R v HS - [2004] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
23 September 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant accused of sexual abuse of nephew over a period of eleven years - appellant elected for trial by judge alone - charged with nine counts of sexual offences - convicted by trial judge over six counts of unlawful sexual intercourse - appeal against conviction - whether nephew had esoteric knowledge of accused's penis - whether evidence of uncharged acts admissible - whether trial judge used evidence of uncharged acts in deciding guilt on other counts - issue of cross-admissibility of evidence between the counts - whether trial judge gave herself adequate directions - whether Longman direction correctly issued - appeal allowed in part - retrial ordered.
Criminal Law Consolidation Act 1935 (SA) s 5, s 49(3), s 353; Evidence Act 1995 (Cth) s 34A; Criminal Procedure Act 1986 (NSW) s 33(2), referred to.
R v Keyte (2000) 78 SASR 68; R v Green (2001) 78 SASR 463; Longman v The Queen (1989) 168 CLR 79; R v Nieterink (1999) 76 SASR 56; R v RWB (2003) 87 SASR 256; R v ADW (2002) 84 SASR 178; Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162, applied.
R v BFB (2003) 87 SASR 278; Jago v District Court (NSW) (1989) 168 CLR 23; Jones v The Queen (1997) 191 CLR 439; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Ghys v Crafter [1934] SASR 28; Fleming v R (1998) 197 CLR 250, discussed.
Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210; R v MacDonald (1995) 65 SASR 322; R v McKenzie [2001] SASC 279; R v Hatchard [1999] SASC 111; R v BWT (2002) 54 NSWLR 241; Dyers v R (2002) 210 CLR 285; R v K (1997) 68 SASR 405; Herron v McGregor (1986) 6 NSWLR 246, considered.

R v HS
[2004] SASC 300
Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

Duggan J The facts of this matter are set out in detail in the reasons for judgment of Anderson J.
There are two grounds of appeal upon which I wish to make particular comment.
The issue of cross-admissibility
The appellant complains that the trial judge failed to give adequate reasons as to how evidence relevant to one count was used as evidence tending to prove another count.
In the view that I take of the matter, this complaint must be considered against the background of the use which the trial judge made of the evidence of a number of uncharged acts.
At the commencement of the trial the prosecution gave notice of intention to lead evidence of a series of alleged indecencies committed on the complainant by the appellant which were not charged in the information. This evidence was admitted over the objection of the appellant’s counsel. According to the evidence accepted by the trial judge, six such incidents took place when the complainant was between five and thirteen years of age. The trial judge found that other uncharged incidents took place but the dates on which they took place could not be identified with precision. The charged acts covered the period from when the complainant was 13 to 16 years of age.
Objection was taken to the admissibility of the uncharged acts, principally on the ground that they lacked particularity; that it would be unlikely for this reason that they could be proved; and that, because of lack of particularity, it would be difficult for the appellant to respond to the allegations.
The evidence was admitted on the following basis identified by the trial judge in her reasons for judgment:
“1    It was relevant to the issue of why D [the complainant] did not complain to any person during the whole of the period when these sexual acts took place and for many years afterwards.
2     It helped to explain the ease with which the Accused carried out these acts with D and D’s preparedness on each occasion to cooperate with one exception being the occasion at the Clarendon hotel.
3     It helped to explain the context in which the first charged incident occurred, namely, the lack of any protest by D on the occasion when he and the Accused had gone for a drive in the Accused’s Valiant and were sitting in the front seat of the Valiant at or near the Port Noarlunga Soccer Oval.”
The trial judge warned herself of the impermissible use of this evidence in her reasons:
“It is important that I do not reason that because the complainant has given evidence of a number of uncharged acts, he has a propensity to behave like that with D ands is therefore the sort of person who is more likely to have committed the 9 offences with which he was charged.
To do so would be wrong and I have reminded myself not to so reason.”
The trial juge proceeded on the basis that the uncharged acts had to be proved beyond reasonable doubt before they could be used for any purpose.
In my view, the evidence of those uncharged acts which the trial judge found proved were relevant for the purposes which she identified in her reasons for judgment.
The complaint which is made in relation to the charged acts is that the trial judge said nothing in her reasons for judgment as to whether she used the evidence in relation to the charged acts which she found proved as evidence to assist in the proof of any of the other charges; nor did she say anything about the use to which such evidence could not be put. Reliance was placed on R v Keyte (2000) 78 SASR 68 and R v Nieterink (1999) 76 SASR 56.
In my view it is clear that the evidence in relation to the charged acts could have been used for the purposes identified in paras one and two of the trial judge’s reasons set out above. Indeed, one of the reasons advanced by senior counsel who acted for the appellant at the trial for excluding the evidence of the uncharged acts was that the series of charged acts served the same purposes for which the prosecution proposed to use the uncharged acts. Counsel said (AB 1/15):
“The second point we make is this: that the prosecution have laid nine counts and the prosecution’s case is, in that respect, through the very counts themselves, able to address the matters that my learned friend relies on as to relevance, namely why he participated, why he didn’t participate, all of those matters can be addressed through those counts. So it’s not like a case, for example, where the offending is alleged to have occurred in a limited time frame and one needs uncharged acts within that timeframe to explain the occurrence of the individual acts.”
However, as the evidence of the uncharged acts was admitted, there was ample evidence without resorting to the charged acts, to establish those matters for which the uncharged acts were admitted. Furthermore, the trial judge appears not to have used the evidence of the charged acts as evidence to prove other charged acts. She made no reference to using them in this way. However, as I have pointed out, she particularised the basis upon which she used the evidence of the uncharged acts.
If, contrary to what I have said, the trial judge did treat the evidence of the charged acts as cross-admissible, she would have been justified in so doing for the purposes identified in paras 1 and 2 of her ruling quoted above. As I have pointed out, this was not disputed by counsel for the appellant at the trial.
In my view, there was no real risk that the trial judge used the evidence of each count in relation to other counts in an impermissible manner. She correctly directed herself on the legitimate use of the evidence of the uncharged acts. She explained that this was the only relevance of those acts. If she chose to use the evidence of each charged act as probative in relation to other charged acts it could only be pursuant to the same process of reasoning which rendered the uncharged acts relevant. After giving herself the warning that she was not to employ propensity reasoning in respect of the evidence in relation to the uncharged acts, it is highly unlikely that she would have used such reasoning as between the charged acts. In short, there is no real risk that the evidence of any of the charged acts was used for an impermissible purpose in the proof of other charged acts.
In my view, the trial judge should have commented in her reasons for decision on the use or non-use of the charged acts in relation to other charged acts. The general comments made in R v Keyte concerning the importance of adequate reasons apply to this case. However, when determining whether there is a real risk of a miscarriage of justice regard must be had to the circumstances of the particular case. In Keyte’s case the trial judge did not say anything as to the use of either the charged or uncharged acts, although his reasons suggested that he considered the evidence was relevant.
In the present case it can be inferred from the reasons for decision that the evidence in relation to one count was not used in relation to other counts. The trial judge was not invited to do so by the prosecution and it can be inferred from her reasons that she did not follow such an approach. But even if she did, it is clear that the evidence would not have been used for any purpose other than that for which the uncharged acts were used. The evidence was relevant for this purpose. In light of the trial judge’s comments about the uncharged acts, there is not the slightest risk that the evidence of the charged acts was used by way of propensity reasoning. In all the circumstances this ground of appeal does not disclose a risk of a miscarriage of justice.
Esoteric knowledge
The appellant complains that the trial judge treated as esoteric knowledge certain details given by the complainant concerning the appellant’s penis and that considerable importance was given to this consideration in the assessment of credibility.
The complainant gave evidence that the appellant was not circumcised. He said that the appellant was unable to pull back the foreskin on his (the appellant’s) penis and that, when the appellant’s penis was erect the foreskin was “never withdrawn over the head of his penis”.
In the first place, the trial judge seems to have considered that the fact that the appellant was uncircumcised and the complainant was able to give evidence that this was so was, of itself, a relevant consideration in deciding that the complainant displayed esoteric knowledge. Her reasons for decision include the following passage at [26]:
“The Accused said he had never had any conversation with his nephew about sexual matters or the state of his penis. Notwithstanding the fact that D was asked in cross-examination whether he had ever asked his grandmother about whether his uncle was circumcised, his grandmother, SS never actually claimed that her grandson had asked her whether the Accused was circumcised. Her version of the conversation she had with her grandson about this topic after he had already raised the allegation of sexual abuse by his uncle with his grandmother was that he had told her he was circumcised and then told her that the Accused was not”
In my view, the fact that the appellant was not circumcised and the complainant gave evidence to that effect, could not be considered as relevant esoteric knowledge. Apart from the unremarkable nature of this feature, it was a clear possibility on the evidence that the complainant had the opportunity to acquire this knowledge in a non-sexual setting, namely, when they attended the toilet together. The trial judge did not refer to that possibility in her reasons for decision.
As for the condition of the appellant’s foreskin, Besanko J has drawn attention to the consideration that the evidence does not exclude the possibility that any restriction in drawing the foreskin back over the head of the appellant’s penis could have been observed when the appellant was urinating and that this may have been seen by the complainant. The evidence does not exclude the possibility that the restriction was evident when the penis was flaccid as well as erect.
Finally, there is a lack of specificity about the evidence on this topic which renders it unsuitable as a basis from which to infer esoteric knowledge. It is necessary to refer to some of that evidence.
The complainant was cross-examined as follows (AB 2/162):
“Q    When you’ve said that his foreskin didn’t pull back do you mean by that that you couldn’t see the tip of his penis?
A     It didn’t come back over the head of his penis.
Q     But do you mean you couldn’t see the tip?
A     No, I don’t mean that.
Q     So could you see the tip or couldn’t you?
A     You could. Depends if you are talking about when it was erect or not erect.
Q     When he was urinating, could you see the tip?
A     I don’t recall him urinating.
Q     So you say you didn’t pull back the foreskin at all?
A     That I didn’t?
Q     Yes.
A      While he was urinating or when?
Q      At any time?
A      No, that’s right.
Q      And you say you didn’t pull it back because you couldn’t, is that right?
A      That’s correct.”
The appellant gave evidence that the foreskin of his penis could be pulled back. The examination-in-chief continued (AB 2/345):
“Q    In terms of your penis, can you pull back your foreskin?
A     You can pull back the foreskin.
Q     In terms of how far you can pull it back, could it be said that perhaps it doesn’t pull back as far as some other people’s?
A     That’s correct.
Q     I think your son is uncircumcised, as an example?
A     Yes.”
In cross-examination the appellant said that he could pull his foreskin back to a certain point, but that he was unable to make any real comparison in order to say that this was an unusual anatomical feature.
The appellant’s wife gave evidence that the appellant’s foreskin could be pulled back. (AB 2/429) She was cross-examined on the topic (AB 2/446):
“Q    You said in your evidence that you were able to pull your husband’s foreskin back?
A     Yes
Q     How far?
A     You could see the – whatever it’s called – underneath.
Q     The head of the penis?
A     Yes.
Q     Could you see it entirely?
A     No.
Q     So, there was a restriction involved?
A     Not a big restriction, no.
Q     But there was some?
A     Yes, I mean to say you can’t pull it as far back as you can pull my son’s.”
In my view, this evidence lacked the particularity and probative force required to establish a level of esoteric knowledge which would justify the importance which the trial judge accorded to it.
This was a case of word against word and particular care was required in the assessment of credibility. The evidence on this topic was described by the trial judge as “very important” and it appears to have been a major factor in the assessment of credibility.
I cannot, with respect, agree that it possessed this quality. In my view the weight which was given to it gives rise to a real risk of a miscarriage of justice.
I agree with the views expressed by Besanko and Anderson JJ on the other grounds of appeal.
I would allow the appeal, set aside the verdicts of guilty and order that there be a re-trial on counts one, two, five, six, seven and eight in the information.
BESANKO J The facts are set out in the reasons for judgment of Anderson J. I gratefully adopt his statement of the facts, and I will repeat the facts only where it is necessary to do so in order to understand my reasons.
This is an appeal against convictions entered after a trial by Judge alone.
In my opinion, the appeal should be allowed, the convictions recorded against the appellant should be set aside and an order should be made that there be a retrial on counts 1, 2, 5, 6, 7 and 8 in the Information. In my opinion, two of the grounds of appeal are made out and it is not an appropriate case for the application of the proviso in s 353 of the Criminal Law Consolidation Act 1935 (“CLCA”).
The first error made by the Judge was that she erred in law in failing to give reasons on the question of whether and how evidence on one count was used in relation to the other counts. The second error was that she erred in her analysis of evidence concerning a feature of the appellant’s penis and the conclusions she drew from that evidence.
The evidence in relation to one count being used as evidence tending to prove another count.
There were nine charges of unlawful sexual intercourse (s 49(3) of the CLCA) against the appellant. The appellant was found guilty in relation to six charges (counts 1, 2, 5, 6, 7 and 8) and not guilty in relation to the other three (counts 3, 4 and 9). The offences allegedly took place between April 1985 and April 1989, and involved the appellant causing the complainant to perform acts of fellatio on him, or the appellant performing acts of fellatio on the complainant. The complainant was the appellant’s nephew and he was born on 25^th April, 1972. He was between 13 and 16 years of age at the time of the alleged offences.
The prosecution alleged that the appellant performed a number of other indecent acts on the complainant and it led evidence of these acts. These other acts were referred to by the Judge as uncharged acts and I will also use that description. The evidence in relation to the uncharged acts varied in terms of the complainant’s ability to be precise as to matters such as the time at which they occurred and the places at which they occurred. The Judge was able to identify six incidents with a fair degree of precision, and those incidents occurred when the complainant was between five and 13 years of age. The Judge found that there were other incidents, but on the evidence it was difficult for the Judge to be precise as to when these occurred.
The Judge admitted the evidence of the uncharged acts and she explained in her reasons how she proposed to use the evidence. She said that the evidence was relevant in a number of ways which she described as follows:
“1.It was relevant to the issue of why D did not complain to any person during the whole of the period when these sexual acts took place and for many years afterwards.
2.It helped to explain the ease with which the Accused carried out these acts with D and D’s preparedness on each occasion to cooperate with one exception being the occasion at the Clarendon Hotel.
3.It helped to explain the context in which the first charged incident occurred, namely, the lack of any protest by D on the occasion when he and the Accused had gone for a drive in the Accused Valiant and were sitting in the front seat of the Valiant at or near the Port Noarlunga Soccer Oval.”
The Judge made it clear that she would not reason that evidence of the uncharged acts was relevant to establish a propensity on the part of the appellant to act in the manner alleged in the nine charges against him.
The Judge also said that the fact that the complainant was shown to be wrong in some of the details of the uncharged acts did not cause her to doubt the truthfulness and reliability of his evidence as to the essential matters described by him and relating to the sexual contact between him and the appellant. The Judge also said that the lack of particularity given by the complainant in relation to some of the incidents was to be explained by the fact that the acts occurred over a very long period of time when the complainant was between five and 16 years of age and by the fact that the acts happened frequently.

The Judge did not err in admitting the evidence of the uncharged acts and in using the evidence in the ways she indicated (R v Nieterink [1999] SASC 560; (1999) 76 SASR 56). Furthermore, her reasons in relation to those matters were, with respect, adequate (R v Keyte [2000] SASC 382; (2000) 78 SASR 68).
With that background as to the use by the Judge of the evidence of the uncharged acts, I turn to consider the Judge’s approach to the use of evidence relevant to one count as evidence tending to prove another count. On this topic the Judge did not say whether she would use the evidence relevant to one count as evidence tending to prove another count. Nor did she say whether she would use the evidence relevant to one count in the same way as she said she would use the evidence of the uncharged acts.
The Judge did consider carefully whether her conclusion that the appellant was not guilty of counts 3, 4 and 9 affected her approach to the complainant’s evidence in relation to the other counts. In that respect, I do not think the Judge’s approach can be criticised.
The Judge was required to give adequate reasons for her decision. She was required to explain how she approached important issues which needed to be addressed because of the particular circumstances of the case. One important issue was whether, and how, evidence relevant to one count was evidence tending to prove another count. In R v Keyte, Doyle CJ said (at [55]):
“For the purposes of the present case, it suffices to say that in my opinion the judge’s obligation to give reasons required him to explain what use was made of the evidence of uncharged acts, at least to the extent of identifying how the evidence would be used, and how it would not be used, if not necessarily identifying in terms of a finding the precise use actually made of it. This is a difficult area of the law, and one in which considerable care is required to avoid error. It is a topic with which I grappled in R v Nieterink [1999] SASC 560, (1999-2000) 206 LSJS 135. The judge was also obliged to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. This also is a matter that gives rise to difficulty at times. There was an obligation to give reasons on these matters because, having regard to the evidence admitted by the judge and the issues at trial, the proper use of the evidence in these respects was an important issue at the trial. They are matters that the judge had to decide. The decision required the proper application of a substantial body of law. The judge’s reasons themselves suggest that the evidence of uncharged acts, and the judge’s conclusion that the relationship between Ms C and the appellant was a violent one, played a significant part in the judge’s finding of guilt. That being so, the appellant is entitled to have the CCA decide whether or not whether there was an error of law in this respect, and the silence of the judge’s reasons in that respect prevents the court from discharging its statutory function on appeal.”
In this case, the Judge did not explain whether evidence relevant to one count was evidence tending to prove another count and, if so, how it was that the evidence could be used in that way. This failure by the Judge was an error of law (R v Keyte per Doyle CJ at [51]).
Counsel for the Director of Public Prosecutions submits that it is apparent from the Judge’s reasons that she did not use the evidence relevant to one count as tending to prove another count, and that therefore her failure to expressly say as much in her reasons was not capable of leading to a miscarriage of justice.
It is true that the structure of the Judge’s reasons suggests quite strongly that in considering each count the Judge considered only the evidence relevant to that count. By the structure of her reasons I am referring to the fact that the Judge goes through each charge and sets out the evidence relevant to that charge and makes findings having regard to that evidence. It is also true that the Judge deals carefully with the admissibility and use of the evidence of the uncharged acts.
I think it is likely the Judge did not use evidence relevant to one count as tending to prove another count. It is possible the Judge used some of the evidence relevant to a count in a similar way in which she used the evidence of the uncharged acts. The fact that it is likely the Judge did not use evidence relevant to one count as tending to prove another count is not enough. In my opinion, unless it can be said with a high level of confidence that the Judge applied the correct principle notwithstanding her failure to deal with the topic in her reasons, the error of law in failing to deal with that topic is one capable of producing a miscarriage of justice. I am not able to say with a high level of confidence that the Judge applied the correct principle and, accordingly, I would uphold this ground of appeal.
Esoteric knowledge
The complainant said that the appellant was not circumcised and that when his penis was erect his foreskin did not withdraw or fully withdraw over the head of his penis.
The appellant and his wife gave evidence about this topic which I will refer to in a moment.
I think the Judge’s reasoning was to find that the restriction referred to by the complainant was acknowledged by the appellant and his wife and that it was knowledge which the complainant could have acquired only by intimate contact with the appellant. Having reached those conclusions, the Judge said:
“Whilst I have not gone so far as to use this as evidence of corroboration of D’s evidence I find it to be very important when assessing the credibility of D.”
With respect, I do not think the Judge analysed the evidence correctly.
The appellant and his wife acknowledged in their evidence that there was a restriction in terms of how far back the foreskin of the appellant’s penis would retract. However, the evidence from the appellant and his wife was unclear as to whether the restriction was only noticeable when the appellant’s penis was erect, or whether it was noticeable whether his penis was erect or flaccid. That is an important point because it will be relevant to the complainant’s opportunity to observe the restriction in circumstances other than circumstances involving intimate contact. For example, the contact between the appellant and the complainant was so frequent that it would not be surprising if the complainant had the opportunity to see the appellant’s penis while he was urinating.
In my opinion, the Judge should have considered whether the restriction could only be observed when the appellant’s penis was erect, or whether it could also be observed when the penis was flaccid and the appellant was urinating. I do not think the evidence of the appellant and his wife was sufficiently clear to justify a finding that they acknowledged that the restriction could only be observed when the appellant’s penis was erect. The Judge was therefore required to consider whether the complainant might have observed the restriction during an innocent activity such as urinating. On the evidence, that was a possibility. On the whole of the evidence I do not think it was open to the Judge to find by reference to the evidence of the appellant and his wife that the complainant had esoteric knowledge which he could only have acquired by intimate contact with the appellant. In other words, the error by the Judge was not in accepting the evidence of the complainant on this topic. The Judge was entitled to do that. The error lay in her analysis of the evidence of the appellant and his wife, and in her conclusion that they acknowledged the restriction of which the complainant spoke and which she said showed esoteric knowledge on the part of the complainant.
It is not every misdirection on the facts in a trial by Judge alone which will lead to an appeal being allowed. Nor is it necessarily the function of this Court to review findings of fact to determine if they were correctly made (R v ADW (2002) 84 SASR 178). It is not necessary to explore those issues in this case because the error here was a significant one. The Judge said that she found the evidence “to be very important when assessing the credibility of [the complainant]”. I am satisfied that what has occurred amounts to a miscarriage of justice.
The two errors which I have identified are sufficient to lead to the conclusion that the appeal should be allowed. The convictions depended on the uncorroborated evidence of the complainant and it is not an appropriate case for the application of the proviso.
Although it is not strictly necessary for me to do so, I will briefly consider the other grounds of appeal.
The directions concerning delay and the absence of complaint
The Judge said that the complainant’s evidence was uncorroborated. He was the only witness asserting the commission of the offences. In those circumstances, the Judge was required to scrutinise the complainant’s evidence with great care (Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162).
Furthermore, the complainant did not complain to the police about the appellant’s conduct until some 21 years after the first of the alleged uncharged acts and some 13 or 14 years after the first of the alleged charged acts. In those circumstances, the Judge as the trier of fact was required to apply a Longman warning (Longman v The Queen (1989) 168 CLR 79) and to assess the evidence having regard to the reasons for the warning.
The critical passages in the Judge’s reasons are as follows:
“11.    The prosecution case depends on the evidence of D. I have formed the view that there is no evidence which is capable of corroborating D’s testimony.
12.    In these circumstances, it is essential that I scrutinise D’s testimony with extra care and that I, in effect, remind myself and give myself a warning that it would be dangerous to convict the Accused on D’s uncorroborated testimony.
13.    I have carefully observed D and analysed his testimony in this Court. I have also borne in mind the criticisms made by Mrs Shaw QC of his testimony in her final address and considered the evidence on the basis of which she made those criticisms. I have dealt with some of those matters and inconsistencies in the body of my reasons when dealing with each of the individual counts and the uncharged acts.
14.    I should say that in reminding myself of these matters and giving myself this warning, I do not distinguish between the charged or the uncharged acts as the same dangers are present in relation to the evidence of both the charged and the uncharged acts.
15.    It is true, and indeed I have seen evidence of this in the accounts given by a number of witnesses in this trial, that no matter how honestly a person giving evidence holds their views, people’s memories of events so long in the past can be, and often are, unreliable.
16.    There is little doubt that if the allegations had been made earlier, the Accused would have been able to explore each of the allegations in much more detail than was possible having regard to the lapse of time between when these events are said to have happened and the time which the complainant first went to the police. For example there may have been an opportunity to explore alibi witnesses or forensic evidence may have been available back then and witnesses questioned.
17.    I must therefore assess D’s evidence with extra care and I cannot be satisfied beyond reasonable doubt in relation to either the charged or the uncharged acts unless, given all of these circumstances, I am satisfied at the end of my evaluation that the victim’s evidence is both truthful and accurate.”
The appellant submits that the Judge did not correctly formulate the relevant principles. The submission seemed to be that the Judge did not apply a proper Longman warning and certainly did not apply it in the context of the delay. It is also submitted that the Judge did not identify in sufficiently strong terms the effect of the delay on the appellant’s ability to present his defence. I reject both these criticisms. I think the above passages make it clear that the Judge was alive to the relevant considerations, and in the end she formulated and applied a warning that it would be dangerous to convict on the basis of the complainant’s uncorroborated evidence. Furthermore, I think that in paragraph 16 above the Judge gave herself a sufficiently strong direction in terms of the effect of the delay on the appellant’s ability to present his defence.
The appellant also submits that in assessing the complainant’s truthfulness and reliability, the Judge failed to have regard or sufficient regard to the complainant’s failure to complain. I reject that criticism because it is clear from her reasons that in considering the complainant’s truthfulness and reliability the Judge had in the forefront of her mind the submissions advanced by the appellant’s counsel including the submission that the failure to complain was a significant weakness in the complainant’s evidence.
The Judge did not err in her approach to the issues of delay and the absence of complaint.
The Judge’s analysis of the evidence
The appellant criticised the way in which the Judge analysed the evidence.
The first criticism related to the Judge’s approach to the complainant’s evidence. The Judge deals with the complainant’s evidence at an early stage in her reasons. She expresses her conclusion that the complainant was both truthful and reliable. Later, the Judge considers each count and in that context she deals with evidence called on behalf of the appellant including evidence from his wife and mother. It was submitted that the Judge erred in that she failed to consider the complainant’s credibility and reliability in the context of the whole of the evidence. If the Judge did do what the appellant asserted then that would be an error, but I do not think that the Judge approached the matter in the way the appellant suggested. The Judge made it very clear that in considering the complainant’s truthfulness and reliability she considered all of the evidence including, as the Judge put it, “inconsistencies between his testimony and the surrounding circumstances in relation to a number of the counts charged and the uncharged acts which inconsistencies were proved by other evidence”.
A related submission made by the appellant was that the Judge failed to give reasons or sufficient reasons for rejecting evidence given by the appellant, his wife, his mother and other witnesses which it was said threw considerable doubt on the truthfulness and reliability of the complainant’s evidence. The particular matters which the appellant identified are the following:
1.     In relation to the second of the uncharged acts, the complainant said it occurred at the house of the appellant’s parents and that the appellant had the keys to the house. The appellant, his wife and his mother said that he did not have the keys to the house at that time.
2.     The appellant’s wife gave evidence which supported the appellant’s evidence in a number of respects. Examples include evidence suggesting the complainant’s evidence as to the first of the uncharged acts was not correct, evidence given by the appellant’s wife that the appellant never went out walking or in the car with the complainant alone (relevant to the fifth of the uncharged acts), evidence that the appellant never owned a black beanie (relevant to the first count), evidence given by the appellant’s wife that the appellant had never been to the Marion Oval with the complainant alone (relevant to the second count), evidence given by the appellant’s wife in relation to the babysitting arrangements (relevant to the third and fourth counts) and evidence given by the appellant’s wife that the appellant had never been alone with the complainant at Port Augusta and had not gone off for a walk with the complainant, nor had he ever slept on the beach with any of the boys during the Coffin Bay trip (relevant to the sixth, seventh and eighth counts).
3.     The complainant’s mother gave evidence of facts relating to the first of the uncharged acts which the appellant said was inconsistent with the complainant’s account.
4.     The appellant gave evidence in relation to the fifth count and the Judge said his evidence that no one went looking for firewood and his claimed inability to recall any fire being lit other than the camp stove was “illogical and unconvincing”. I mention at this point that a second and quite separate criticism was made of the Judge’s reasoning on this topic. It was said that by referring to the appellant’s evidence as “unconvincing” the Judge reversed the onus of proof. I reject that criticism. Earlier in her reasons the Judge made it clear that the fact that she did not believe the appellant did not mean that she must find that the prosecution had proved the commission of the offences. The appellant did not have to prove anything, and the Judge said that she must be satisfied that the prosecution had proved each of the counts beyond reasonable doubt. That was the correct approach.
I reject the submission that in relation to the matters I have listed the Judge either gave inadequate reasons or her reasoning process was flawed.
This Court has not yet defined the boundaries of a Judge’s obligation to give reasons in a case of trial by judge alone and that important issue must await a case where the point is fully argued. For present purposes it is sufficient to refer to two passages from the reasons for judgment of the Chief Justice in R v Keyte (at [54] and [56]).
“This is not the case in which to decide in a comprehensive way the extent of the obligation to give reasons for a decision as to guilt or innocence in a trial without a jury. It is not appropriate to do so because it is not a matter on which the court has had the benefit of full submissions. Different considerations might apply to matters of law and of fact, to a verdict of guilty and a verdict of not guilty. I should make it clear that, in what I have already said, there is no assumption that in such a case the reasons for decision must replicate the instructions that would be given to a jury, and also include detailed findings on all issues of fact.
…
I do not have to decide whether it was incumbent upon the judge to identify the central evidence upon which he was prepared to act, and the basis upon which he preferred the evidence of Ms C to that of the appellant. I do not have to decide this issue, the extent of the obligation to make findings of fact, because in this respect the judge’s reasons are adequate. 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.”
Having regard to those observations and the matters which follow, I think the Judge’s reasons are adequate. In relation to one important topic (ie., whether there was ever an occasion when the appellant went off alone with the complainant) the Judge gave a reason for rejecting the evidence of the appellant’s wife. The Judge said the evidence of the appellant’s wife was plainly calculated to protect her husband and that she could not rely on it. As far as the evidence of the appellant’s mother is concerned, I do not think there was an obvious clash between her evidence and the evidence of the complainant, but even if there was, the Judge was entitled to accept the evidence of the complainant which she did. As far as the babysitting arrangements are concerned, the Judge dealt carefully with the inconsistencies between the complainant’s evidence and the evidence of other witnesses and she considered carefully whether the inconsistencies affected the complainant’s truthfulness and reliability. As far as the incident concerning the collection of firewood is concerned, I have read the evidence and I reject the criticism of the Judge’s reasoning.

In terms of her analysis of the evidence, I think the Judge gave adequate reasons and I do not think her reasoning was in any way flawed.
Conclusions
For the reasons I have given, I would allow the appeal and set aside the convictions. I would order a retrial on counts 1, 2, 5, 6, 7 and 8 in the Information.
ANDERSON J
Background
The accused was charged with nine counts of unlawful sexual intercourse with a person under the age of 17 years contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). He elected to be tried by judge alone and entered a plea of not guilty. He was subsequently found guilty on six of the nine counts by a District Court judge. This is an appeal against his convictions.
The act of intercourse alleged in each of the nine counts on the Information is an act of fellatio. This is within the definition of sexual intercourse under s 5 of the Act. In addition to the charged acts, the prosecution led evidence of a number of alleged uncharged sexual acts. Her Honour declined to exclude the evidence in relation to these acts.
The complainant, D, was the accused’s nephew. He alleges that the conduct occurred during the time when he was between the ages of 5 and 16, that is from 1978 to 1988, although he didn’t make the first complaint until 1991. The timing of this first complaint is not disputed. At this time he was about 19 and living in Darwin with his girlfriend. He next complained to his grandmother in 1999. This was nearly 21 years after the first uncharged act and nearly 11 years after the last charged act. The charged acts were said to have occurred at various times between 1985 and 1987. In July 1999 he gave a statement to the Sexual Assault Unit at the South Australian Police Force. At the time of the trial D was 31 years old.
I set out hereunder details of the nine counts relating to the charged acts, a brief summary of the evidence and my overview of the way the learned trial judge dealt with each count. I deal more fully with the details of each count later in these reasons when considering the grounds of appeal.
Charged Acts
Count 1: Particulars of Offence

S, between the 24^th day of April 1985 and the 1^st day of January 1988 at or near Morphett Vale had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.

This charge relates to an incident alleged to have occurred between 24 April 1985 and 1 January 1988 near the Port Noarlunga Soccer Oval. D and the accused went for a drive in the accused’s car. The accused is alleged to have removed the centre console and placed it in the back seat. D then masturbated the accused and performed fellatio on him. D says that he also ejaculated and the accused cleaned it up with a black beanie. D recalled that this was one of the first times he had ejaculated during sexual acts with the accused. D gave very specific evidence in relation to the vehicle and in particular the centre console arrangement between the two front seats. The accused in his evidence had tendered photographs of what was said to be a similar vehicle but there was one important difference, there was an armrest in the vehicle in the photograph. The accused’s evidence about that aspect was found by her Honour to be unreliable and the evidence of D was accepted. It was not put to D that there was an armrest. In my view nothing has been demonstrated to be wrong in relation to her Honour’s acceptance of D’s version of events.
Count 2: Particulars of Offence

S, between the 1^st day of March 1985 and the 26^th day of April 1987 at Marion, had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.

This charge relates to an incident occurring between 1 March 1985 and 26 April 1987. D recalls it happening at a combined birthday celebration for D’s brother C and his grandmother, when D was about 14 or 15. D and the accused went for a walk to the Marion Oval into a building, which was used as stables. D allegedly performed fellatio on the accused who ejaculated into his mouth. D states that it was the only time that he had ever been to that part of the oval with the accused, although he had been on walks to the oval area generally with other family members on earlier occasions.
The accused denied ever having been to the stable buildings and his wife said that he had never been to the oval alone with D. Once again the learned trial judge accepted the evidence of D, which she was entitled to do.
Count 3: Particulars of Offence

S, between the 1st day of January 1985 and the 26^th day of April 1987 at Morphett Vale had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.

Count 4: Particulars of Offence
S, between the 1st day of January 1985 and the 26^th day of April 1987 at Morphett Vale had sexual intercourse with D, a person under the age of 17 years, by performing an act of fellatio upon him.

Both counts 3 and 4 are said to have occurred between 1 January 1985 and 26 April 1987. It can be seen that in count 3, D is alleged to have performed an act of fellatio on the accused, whereas in count 4 it is the other way around. D gave evidence that he started babysitting for the accused’s children in mid-1986 for a couple of weeks each month over a period of about six months. Generally D would be picked up from school by his Aunty who would then go to work and not return until midnight. D would babysit the children all evening, sleep over at the accused’s house and then get dropped at school the next morning by his Aunty.
D states that on nearly every occasion he babysat, a sexual act occurred between himself and the accused. The acts, which form the subject of counts 3 and 4, were acts of simultaneous fellatio after which they both ejaculated. D says that after this the accused pinched the tip of his penis, which hurt him. This is the only time that the accused had ever done this.
The accused gave evidence and agreed that D did babysit for S’s children but said it was earlier than D believed, probably in 1985 and, he stated that he did not remember D staying overnight. The evidence given by D’s mother does not support that of D. She states that he did stay overnight, but only on weekends and when he was much older than the time that he alleges. Given this evidence, the learned trial judge was not satisfied beyond reasonable doubt that these acts had been proved to have occurred during the times alleged and the accused was acquitted on these counts.
Count 5: Particulars of Offence
S, between the 3^rd day of July 1987 and the 20^th day of July 1987, at Onkaparinga Gorge had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.
This incident allegedly occurred between 3 July 1987 and 20 July 1987 when D, his brother M, another boy and the accused went camping at Onkaparinga Gorge. D and the accused went looking for firewood, they sat down near some olive bushes and D allegedly performed fellatio on the accused after which the accused ejaculated into his mouth. The incident took around five minutes. D says that by this time he was accustomed to engaging in such activity and did not ask any questions nor did he attempt to resist.
The accused denied on that particular occasion that anyone went looking for firewood. He was unable to recall any fire being lit except for a camp stove. Her Honour found his evidence on this topic to be illogical and unconvincing and in my view, with just cause. To be able to specifically deny an incident of merely collecting firewood but recalling the lighting only of a camp stove, but no other fire, some 15 years ago or more is illogical and unconvincing in my view.
Count 6: Particulars of Offence

S, between the 1^st day of December 1987 and the 1^st day of February 1988 at Port Augusta, had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.
Count 7: Particulars of Offence
S, between the 1^st day of December 1987 and the 1^st day of February 1988 at Coffin Bay, had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.
Count 8: Particulars of Offence

S, between the 1^st day of December 1987 and the 1^st day of February 1988 at Coffin Bay, had sexual intercourse with D, a person under the age of 17 years, by performing an act of fellatio upon him.

These counts were dealt with as a group by the learned trial judge as they all occurred between 1 December 1987 and 1 February 1988 in relation to a trip to Coffin Bay during a family vacation. Counts 6 and 7 allege that D performed fellatio on the accused, count 8 alleges that the accused performed fellatio on D.
With respect to count 6, D says that this occurred on a school oval in Port Augusta where he and the accused had gone for a walk together. It was about a five to ten minute walk from where the families were staying. The act of fellatio allegedly ended with the accused ejaculating into D’s mouth.
Counts 7 and 8 refer to acts of fellatio performed on each other on an evening during the trip when the accused, D and D’s brother M were asleep. D was awoken by the accused during the night and the acts allegedly took place, with D ejaculating into the accused’s mouth. M slept through the incident.
D’s brother gave evidence but could not remember any details of the sleeping arrangements during the Coffin Bay holiday.
The accused agreed that the families did go camping at Coffin Bay and that it was between 10 and 20 December 1987. He denied sleeping on the beach at any stage during the holiday. He likewise denied that he had ever been to the Port Augusta oval. The accused’s wife gave evidence which generally supported the accused and was to the effect that the accused was never alone with D on these occasions.
Her Honour rejected both the evidence of the accused and his wife and gave reasons for doing so.
Her Honour found on the whole of the evidence that D and the accused had an obviously close relationship to the extent that D was known as “the shadow”. Her Honour found that the evidence of the accused’s wife was inherently unlikely in view of the fact that she, along with the accused, gave evidence that at no time had there ever been an occasion when the accused went off alone with D. It seems to me that the reasoning of the learned trial judge was quite appropriate and indeed compelling.
Count 9: Particulars of Offence

S, between the 24^th day of April 1987 and the 26^th day of April 1989 at Morphett Vale, had sexual intercourse with D, a person under the age of 17 years, by causing D to perform an act of fellatio upon him.

Count 9 the last charged act is alleged to have occurred between 24 April 1987 and 26 April 1989 during a party at one of the neighbours of the accused. It was the last time D recalls anything happening between he and the accused. D remembers it being a lunchtime party at which the accused was assisting with the food preparation. At one stage during the day, the accused and D returned to the accused’s home and D allegedly performed fellatio on the accused when they were seated on a lounge near a window.
The accused, the neighbours, the accused’s wife and D’s mother gave evidence that a party was held but it was in the evening and none of them attended, in fact they believed that they had not been invited. On the basis of this evidence, her Honour was not satisfied beyond reasonable doubt that this act had occurred, and the accused was acquitted.
Uncharged Acts
Evidence was led that the accused had interfered with D sexually from a very young age. There was one occasion when the accused attempted to have anal intercourse with D. Apart from that, all the other occasions consisted of mutual masturbation and/or mutual acts of fellatio, usually with the accused ejaculating in the mouth of the complainant and vice versa, at a later stage.
There were six uncharged acts. Briefly, the details of these are as follows:
1The first incident occurred on or around the day of the accused’s wedding, which was on 11 February 1978. D is not sure of the actual day. D masturbated the accused with his left hand. At this time D was only five years of age.
2The second incident occurred about two years after the first incident at his grandparents’ house when the grandparents were not home. D claims that he remembers this incident as the accused had his own keys to the house and also because he asked the accused why they did these acts together. The accused denied having keys to the house until after 1994 when his dad (D’s grandfather) died and the evidence of D’s mother supports this.
3D alleges that the third incident occurred in mid to end 1984 at the back of a hotel of which D’s parents were joint licensees. However, records show that they were licensees from February 1982 until October 1983. D states that the accused tried to grab his hand and force him to masturbate his penis, in doing so his watchband broke. He is able to recall the event by reference to that incident. The accused denies ever being at the back of the hotel and states that he only went there on two occasions. The accused’s mother remembers him attending there more than twice, although not frequently.
4The fourth incident is alleged to have occurred when D was aged about 12 or 13 years of age and was still in primary school. D and the accused drove in the accused’s car to Brown Hill Creek and went for a walk along the base of the hill. D performed fellatio on the accused who ejaculated into his mouth.
5The fifth incident is also alleged to have happened around the same time as the fourth incident when D and the accused went for a walk to Shepherds Hill Reserve. He states that at a spot near the railway line he performed fellatio on the accused, which resulted in ejaculation. This was preceded by mutual masturbation.
6The final uncharged incident also occurred when D was about 12 years old at D’s parents home in Morphett Vale. D states that the two had gone back to the house during a family function at the accused’s house to collect something. D recalls the accused attempting to have anal sex with him on the modular lounge. The accused then attempted for D to have anal sex with him but D was unable to do so due to his erection subsiding.
D gave evidence of further incidents, which did not include either the charged or uncharged acts. These all occurred after 1982. The allegations included sexual acts taking place in an old disused house near the Noarlunga Oval and the Onkaparinga River. However, Lands Titles Office records do not show that a house such as that described by D existing. Further alleged incidents occurred in the area near Lonsdale Road and Christies Road. There was also an incident at Coffin Bay when D and his brother went swimming with the accused. This was during the time of the matters alleged in counts 7 and 8. The accused attempted to take off D’s underpants and tore them. D alleges further that the accused abused him on nearly every occasion that he babysat for the accused and his wife.
Some of D’s evidence in relation to the uncharged acts was contradicted by evidence given by other witnesses and at times D was unsure or changed his mind with respect to the timings of the alleged incidents.
The learned trial judge declined to exclude the evidence relating to these uncharged acts for the reasons set out by her Honour at [37]:
1It was relevant to the issue of why D did not complain to any person during the whole of the period when these sexual acts took place and for many years afterwards.
2It helped to explain the ease with which the Accused carried out these acts with D and D’s preparedness on each occasion to cooperate with one exception being the occasion at the hotel.
3It helped to explain the context in which the first charged incident occurred, namely, the lack of any protest by D on the occasion when he and the Accused had gone for a drive in the Accused (sic) Valiant and were sitting in the front seat of the Valiant at or near the Port Noarlunga Soccer Oval.
The learned trial judge did note that it was important not to reason that the accused had a propensity to act improperly with D, because of the evidence of the uncharged acts, and therefore was more likely to have committed the offences. As I indicate later in these reasons, it is my view that her Honour has properly directed herself in this regard and correctly admitted the evidence and used it according to the principles set out in R v Nieterink (1999) 76 SASR 56. In addition her Honour gave her reasons for the use of this evidence in accordance with the directions of R v Keyte (2000) 78 SASR 68.
Findings of the Trial Judge:
Her Honour directed herself that before she could find the Accused guilty of any of the offences, she had to be satisfied beyond reasonable doubt of each of the following matters for each offence at [3]:
“1. That the Accused had sexual intercourse with D.
2. That the act of sexual intercourse was intentional.
3.That at the time when the Accused had sexual intercourse with D, D was a person under the age of 17 years.”
Her Honour found that there was no other evidence with which to corroborate the complainant’s testimony. She stated that in these circumstances it was essential for her to scrutinise D’s testimony with extra care and to warn herself of the danger of convicting the accused on uncorroborated testimony. She also reminded herself of the length of time that has passed since the alleged conduct and of the potential unreliability of evidence given based upon one’s memory. Therefore she could only be satisfied beyond reasonable doubt of the acts if she was satisfied that the complainant’s evidence was both truthful and accurate [at 11-13]. Again, in my view, these were proper directions.
In the end her Honour found that D was telling the truth about each of the nine charged acts. She did not accept the evidence of the accused [at 19]. She noted that this did not mean that she had to find him guilty of the offences as the accused does not need to prove anything and the onus of proof lies with the prosecution [at 28].
The accused’s wife also gave testimony that supported that given by the accused. Her Honour found the evidence to be unreliable, stating that it was ‘plainly calculated to protect her husband’ and accordingly did not accept it [at 103].
The accused gave evidence that after D’s parents separated, the relationship between he and the accused became closer and he took on the role of a pseudo father. He said that whilst they did many activities together he never walked alone with D on the Marion Oval or drove him in the car when they were alone. Her Honour found this inherently improbable in light of the testimony stating the closeness of their relationship. I have dealt with this in paragraph 90 of these reasons.
The accused also gave further testimony that although there may have been the normal amount of sibling rivalry between the accused and his sister, D’s mother, their family relationships were fine. He stated that he noted a change in D’s attitude towards him after D’s grandfather’s funeral in 1994. On a few occasions D had phoned him up and said words to the effect “My mother and I hate you. You’re a bastard.” [at 33]. This was related to the fact that D blamed the accused for turning off his grandfather’s life support system. The accused attempted to speak to D but D refused to speak to him. However he did not attempt to speak to his sister about the matter.
Her Honour was satisfied that the uncharged acts did occur even though D was unable to be specific as to the length of time when some of the events occurred. Her Honour found that the fact that some of the incidents described by D lacked particularity was explicable against the background that the acts occurred over a very long period from the age of 5 to approximately 16 and that they occurred frequently [at 55]. Her Honour observed that the sexual contact between the accused and D was so frequent and occurred in so many different places that sometimes one incident may have merged into another. The accused was in fact acquitted in relation to counts 3 and 4 because of this factor.

Another important aspect in her Honour’s reasoning was the defendant’s description of the accused’s penis. This was a feature which he said he observed when the accused’s penis was erect. The accused’s penis was not circumcised. D described it as an inability to pull back the foreskin over the head of the penis. The accused agreed that the foreskin didn’t pull back as far as he saw other peoples. The accused’s wife gave evidence and agreed that there was a restriction which she described as not a big restriction. Her Honour found reasonably in my view that D’s description of the accused’s penis was from knowledge acquired by intimate contact with the accused. Importantly, her Honour made it clear that she was not using this as corroboration of D’s evidence but as evidence which was important as to D’s credibility [at 27]. In my view, her Honour was quite correct and it was clearly evidence which could be used in relation to credit. I deal with this aspect again later in these reasons at para 159-162.
Grounds of Appeal
The grounds of appeal relied on by the accused are:
1.The learned trial judge erred as a matter of law in that her Honour failed to give adequate reasons for, and/or erred in her consideration and approach to:
(a)    How evidence relevant to one count was used as evidence tending to prove another count.
(b)    How a decision that the complainant was to be believed beyond reasonable doubt could be made without first resolving, and giving reasons for, the various evidentiary issues in the case.
(c)    Why the evidence of the Appellant was rejected. Reasons [29-31].
(d)    Why the finding of esoteric knowledge by the complainant of the condition of the penis of the Appellant was made. Reasons [22-27].
(e) Why evidence supportive of the defence case, including that of Mrs TS was rejected or ignored. Reasons [103].
(f)     Why the finding that the number and nature of the “uncharged acts” were as alleged by the complainant was made. Reasons [40-55].
(g)    Why the credibility and reliability of the complainant was accepted and that of the Appellant rejected both generally and in the light of the evidence called by the defence.
2.The learned trial judge erred as a matter of law in that her Honour failed adequately to warn or direct herself, or adequately to implement such required warnings or directions, in relation to:
(a)    The dangers of a miscarriage of justice presented by the substantial delay and the particular circumstances of the case. Reasons [12-17].
(b)    The credibility and reliability of the evidence of the complainant having regard to the delay and the inconsistencies and errors and improbabilities contained therein. Reasons [12-17].
3.The verdicts of guilty are unreasonable and/or cannot be supported having regard to the evidence and/or are unsafe and unsatisfactory and/or are dangerous and/or a miscarriage of justice has occurred in all of the circumstances and including:
(a)    The effect of the errors, misdirections and non-directions referred to in Grounds of Appeal 1 to 2 above.
(b)    The substantial delay (with the trial taking place approximately 21 years after the first “uncharged act” and some 11 years after the last charged offence) resulting in an unsatisfactory trial including a prejudicial effect upon:
i)the ability of the Appellant to speak to the police and give instructions to his legal representatives while the facts and details were still recent so as to properly challenge the prosecution case and prepare and present the defence case;
ii)the ability of the Appellant and the witness called by him to give evidence of the relevant events that was, and was seen to be, accurate and reliable:
iii)the memory of the complainant and the other witnesses
iv)the ability of Counsel for the Appellant to cross-examine the complainant and other prosecution witnesses.
v)the ability of the Appellant to make use of medical examination of the complainant.
(c)    The convictions depended upon the evidence of a single witness, which was uncorroborated and was shown to be incorrect in important aspects.
(d)    The verdicts of not guilty on counts 3, 4 and 9.
(e)    The wife of the Appellant gave evidence on oath in circumstances where:
(i)there was no sufficient or safe basis upon which her evidence could be rejected beyond reasonable doubt;
(ii)such evidence necessitated the acquittal of the Appellant.
(f)     The Appellant gave evidence on oath in circumstances where there was no sufficient or safe basis upon which his evidence could be rejected beyond reasonable doubt.
Arguments before the Court of Criminal Appeal
Ground 1 – Accused’s argument – inadequate reasons:
The complaint in ground 1 is basically that no, or inadequate, reasons were given by the learned trial judge in a number of important areas. It is argued that the reasons that are given demonstrate error. Counsel referred to the cases of R v Keyte (2000) 78 SASR 68; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Papps v Police (2000) 77 SASR 210.
It was argued that her Honour erred in law by failing to give reasons as to how evidence that was relevant to one count was used as evidence tending to prove another count. It was contended that each charge should have been considered separately and based on the evidence relevant only to that charge. If the evidence could have been considered for other counts then the learned trial judge was required to decide how and in what circumstances and with what care it should have been used. Counsel submitted that the correct approach in considering each count is to consider for that count only the evidence; matters of uncertainty; inconsistency and any matters which are relevant to a finding beyond reasonable doubt to the accused as compared to the ‘global finding’ approach which it was submitted the learned trial judge adopted. R v Keyte was again referred to as was the case of R v MacDonald (1995) 65 SASR 322. Mulligan J in this case said (at 331):
“Regrettably the learned trial judge also did not instruct the jury that they could not use evidence in relation to one charge as evidence in relation to another unless it was admissible in respect of both of them. He did not tell the jury that they may reach different verdicts in respect to some of the charges. They were not instructed that because they had reached a particular verdict on one charge, it did not follow that they must reach the same verdict on the other charges. In my view, the failure to give those directions, having given the direction which I have mentioned amounted to a misdirection and in itself is sufficient reason to allow the appeal and set aside the verdicts.”
Counsel also argued that the decision made by the learned trial judge with respect to believing the complainant’s evidence over that of the accused was not sound. The complainant gave evidence that was contradicted at times by other testimony and was shown to be vague and mistaken at times. With respect to the complainant’s evidence regarding the incidents that allegedly occurred whilst he was babysitting the accused’s children her Honour accepted that there were inconsistencies with respect to crucial parts of the story such that it necessitated an acquittal on these counts. Counsel’s contention is that her Honour was wrong to then state that she accepted all of the uncharged acts and assertions [at 55].
In addition, it is contended that the evidence of the accused and his wife should not have been rejected. Mrs S provided testimony that supported the accused’s testimony that he never owned a black beanie, an item which the complainant claims was present in count one. The same support for the accused in relation to the beanie was provided through testimony of other witnesses, which her Honour failed to note. Mrs S’s evidence was also accepted with respect to the babysitting evidence.
Counsel argued that her Honour’s statement that Mrs S’s testimony was plainly calculated to protect her husband is illogical in light of the fact that she was the most logical and obvious witness to call to testify about their family movements and activities. In light of the fact that the alleged incidents occurred so long ago, it was suggested that her evidence should have been treated as that of a person trying to remember specific events from long ago rather than being rejected outright.
In relation to the evidence of the accused being rejected, counsel argued that the accused’s evidence with respect to the camping incident at Onkaparinga Gorge, the subject of count 5 should have been accepted. The accused gave evidence that lighting fires was prohibited in this area. Her Honour rejected his evidence and found the evidence to be illogical and unconvincing and I have already mentioned this aspect earlier in paragraph 82-83 of these reasons.
Counsel submits that the accused’s evidence must have been rejected for the following three reasons: firstly, because of the complainant’s esoteric knowledge of the accused’s penis; secondly because of her Honour’s disbelief as to the amount of time spent alone with the complainant and lastly, she preferred to believe the evidence of the complainant in relation to the phone conversations between the two men many years later.
It was said that her Honour erred in finding that the complainant could only have acquired the esoteric knowledge that he had of the accused’s penis through intimate contact. The accused’s sister gave evidence that he often took the complainant and his brothers to the toilet when they were in public places and as such the complainant would have seen the accused urinating. The complainant conceded this fact. Counsel suggested that this would have provided the complainant with the opportunity to observe that the accused was not circumcised and that this may have been of particular interest to the complainant as he was circumcised. Had the complainant observed this closely then he would have noticed the accused’s restriction to pull back his foreskin whilst urinating.
Counsel referred to the case of R v Kamleh [2003] SASC 269 in the discussion on esoteric knowledge. In Kamleh, Mr Kamleh was indicted for murder. The prosecution wanted to lead evidence from a Mr Zappia, who was not a witness, but had esoteric knowledge of the facts of the crime. It was said that the evidence could only be held to be esoteric if it could be proved that Mr Zappia could not have found out the information via any other means. The statement of Lander J in Kamleh [at 254] is relevant:
“Evidence of statements made which disclose esoteric knowledge which would implicate the maker of the statement in a crime is admissible as evidence implicating that person in the crime. The statement does not prove the truth of what was said, but the statement may be used to infer Mr Zappia’s presence at the time when the murder was committed and thereby that the appellant fired the shots because the appellant was in his company.”
It was counsel’s submission that the complainant may have found out about the restriction through other means such as observing the accused in his use of urinals at public toilets.
Respondent’s argument in response to Ground 1
The respondent argued generally that there are some common themes in the authorities that deal with the issue of sufficiency of reasons given by a trial judge sitting alone. Firstly, the trial judge must provide reasons for their verdict. Secondly, those reasons must be sufficient to demonstrate the essential steps in a reasoning process employed to arrive at those verdicts. They must be sufficient enough for an appellate court to be able to determine whether proper legal principles have been applied. Thirdly, there is an assumption that the basic principles of law have been understood and applied. Fourthly, there is no requirement that a trial judge provide a detailed explanation for the decision to prefer the evidence of one witness over another. Lastly, it is important in considering any reasons given by a trial judge, that they be considered as a whole. The authorities cited by the respondent’s counsel for these propositions were: R vKeyte, R v Power (2003) 226 LSJS 337, R v Green (2001) 78 SASR 463, R v McKenzie [2001] SASC 279 and R v Hatchard [1999] SASC 111. Doyle CJ in R v Keyte spoke extensively on the need to give adequate reasons in the case of a judge siting alone (at 76):
“If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law. Absent reasons from the trial judge, the ability to correct a verdict affected by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached. I do not suggest that this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.”
The reasoning of Doyle CJ as above, and at paragraphs 41-43 of his judgment are particularly approved by Perry J in R v Power [at 51]. This was a case where the court was considering the sufficiency of the reasons given by the trial judge in an unlawful sexual intercourse trial. Other authorities cited by Counsel which also affirm this position are R v McKenzie and R v Hatchard .
Counsel submitted that although the learned trial judge is required to give reasons that deal with the essential steps in the reasoning process to reach a guilty verdict, it is not the case that each and every aspect of the evidence needs to be dealt with. It was submitted that her Honour’s reasons sufficiently set out the detail in her process of reasoning which she used to reach her verdicts.
It was argued that the learned trial judge considered each count and the evidence for those counts separately, and then determined whether each count had been proved. For the counts that she returned a verdict of not guilty, she made the determination and then considered whether that caused her to doubt any of the remaining counts. It was submitted that the evidence could have been treated as cross-admissible in a limited way and this is what her Honour did. As such the approach was appropriate and further her Honour did indicate in her reasons how the evidence was used.
This is evidenced by her Honour’s deliberate inclusion in her reasons of the details of the uncharged acts. In addition, after outlining the basis upon which she has admitted the evidence she goes on to warn herself that she should not then reason impermissibly having admitted the evidence.
Counsel argued that while her Honour did not expressly state that she was considering the evidence in isolation for each count, it is apparent that this is what she has done from the approach that she adopted in that she indicates her verdict on each count after analysing the evidence. Counsel submits that the exceptions to this which are appropriate are the verdicts of not guilty brought on counts 3, 4 and 9, which were not considered in determining the outcome of the other counts.
It was further argued that the learned trial judge understood the evidentiary issues in the case, these were considered expressly for each count. The reasons show that there are several topics that have been grouped and dealt with together. Counsel contends that it is clear that her Honour considered all the evidentiary issues in determining any questions of credibility including the issue of delay.
On the issue of delay with respect to establishing the complainant’s credibility, it was submitted that this does not require a warning such as a Longman direction – Longman v The Queen (1989) 168 CLR 79 rather it is more of a matter on the facts of the case and in light of s34A of the Evidence Act 1995 (Cth), any type of comment would need to be balanced with reasons as to why the victim might not complain. In Longman, Brennan, Dawson and Toohey, JJ said (at 91):
“…But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them….That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial. After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay….and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning were satisfied of its truth and accuracy”.
The respondent’s argue that there was no obligation on the learned trial judge to explain her preference for the evidence of one witness over the other, although she did provide reasons both generally and in relation to the specific counts as to why she adopted the views that she did with respect to the credibility of the witnesses. In fact, she went further than required to by the authorities in attempting to explain why she made the findings that she did. Further, her Honour did not totally reject or ignore the evidence of the accused’s wife because some weight was placed on her evidence particularly in relation to the counts of which the accused was acquitted and as to the condition of his penis. The learned trial judge was able to assess the evidence that was adduced and was entitled to choose the whole or parts of the evidence of any witness as against the other witnesses.
Evidence that counsel submits was of importance, was that describing the relationship between the family members and the telephone conversations between the two men. In the context of the close family unit that was described by many of the witnesses, it did not make sense for the accused not to attempt to resolve any issues with the complainant when they were conversing on the phone.
There were other witnesses, for example the complainant’s grandmother, where reasons were not given as to what the weight of their evidence was. However, it was argued none were required as these witnesses mainly gave evidence on only one or two discreet issues.
Counsel submitted that no error was demonstrated in her Honour making the finding that the complainant had esoteric knowledge of the accused’s penis. The conclusion reached was open on the facts. The evidence about the possibility of observation at a urinal was loosely brought up during cross-examination and the evidence progressed no further. The accused’s own evidence is that he never spoke to the complainant about it and that there had been no improper conduct with the complainant so as to present him with the opportunity to see his foreskin.

In relation to the uncharged acts, her Honour considered any shortcomings or weaknesses in the evidence before determining that they had been proved beyond reasonable doubt. There was no error made in adopting this approach. It was open to her Honour to find that the uncharged acts were proven and to accept the evidence of one witness over another. The reasons given for finding these proven were sufficient.
Resolution of appeal Ground 1
In my view, each of the matters raised by the appellant under ground one is answerable. I consider that the reasons generally are adequate in the terms required by R v Keyte. These terms are discussed by Doyle CJ (at 79):
“Sound guidance is to be found in the reasons of Moffitt JA in Pettitt v Dunkley, and in particular in the passage set out above. The same applies to the passage set out above from the reasons of Kirby P in Soulemezis. I likewise accept the views expressed by Mahoney JA in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd & Anor [1983] 3 NSWLR 378 at 385-386, which reasons Mahoney JA repeated and adopted in Soulemezis. I refrain from setting out the whole of the relevant part of the judge’s reasons, confining myself to his concluding observations (at 386):
‘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’.”
The Issue of Cross-Admissibility
I now deal specifically with the question of whether her Honour properly instructed herself in relation to the use of evidence relevant to one count being used as evidence tending to prove another count.
It is necessary to look at this matter closely because counsel has relied heavily on a statement made by Doyle CJ in R v Keyte [at 55] as follows:
“The judge was also obliged to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. This also is a matter that gives rise to difficulty at times. There was an obligation to give reasons on these matters because, having regard to the evidence admitted by the judge and the issues at trial, the proper use of the evidence in these respects was an important issue at the trial.”
R v Keyte, of course, was a decision on its own facts and dealt not only with multiple counts and uncharged acts, but also it is apparent from the reasons of both Doyle CJ and Williams J that there were other matters relevant to the way in which the trial was conducted which were the subject of argument.
Williams J referred to Ghys v Crafter [1934] SASR 28 at 33-34 per Napier J (as he then was). In that matter, considerations relevant to the course of the trial were regarded as being relevant to the adequacy of reasons. Williams J said at [70]:
“At the end of the day upon the facts of this case, I am of the opinion that the appeal has been frustrated by the trial judge’s silence upon live questions. If these matters had not been so clearly raised by counsel at trial, my conclusion might be different. However, in my view, this case is not a convenient vehicle for dealing more generally with the extent of a trial judge’s obligation to give reasons.”
Doyle CJ, with whom Wicks J agreed, says something similar at [55] in the passage set out above.
Doyle CJ made that statement after saying at [54]:
“This is not the case in which to decide in a comprehensive way the extent of the obligation to give reasons for a decision as to guilt or innocence in a trial without a jury. It is not appropriate to do so because it is not a matter on which the Court has had the benefit of full submissions.”
R v Keyte therefore dealt with specific aspects of the issues in that trial in deciding whether the Court of Criminal Appeal was able to say amongst other things that the question of a certain relationship between two people, one of whom was the accused, was a significant part of the learned trial judge’s reasoning but nevertheless not explained adequately by the learned trial judge.
In my view there were no such issues in this trial. Apart from the issue of uncharged acts, which was argued as a preliminary matter, the trial apparently proceeded without complication.
The question is do the words of Doyle CJ set out above in R v Keyte mean strictly what they say as a test to be applied in all cases? Putting it another way, is the mere failure of the trial judge to mention whether or not she used evidence on one count as evidence tending to prove another count of such significance as to amount to a potential miscarriage of justice having regard to her reasons as a whole?
In my opinion that cannot be so in this case. There will be cases where there are clear indications from the trial judge’s reasons which allow the Court of Criminal Appeal to decide whether or not it was open to the trial judge to have found the accused guilty beyond reasonable doubt on certain counts and not guilty on other counts. It would be regrettable, in my view, if the mere omission of specific words, by an oversight or otherwise meant that there had to be a retrial when it was nevertheless possible to discern from the reasons generally whether the judge had proceeded correctly. I believe it is possible in this matter to follow her Honour’s reasoning process.
It is my view that the indications are that her Honour, whilst dealing with the evidence relating to each count separately and analysing that evidence and making a decision as to the accused’s guilt or otherwise on the specific counts, did of necessity have regard to the total picture, and therefore can hardly be blamed for having adopted a “global” approach.
The fact is that the trial judge had before her the whole chronological sequence of events, including that of the uncharged acts, and made an overall assessment which she was quite entitled to do, when she believed the complainant. Her Honour’s reasons demonstrate to me the essential steps that she took in her reasoning process to arrive at the verdict on each count. I have analysed that evidence and indicated that I agree with her Honour’s conclusions.
In my view her Honour clearly directed herself correctly in what she had to say in relation to her finding that the appellant was not guilty on counts three, four and nine, and that she should not allow those finding to affect her approach to the other counts.
In Fleming v R (1998) 197 CLR 250, the High Court dealt with a similar problem under the Criminal Procedure Act 1986 (NSW). The court said at [30]:
“Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s6(1) of the Criminal Appeal Act. The obligation imposed by s33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”
There is no similar statutory provision which is relevant here but in relation to the last sentence in that passage from the High Court judgment, it is my view that, at least by implication, the learned trial judge has applied the correct principle of law.
I am of the view that the Court of Criminal Appeal in this matter is able to review adequately the way in which the learned trial judge assessed the evidence on each count as against the overall background.
That background of course includes the learned trial judge’s acceptance of the complainant’s version of events over a long period of time for the reasons clearly expressed by the learned trial judge, and including her ability to see and hear for herself the complainant in the witness box as against the sworn evidence of the accused and his witnesses.
That background also includes the uncharged acts which the learned trial judge, in my view, appropriately deals with in the reasons. Her Honour finds that those uncharged acts are proved beyond reasonable doubt, and directs herself correctly as to how she should use them. She is unlikely in my view not to have applied identical reasoning in relation to the use of evidence in one count being used as evidence in other counts.
The learned trial judge, in my view, shows in her reasons that she is clearly aware of the significance of the law relating to the use of evidence relevant to one count being used as evidence tending to prove another count. As I have said, her Honour directs herself appropriately in that respect after she acquits the accused on three of the nine counts.
I believe that the combination of the proper direction in relation to uncharged acts and the direction in relation to the acquittal on three counts is a strong indication that her Honour has properly directed herself.
It is my view that the learned trial judge has dealt with the essential steps in her reasoning process and, in particular, the way in which she deals with the defence case as it was presented.
In my view, the reasons are sufficiently transparent to illustrate throughout the essential steps in the reasoning process, and that therefore the Court of Criminal Appeal is in a position to discharge properly its function as an Appeal Court.
The learned trial judge did give adequate reasons for her decision and it is easy to discern how she approached the issue of multiple counts. Each count could be and was decided having regard to specific evidence led in relation to each count. There was no overlap of evidence relevant to one count being evidence also relevant to other counts.
There has been no miscarriage of justice in this regard.
I am of the view that the order in which her Honour dealt with credit issues and evidentiary matters generally is not suggestive of any misdirection.
The learned trial judge is entitled to prefer one witness over another but may pick and choose parts of a witness’s evidence in deciding whether to accept or reject various parts of the evidence.
In any event, I find the learned trial judge’s reasons for her findings as to the credibility of the appellant convincing and her reasons for the findings in relation to credibility of the complainant equally convincing. Likewise with her Honour’s findings relating to the appellant’s wife. In relation to the appellant’s wife her Honour did place some weight on some aspects of her evidence as she was entitled to do.
Esoteric Knowledge
I consider that the learned trial judge’s method of dealing with the complainant’s esoteric knowledge of the peculiarity relating to the foreskin of the accused’s penis was correct. It seems to me that the appellant’s suggestion of knowledge gained on other occasions when D may have seen the accused urinating is not to the point. The point is that the penis had an observable peculiarity when erect according to the complainant. On the defence case there could never have been such an occasion, that is any opportunity for the complainant to see the accused’s erect penis.
The issue was raised by the complainant in his evidence in chief. His evidence was that when he saw the accused’s penis erect, the foreskin of the penis was never withdrawn over the head of the penis. When he was cross-examined about this, he made it clear what he was referring to. In cross-examination he said:
“Q. When you said that his foreskin didn’t pull back, do you mean by that that you couldn’t see the tip of his penis.
A. It didn’t come back over the head of his penis.
Q. But do you mean you couldn’t see the tip.
A. No, I don’t mean that.
Q. So could you see the tip or couldn’t you.
A. You could. Depends if you are talking about when it was erect or not.”
The only other evidence was evidence given by the accused and his wife but not directed to meeting the evidence of the complainant because it did not address the issue of what was observable regarding the foreskin when the penis was erect. Questions asked of the accused and his wife were general.
I believe the learned trial judge analysed the evidence correctly. In my view, the evidence was clear and it was important evidence which was uncontradicted and which the learned trial judge was quite entitled to take into account in relation to matters involving the complainant’s credit.
The uncharged acts in my view were correctly approached by the learned trial judge and the findings which were made and the use to which they could be put again correctly dealt with by her Honour.
In my view her Honour correctly applied the law. Again, the judgment of Doyle CJ in R v Keyte (at 80) is relevant:
“For the purposes of the present case, it suffices to say that in my opinion the judge’s obligation to give reasons required him to explain what use was made of the evidence of uncharged acts, at least to the extent of identifying how the evidence would be used, and how it would not be used, if not necessarily identifying in terms of a finding the precise use actually made of it. This is a difficult area of the law, and one in which considerable care is required to avoid error. It is a topic with which I grappled in R v Nieterink (1999) 76 SASR 56. The judge was also obliged to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. This also is a matter that gives rise to difficulty at times. There was an obligation to give reasons on these matters because, having regard to the evidence admitted by the judge and the issues at trial, the proper use of the evidence in these respects was an important issue at the trial. They are matters that the judge had to decide. The decision required the proper application of a substantial body of law. The judge’s reasons themselves suggest that the evidence of uncharged acts, and the judge’s conclusion that the relationship between Ms C and the appellant was a violent one, played a significant part in the judge’s finding of guilt. That being so, the appellant is entitled to have the CCA decide whether or not whether there was an error of law in this respect, and the silence of the judge’s reasons in that respect prevents the Court from discharging its statutory function on appeal.”
In R v RWB (2003) 87 SASR 256 the Full Court consisting of Bleby, Besanko and Sulan JJ held that a Longman direction was required for the uncharged acts alleged against the appellant who was charged with unlawful sexual intercourse, but not for the charged acts. Besanko J stated (at 270):
“In relation to uncharged acts there are always two questions, namely, what is the level of proof required and to what use (if proved) the evidence of uncharged acts may be put.”
His Honour discussed the case of Longman in some detail and concluded that in the case of RWB the judge should have given a suitable direction (at 271):
“I have said the judge should have given the jury a suitable direction. I do not think that in the case of uncharged acts the judge must necessarily frame the direction in terms of ‘dangerous to convict’. On the other hand, the direction should be in clear and unmistakable terms and it should refer to the delay and the fact that after a period of (taking the first of the uncharged acts as an example) 10 years, the evidence of the complainant in relation to the first incident could not be adequately tested. Reference should be made to any other relevant factors such as (again taking the first uncharged act as an example) the very young age of the complainant at the relevant time. The jury should be told that it would be dangerous to find the relevant uncharged acts proved unless the jury, scrutinising the evidence with respect to those acts with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.”
As the judge did not give such a direction in that case, the appeal was allowed, but here in my opinion the learned judge did properly direct herself.
Ground 2 – Accused’s argument - delay
Ground 2 relates to the effect of delay and the required warnings that arise as a result of that delay, specifically with respect to giving a Longman direction.
The cases of R v Green and R v Power, which approved the principle in Green, confirms that where there is a trial by judge alone, the judge has a duty to deal with the question of delay and is required to give the same warning (at 346):
“The proper approach to the question of the giving of a warning to a jury in such cases is the subject of comment by Doyle CJ in R v Green where he observed:
‘[36]…In some cases, depending on the circumstances, a comment from the trial judge will suffice, in other cases a firm and emphatic warning that it would be dangerous to convict on the evidence unless the jury, scrutinising the evidence with care, are satisfied of its truth and accuracy, will be necessary... In this area, nothing is to be decided by formula or by rigid rules. Whether a comment or a warning is called for, and the terms of any comment or warning, will always depend upon the circumstances of the particular case’.”
Counsel concedes that her Honour’s reasons [at 15-17] may be an attempt to address the requirements established by Longman:
“[15]It is true, and indeed I have seen evidence of this in the accounts given by a number of witnesses in this trial, that no matter how honestly a person giving evidence holds their views, people’s memories of events so long in the past can be, and often are, unreliable.
[16]There is little doubt that if the allegations had been made earlier, the Accused would have been able to explore each of the allegations in much more detail than was possible having regard to the lapse of time between when these events are said to have happened and the time which the complainant first went to the police. For example there may have been an opportunity to explore alibi witnesses or forensic evidence may have been available back then and witnesses questioned.
[17]I must therefore assess D’s evidence with extra care and I cannot be satisfied beyond reasonable doubt in relation to either the charged or the uncharged acts unless, given all of the circumstances, I am satisfied at the end of my evaluation that the victim’s evidence is both truthful and accurate.”
It was submitted that this apparent warning was inadequate, and showed confusion in the learned trial judge’s approach. It is further argued that her Honour should have focused on the fact that there was both a long delay and that there was uncorroborated testimony. In other words, she should also have given a Murray/Robinson warning and considered the obstacles posed before she dealt with the Longman direction.
Counsel then cited the cases of R v BFB (2003) 87 SASR 278 and R v RWB stating that these cases emphasised that a Longman direction must be given in terms which include a reference to the danger of convicting. Further cases relied upon for the requirements of the correct direction are: R v BWT (2002) 54 NSWLR 241 and Dyers v R (2002) 210 CLR 285.
Counsel further asserts that there was a requirement that a direction be given that delay in complaint may be used as adversely affecting the credibility of the complainant. On the appellant’s case no such direction was given and this constituted an error of law. Again, Keyte was relied upon as was the case of R v K (1997) 68 SASR 405.
Respondent’s argument in response to Ground 2

It was argued that the effect of the delay was a live issue during the trial. The learned trial judge gave herself adequate, comprehensive and detailed warnings in relation to this, referring to both the effect of delay on the memory of the witnesses as well as the difficulties and embarrassment caused to the accused in answering the allegations, this is evidenced in her reasons for verdict. Further it was said, her Honour was not required to go so far as to say that it would be dangerous to convict. The warning required was not one that needed the detail or content of one to be given to a jury and adequately showed that her Honour had turned her mind to all the issues of importance.
Resolution of Ground 2
I find myself in agreement with counsel for the respondent. The issue of delay was always part of the learned trial judge’s priorities in directing herself from the very early part of her reasons in stating the background facts under the heading “The Complainant”. Her Honour there brings those specific factors to the fore – see [6-18] generally.
In my view, it is not available to the appellant to suggest that delay was other than a very live issue for her Honour throughout the trial and in directing herself – see particularly [15-17] set out earlier.
One of the main factors identified by Brennan, Dawson and Toohey JJ in the High Court in Longman was the accused’s loss of the means to test the allegations being put against them. In effect, had the allegations not been delayed then the accused would have an opportunity to cross-examine the evidence of the complainant and the witnesses whilst the events were still fresh in their memory. The fairness of the accused’s trial was affected by the delay: Jago v District Court (NSW) (1989) 168 CLR 23. Other factors identified in Longman (at 90-91) were the delay in prosecution, the nature of the allegations, the age of the complainant at the relevant time, the alleged awakening of a sleeping child by indecent acts and the absence of complaint to the applicant or the complainant’s mother.
Deane and McHugh JJ also agreed in Longman that a warning was necessary in some situations. McHugh stated (at 108-109) that:
“Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant’s testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.”
The directions given complied in my view with Longman, although her Honour did not use the actual words “it would be dangerous to convict”. In the whole context of the directions which her Honour gave to herself there has been compliance in my view. To use the words of Perry J in R v Power at [71]:
“…the trial judge’s reasons indicates a sufficient attention by the trial judge to this aspect of the matter”.
Ground 3 - Accused’s argument – unreasonable verdicts
In relation to this ground of appeal, which raises many of the same matters raised in grounds 1 and 2, the accused relies on R v McKenzie and Jones v The Queen (1997) 191 CLR 439. Specifically it is argued that the verdicts of guilty are unreasonable and/or cannot be supported having regard to the evidence and/or are dangerous and/or a miscarriage of justice has occurred in all of the circumstances. It was put to the Court that the case of Jones emphasises that the matter of delay in bringing a complaint can and should be considered when looking at the issue of whether or not the verdict is unsafe and unsatisfactory from the evidence. Delay is to be treated cumulatively with the other matters including the credibility factor and the uncorroborated nature of the complainant’s evidence. Counsel cited cases that discuss the effect on the administration and quality of justice brought about by delay namely: McHugh J’s judgments in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Herron v McGregor (1986) 6 NSWLR 246 particularly at (254-255).
Respondent’s argument in response to Ground 3
Counsel for the respondent submitted that the learned trial judge had considered all the legal and factual matters that she was required to do in giving her reasons. Counsel reiterated the proposition that the learned trial judge had provided adequate reasons in her judgment and had in fact done more so than was required by her at law. She cited the case of Fleming v R (1998) 197 CLR 250 in support of this proposition.
In the alternative, Counsel submitted that should the Court find that there were some omissions on the part of the learned trial judge, they were only minor in nature and as such would not lead to a miscarriage of justice and therefore would not warrant granting of the appeal.
Resolution of Ground 3
Some matters argued under this ground are included in some of the matters already dealt with. These include the delay and the uncorroborated evidence of the complainant. In addition to those matters, it is suggested that the not guilty verdict on counts 3, 4 and 9 show how it was unsafe or unsatisfactory to convict on the other counts. In my view, these not guilty verdicts are explained by the fact that the learned trial judge was not doubting the complainant’s truthfulness about the actual events he described but because there were sufficient doubts as to the actual occasions when the abuse occurred. I have already dealt with this aspect.
Likewise, I have already dealt with the use which the learned trial judge made of some aspects of the appellant’s wife’s evidence.
Finally, the learned trial judge was quite entitled on seeing and hearing the appellant to reject his evidence. She clearly formed a poor impression of his credibility as she was entitled to do.
There was therefore nothing unsafe or unsatisfactory about the verdict and it follows that in my view there has been no miscarriage of justice.
Accordingly, I would dismiss all grounds of appeal.