R v Y, K - [2015] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v Y, K
[2015] SASCFC 94
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Parker)
29 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
This is an appeal against conviction on two counts of persistent sexual exploitation of a child. The offending was alleged to have been committed at numerous locations over a period between 1978 and 1990. The complainants, R and Z, were the step-daughters of the accused. The appellant was found not guilty on the first count, but guilty of the second count.
There were three grounds of appeal, permission to appeal also being sought in relation to ground one. It was argued that the trial Judge: erred by failing to direct herself as to potential unreliability due to therapy including hypnosis; failed to provide adequate reasons to accept R's evidence beyond reasonable doubt; and acted upon matters not the subject of evidence when assessing a witness's testimony.
Permission to appeal on ground one refused. It was not reasonably arguable.
Although there was an error in reasoning with relation to ground three, the error made does not justify the appeal being allowed.
Held (Sulan J, Kourakis CJ and Parker J agreeing): Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
Bromley v The Queen (1986) 161 CLR 315; R v Jenkyns (1993) 71 A Crim R 1; R v Winner (1995) 79 A Crim R 528; R v Geesing (1984) 39 SASR 111; R v McFallon (1985) 2 NZLR 750; Strinic v Singh (2009) 74 NSWLR 419, discussed.
R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Petit v Dunkley (1971) 1 NSWLR 376; Papps v Police (2000) 77 SASR 210, considered.

R v Y, K
[2015] SASCFC 94
Court of Criminal Appeal: Kourakis CJ, Sulan and Parker JJ

KOURAKIS CJ: I would dismiss the appeal, for the reasons given by Sulan J.
SULAN J:             This is an appeal against conviction. The appellant and defendant was charged with two counts of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).[1] The first count alleged that between 1 January 1978 and 31 December 1988 at Mile End, Waterloo Corner and other places over a period of not less than three days, the defendant committed more than one act of sexual exploitation of a person referred to as Z, who was then under the age of 17 years. The second count alleged that between 1 January 1978 and 31 December 1990 at Waterloo Corner and other places over a period of not less than three days, the defendant committed more than one act of sexual exploitation of a person referred to as R, who was then under the age of 17 years by:
(a)     inserting his penis into her vagina on numerous occasions;
(b)    touching her on the breasts on numerous occasions;
(c)     inserting his finger into her vagina on numerous occasions;
(d)    kissing her on the bottom on numerous occasions;
(e)     rubbing his penis against her on numerous occasions;
(f)     causing her to touch him on the penis on numerous occasions; and
(g)     causing her to touch him on his bottom on numerous occasions.
[1]50—Persistent sexual exploitation of a child
The defendant was tried by a Judge without a jury. On 3 March 2015, the Judge found the defendant not guilty of the first count, but guilty of the second count.
The trial
The prosecution case
The defendant is the stepfather of the two complainants. R was born on 13 February 1973 and Z was born on 21 May 1974. After the defendant married the complainants’ mother, DY, the family lived at various locations, including Hughes Street, Mile End, and a property at Waterloo Corner. The offending occurred at Hughes Street, Waterloo Corner and other places. It occurred against the background of the defendant being a strict disciplinarian and imposing harsh punishments upon the two girls and their brother, S.
R gave evidence that her mother and the defendant were married when she was seven years of age. Prior to the marriage, the defendant resided with DY. R recalled an occasion when the defendant required she and Z to take off their clothes. The defendant made R bend over and place her hands behind her head and remain in that position for hours. If she moved, she was struck with a belt or stick. This punishment was known as ‘Wuthering Heights’. When her mother attempted to intervene, she was also struck by the defendant. Another form of punishment was to require R to stand naked with her arms in the air. This was known as “the Scarecrow’.
R gave evidence that, during the time they lived at Hughes Street, she, her sister and her brother were regularly punished. The form of punishment included being struck and having a stick inserted into her labia. She gave evidence that the defendant would spit on his hands and then rub her bottom and her labia.
When she was aged 12, the family moved to Waterloo Corner. R described occasions when the defendant required her to massage him. On a number of these occasions he had sexual intercourse with her. She described those occasions in detail. She gave evidence that this conduct stopped when she was about 15 years of age.
R gave evidence that the defendant frequently pressed himself against her whilst he was dressed in his underpants. He would hug her and, whilst doing so, touch her on the bottom and press his penis into her. He used simulated sex motions and she could feel his penis.
R described an incident of sexual touching connected with her ninth birthday when she attended a drive-in theatre with the defendant. She fell asleep and woke up when the defendant had his fingers inside her pants and inside her vagina (“the Star Trek incident”). There was another occasion when she and the defendant were travelling to White Cliffs in New South Wales when she was aged 12. She was asleep in the car and was awakened when she felt the defendant’s hands down her pants (“the White Cliffs incident”). He had one hand on the steering wheel and his other hand down her pants. Similar conduct occurred when they were parked at a petrol station at Yunta (“the Yunta incident”).
Z, who is the younger sister of R and is the complainant in respect of count 1, gave evidence. She gave evidence of various acts of violence and of inappropriate sexual conduct by the defendant towards her. It is not necessary to consider her evidence or deal with it in detail, as the Judge acquitted the defendant of count 1 and did not rely upon her evidence in finding that R was guilty of Count 2. As to Z’s evidence, the Judge concluded that she had doubts about Z’s credibility and reliability in respect of allegations of sexual assault upon her. The Judge was not satisfied beyond reasonable doubt that two or more instances of the particularised conduct occurred, notwithstanding that there was supporting evidence of a number of aspects of Z’s evidence by both R and S, and accordingly found the defendant not guilty.
When considering the charge against R, the Judge made the following observations:
In light of my inability to find the charge concerning sexual offending upon Z proved, I have not had regard to Z’s evidence about that topic to positively support the evidence of R. Whilst that evidence was cross admissible, I do not rely on it. I have had regard to Z’s evidence about the punishment described as ‘Wuthering Heights’ and ‘Scarecrow’ and in a general sense, evidence of bathing with KY but in view of my findings, do not otherwise rely on specific sexual conduct alleged by Z. I do not rely on similarities or improbability of account in respect of the evidence of Z.
It follows that Z’s evidence was of limited relevance to the Judge’s conclusions in respect of R’s evidence and the guilt of the defendant of count 2.
S is the brother of R and Z. He was born on 4 December 1975. He recalled R sitting on a stool in the bathroom at Hughes Street when the defendant was having a bath. He gave evidence of the defendant requiring him to stand on a stool when he was about four years of age, with a brown paper bag on his head and having to hold his arms vertically in the air.
S described the various forms of punishment, including having to bend over with his upper body horizontal and his hands clasped behind his head. He said that R and Z both suffered the same punishment. He said that the defendant would hit them with a stick if they cried or made a noise. He described other forms of punishment, including punishments with a stick or belt which was used to hit he and his sisters over their back or their legs. He described the punishment referred to as the “the Scarecrow”. It required R standing with her hands in the air above her shoulders and her body swinging from side to side. He gave evidence that if she put her arms down, the defendant would strike her on the back, legs or buttocks.
S gave evidence that, at times, R and Z were required to pull their pants down to bare their bottom. He also recalled being locked in the shed at Hughes Street. He gave evidence that on occasions, when the defendant was in the bath, Z or R were required to sit on his lap. His sisters were required to keep the defendant company whilst he was in the bath.
S described an occasion of seeing his sisters naked at Waterloo Corner. His sisters appeared to have been crying. The defendant was present in the room. He said that he noticed that his sisters had reached puberty. He said they were standing with their arms stretched out vertically in a line with their shoulders. He said that this occurred on other occasions.
The Judge concluded that S was a credible and reliable witness.
Mr Hazledine gave evidence supporting the evidence of R. He is a pastor at the Adelaide Revival Fellowship, which is a Christian Pentecostal Church. KY and DY became members of the church in about 1979. He gave evidence that the family attended church services on Sundays and during the week. Mr Hazledine knew the children R, Z and S. He gave evidence that, in around 2009, he told the defendant that he had been given information by Z that allegations had been made to the police about sexual offending involving R. The defendant told Mr Hazledine that he was aware that there was a complaint to the police. He told Mr Hazledine that there had been sexual touching between himself and R. Mr Hazledine gave the following evidence:
QDid he say anything about whether there was sexual touching between himself and R.
AHe admitted that there had been sexual touching with R.
QAre you able to say now what words were used.
AI find it hard to say the exact words, but words that he admitted that there had been touching, as I put it in my report, that it was not of full nature of sexual contact but, rather, that she was the one that was the instigator and came to him.
QWhen you say ‘not of the full nature of sexual conduct’, what are you trying to convey.
AI took from that that it indicated it did not include intercourse.
HER HONOUR
QAre you talking about penetration of the vagina with the penis.
AYes.
QThat’s what you took to be –
AThat’s correct, yes.
XN
QDid he say what type of sexual touching had taken place.
ANo, he did not.
QHow long did this conversation go on for.
AI would have talked to him for probably one hour. We talked about other issues but that was part of it.
HER HONOUR
QDid you ask or did he ever volunteer the details of what had occurred.
ANo.
QDid you ask him.
ANo, I did not.
In cross-examination, it was suggested to Mr Hazledine that the defendant did not admit sexually touching R. Mr Hazledine responded that the admission had been made.
The trial Judge accepted that Mr Hazledine was an excellent, careful and honest witness and that his evidence was credible and reliable. She concluded that the admission of sexual misconduct had been established. I will refer in more detail to her Honour’s findings later in these reasons.
The defence case
The defence case was that the charge against R had not been proved beyond reasonable doubt. The defendant did not give evidence and he did not call evidence. In cross-examination, it was suggested to R that none of the incidents of sexual misconduct described by her took place.
R was cross-examined about therapy she had sought and received. R was asked whether she had therapy or treatment to assist her to improve her memory about the sexual allegations. She agreed that she had had some counselling. She was asked whether the counselling she had received was to try and help her to remember events better. The Judge asked the following questions:
QTo try and help you remember events better.
ANo but I had cognitive therapy, behaviour therapy at the beginning to – to take me to a place – to take me to a place of an event.
QTo go back in time to remember.
AYes, it wasn’t to retrieve a memory, it was to take me to a place of trauma. It wasn’t to retrieve memory.
QIn other words – you stop me if I am going too far both of you – in other words, for you to go back and revisit through memory what happened.
AYes, it was a type of hypnosis, yes.
Counsel then asked:
QCan you say how long that treatment was.
AI had – I started with three sessions and the sessions started after I was diagnosed with post-traumatic stress disorder so the therapy was because I had post-traumatic stress disorder, it wasn’t to retrieve memory, it was to deal with my post‑traumatic stress disorder.
...
QHow long did you have that for.
AI had a succession of three to four sessions within six weeks through Relationships Australia.
QAnd they are the ones that diagnosed you with the PTSD.
AYes, the psychologist diagnosed me.
She gave evidence that counselling with the psychologist and the diagnosis of post-traumatic stress disorder occurred between 1995 and 1996.
At trial, counsel for the defendant submitted that her evidence supported his submission that R’s evidence was unreliable and should not be accepted.
The trial Judge’s reasons
Before dealing with the issues raised on the appeal, it is necessary to refer to the trial Judge’s reasons. The trial Judge concluded that R was a credible and reliable witness about the important aspects of her evidence. She reasoned:
R was a good witness. Having heard and observed her, I find her to be truthful. There were criticisms, fairly made, of her evidence and some inconsistency of account. I have had careful regard to those matters. R’s evidence is supported by evidence from S as to bathing with KY at Mile End and his observation of R and Z required to stand naked with their arms in the air at Waterloo Corner whilst KY watched or looked at them. R’s evidence is also supported by the admission made to Mr Hazledine. That admission was to the effect that the sexual touching did not include intercourse. I observe the common usage of ‘sexual intercourse’ has a narrower meaning than the Criminal Law Consolidation Act. R’s evidence was that complete penile penetration of the vaginal canal did not occur, rather that KY positioned his penis in her labia and that he was grinding her against his hips and she didn’t think he ejaculated. R also described digital penetration by KY. It may be that when speaking to Mr Hazledine, KY did not consider his actions to be sexual intercourse or that he was minimizing his actions. The reference to R being the ‘instigator’ is consistent with the remark being made by a sex offender; it is a self justifying remark about the conduct of a child. It is also a good indicator that Mr Hazledine did not invent the conversation.
I find, beyond reasonable doubt, that KY touched R to the labia/vaginal area during punishments; that he touched and penetrated her labia during baths at Hughes Street; that he touched and penetrated her vagina whilst at a Drive In and on a trip to White Cliffs; that he penetrated her vagina with his fingers whilst she was in bed at Waterloo Corner and that he penetrated her vagina with his penis at Waterloo Corner.
Not all of the acts of sexual exploitation alleged in Count 2 are referred to or proved in evidence. Particularly, there was no evidence of KY touching R on the breasts, causing her to touch him on the penis on numerous occasions or causing her to touch him on his bottom on numerous occasions. The other acts particularised as a), c), d) and e) were proved in the evidence. I do not think there is any significance in the absence of reference to or evidence of the acts particularised as b), f) and g).
There is no dispute that KY was, at the relevant times, an adult and that R was a child.
I am satisfied beyond reasonable doubt that KY committed more than one act of sexual exploitation against R and that these acts were committed over a period of not less than three days.
[References omitted.]
The appeal
There are three grounds of appeal.
Ground 1, for which permission to appeal is now sought, having been refused by a single Judge, is that the trial Judge erred in law in failing to give herself a general direction about the potential unreliability of R due to therapeutic treatment which included a type of hypnosis.
Ground 2 is that the trial Judge failed to provide adequate reasons to accept the evidence of R beyond reasonable doubt. I will deal with the particulars of that ground later in these reasons.
Ground 3 is that the trial Judge acted upon matters which were not the subject of evidence in assessing the evidence of Mr Hazledine. In short, it is alleged that the trial Judge reasoned that sex offenders operate to justify themselves by focussing on the conduct of the child, and that supported her conclusion that Mr Hazledine’s evidence was accurate and reliable. It is submitted that the trial Judge had regard to a fact which had not been established in evidence and was not a matter for which it was correct for the Judge to apply her own opinion.
Ground 1
Counsel for the defendant submitted that there was evidence that R had undertaken therapy and had been subject to hypnosis in order to improve her memory about sexual allegations. In those circumstances, it was submitted that, first, the prosecution should have led expert evidence to assist the Judge to evaluate R’s evidence. It was further submitted that, as a consequence of the potential unreliability of R’s evidence, the Judge should have warned herself that she should have regard to the fact that R had obtained psychological treatment, including hypnosis. In the circumstances the Judge should heed that warning when considering whether she could rely upon that evidence and be satisfied beyond reasonable doubt that the events described by R had occurred. Counsel submitted that the Judge should have given herself a warning in accordance with the decision in Bromley v The Queen.[2]
[2] (1986) 161 CLR 315.
When R was asked whether she had undertaken cognitive behavioural therapy to improve her memory about the allegations of sexual abuse, she denied that to have been the case.

Later, in cross-examination, counsel returned to the question of R having undertaken therapy. The following evidence was given by R:
Q[R], have you had therapy or treatment to aim to assist you to improve your memory about the sexual allegations.
AAgain I am finding it difficult to answer this question because –
HER HONOUR
QCan I just help you this way – maybe this might help.
AYeah, this is difficult.
QYou have had some counselling, is that right.
AI have had –
QYes or no, have you had counselling about these allegations.
AYes, yes.
QWhat Mr White is asking you about is not about all of the counselling issues but he’s asking you whether you have had counselling or therapy to try and improve your memory.
AYep.
QTo try and help you remember events better.
ANo but I had cognitive therapy, behaviour therapy at the beginning to – to take me to a place – to take me to a place of an event.
QTo go back in time to remember.
AYes, it wasn’t to retrieve my memory, it was to take me to a place of trauma. It wasn’t to retrieve memory.
QIn other words – you stop me if I am going too far both of you – in other words, for you to go back and revisit through memory what happened.
AYes, it was a type of hypnosis, yes.
HER HONOUR: Do you want to explore that? You can argue about it or whatever, I don’t know. I am not necessarily stopping that, I haven’t got a view about it yet.
XXN
QCan you say how long that treatment was.
AI had – I started with three session and the sessions started after I was diagnosed with post-traumatic stress disorder so the therapy was because I had post-traumatic stress disorder, it wasn’t to retrieve memory, it was to deal with my post‑traumatic stress disorder.
HER HONOUR
QI understand that.
HER HONOUR: Your question again, Mr White.
XXN
QHow long did you have that for.
AI had a succession of three to four sessions within six weeks through Relationships Australia.
QAnd they are the ones that diagnosed you with the PTSD.
AYes, the psychologist diagnosed me.
HER HONOUR
QAnd when was that, that you did this.
AThis was –
QWhat year.
AWhen?
QWhat year.
AOkay, 19 – between 1995 and 1996.
The trial Judge concluded that R’s evidence did not give rise to a concern that R was an unreliable witness. The Judge observed that R had stated that the therapy she received was not to retrieve memory. She further observed that claimants in sexual cases often have counselling from psychologists, psychiatrists, or other counsellors. The Judge concluded:
In my view this evidence did not demonstrate that R’s evidence was unreliable because of intervention of hypnosis or ‘memory retrieval’ due to counselling or other therapy. The question did not go beyond R’s denials. I do not think that R’s evidence should be subject to a general direction about unreliability because of the suggestion of hypnosis or other therapeutic interaction. In my view there is no evidence to support that contention.
Counsel referred to the decision of Cox J in The Queen v Geesing.[3] In that case, the police had arranged for a witness to see a hypnotist. The witness gave evidence that, during hypnosis, she recalled seeing a person who she then described. The witness gave evidence that, in respect of a number of observations of which she spoke in evidence, she had no independent recollection of those events, other than under hypnosis.
[3] (1984) 39 SASR 111.
Cox J, in considering whether the evidence of the witness was admissible, observed:[4]
Furthermore, the effect of hypnosis on the memory is not, in my view, a matter of common experience or common knowledge, and it would be wrong for a jury to attempt without expert assistance to interpret and evaluate evidence of this kind for themselves. I consider that Mrs. Smith’s evidence, standing alone, is inadmissible for this reason, regardless of the question whether it had any obvious connection with the events that are the subject of this trial. Whether evidence from a qualified psychiatrist or psychologist could provide adequate support for the introduction of the evidence is not a question that I have to decide.
[4] (1984) 39 SASR 111 at 113.
In R v Jenkyns,[5] the Crown sought to call evidence from a witness who had undergone hypnosis in order to enhance his memory of some of the events which he was to relate. Hunt CJ, at common law, was of the opinion that there was an onus upon the Crown to satisfy the Court, by expert evidence if necessary, that the evidence was reliable. He referred to a decision of the New Zealand Court of Appeal in R v McFallon,[6] which held that if hypnotically-induced evidence is admitted, the trial judge should warn the jury of the special need for caution before placing reliance upon it. The Court considered that the warning need not be in any particular terms, but it should adequately alert the jury to the dangers inherent in the use of hypnotism.
[5] (1993) 71 A Crim R 1.
[6] (1985) 2 NZLR 750.
This case is distinguishable, and the observations of Cox J are not applicable. The evidence in this case does not establish that the therapy undertaken by R was relevant to assist her to recall the events which were the subject of the charge. The evidence fell far short of establishing that the therapy undertaken by R in any way revived or assisted to revive her memory of the events. In my view, there was no requirement upon the trial Judge to give herself a warning. In any event, she was aware that R had received therapy. The Judge’s conclusion that it was unnecessary to give a general direction about unreliability was correct. I consider that this ground was not reasonably arguable. I refuse permission to appeal on Ground 1.
Ground 2
The second ground of appeal is that the trial Judge erred in law by failing to provide adequate reasons to accept the evidence of R beyond reasonable doubt. That ground is particularised generally as a failure by the Judge to properly assess the significance of the inconsistencies of R’s evidence affecting her credibility, with the consequence that the Judge was in error in relying upon R’s evidence as establishing the charge beyond reasonable doubt. There are specific complaints to which I shall refer later when dealing with the particulars of the ground of appeal.
Inadequate reasons
There is an obligation upon a trial judge to give adequate reasons.[7] A failure to give adequate reasons when required is, in itself, an error of law.[8]
[7] R v Keyte (2000) 78 SASR 68.
[8] R v Keyte (2000) 78 SASR 68; Pettit v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Papps v Police (2000) 77 SASR 210.
Whether reasons are adequate will depend on the circumstances of each case. What is required is that the reasons are sufficient to enable an appeal court to ascertain the reasoning upon which the decision is based, and there is sufficient explanation of the judge’s reasons so that the parties are able to understand the basis upon which the decision has been made. In R v Winner,[9] Kirby J observed that reasons must be adequate and appropriate to sustain the judge’s decision. Kirby J doubted the necessity for a judge to instruct himself or herself in the detail of what would be expected of a judge when summing up to a jury. It is not possible to articulate a test to determine whether or not reasons are adequate. What is required is that the reasons be sufficient and comprehensive enough for the parties and an appeal court to understand the basis upon which the trial judge arrived at his or her decision.
[9] (1995) 79 A Crim R 528 at 530-1.
Often it will not be possible for a judge to give detailed reasons for preferring the evidence of one witness to that of another. Judgments about the credibility of a witness’s testimony are often difficult to rationalise.
In Soulemezis v Dudley (Holdings) P/L, Mahoney JA observed:[10]
The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. ...
[10] (1987) 10 NSWLR 247 at 273-4.
McHugh JA said:[11]
... Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour” ... The position will usually be different if other evidence and probabilities are involved. A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding ...
If an obligation to give reasons for a decision exists, its discharge does not require lengthy or elaborate reasons ... But it is necessary for the essential ground or grounds upon which the decision rests should be articulated. ...
[Citations omitted. Emphasis in original.]
[11] (1987) 10 NSWLR 247 at 280.
I now turn to the particular complaints in this case. I make the general observation that this was not a case in which the Judge was required to assess the evidence of R against other evidence contradicting her evidence. Although it was put to R in cross-examination that her version of events was not true and that the alleged indecent acts did not occur, there was no evidence from the defence contradicting R’s evidence. The question for the trial Judge was whether she could be satisfied beyond reasonable doubt, upon the prosecution evidence, that the charge had been proved.
In order to be so satisfied, the Judge had to conclude that she was satisfied beyond reasonable doubt that R’s evidence was truthful and reliable. It is in that background that I now deal with the complaints that the Judge failed to provide adequate reasons to accept the evidence of R.
In considering the particularised complaints, it is necessary to repeat some of R’s evidence which refer to incidents earlier described at [5] to [16]. The specific particulars of complaint are as follows:
White Cliffs visit
R gave evidence that there was an occasion when she was travelling with the defendant to White Cliffs in New South Wales. This was one of a number of occasions when they travelled in the defendant’s car to White Cliffs. Her evidence was that she was asleep and was awakened with the defendant’s hand down her pants and his fingers in the area of her vagina. At the time, KY was driving. She gave evidence that, during the trip, the Yunta incident also occurred.
R was cross-examined about previous statements she had made about the occasion. She agreed that, in a statement made to police on 21 December 2004, she did not mention whether the car was moving or not. She also agreed that she had only told the police about the Yunta incident some time after she had given a statement about the White Cliffs incident.
In cross-examination, she agreed that there were some matters about the White Cliffs incident upon which she had given evidence that had not been in her original statements to the police.
The trial Judge referred to those matters. She said:
During cross examination, R agreed that in her statement of 21 December 2004, she did not mention whether the car was moving or not. R agreed that her statement of 2 June 2013 was the first time she mentioned that the sexual touching occurred in South Australia. R also agreed that on the same day (2 June 2013) she telephoned Detective Batty about the White Cliffs incident, after she had completed the statement, and told him of the touching at Yunta when the car was stationary. She agreed that memory came to her after completing her statement that day.
In my view the inconsistencies in respect of the trip to White Cliffs and the location where R was allegedly touched are not of particular significance to her credibility or reliability. The absence of this detail from earlier statements does not give rise to doubt as to her credibility.
The trial Judge addressed the arguments of counsel and considered the inconsistencies. There is little more that the Judge could have said in arriving at her conclusion.
Memory of the first punishment
The second complaint relates to R’s evidence about her memory of the first punishment. In her evidence-in-chief, R described the first incident of punishment. It occurred at Hughes Street, prior to the defendant and DY marrying. She gave evidence that she and her sister, Z, were ordered to stand naked on stools and to jump up and down on the stool. S was also required to do that. She recalled S falling off and crying. When DY objected, she was told to “back off or shut up”. When the children fell off the stools, they were hit with a strap by the defendant.
R gave evidence that S was the first to fall off and be belted. R gave evidence that S was standing on the floor when S received a belting. R did not recall falling off the stool. When she spoke to police on 21 December 2004, R told them that she recalled falling off the stool and falling to the ground. When giving evidence, she was not clear about that part of the incident. She accepted that her memory was not entirely clear or accurate.
The trial Judge recounted R’s evidence and concluded that R’s explanations for her imprecise memory did not indicate a lack of credibility or reliability. The Judge observed that it was unsurprising that some details of such an incident may not be recalled. Counsel submitted that the Judge failed to explain why she found the failure to recall some details of the incident unsurprising. In my view, the Judge was simply making an observation which is self-evident. Any witness who is examined in detail and required to recall events of a decade ago will not have perfect recollection.
The Judge considered the evidence, considered the criticisms of counsel and gave reasons why she did not regard those criticisms as affecting the credibility or reliability of R. In my opinion, her reasons were sufficient.
Waterloo Corner incident
The third complaint relates to the incident at Waterloo Corner, where R described the defendant coming into her bedroom and touching her on the vagina. In her evidence-in-chief, R had stated that the defendant came into her room at night, placed his hand under her clothing and touched her on the vagina. She said that she had been wearing a nightie and knickers.
In cross-examination, R agreed that she had told the police that she was wearing a nightie, but no knickers at the time of the incident. R explained that her statement to police was an error because, upon reflection, she now recalled that she had been wearing knickers.
The Judge referred to the evidence and concluded that the difference of recollection was not significant. She observed that the alleged event occurred many years ago.
Counsel for the defendant submitted that it was a significant matter, as the change of recollection occurred between her statement on 24 May 2013 and the trial in September 2014, so that the observation of the Judge that the alleged event occurred many years ago was not relevant to the issue of R’s recall.
In my view, the Judge gave adequate consideration to counsel’s criticism of R’s evidence. Having regard to the extensive evidence that R gave about numerous incidents of sexual misconduct, I agree with the Judge’s observation that the difference in recollection is not significant.
Further criticism relates to R’s evidence that when the family was living at Waterloo Corner the defendant would come into her bedroom at night when her mother was away doing signwriting training, and he would put his hands down her pants and touch her vaginal area.
At the trial, it was an agreed fact that DY had attended signwriting classes prior to the family moving from their address at Hughes Street to Waterloo Corner. The trial Judge concluded:
The defence contends that R and Z are both incorrect when they assert that DY attended signwriting classes when they lived at Waterloo Corner. It is significant that both R and Z are incorrect about this and that there is no other alleged absence of DY in the evenings when the family lived at Waterloo corner.
The trial Judge also considered evidence given by R that, within a week of her ninth birthday, whilst at the drive-in theatre with the defendant, she awoke to find that the defendant’s hand was in her knickers and his fingers were inside her labia majora. The movie to which they had gone was Star Trek. In cross‑examination, R agreed that the film Star Trek was not showing at the drive-in theatre on that occasion. However, she maintained that her memory of attending the drive-in theatre was that she was turning nine at the time.
The trial Judge dealt with the sign-writing and the Star Trek movie evidence. She said:
The contradiction of R’s evidence about the timing of the signwriting classes and the Star Trek movie require that I give her evidence about alleged sexual assaults on those occasions very careful consideration. The events occurred many years ago. Having regard to the totality of R’s evidence and other evidence supporting her allegations of sexual assaults I rely on her accounts of sexual touching on those occasions notwithstanding that her description of the occasions, by reference to other events, is incorrect. She was, generally speaking a credible, believable witness. Her unreliability about these occasions does not cause me to doubt the alleged sexual abuse. I also note that was not mentioned in her 2004 declaration. A witness may be mistaken about identifying an occasion especially when many years prior but not mistaken about conduct which occurred.
Counsel for the defendant submitted that the trial Judge did not deal with the fact that the matters to which the Judge referred are matters where the defendant could categorically prove that the allegation could not have occurred when R claims. It was also submitted that R adjusted her evidence in stating that the occasion was a “belated” birthday, after she had been made aware of the release date of the movie.
The trial Judge gave careful consideration to both the Waterloo Corner events and the Star Trek evidence. She considered that the discrepancies to which I have earlier referred were significant but determined that, having regard to the totality of R’s evidence, she was prepared to rely on R’s accounts of sexual touching on those occasions, notwithstanding that R’s timing of when they occurred was incorrect.
The trial Judge considered counsel’s criticism of R’s evidence and gave adequate reasons for her conclusion that R was a credible and believable witness.
Late disclosure of other events
A further topic of criticism related to the late disclosure by R that there were occasions when the defendant required R to massage him whilst she was naked, and that he had sexual intercourse with her without ejaculating. Immediately thereafter, the defendant and DY engaged in sexual intercourse in their bedroom.
The evidence which was criticised as being recent evidence related to the defendant and DY having intercourse immediately after, or soon after, the defendant had penetrated R.
In cross-examination, R agreed that she had not told the police about the defendant and her mother going into a room immediately after the defendant had abused her, and then having sexual intercourse. R said that she recalled that having occurred, but she just failed to put it in her statement. When the Judge asked her to explain the position more clearly, R said:
At the time of the statement I didn’t put it in because I wasn’t thinking about it at the time and it’s painful it’s painful to talk about that memory verbally, my mother going into the room afterwards.

The trial Judge recounted the evidence and concluded that R’s evidence did not cause her to doubt R’s credibility or reliability. The Judge observed that R was upset when answering the questions and was having difficulty in recounting the events, in particular the conduct of her mother. The Judge concluded that R’s omission of this detail from her police statement did not cause the Judge to doubt R’s truthfulness or reliability. The Judge observed that she did not think it surprising that, in evidence when R was asked to recall many incidents, some additional details emerged in oral evidence.
Counsel submitted that the evidence was so implausible and so unreliable, given the late disclosure of it, that the Judge’s conclusions were unsustainable.
I do not agree with that submission. The Judge gave detailed reasons. I consider that the fact that a witness may give evidence for the first time about events, details of which were not given to police when the witness made the statements, is not necessarily a basis for concluding the witness is untruthful or unreliable.
These cases are notoriously difficult. Witnesses are asked to remember events, many years in the past, of conduct which, understandably, they may have wished not to have recalled. It is not unusual for witnesses, in cases of this nature, to give some inconsistent accounts and to give evidence of events which were not mentioned in their earlier statements.
The question for a trial judge is whether those inconsistencies, and that evidence, is so significant as to cause the judge to have doubts about the witness’s reliability.
The Judge gave detailed consideration to those matters in arriving at her conclusion.
R gave evidence that from the age of about five she, and from time to time Z, would be in the bath when the defendant was in the bath with them. She gave evidence of occasions when the defendant placed his erect penis between her legs. She said that her mother, DY, was aware of them bathing with the defendant. She recalled S being asked to sit on a stool and watch her and her sister in the bath with the defendant. She said that she was about five or six years of age when this occurred.
Counsel submitted that these allegations were unbelievable and incredulous.
The trial Judge observed:
When asked in cross examination about her mother sitting in the bathroom smoking, R agreed with that. I think that R was genuinely recalling these events and when asked a specific question was prepared to consider and agree additional detail. This cross examination about this topic did not cause me to doubt R’s credibility or reliability.
In my view, R’s evidence was not so incredulous or unbelievable that it can be said that the Judge’s conclusions were not correct.
The “Wuthering Heights” and “the Scarecrow” punishments
R, Z and S gave evidence about punishments which had been inflicted upon them by the defendant. Those punishments included “Wuthering Heights” and “the Scarecrow”.
R gave evidence that this form of punishment commenced when she was six or seven years of age. If the children moved from the position that they were required to hold, they would be belted or struck with a stick. R gave evidence that, as she got older, the defendant also required her to wear a blindfold. This form of punishment continued until the family moved to Waterloo Corner.
The Judge referred to the evidence of R, S and Z. She concluded that she was satisfied beyond reasonable doubt that the defendant inflicted violent, degrading and extreme punishments upon R, S and Z, particularly those referred to as Wuthering Heights. She concluded that she was satisfied that the punishments upon Z and R were linked to sexual interest in them. Counsel submitted that the Judge did not adequately deal with those matters in her reasons. In my view, there is no substance to that submission. The Judge referred to the incidents, made findings about them and drew conclusions from her findings. I reject the submission that the Judge did not adequately deal with the evidence, or her reasons for accepting their evidence. The Judge gave close and careful consideration to the evidence relating to the punishments metered out to the children.
Counsel referred to the Judge’s observations relating to the victims of child abuse. The Judge observed:
In my view the conduct of R and Z, particularly with respect to ongoing contact with KY must be seen in the context of their relationship with their mother and potentially conflicted feelings about KY. Experience shows that victims of child abuse, physical and sexual, often have conflicted feelings about the abuser and they sometimes feel guilt about the abuse and their role in it. A complainant of sexual abuse is unlikely to admit that there were aspects of the conduct that they enjoyed and/or that at times they had good or positive feelings towards the abuser. A victim of child sexual abuse might be made to feel special or privileged by attention even when abuse is painful or uncomfortable. Sometimes victims are aroused during abuse and feel guilty about those feelings. These comments may or may not be of particular relevance in this case but the point that I make is that it cannot be assumed that a victim of ongoing abuse in a familial context will react in a particular manner and later contact with a perpetrator is not necessarily indicative of the lack of abuse. The added complication in this case is the relationship between the complainants and their mother and their young half brothers of whom they were clearly fond.
Counsel submitted that the observations made by the Judge go beyond the everyday experience of a reasonable juror and are not based on evidence in the trial and have, therefore, infected the Judge’s conclusions about R’s evidence.
When the Judge speaks of experience, she did not make it clear whether she was speaking of her experience or experience generally of members of the community. The point of her comment was that the reaction of victims to abuse will vary from circumstance to circumstance and from victim to victim. Her observation was that it is not possible to draw conclusions based upon a victim’s response to abuse.
In my view, the Judge, who is a very experienced criminal trial Judge, could make those observations based on her own experience. The criticism is that it was inappropriate for the Judge to impart her own knowledge in assessing R’s credit by reference to R’s reaction to the abuse.
In my view, the criticism is misconceived. The principle is that a court, in making a determination on the evidence, is not entitled to make findings of fact on unproved evidence which is not a matter of common law or judicial knowledge.
In Strinic v Singh,[12] the Court of Appeal in New South Wales considered the New South Wales District Court’s approach to damages assessment. The District Court of New South Wales was required to assess the damages of a plaintiff who had incurred injury in a motor vehicle accident. The trial Judge made adverse credit findings in respect of the plaintiff. He concluded that the plaintiff was clearly depressed, that he had feigned physical signs when examined by doctors, and that he had failed to cooperate with doctors. The trial Judge reviewed the evidence of one of the doctors, in particular the symptoms described by the plaintiff to the doctor. The Judge considered a hypothesis or explanation for the plaintiff’s symptoms was that there was an inevitable progression of degenerative disc disease in both the plaintiff’s neck and lower back, but such progress is generally very slow.
[12] (2009) 74 NSWLR 419.
On appeal, the plaintiff complained that there was no medical evidence to support the hypothesis advanced by the Judge and that the Judge had used that hypothesis as one of the matters in respect of which the Judge based his adverse credit finding.
On appeal, Beazley JA, with whom Ipp and Basten JA agreed, observed that there was no medical evidence to support the Judge’s finding. Beazley JA concluded that she was not satisfied that it was a matter of common knowledge that a degenerative condition, as described, degenerated slowly. She observed that there are a whole range of degenerative conditions which exhibit themselves in various ways, in varying intensity and over various times.
Beazley JA, having observed that there are circumstances in which specialist courts may have knowledge to which that Court can rely in making a determination, stated that the District Court is not a specialist Court in medical matters. She said:[13]
The fundamental point is that a court must make a determination on the evidence. The District Court is not a court of specialist jurisdiction and the principles and practices that apply in such courts do not apply. Those principles and practices were discussed in JLT Scaffolding International Pty Ltd (In Liq) v Silva (Court of Appeal, 30 March 1994, unreported) at 12–13, where Kirby P stated:
“The appeal comes to this Court from a specialised Tribunal which is dealing with compensation cases and conflicting lay and medical evidence every day. The flavour of the expertise of the Compensation Court can be found in the judgment under appeal. Medical conditions, unfamiliar to a lay body are stated in the judgment without definition simply because those practising in the Compensation Court are, or are taken to be, familiar with the medical terms used and the ordinary and oft repeated conflicts of medical opinions expressed. It can be inferred from the establishment of a specialised Compensation Court (one might say especially given the abolition of such bodies elsewhere in Australia) that the Parliament of this State has entrusted the decision making in (relevantly) questions of medical causation and the aetiology of incapacity to a specialist tribunal comprised of specialist members whose expertise is refined by the repeated performance of their tasks.”
The District Court has such jurisdiction as is conferred by statute. That includes jurisdiction in actions in negligence as was the case here. It cannot be denied that judges gain enormous experience in determining such matters. However, that experience is in assessing the credit of witnesses; in determining what evidence to accept or reject; making findings of fact based on the evidence and in applying the law to those facts. Familiarity gained from experience with medical terminology and medical conditions is of undoubted assistance in helping a judge understand the evidence in a particular case. However, such familiarity never makes the judge the expert in the case. This was recognised in Arian v Nguyen (2001) 33 MVR 37 at 42 [22], where Ipp AJA (as his Honour then was) commented that the trial judge was not entitled, of her own knowledge, to determine whether a MRI scan revealed significant and severe disc injuries. However, in that case, there was direct medical evidential support for her Honour's conclusion.
The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley [1999] 1 WLR 884 at 889, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated: “It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice.” See also Holland v Jones (1917) 23 CLR 149; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Coombes v Roads and Traffic Authority of New South Wales (2006) 46 MVR 215; Ohlstein (by her tutor) Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides (2006) Aust Torts Reports 81–866.
[13] (2009) 74 NSWLR 419 at [58]-[60].
In my view, the observations of the trial Judge of which the defendant’s counsel complained are not in the same category as those referred to by Beazley JA. In that case, the Judge was making factual findings which required expert evidence.
The Judge in this instance was making observations about human behaviour which, in my opinion, were observations of judicial knowledge, which judges who regularly hear cases involving victims of sexual abuse would have experienced. A judge is entitled to have regard to their own experiences of how witnesses and victims might react to situations which are commonly the subject of evidence in court.
Further, I am not convinced that the Judge’s observations are not matters of which there is common knowledge, given the amount of publicity and the experience of the public with events involving sexual abuse.
The Judge’s observations were no more than observations, not findings of fact.
The complaint that the Judge did not give adequate reasons for her conclusions is not made out. I reject this ground of appeal.
Ground 3
Counsel for the defendant complained that the trial Judge, when considering the evidence of Mr Hazledine and determining his reliability, relied upon her own perceived knowledge of how sexual offenders act. The trial Judge said:
R was a good witness. Having heard and observed her, I find her to be truthful. There were criticisms, fairly made, of her evidence and some inconsistency of account. I have had careful regard to those matters. R’s evidence is supported by evidence from S as to bathing with KY at Mile End and his observation of R and Z required to stand naked with their arms in the air at Waterloo Corner whilst KY watched or looked at them. R’s evidence is also supported by the admission made to Mr Hazledine. That admission was to the effect that the sexual touching did not include intercourse. I observe the common usage of ‘sexual intercourse’ has a narrower meaning than the Criminal Law Consolidation Act. R’s evidence was that complete penile penetration of the vaginal canal did not occur, rather that KY positioned his penis in her labia and that he was grinding her against his hips and she didn’t think he ejaculated. R also described digital penetration by KY. It may be that when speaking to Mr Hazledine, KY did not consider his actions to be sexual intercourse or that he was minimizing his actions. The reference to R being the ‘instigator’ is consistent with the remarks being made by a sex offender; it is a self justifying remark about the conduct of a child. It is also a good indicator that Mr Hazledine did not invent the conversation.
The particular complaint is that the trial Judge’s reference to sex offenders blaming their victims and self justifying their conduct is not an observation open to be made without supporting evidence. Counsel’s complaint was that using that observation as a relevant factor in determining the accuracy of Mr Hazledine’s evidence was impermissible reasoning. At trial, the defence case was that Mr Hazledine had fabricated his evidence, that he had made the allegation because he and the defendant had disagreed on matters involving the church and that there was tension between himself and the defendant about church matters.
The trial Judge concluded that the statement by Mr Hazledine that the defendant told him that R was the instigator was inherently inconsistent with a false account, and more consistent with the defendant attempting to minimise and justify his conduct. The Judge said there was no evidence of animosity or motive on the part of Mr Hazledine to fabricate his evidence. She concluded:
Mr Hazledine was an excellent, careful and honest witness. In my view his evidence is credible and reliable.
Counsel submitted that the trial Judge’s conclusions about Mr Hazledine’s credit were coloured by her conclusion that the defendant’s suggestion to Mr Hazledine that R was the instigator was consistent with a justification for abuse made by a sex offender.
I consider that the Judge observed that it was unlikely that Mr Hazledine would fabricate the conversation, in which the appellant admitted sexually touching R, but at the same time attribute to the appellant the self-justifying comment about R initiating the sexual contact. As a matter of common human experience, wrongdoers, including sexual offenders, often attempt to justify or explain their conduct. The Judge did not err in referring to that common human behaviour. The point made by the Judge is that it would be surprising for Mr Hazledine to include a justification of that kind when fabricating the admission. There was no error in that reasoning.
However, that was only one basis upon which the Judge concluded that Mr Hazledine was honest and reliable. She saw him give evidence. She made an assessment of him and accepted him as an honest and credible witness. She rejected the suggestion that he was motivated to lie because of some perceived disagreement with the defendant about the conduct of church affairs.
Furthermore, the trial Judge ultimately accepted R as an honest and credible witness. She accepted Mr Hazledine as supporting R. She did not rely on Mr Hazledine’s evidence to conclude that R was honest and credible. Although there was error in the reasoning of the trial Judge when considering Mr Hazledine’s evidence, I do not consider that the error was such that would justify the appeal being allowed.
For these reasons, I dismiss the appeal.
PARKER J: I would dismiss the appeal for the reasons given by Sulan J. I have nothing to add.

(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.