R v Sweeny - [2008] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SWEENY
[2008] SASC 300
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
5 November 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
Appeal against conviction following a trial in the District Court by a judge alone – whether the trial Judge, having identified relevant principles of law, failed to disclose in her reasons how those principles were applied to the facts – whether the trial Judge failed to identify or articulate any basis for the cross-admissibility of evidence of uncharged acts given by the two complainants – whether the verdicts were unsafe and unsatisfactory on the basis that there were material inconsistencies in the evidence of the complainants - Counsel for the Crown accepted that the trial Judge had failed to make any finding as to when the conduct the subject of one count occurred, and accepted that the conviction on that count should be set aside – whether the Judge made inconsistent findings.
Held: appeal allowed - convictions set aside - retrial ordered - reasons of the trial Judge were materially inadequate - reasons do not allow the conclusion that proper regard was had to relevant evidence, particular risks, weaknesses and risks arising from material inconsistencies, the treatment of uncharged acts, and the issue of cross-admissibility between the evidence of the complainants – there was a real risk that the Judge inappropriately gave weight to evidence of uncharged acts of the two complainants when dealing with particular counts.
Criminal Law Consolidation Act 1935 (SA) s 49 and s 56, referred to.
Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; R v Green (2000) 78 SASR 463; R v R [2008] SASC 35; Pfennig v The Queen (1995) 182 CLR 461; Phillips (2006) 225 CLR 303; HML v R [2008] HCA 16; Director of Public Prosecutions (UK) v Boardman [1975] AC 421; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Harriman v The Queen (1989) 167 CLR 590; Hoch v The Queen (1988) 165 CLR 292; Director of Public Prosecutions (UK) v Kilbourne [1973] AC 729; Director of Public Prosecutions (UK) v P [1991] 2 AC 447; S v Queen (1989) 178 CLR 166; Johnson v Miller (1937) 59 CLR 467; Van der Meer v The Queen (1988) 62 ALJR 656, considered.

R v SWEENY
[2008] SASC 300
Court of Criminal Appeal: Gray, Sulan and David JJ
THE COURT

This is an appeal against conviction following a trial in the District Court by a judge alone.
This appeal raises for consideration the adequacy of the reasons of a Judge presiding over a criminal trial without a jury. A primary complaint advanced on appeal was that the trial Judge, having identified relevant principles of law, failed to disclose in her reasons how those principles were applied to the facts. A further complaint related to the suggested omission of the Judge to identify or articulate any basis for the cross-admissibility of evidence of uncharged acts given by the two complainants. A number of other complaints were advanced, including an attack on the Judge’s findings with respect to credibility and reliability.
The Trial
The Charges
The defendant and appellant, Gavin Paul Sweeny, was initially charged with seven counts of indecent assault – five against one complainant, LC, and two against another complainant, TLG. The defendant was further charged with one count of unlawful sexual intercourse with respect to LC.[1] One of the counts of indecent assault – the first count – against LC was not pursued and was dismissed.
[1] Relevantly, the Information was in the following terms:
“Second Count
Statement of Offence
Indecent Assault. [(Section 56 of the Criminal Law Consolidation Act, 1935).]
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted [LC].
Third Count
Statement of Offence
Indecent Assault. [(Section 56 of the Criminal Law Consolidation Act, 1935).]
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted [TLG].
Fourth Count
Statement of Offence
Indecent Assault. [(Section 56 of the Criminal Law Consolidation Act, 1935).]
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted [TLG].
Fifth Count
Statement of Offence
Indecent Assault. [(Section 56 of the Criminal Law Consolidation Act, 1935).]
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, indecently assaulted [LC].
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 9th day of April 1982 at Smithfield, had vaginal sexual intercourse with [LC], a person under the age of 12 years.
Seventh Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gavin Paul Sweeny between the 5th day of February 1981 and the 30th day of April 1982 at Smithfield, indecently assaulted [LC].
Eighth Count
Statement of Offence
Indecent Assault. [(Section 56 of the Criminal Law Consolidation Act, 1935).]
Particulars of Offence
Gavin Paul Sweeny between the 9th day of April 1982 and the 31st day of December 1984 at Hillcrest, indecently assaulted [LC].”
The Prosecution Case
It was the prosecution case that in the early 1980s the defendant sexually assaulted the two complainants. LC was born on 14 August 1970 and TLG was born on 27 April 1969. At relevant times the age of the two complainants precluded consent being a relevant issue. Identity as such was not in question. The issue at trial was whether the acts complained of occurred at all.
For most of the relevant time, the defendant was in a relationship with LC’s mother. The prosecution alleged that the defendant took the opportunity, when looking after LC in the absence of LC’s mother, to engage in sexual acts with LC. This was said to have taken place on a number of occasions, giving rise to five counts on the Information – counts 2, 5, 6, 7, 8 – as well as other uncharged acts.
TLG was a neighbour and friend of LC, and visited LC’s home. On occasions, she too was looked after by the defendant in the absence of LC’s mother. The defendant supervised the two girls when LC’s mother was working night shifts as a nurse. It was the prosecution case that the defendant committed sexual acts against TLG. This conduct gave rise to the two counts concerning TLG (counts 3 and 4). Uncharged sexual conduct was alleged with respect to TLG.
The prosecution case included evidence from the two complainants, LC’s mother, LC’s father, LC’s younger sister, LC’s aunt and TLG’s husband. Evidence was also called of the police interview of the defendant.
The Defence Case
The defendant gave evidence in his defence, denying any sexual contact with either complainant. This was consistent with his record of interview. His parents had both died several years before the trial. Had they been alive, it might be expected that they could, as discussed below, have given relevant evidence at the trial. The incidents the subject of the charged and uncharged acts occurred more than 25 years ago.
The defence case was that, at the very least, the prosecution had not discharged the burden of proof with respect to each of the seven counts. It was said that there were significant inconsistencies between the evidence of LC and TLG, such that a court could not properly reach the conclusion beyond reasonable doubt of his guilt with respect to any count. It was further argued that LC’s evidence lacked credibility and reliability for a number of other reasons. Emphasis was placed on LC’s failure to draw to the attention of the police or the prosecution the nature of her ongoing contact with the defendant following the cessation of the alleged sexual abuse. It was further the defence case that the very lengthy delay in the proceedings of more than 25 years, the lengthy delay in the making of any complaint by either complainant, together with the death of the defendant’s parents, called for close analysis of the evidence. Such analysis, it was said, would lead to the conclusion that there was a reasonable doubt with respect to each count.
The Trial Judge’s Decision
Following a trial by Judge alone in the District Court, the defendant was convicted on the six counts of indecent assault, and on the one count of unlawful sexual intercourse. It is relevant to record that the Judge rejected, as unreliable, much of the evidence of LC’s father, mother, and sister. The Judge also rejected, as unreliable, significant aspects of the evidence of LC and TLG, although ultimately, on the critical issues, the Judge accepted their evidence. Further, in respect of significant aspects of the defendant’s evidence, the Judge found his evidence to be both credible and reliable, although the Judge rejected his denials of alleged criminal conduct. A trial judge is entitled to reject part of a witness’ evidence and accept part of their evidence. However, in the course of the appeal, there was a challenge to a number of the Judge’s conclusions in this respect.
Ultimately, the trial Judge, notwithstanding adverse comments about major aspects of the evidence of both complainants, concluded that she was satisfied beyond reasonable doubt that their accounts of sexual abuse were credible and reliable, leading her to the conclusion that she was satisfied beyond reasonable doubt of the guilt of the accused with respect to each charge.
The Appeal – General Observations
The Adequacy of Reasons
Underlying the submissions of the defendant was the suggestion that the trial Judge’s reasons were inadequate. It was said that the Judge failed to make all relevant findings of fact, failed to identify the evidence relevant to particular counts, failed to explain why material inconsistencies did not give rise to a reasonable hypothesis consistent with innocence, and failed to address what was said to be material conduct of LC, for some years, following the sexual misconduct that was alleged to be inconsistent with her complaints. Finally it was said that the Judge, although identifying principles of law generally in unexceptional terms, failed, through her reasons, to demonstrate how the principles were applied to the facts.
In Fleming,[2] the High Court discussed the requirements for reasons in a judge alone trial under New South Wales legislation, observing that a judgment should state the relevant principles of law and state how they should be applied to the case. Although this State’s legislation does not parallel that under consideration in Fleming, the observations of the High Court are apposite.
[2] Fleming v The Queen (1998) 197 CLR 250 at [30].
It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.[3]
[3] R v Keyte (2000) 78 SASR 68 at [7]; R v Green (2000) 78 SASR 463; R v R,R & R,LJ [2008] SASC 35 at [21] (Gray J), [42] (Sulan J).
We have reached the conclusion that the reasons of the trial Judge are materially inadequate. The reasons do not allow the conclusion that proper regard was had to relevant evidence, particular risks, weaknesses and risks arising from material inconsistencies, the treatment of uncharged acts, and the issue of cross-admissibility between the evidence of the complainants. The reasons do not explain with adequate particularity how the above issues were addressed. Later in these reasons these issues are discussed in more detail.
Admissibility
As earlier observed, the charges related to alleged offending against two complainants. Further, as is evident from the opening and the course of the trial, the prosecution relied on uncharged acts said to have been committed against both complainants, as being generally admissible in respect of all charges. It should be pointed out that no objection was taken to there being a joint trial of all charges with respect to both complainants. Proceeding in this way might be expected in the ordinary course to give rise to arguments about the admissibility of evidence, and in particular the cross-admissibility of evidence of the two complainants, including their evidence as to uncharged acts.
The Judge, in her reasons, noted that the admissibility of evidence of the charged and uncharged acts was not the subject of any objection:
The complainants each gave evidence of sexual acts perpetrated by the accused other than those which are the subject of the charges being tried. There was no issue raised at trial regarding the relevance or the admissibility of the evidence which has the potential, if accepted, to establish that the accused had a sexual interest in the complainants and had acted on it on occasions other than those charged. (HML v R, unreported judgment, High Court, 24 April 2008 [2008] HCA 16, at [336] per Heydon J)
Insofar as LC alleged uncharged conduct, it is evident that in the circumstances of the present trial the evidence was admissible with respect to the charges of sexual misconduct against LC.[4] No complaint was made on appeal about the admissibility of this evidence with respect to the counts concerning LC.
[4] HML v R [2008] HCA 16.
The evidence on counts 2 and 3 from the complainants was that the incident occurred in the presence of both complainants and the accused. It was accepted in this circumstance that this evidence was admissible. No issue of cross-admissibility arose, as it was said that both complainants were present with the accused. However, as will be discussed later, there were material inconsistencies in the evidence that in the ordinary course would call for careful analysis.
The evidence of TLG was to the effect that the conduct the subject of count 4 took place while the defendant was engaged in sexual intercourse with LC. In this circumstance it was accepted that this evidence was admissible.
It was a different question as to whether the evidence of the uncharged acts as against LC was cross-admissible with respect to the counts concerning TLG. There was also the parallel question as to whether the uncharged acts alleged by TLG were cross-admissible with respect to the counts concerning LC. There appears to have been no discussion of this topic at trial. However, on appeal, the prosecution did not suggest that the defendant was precluded from arguing that the evidence of uncharged acts was cross-admissible. To the contrary, as will be discussed later, the prosecution conceded that the Judge appeared not to have addressed this topic, and it was accepted that she should have done so.
The trial Judge, in her reasons, identified a number of relevant legal principles, and in particular the basis on which the uncharged acts against a complainant could be admissible in respect of the counts concerning that particular complainant. However, the Judge did not, in regard to the uncharged acts, identify them with any particularity or explain why, in the particular circumstances, they were relevant and probative so as to satisfy the Pfennig[5] test, as explained in Phillips.[6] The Judge did not address at all the cross-admissibility of the uncharged acts concerning each complainant as against the counts concerning the other complainant.
[5] Pfennig v The Queen (1995) 182 CLR 461.
[6] Phillips (2006) 225 CLR 303.
The issues of the admissibility of evidence of uncharged acts, and of the cross-admissibility of evidence of different complainants, have been the subject of considerable judicial comment over the last three decades, at the levels of both the High Court and the intermediate courts. The debate over the effect of the High Court’s authority in Pfennig,[7] as explained in Phillips,[8] continues.[9] The recent High Court decision in HML[10] does not appear to have left a clear majority view on a number of the questions.
[7]    Pfennig v The Queen (1995) 182 CLR 461.
[8]    Phillips (2006) 225 CLR 303.
[9]    A detailed discussion of the difficult issues canvassed in Phillips (2006) 225 CLR 303 and the earlier High Court authorities is to be found in David Hamer, “Similar Fact Reasoning in Phillips: Artificial, Disjointed and Pernicious” (2007) 30(3) UNSW Law Journal 609; and Jeremy Gans, “Similar Facts After Phillips” (2006) 30 Criminal Law Journal 224.
[10] HML v R [2008] HCA 16.
In the present case, as earlier observed, it is critical to address the issue of cross-admissibility of the evidence of LC and TLG, particularly in regard to uncharged acts. As Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ observed in Phillips:[11]
Despite that passage, and despite the reformulation of the tests stated in Pfennig v The Queen in R v O'Keefe, neither of those cases departed from a fundamental aspect of the requirements for admissibility: the need for similar fact evidence to possess some particular probative quality. The “admission of similar fact evidence ... is exceptional and requires a strong degree of probative force”.[12] It must have “a really material bearing on the issues to be decided”.[13] It is only admissible where its probative force “clearly transcends its merely prejudicial effect”.[14] “[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind”.[15] The criterion of admissibility for similar fact evidence is “the strength of its probative force”.[16] It is necessary to find “a sufficient nexus” between the primary evidence on a particular charge and the similar fact evidence.[17] The probative force must be “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused”.[18] Admissible similar fact evidence must have “some specific connection with or relation to the issues for decision in the subject case”.[19] As explained in Pfennig v The Queen:[20]
[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.
[11] Phillips (2006) 225 CLR 303 at [54]-[58].
[12] Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce, approved in Markby v The Queen (1978) 140 CLR 108 at 117 per Gibbs A-CJ, Stephen, Jacobs and Aickin JJ concurring; Perry v The Queen (1982) 150 CLR 580 at 586, 589 per Gibbs CJ; Sutton v The Queen (1984) 152 CLR 528 at 533 per Gibbs CJ; Pfennig v The Queen (1995) 182 CLR 461 at 481 per Mason CJ, Deane and Dawson JJ.
[13] Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest, approved in Markby v The Queen (1978) 140 CLR 108 at 117 per Gibbs A-CJ, Stephen, Jacobs and Aickin JJ concurring.
[14] Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Sutton v The Queen (1984) 152 CLR 528 at 548-549 per Brennan J; at 560 per Deane J; at 565 per Dawson J; Harriman v The Queen (1989) 167 CLR 590 at 633 per McHugh J; Pfennig v The Queen (1995) 182 CLR 461 at 481 per Mason CJ, Deane and Dawson JJ.
[15] Sutton v The Queen (1984) 152 CLR 528 at 534 per Gibbs CJ.
[16] Hoch v The Queen (1988) 165 CLR 292 at 294-295 per Mason CJ, Wilson and Gaudron JJ.
[17] Hoch v The Queen (1988) 165 CLR 292 at 301 per Brennan and Dawson JJ, approving words of Lord Hailsham of St Marylebone LC in Director of Public Prosecutions (UK) v Kilbourne [1973] AC 729 at 749.
[18] Director of Public Prosecutions(UK) v P [1991] 2 AC 447 at 460 per Lord Mackay of Clashfern LC.
[19] Pfennig v The Queen (1995) 182 CLR 461 at 483 per Mason CJ, Deane and Dawson JJ.
[20] Pfennig v The Queen (1995) 182 CLR 461 at 485 per Mason CJ, Deane and Dawson JJ.

In the present case, the evidence from the complainants of uncharged acts was, in the main, non-specific and given in broad generality. In these circumstances a clear basis for cross-admissibility needed to be demonstrated and articulated. Counsel for the prosecution accepted that no such basis had been identified by the trial Judge. As earlier observed, the Judge noted the danger in convicting the defendant in the event that there was a lack of corroboration. There was a real risk that the Judge gave weight to evidence in the uncharged acts of the two complainants when dealing with particular counts. It is possible that the Judge assumed cross-admissibility, however the reasons of the Judge do not identify the approach taken by the Judge on this question.
Conduct Following Sexual Abuse
It was submitted by the defendant that the trial Judge’s treatment of conduct by LC after the cessation of the alleged sexual misconduct was flawed. It was further submitted that there were material inconsistencies in the evidence of the two complainants and that, in all the circumstances, all verdicts were unsafe and should be set aside.
As earlier observed, it was the defence case that LC had engaged in a manner, after the cessation of the alleged sexual conduct, that was inconsistent with her being the subject of any sexual abuse. LC had not made any disclosure of this later conduct to the police or the prosecution, and the matters were exposed during cross-examination.
It is to be borne in mind that the trial Judge, at one point in her reasons, accepted the defendant’s account of his contact with LC after 14 August 1984. Elsewhere in the reasons there are observations of the Judge that suggest that, at least in some respects, his account was not accepted. As the Judge observed, this evidence “must reflect negatively on the reliability of LC’s evidence”.
The substance of the defence case was that LC had sought to maintain and had maintained contact, on her initiative, with the defendant, over a period of about six years. That other contact was summarised by the trial Judge as follows:
There was clearly contact between LC and the accused after her 14th birthday in August 1984 and before she made a complaint in 1989 to her aunt, APC, about the conduct of the accused and confronted the accused himself with the allegations.
There was further contact initiated by LC with the accused between 1989 and 1992, after the complaint was made. LC said she had telephoned the accused at his parent’s house to arrange a time to collect any family photographs the accused had. Although LC placed the time of her visit to the accused’s parent’s house at about one year after the contact with her father and the police, from the evidence it must have been sometime in 1989, when LC was nineteen. LC said she went to the house on her own and collected the photographs. She had also told the accused that she wanted $2000 in compensation for what he had done to her. LC said the accused gave her an envelope with $2000 in $50 notes. His mother had given her a note to sign giving an assurance that on receipt of the money, LC would not go to the police. LC refused to sign it.
Putting to one side the occasions on which it was suggested to her she had seen the accused which LC did not remember at all, LC did accept in cross-examination that there were times that she had or possibly may have initiated contact with the accused, while not recalling the particular occasion: visiting him with a friend at student accommodation in McKinnon Parade when she was at school; asking him to collect her from the bus stop when he had a leadlight shop at Hampstead Gardens; contacting him when she was living with her grandparents at Blackwood to borrow his dog; taking friends to his house when she was fifteen years old, she said, to ask him to obtain drugs and alcohol for them; driving to the Riverland with the accused when she was about fifteen; possibly sharing accommodation with the accused at Windsor Gardens for a short time when she was sixteen or seventeen; visiting the accused at a house at Trinity Gardens; staying with the accused at Rosewater after contacting him through the Education Department in 1992; the accused taking her to an appointment with an Ear, Nose and Throat specialist at North Adelaide in 1992.
The incident concerning the payment of money was further developed by the trial Judge in her reasons when she discussed the evidence of the defendant:
After giving the photographs to LC, the accused said LC told him she wanted $12,000 to stop her going to the police and reporting the accused for sexually abusing her. He regarded the demand as ludicrous and swore at her. The exchange became angry and heated. He said that his father was in the lounge room and his mother was also at home. The accused said his mother came outside and he again swore at LC and she left the property. He said he did not call the police: he was not afraid of what she was saying. She had never mentioned sexual abuse previously.
The following day, the accused said LC came back to his parents’ home. His mother came and told him that LC was at the door wanting to see him. He went to the door and asked LC what she wanted. She started to cry and she eventually came inside. He took her to the lounge to sit down. He asked what was the matter. She told him she did not want to go through this any more, she wanted to stop this whole thing. She was very upset. The accused understood that she was talking about the accusations she had made the previous day. She told him that her parents and family were forcing her to do it. She wanted to change her life which she said was a total mess. The accused said he gave her a cup of tea and she calmed down, although not completely.
The accused spoke to his mother and told her that he would like to help LC in some way because he felt sorry for her. His mother advised against going too far. The accused said he told his mother, “I wonder if some money would help her, assist her, in changing her life and getting herself back on track”. He had a figure of about $2,000 in mind. The accused said he told LC, “L, basically, I am very concerned about your situation, upset about it, and I’d like to try and help you in some way. I will try and help you get your life back on track”. He asked her, “If I gave you some money, would that be of any assistance to you”? She said, “Well, it would be of help”. He suggested the sum of about $2,000. He told her, “L, I’m prepared to help you and I will give you this $2,000 in the expectation that, you know, you use it to put your life back on track”.
The accused said he made arrangements to give LC the money the next evening. She came back the next evening on her own. Her manner was very friendly. She came just inside the house and he gave her the money - $2,000 in cash.
As he gave her the money, he said, “L, I sincerely hope that you use this wisely and that you use it to benefit your life”. She took the money. After she had the taken it, the accused said that LC started abusing him, accusing him of lying and of doing things to her sister, VJC. She told him she never wanted to see him again. It was a tirade in which she accused him of sexually abusing her. He felt confused, angry, perplexed and shocked and he told her to leave.
LC, in the period leading up to the request for money, had an involvement with alcohol and drugs, including amphetamines. These circumstances provide an explanation as to why, under pressure from her family, she might make allegations that were false in circumstances where the defendant had been in contact with her in the absence of other adult supervision. On the other hand, the ongoing contact between the defendant and LC could be said to require some sort of explanation, could be said to be an unhealthy and inappropriate relationship, and could be said to be consistent with her account of sexual abuse by the accused when she was a young girl.
One of the difficulties that has arisen is that the evidence of LC’s conduct after the cessation of the alleged abuse was not to be considered in isolation. It was important to also have regard to the failure of LC to make any reference to this ongoing contact to either the police or prosecution, as well as the material inconsistencies earlier referred to. Further, the approach of the trial Judge, in our view, had a tendency to deflect attention from the question of whether, having regard to all these matters, the prosecution has not satisfied the burden of proof. The issue of the credibility and reliability of LC permeated each of the counts alleging conduct against LC, as well as the use of any of that evidence in respect of the charges regarding TLG.
Material Inconsistency – Counts 2 and 3
Counts 2 and 3 arose from the same incident, some time shortly after the death of a friend of the defendant in February 1981. It was alleged that the defendant conducted a séance in an attempt to reach his friend. His friend was an uncle of LC, and LC was apparently attracted by the process. The séance was said to have taken place at the home of LC, and in the presence of TLG. Following the séance, it was said that a kissing game was initiated by the defendant with each of the complainants. Thus far, the evidence was consistent from both complainants. The defendant denied any involvement at all in a kissing game.
TLG said that the game was to see who could kiss the longest. It was part of the game to kiss for as long as they could hold their breath. She described the kissing as being open mouthed, but otherwise a long kissing episode. TLG described the defendant kissing LC in the same way as he kissed TLG. LC’s description was very different. She spoke of the defendant being violent and passionate toward her in a way that he had not been toward TLG. She pushed him away, breaking off from the kissing very quickly.
The Judge’s conclusion in regards to Counts 2 and 3 was in the following terms:
I am satisfied on the evidence beyond reasonable doubt that the accused was sexually attracted to both LC and TLG. Having regard to the evidence of both TLG and LC, to the fact that there has been no contact between them since 1982, and to the close correspondence of the account each gave in relation to the kissing competition or game instigated by the accused, I am satisfied beyond reasonable doubt that the accused suggested a kissing competition to the girls and that the accused kissed both LC and TLG in a sexual and indecent manner on a Saturday night at the Smithfield house in the period alleged in the information.
It is to be observed that the Judge failed to address and resolve the inconsistency in the two accounts. It is a different matter to engage in a kissing game simply as a game, as opposed to engaging in a kissing game in a sexual or indecent manner. The Judge made no finding as to whether the defendant acted in a violent and passionate manner toward LC. The Judge made no finding as to which of the complainants’ accounts was to be preferred.
Material Inconsistency – Count 4
From the outset of the trial it was evident that there would be a material inconsistency with regard to Count 4, alleging indecent assault against TLG. The prosecution opened that TLG would say that sexual acts took place between the defendant, LC, and TLG, in LC’s mother’s bedroom at the Smithfield premises. TLG, it was said, was staying overnight, awoke, went to the open door of the mother’s bedroom, and saw the defendant having sexual intercourse with LC. TLG then “got into the bed with the other two, and she will tell you that the [defendant] touched her vagina with his fingers”. The prosecutor then said that LC would not give any evidence about an occasion involving TLG in LC’s mother’s bed.
The evidence of both complainants, when led, contained this material inconsistency. In particular, LC did not deny that such an incident occurred, but claimed that she had no memory of such an incident. The evidence of TLG contained a further inconsistency, in that where the case was opened on the basis that the defendant had touched her vagina, her evidence was that the defendant had rubbed “[her] vagina, and inserted his finger into [her] vagina”. When discussing Count 4, the Judge made no reference to the inconsistency – that is, LC having no memory of such an incident.
In reaching her conclusion on Count 4, the Judge observed:
Keeping in mind the differing accounts of TLG and LC relating to sexual activity taking place in [LC’s mother’s] bed, I nevertheless accept the evidence of TLG relating to count 4 on the information. In my opinion, there may well have been incidents which one or other of the two girls no longer clearly remember, accounting for discrepancies in the evidence they gave. I am satisfied beyond reasonable doubt that the accused kissed TLG and inserted his finger into her vagina in the way she described.
This inconsistency called for close analysis. It might be expected that a 12 year old, confronted with sexual activity with a mature man and another 12 year old, would have some recall of the occasion. On TLG’s account, the defendant was engaging in sexual intercourse with LC, and at the same time indecently dealing with TLG. The Judge failed to explain why she apparently considered this stark inconsistency to be of no consequence. To dismiss the inconsistency on the basis that it may well have been an incident that LC did not clearly remember is inadequate. The evidence of LC did not support TLG’s account. This left TLG’s evidence without corroboration. Her evidence had to be considered on her account alone. As the Judge observed, she was conscious that “it would be dangerous to find the accused guilty on the evidence of either of the complainants alone”. The evidence is of such a nature that the Judge needed to consider whether there was a reasonable hypothesis consistent with innocence, or, to put it another way, whether the inconsistency was of such a nature that one could not reach the conclusion, absent some proper explanation, that the charge had been proved beyond reasonable doubt.
Counts 5 and 6 – A Concession
Counsel for the Crown accepted that the trial Judge had failed to make any finding as to when the conduct the subject of Count 5 occurred. In these circumstances it was accepted that the conviction on that count should be set aside. Count 5 was said to have taken place on the same occasion and as a precursor to Count 6. However, it was submitted that the conviction on Count 6 should not be set aside as there was sufficient information to allow that conviction to be sustained.
Counts 5 and 6 were counts concerning LC that formed part of the same episode. It was alleged by LC that the defendant kissed her vagina, and then proceeded to penile-vaginal penetration. If Count 5 is to be set aside on the basis that the Judge “found it proved beyond reasonable doubt that there was a particular occasion on which this occurred”, it is difficult to understand why that would not impact on Count 6. Counsel for the prosecution conceded that, read in isolation, the reasons of the trial Judge in regard to Count 6 appeared to contain a similar error. Those reasons are as follows:
I accept LC’s evidence that on at least one occasion after she woke to find the accused under the quilt kissing her vagina, the accused had forced her legs apart and I am satisfied beyond reasonable doubt that the accused inserted his erect penis into her vagina about an inch or so past the labia majora, ejaculating over her vagina and stomach.
It was submitted that an earlier paragraph of the reasons provided the context for the finding in regard to Count 6. The earlier paragraph was in the following terms:
LC said that after the accused had begun the conduct of kissing her vagina on Saturday nights, he had used his penis in the course of sexual activity with her. She said that on the first occasion, she was in her bed. She had woken to find him under the quilt kissing her vagina. She described how he had with some force brought himself over the top of her and forced her legs apart, while she tried to resist with her two feet on his chest. She said on the first occasion his erect penis entered her vagina about an inch or so past the outer lips. She said that it felt horrible and she was very, very scared. She told him to stop and get off her, very firmly but in a very quiet voice: she was horrified at the thought of her sister hearing her and waking up and being traumatised. LC said that the accused ejaculated over her vagina and stomach.
The difficulty confronting this submission, as both Counts 5 and 6 relate to the same episode, and the conduct in Count 5 being an immediate precursor to the conduct in Count 6, is that if Count 5 is to be set aside it follows that so should Count 6. In other words, the failure to make the relevant finding with respect to Count 5 must carry through to Count 6, or at the very least must give rise to uncertainty about the occasion sufficient to lead to a reasonable hypothesis consistent with innocence. Was there in fact one episode, or was the complainant speaking of different episodes?
The need for the act or acts the subject of counts to be identified was the subject of observation by the High Court in S,[21] where Toohey J observed:
Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of the failure to do so. The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count. The trial miscarried for that reason.
Gaudron and McHugh JJ discussed the matter as follows:[22]
The trial of the applicant was fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. The rule as to the admissibility of evidence of offences, not being the offences charged, is clear. Such evidence, whether identified as similar fact evidence or by some other description, is only admissible if it has probative value such that it raises the objective improbability of some event having occurred other than as alleged by the prosecution. See Hoch v The Queen.[23] It is unnecessary to consider whether, on this basis, evidence of other acts of carnal knowledge might have been admissible at the trial. At the very least, as Dixon J observed in Johnson v Miller,[24] it would have been necessary for it to have been made clear what acts were said to be the offences charged and what acts were said to be similar facts. Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.
The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant's guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty “would plainly have been the same”. See Van der Meer v The Queen,[25] per Deane J. That being so, it cannot be said that there was no substantial miscarriage of justice.
[21] S v Queen (1989) 178 CLR 166 at 282.
[22] S v Queen (1989) 168 CLR 266 at 287-288.
[23] Hoch v The Queen (1988) 165 CLR 292 at 294.
[24] Johnson v Miller (1937) 59 CLR 467 at 490.
[25] Van der Meer v The Queen (1988) 62 ALJR 656 at 668.

For these reasons the concession made in regard to Count 5 was correct. The reasons for that concession carry through to Count 6. It follows that the conviction on Count 6 should also be set aside.
Count 7 – Reliability and Credibility
When addressing Count 7, which alleged an indecent assault of LC, the trial Judge described LC’s evidence as follows:
On another occasion, LC recalled going into her mother’s bed in the Smithfield house in the night and waking up in her mother’s bed the following morning. She said her mother was not there. When she woke up, she saw the accused sitting next to her on the bed, naked, with an erect penis. She said that he told her he wanted her to kiss his penis and he told her that it tasted like chocolate. She said she did not want to do it and told him so. The accused grabbed her by the back of her head and hair and pushed her head on to his penis. She said when her lips touched his penis just for a moment, the accused ejaculated. She immediately vomited all over his body. She said she was distraught and crying. She felt ill and found it very distressing.
The Judge’s conclusion with respect to this count was in the following terms:
I accept LC’s account and I am satisfied beyond reasonable doubt that on one occasion at the Smithfield house the accused told LC he wanted her to kiss his penis, telling her that it tasted like chocolate, and that he forced her mouth onto his naked erect penis. When her lips touched his penis, the accused ejaculated and she vomited all over his body.
Earlier in her reasons, the trial Judge had regard to the dangers of acting on uncorroborated evidence in the following terms:
There is no rule of law or practice requiring a warning that it is unsafe to convict the accused on the uncorroborated evidence of an alleged victim of a sexual offence. Nevertheless, I have scrutinised the evidence of both TLG and LC with great care. I am conscious that it would be dangerous to find the accused guilty on the evidence of either of the complainants alone.
This paragraph, and in particular the last sentence, would suggest that the trial Judge had regard to both the evidence of LC and TLG when arriving at her verdict on Count 7. When considering, in particular, the reliability of LC’s evidence, the Judge said:
I have given very careful consideration to the question of reliability of the evidence of LC, especially relating to events which are not supported by the evidence of TLG. After scrutinising her evidence very carefully, having regard to the way LC came across in the witness box, and taking into account other evidence given at trial, I am satisfied beyond reasonable doubt of the evidence LC gave both in relation to each of the charged offences involving LC and in relation to the uncharged acts of the accused.
Count 7 related to an incident that was not directly supported by the evidence of TLG. The trial Judge in the above paragraph referred to “taking into account other evidence given at trial”. However, the Judge does not identify what that other evidence is. This is one example of the inadequacy of reasons that preclude this Court from properly exercising its appellate function. What is that other evidence? Is it a reference to the Judge’s conclusion that the defendant was sexually attracted to both girls? Is there some question of cross-admissibility arising? Without knowing the specific evidence being referred to, it is not possible to understand the Judge’s conclusions.
Count 8 – Inconsistent Findings
Count 8 related to an incident separate and distinct from the others. This incident was described by the trial Judge in the following terms:
On one occasion at the Hillcrest house, LC said she had been in the lounge room in the evening with her mother and sister. She recalled that she was unwell and so her mother had made up a bed for her on the couch with her pillow and quilt and she was watching television. She said the accused had come over to visit her mother and after talking to her mother for a while, her mother had gone to bed. After her mother went to bed, the accused came over to her on the couch and she told him not to come near her or she would yell out to her mother. Nevertheless, the accused went under the quilt, pulled her underwear to the side and kissed her vagina violently, holding her legs. She did not call out because she was scared. She thought her mother would walk in any moment. One part of her wanted her mother to come in and another part was very scared. She thought she was about twelve years old at the time. LC turned twelve on 14 August 1982.
The Judge’s conclusions in regard to this incident were as follows:
I accept the evidence of LC that on an occasion the accused had been visiting the Hillcrest house, between 9 April 1982 and 31 December 1984, and after her mother had gone to bed, the accused came over to where LC was lying on a couch, and I am satisfied beyond reasonable doubt that the accused went under the quilt, pulled her underwear to the side and kissed her vagina violently, holding her legs.
It is to be observed that the trial Judge made no finding as to when in the period from 9 April 1982 to 31 December 1984 the offence occurred. The problem that has arisen relates to a finding by the Judge that she accepted the accused’s account of his conduct with LC after her fourteenth birthday. That birthday occurred on 14 August 1984.
Counsel for the prosecution submitted that the trial Judge made a slip, and was treating LC’s birthday as having occurred, in effect, in December 1984. The difficulty confronting this submission is that there is a direct inconsistency in the Judge’s findings, and surmising that the Judge made a slip does not resolve this difficulty. In any event, elsewhere in the Judge’s reasons specific reference is made to events after 14 August 1980 as being after LC’s birthday. We consider it unlikely that the Judge made a slip.
Conclusion
We have reached the conclusion that each of the convictions should be set aside and a retrial ordered.
In our view, the evidence of uncharged acts against one complainant were not shown to be admissible with respect to the counts against the other complainant. The general test for cross-admissibility was not addressed by the trial Judge, and requisite findings were not made to allow the conclusion that the evidence was cross-admissible. As earlier discussed, the Judge’s reasons, in a number of material respects, did not explain how the trial Judge applied those principles to the particular circumstances of the present proceedings. This inadequacy in the reasons affects a consideration of all charges. The Judge’s failure to address material inconsistencies earlier discussed had an impact on credibility and reliability that affected all counts. In addition, other concerns relating to individual counts, in themselves, provide good reason to allow this appeal. The cumulative effect of these matters allows the conclusion that the appeal should be allowed.
Having regard to the foregoing, we order that the convictions recorded by the trial Judge be set aside, and the Information be remitted to the District Court for retrial before a differently constituted Court.