R v Rendell - [2018] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RENDELL
[2018] SASCFC 71
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
28 June 2018
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against conviction following a trial by judge alone in the District Court of three counts of aggravated indecent assault on ES. The offences, which comprised of indecent touching and kissing, occurred in a park on the shores of the lake at West Lakes. Almost immediately after the commission of the last of the offences, the appellant was confronted by several persons who had watched him with ES in the park and who testified that he told them that ES was 18. Police then arrived and, in answer to a very leading question, ES agreed that the appellant had touched and kissed her.
Held, per Kourakis CJ (Stanley and Bampton JJ agreeing), dismissing the appeal:
1. The evidence of the lie was admissible. The Judge’s failure to give reasons has not been productive of any miscarriage of Justice because the probative weight of the telling for the lie was a matter before the Judge (at [48]).
2. The Judge’s direction correctly stated that proper use to which evidence of the complaint could be made. The Judge was not required to elaborate any further on what was a relatively small part of the prosecution case (at [57]).
3. The Judge correctly referred to the onus of proof and approached the final determination of her verdict consistently with relevant authorities and only after taking into account the evidence as a whole (at [82]).
4. There is no aspect of the evidence which causes the Court to doubt the appellant’s guilt on each count (at [94]).
Criminal Law Consolidation Act 1935 (SA) s 56; Evidence Act 1929 (SA) s 34M, referred to.
R v Rendell [2017] SADC 86; Harris v The Queen (1990) 55 SASR 321; Peluso v Police [2018] SASC 63, applied.
R v T, S (2017) 128 SASR 66; Douglass v The Queen (2012) 86 ALJR 1086; R v Schulz (2016) 126 SASR 746; R V Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; DL v The Queen [2018] HCA 26, discussed.
R v Sekrst [2016] SASCFC 127; Edwards v The Queen (1993) 178 CLR 193; R v Freeman [1980] VR 1; R v Quist (2017) 127 SASR 471; Zoneff v The Queen (2000) 200 CLR 234, considered.

R v RENDELL
[2018] SASCFC 71
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: The appellant, Mr Kenneth Rendell, was convicted following a trial by judge alone in the District Court of three counts of aggravated indecent assault[1] on ES, the 13 year old daughter of family friends. The offences, which comprised of indecent touching and kissing, occurred in a park on the shores of the lake at West Lakes. Almost immediately after the commission of the last of the offences, Mr Rendell was confronted by several persons who had watched him with ES in the park and who testified that he told them that ES was 18. A little later police arrived and, in answer to a very leading question, ES agreed that Mr Rendell had touched and kissed her.
[1] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The only circumstance of aggravation alleged was ES’s young age.
The appellant appeals on the grounds that:
1.The verdicts were unreasonable and not supported by the evidence in that:
·       it was objectively implausible that a person of the appellant’s character would have committed the charged and uncharged offences in the brazen manner described by ES;
·       the evidence on count 1 was uncorroborated; and
·       witnesses who corroborated ES’s evidence of the other two offences had unreasonably jumped to a sinister conclusion.
2.The Judge reversed the onus of proof by accepting as truthful and reliable ES’s account before dismissing any inconsistency between that account and other testimony on the basis that it did not cause her to doubt ES’s testimony instead of first asking whether, having regard to those inconsistencies and the appellant’s evidence, the evidence satisfied her beyond reasonable doubt of the commission of the offence.
3.The Judge erred in finding guilt without having regard to the appellant’s good character.
4.The Judge erred in failing to separately consider whether the evidence admissible on each count established guilt of that count beyond reasonable doubt.
5.The Judge erred in finding guilt without explicitly rejecting the evidence and testimony of the appellant and his wife.
6. The Judge failed to give proper reasons disclosing how she concluded that the appellant’s evidence was not reasonably possibly true.
7.The Judge erred in admitting evidence of an alleged lie told by the appellant about ES’s age when confronted by witness to his conduct and in treating the lie as probative of guilt.
8. The Judge erred in admitting, or in not excluding, the evidence of the complaint made by ES to a police officer or alternatively erred in her directions to herself as to the permissible and impermissible use of the complaint evidence.
I would dismiss the appeal. Mr Rendell’s lie about ES’s age was admissible because it was improbable that it emanated from innocent panic. It is not a requirement of s 34M of the Evidence Act 1929 (SA) (the Evidence Act) that a complaint of sexual offending be spontaneous. The Judge expressly had regard to the evidence of Mr Rendell’s good character. The Judge properly evaluated the testimony of the witnesses and considered the evidence as a whole in finding that it proved the commission of the offences beyond reasonable doubt. In doing so, the Judge expressly directed herself that the prosecution bore the onus of proof to the criminal standard. The Judge was not required to divide her reasons into a separate part for each count, in which all of the evidence was repetitively referred to, because all three offences occurred within a period of no more than an hour and all of the evidence was admissible on all counts. The Judge expressly considered whether the evidence proved the commission of each offence. The Judge explained properly that she evaluated the testimony of each witness and why she was satisfied that each charge was proved beyond reasonable doubt. The Judge’s verdicts were supported by the testimony of ES and corroborated by Mr Rendell’s lie and the observations of the witnesses who observed them in the park.
I elaborate on my reasons below.
The background evidence
Mr Rendell was born on 21 March 1946 and has been married for approximately 50 years. He has no prior convictions of any significance. Three witnesses testified as to the appellant’s character, each of whom had known him for 20 years or more. They spoke of his ‘first class’ and ‘excellent’ professional and social reputation.
The complainant, ES, was born in September 2002 and was the middle of three children. Her father had worked for the appellant in Melbourne and they had become friends. The appellant’s wife, Mrs Rendell, is ES’s godmother. The Rendells left Melbourne in 2013 and moved to West Lakes but the two families continued to see each other. In mid-2015 ES, her sisters and mother all visited the Rendells at West Lakes for about five days. ES testified, but Mr Rendell denied, that whilst in Adelaide the appellant kissed her on the lips. Mr Rendell drove them back to Melbourne on the common understanding that he would stay overnight.
Mr Rendell testified that after they had arrived in Melbourne an argument broke out in the evening when ES’s mother complained to her husband that the roast he had cooked was still raw. ES’s father became aggressive, threw some things around and spoke angrily to Mr Rendell. Mr Rendell testified that he replied ‘don’t talk to me like that, I’ve just driven your wife and kids over from Adelaide … I don’t need to listen to this’. ES testified that after that argument, the appellant went to ES to tell her he was leaving and then kissed her, putting his tongue in her mouth. ES’s younger sister, who was present, testified that she saw only a hug and a friendly kiss. Mr Rendell denied that he had kissed ES or her sister before or after the incident.
As it transpired, tempers cooled and the Mr Rendell stayed overnight, returning to Adelaide the following day.
The families continued friendly contact by telephone and text. ES’s father arranged for ES and her older sister, MKS, to fly to Adelaide in December 2015 to stay with the Rendells. They arrived on the afternoon of 5 December 2015. The three counts of aggravated indecent assault with which the appellant was charged were alleged to have occurred in the late afternoon/evening of 6 December 2015 in an area of parkland adjacent to the lake at West Lakes.
Earlier on that day the appellant, Mrs Rendell, ES and MKS took a dolphin cruise at Port Adelaide. On the way home, at about 5 pm, they stopped at a fruit shop on Military Road. ES testified that they stopped to purchase orange juice and strawberries. ES testified that whilst Mrs Rendell was in the shop, at Mr Rendell’s suggestion, she accompanied him to the beach. ES testified that the appellant kissed her on the way down to the beach. ES described the kiss as a long kiss on the lips involving Mr Rendell’s tongue.
Mr Rendell testified that he stopped in the car at the fruit shop because his wife wanted strawberries for dinner. He testified that he initially stood by the car as his wife and MKS walked into the shop but that he eventually followed her into the shop because it was too hot to be outside. Mr Rendell’s evidence was that he and ES followed Mrs Rendell and MKS into the shop where he handed his wife a bottle of orange juice and asked her to pay for it. Mr Rendell denied that he walked to the beach with ES.
Mrs Rendell testified that the appellant came into the shop shortly after her and was standing behind her by the time she reached the store counter with the strawberries. She testified that Mr Rendell handed her a bottle of orange juice.
MKS testified that they stopped at the shop to get fruit and orange juice. She testified that she went into the shop with Mrs Rendell whilst ES and Mr Rendell walked towards the beach. In her evidence-in-chief, MKS denied that Mr Rendell or ES came into the shop. She testified that she and Mrs Rendell were in the shop for about 20 minutes. In cross-examination, MKS did not deny, but could not recall, Mr Rendell handing the juice to Mrs Rendell. When it was put to MKS that she was in the shop for just two to three minutes, MKS responded that she was not very good with time.
The offending
ES testified that on their return to the Rendells’ home she asked MKS to walk around the lake with her but that MKS did not want to. Mr Rendell offered to take MKS’s place.
Mr Rendell testified that when they had returned home from Port Adelaide ES became agitated and wanted to go for a walk. He told her that it was too hot to go walking after such a big day out. Mr Rendell testified that ES was ‘spinning around in circles’ from anxiety. He eventually agreed to go with ES because he was concerned that she might become lost. He told her they would walk around the lake, a walk of 20 to 25 minutes.
ES’s testimony concerning the charged offences was that in the course of the walk Mr Rendell:
·kissed her on the lips and put his tongue in her mouth on or around a footbridge over the lake (count 1);
·kissed her on the lips and put his tongue in her mouth when they were sitting on a ‘second’ park bench near the playground (count 2); and
·touched her on the breast at the same time as the kiss which was the subject of count 2 (count 3).
ES testified that the first indecent kiss, charged as count one, occurred in and around a footbridge that crosses over the lake terminating in Lochside Drive.
ES testified that they then stopped at a playground in Tiranna Way and sat on a park bench (the first bench) adjacent to a play area. ES testified that the appellant kissed her whilst they sat on the first bench. That kiss was not a charged offence.
Mr Rendell testified that they stopped at the footbridge and looked at an infestation of jellyfish. There was no physical contact or kissing. Mr Rendell testified that they walked along Lochside Drive and agreed that they may have been holding hands at that time but he could not recall doing so. He also agreed that it was possible ES may have put her arm around him. Mr Rendell testified that he had not predetermined to stop at the playground but it may have been his idea because it was so hot. They sat at the first bench, with him to the left of ES, for around two minutes. He put his right arm around her shoulder. Mr Rendell testified that ES said ‘Hug Kenny’ so he gave her a hug and kissed her on the top of the head but there was no lip contact. Mr Rendell testified that he was aware of other people in the area and told ES they should go home.
The Judge found beyond reasonable doubt that Mr Rendell kissed ES near the footbridge but was not satisfied that ES was kissed on the first bench. The Judge entertained a doubt on that issue because of the witnesses who saw Mr Rendell and ES in the park. Ms Ann-Marie Blackborough was the only witness to see Mr Rendell kiss ES there and she did not describe that kiss as a ‘tongue kiss’. The Judge explained that even though ES may have been mistaken about the nature of the kiss on the first bench, that mistake did not undermine her assessment of ES’s reliability or credibility more generally.
ES testified that she and the appellant then moved to a second bench. ES gave evidence that whilst they sat closely together on the second bench, Mr Rendell kissed her on the lips, with his tongue in her mouth. He placed his hand under her shirt, up her back and around her breast.
Mr Rendell testified that after resting on the first bench they walked closer to the water near the second bench and he suggested that they look for fish. They sat on the second bench and ES again said ‘Hug time Kenny’. Mr Rendell testified that it was common for ES to ask him for a hug and he put his arm around her. ES turned her head towards him and whilst patting her on the back he gave her a kiss on the cheek saying ‘sweetheart, everything will be okay. … You know you’re getting yourself into knots over everyday life’. Mr Rendell gave evidence that ES rested her head on his shoulder and that their heads made contact. Mr Rendell testified that he kissed ES on her right cheek. He denied kissing her on the lips or touching her breast.
On that day Ms Blackborough, her father Mr Trevor Blackborough, and her partner Mr Dylan Bryant, drove past the appellant and ES as they were walking towards the Tiranna Way playground. Ms Blackborough and Mr Bryant testified that the age difference between the appellant and ES caught their attention because the two were holding hands. One remarked to the other ‘that it was a bit off’. On the other hand, Mr Blackborough testified that he did not find anything untoward in the way in which they were walking together. All three saw ES and Mr Rendell on the first bench. There were differences between them as to whether Mr Rendell was sitting to the left or the right of ES. Ms Blackborough testified that the appellant kissed ES when they were sitting on the first bench but neither Mr Blackborough nor Mr Bryant gave evidence of seeing them kiss on the first bench.
In their observations of Mr Rendell and ES on the second bench, there were again differences between them as to whether he was seated to the right or to the left of ES. Ms Blackborough testified that she saw Mr Rendell ‘French kiss’ ES and rub her back with his right hand. Ms Blackborough was sufficiently alarmed by what she saw to call 000. Ms Blackborough agreed that her assessment of the nature of the kiss may have been affected by what she had seen ES and Mr Rendell do before on the first bench. Mr Bryant testified that when Ms Blackborough drew his attention to the second park bench he saw Mr Rendell kissing ES on the mouth with his hand moving across her lower back. In cross-examination, he agreed however that from his position he could not see the front of their faces. It follows from that concession that Mr Bryant’s evidence that Mr Rendell was kissing ES on her mouth was a conclusion based on the proximity and positioning of their heads and what he described as the ‘rocking’ of their heads. Mr Blackborough described what he saw of ES and the appellant at the park bench as cuddling.
The issue arising for the Judge to determine on that evidence was therefore whether, Ms Blackborough, Mr Blackborough and Mr Bryant may have mistaken a kiss on the cheek with one on the lips, and an avuncular hug with a more intimate touching of ES’s lower back.
Ms My Hang Trinh and her partner, Mr Luke William Grinter, had been kayaking on the lake shortly before ES and Mr Rendell came to the park. They saw them sitting on the first bench. Again, there was a difference between Mr Grinter on the one hand, and Mr Blackborough and Mr Bryant on the other, as to whether ES was on the appellant’s right or left. Neither Ms Trinh nor Mr Grinter saw Mr Rendell and ES kissing on the first bench. However, Mr Grinter saw the appellant’s hand on ES’s inner thigh and his other arm around her. They decided not to drive away so that they could watch the appellant and ES a little longer. They observed Mr Rendell and ES go to the second bench. Mr Grinter saw ES sitting on Mr Rendell’s right hand side. Ms Trinh testified that she saw tongue to tongue kissing by reason of the proximity and positioning of their heads. Mr Grinter described the kissing as ‘romantic kissing’ even though he could not see their lips coming together.
The lie
After observing Mr Rendell and ES on the second bench for five to ten minutes, Mr Blackborough decided to approach them. Mr Blackborough testified that when he approached Mr Rendell, he asked him who ES was. Mr Rendell replied ‘She is a family friend, a personal family friend’. Mr Blackborough testified that he then asked how old ES was, and that Mr Rendell replied that she was 18. Mr Bryant testified that Mr Blackborough asked something like ‘How old is your girlfriend’ to which the appellant replied ‘18’. It was put to Mr Blackborough in cross-examination that Mr Rendell had answered to the effect that it did not matter whether ES was 18, 15 or 14 but that she was in fact 13. Mr Blackborough denied that Mr Rendell had so answered.
Mr Bryant’s evidence was that he was present at the time and that he asked ES ‘How old are you really’. According to Mr Bryant, Mr Rendell answered for her but Mr Bryant could not recall exactly how he replied.
In cross-examination, Mr Bryant agreed that he could not remember whether the appellant described ES as a ‘personal family friend’ or whether Mr Rendell had responded along the lines that it did not matter whether ES was 18, 15, 14 or 13. Mr Bryant agreed that Mr Blackborough may have claimed to be a police officer when Mr Rendell went to walk away.
ES’s evidence was that, as the Blackboroughs and Mr Bryant approached, Mr Rendell told her to tell them that she was 18. ES testified that one of the group did ask her how old she was but that Mr Rendell answered for her, saying that she was 18. Both ES’s testimony and Mr Bryant’s are consistent in this important respect. Their testimony is inconsistent with Mr Rendell’s claim that he gave a range of ages to Mr Blackborough, and demonstrates that Mr Rendell was anxious that ES not say something which would put the lie to his pretence that she was 18.

Mr Rendell testified that when he and ES were about to leave they were approached by Mr Blackborough who spoke to him and asked to ‘have a word’. Mr Blackborough claimed to be an off-duty policeman. When Mr Rendell asked to see his card Mr Blackborough said ‘Don’t you worry about that. I’ll call the police’. Mr Blackborough asked Mr Rendell ‘How old’s the girl?’. Mr Rendell’s evidence was that he responded ‘What difference does it make if nothing’s happening. Does it matter if she’s 18, 15, 14. In fact she’s 13’. Mr Rendell testified that he thought he was being accused of something when Mr Blackborough enquired of ES’s age.
The Judge found that the appellant told Mr Blackborough and Mr Bryant that ES was 18. That finding of fact is challenged on the ground that it was improbable. It is sufficient to dispose of that complaint to say that it was a matter for the Judge to decide whether or not to accept the evidence of ES, Mr Blackborough and Mr Bryant on the one hand, or Mr Rendell on the other. Much will depend on an assessment of demeanour in resolving a factual controversy of this kind. There is nothing about the accounts of ES, Mr Blackborough and Mr Bryant which is so inherently improbable as to give to this Court proper grounds to put the finding aside in considering whether the verdict is supported by the evidence. On the contrary, Mr Rendell’s account is improbable on its face. A direct answer that ES was 13 years of age, with or without a denial of wrongdoing, or an indignant refusal to answer with an objection to the unwarranted interference, might all be expected when an elderly male is wrongly confronted with an accusation of wrongdoing with a young girl. But the giving of a series of possible ages has all the hallmarks of an artificial construct designed to give an innocent explanation for the evidence from Mr Blackborough, Mr Bryant and ES, who all testified that Mr Rendell uttered the word ‘18’.
The particular improbabilities on which Mr Rendell relies can be dealt with shortly. First, it is said that ES did not look 18 and that it was therefore improbable that the appellant would seriously assert that ES was 18. Accepting that ES’s appearance was an obvious difficulty for the success of the lie, it does not follow that Mr Rendell was not driven to tell it because of the compromising circumstances in which he may have been seen by Mr Blackborough and Mr Bryant, or at least his anxiety that the circumstances may have been mistakenly so perceived.
Next, the appellant points to the differences in the accounts of ES, Mr Blackborough and Mr Bryant. True it is that their accounts differed in detail, but on the central question that the appellant said that ES was 18, they were as one. In particular, I have already referred to the consistency in the testimonies of Mr Bryant and ES. True it is that the appellant gave a different account but the Judge, having heard the evidence, was entitled to reject it and indeed it was, on its face, an improbable account. Answers in the form of those given by Mr Blackborough and Mr Bryant, to the effect that they did not recall the contrary version of the conversation put to them by Mr Rendell’s counsel in cross-examination, are commonly encountered in trials. Often a witness’s claim not to recall the contrary narrative put in cross-examination is more a manifestation of politeness and fairness than an indication of doubt. In the evaluation of answers like that a trial Judge has an inestimable advantage over an appeal court.
Mr Rendell also complains that the Judge did not adequately explain why she preferred the evidence of Mr Bryant and Mr Blackborough. The Judge’s reasons on the issue are as follows:[2]
[209]The conversation after the second bench is, on the prosecution case, a lie revealing a consciousness of guilt on the part of the accused. The prosecution case is that the accused was asked how old ES was and that he lied when he replied that she was 18. ES, Mr Blackborough and Mr Bryant all give that evidence. I accept their evidence. The accused says that there was a different conversation. That different conversation was put to ES, Mr Blackborough and Mr Bryant. None of them agreed that this was what was said. The accused’s evidence on the topic was further inconsistent in terms of what was said and the sequence in which it was said. I do not consider it to be reliable and I therefore put it to one side. It does not cause me to doubt the evidence given by ES, Mr Blackborough and Mr Bryant on that topic.
[210]I note the preconditions for the admissibility or use of evidence of a lie probative of guilt. I find beyond reasonable doubt that the accused, when asked how old ES was, said that she was 18. If his conduct was not indecent as alleged by the prosecution there would be no occasion to lie about ES’s age. Saying that she was 18 is in my view an acknowledgement of the impropriety of his conduct.
[2] R v Rendell [2017] SADC 86.
Whatever view may be taken of the force of the matters discussed in that paragraph, it sufficiently explains the Judge’s reasons. I deal with the complaint that the last sentence in [209] is one of several indications that the Judge reversed the onus of proof below.
The complaint
Senior Constable Burford, the police officer who was asked to attend at the park after Ms Blackborough made the 000 call, testified that he had the following conversation with ES at the park:
Q.What was the first question you asked her.
A.I said to her ‘We have been told that you were seen being kissed on the lips by Ken. Is this correct?’
Q.What was her response.
A.‘Yes’.
Q.How did the conversation proceed from there.
A.I asked a follow-up question which was ‘What sort of kiss was it? Was it a peck or a longer kiss?’.
Q.Did E respond.
A.Yes, she did. She said that ‘It was a longer kiss’.
Q.What happened next with the conversation.
A.I asked if he used his tongue.
Q.Did E respond.
A.Yeah, she said ‘Yes’.
Q.And how did the conversation proceed from there.
A.I then asked her to explain to me a little bit more - I’m just referring to my notes - and she said to me that whilst they were kissing, that Ken had touched her on the bottom and on the breast.
Q.And after she said that, what happened.
A.I asked her ‘Did he touch you through your clothes or did he touch you bare breast and bottom?’, and she said through her clothes - through her clothes.
Q.Just on that point, did you ask her whether she was wearing a bra.
A.Not that I recall.
Q.Did you ask her what she meant by ‘through her clothes’.
A.No.
Q.So after she made the comment ‘Through my clothes’, how did the conversation proceed.
A.She advised me that Ken had put his hand up her top at her back and touched her on the bare back.
Q.Is that all the detail that E told you about her interactions with Mr Rendell.
A.Yeah, at that time, yes.
ES’s evidence of her conversation with a police officer at the park was as follows:
Q.While you were still at the park, did you give some details to someone about what had happened.
A.When the police came, I just think I - they came and sat with me and my sister, M, and they were just like saying ‘What’s going on?’, but I don’t really recall how much information I gave them. I think most of the details I said in my statement.
Q.So at the park, did you tell the police everything that had happened or just part of what had happened.
A.I didn’t really tell them much. I still wanted to - I don’t know, I guess I just wanted everything to go away. I didn’t want to get him in trouble, Ken. I guess - I mean I didn’t really tell them much at all.
Q.Was it only one police officer that you spoke to when you were with your sister.
A.I think one was sitting, talking, and then one was just standing to the side, like, I don’t know, guarding or whatever.
Q.Do you know if they were male or female police officer.
A.No.
Q.How were you feeling at that point when you were talking to the police.
A.Well, I just wanted my mum and I wanted to go home and for everything to go away.
Ground 7 – Admission of the evidence of the lie
I turn next to the grounds of appeal dealing first with the complaints that inadmissible evidence was adduced, followed by the complaints concerning the Judge’s reasoning, and finally, with the contention that the verdicts were not supported by the evidence.
In Harris v The Queen,[3] King CJ gave the following seminal exposition of the probative force of lies told by an accused:
The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.
[3] (1990) 55 SASR 321 at 323-324.
In Peluso v Police,[4] I described the reasoning from which the probative value of lies derives as inductive:
[26]A false statement made by a defendant on a material issue may evidence a consciousness of guilt if it is deliberately untruthful.[5] It is said that it is open to a tribunal of fact to find that such a lie was told because the defendant appreciated that the truth of the subject matter of the lie would implicate him or her in the offence or an element of it. It is that awareness which is described as a consciousness of guilt. The traditional formulation of the reasoning process has the appearance of circularity, because a finding that the lie was told out of an awareness that the truth was inculpatory cannot be made without first finding that the appellant committed the offence. Put differently, the formulation suggests that a finding of guilt is made on the basis of the telling of the lie alone. It is perhaps for that reason that it is commonly thought that a court must be satisfied beyond reasonable doubt that the reason for the lie is a consciousness of guilt before it can be used as evidence of guilt. However, that onus applies only in the uncommon circumstance that the lie is the only evidence of guilt of an element, or elements, of the offence.[6]
[27]The reasoning by which a deliberate lie on a material issue may support an inference of guilt is inductive and circumstantial rather than deductive. Where a deliberate lie has been told on a material issue its probative force, as the authorities emphasise, depends critically on whether there may be an innocent explanation for it. The likelihood of an innocent explanation can be evaluated as a matter of human behaviour, independently of the evidence implicating the defendant in the commission of the offence charged. If there is no credible innocent explanation for a deliberate telling of a material falsehood, then the telling of it strongly supports an inference that the lie was told in an attempt to distance the accused from the offence charged. The more credible, and likely, that the innocent explanation for the lie is, the weaker the inference that it was told out of a consciousness of guilt.
[4] [2018] SASC 63.
[5] R v Sekrst [2016] SASCFC 127 at [40]-[44]; R v Quist (2017) 127 SASR 471 at 523; Edwards v The Queen (1993) 178 CLR 193 at 209; Zoneff v The Queen (2000) 200 CLR 234.
[6] Edwards v The Queen (1993) 178 CLR 193 at 210.
Applying those passages to this case, the first question to be addressed is whether the lie was a deliberate one. The Judge was entitled to find, given the nature of the lie and on the testimony of ES, that it was both deliberate and planned.
Next, it was necessary to consider the possibility that Mr Rendell’s false response that ES was ‘18’ might have been made for innocent reasons. The Judge found that it was not:
[210]I note the preconditions for the admissibility or use of evidence of a lie probative guilt. I find beyond reasonable doubt that the accused, when asked how old ES was, said that she was 18. If his conduct was not indecent as alleged by the prosecution there would no occasion to lie about ES’s age. Saying that she was 18 is in my view an acknowledgement of the impropriety of his conduct.
Mr Rendell contends that the Judge did not, in that passage, direct herself as to the possible innocent explanations for the lie. The innocent explanation for the lie put by Mr Rendell’s counsel on appeal was that he may have falsely stated ES’s age out of panic when confronted by Mr Blackborough making an accusatory enquiry about ES’s age.
I accept that the Judge was wrong in fact to find that there could be no occasion to lie about ES’s age unless Mr Rendell had indecently assaulted ES. I accept that a lie of that kind might possibly be told from anxiety over the making of a mistaken accusation. More relevantly, the Judge has not given reasons for rejecting, or at least discounting, the possibility that there was an innocent reason for the lie. The failure to give adequate reasons is an error of law, even though the Judge had reminded herself of the preconditions for the use of the lie.
However, the explanation put by Mr Rendell is an improbable one. On Mr Rendell’s own account, he was engaging in nothing more than comforting ES in an avuncular way, and on his account there was very little reason to think that anyone could have misinterpreted his conduct. Indignation is the much more likely response of the innocent. Indeed it was Mr Rendell’s own testimony that, far from panicking, he did respond indignantly. If not indignation, a polite, and perhaps embarrassed, explanation that he was confronting a troubled teenager would be a more likely response than a lie about ES’s age. After all, ES was there to immediately confirm his account of the innocent comforting of a disturbed teenager if that were really the case. Moreover, the lie was not uttered in a spontaneous response to Mr Blackborough’s question. Instead, Mr Rendell coaxed ES to lie about her age as Mr Blackborough approached and before he had made any enquiry. Finally, even though the Judge did not rely on it Mr Rendell told a further lie in giving his evidence that he ran through several different ages before stating ES’s true age. As to that lie, panic could be no excuse. Rather, for the reasons mentioned earlier, the lie on its face appears to be a contrived explanation of the fact that he did utter the word ‘18’.
The postulated innocent explanation for the lie is barely plausible. The much more probable explanation is that Mr Rendell realised that Mr Blackborough and Mr Bryan had decided to confront him because they had seen behaviour suggestive of indecency. An innocent explanation for Mr Rendell’s lie being improbable, its telling was circumstantial evidence of his guilt.
The evidence of the lie was therefore admissible. The Judge’s failure to give reasons has not therefore been productive of any miscarriage of justice. The probative weight of the telling of the lie was a matter for the Judge.
Admissibility of ES’s complaint
Section 34M of the the Evidence Act provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)     it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
…
(6)In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
In R v T, S,[7] Hinton J said:
Again, whether the content of any evidence of initial complaint is sufficient such that it may be characterised as a complaint about the charged conduct is in no small part driven by the probative value that s 34M(4) of the Evidence Act contemplates such evidence to have. Hence in R v Landmeter (2015) 121 SASR 522 at [12], Vanstone and Bampton JJ said:
… We reiterate the view expressed in R v A, GP (2012) 113 SASR 146 by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or s 34M(4)(a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim. As Duggan J observed in R v J, JA (2009) 105 SASR 563 at 583, the consistency of conduct encompasses both consistency in making a complaint when one might be expected and consistency in the allegations. In the present case, the evidence tended to explain how the allegations first came to light and why there was no prosecution of the matter until much later, as well as potentially bearing on V’s consistency of conduct.
[7] (2017) 128 SASR 66 at [133].
The Judge’s findings and directions to herself on the complaint were as follows:
[134]Senior Constable Burford attended at the scene at 5:48 pm. He had a short conversation with Constable Altamura and then went over to the bench to speak to ES. He did this at about 5:55 pm. Unfortunately the notes of that conversation were not made by him until 11 December. I held a short voir dire on the topic of whether the officer could refer to his notebooks for that conversation. I allowed the evidence de bene esse under s.34M. I have decided to receive the complaint evidence.
[135]Senior Constable Burford said the events were fresh in his memory at the time he made the notes and he had not dealt with any similar events in that time. I accept his evidence. Complaint evidence is not often the subject of notes given that such complaints are regularly made to lay persons. The fact that ES was not shown the notes and asked to verify them, as defence contended ought to have occurred, is therefore irrelevant.
[136]Complaint evidence is admitted under s34M not as the truth of what was alleged but rather to indicate how the allegations first came to light and to ascertain whether the making of the complaint demonstrates consistency of conduct on the part of the complainant. It must be referable to the counts on the information.

Mr Rendell submitted on appeal:
34.It is submitted that the leading nature of the questioning of ES had the consequence that neither of the two purposes for initial complaint evidence could be satisfied in this case. First, it did not demonstrate consistency of conduct, because, as the common law cases on recent complaint show, there is a requirement of spontaneity that was absent here. Secondly, since the allegations had already come to light by the time SC Burford elicited the answers from ES, the evidence did not assist in that way.
35.As to the former, the relevant principles were described in R v Freeman. The Full Court there held that the decision whether to allow evidence of complaint to go to the jury depended upon whether the complaint was capable of being regarded as a ‘spontaneous and unvarnished narrative’. The evidence might be excluded where it was the product of suggestion. That is not to say that in all cases of suggestion the statement by the complainant is incapable of qualifying as a complaint; there are questions of fact and degree to be considered. The authorities also suggest that a degree of realism needs to be shown so that natural and understandable questions, albeit with a slightly suggestive character, ought not necessarily preclude a jury from concluding that the answers that follow are relevantly spontaneous and unvarnished in a way that is capable of buttressing credit.
Contrary to the submissions put on behalf of Mr Rendell, the abrogation by s 34M(1) of the common law leaves no room to read back in to the interstices of s 34M the common law requirement of spontaneity. Section 34M provides that the making of an initial complaint is admitted as evidence of the degree of consistency of conduct of the complainant, and to inform the jury how the allegation first came to light. If the complaint, whether prompted or spontaneous, is capable of evidencing those things, it is admissible.
The common law, because of what is now known to have been an unjustified institutional suspicion of complaints of sexual offending, required spontaneity as a condition of admissibility. The reluctance of victims of sexual abuse, particularly children, to make a complaint is now a notorious fact. The common law rule is now known to have no basis in the dynamics of sexual abuse. Section 34M of the Evidence Act should not be construed in a way which continues that fundamental misconception. Mr Rendell’s reliance on the common law position articulated in the Victorian authority of R v Freeman[8] is misplaced.
[8] [1980] VR 1.
The evidence of ES’s response to Senior Constable Burford shows how the allegation first came to light. On appeal, Mr Rendell contends that it was the conduct of Ms Blackborough, in calling the police, which brought the allegation to light. However, it is how the complainant’s allegation came about which is the subject matter of s 34M of the Evidence Act. Even if one commences with the account of Ms Blackborough in showing how the allegation came to light, that explanation is not complete without the evidence of ES’s response to Senior Constable Burford. Finally, ES’s response to Senior Constable Burford was also referable to the charge in count 1 which only came to light through the elaborated complaints of ES. The complaint evidence therefore shows how the allegations in all three counts came about.
ES’s affirmative response also shows that her conduct, in giving that response, was consistent with her testimonial account of Mr Rendell’s offending. It can be accepted that for this purpose, the evidence is not as probative as it might have been if a non-leading question had been asked, but probative it nonetheless is.
Mr Rendell also contends that the complaint evidence should have been rejected in the exercise of the Judge’s discretion. I reject that contention. The hearsay incorporated into Senior Constable Burford’s question could cause no unfairness at trial because Ms Blackborough testified as to the fact suggested by Senior Constable Burford’s question and that she had informed the police of what she had seen. Nor is there any reason to exclude the evidence on the ground of police impropriety. Questions which fall short of best practice are not, for that reason alone, improper. Moreover, given the way in which the events quickly unfolded after Mr Rendell was confronted by others in the park, Senior Constable Burford’s directness is excusable.
The Judge’s directions in [136] correctly stated that proper use to which evidence of the complaint could be made. The Judge was not required to elaborate any further on what was a relatively small part of the prosecution case.
The summing up
In order to deal with Mr Rendell’s complaints about the adequacy of the reasons and the Judge’s reversal of the onus of proof, it is necessary to set out much of the Judge’s assessment of the testimony of the witnesses and her Honour’s evaluation of the evidence.
In [182] and [183] of the reasons for verdict, the Judge states her satisfaction with the reliability and accuracy of ES’s evidence based, largely, on her demeanour. The Judge does not, in those paragraphs, make a finding that the offences are proved beyond reasonable doubt. The paragraphs are the commencement of the Judge’s assessment of ES’s testimony. The Judge then continued:
[184]I have carefully considered the various criticisms of her evidence. There are significant gaps such as her inability to explain how she and the accused were positioned on the two park benches or to explain where they were in relation to the footbridge or indeed how they were positioned in relation to each other during the acts. She misidentified the two benches upon which they were seated. However, ES is still only 14; she was giving evidence about events that happened between 18 months and two years ago. These were difficult topics for her to discuss; they were intimate and embarrassing. Her inability to provide details and her mistakes about the benches might have something to do with the conduct to which she was being subjected at the time. The descriptions of the various witnesses suggest that she was uncomfortable, in shock and, following the confrontation, distressed. ES’s evidence indicates that she was feeling anxious and distressed. In those circumstances it is hardly surprising that she made mistakes about the benches and was unable to provide some of the details sought.
…
[188]I have considered the submissions in relation to both of these matters together with the evidence and ES’s explanations. I remind myself of the usual direction given to juries concerning prior inconsistent statements. Neither of these prior inconsistent statements cause me to doubt the reliability of ES’s evidence in court.
Several matters should be noted. First, the criticism made of the Judge’s reference to the embarrassing nature of ES’s evidence in [184], contrary to the submission made on appeal, does not assume the truth of her narrative. Rather, it was an observation of possible differential explanations for frailties in her evidence. Secondly, the paragraphs record the Judge’s evaluation of defensive criticism of ES’s testimony.
The Judge then referred to the defence criticism of the testimony of the witnesses who saw Mr Rendell and ES in the park:
[190]Defence suggest that the evidence of the independent witnesses has all the hallmarks of a group frenzy; that there was a preconceived notion and perception by these people of an activity which has been misinterpreted. It is said that they have jumped to conclusions between themselves and collectively. It is said that the most reliable witness is that of Trevor Blackborough because he does not suggest that there was any tongue kissing or untoward activity occurring on the second bench. I reject the suggestion of a group frenzy. As I have indicated above there were two groups. The first group comprised the Blackboroughs and Mr Bryant.
Next, the Judge gave reasons for finding Ms Blackborough and Mr Bryant to be cogent witnesses.[9]
[9] R v Rendell [2017] SADC 86 at [191]-[192].
After discussing Mr Blackborough’s evidence, the Judge continued:
[196]Having carefully considered the evidence and the submissions of counsel I do not accept Mr Blackborough’s evidence as to what occurred on the two benches. His evidence does not cause me to doubt the evidence of the complainant or the other witnesses as to those events.
That paragraph records the Judge’s view of Mr Blackborough’s evidence and her Honour’s review of her evaluation of the testimony of ES and Ms Blackborough and Mr Bryant.
The Judge observed that Mr Grinter and Ms Trinh had no contact with Ms Blackborough and Mr Bryant before the police were called. The Judge gave reasons for accepting Mr Grinter as an impressive witness, and for accepting that Ms Trinh’s evidence was cogent and consistent about the matters she recalled.
The Judge emphasised that the two groups of witnesses had independently observed inappropriate intimacy between Mr Rendell and ES:
[199]At the time the accused and ES moved to the second bench the two groups had not spoken to each other; they had not collectively decided that this was wrong. There was no group frenzy. Rather the two groups independently believed something untoward might be occurring and decided to watch the couple to see if there were any developments.
The Judge considered at length the testimony the park witnesses gave as to the events on the second bench before concluding:
[201]Having observed each of the four witnesses describing how they came to the conclusion that this was sexual or passionate kissing, I consider that each gave compelling and cogent reasons for forming that view”.
The Judge then observed that Ms Blackborough’s observations caused her to telephone the police, and returned to the importance of the consistency between the independent observations of the two groups of witnesses:
[203]However described, My Trinh and Luke Grinter came to the view that there was tongue kissing or passionate kissing occurring between the couple on the bench. They thought that it was inappropriate and sexual. Separately and independently of Ms Trinh and Mr Grinter, Ms Blackborough and Mr Bryant formed the same view. Importantly the evidence of these four witnesses confirms what ES said occurred at the second bench. Mr Bryant and Ms Blackborough corroborate her evidence in another important respect because they both observed the accused’s hand running up and down ES’s back in the manner that she also described in her evidence.
[204]None of the witnesses gave evidence about seeing the accused touch ES’s breast. Given the angle from which they were all viewing this is unsurprising. I do however accept ES’s evidence that this occurred during the course of the embrace on the second bench.
The Judge then evaluated Mr Rendell’s evidence. Her Honour did not find him to be an impressive witness, ‘even taking into account his good character’. The Judge found aspects of his evidence ‘unconvincing’ and ‘internally inconsistent’.[10] The Judge thought his evidence to be ‘tailored to minimise his involvement with ES and to put her in a poor light’.[11] The Judge detailed the aspects of his testimony on which that assessment was based. The Judge’s assessment of Mr Rendell’s evidence is tantamount to a rejection of it, albeit not expressly stated in those terms.
[10] R v Rendell [2017] SADC 86 at [205].
[11] R v Rendell [2017] SADC 86 at [205].
The Judge continued:
[207]The accused described innocent physical contact on the second bench; hugging ES at her request, ES putting her head on his shoulder and him briefly placing his head on her head. This version was put to all of the witnesses. None of them with the possible exception of Trevor Blackborough agreed that anything of the sort happened. ES denied it and maintained her evidence about what occurred on the second bench. I accept her evidence. I further do not believe that Mr Grinter, Ms Trinh, Ms Blackborough and Mr Bryant mistook ES’s head leaning on the accused’s shoulder or his head leaning briefly on ES’s head for passionate kissing.
[208]On the accused’s account his arm was around ES’s shoulders and he may have patted her in a comforting manner. At least two witnesses saw his arm moving up and down her back. They did not see patting, they saw stroking from the shoulder to the bottom. ES said that the accused was stroking up and down her back. Again I accept her evidence.
The Judge made the following findings on the visit to the fruit shop:
[213]Defence counsel made detailed submissions about the uncharged acts near the fruit shop. I have carefully considered those and the evidence to which I was taken. Again I accept ES’s evidence about what occurred. ES did not know where the fruit shop was. She was not able to tell the police where it was nor did the police drive her around to establish its location. ES did not immediately recognise the fruit shop when she was shown photographs in cross-examination. Her lack of familiarity with Adelaide and the location the fruit shop was clear. It was not suggested that she had been there previously. She described being taken on a track to the beach. There is in fact a track to the beach near the fruit shop which meets the description given by ES. The track was not particularly obvious from the fruit shop car park nor is it possible to see the beach. It is challenging to see how ES would have been able to give the evidence she did if she had not been taken there, as she said, by the accused.
…
[215]Mr Rendell denied going to the beach track. He and Mrs Rendell gave evidence that he went into the fruit shop. They further gave evidence that suggested that there was insufficient time for the events described by ES to have taken place. I am troubled by the times given by Mrs Rendell and Mr Rendell with a view to establishing that they were at the fruit shop only briefly. Their evidence was that the fruit shop was closing. Both were adamant that they could not have been there earlier than five minutes to five. Both said they left the fruit market to go home after five and that they arrived home somewhere around 5.10pm. Both gave evidence of a number of activities at home. Mrs Rendell said that her husband and ES left the house close to 5.30pm. Mr Rendell’s evidence is consistent with leaving slightly, but not much, earlier.
[217]The evidence of Mr and Mrs Rendell does not cause me to doubt the evidence of ES as to the uncharged acts at the fruit shop.
Ground 4 – Separate consideration
Counsel for the appellant submitted that the Judge ought to have undertaken ‘the discipline of identifying and considering, in respect of each count, all of the evidence which bore on the count in question’. This is not a case in which it was appropriate to consider each count separately. All of the uncharged acts described in the testimony of ES and the descriptions of the other charged acts were admissible on each count. It was necessary to evaluate ES’s evidence as a whole. The assessment of ES’s evidence could not sensibly have proceeded by segmenting it into parts, which described each of the charged acts which were temporally and causally so closely interconnected. The probative weight of the uncharged acts lay in their combined force, which showed the escalating pattern of earlier behaviour that sufficiently emboldened Mr Rendell to act as brazenly as he did, and the reasons for ES’s submission to it. The contention that judges are required to engage in such a formulaic, artificially repetitive exercise in explaining their reasons should be rejected.
Mr Rendell also submitted that there were the following particular manifestations of error resulting from the Judge’s failure to segment the reasons for verdict into separate parts for each count.
First, it is contended by the appellant that the Judge did not anywhere identify in express terms that in relation to count 1, the charged offending was entirely uncorroborated and was denied under oath by Mr Rendell, who was of good character. The alleged error in fact reveals the danger in a segregated consideration of evidence which is cross-admissible on all counts. The fact that in the same course of conduct on that afternoon Mr Rendell engaged in other sexual offending against ES, which was corroborated by the testimony of witnesses who were in the park, is precisely why a holistic assessment and evaluation of ES’s evidence was needed. Secondly, the appellant’s reliance on differences in the accounts, for example, on which side of Mr Rendell ES sat, were matters for the Judge to assess, which her Honour did.
Finally, Mr Rendell contends that the failure to devote a separate paragraph of the reasons to count 3 led the Judge to overlook that ES’s evidence of that offence was also uncorroborated. The premise that it was not corroborated must be rejected. Even though no other witness saw Mr Rendell touching ES’s breast, the observations of the other park witnesses who saw Mr Rendell kissing and rubbing ES’s back was substantial corroboration of her evidence on count 3. In any event, an assessment of ES’s testimony on count 3, divorced from her evidence about the kiss, the subject of count 2, would be meaningless and artificially divide the evidence and the assessment of the reliability and credibility of ES’s evidence.
Ground 5 – Character evidence
The Judge expressly referred to the character evidence called by Mr Rendell:
[147]I take this evidence of the accused’s good character into account when considering the probability or improbability of his having committed the offences charged. I will consider it together with any other evidence in the case in assessing the likelihood of his having committed the offences of indecent assault. I also bear it in mind in assessing the accused’s evidence and any explanation he offers as this evidence and his explanations come from a person who has borne a good character and reputation.
There is no error of law in the Judge’s statement of the proper uses of the character evidence. Rather, Mr Rendell’s complaint is that the Judge accepted the truth and reliability of ES’s evidence without first pausing to consider the character evidence, and other witnesses and aspects of the evidence. That complaint can be considered together with grounds 2 and 3.
Grounds 2 and 3 – Reversal of the onus of proof
Mr Rendell’s essential submission on this appeal is that the structure of the Judge’s reasons reveals that the Judge posed, as the main issue to be determined, whether her initial inclination to accept ES as truthful and reliable was dislodged or displaced by defence evidence or submissions.
The premise of the appellant’s submissions on this ground is that the Judge’s evaluation of the testimony of the prosecution witnesses found in [182]-[204] embodies the Judge’s reasons for finding each of the charges proved beyond reasonable doubt. It does not. It is important to remember that the Judge’s reasons explain the conclusion that her Honour had reached after considering all of the evidence and does not represent ‘a real time’ record of the sequential steps taken in reaching that conclusion. A judge’s reasons may foreshadow a finding or conclusion before summarising the evidence on which it is based and explain the reasoning process by which the finding or conclusion was reached.
In Douglass v The Queen,[12] French CJ, Hayne, Crennan, Kiefel and Bell JJ explained:[13]
The criminal standard of proof is a designedly exacting standard. A different, lesser, standard is applied by courts dealing with contested issues involving the care and protection of children. This was not such a proceeding. In the circumstances of this trial, it was an error for the Court of Criminal Appeal to hold that it had been open to the trial judge to be satisfied of the reliability of CD's statements in the interview and to reason from that, despite the appellant's denials, to a conclusion that his guilt had been proved beyond reasonable doubt.
(citation omitted)
[12] (2012) 86 ALJR 1086.
[13] (2012) 86 ALJR 1086 at [48].

In R v Schulz,[14] Vanstone J explained the distinction between the evaluation of evidence and the application of the onus of proof as follows:
[30]The complaint in the present case is encapsulated by the often quoted passage of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515. The terms of this passage provide a bridge between directions on the evaluation of evidence and the correct application of the onus of proof. This passage was referred to with approval in Douglass v The Queen (2012) 86 ALJR 1086 at [13]. Brennan J said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The point relevant to this appeal is that the jury must be made to understand that the force of any defence evidence is not spent merely because the jury does not “positively believe” (or here “accept”) it. To put it another way, acceptance of an accused person’s evidence is not an essential preliminary to a not guilty verdict.
[14] (2016) 126 SASR 746.
In the present case, the Judge’s finding that the offences were proved beyond reasonable doubt is made in [218]. The Judge correctly referred to the onus of proof and approached the final determination of her verdict consistently with the just cited authorities and only after taking into account and evaluating the evidence as a whole.
The Judge concluded:
[218]Notwithstanding my reservations about this and other aspects of the accused’s evidence that does not provide a basis for my finding him guilty. The onus of proving each element of the charges always remains on the prosecution. I have taken into account all of the submissions put to me in relation to the evidence of ES and the other prosecution witnesses. My consideration of those submissions and the evidence as a whole has not caused me to doubt my initial impression of ES as a credible and reliable witness. She made appropriate concessions, she refused to guess, her evidence rang true and she was not shaken in her evidence under cross-examination. I am satisfied of the truth and reliability of her evidence. I am satisfied that the accused inserted his tongue in her mouth on or near the footbridge as alleged in count one and on the park bench as alleged in count 2. I am further satisfied that the accused placed his hand on her breast as alleged in count 3.
[219]It was put that the accused would not have committed acts of indecency as alleged on the prosecution case in such exposed locations and, in respects of counts 2 and 3, in front of witnesses. I reject that argument. It is regrettably the experience of the courts that such offending is often brazen and undertaken with little regard for the surroundings. The locations in which the three charged offences are said to have occurred does not cause me to doubt that they occurred.
[220]In all of the circumstances I am therefore satisfied that the prosecution has discharged the onus of proving each element of the three offences of indecent assault and I find the accused guilty of each count on the Information.
Adequacy of reasons
In R v Keyte,[15] Doyle CJ said:
[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) 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 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.
[56]I also consider that the judge's obligation required him to explain how he dealt with the issue of the delay in the making of a complaint, and with the absence of a complaint during the existence of the relationship. However, in fairness to the judge it may be that his references to the violent nature of the relationship are an adequate explanation of his approach to that topic. 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.
[15] (2000) 78 SASR 68 at [55]-[56].
In Douglass v The Queen,[16] the High Court succinctly stated the context of the duty of a Judge presiding over a criminal trial by judge alone to give reasons as follows:
[12]The Court of Criminal Appeal’s reliance on McHugh JA’s statements in Soulemezis was misplaced. Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court of New South Wales in a proceeding in which the right of appeal was confined to a question of law or in relation to the admission or rejection of evidence. It was an error to view the appellant’s trial as reducing to a case of “word against word”. It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen:
The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reason-able doubt of the guilt of the appellant.
[13]To dismiss the appellant’s complaint respecting the sufficiency of the reasons on the footing that the judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.
[14]In R v Keyte, Doyle CJ explained why a judge is required to give reasons for the judge's verdict following a trial under s 7 of the Juries Act 1927 (SA). These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant's second ground must succeed.
(citations omitted)
[16] (2012) 86 ALJR 1086 at [12]-[14].
In AK v Western Australia,[17] Heydon J said:
[111]The trial judge’s observations in argument. This conclusion should not be drawn, according to the prosecution argument in this Court, because of the trial judge’s observations in argument – made in a trial which lasted a day and a half, much of it being taken up by cross-examination of the complainant. This is one of many areas in which there is a fundamental difference between the significance of what judges say in argument and the significance of what they say in actually deciding cases. What the trial judge said in argument, taken with the record of the oral evidence, certainly reveals that there was no flaw in the conduct of the trial until the moment when the trial judge came to explain why the appellate was guilty on the first three charges. But the mere fact that the trial judge’s interventions in argument reveal that he was attending to the issues in a careful and dedicated way cannot fill the gaps in the reasons for judgment. The process of testing propositions and floating ideas in argument is a radically different process from stating the findings of fact relied on, for the latter fulfils functions and serves purposes which the former does not. The former process does not form part of the judgment; statements made during it are not findings. The duty to make statements in the judge’s reasons for judgment is not, contrary to what the prosecution called it, merely “technical”. Section 120(2) requires the latter process to be complied with at one particular time and in a formal way. Its requirements cannot be met by things done at some other time and in some other way (139). Nor, contrary to what the prosecution submitted, did the judge’s remarks in argument indicate that he was conclusively relying on them as part of his reasoning process. In Fleming v The Queen the Court said, speaking of principles of law relevant to a particular trial (140):
“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.”
The same is true of findings of fact.
(citations omitted)
[17] (2008) 232 CLR 438 at [111].
In DL v The Queen, Kiefel CJ, Keane and Edelmann JJ said:[18]
[32]The content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision". In the absence of an express statutory provision, "a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied". One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
[33]The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
(citations omitted)
[18] [2018] HCA 26 at [32]-[33].
The ‘whole of the evidence’ considered by the Judge necessarily encompasses the independent evidence of the park witnesses of what they saw of Mr Rendell’s conduct and his response when challenged about ES’s age. That strongly supportive evidence of ES’s account, which the Judge had accepted for the sound reasons which she gave, adequately explains why she found each of the charges proved beyond reasonable doubt.
It is patent that the Judge did not reason solely from her assessment that ES was a credible and reliable witness to a finding that the commission of the offences was proved beyond reasonable doubt. The Judge expressly took into account the criticisms of the prosecution witnesses made by the defence. The opening sentence shows that the Judge did not put Mr Rendell’s evidence aside despite her criticisms of it, and that her Honour went on to consider whether the prosecution evidence proved Mr Rendell’s guilt.
Unreasonable verdicts
In so far as the attack on the soundness of the verdicts is based on infirmities in, or differences between, the evidence of the prosecution witnesses, or inconsistences as between some prosecution witnesses on the one hand and Mr Rendell and his wife on the other, the trial judge was best placed to evaluate them.
There was nothing inherently implausible in ES’s account of Mr Rendell’s commission of the offences charged in the park adjacent to the lake. The indecent assaults on ES were committed as surreptitiously as the circumstances allowed. Undoubtedly there was an element of boldness in Mr Rendell’s conduct but that was explicable by the sparse opportunities available to him to indulge the sexual interest which the prosecution evidence showed that he had in ES. Moreover, Mr Rendell may well have hoped that other users of the park, like Mr Blackborough, might not have noticed the indecent aspects of his behaviour.
Even though the evidence on count 1 was uncorroborated, it was the commencement of a course of conduct which was strongly corroborated by the other witnesses in the park. It was not plausible that those witnesses had unreasonably jumped to a sinister conclusion. The independence of the testimony of Ms Blackborough and Mr Bryant on the one hand and Mr Grinter and Ms Trinh on the other tells strongly against that possibility.
Mr Rendell’s false statement that ES was 18 was, in itself, strongly corroborative of ES’s account.
There is no aspect of the evidence which causes me to doubt the appellant’s guilt on each count.
I would dismiss the appeal on this ground.
Conclusion
Appeal dismissed.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
BAMPTON J: I agree with the reasons of the Chief Justice and would dismiss the appeal.