R v Douglass - [2010] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOUGLASS
[2010] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)
3 December 2010
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 - ADEQUACY OF REASONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Appeal against conviction – trial by judge alone – appellant convicted of one count of indecent assault – appellant gave evidence at trial – Judge accepted evidence of victim but did not expressly deal with evidence given by appellant – whether Judge’s reasons adequate – whether verdict unsafe and unsatisfactory – whether process of reasoning used by the Judge in accepting victim’s evidence flawed – implicit that the Judge’s rejection of the appellant’s denials was based on his acceptance of the victim’s evidence – Judge’s reasons for accepting victim’s evidence were adequate – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56(1), s 353(1); Evidence Act 1929 (SA) s 9, s 9(4), s 34CA, s 34M, S 34M(3); Juries Act 1927 (SA) s 7; Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Procedure Act 1986 (NSW) s 32, s 33(2); Criminal Procedure Act 2004 (WA) s 120(2), referred to.
M v The Queen (1994) 181 CLR 487; R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.
Papps v Police (2000) 77 SASR 210; AK v Western Australia (2008) 232 CLR 438, distinguished.
Fleming v The Queen (1998) 197 CLR 250; R v Kurtic (1996) 85 A Crim R 57, discussed.
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, considered.

R v DOUGLASS
[2010] SASCFC 66
Court of Criminal Appeal: Doyle CJ, Anderson and David JJ

DOYLE CJ: Mr Douglass was found guilty by a District Court Judge of one count of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). The trial was by judge alone. The victim was his granddaughter, C. She was 3 years old at the time of the offence. Mr Douglass has appealed against his conviction.
Mr Edwardson QC, counsel for Mr Douglass at trial and on appeal, submits that the Judge failed to give adequate reasons for rejecting the evidence of Mr Douglass. He argues that before a finding of guilt could be made, the Judge was required to reject the evidence of Mr Douglass. He points out that nowhere in his reasons does the Judge explain why he rejected Mr Douglass’ evidence. He submits that it is incumbent on a trial judge sitting without a jury to deal with the defence case and to set out the reasons why he or she rejects the defence case.
Mr Edwardson also argues that the verdict is unsafe. He submits that the process of reasoning used by the Judge in accepting the evidence of C was flawed. He points to a number of matters that he says detracted from the reliability and credibility of C, and argues that the Judge did not deal with these matters, or that he wrongly used these matters to support his conclusion as to the reliability and credibility of C.
It is necessary to set out the facts before considering Mr Edwardson’s submissions.
Facts
Mr Douglass was charged with two counts of indecent assault of his daughter L, and one count of aggravated indecent assault of his granddaughter C. C is L’s daughter. L is the daughter of Mr Douglass and Ms Hay. The two counts of indecent assault involving L were charged in the alternative. Both counts relate to the same incident, but the first count alleged that the incident took place between 30 November 1981 and 11 February 1982, while the second count alleged that the incident took place between 10 February 1982 and 31 December 1983.
The third count, the count of aggravated indecent assault of C, was alleged to have taken place between 1 October 2008 and 25 October 2008.
Mr Douglass denied the allegations by L and C.
The Judge found Mr Douglass not guilty on the first two counts involving L, but found him guilty on the third count involving C.
In relation to the first two counts the prosecution conceded that the alleged offence occurred in Mr Douglass’ woolshed or not at all. L gave evidence that the incident occurred in the woolshed in 1983, when she was about 7 years old. She maintained that the incident occurred in 1983 throughout her evidence. However, there was other evidence that the construction of the woolshed was not completed until March 1987. On the basis of this evidence, the Judge found that it was likely that the building of the woolshed was not completed until March 1987, and for this reason, while otherwise accepting L’s evidence, the Judge was not satisfied beyond reasonable doubt that Mr Douglass was guilty of the first two counts.
The incident the subject of count 3 was alleged to have occurred about 23 October 2008. It was the prosecution case that on or about this day C touched Mr Douglass’ penis while he was urinating in his shed. C had gone to stay with Mr Douglass and his partner Ms Hay.
Ms Hay gave evidence that on the morning of 23 October 2008 she picked up C from L’s house. After taking her shopping, Ms Hay took C back to her home.
Ms Hay was living with Mr Douglass on a farm in the Adelaide Hills. The farm is across the road from a property owned by Mr Douglass’ mother. It was Mr Douglass’ practice to visit his mother about 3.00 pm each day. Mr Douglass gave evidence that he went to see his mother on 23 October 2008 and that he took C with him. They left at 2.30 pm. Mr Douglass travelled on an “ATV bike” or All Terrain Vehicle. He said that he and C left early because there was a broken pipe in the sheep paddock that he wanted to fix before he visited his mother. C had a doughnut with her.
Mr Douglass was alone with C while he was in the sheep paddock. He gave evidence that while he was digging a hole in the ground to mend the broken pipe C was lining up rocks beside the hole. He denied that he urinated while he was in the paddock fixing the pipe. He said that it took about 30 minutes to fix the pipe, and that once he had finished he took C to see his mother. They stayed with her for about 30 minutes before returning to his property. Mr Douglass said that C ate some of her doughnut while at his mother’s house.
Ms Hay gave evidence that supported in a general way the evidence given by Mr Douglass about his movements and contact with C on 23 October 2007. She said that Mr Douglass went to his mother’s house on 23 October. He took C with him, and they left about 2.30 pm. She said that Mr Douglass left a bit earlier than usual as he had to fix a pipe that had broken. C took a doughnut with her. Ms Hay said that she placed the doughnut in a Tupperware container so that it would not get dirty while C rode on the bike. They were gone for about an hour, and when they returned Ms Hay said that C was happy and “her normal self”. There was nothing about C’s demeanour that caused her disquiet or concern. Her evidence was that when they returned C came running in with her doughnut, of which she had eaten part, and that C explained to her how she had dug a hole because Mr Douglass was fixing a pipe. After staying the night Ms Hay took C shopping on 24 October before picking up C’s brother, M, from school. She then took them both home to L.
Ms Hay also gave evidence she had heard C use the expression “willy”, and that when C used this expression she would point at her brother and comment on his “willy”. According to Ms Hay, M and C would always bath together when they came to stay with her and Mr Douglass. She also described an incident in which C walked into the toilet when M was in there and that C said something about M’s “willy”, although Ms Hay could not remember the exact words used by C on this occasion.
In respect of the evidence given by Mr Douglass and Ms Hay in relation to the allegation made by C, the Judge made the following comments at [66]:
[66]In respect of C’s account he [Mr Douglass] described events of the days when C was in his company on 23 and 24 October 2007 [sic]. His evidence admits of an opportunity to commit the offence because he was on his own with C on his and his parents’ property during the day. His evidence of events when he was in the company of his wife are [sic] supported by her in her evidence. He said that he and his wife had C at their place reasonably often and at times he was alone with her.
He made no further reference to the evidence given by Mr Douglass and Ms Hay in relation to the complaint made by C, except for saying that he had borne in mind that Mr Douglass had given sworn evidence and that he did not find anything in his demeanour that assisted the prosecution: at [65] and [98].
On 27 October C was with her father at his parents’ house. It was about 7.30 pm. Her father was in his room. C and M were with him. C said to her father words to the following effect: “Do you have a beautiful penis Daddy?” He said that he was “shocked” by C’s question and her use of the word “penis”. He said that he had heard her use the word “willy” in the past but not the word “penis”. He sent a text message to L asking if she had any idea where C would have learnt that word. L replied that she had no idea.
C and M stayed with their father that night. The next morning, 28 October, he dropped M at school and then went to a friend’s house for coffee. He took C with him. While he was at his friend’s house he urinated in the back garden. After he had finished urinating C came up to him and asked him if he had just done “a wee”. He replied that he had. C then said “I had to hold grandpa’s willy in the shed while he did wees.” He asked her to repeat what she had said. C did. He then asked her about when that had occurred. C said that it happened on the weekend.
Her father gave evidence that at that time C did not accurately understand the concept of the weekend. Both he and L agreed that C had not stayed with her grandparents on the previous weekend, but that she had stayed with them on the previous Wednesday and Thursday (23 and 24 October).
The Judge treated C’s statement to her father as her initial complaint for the purposes of s 34M(3) of the Evidence Act 1929 (SA) (Act). He stated at [32] that:
[32] … It [C’s complaint] is admitted to demonstrate how the allegations first came to light. It demonstrates behaviour consistent with the offence having occurred. One might expect that a 3 year old child, exposed to such an experience, might tell a parent that in a context the child might see as relevant. C’s father had just urinated in the outdoors and she had seen her grandfather do likewise. Such consistency may buttress C’s credibility. The utterance is not admitted as evidence of the truth of what was said. The significance of the utterance is for me as the finder of fact to determine. The significance I see in the utterance is that it was, if I accept TD’s evidence, completely spontaneous. I do accept his evidence. It seems completely credible. His reactions seem natural and believable. C did not merely report that she had seen her grandfather urinate as she had seen her father do. She made a quite different and quite specific report of something more than mere urination. She made the significantly detailed allegation that she “had to” hold her grandpa’s “willy” while he urinated, and it had happened in a shed.
Footnotes omitted
On 28 October L was working in Mr Douglass’s jam making shed. She finished work about 2.00 pm, and then went to a local pub. While she was there she received a call from C’s father. He said that C had just told her something, and that he was not sure whether she was going to believe him. He said that C had told him that “she had to hold grandpa’s willy in the shed”. L did not say anything. C’s father asked her if she believed him. L said that she did.
L telephoned Ms Hay and told her what C’s father had told her. Ms Hay said that she did not believe her. L gave evidence that her mother got angry and said that she was “really upset” and that “her legs were shaking”. Ms Hay passed the phone to Mr Douglass. L repeated what C’s father had told her. Mr Douglass denied the allegation. L told Mr Douglass that C’s father was going to ring the police. Mr Douglass said “Let him”.
L did not get a chance to speak with C until 31 October 2008. She gave evidence that on that day she asked C what had happened at her grandparent’s house. C said that she went to see her “great nanna” (Mr Douglass’ mother). L asked her what they did and she said “wees”. L asked her “Who did wees?” C said that “Grandpa did wees”. L asked her whether he made her do anything. C said that “He told me to hold his willy.” L did not ask any further questions.
L also gave evidence that sometime later C told her that her grandfather had urinated on the tyre of a tractor in the “tractor shed”. L could not recall when C had said this.
The Judge regarded both the statement by C to L on 31 October 2008 and what C had subsequently told her about her grandfather urinating on the tyre of a tractor as an elaboration of the initial report to her father on 27 October for the purposes of s 34M of the Act: at [42].
On 26 November 2008 C was interviewed by a psychologist employed by the Child Protection Agency. The interview was video-taped. During the course of this interview C told the psychologist that she had touched her brother’s “willy”. She was asked whether anyone else had asked her to touch their “willy” or penis. She said no. She was asked whether she was sure. She said no. She then said that she had “touched on my grandpa’s”. On being questioned further by the psychologist she said that she had held her grandpa’s “willy” in “his shed” and that he had told her to hold his “willy”.
This statement became C’s evidence in chief at trial. The Judge admitted the statement pursuant to s 34CA of Act. He concluded that C should be permitted to give unsworn evidence because he was satisfied that she understood the difference between a truth and a lie: s 9 of the Act. He was also satisfied that the statement had sufficient probative value to justify its admission. Counsel for the Director at trial indicated to the Judge that he intended to call C as a witness. After asking defence counsel to outline the topics he proposed to cross examine C on, the Judge gave permission for defence counsel to cross examine C on the topics identified.
On 1 November 2009 Detective Kelly met with L for the purpose of taking a statement from her. On that occasion, with the permission of Detective Kelly, L asked C to identify the shed where the incident was alleged to have taken place. C was shown a map of Mr Douglass’ mother’s property. L asked her which shed she was in with her grandpa. C pointed to the “wood shed” on the map. C was not shown a map of Mr Douglass’ property.
The Judge did not regard the possible inconsistency about the location of the alleged incident as significant. He said at [83]:
[83] I think C’s report or reports to her mother are also significantly consistent. C’s repetition of the report to her mother on 31 October was not objected to by the defence for obvious reasons. That report, combined with the later unidentified report or reports to the mother when C said that the event occurred in the tractor shed, then pointed out another shed on the map, led to a suggestion that C was inconsistent in her nomination of the location of the offence. I do not overlook the possibility of an inconsistency about the location of the offence but I do not regard it as significant. The reports to the mother are important bolsters to C’s credibility. The central allegation remains the same.
He was satisfied beyond reasonable doubt of the truthfulness of C’s evidence. He found that C’s statement to her father about the incident, while not evidence of its truth, was “striking” in its similarity to the interview she gave to the psychologist on 26 November 2008, which ultimately became her evidence in chief, and the evidence she gave in cross examination: at [82]. He said that C’s account to her father “was completely spontaneous”, and that it is an allegation of “an unusual event, something that it is unlikely for a 3 year old to make up”: at [82]. The Judge said that he did not overlook C’s evidence that she had touched M’s penis when he was urinating. However, he was satisfied that she had not confused this event with the incident involving Mr Douglass.
The Judge also found C’s reports to her mother to be “significantly consistent”. He found that these reports “are important bolsters to C’s credibility”: at [83].
Referring to the interview by the psychologist, he found that while a young child might “fantasise” such an incident or be mistaken about it, “a lack of detail or even initial denials does not…diminish C’s credit in the way that it would for an adult or an older child”: at [86].
The Judge was influenced by the firmness of C’s confirmation of her allegation in cross examination. He stated at [93] that:
[93] …Firmness in an adult would almost never add to credit but firmness in the face of contradiction in the case of so young a child seems to me quite powerful.
He reminded himself at [94] that C’s evidence was not supported by other evidence, and warned himself at [97] that he had to be cautious in deciding whether to accept C’s evidence and what weight he should give it: s 9(4) of the Act.
Grounds of appeal
The two grounds of appeal raise different issues.
The second ground, as argued, invokes the power of this Court under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) to allow an appeal on the ground that there has been a miscarriage of justice. The task of the Court in such a case was stated as follows by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493:
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.
Footnotes omitted
This ground requires the Court to focus its attention on the quality or persuasiveness of the evidence before the trial court.
The New South Wales equivalent of s 353(1) is s 6(1) of the Criminal Appeal Act 1912 (NSW). In Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, the High Court considered the application of s 6(1) to a case in which the trial was by judge alone pursuant to s 32 of the Criminal Procedure Act 1986 (NSW). The Court referred at [14] to the following observation by Hunt CJ at CL in R v Kurtic (1996) 85 A Crim R 57 at 60:
This Court has no power to rehear the issues at the trial or to make any finding which could have been made in the court of trial. In some of such appeals in which this issue has arisen, the stated attitude of the court has been complicated by the fact that it has been considering a ground of appeal that the verdict was unsafe and unsatisfactory. In such a case, it is the duty of this Court — whether the appeal is from a jury trial or a judge alone trial — to make its own independent assessment of both the sufficiency and the quality of the evidence, in order to see whether the jury (or judge trying the case alone) ought to have a reasonable doubt or whether this Court itself experiences such a doubt or is persuaded that there is a significant possibility that an innocent person has been convicted. It has nevertheless been accepted by this Court that an appeal against conviction from a trial by a judge alone pursuant to s 33 of the Criminal Appeal Act is not an appeal by way of rehearing. In the statutory context to which I have referred, this must be so. As the finding of a judge in such a trial is to be given the same effect as a verdict of a jury for all purposes, error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice.
Footnotes omitted
In Fleming the High Court said that there was no need to decide whether the power of the appellate court was so limited, under either the first limb of s 6(1) “… or in cases under the more broadly stated third limb …”: at [26].

In this State the practice has been to approach the issue more broadly than Hunt CJ at CL did in Kurtic. The issue of the correct approach was not raised by the submissions before this Court. I approach the matter on the basis that the question as posed in M v The Queen is to be answered by the Court making its own review of the evidence, and on the basis that the Court can draw its own conclusions as to the quality of that evidence, making due allowance for the advantage of the trial Judge.
As I noted earlier, the second ground directs this Court’s attention to the quality of the evidence before the Judge – to the credibility and reliability of the witnesses in particular. The second ground poses a question that requires the Court to consider whether that evidence supports a finding of guilt beyond reasonable doubt.
The first ground invokes the power of this Court to allow the appeal because of a failure by the trial Judge to discharge the obligation to give sufficient reasons. In R v Keyte [2000] SASC 382; (2000) 78 SASR 68 this Court held that there is an obligation on a judge to give reasons for decision after a trial by judge alone, and held that the failure to do so is an error of law: at [51], at [64] and at [80]. The finding of an error of law is a basis under s 353(1) of the CLCA for setting aside a conviction.
The conclusion in Keyte was that although Parliament had not provided that reasons must be given for a verdict reached after a trial by judge alone under s 7(1) of the Juries Act 1927 (SA), it was a necessary implication that in enacting s 7 of that Act Parliament so intended: Keyte at [26].
The legislation under consideration in Fleming made specific provision to the effect that a judgment after a trial by judge alone “… must include the principles of law applied by the Judge and the findings of fact on which the Judge relied”: s 33(2) of the Criminal Procedure Act 1986 (NSW). Referring to that provision the High Court said in Fleming at [22]:
[22]… Such a provision is an expression of legislative concern not only for the effective exercise by the Court of Criminal Appeal of its jurisdiction conferred by ss 5 and 6 of the Criminal Appeal Act. More fundamentally, s 33 evinces a concern that, in the operation of the new regime established by Pt 9 of the Criminal Procedure Act whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done.
Footnote omitted
Although the Juries Act 1927 (SA) does not contain an equivalent to s 33(2) of the Criminal Procedure Act 1986 (NSW), the same rationale underlies the implication that the Court drew in Keyte.
In my reasons in Keyte I did not attempt a comprehensive statement of the extent of the obligation to give reasons: Keyte at [54]. Nor has the Court done so since then. The matter is best approached case by case. In Keyte I referred to three passages in decisions of the Court of Appeal of New South Wales which I considered provided good guidance. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 Mahoney JA said:
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 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.
In Soulemezis McHugh JA 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.
Footnotes omitted
The effect of these passages is that after a trial by judge alone the judge should state the judge’s findings on the main grounds upon which the verdict rests, and usually will need to give reasons for making those findings. The judge will also need to deal with the main issues of law, again giving reasons. But it will not be necessary for the judge to repeat all of the matters of law that might be found in a direction to a jury on the same charges and facts. It will not be necessary for the judge to make reasoned findings on every disputed matter in the case, nor on every legal issue that arises. There are no hard and fast rules which will determine precisely how much detail is required in a particular case.
Particularly when a finding or the resolution of a case turns on credibility, it may be enough for the judge to say that the judge believes one witness in preference to another. In Soulemezis McHugh J said at 280:
Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour”: Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J.
Similarly in Keyte I said at [59]:
[59]The case cannot be disposed of on the basis that the issue was oath against oath, and once the judge had decided who was to be believed, and that he could be satisfied of guilt beyond reasonable doubt on the evidence of Ms C, that was the end of it. The evidentiary issues to which I have referred had to be decided before the judge could properly come to that conclusion.
On the other hand, sometimes an assessment of the evidence for the prosecution and the defence, and the giving of reasons for the rejection of defence evidence, will be necessary: Papps v Police [2000] SASC 183; (2000) 77 SASR 210 at [16] Gray J. Once again, what is required will turn upon the issues in dispute and the nature of those issues.
Another point worth repeating is that made by the High Court in Fleming where their Honours said at [28], referring again to the Criminal Procedure Act 1986 (NSW):
[28]Fifthly, whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be 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 that is reached.
Second ground of appeal
I reject the complaint that the Judge, properly directing himself, ought to have had a reasonable doubt about Mr Douglass’s guilt of the offence involving C.
If the appropriate test is the test identified in Kurtic (above), I would reach that conclusion without much difficulty. There was evidence to support the Judge’s finding. The evidence was certainly not all one way (pointing to a verdict of not guilty). There is no apparent misdirection in the Judge’s reasons. I emphasise that in considering this ground I am not concerned with the adequacy of the Judge’s reasons, except to the extent that any inadequacy might leave one thinking that the Judge could not have made a finding of guilt beyond reasonable doubt.
I return to the application of the test in M v The Queen.
It was open to the Judge to accept C as truthful and as reliable in relation to the alleged offence. One might argue with particular steps in his reasoning. For example, I am not confident that I would say that the incident was something that a three year old child was unlikely to make up. But I would certainly not say that the Judge was not able to take that approach, this being part of the experience of life that a trier of facts brings to bear in making findings of fact. I agree with the Judge that C’s statements to her father and to L were consistent with her evidence about the offence. At trial and on appeal Mr Edwardson made some valid points about C’s responses to questions from the psychologist. But these matters were dealt with by the Judge, and were dealt with in a manner that was open to him. I agree with the Judge that the inconsistencies between the statements to the psychologist and other statements by C, and C’s initial statements to the psychologist that no-one had asked her to touch their “willy” or penis, are explicable on the basis of C’s young age. This is not to say that the points made by Mr Edwardson are to be dismissed out of hand. Nor did the Judge do that. The submissions made by Mr Edwardson required careful consideration. One cannot simply say that because C was a three year old one could discard any difficulties with her evidence, accepting and acting on her evidence of the alleged offence. But equally one cannot say that C’s evidence should be assessed in the same way as one would assess the evidence of an adult. Nor could one say that C’s evidence was inherently unreliable because of her age. However, having regard to C’s age, it was open to the Judge to decide that she was truthful and reliable during the interview by the psychologist, which became her evidence, despite the problems with that evidence that Mr Edwardson identified. I also agree with the Judge that he was entitled to be influenced by C’s firmness in cross-examination, although again I am not sure I would give that as much weight as did the Judge.
C’s evidence was not to be assessed in isolation. It was to be assessed along with other evidence in the case, including defence evidence. I have treated C’s evidence separately, as a matter of convenience.
The evidence of Ms Hay supported that of Mr Douglass in a general way. But her evidence could not exclude the Judge’s conclusion that Mr Douglass had the opportunity to commit the offence alleged. Ms Hay’s evidence that C behaved normally after she had accompanied Mr Douglass is of no particular significance. There is nothing to suggest that C was or would have been upset if the alleged offence was committed that afternoon. So it was not necessary for the Judge to reject the evidence of Ms Hay, before accepting that of C.
C’s identification of the shed in which the offence occurred as a shed on Mr Douglass’s mother’s property also required consideration. But this evidence was by no means decisive. The circumstances under which C did this were unsatisfactory. It was open to the Judge to decline to be influenced by this evidence, or at least to have approached this evidence in the manner in which he did.
This is not a case in which the Judge’s failure to explain how and why he rejected Mr Douglass’s evidence denying the commission of the alleged offence leads to the conclusion that the Judge must have had or should have had a reasonable doubt. Sometimes evidence not dealt with by the making of an appropriate finding may lead an appellate court to conclude that the Judge should have had a reasonable doubt because, unless that evidence was dealt with in a particular way, one might conclude that a conclusion of guilt beyond reasonable doubt could not be reached. But in this case it is apparent that the rejection of Mr Douglass’s denials must have been based on the Judge’s acceptance of C’s evidence as truthful and reliable. There is no difficulty in reaching that conclusion. In relation to the allegation of the offence, the case was one of word against word. Of course the Judge had to consider the criticisms made of C’s evidence, and also had to consider the evidence of Mr Douglass. But the fact that there was no inherent flaw in the evidence of Mr Douglass, and the fact that there was nothing in his demeanour that assisted the prosecution, as the Judge noted, did not mean that the Judge could not, having considered the evidence on both sides, accept C’s evidence and make a finding of guilt beyond reasonable doubt.
A case of this kind is difficult and worrying for the person who must decide the facts, be that person a judge or a member of a jury. But the fact is that there was evidence that the Judge was entitled to accept, and to rely upon to reach a finding of guilt beyond reasonable doubt. The evidence did not suffer from weaknesses that meant that the Judge should have had a reasonable doubt.
First ground of appeal
Mr Edwardson made a forceful attack on the adequacy of the Judge’s reasons. That attack calls for careful consideration. However, I am not persuaded by his submission.
At times Mr Edwardson’s submission on the first ground veered into the topic of the veracity and reliability of C. He drew on some of the matters considered by me under the second ground of appeal. It is necessary to keep in mind the difference between the issues raised under each ground.
The Judge’s reasons for accepting C’s evidence as truthful and reliable are adequate. The Judge explains himself clearly on all points. This Court is able to scrutinise those reasons and is able to consider the second ground of appeal in light of the reasons. It cannot be said that the reasons do not permit this Court to discharge its function. Mr Edwardson’s criticisms of particular aspects of the Judge’s reasons, such as the statement that a child was unlikely to make up an incident like the incident in question, the Judge’s reference to C’s firmness in cross-examination, the Judge’s explanation for difficulties arising from C’s statements to the psychologist, the uncertainty of the shed in which the offence occurred, do not expose inadequacies in the Judge’s reasons. Mr Edwardson’s criticisms raise an issue of the quality of the evidence. That issue has been considered under the second ground of appeal. It cannot be said, under the first ground of appeal, that the Judge has not explained adequately his reasoning process.
Mr Edwardson is on firmer ground in complaining that the Judge does not explain how and why he rejected the defence case, as he must have. Mr Edwardson argues that this is all the more problematic because the Judge makes no adverse comment on the evidence of Ms Hay, and the Judge said that there was nothing in Mr Douglass’s demeanour that assisted the prosecution case.
For the reasons that I gave when considering the second ground of appeal, the Judge did not have to reject the evidence of Ms Hay. Her evidence did not present an obstacle to the Judge’s finding that Mr Douglass had an opportunity to commit the offence in question. Ms Hay’s evidence about C’s demeanour after she returned with Mr Douglass did not have to be rejected before the Judge made a finding of guilt. There is nothing to suggest that C was or would have been upset by the commission of the offence, if it occurred as alleged by her.
Upon the central issue, whether the alleged offence was committed on the afternoon in question, this was a case of word against word. The Judge had to assess the credibility and reliability of C’s evidence. The same applies to the evidence of Mr Douglass. If the Judge was persuaded that C was credible and reliable, Ms Hay’s evidence did not provide any significant obstacle to a finding of guilt. The fact that there was no inherent weakness in the evidence given by Mr Douglass, and the fact that there was nothing in his demeanour that led the Judge to reject his evidence, do not mean that the Judge was not entitled to do so.
The Judge adequately explained why he found C to be credible and reliable. Mr Edwardson was right in saying that the Judge does not explain how and why he came to the conclusion that he could and should reject the denials by Mr Douglass, and make a finding of guilt beyond reasonable doubt. But to my mind, the explanation is obvious. Having considered the evidence as a whole, and being satisfied of the truth and reliability of C’s evidence, the Judge necessarily rejected the denials by Mr Douglass.
In the particular circumstances, it was not necessary for the Judge to spell out why he rejected Mr Douglass’s denials. Indeed, there is little he could say other than that; because he accepted and acted on the evidence of C, he necessarily rejected the evidence of Mr Douglass. This is a case of a kind referred to by McHugh J in Soulemezis at 280 and by me in Keyte at [59]. Unlike Papps, it is not a case in which the failure to explain why the Judge rejected the evidence of Mr Douglass leaves this Court unable properly to consider the appeal. There were no flaws in the defence case that needed to be exposed and explained. The Judge’s acceptance of C’s evidence is the explanation for the rejection of the defence case.
In this respect the case differs from AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438. In Western Australia, as in New South Wales, s 120(2) of the Criminal Procedure Act 2004 (WA) provides that in a criminal trial by a judge alone the judgment must include the principles of law that the judge applied and the findings of fact on which the judge relied. All members of the Court agreed that the Judge had failed to meet the statutory requirement. Exchanges in the course of argument with counsel might have been said to indicate how the Judge came to his conclusion, but as Gleeson CJ and Kiefel J pointed out, these exchanges did not form part of the statement of reasons, and the Judge “simply did not address the arguments of counsel at any level either of specificity or generality”: at [16]. Similarly, Gummow and Hayne JJ said that there was a “… complete failure to articulate any of the reasoning by which the trial judge reached the ultimate conclusion that the appellant was guilty …”: at [55]. They went on to say at [58]:
[58]Once it is recognised that the Criminal Procedure Act requires that a trial by judge alone is to be concluded in this way, it is evident that to examine, as the Court of Appeal did, whether a chain of reasoning could be articulated that would support, even require, the verdict that was reached at trial was not to the point in deciding whether there was a substantial miscarriage of justice. It was not to the point because the relevant error or miscarriage which is the premise for consideration of the proviso is an error or miscarriage constituted by a failure to provide, as s 120(2) required, a reasoned decision about the central issue that was tried. The appellant was not tried in accordance with the requirements of s 120.
In the present case the Judge has not failed to provide a reasoned decision about the central issue. The Judge’s finding in relation to the evidence of C, in the particular circumstances, explains his rejection of the evidence of Mr Douglass on the central issue. It is not necessary for this Court to identify a chain of reasoning that “could be articulated”. The Judge’s reasons are clear, subject only to the failure to spell out that he rejects Mr Douglass’s evidence because he accepts the evidence of C.

In other circumstances it might not be sufficient for this Court to say that the Judge’s decision might have rested on his acceptance of the evidence of a central witness, leading to the conclusion that he rejected the evidence of the accused on that point. But this merely demonstrates how the question of a sufficiency of the reasons must be considered in light of the particular issues in the case.
That is not necessarily the end of the matter. As the High Court said in Fleming at [22], ensuring that justice is seen to be done is a rationale for the conclusion that a judge must give adequate reasons. That does not elevate the requirement to the status of a test or gateway for a decision to allow the appeal. It is another way of saying that the reasons are inadequate, because if they do not permit the Court to discharge its function then it cannot be said that justice is being seen to be done. In the present case there can be no doubt about how and why the Judge rejected the defence case.
Conclusion
For those reasons I would dismiss the appeal.
ANDERSON J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice.
DAVID J: I would dismiss the appeal for the reasons given by the Chief Justice.