R v Ricciardi - [2017] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICCIARDI
[2017] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Lovell)
29 September 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - GENERALLY
Appeal against findings by a judge sitting without a jury that the objective elements of unlawful sexual intercourse and persistent sexual abuse of a child were proved. The appellant argues that the Judge’s reasons were inadequate in a number of respects and failed to deal with various deficiencies and inconsistencies in the evidence of the complainants, failed to adequately address the defence case, failed to correctly apply the burden of proof, erred in finding that the evidence of the complainants was cross-admissible and in his treatment of discreditable conduct evidence, and gave less than adequate weight to the forensic disadvantage of the appellant.
Held Vanstone, Parker and Lovell JJ: Ground that inadequate reasons were given made out in some respects. Failure to give adequate reasons an error of law. The appeal must be allowed unless the proviso can be applied.
Held Lovell J (Parker J agreeing): It cannot be said that there was no substantial miscarriage of justice. The Judge failed to deal with suggested inconsistencies and contradictions in the evidence of the complainants. Therefore the appeal is allowed and the Judge’s findings on counts 2 and 3 should be set aside and the matter remitted.
Vanstone J (dissenting): The proviso should be applied. The Judge dealt with and rejected the principal defence contention of collusion and made important credibility findings about the two complainants.
Criminal Law Consolidation Act 1935 (SA) s 353; Evidence Act 1929 (SA) s 34CB, s 34P, s 34R; Juries Act 1927 (SA) s 7, referred to.
Douglass v The Queen (2012) 86 ALJR 1086; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Fleming v The Queen (1998) 197 CLR 250; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137, discussed.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v M, BJ (2011) 110 SASR 1; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; M v The Queen (1994) 181 CLR 487; The Queen v Nguyen (2010) 242 CLR 491, considered.

R v RICCIARDI
[2017] SASCFC 128
Court of Criminal Appeal: Vanstone, Parker and Lovell JJ
VANSTONE J.

After a trial in the District Court by a judge sitting without a jury, the appellant was found to have committed the objective elements of unlawful sexual intercourse and persistent sexual abuse of a child. The victims named in the Information were the appellant’s nieces “L” and “D” and the charged conduct occurred in the period 1988 to 1994. The appeal is primarily concerned with the adequacy of the reasons of the learned trial Judge and his treatment of the evidence of discreditable conduct.
Background
The appellant was charged on Information as follows:
1.Indecent assault of D between 31 December 1989 and 1 January 1992;
2.Unlawful sexual intercourse with D between 31 December 1989 and 1 February 1993, and;
3.Persistent sexual abuse of L between 31 December 1988 and 1 January 1994, including unlawful sexual intercourse in a garage in Plympton, unlawful sexual intercourse in a house owned by a person known to L as Yahzee, unlawful sexual intercourse in Para Hills or Parafield Gardens in a house occupied by a person known to L as Frank, and unlawful sexual intercourse in the Flinders Ranges.
A trial before judge and jury was set down for hearing in November 2013, but prior to that the appellant suffered a stroke. The trial was relisted for July 2014, but further difficulties with the appellant’s health emerged, leading to a third listing for trial in March 2015. A trial commenced then, but a mistrial was declared.
Investigations into the appellant’s mental state led to a declaration on 14 August 2015 that the appellant was unfit to stand trial. Following that declaration the appellant elected for trial by judge alone. The Judge then heard evidence and submissions from the prosecution and defence regarding the objective elements of the charges. At the trial the appellant did not give evidence, but his counsel called two of his children as witnesses. The Judge found the objective elements of count 1 not proved, but in relation to counts 2 and 3 found that they were proved.
The appellant’s wife is the sister of L and D’s mother. At the relevant time the complainants lived with their parents, brother and sister in Edwardstown. They initially attended St Joseph’s Primary School in Kurralta Park. In 1988 L moved to St John’s in Plympton. D moved to St John’s the following year. Both girls went on to a college after completing year seven at St John’s. The charged conduct occurred in the period that L and D attended St John’s. At the time of trial L was 37 years of age and D was 35 years.
In 1989 L and D’s parents purchased a delicatessen on South Road in Croydon Park. It was open every day of the week from 6.00 am until about 8.30 pm. Both parents worked there every day. Due to their parents’ work commitments arrangements were made for the complainants to be taken to school in the morning by the appellant. How frequently he did so was a matter which differed on the evidence of the complainants, their parents and their cousins, the son and daughter of the appellant. The appellant would also spend time with the complainants and their siblings on weekends and family holidays. One such holiday, in the Flinders Ranges, was the subject of evidence from both complainants as it formed part of the allegations comprising count 3.
The defence case at trial was that the complainants’ evidence was a result of collusion and fabrication. The inconsistencies and suggested deficiencies in their evidence were central to the defence case and were also the foundation of the appellant’s submissions before this Court in support of the first ground of appeal.
In his reasons the Judge found L and D to be “truthful, honest witnesses” and generally reliable. The appellant complains that such findings do not adequately address the infirmities in their evidence.
Ground 1 – Inadequacy of reasons
The appellant complains that the Judge’s reasons are inadequate. He submits that there were a number of deficiencies and inadequacies in the complainants’ evidence. He submits that while the Judge found the complainants were generally honest and reliable, such a finding was insufficient in the face of the inconsistencies in their evidence. It was argued that some inconsistencies put the two complainants completely at odds and, as a result, it was not possible to justify a general finding of honesty and reliability. The appellant submitted, relying on Fleming v The Queen (1998) 197 CLR 250 and AK v Western Australia (2008) 232 CLR 438 that the obligation to give adequate reasons demands more than a bare statement of legal principle and finding of facts. It requires an exercise that exposes the reasoning process linking relevant principle and justifying the findings of fact.
The appellant referred to the lack of reasons given for rejecting the evidence of the appellant’s children. The Judge made a number of observations concerning the inadequacies in the evidence of the appellant’s daughter MR, but when he came to deal with the appellant’s son DR, he dismissed that witness’ evidence on the basis that it suffered from the “same faults” as that of MR. This, it was said, was inadequate.
Counsel drew attention to a number of inconsistencies in the evidence of the two complainants which, it was submitted, were either not addressed by the Judge or, not adequately addressed. The first of those related to the routine which was followed in relation to the complainants going to school. L and D said that the appellant picked them up from their home five days a week to take them to school. D said that the appellant would customarily abuse her by kissing her and touching her breasts and vagina. She said some sort of abuse happened every day. However the complainants’ mother gave evidence that she was responsible for transporting the children to and from school. She said she would go to the delicatessen early in the morning and then return to the home for that purpose. She said that only occasionally would the appellant take them to school in the morning. Her final position was that the usual practice was that she would take the children to school, with the appellant only taking them occasionally to help out. The complainants’ father supported their mother in her evidence that it was she who generally took the complainants to school. The appellant’s daughter MR said that both her parents would assist in taking the complainants to school a couple of time a week. She said her mother invariably took part in the school runs. The appellant’s son DR said that his parents would together take all the children to school in the morning two or three times a week.
There was also conflict as to whether the complainants would be collected from within their home or whether they would be waiting outside the front of the house to be picked up. DR said the latter. L said it was a bit of both.
The appellant submits that such were the inconsistencies in relation to this important topic that they required, not just an account of the varying descriptions of what occurred, but findings in relation to what was the true position.
It was common ground that the appellant would sometimes collect the complainants after school. L’s evidence was that he, and sometimes his wife, would collect L, D and DR after school. D said that the appellant’s wife was not with him when he collected them. The complainants would be taken either to the delicatessen or to the appellant’s home. The appellant’s wife would only arrive later. The appellant’s daughter MR said that her mother would always accompany the appellant. DR said that the appellant’s wife would be there about 60 to 70 per cent of the time. The appellant suggests that, such was the conflict in relation to this evidence and so important was it in terms of opportunity, that it warranted closer attention by the Judge than it received.
The appellant also made submissions about the inconsistency in L’s evidence regarding the make and model of the vehicles which the appellant used to transport them. At one point in her evidence she referred to a green Jeep, at another a white Suzuki. Most of the other witnesses agreed that the appellant drove a van. It was agreed between the parties that the Suzuki owned by the appellant was purchased in 2002, and that the appellant’s wife purchase a white Jeep in 1999. The Judge made no finding about this issue.
One of the incidents of sexual abuse led by the prosecution in support of count 3 was an incident which occurred in the appellant’s garage at Plympton when L said that he digitally penetrated her while she sat on a bench. D had come into the garage during that incident and observed them kissing passionately. She asked what they were doing. She said that the appellant told her he was just checking L’s teeth. L accepted that she had not initially told police that she was sitting on a bench during this episode and that she had not alleged until just before the trial that digital penetration had occurred. The Judge discussed L’s failure to mention the bench in her initial statement at [61]-[62], but did not mention the late claim of digital penetration. D’s evidence was that this incident occurred a year earlier in 1991. She said she saw the appellant standing between L’s legs and kissing her. While the appellant does not rely on the difference in the timing of the incident, he submits that the remaining differences between the accounts of the two complainants should have been considered and discussed, if not resolved.
Another incident of sexual abuse led as part of count 3 occurred at a house referred to as Frank’s house. L gave evidence that the appellant was temporarily living there due to marital issues between himself and his wife and that the incident described by her occurred between 1988 and 1992. The complainants’ parents confirmed that the appellant had left his home temporarily, but differed as to when that had occurred. The appellant’s children said that the two periods when the appellant moved out of home were in 1995 and 1999. His daughter MR said that she remembered this clearly as she was in year three the first time it happened and year seven the second time.
Another incident forming part of count 3 occurred at the Flinders Ranges. L gave evidence that each night the appellant would wake her and they would engage in some sort of sexual conduct. She thought D slept next to her. D’s evidence was that one night she awakened to the appellant rubbing and then digitally penetrating her vagina and said she was angry and in a bad mood for the remainder of the trip. The complainants’ older brother said that everyone appeared to have a good time on the trip. It was submitted that there were a number of inconsistencies in relation to the evidence of the various witnesses about this trip which called for and did not receive analysis.
The appellant relies on the differences between the accounts of L and D about a meeting they had at the Scoozi Café in Rundle Street in 2012. L said they talked about their father being sick. She said D told her the police would be ringing her and to “say everything and the truth”. She denied having said to D, “I didn’t know he touched you too”. She said they had spoken about an occasion when D walked in and saw L kissing the appellant. She denied making up any of her allegations, stating that the grandchildren had to be stopped from going to the appellant’s house.
D’s account was that the Scoozi meeting occurred after both had spoken to the police. She said L said something like “I didn’t know he touched you too”. They did not discuss the allegations. They did not discuss the garage incident. Defence counsel suggested that D’s denial of discussing the garage incident with L was a “devastating blow” to her credibility”.
The appellant argues that the defence case was not simply that the events alleged by L and D did not happen. It was more sophisticated than that and in his reasons, the Judge should have demonstrated that he gave it the consideration it deserved. The address of counsel then acting, Mr Morrison, was concise, but it focussed upon what he called “five central aspects of the evidence” that supported the defence position. Mr Morrison first argued that there was evidence of collusion as between L and D, such as to infect the evidence of both. He put that this was “perhaps the main issue”. He pointed to the inconsistency between L and D in relation to a conversation they had at the café in Rundle Street when there was mention between them of the garage incident. Secondly he pointed to other inconsistencies as between L and D’s evidence, including as to the extent of sexual abuse suffered by each girl. Thirdly, Mr Morrison suggested that there was reason to doubt D’s credibility, mainly because of her denials of discussing the garage incident at the coffee shop. He suggested there should be a negative finding in relation to D on that topic alone. Fourthly, Mr Morrison submitted that in relation to each complainant there were some internal inconsistencies in their evidence as well as some occasions when each was proved to be wrong about one or more matters by independent and objective evidence. Finally Mr Morrison said that some aspects of the prosecution case were implausible. He also pointed to the forensic disadvantage suffered by the appellant. Upon the appeal hearing it was argued that these were substantial matters and the Judge’s reasons did not adequately dispose of these criticisms of the prosecution case. However, it is of note that the series of complaints made by the appellant do not extend to the Judge’s reasons on the issue of alleged collusion, Mr Morrison’s “first and perhaps the main issue in the trial”.
Finally the appellant argued that the Judge’s finding that the evidence of L and D was cross-admissible on the basis of improbability reasoning was not supported by an identification of which aspects of their evidence gave rise to the improbability. He puts that having regard to the extent of the inconsistencies between their evidence that such a finding could not be justified.
I should make clear that counsel for the appellant, Mr Handshin, does not argue that the various findings made by the Judge were not open to him; rather that inadequate reasons for reaching those positions.
Unlike the jurisdictions in which the High Court cases of Fleming v The Queen (1998) 197 CLR 250 and AK v Western Australia (2008) 232 CLR 438 arose, the obligation upon a judge sitting alone to give reasons has not been embodied in statute in South Australia. However, the obligation under common law and that imposed in the two statutes under consideration in those cases would probably have much in common. In Douglass v The Queen (2012) 86 ALJR 1086 the High Court dealt with an appeal from this jurisdiction in which the reasons for verdict of a judge sitting without a jury came under scrutiny. Having referred to Fleming and AK the Court said, at [8], that it was “common ground” that in this jurisdiction the Judge was obliged to give reasons sufficient to identify the relevant principles of law and his main factual findings.
The extent of the obligation had been earlier discussed in this Court in R v Keyte (2000) 78 SASR 68 at 78 ff. The Judge must state generally and briefly the grounds which have led to the conclusions reached concerning disputed factual questions and must identify the findings on the principal contested issues. Reasons are not required to be lengthy or elaborate. What is required will vary from case to case and will depend upon the circumstances of the case and the issues raised. It is clear that reasons are to be read as a whole.
The requirement to state relevant principles of law should be taken to include the need to set out any warnings that are to be taken into account. If that is accepted then it seems to me to follow that the obligation will be taken to require a demonstration that any relevant warning has been applied. In Fleming the High Court said this would require a statement of reasons why “notwithstanding the warning, or as a consequence of it, a particular verdict is reached”: [33].
A requirement to state the grounds which have led to conclusions concerning disputed factual questions will entail a consideration of the principal arguments tending against those conclusions, and an expression of why those arguments failed. That is not to say that the principal arguments need be dealt with at great length: Gleeson CJ and Kiefel J in AK (in dissent, but only on the application of the proviso); Doyle CJ in Keyte at [47]-[48], adopting Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 and McHugh JA at 280.

In AK, three separate judgments were given. All members of the Court agreed with the Court of Appeal that the reasons given by the Judge for his verdict were inadequate. Although the Judge had engaged with defence counsel during the closing address on the issue of identification, the Judge did not incorporate his reasons for being satisfied of that matter in his ex tempore reasons for verdicts. Gleeson CJ and Kiefel J differed from Gummow and Hayne JJ and from Heydon J in relation to the availability of the proviso. Their Honours would have allowed the convictions to stand. The other three members of the Court quashed the convictions. The three judgments contain different expressions of what is required in order to fulfil a trial judge’s obligation to give adequate reasons. Both because the trial Judge there effectively gave no reasons for rejecting the defence case on identification, and because there are three different judgments, this is not a case on the basis of which it is easy to state to what lengths a trial judge must go in fulfilling the obligation upon him.
The appellant’s counsel relied on the reasons of Heydon J at [85] as to the extent of the trial judge’s obligation. Heydon J said:
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.
[footnote omitted]
While that statement provides sound advice for trial judges sitting without a jury, it remains the statement of only one member of the Court. Other Justices have not been quite so prescriptive.
Returning to the present case, although the trial Judge’s reasons for decision were very lengthy (42 pages), most of the length (30 pages) consisted of a detailed account of the evidence of each witness. That included the defence witnesses MR and DR. The summary included reference to the cross-examination of each witness. Short excerpts from the transcript were often included. These tended to give an insight into the trial Judge’s view of that witness’ evidence. Particular topics were sometimes cross-referenced to other witnesses. However, nowhere was there an encapsulation of the defence case or defence counsel’s arguments. The discussion of the evidence at the end of the reasons under the heading “Discussion – witnesses” did not quite fill one page; although, important topics including the honesty and reliability of L and D and the question of collusion were dealt with earlier in the reasons under the heading “Discussion”. As earlier mentioned, the defence case was not only that the complainants’ evidence was wrong on the extent of the opportunities the appellant had to commit the offences – to which topic the evidence of the defence witnesses went – it also rested on suggested collusion, the inconsistencies between the two complainants’ evidence and the other prosecution witnesses’ evidence, specific criticisms of D’s evidence and suggested implausibility in the prosecution case.
The Judge dealt with collusion when dealing with cross-admissibility early in his reasons. I set out the relevant paragraphs:
[43]I now turn to the question of collusion between L and D to make false allegations against the accused. For reasons that I discuss below, I am quite satisfied that there was no collusion between them to make false allegations. I am quite satisfied that both were honest witnesses who were doing their best to be truthful in their evidence. Reliability is something quite different and to which I will return.
[44]I am satisfied there was no collusion between L and D based on my assessment of each individually as a witness. They were quite different witnesses. Without being thought to be critical, L lacked confidence, guile or sophistication; she had an innocent, agreeable, straightforward, presentation. I did not get the slightest impression she was tailoring her evidence to conform with an account to be given by D.
[45]D was more confident, self-assured, mature and sophisticated. There is some overlap between the evidence of D and L, but to a significant degree their accounts cover different topics divorced from each other. At the same time they do give similar accounts but arising in different and quite unusual factual settings.
The Judge did not deal with the suggested inconsistencies in the evidence of L and D. These included that D said that most of the offending against her, including fondling, happened before school at her home when the appellant would pick up L and D for school. It would happen every time: almost invariably Monday to Friday. She saw the same thing happening to L. But although L said that the appellant would kiss her in the mornings, she said that he never touched her on the breasts or vagina in the house. And L said that the kissing would usually take place after D had gone to the car. It was argued that if the extent of the appellant’s abuse of L was as described by D, then L would not have forgotten it. The Judge did not deal with the specific criticism of D’s evidence arising from her account of the meeting with her sister at Scoozi Café, the suggested “devastating blow” to her credibility. He did not deal with what were called internal inconsistencies in the evidence of L and D respectively. Mr Morrison described the “most telling” of these as being L’s description of the car being driven by the appellant at the time of the offending against her at a location referred to as the salt lakes. She described the vehicle as a Suzuki and said it was when she was in primary school that they used to go there. It was proved that L left primary school at the end of 1992. The Suzuki was not purchased until 2002. Then, L said she was collected from school in about 1992 by the appellant in a white Jeep. That vehicle was not purchased until 1999. As well, L contradicted her police statement on some matters of detail. Other suggested inconsistencies relied on acceptance of some aspects of the defence evidence.
Earlier, at [48]-[50], the Judge had referred to the forensic disadvantage suffered by the appellant and had found it to be “a significant forensic disadvantage”. However he did not return to that topic. The Judge did not refer to the defence argument that the appellant’s alleged conduct in kissing the complainant when at his house and with all the children about the place, and having interludes with L in the garage while the garage door was open was inherently implausible.
I have reached the decision that more analysis was required than that given by the Judge. While I am of the view that some of the defence arguments were insubstantial and not in need of explicit consideration, the suggested inconsistency between the two complainants as to the extent of abuse occurring in the mornings and as to events which were said to have occurred when they were together were matters upon which defence counsel placed emphasis and which should have been dealt with.
The inconsistency between the two complainants in relation to the allegations comprising count 1 (indecent assault on D) led to an acquittal on that count. The particular allegation underlying count 1 was that before school one morning, at the home, having kissed and fondled D, the appellant went to L and did much the same to her. L did not describe such an incident. While D said that the appellant often kissed and touched her in front of L, and touched L in front of her in the house in the mornings, L did not support that. The acquittal on count 1 shows that the Judge weighed these inconsistencies. He said that his failure to be satisfied of count 1 did not undermine his finding that D was honest and reliable. I consider that position was well open to him. But in view of the emphasis placed on the divergence of the evidence of the two witnesses as to the morning offending, the Judge should have explained why the doubt experienced in relation to count 1 did not flow through to count 2, unlawful sexual intercourse against D. In short he should have explained how the different accounts of the appellant’s morning activities could be reconciled without greater damage to the credibility of D, L or both.
In addition, I consider the Judge should have dealt with the differences in the accounts of the Scoozi Café meeting. It was not necessary to make a positive finding about what was said, but again, since the episode was a relatively recent one, and because Mr Morrison placed emphasis on it, the Judge should have addressed it.
In my opinion the so-called internal inconsistencies in L and D’s evidence – for example references to events having occurred in association with the use of a particular vehicle which was proved not to have been bought until later – could be readily dismissed as arising from false memories of the particular vehicle involved. But the appellant’s counsel relied on those matters and again, at least the strongest of them needed to be dealt with.
In my opinion the Judge should have addressed the argument that it was implausible that the appellant would have taken the risks associated with his conduct, when his own children were in the near vicinity. Such an argument is often put and rarely succeeds, so common does extreme risk-taking seem to be among abusers; but it should have been acknowledged.
In addition, I consider that, having identified forensic disadvantage to the appellant as significant, the Judge was obliged to say why in the face of it he was prepared to find the objective facts proved. Had he said something like, that he had scrutinised the evidence of the complainants bearing in mind that forensic disadvantage, in my mind that would have been sufficient.
I do not agree that the Judge had to do more in explaining why he found the appellant’s children DR and MR unreliable. While it is true that he effectively dismissed them with one brush, he explained that they both seemed to be deliberately restricting opportunity for the appellant to have engaged in sexual misconduct. Remembering that they each spoke of mundane events many years before and that neither was in a position to directly contradict either L or D’s evidence about the offending, I consider the reasons were sufficient.
The appellant also complains that the Judge made no findings in relation to the evidence of the complainants’ mother, father and brother. It is true that the Judge did not make findings about the evidence of these witnesses, although he summarised their evidence. In my opinion the evidence of all three was rather peripheral, speaking only to matters of general routine during the relevant years. Since the Judge chose not to make specific findings about those routines it is not surprising that he did not deal with their reliability. However, it would have been preferable to at least state why he found it unnecessary to make findings about their evidence.
I do not accept that it was essential to make intermediate findings about discrete topics such as the morning and afternoon school routine. It would be expected that such routines would be flexible and would vary over the relevant years. The Judge could not be expected to resolve inconsistencies about it. Much the same could be said of the different accounts about vehicles used by the appellant. Leaving aside the question of offending linked to a specific vehicle which I have mentioned already, there was no particular reason for the complainants to notice and commit to memory when particular vehicles were acquired, used or disposed of.
I do not agree that the Judge needed to say more about the uncharged acts and cross-admissibility or the way in which he used the uncharged acts. The Judge clearly directed himself on both topics. He correctly identified the various proper uses of the evidence which can be collected under the banner of credibility and improbability and he warned himself against misuse. I do not consider he was obliged to go further and say what use he made of it.
I propose to deal with the consequences of those instances where I have found that the reasons were less than adequate after I have dealt with the remaining grounds of appeal.
Ground 2 – burden of proof
I set out the ground of appeal and its particulars.
2.The Learned Trial Judge failed to correctly apply the burden of proof in his assessment of the objective elements of counts 2 and 3 and, in particular:
2.1    Failed to have regard to the failure of the prosecution to prove count 1 beyond reasonable doubt when considering his verdict on count 2 and the extent to which he could rely on D’s evidence more generally;
2.2    Failed to take into account any of the inconsistencies and / or divergences between the evidence given by witnesses for the prosecution in his consideration of counts 2 and 3;
2.3    Failed to properly consider whether the evidence adduced as part of the defence case could be excluded as a reasonable possibility;
2.4    Failed to properly consider whether it was reasonably possible that the appellant had not committed the charged acts in light of the shortcomings in the evidence of L and D.
As the appellant’s counsel acknowledged, the learned trial Judge correctly identified the burden and standard of proof several times in the early stages of his reasoning. Later, when stating what was the central issue in the trial – that the objective elements of the offences had been made out – he correctly reiterated the burden and standard of proof: [35].
The Judge has long experience in the criminal law. It is unlikely he would misapply the burden of proof. Moreover, counsel does not point to any passage in the Judge’s reasons which could imply a misapplication. The particulars of the ground are in truth a reiteration of the particulars of ground 1 which I have dealt with in the context of that ground.
This ground is without merit.
Ground 3 – cross-admissibility
Ground 3 is a complaint that the Judge erred in finding that the evidence of L and D was cross-admissible.
The appellant contends that admissibility relied on “striking” similarity of the respective accounts of L and D. It was put in the outline of submissions as follows:
The cross-admissibility of L and D’s evidence depended on a finding that the peculiarity of detail in their accounts was so striking that the possibility of independent concoction could be excluded: R v Bonython-Wright (2013) 117 SASR 410, [48]-[50]; R v CCA [2013] SASCFC 137, [61].
It was suggested that the similarities to which the prosecution pointed were insufficient to justify the ruling. It was said that the kissing each complainant described was not similar, that the fact of each claiming digital penetration was unremarkable and that the fact that both gave evidence about the “garage incident” could not justify the joint trial.
In my view the authorities referred to do not substantiate the appellant’s opening proposition. In Bonython-Wright at the paragraphs cited, the Chief Justice said at [48] to [50]:
The second pillar of cross-admissibility to which I referred is built on the similarities in the complainants’ accounts. Similarities in the testimonial descriptions of events or conduct given by different witnesses can, speaking generally and leaving aside the issue of collusion, strengthen the weight of their evidence. The degree to which the evidence of one witness is enhanced by the similar testimony of another witness will depend on the degree of detail, and the peculiarity of the conduct described. The more detailed and peculiar the conduct, the less likely it is that the witnesses concocted the evidence independently of each other, because so great is the range of human behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities. I will refer to evidence used for this purpose as similarity in account evidence.
The common law accepted that detailed descriptions of peculiar criminal or other discreditable conduct given by different witnesses carried sufficient probative weight to be admissible, notwithstanding the prejudicial effect of their testimonies. The common law conditioned the admissibility of similarity of account evidence on the trial judge’s satisfaction that the complainants had not colluded to concoct the evidence. The rationale for the rule is plain enough. The probative force of similarity in account evidence is undermined if the similarities are due to collusion. However, s 34S of the Evidence Act has removed that common law condition to the admissibility of similarity in account evidence. The policy reasons for the abrogation of the rule are also plain: it is that questions of concoction are questions of fact for the jury.
Moreover, an accused’s suggestion that a complainant’s account may be the product of collusion with other alleged victims can only properly be evaluated if the jury hears the testimony of all of the complainants who may have colluded. The question of admissibility which must now be decided by the judge under the provisions of Pt 3, Div 3 of the Evidence Act is whether, assuming that there has been no collusion, the level of peculiarity and detail in the witnesses’ similar accounts renders the hypothesis that they independently imagined or concocted the conduct so improbable that the probative force of their similar testimonial accounts substantially outweighs their prejudicial effect. The use of similarity in account evidence in that way does not involve propensity reasoning even though, if the degree of similarity leads to a conclusion that the events described were not imagined but did in fact occur, a propensity of the defendant will have been revealed.
[footnotes omitted]
Bonython-Wright was a case where unrelated complainants (though friends) made allegations against a youth worker of sexual assaults over a period at various locations. As can be seen from the excerpt quoted there were several “pillars” to the justification for a single trial. However, that reference does not demand striking similarity as a prerequisite to cross-admissibility.
The second quoted authority is CCA at [61]. There this Court allowed an appeal against conviction for sexual offences committed against three boys, who were friends of the son of the appellant. The Court found that the evidence of one of the boys was not admissible in the trial of the other two. Kourakis CJ, with whose reasons Anderson J agreed, made the following statement upon which the appellant relies:
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
However, at [76]-[77], in a passage reproduced by the trial Judge in this matter, the Chief Justice spoke more generally about the modes of reasoning comprehended in s 34P of the Evidence Act 1929 (SA). As to that used by the trial Judge here – improbability reasoning – his Honour said it could arise from a large range of circumstances. The improbability of complainants independently fabricating similar accounts was one example.

In R v M, BJ (2011) 110 SASR 1 at [32] I pointed out that similarity in account is not confined to a study of the very sexual acts alleged. It also comprehends the broader circumstances in which the conduct occurs; there, the family setting. Here, an important similarity is that the allegations were made by sisters of a similar age to whom the appellant had extensive access as a trusted family member, he being asked to take on extra duties towards the girls because of their parents’ work commitments. The nature of that access was an important matter and both complainants gave broadly similar evidence about it. Against those features the precise nature of the offending was of less significance. Added to that was the “garage incident” about which both gave evidence, both referring to the striking detail of the appellant claiming to have been checking L’s teeth. The evidence of both witnesses about this would have been admissible in any separate trial of the charges relating to L. If there were to be such a trial and D were to give evidence in it, then arguably the trier of fact would be entitled to know if D made similar allegations against the appellant.
In my view, seen as a whole, the allegations were similar enough to raise the improbability of both complainants giving an untruthful account of the appellant’s conduct.
The evidence of all three charges was clearly cross-admissible. Its probative value substantially outweighed any prejudicial effect it might have had: s 34P(2)(a) of the Evidence Act.
Ground 5 – directions on discreditable conduct evidence
It is convenient now to turn to ground 5, which asserts that the Judge “failed to properly identify the permissible and impermissible uses” of the discreditable conduct evidence.
The Judge addressed this issue in a global sense in the following paragraphs:
[37]Next I turn to the suggested purposes or relevance of the uncharged conduct. Put very broadly, it is said that it places the actual alleged offending in a proper factual setting. Expressing it in such a fashion is not adequate for this purpose, but the charged conduct did not happen in a vacuum; they were not isolated events. The more evidence there is of the interaction between the complainants and the accused the better opportunity I have to evaluate their evidence and determine to what extent, if at all, I am prepared to rely on it.
[38]As can be seen from the factual discussion below, the charged occasions do not represent the first occasion of alleged sexual contact between the complainants and the accused.
[39]The uncharged conduct goes to explain why no prompt complaint was made when the charged events occurred. The uncharged conduct shows that the conduct of the accused became commonplace for them and nothing out of the ordinary. They tend to explain how each came to submit to the sexual misconduct, including the charged events. The accused proved threats reinforced the need for silence on L’s part; she said she was scared. The uncharged conduct tends to explain why he expected or anticipated their silence in the face of what was occurring on the charged occasions. The uncharged acts explain the duration of the sexual events between the accused and L.
[40]The uncharged acts go to explain the dynamics of the relationship between the accused and D and L, particularly in the familial situation. They explain a lack of surprise on the charged occasions and tend to explain why each may not remember precise details of the charged offending (although the long delay in making any complaint also goes to explain this aspect).
[41]The uncharged acts go to explain why the accused felt emboldened to continue his sexual conduct, bearing in mind there was an ever-present risk of discovery for conduct in his own home or when others were present or nearby.
The appellant argues that some of these justifications were not relevant on the evidence. For instance, neither L nor D asserted that the repetitive nature of the abuse impacted on her failure to make a timely complaint; neither asserted that the appellant’s conduct became commonplace or unremarkable or that it desensitised them; neither complainant referred to the “dynamics of the relationship ... particularly in the familial situation” as being of significance. In relation to the suggestion that multiple occasions of offending might account for deficiency in the respective recollections of the charged occasions, it was put that the complainants purported to recall those occasions in some detail.
I consider this argument to proceed on an incorrect premise. Section 34R of the Evidence Act required the Judge to explain the purposes for which the discreditable conduct evidence might and might not be used. That section regulates the situation that obtains when a judge sits either with or without a jury. The ruling on cross-admissibility is usually given before the evidence is led. In those circumstances the uses identified will be provisional. The directions given to a jury will be given not later than in the summing up. It will be for the jury to determine which, if any, permissible uses are helpful to them.
Here, the Judge’s ruling was given in the course of his reasons for verdict; indeed early in those reasons. The purposes outlined by the Judge do not purport to rely on the evidence given by the victims. They are purposes which are generally relevant to the case. In my view it is not the point that the complainants might not have given evidence along the lines of the purposes identified by the Judge. These were uses which were properly available to the trier of fact as one making an assessment of a course of events which lasted some years and which was seen through the eyes of two complainants who were girls at the time.
I disagree that the uses identified lack responsiveness to the evidence and the issues. In my opinion each purpose nominated by the Judge was apposite. I do not agree with any suggestion that the Judge had to revisit those purposes at any stage to catalogue which he had found applicable and to what extent each had assisted his analysis.
I do not agree that there was any want of compliance with s 34R.
Ground 4
I set out this ground in full.
4.The Learned Trial Judge erred in his treatment of evidence that L and D had been shown pictures of naked woman by the appellant in that he:
4.1 Failed to identify, adequately or at all, the permissible and impermissible uses of that evidence generally and in relation to each complainant’s account;
4.2 Failed to identify the use which he made of that evidence.
The evidence that the accused showed D, L and the appellant’s son, DR, a pencil drawing of a naked woman which he had sketched, came only from D. She said there were two occasions where this occurred and both were at his home. The first was in the “TV room”. D described the sketch as detailed. It showed “a naked woman sitting with her legs bent and spread apart revealing her vagina, pubic hair in detail with the vaginal lips open and oval shapes in the middle”. He showed the three children saying, “look at this beautiful woman”. He seemed proud and happy with his work. There was another similar occasion which occurred when the children were sitting at the dining room table of the appellant’s home.
The Judge noted the prosecution position with respect of these drawings: that it demonstrated how the appellant attempted to desensitise the children about sexual matters: [34]. He dealt with the evidence as discreditable conduct. Having ruled that the uncharged acts were admissible and the evidence of both complainants was cross-admissible, the Judge ruled that the naked drawing evidence was also admissible. He said its probative value substantially outweighed its prejudicial effect: [47].
Later in his reasons, when discussing D’s evidence, the Judge described this evidence in detail: [102]. He noted D said it occurred after the Flinders Ranges trip which was said to be the last time the appellant abused D.
When the Judge summarised the evidence of the appellant’s children he recounted that each said they never saw any such pictures: [138], [148]. He made no further mention of the topic.
The appellant contends that in relation to this evidence the Judge failed to identify the permissible and impermissible uses of it, and failed to say what use he made of it.
It is hard to be certain whether or not the Judge believed D’s evidence on this topic. Although he found her to be creditable and in most instances reliable, her evidence was not supported by either of the other children said to be present. On the other hand, it is hardly something she would invent. L’s failure to recall anything of the pictures is not of significance and, bearing in mind the Judge’s rejection of DR’s evidence, his denials are immaterial.
The showing of such pictures did not amount to an offence and so its prejudicial effect was limited. From the structure of the Judge’s reasons it seems to me that he treated this topic in the same way as he treated the evidence of uncharged acts: that the more evidence of the interaction between the complainants and the appellant, the better the opportunity to evaluate their evidence: [37]. The description of the display of the pictures as “grooming” is unexceptional. It is not to the point that D said this occurred after the last instance of abuse of her. The abuse of L continued. If believed, the evidence had the capacity to provide an insight into the appellant’s way of interacting with the complainants and indeed with his son. It was capable of demonstrating that inappropriate interaction and intimacy with the complainants had become second nature to him.
The evidence did not call for a specific finding. It was but another facet of an apparently long, tawdry and degraded relationship which the appellant built up with his wife’s nieces. The warnings which the Judge gave himself about all the uncharged conduct were apt to cover it.
Ground 6 – forensic disadvantage
This ground is a complaint that the Judge failed to “have any or adequate regard to what he found to be forensic disadvantage to the appellant” when considering counts 2 and 3.
In terms of the principle the appellant referred to Douglass v The Queen (2012) 86 ALJR 1086. As already adverted to, there it was acknowledged that the leading cases on the obligation of a judge sitting without a jury to give reasons – Fleming v The Queen (1998) 197 CLR 250 and AK v Western Australia (2008) 232 CLR 438 – were decided in the context of statutory provisions requiring reasons.
In Fleming the relevant statute provided that if an Act or law required a warning to be given to a jury, a judge sitting alone was to take it into account. Because the victim was young, emotionally unstable and infatuated with the appellant, a warning was required: [36]. The Judge failed to refer to the warning in his reasons for verdicts. That amounted to an error of law. The proviso was not applied.
Section 34CB of the Evidence Act abolishes the Longman warning but requires the judge to warn a jury to take account of the nature of the forensic disadvantage to the defendant where that disadvantage is found to be significant. The explanation must not take the form of a warning: s 34CB(3).
Here the Judge referred to that provision and to the leading case about it, R v Cassebohm (2011) 109 SASR 465, 469-476. He quoted at length from it and referred to certain paragraphs in the more recent authority of R v Maiolo (No 2) (2013) 117 SASR 1. His Honour said he had taken into account the sorts of forensic disadvantage referred to in those cases “when scrutinising the evidence”: [49]. He then addressed the particular challenges to the appellant in this case at some length: [50]. The Judge found that the appellant suffered “a significant forensic disadvantage” by reason of the delay.
Therefore, this is far from being a case like Fleming where the Judge simply failed to address the issue. On the contrary, to quote the High Court in Fleming, “it is a case where the judgment shows expressly that the warning was taken into account”: [37].
As I understand the argument Mr Handshin put, there was a requirement that the Judge go further and demonstrate at what point and how the warning was applied. None of the authorities referred to by him, as I read them, require that further step.
Counsel also argued that nowhere in the reasons did the Judge refer to the appellant’s diagnosis of dementia, said to be a “further and significant” aspect of the disadvantage to the appellant. The Judge referred to that diagnosis early in his reasons when describing the history of the proceedings. But more relevantly, in the course of addressing the particular difficulties of the defence in this case, the Judge said: [50].
I infer that the accused has had difficulty challenging and responding to allegations about events that occurred so long ago.
I read that as a direct reference to the appellant’s diminished mental abilities.
I find that this ground lacks substance.
Ground 7 – Availability of findings
Permission to appeal is sought in relation to this ground which, unlike grounds 1 to 6, was not the subject of a grant of permission to appeal by a single judge.
Here, the appellant argues that on the whole of the evidence it was not open to the Judge to find proved the objective elements of counts 2 and 3. He relies on the same analysis of the evidence which underpins his arguments in support of ground 1.
I have treated ground 7 as requiring an approach comparable to that necessitated where it is said that a verdict is unreasonable or cannot be supported having regard to the evidence: s 353 Criminal Law Consolidation Act 1935 (SA), and the decisions in M v The Queen (1994) 181 CLR 487 and The Queen v Nguyen (2010) 242 CLR 491. In essence, that approach is to ask whether, on the whole of the evidence, it was open to the Judge to find the accused person guilty.
My examination of the evidence leads me to the same conclusions as the trial Judge. Acknowledging that I do not enjoy the advantages of the trial Judge, my reading of the transcript leads me to the view that the prosecution case was powerful and that the two complainants were extremely persuasive. That there are inconsistencies between their accounts and as against the evidence of other witnesses as to daily routines and the several trips away is explicable on the basis of the lapse of time, the commonplace nature of many of the events, and by reason of the repeated nature of the offending leading to a situation that few specific incidents stood out.
In my view the suggestion of collusion was easily put to one side. By the time they gave their statements to police and gave evidence, L and D were mature women. Moreover, the content of their evidence speaks against collusion. It is clear that L was, superficially at least, a largely compliant participant in the abuse on her and was made to feel special by the appellant; whereas D was more resistant. As the Judge said, L appeared to lack “confidence, guile, or sophistication”. Once that possibility was put aside there was substantial support for the claims of each victim. Not only was the garage incident telling – where each claimed that the appellant excused his compromising position by reference to checking L’s teeth – but the sheer improbability of two sisters in the same household making parallel accusations of this nature against their trusted uncle unless they were true was all but determinative of guilt.
For these reasons I consider the findings made by the Judge were well open to him. I do not consider this ground to be reasonably arguable and so I would not grant permission to appeal.
Consideration of the proviso
It remains to consider what flows from what I have found to be deficiencies in the reasons for verdicts. Failure to give adequate reasons for decision is an error of law. That means that the appeal must be allowed unless the Court is of the view that there is no substantial miscarriage of justice: s 353(1) Criminal Law Consolidation Act.
In AK the High Court upheld an appeal against the decision of the Western Australian Court of Appeal to apply the proviso. As mentioned, that decision was by majority comprising Gummow and Hayne JJ, together with Heydon J. In the judgment of Gummow and Hayne JJ at [55] two reasons are given for that decision. They are:
[55]In every case it will be necessary to consider the application of the proviso (and here s 30(4)) taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal. In the present case there were two features of the error identified as occurring at trial which are important in deciding whether the Court of Appeal could conclude “that no substantial miscarriage of justice has occurred”. First, s 120(2) of the Criminal Procedure Act required the reasons to articulate the connection identified between the relevant legal principle (in this case, proof beyond reasonable doubt) and the relevant findings of fact. Secondly, the particular failure that was identified related to the central issue in the appellant's trial on the counts of indecent dealing and was constituted by the complete failure to articulate any of the reasoning by which the trial judge reached the ultimate conclusion that the appellant was guilty of each of those charges.
[56]Complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act with respect to the central issue in the appellant’s trial was a substantial miscarriage of justice. It was a substantial miscarriage because the Criminal Procedure Act required that the trial of the appellant yield a reasoned decision that met the criteria stated in the statute. This trial did not, and it did not in respect of the central issue that was tried.
[footnote omitted]
Heydon J’s reasoning included this statement:
[112]… the absence of the factual findings in relation to the reasoning which led to the verdict made it hard to assess whether those aspects of the evidence underlying that reasoning rendered the conviction just.
The dissenting Justices, Gleeson CJ and Kiefel J, would have upheld the application of the proviso by the Western Australia Court of Appeal. I set out a short excerpt from their Honours’ reasons:
[27]… Here, the direct testimony of the complainant was supported by circumstantial evidence. There was no conflict of evidence between the complainant and some other witness. An evaluation of the complainant’s uncontradicted testimony, supported as it is by undisputed circumstantial evidence, was possible on the basis of the written record of the proceedings.
[28]The reasoning of the majority of the Court of Appeal appears to us to be well-founded and the conclusion correct.
Neither of the two factors referred to by the majority apply here. Although the Judge’s failure amounts to an error of law on the basis of the common law, it is not in disobedience of any statute. Section 7 of the Juries Act 1927 (SA) which provides for trial by judge alone does not contain a provision requiring reasons. Second, and more importantly, in this case I have found that the Judge articulated substantial reasons for his decision, including critical credibility findings about the two complainants and the two defence witnesses. He also articulated important reasons for appropriate caution. The acquittal on count 1 demonstrates the care with which he approached his deliberations. Critically, his Honour dealt with the principal argument of defence counsel, that there was evidence of collusion between the two complainants. Defence counsel was effectively driven to put that argument in order to confront the powerful evidence about the garage incident, given by each of D and L. The rejection of that argument and the finding that D and L were honest witnesses left the prosecution case a very strong one.

In my view the proviso should be applied. The failures identified are not of such a calibre as to undermine the ultimate conclusions reached by the Judge. They amount to arguments about some matters of detail in a case dominated by matters of detail about events reviewed through the prism of many years. Moreover, the inconsistencies relied on before the Judge are referred to at some length in his reasons. It is not as if they were overlooked. I am satisfied that there has been no substantial miscarriage of justice.
Conclusion
I have found that the complaints encompassed in grounds 2 to 6 have not been made good.
In relation to ground 7, I would refuse the application for permission to appeal.
In respect of ground 1, a complaint that the reasons given are inadequate, I have found that in some, fairly minor, respects the reasons were not adequate. This constitutes an error of law. However, I have determined that it is appropriate to apply the proviso, finding that no substantial miscarriage of justice occurred.
Consequently, the orders I would make are:
1.The application for permission to appeal on ground 7 is refused.
2.The appeal is dismissed.
PARKER J. I agree with the reasons of Lovell J and the orders he proposes.
LOVELL J.
I have had the advantage of reading the draft reasons of Vanstone J. I agree that grounds 2-6 should be dismissed and for the reasons she has expressed. Regrettably I am unable to agree with Vanstone J as to the disposition of ground 1. In my opinion ground 1 should be allowed. My reasons follow.
Ground 1
The accused elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA).Whilst the Juries Act is silent about any requirement for the contents of the reasons for judgment there can be no doubt that a failure to give reasons is an error of law.
The requirement for a judge in South Australia hearing a criminal trial without a jury to give reasons was recently discussed in Douglass v R.[1] The Court noted that it was common ground on that appeal that a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principle of law applied by the judge and the main factual findings on which the judge relied.[2] The decision and reasoning of Doyle CJ in R v Keyte[3] on this point was cited with approval.
[1] (2012) 290 ALR 699; [2012] HCA 34.
[2] Ibid [8], [14].
[3] (2000) 78 SASR 68; See also Heydon J in AK v Western Australia (2008) 232 CLR 438, [107].
In R v Keyte[4] Doyle CJ (with whom Wick and Williams JJ agreed) noted that although the Juries Act itself was silent on the requirement of a judge to provide reasons (as opposed to NSW), s 7(4) of the Juries Act makes the decision of a judge the same as a verdict of a jury. This was a significant change to the means of determining guilt for offences tried on Information. The Chief Justice identified three main reasons why a trial judge needed to provide detailed reasons for judgment. First, if reasons are not given the remedy of appeal is significantly restricted. Second, the giving of reasons is an established incident of the judicial process. Third, there is community interest in the due administration of criminal justice; the public is entitled to know, as a matter of public accountability, how and why the Court made its decision.[5]
[4] (2000) 78 SASR 68.
[5] Ibid [41]-[43].
The Chief Justice was not prescriptive as to the extent of the obligation to give reasons; however he stated that guidance was to be found in the following remarks.
Moffitt JA in Pettitt v Dunkley[6] where he said:
The observations of Jordan CJ recognize that an obligation, concerning the giving of reasons, lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court. The necessity referred to is, of course, of particular significance in a trial at first instance, when mixed questions of fact and law are involved and an appeal on a question of law only is given. It is important to observe, however, that the judicial obligation to give reasons in an appropriate case is directed to facilitating the exercise of a right of appeal.
[6] [1971] 1 NSWLR 376, 388.
Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd[7] who noted;
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.
[7] (1987) 10 NSWLR 247, 259 (Kirby P).
McHugh JA in Soulemezis where he held:[8]
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons...But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given...the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.
(Citations Omitted)
[8] Ibid 280 (McHugh JA).
The ability of the losing party to properly exercise his or her right of appeal is fundamental to the requirement to give reasons. A wider rationale, as stated by French CJ and Kiefel J in Wainhohu v New South Wales, can be derived from the nature of the judicial function.[9] The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland. As French CJ and Kiefel J stated:[10]
Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding “which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning.”[11] Heydon J in AK v Western Australia[12] described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as “well-established”. His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:[13]
First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.
[9] Wainohu v New South Wales (2011) 243 CLR 181, 214 (French CJ and Kiefel J).
[10] Ibid.
[11] (1995) 184 CLR 348 at 394.
[12] (2008) 232 CLR 438.
[13] (2008) 232 CLR 438 at 470, citing Gleeson, "Judicial Accountability", (1995) 2 The Judicial Review 117, 122.
In AK v Western Australia[14] the High Court considered the obligations on a trial judge when giving reasons for a verdict in a judge alone trial pursuant to s 120(2) of the Criminal Procedure Act 2004 (WA).
[14] (2008) 232 CLR 438.
Gleeson CJ and Kiefel J observed:[15]
…All the members of the Court of Appeal agreed that the trial judge did not state his reasons for rejecting the appellant's arguments on identification. That he considered such arguments, and that he presented counsel, for comment, with substantial reasons why they may not be accepted, appears from the record of his exchanges with counsel in the course of address. However, such exchanges do not form part of a statement of the reasons for decision, and, in his stated reasons, the judge simply did not address the arguments of counsel at any level either of specificity or generality. He may well have thought that it was a fairly hopeless point, but it was seriously put and was not entirely lacking in substance. It was not sufficient to point out its weaknesses in the course of address; it had to be dealt with (although not necessarily at great length) in the reasons for decision. There being a question of identification raised, the judge was obliged to say why, and how, he resolved it in favour of the prosecution.
[15] Ibid [16] (Gleeson CJ & Kiefel J).
Gummow and Hayne JJ observed:[16]
…The principles of law that are relevant will be identified by reference to the issues in the case. Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of “the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached”.
(Citations omitted) (Emphasis added)
[16] Ibid [44], [48] (Gummow & Hayne JJ).
Heydon J summarised the obligation of the trial judge as follows:[17]
… The failure was almost as complete a failure as could be imagined, for apart from stating that the complainant was “generally a thoughtful and truthful witness”, noting the absence of prompt complaint, recording his conclusion that the events she described took place, and recording that the appellant was responsible for them, he said nothing more about any findings of fact he relied on. The appellant submitted correctly that the obligation created by s 120(2) is not “satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict”. It is clear from the trial judge's interventions in argument that he was attracted towards a particular reasoning process; the problem is that he did not state it in his judgment. In the circumstances it is not necessary to elaborate on the various ways in which the trial judge might have fulfilled the s 120(2) obligation, beyond the following. Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
(Citations omitted) (Emphasis added)
[17] Ibid [85] (Heydon J).
The Court in AK V Western Australia[18] was dealing with s 120 (2) of the Criminal Procedure Act 2004 (WA). Whilst there is no statutory equivalent in South Australia, the Court of Criminal Appeal in R v Cotton[19] Gray J (Kourakis CJ and Stanley J agreeing) accepted that the principles were applicable to cases in South Australia.[20]
[18] Ibid.
[19] [2015] SASCFC 17.
[20] Ibid [40].
Although the remarks of the judges in AK v Western Australia[21] differ to a limited extent, there is a common position (by majority). That is a judge is required to not only state the principles of law to be applied and the facts found, but also state the reasoning process linking them and justifying the findings of fact and ultimately the verdict that is reached.[22] Such a minimum requirement is necessary, as discussed by Doyle CJ in Keyte,[23] to enable an appellate court to discharge its function.
[21] (2008) 232 CLR 438.
[22] Ibid [44], [48] (Gummow & Hayne JJ); [85] (Heydon J) as in footnotes 11 and 12 above.
[23] (2000) 78 SASR 68.
There is no assumption that 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.[24] The matters on which reasons are required to be given, and the depth of those reasons, will vary depending on the issues and evidence in the case. Further, the reasons for the verdict must be read as a whole.[25]
[24] Ibid 79.
[25] R v CH [2016] SASCFC 112.
It is always important to bear in mind 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.
Discussion
The appellant submitted that the Judge erred in failing to deal with a number of factual matters in his reasons. The defence case was:
-that the complainants’ evidence (L and D) was wrong on the extent of the opportunities the accused had to commit the offences;
-that there were inconsistencies between the evidence of L and that of D which affected the reliability and credibility of their evidence;
-that there were internal inconsistencies within their evidence which affected their reliability and credibility;
-that there was evidence of collusion between L and D, and;
-that there were inconsistencies between the evidence of L and that of D with the other prosecution witnesses (RE, JE and RE).
The appellant submitted that the Judge had failed to deal with those matters in his reasons. This, it was submitted, led to the conclusion that there was failure to adequately expose his reasoning when reaching his verdicts.
Further, the appellant alleged that the Judge had failed to adequately explain how he had taken into account the “forensic disadvantage” suffered by the appellant. Other deficiencies were alleged and are dealt with by Vanstone J under the other grounds of appeal.
Counsel for the respondent on appeal conceded that the Judge had not dealt with the main arguments of the defence as submitted by the appellant. The respondent accepted that there was a failure to give reasons which “would be expected of a judge giving reasons in a trial by judge alone.”
Despite the concessions the respondent maintained that in all of the circumstances the Judge’s reasons were “adequate”.
In my opinion the Judge has failed to adequately deal with the matters raised by defence counsel at trial. The inconsistencies between the evidence of both L and D, and the internal inconsistencies in their evidence, were not adequately dealt with. These were substantial errors in relation to the issues to be decided and important given the contested issues at trial.
Application of the Proviso
As a failure to give adequate reasons is an error of law the appeal must be allowed unless the court considers that no substantial miscarriage of justice has actually occurred.[26]
[26] s 353(1) Criminal Law Consolidation Act 1935 (SA).
The application of s 353(1) CLCA is two staged. The first stage requires the Court to allow the appeal if it thinks any one of the grounds stated are established. The second stage allows the Court, notwithstanding it being of the opinion that the point raised may be decided in favour of the appellant, to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The task is an objective one to be undertaken on the whole of the record of the trial (including the verdict, paying proper regard to the issues that the jury were directed to determine in order to arrive at a conclusion of guilt). It is to be performed bearing in mind the “natural limitations” that exist in any appellate court proceeding wholly or substantially on the record and applying the criminal standard of proof.[27]
[27] Cooper v The Queen (2012) 87 ALJR 32, 36 (French CJ, Hayne, Crennan and Kiefel JJ); Weiss v The Queen (2005) 224 CLR 300, 315 (the Court); R v Turvey (2017) 127 SASR 425, 441-442 (Hinton J).
As a matter of principle some errors, but not all, are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court’s view as to the guilt of the accused. [28]
[28] AK v Western Australia (2008) 232 CLR 438, 447-448 (Gleeson CJ and Kiefel J).
Any determination of whether no substantial miscarriage of justice has actually occurred is to be undertaken having regard to the nature of the irregularity that this Court must necessarily have first determined occurred in the course of stage one, considered within the context of the particular circumstances and issues at trial. The question to be determined here is whether the errors identified – namely the failure to give adequate reasons – has frustrated the capacity of this court to discharge its appellate function.[29]
[29] Ibid 452, 456 (Gummow and Hayne JJ); see also Reeves v The Queen (2013) 88 ALJR 215, 224-225 (French CJ, Crennan, Bell and Keane JJ).
The inadequacies of the Judge’s reasons are discussed in the judgment of Vanstone J.
The credibility and reliability of L and D were contested issues at trial. Counsel at trial submitted that the question of “collusion” between L and D was the major issue at trial. The judge dealt with that aspect appropriately. However counsel, quite apart from his submissions to the trial judge on collusion, submitted that the evidence of L and D was contradictory, inconsistent with each other and inconsistent with other witnesses. The Judge did not deal with those issues.
The treatment of the evidence of L and D was an important element of any reasoning towards guilt particularly given the finding that Count 1 was not proved. The Judge in his reasons did not disclose how he dealt with those issues. As submitted by the appellant, the failure of the Judge to deal with those matters has left his findings, and the reasons for his findings, inscrutable. In my view the resolution of the issues identified by the appellant required the Judge to expose the reasoning process justifying his resolution of those matters and therefore ultimately his verdicts. As submitted by the appellant, the question is not whether the findings and conclusions were open to the Judge. Here the relevant error, which is the premise for consideration of the proviso, is the failure to provide a reasoned decision on major issues in dispute. In my view it cannot be said that there was no substantial miscarriage of justice. I would allow the appeal.
Orders
I would allow the appeal on ground 1.
I would dismiss grounds 2-6. I would refuse permission to appeal on ground 7.
The findings that the objective elements had been proved on Counts 2 and 3 should be set aside. The matter should be remitted to the District Court for hearing on Counts 2 and 3.