.
On 5 June 2012, the complainant attended and spoke to Detective Perry. Detective Perry prepared a four page statement arising out of that conversation which the complainant in due course signed.
The trial
The prosecution called several witnesses in addition to the complainant, including his wife, mother, father, sister, brother and aunt W.
The defendant gave evidence. He denied that he engaged in any sexual activity with the complainant. He admitted growing marijuana in shed 1, shed 2 and at Cherry Gardens and preparing to grow it at the Adelaide unit. He admitted having an affair with the woman living in the Adelaide unit. He admitted permitting the complainant to ride his motorbike when the complainant was 15 years old. He denied that any of these were associated with sexual activities with the complainant.
The defendant’s case was that the complainant fabricated the allegations against him motivated by ill-will harboured towards the defendant for having encouraged D to make a compensation claim against him, telling people in Mount Compass about the complainant’s indecent assault of D and thereby causing his bankruptcy. The defendant’s case was that the complainant’s family, and in particular his mother and aunt W (his ex-wife), harboured ill-will towards him and actively encouraged the complainant to pursue the allegations against him.
The Judge’s reasons
The Judge observed that proof of the charges beyond reasonable doubt depended on his both accepting beyond reasonable doubt the truthfulness and reliability of the complainant and rejecting beyond reasonable doubt the evidence of the defendant denying the sexual acts alleged.
The Judge summarised the evidence for the prosecution and the defence and essential differences between them in relation to the charged conduct.
The Judge referred to the defence case that the complainant’s allegations were motivated by ill-will towards the defendant by the complainant and his family over the defendant’s conduct in relation to the indecent assault of D and referred to the prominence in the case of the issues associated with D’s compensation claim, the visits in about 2010 by the complainant to the defendant and the statements made by the complainant concerning sexual abuse to his now wife.
The Judge held that the disclosure to the complainant’s wife about sexual abuse as a child did not amount to a complaint within the meaning of and was not admissible under section 34M of the Evidence Act 1929 (SA).
The Judge summarised the defence case as follows:
Although I have touched upon aspects of the defence case earlier in these reasons, I come back to the major points. The defence case can be stated in two, perhaps three, main ways.
First, there was an attack upon the truthfulness and reliability of [the complainant] on a number of bases, including inconsistencies within his evidence as compared with earlier statements by him. Further, it was suggested his visits to the accused in recent times are inconsistent with his allegations and that he had a motive to lie in the form of financial compensation once he became aware of the payout to [D].
Secondly, it was submitted that the accused gave evidence and his account was not so shaken in cross-examination that I could reject his evidence. (I note that even if I was to reject the evidence of the accused, and that would have to be a rejection beyond reasonable doubt, that does not mean that the allegations are proved beyond reasonable doubt – I would need to be independently satisfied beyond reasonable doubt about the allegations and charge before I could convict.)
Thirdly, which is really a combination of the first two, it was submitted that having regard to the inconsistencies and implausibility in [the complainant]’s account, plus the unshaken denials of the accused, there is insufficient truthful and reliable evidence for me to be satisfied as to guilt.
I have re-read and considered all the submissions on behalf of the accused. I elaborate on the main areas of criticism of [the complainant]. I have dealt with some of the other criticisms throughout these reasons.
It is clear to me that some of [the complainant]’s evidence about when some events occurred is inaccurate. I acknowledge that and have given careful consideration to it.
It was submitted that [the complainant] bore long-term ill-feeling towards the accused and that he was encouraged, particularly by [W], to go to the police. Clearly there was some encouragement, but that was not, in my view, to make a false allegation. Animosity towards the accused came through from the evidence of some family members, but the precise cause of it is unclear. Clearly, the accused and [W] had drifted apart over a number of years and it reached the stage where the accused had a girlfriend while still living with [W], which he told [W] about. It reached the stage that she did not like him at the end and the precise causes remain unclear and may not have all been on show during the trial. I reject the submission [the complainant] or [W] were vengeful.
Earlier in these reasons I dealt with some of the evidence related to later visits by [the complainant] to the accused’s home and their dealings in cannabis. The clear impression I have from [the complainant]’s evidence is that he was going to confront the accused, not actually about the claimed abuse, but rather the person. It should not be overlooked that, by that time, [the complainant] was a heavily built man in his thirties and the accused did not present as a physical threat. I have given this aspect of the case careful consideration. On its face it seems inconsistent with the alleged abuse but, at the same time, I find it was part of [the complainant]’s way of dealing with his past.

The Judge assessed the complainant’s evidence as follows:
I consider that [the complainant] gave evidence in a forthright and convincing manner. That is not to say, however, that his evidence was without its problems in terms of apparent inconsistencies and implausibility. I do not have to accept everything he says to be satisfied of the charge. I am only too well aware that, individually and cumulatively, inconsistencies and implausibility and other matters may reach the stage of denying proof beyond reasonable doubt.
His presentation was that of a man endeavouring to tell the truth. Having listened to his answers, watched him, noted his pauses and hesitations, including his bewilderment at the form of some of the questions, those matters and others convinced me of that. He was describing real events that happened to him and was not led by the suggestions of others. Without wishing to be unkind to him, he is not intellectually bright. His spelling on the plan, Exhibit P4, provides some illustration of that. He is a straightforward man, lacking in keen intellectual and verbal skills. He lacks guile. Some of his answers reflected some of these attributes (T96, 119). These attributes provide some insight into the person making the allegations. I am also conscious of the fact that he was a long-term user of drugs.
I also accept him as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being “stoned”), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years (T64, 101‑102, 105, 180).
Even though he said he lied on one occasion, I do not consider that he deliberately told an untruth, rather he was careless in the way he answered; there is a clear difference. He corrected himself (T146-150). Although it is not determinative of the case, having listened to [the complainant] over a number of days, I simply believed him and found him to be reliable. I had the same view of him at the end of all of the evidence.
The Judge assessed the defendant’s evidence as follows:
I have touched sufficiently on his evidence earlier in these reasons. I have had regard to all of it. (I have ignored the application pursuant to s 18 of the Evidence Act 1929. I refused the application without hearing full argument, but note the argument itself has the potential to compromise the trial Judge when sitting without a jury.)
I was unimpressed by the accused’s presentation. I found his answers to be glib and evasive on some topics, particularly about the number and duration of occasions when [the complainant] and his siblings stayed or the accused was alone with [the complainant] (T339-342). In addition to that, the accused was, in my view, understating [the complainant]’s interest in slot cars and using the track in Shed 2 because the use of the slot car track provided an opportunity for sexual misconduct (T337-338). I also thought his answers on the aspect of adult pornography quite evasive (T342-343; [W] T203-204, 223).
The Judge then gave himself a detailed direction concerning the significant forensic disadvantage laboured under by the defendant as a result of the alleged events having occurred decades ago.
The Judge concluded:
I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the accused on substantive issues where he denied the alleged sexual conduct.
I find that the accused sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.
I find the accused guilty.
Burden of proof
The first ground of appeal argued is that the Judge erred as a matter of law in his application of the burden of proof.
The defendant contends that the Judge made his assessment of the credibility and reliability of the complainant’s evidence at the end of the complainant’s evidence and thereafter did not retain an open mind as to his credibility and reliability when evidence was given by other prosecution witnesses and the defendant. This infected his Honour’s application of the burden of proof, with the effect of casting the burden on the defendant.
It is trite law, and an axiomatic principle of procedural fairness, that a trier of fact must keep an open mind in relation to the evidence until all of the evidence has been heard. In Haw Tua Tau v Public Prosecutor,[7] Lord Diplock speaking for the Privy Council said:
Whoever has the function of deciding facts on the trial of a criminal offence should keep an open mind about the veracity and accuracy of recollection of any individual witness, whether called for the prosecution or the defence, until after all the evidence ... has been heard and it is possible to assess to what extent (if any) that witness's evidence has been confirmed, explained or contradicted by the evidence of other witnesses.[8]
[7] [1982] AC 136.
[8] Ibid at 150-151.
The defendant’s principal contention is that the following sentence from the Judge’s reasons demonstrates that the Judge made his assessment of the complainant’s evidence prematurely and did not keep an open mind about the evidence:
Although it is not determinative of the case, having listened to [the complainant] over a number of days, I simply believed him and found him to be reliable.
The defendant accepts that no error is made by a trier of fact forming tentative or provisional views of the credibility and reliability of a witness during and at the end of the witness’s evidence, provided that the trier of fact keeps an open mind about those matters. It is human nature to form such views and indeed for a trier of fact to avoid doing so would suggest an abdication of the obligation to pay proper attention to the evidence as given. The defendant contends, however, that the Judge’s statement demonstrates that his Honour trespassed beyond forming tentative or provisional views while the complainant gave his evidence.
It is important to consider the context in which this sentence appears in the reasons for judgment. It was the penultimate sentence in four paragraphs addressing the complainant’s evidence, including the complainant’s presentation, the manner in which he gave his evidence and the impression formed by the Judge while the complainant was giving his evidence. It was after the Judge said that he had taken into account inconsistencies and other matters that may reach the stage of denying proof beyond reasonable doubt, necessarily implying that the Judge had considered external inconsistencies with other evidence as well as internal inconsistencies in the story told by the complainant.
The sentence in question and the four paragraphs of which it formed part followed the Judge’s summary of the evidence of the complainant and the defendant and where they diverged. It followed the Judge’s references to the indecent assault of D and its ramifications, the 2010 visits by the complainant to the defendant and the Judge’s analysis of the complainant’s wife’s evidence concerning the disclosure, such as it was, made to her by the complainant of childhood sexual abuse. It followed the Judge’s summary of the other prosecution witnesses’ evidence and of the defence case which involved the combination of an attack upon the complainant’s credibility and reliability and a contention that the defendant’s evidence could be rejected beyond reasonable doubt.
The Judge prefaced his statement by the words “Although it is not determinative of the case”. If the sentence had stood alone, those words might be regarded as ambiguous and either referring to the fact that such views can only ever be tentative or provisional or alternatively to the fact that a finding of guilt also required rejection of the defendant’s evidence beyond reasonable doubt. However, the next sentence referring to the Judge’s view of the complainant at the end of all the evidence shows that these words have the former meaning. The next sentence demonstrates that the Judge was aware of and applied the axiomatic principle that it was his assessment of the complainant’s evidence at the end of all of the evidence that was determinative and impressions formed before that point were only tentative and provisional. Read together, the final two sentences of the Judge’s discussion concerning the complainant make this plain:
Although it is not determinative of the case, having listened to [the complainant] over a number of days, I simply believed him and found him to be reliable. I had the same view of him at the end of all of the evidence.
The defendant makes a subsidiary contention that the Judge failed to address a number of internal and external inconsistencies in relation to the complainant’s evidence that he was required to address in his reasons for judgment and this failure demonstrates prejudgment of the complainant’s credibility. The alleged inadequacy of the reasons for judgment is now an independent third ground which I address below. Regardless of whether that independent ground is made out, the Judge nevertheless addressed some alleged inconsistencies in relation to the complainant’s evidence and, having analysed his reasons as a whole, there is no basis to conclude that the Judge prejudged the complainant’s credibility.
Conclusion as to first ground
The Judge did not err as a matter of law in his application of the burden of proof. Permission to appeal on the first ground should be refused.
Unreasonable or not supported by the evidence
The next ground of appeal argued is that the verdict is unreasonable or not supported by the evidence.
The notice of appeal contains two sets of particulars of this ground. The first set of particulars commences:
The Learned Trial Judge failed to have regard or gave insufficient weight to the following evidence in an assessment of the complainant’s credibility and reliability:
followed by 14 subparagraphs identifying inconsistencies (internal and external) in the complainant’s evidence on 11 topics, implausibility of the complainant’s evidence on two topics and the complainant’s motive to make a false allegation.
The second set of particulars commences:
The Learned Trial Judge placed undue weight on the following matters in assessing the credibility and reliability of the Appellant:
followed by three subparagraphs identifying three topics.
Approach on appeal
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The subsection applies to appeals against convictions after trials by jury or by judge alone alike.[9]
[9] Criminal Law Consolidation Act 1935 (SA) ss 352-353; Juries Act 1927 (SA) s 7(4).
The grammatical and logical structure of section 353(1) indicate that there are three broad grounds of appeal:[10]
1.     the verdict is unreasonable or cannot be supported having regard to the evidence, or
2.     the judgment should be set aside on the ground of a wrong decision on any     question of law, or
3.     on any [other] ground there was a miscarriage of justice.
[10] M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; Fleming v The Queen (1998) 197 CLR 250 at [8] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
The second ground in respect of a jury trial encompasses diverse errors of law by a judge ranging from an erroneous direction concerning an element or the elements of the offence or a defence to an erroneous decision to admit or exclude evidence to an erroneous direction concerning assessment of the evidence or the permissible or impermissible use of evidence. In respect of a trial by judge alone, it encompasses corresponding diverse errors of law by a judge. Typically, (alleged) errors of law are process errors affecting or capable of affecting the outcome but in rare cases could be outcome errors. Subject to application of the proviso, establishment of the error of law typically leads to a direction that there be a new trial.
The third ground encompasses a residual category involving a miscarriage of justice. Typically, the (alleged) circumstance giving rise to a miscarriage of justice involves a process error affecting or capable of affecting the outcome but in rare cases could involve an outcome error. Establishment of the miscarriage typically leads to a direction that there be a new trial.
The first ground relates to the outcome, that is that the guilty verdict itself is unreasonable or cannot be supported having regard to the evidence. In relation to a trial by jury, the focus of appellate review is upon the verdict by reference to the evidence admitted at trial and whether the appeal court is satisfied that, having regard to that evidence, the verdict is unreasonable or cannot be supported. That review usually takes place within the structure of the judge’s directions of law to the jury (absent independent challenge to those directions) and in the context of the parties’ cases and issues at trial. Establishment that the verdict is unreasonable or cannot be supported having regard to the evidence usually leads to a judgment and verdict of acquittal.
On an appeal on the first ground against a verdict by judge alone, the question for the appellate court is essentially the same. The focus of appellate review is upon the verdict by reference to the evidence. That review usually takes place within the structure of the judge’s rulings of law (absent independent challenge to those rulings) and in the context of the parties’ cases and issues at trial. That structure and context includes the judge’s findings of primary and intermediate facts and as to the credit and reliability of the witnesses except to the extent that those findings are challenged. When such a finding is challenged, while regard will be had to the judge’s reasons for making the finding, the question for the appellate court is whether the finding was open, or depending on the nature and circumstances of the finding whether it should have been made, having regard to the evidence and what ultimate effect the finding has upon the verdict of guilty.
On an appeal on the first ground against a verdict by judge alone, merely establishing that, in making a finding and especially a credibility finding, the judge in his or her reasons failed to have regard to specific evidence or aspects thereof will not establish that the verdict is unreasonable and not supported by the evidence. Merely establishing that, in making a finding and especially a credibility finding, the judge in his or her reasons gave insufficient weight to specific evidence or aspects thereof will not establish that the verdict is unreasonable or not supported by the evidence. While an appellate court will have regard to the judge’s reasons, the ultimate question on an appeal on the first ground is not the adequacy of those reasons but whether the evidence in itself supports the judge’s findings and ultimately the verdict itself.[11]
[11] Fleming v The Queen (1998) CLR 250 at [46] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ; AK v The Queen [2008] HCA 8, (2008) 232 CLR 438 at [18]-[22] per Gleeson CJ and Kiefel and [65] and [82] per Heydon J (Gummow and Hayne JJ relevantly agreeing).
In M v The Queen,[12] Mason CJ, Deane, Dawson and Toohey JJ said:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. ... In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s.6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be “unreasonable” or incapable of being “supported having regard to the evidence”. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. …
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
...
…To ask only whether the court has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[13]
[12] (1994) 181 CLR 487.
[13] Ibid at 492-495 (Footnotes omitted).

In the present case, the particulars contained in the notice of appeal, if made out, would not establish that the verdict is unreasonable or cannot be supported having regard to the evidence because they focus on the adequacy of the Judge’s reasons rather than on the underlying evidence and its impact upon the credit of the complainant and defendant. On the other hand, the particulars suggest a challenge to the Judge’s verdict on a different ground, namely an error of law because of inadequate reasons. Confusion between or conflation of the first and second types of ground referred to at [58] above is unfortunately prevalent on appeals against conviction.
As a result of the Court drawing attention at the hearing of the appeal to this confusion and conflation, the defendant sought and was granted permission to amend his notice of appeal to add as a third ground that the Judge erred as a matter of law in failing to give adequate reasons insofar as he did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant and consequently his conclusion of proof beyond reasonable doubt. The parties made submissions at the hearing of the appeal directed to the second ground relating to the capacity of the evidence to support the Judge’s acceptance of the credibility and reliability of the complainant’s evidence and rejection of the defendant’s evidence. The parties lodged separate written submissions addressing the third ground relating to the adequacy of the Judge’s reasons.
In the passages from M v The Queen[14] extracted above, the High Court addressed the tension between the appellate court’s obligation itself to review and analyse the evidence and its obligation to respect the advantages enjoyed by the trier of fact hearing and seeing the evidence unfold. In Fox v Percy,[15] the High Court elaborated on this tension. While the High Court’s observations were made in the context of an appeal from a civil judgment and different statutory language in relation to the appeal, many of the High Court’s observations were apposite to an appeal against conviction by judge alone. Gleeson CJ, Gummow and Kirby JJ said:
[14] (1994) 181 CLR 487.
[15] [2003] HCA 22, (2003) 214 CLR 118.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
...
After Warren v Coombes, a series of cases was decided in which this court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. …
... However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[16]
[16] (2003) 214 CLR 118 at [25]-[29] (Footnotes omitted).
Inconsistencies in and implausibility of complainant’s evidence
The defendant contends that the Judge failed to have regard or gave insufficient weight to the following matters in an assessment of the complainant’s credibility and reliability:
1.inconsistency as to his age generally when acts of sexual abuse were alleged to have occurred and specifically when acts of oral intercourse occurred in shed 2 and the timing of the defendant’s commencement of growing cannabis in shed 2;[17]
[17] Particulars 1.1, 1.2 and 1.13.
2.inconsistency as to indecent assaults occurring whilst using a computer in the master bedroom;[18]
[18] Particular 1.3.
3.inconsistency as to the timing of the defendant’s relationship with the other woman and as to oral intercourse occurring at her unit;[19]
4.implausibility with respect to the supply of cannabis by the defendant;[20]
5.implausibility with respect to his use of the defendant’s motorbike;[21]
6.inconsistency as to his attending at the defendant’s premises in approximately 2010;[22]
7.inconsistency as to the circumstances in which he made a complaint of sexual abuse to his wife;[23]
8.inconsistency relating to the disclosure to his wife of an incident occurring at Moana;[24]
9.inconsistency with respect to disclosures of abuse to members of his family;[25]
10.inconsistency as to the circumstances in which he came to make a complaint to police on 21 December 2011;[26]
11.inconsistency as to disclosures in a proofing session of his knowledge of the sexual abuse of his brother;[27]
12.his motive to make a false allegation.[28]
[19] Particular 1.12.
[20] Particular 1.4.
[21] Particular 1.5.
[22] Particular 1.8.
[23] Particular 1.6.
[24] Particular 1.7.
[25] Particular 1.9.
[26] Particular 1.10.
[27] Particular 1.11.
[28] Particular 1.14.
For the reasons given above, if these contentions are established, they would not in themselves lead to a conclusion that the verdict was unreasonable or cannot be supported having regard to the evidence.[29]
[29] They may or may not involve an error of law or a miscarriage of justice.
The defendant contends more broadly that there was no sufficient basis to accept the complainant’s evidence beyond reasonable doubt. I consider the twelve specific matters raised before considering this broader contention.
Inconsistencies concerning timing and location of abuse
The defendant contends that there were internal and external inconsistencies in the complainant’s evidence as to the timing and location of abuse and this, either alone or in conjunction with other matters addressed below, must have given rise to a reasonable doubt precluding acceptance of the complainant’s evidence beyond reasonable doubt.
Timing of commencement of oral sex in shed 2
In his evidence-in-chief, the complainant gave evidence that he was “around 12” when shed 2 was built. He was asked whether the incidents with the defendant ever progressed beyond touching or rubbing of the genitals and he said that they did. When asked how old he was when it progressed further, he said “I would have been past the age of nine, going on 12”. He went on to describe oral sex occurring in shed 2.
In cross-examination, it was put to the complainant that the statement prepared by the police on 21 December 2011 which said “from the age of about nine he started to give [marijuana] to me. From about this age my uncle would bribe me to give him head jobs as well as allow him to give me head jobs” was inconsistent with his evidence-in-chief. He responded “Around about nine or 12. … I don’t know the exact year that it was, how old I was.” It was then put to the complainant that the statement prepared by the police on 28 December 2011 said “In… my statement dated 21 December 2011 I mentioned that [the defendant] would bribe me to give him head jobs. This didn’t start happening until I was about 13 years old.”
The complainant gave evidence that he did not have an accurate recollection of his age when the various events described by him in his evidence occurred. It is evident from his evidence and the police statements that he never purported to give his precise age in years and was only giving his approximate age. When he spoke to the police and gave his evidence, he was well over 30 years old addressing events that occurred more than 15 to 25 years earlier and could not be expected to give more than a general approximation of his age at the time of the events he described. It is apparent from his evidence that he tended to identify the timing of events by the age bracket that he estimated he was in at the time or by reference to other events. In particular, he consistently identified the commencement of oral sex as being after the construction of shed 2 rather than by reference to his age.
Against this background, on the face of the transcript of evidence there is no demonstrated inconsistency in the evidence given by the complainant at trial as to when oral sex began. On his evidence, it began after the construction of shed 2, which he thought was when he was around 12 years old.
The complainant gave evidence that the statement taken by Constable Vaninetti on 21 December 2011 was relatively brief and lacking in detail. This is corroborated by the fact that the statement comprised only four pages. The complainant gave evidence that Detective Perry took a statement in much more detail on 28 December 2011. It is evident from the passages from the police statements put by the defendant’s counsel to the complainant in cross‑examination that they represented a narrative form, prepared by the police, being their summary of what they understood they had been told by the complainant rather than any attempt to record what they were told as they were told it. The first statement was itself expressed in vague terms as to when smoking marijuana commenced and when oral sex commenced.
In the circumstances, on the face of the wording of the police statements put to the complainant in cross-examination, there is no clear inconsistency between the two police statements. On the face of those statements and the transcript of evidence, there is no clear inconsistency between the police statements and the complainant’s evidence given in court. While this Court did not hear or see the complainant give evidence, the Judge did so and formed a favourable impression of his evidence when addressing these and other alleged inconsistencies.
The defendant contends that there were inconsistencies between the complainant’s evidence and the defendant’s own evidence that he only completed construction of the slot car track in shed 2 in June 1993 by reference to his recollection and his 1993 calendar, and that he only commenced growing marijuana in shed 2 after October 1996. However, subject to the defendant’s complaints about the Judge’s assessment of the defendant’s own evidence addressed below, the Judge was entitled to reject the defendant’s evidence for the purpose of assessing the complainant’s credibility.
Location of computer at defendant’s house
The complainant gave evidence of masturbation occurring while he was playing on the computer at the defendant’s house. He said that this occurred in the master bedroom. In cross-examination, it was put to him that the computer was kept in bedroom 3 which became D’s bedroom. He said “It could have been. What I remember it was in bedroom 1.”
W was asked in cross-examination whether the computer was set up in D’s room and she said yes. In re-examination, she was asked whether it was ever set up anywhere else in the house and she said that she really did not know.
There was no inconsistency between the evidence given by complainant and W on this topic.[30]
Timing of visit to Adelaide unit
[30] The defendant also relies upon the inconsistency between the complainant's evidence and his own evidence that the computer was set up in D's room before she was born, but the Judge was not obliged to accept the defendant's evidence for the purpose of assessing the complainant's credibility.
The complainant gave evidence that he and the defendant visited the Adelaide unit and the defendant performed oral sex on him. He said that he was “close to 12” on that occasion and in cross-examination denied that this occurred after the incident with D (when he was 15).
The defendant gave evidence that there were separations from W when she left in 1995, 1996 and then in 1998 for good. He said that all of the times that W left were because of the other woman and that he was going with her at those times, but did not say when he commenced a friendship or relationship with her. The defendant gave evidence that he and the complainant visited her unit but said that, as far as he remembered, this occurred after the incident with D. He said that he was “not quite clear about it” and then that he was “almost hundred-per-cent sure about it”.
Given the vagueness of the defendant’s evidence, there was no clear inconsistency between the evidence given by the complainant and the defendant concerning their visit to the unit. In any event, the Judge was not obliged to accept the defendant’s evidence as to the timing of that visit for the purpose of assessing the complainant’s credibility.
Implausibility of evidence
The defendant contends that the complainant’s evidence was implausible and this, either alone or in conjunction with other matters addressed above and below, must have given rise to a reasonable doubt precluding acceptance of the complainant’s evidence beyond reasonable doubt.
Evidence about supply of marijuana
The defendant contends that the complainant’s evidence that he smoked marijuana on each visit to the defendant’s house from the age of nine was an incredible claim, not corroborated by other witnesses and would have been observed by them if it occurred.
W gave evidence that she was aware that the complainant was smoking marijuana by the things he did and what she overheard the defendant say to the complainant, but she did not remember actually seeing him smoking it.
The Judge accepted that some of the complainants “estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being stoned)”. However, these were not sufficient to cause doubt either to his truthfulness or reliability so as to preclude acceptance of the complainant’s evidence beyond reasonable doubt.
Evidence about riding motorbike
The defendant contends that the complainant’s evidence that he rode the defendant’s Yamaha motorbike from the age of nine was plainly implausible.
The defendant gave evidence that he only permitted the complainant to ride the motorbike when the complainant was at least 15. This had been put to the complainant in cross-examination, but he disagreed.
The Judge accepted that some of the complainants “estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being stoned)”. However, these were not sufficient to cause doubt either to his truthfulness or reliability so as to preclude acceptance of the complainant’s evidence beyond reasonable doubt.
Attendance at defendant’s house in about 2010
The defendant contends that the complainant’s attendance at his house on two occasions in about 2010 and discussion and exchange of marijuana was inconsistent with the complainant having suffered sexual abuse by the defendant as a child.
The complainant gave evidence that his attendance at the defendant’s house was prompted by the suggestion of his counsellor to assist him to deal with the childhood sexual abuse. The fact of the attendances is not inconsistent with such abuse having occurred, nor is the fact that the complainant did not raise the topic of abuse with the defendant inconsistent with its having occurred. On the complainant’s evidence, this was part of his coming to terms with the childhood events. On the unchallenged evidence of his wife and his family, at that point the complainant (if his account of the abuse is to be believed) had not been able to bring himself to discuss it in detail with them.
The complainant’s evidence of the abuse was not glaringly improbable or inconsistent with compelling inferences by reason of his visits to the defendant in about 2010.
Evidence of disclosure to others
The defendant contends that there were internal and external inconsistencies in the complainant’s evidence as to disclosure to others about abuse and this, either alone or in conjunction with other matters addressed above and below, must have given rise to a reasonable doubt precluding acceptance of the complainant’s evidence beyond reasonable doubt.
Initial disclosure to wife
The complainant gave evidence that, at the beginning of his relationship with his wife, he told her that he had been sexually abused as a child. He did not say by whom or give any other details. He was asked what year the relationship began and he said “We have been together for around 11 years now, so that would have been 2003, 2004.”
In cross-examination, it was put to the complainant that he had told the prosecutor in July 2013 that the disclosure to his wife was in about 1999 and that the disclosure was before he ever knew that D claimed compensation.
The complainant’s wife gave evidence confirming both the limited terms of the disclosure and that it was at the beginning of their relationship. However, her evidence was that the relationship began “about 2001 or 2002” and “around 2002”.
The defendant contends that the complainant deliberately backdated the disclosure when speaking to the prosecution in July 2013 to avoid an appearance that the allegation of abuse was motivated by D’s claim for compensation. However, on the complainant’s wife’s unchallenged evidence, the disclosure (such as it was) pre-dated D’s claim for compensation by at least five years. The mere fact that the complainant was inaccurate by a year or two as to when his relationship with his wife began was incapable of impeaching his credibility. In this respect, each of the complainant’s mother and father and W gave evidence that they had bad memories for when events occurred, which is not unusual.
Disclosure about Moana children

The complainant gave evidence that, when he was living at Moana, he hung around with older boys and girls, witnessed light sexual petting between them and was chased away and beaten up by them. In cross-examination, it was put to him that he subsequently told his wife that he had been sexually abused by older boys at Moana and he denied this. He said that he had told his wife about socialising with older children at Moana but there was no sexual action towards him.
It was put to the complainant’s wife in cross-examination that the complainant told her that, when he was living at Moana, some older boys used to chase him down and make him do things to them and they did things to him and she agreed. However, she denied that this was linked by the complainant to his disclosure of sexual abuse or that he told her that he was sexually abused by older boys at Moana.
The defendant contends that the evidence of the complainant was inconsistent with his wife’s evidence and the complainant’s denial was to avoid a suggestion that his complaint of sexual abuse to her related to someone other than the defendant. There was no relevant inconsistency between the evidence given by the complainant and his wife in this respect.
Disclosure to mother and W and complaint to police
The complainant gave evidence that his mother accompanied him to the police station when he made his complaint to the police of sexual abuse by the defendant and he did not tell his mother or his aunt W that he had been sexually abused by the defendant until he told the police on that occasion. He said he went to the police station as a result of suggestions by his counsellor.
The defendant contends that the complainant’s evidence was inconsistent with evidence given by the complainant’s mother and W that the complainant told them that he had been sexually abused by the defendant before they accompanied him to the police station on 21 December 2011.
The complainant’s mother gave evidence that she had an intuitive feeling that the defendant had sexually abused the complainant but he did not tell her this. She encouraged him to go to the Christies Beach police station to make a complaint about sexual abuse and, until that point in time, the complainant had not ever complained to her about the defendant sexually abusing him. After the complainant spoke to the police officer, he told his mother that it was the defendant who had sexually abused him. She identified the police officer as Steve Albon and said that he recommended a counsellor. She did not identify the date of this visit. She later told W about this and she and W took the complainant to the Christies Beach police station where the complainant gave a statement to a different police officer. She did not identify the date of this visit other than thinking it was in early December 2011.
W gave evidence that the complainant’s mother telephoned her and told her that the complainant had alleged that he had been sexually abused by the defendant when he was a child. She did not go with the complainant the first time he went to the police station about the defendant. She subsequently spoke to the complainant and pleaded with him to go to the police station to make a complaint against the defendant. She and the complainant’s mother drove with the complainant to the Christies Beach police station. She did not identify the date of this visit or the police officer the complainant saw.
In broad terms, the evidence given by the complainant was consistent with the evidence given by his mother and W that he did not tell them that he had been sexually abused by the defendant until after he had gone to the police station with his mother to report it. He was somewhat vague about the identity of the police officer who he saw on that occasion and was vague about dates. The complainant’s mother referred to Steve Albon as being the police officer on the first occasion, did not identify the police officer on the second occasion and was vague about dates. The complainant’s mother said that the complainant was not referred to the counsellor mentioned by the complainant until they saw Steve Albon. W did not identify the date or the police officer on the occasion when she attended with the complainant and his mother. While there were some differences between the accounts given by the three witnesses, they were not irreconcilable and were typical of inconsistencies arising from the vagaries of memory of different witnesses.
Disclosure of abuse of complainant’s brother
It was put to the complainant in cross-examination that Detective Perry prepared a statement as a result of her conversation with him on 27 April 2012 in which it was stated “I’ve spoken to my mum and she said that I did something to my brother” and she prepared a statement as a result of her conversation with him on 5 June 2012 in which she recorded details given to her by the complainant of his abuse of his brother. It was put to the complainant in cross-examination that the two statements were inconsistent and that he had pretended on the first occasion that he knew nothing of the abuse other than that his mother had said that it occurred. He denied this and said that he always knew that it had occurred and that he had acknowledged this to his mother.
The defendant made a pre-trial application to examine Detective Perry by way of a Basha inquiry concerning her notes of her conversations with the complainant on 27 April and 5 June 2012. The application was granted and Detective Perry was examined by the defendant’s counsel before the prosecution opened its case. Detective Perry gave evidence on the inquiry that she understood from the complainant’s responses on 27 April 2012 that he did not personally recall sexually abusing his brother. When Detective Perry gave evidence at the trial, she was not questioned on this topic.
Detective Perry’s evidence on the Basha inquiry was not evidence given at trial and in any event that evidence was only of the impression she formed from what she described as a fleeting conversation with the complainant. Detective Perry’s evidence was not sufficiently detailed to give rise to an inconsistency with the complainant’s evidence.
Complainant’s motive to make false allegation
The defendant contends that the complainant harboured animosity towards the defendant because the defendant had told others in Mount Compass of the indecent assault against D, the defendant had encouraged D to claim compensation and the complainant blamed the defendant for loss of his livelihood. This constituted a motive to make false allegations of sexual abuse and the complainant was also motivated to do so to further his own claim for compensation. This, either alone or in conjunction with other matters addressed above, must have given rise to a reasonable doubt precluding acceptance of the complainant’s evidence beyond reasonable doubt.
The complainant in cross-examination accepted that he believed that the defendant had told others in Mount Compass of the indecent assault against D but said that this had not caused his bankruptcy. The complainant in cross-examination accepted that he knew, before he made the report of sexual abuse to the police, that the defendant had encouraged D to claim compensation but said that D deserved compensation and this was corroborated by W. The complainant in cross-examination said that he did not believe that he was entitled to compensation from the defendant.
The defendant contends that W, the complainant’s mother and other members of his family felt animosity towards the defendant. It was not put in cross-examination to W, the complainant’s mother or the other prosecution witnesses that the complainant felt animosity towards the defendant or that they had encouraged him to make a false complaint against the defendant due to animosity towards the defendant.
The mere fact that there was a possibility, rejected by the complainant in cross-examination, that he was motivated to make a false allegation does not and cannot give rise to a necessary reasonable doubt precluding acceptance of his evidence.
Evidence of the defendant
The defendant contends that the Judge placed undue weight on the following matters in assessing his credibility and reliability:
1.his evidence as to the frequency with which the complainant attended at his home;[31]
2.his evidence as to the level of the complainant’s interest in slot cars and using the track in shed 2;[32] and
3.his evidence on the topic of adult pornography.[33]
[31] Particular 1.15.
[32] Particular 1.16.
[33] Particular 1.17.
These contentions relate to the following paragraph from the Judge’s reasons for judgment:
I was unimpressed by the accused’s presentation. I found his answers to be glib and evasive on some topics, particularly about the number and duration of occasions when [the complainant] and his siblings stayed or the accused was alone with [the complainant] (T339–342). In addition to that, the accused was, in my view, understating [the complainant]’s interest in slot cars and using the track in Shed 2 because the use of the slot car track provided an opportunity for sexual misconduct (T337–338). I also thought his answers on the aspect of adult pornography quite evasive (T342–343; [W] T203–204, 223).
For the reasons given above, if one or more of the defendant’s contentions are established, they would not in themselves lead to a conclusion that the verdict was unreasonable or cannot be supported having regard to the evidence.[34]
[34] They may or may not involve an error of law or a miscarriage of justice.
The defendant contends more broadly that there was no sufficient basis to reject as a reasonable possibility that his denials of sexual abuse of the complainant were true or in other words to find beyond reasonable doubt that the defendant was lying in making those denials. I consider the three specific matters raised before considering this broader contention.
Frequency of complainant’s attendances at defendant’s house
In general terms, the witnesses called by the prosecution gave evidence referring to more frequent and longer occasions when the complainant visited the defendant than the defendant’s own evidence. However, the observation by the Judge extracted at [116] above related to the manner in which the defendant gave his evidence rather than to inconsistencies or differences between the defendant’s evidence and that given by the prosecution witnesses.
The defendant contends that the Judge placed undue weight on the defendant’s evidence as to frequency of the complainant’s visits and failed to take into account the variable evidence given by the prosecution witnesses; the defendant’s evidence that arrangements with respect to children staying were never made by him; and the fact that until 1991 the defendant was in full-time employment.
In the passage of cross-examination cited by the Judge, the defendant said that the complainant hardly ever spent any time at the defendant’s house, he only came two or three times a year at the most and on such occasions for only one or two days at the most. When it was put to him that he took the complainant on outings, he initially responded that he did not think so and then said that it never happened. The defendant did not qualify his answers by reference to his being at work when the complainant might have visited his house.
The defendant’s complaints do not address the fact that the Judge was referring to his assessment of the defendant’s manner of giving evidence as being glib and evasive. The Judge saw and heard the defendant give evidence. On the face of the transcript, it was open to the Judge to form the impression that he did.
Level of complainant’s interest in slot cars and using track in shed 2
The defendant contends that the Judge placed undue weight on the defendant’s evidence as to the level of the complainant’s interest in slot cars and using the track in shed 2 and failed to give adequate weight to the limited period of 14 months when there was an opportunity to use the slot car track in shed 2 from June 1993 (when the track was completed) to August 1994 (when the alleged offending ceased); the fact that there was no specific evidence as to how often the complainant visited over that 14 months; and the defendant was giving evidence about matters 20 years prior.
Immediately after the paragraph extracted at [116] above, the Judge referred at some length to the significant forensic disadvantage under which the defendant laboured given that the alleged events occurred decades ago.
In the passage of cross-examination cited by the Judge, the defendant said that the complainant might have played with slot cars on one occasion at most in the lounge room and on a couple of occasions in shed 2. He disagreed with the proposition that the complainant had a keen interest in slot cars and observed that the complainant did not have a slot car track at his own house.
The Judge saw and heard the defendant give evidence. On the face of the transcript, it was open to the Judge to form the impression that he did.
The topic of adult pornography
The defendant contends that the Judge placed undue weight on the defendant’s evidence on the topic of adult pornography in circumstances in which W’s evidence was initially inherently vague on the topic and the defendant did not deny that there was an occasion of adult pornography at the house or that he had sent away for a catalogue which included Asian pornography.
W gave evidence that the defendant had pornography in the house when she lived there, it was video pornography and he was quite persistent that she watch it. As to its content, she said that she remembered “intercourse-type stuff” but otherwise it was a bit of a blur because she did not want to watch it. She recalled a video or DVD arriving in the letterbox containing Asian pornography, about which she questioned the defendant. When she left the defendant, she saw pornography in a drawer in the bedroom. W’s evidence was not inherently vague and was inconsistent with the defendant’s evidence. The defendant categorically denied ever having any Asian pornography and said that he only ever had one video involving wife swapping lent to him by W’s friends.
The Judge saw and heard the defendant give evidence. On the face of the transcript, it was open to the Judge to form the impression that he did.
Holistic assessment
I have considered the entirety of the evidence given by the complainant in conjunction with the evidence given by the other prosecution witnesses and by the defendant. Considering the defendant’s various contentions collectively, it cannot be said that the complainant’s evidence was glaringly improbable, contrary to compelling inferences or otherwise such that it was not open to the Judge to accept it. Nor can it be said that it was not open to the Judge to reject the defendant’s evidence. The case essentially turned on the direct conflict between the evidence given by the complainant and the defendant. It was open to the Judge on the evidence to be satisfied beyond reasonable doubt that the complainant was telling the truth about the sexual abuse alleged and that the defendant was not. The Judge explicitly acknowledged that, even if he rejected the evidence of the defendant beyond reasonable doubt, that did not suffice to convict the defendant because before doing so he would need to be independently satisfied beyond reasonable doubt about the allegations made by the complainant and vice versa.[35]
[35] See Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086 at [13] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
Conclusion as to second ground
The defendant has not established that the verdict was unreasonable or that it cannot be supported by the evidence. The second ground of appeal is not made out.
Inadequate reasons
The third ground of appeal is that the Judge erred as a matter of law in failing to give adequate reasons in so far as he did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant and consequently his conclusion of proof beyond reasonable doubt.
It is common ground that a judge sitting alone has an obligation to give adequate reasons for the verdict.[36]
[36] Lawson v Lee (1978) 19 SASR 442 at 446 per Hogarth ACJ, Bright and King JJ; Papps v Police [2000] SASC 183, (2000) 77 SASR 210 at [33] per Gray J (Olsson and Wicks JJ agreeing); R v Keyte [2000] SASC 382, (2000) 78 SASR 68 at [51] per Doyle CJ (Wicks J agreeing) and [64] per Williams J.
In R v Keyte,[37] Doyle CJ (with whom Wicks J agreed) said:
[37] (2000) 78 SASR 68.
... I respectfully adopt the following remarks of Asprey JA [in Pettitt v Dunkley]:
“… 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. ….”
…
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. 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:
“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:
“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.”
...
… I likewise accept the views expressed by Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd ... I refrain from setting out the whole of the relevant part of the judge’s reasons, confining myself to his concluding observations:
“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.”
...
... 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.[38]
[38] Ibid at [44], [48], [49], [52], [56] (Citations omitted).

In R v Dennis,[39] 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.[40]
[39] [2010] SASC 69, (2010) 202 A Crim R 453.
[40] Ibid at [29] (References omitted).
Complainant’s account of how and when acts occurred
The defendant contends that there were three pieces of incontrovertible or arguably incontrovertible evidence inconsistent with the complainant’s account as to how and when the acts of sexual abuse occurred. The defendant contends that the Judge either did not deal with these asserted inconsistencies or inadequately dealt with them.
The inconsistencies are said to be:
1.between the complainant’s evidence that the first act of oral intercourse occurred in shed 2 when the complainant had been playing with slot cars when he was around 12 and certainly under 14 and the defendant’s evidence that the slot car track was not operational until June 1993;[41]
2.between the complainant’s evidence that acts of masturbation occurred while using a computer in the master bedroom and the evidence of the defendant and W that the computer was set up in what became D’s bedroom;[42]
3.between the complainant’s evidence that an act of oral intercourse occurred at the Adelaide unit when he was close to 12 and the defendant’s evidence that his relationship with the other woman did not commence until after 1994.[43]
Timing of construction of slot car track
[41] Particular 3.5.
[42] Particular 3.6.
[43] Particular 3.7.
The Judge explicitly identified the conflict between the evidence of the complainant and the defendant on this issue and then summarised the defence case that the complainant was wrong about when cannabis was grown and “when the slot car track was completed, such that, in conjunction with other inconsistencies, he cannot be relied upon about the substantive allegations.” The Judge said that he accepted the complainant’s evidence and rejected the defendant’s evidence and it is evident that this extended to the conflict concerning the slot car track. There is no substance in this complaint.
Location of computer
There was no conflict between the evidence of the complainant and W for the reasons given at [79]-[81] above. There was a conflict between the evidence of the complainant and the defendant, but that conflict was subsumed in the larger conflict that the complainant asserted inappropriate touching and the defendant denied that allegation outright. The Judge accepted the complainant’s evidence that such touching occurred and rejected the defendant’s evidence denying it. In the circumstances, there was no need for the Judge to address specifically the question identified by the defendant.
Relationship with the other woman
There was no conflict between the evidence of the complainant and the defendant for the reasons given at [82]-[84] above. In the circumstances, there was no need for the Judge to address specifically the question identified by the defendant.
Complainant’s disclosure to others of abuse
The defendant contends that there were three incontrovertible or arguably incontrovertible internal or external inconsistencies in relation to the complainant’s evidence concerning disclosure of abuse to others. The defendant contends that the Judge either did not deal with these asserted inconsistencies or inadequately dealt with them.
The inconsistencies are said to be:
1.between the complainant’s evidence in court that his general disclosure of child sexual abuse to his wife was made at the commencement of their relationship which was in about 2003 and the statement taken by the prosecutor from the complainant in July 2013 that this was in about 1999;[44]
2.between the complainant’s evidence about the content of his discussions with his wife about older children at Moana and her evidence on that topic;[45]
3.between the complainant’s evidence about how and why he reported sexual abuse to the police in 2011 and the evidence given by W and the complainant’s mother on that topic.[46]
Timing of commencement of relationship with complainant’s wife
[44] Particular 3.1.
[45] Particular 3.2.
[46] Particulars 3.3 and 3.4.
There was no significance in the different years given by the complainant as to when his relationship with his wife began for the reasons given at [96]-[99] above. The Judge observed that the question when the disclosure, such as it was, was made was uncertain, it could have been around 2003 or perhaps earlier, and the complainant certainly did not provide a false timeframe. In the circumstances, nothing further was required on this topic.
Disclosure to the complainant’s wife about Moana children
For the reasons given above at [100]-[102], there was no relevant inconsistency between the evidence given by the complainant and his wife about the content of his discussions with her about older children at Moana and her evidence on that topic.[47] The Judge addressed the incident involving the Moana children saying:
As for any incident involving boys from Moana, I found the evidence about it confusing. Who knew what, and when, is uncertain. Not only were these conversations over 20 years ago, they amount to hearsay upon hearsay. I accept [the complainant’s] evidence about it but, in any event, I do not consider it is relevant to the allegations made by him. Further, his credit and reliability were, in my view, unaffected by the evidence on the topic.
[47] Particular 3.2.
In the circumstances in which the Judge accepted the evidence of the complainant, nothing further was required on this topic.
Report to police
As noted above, in broad terms, the evidence given by the complainant was consistent with the evidence given by his mother and W that he did not tell them that he had been sexually abused by the defendant until after he had gone to the police station with his mother to report it. While the complainant’s mother referred to Steve Albon as being the police officer on the first occasion on which they attended, neither she nor W identified the police officer on the second occasion and both were vague about dates, as was the complainant. While there was an inconsistency between the evidence given by the complainant and his mother as to the identity and timing of the complainant’s seeing a counsellor and there were some differences between the accounts given by the three witnesses, they were typical of inconsistencies arising from the vagaries of memory of different witnesses.
The Judge said that he found the evidence “about who told whom and what was said, difficult to discern when information was discussed between family members”. That was a reasonable conclusion in light of the evidence given by the complainant, his mother and W as summarised above. It is plain that the differences between their evidence, such as they were, were not sufficient to reflect adversely on the complainant’s credibility or reliability as assessed by the Judge. In the circumstances, there was no need for the Judge to deal with this topic beyond what he did.
Complainant’s disclosure of abuse of brother
The defendant contends that the complainant was not willing to tell the truth when confronted about allegations of sexual abuse perpetrated by him on his brother. There was no inconsistency demonstrated between the complainant’s discussion with Detective Perry on 27 April 2012 and his discussion with her on 5 June 2012. In his evidence in court, the complainant readily admitted that he had abused his brother. This topic was entirely tangential to the issues in dispute at trial and related only to the complainant’s credit. In the circumstances, there was no need for the Judge to address this topic.
Conclusion as to third ground
The defendant’s challenge to the adequacy of the Judge’s reasons fails. The third ground is not made out.
Conclusion on appeal
I would refuse permission to appeal on the first ground. I would grant permission to appeal on the third ground but dismiss the appeal on the second and third grounds.
BAMPTON J: I agree with the reasons of Blue J and would dismiss the appeal.