RGB v Police - [2022] SASC 124

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
RGB v POLICE
[2022] SASC 124
Judgment of the Honourable Auxiliary Justice Parker
2 November 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
The appellant appeals against his conviction on one count of indecent assault (count two) which occurred between 1 January 1973 and 1 January 1974. The appellant was acquitted of a further count of indecent assault (count one).
The complainant gave evidence, but 23 minutes of her evidence-in-chief, being the majority of her evidence on count two, was not recorded due to equipment malfunction. The appellant gave evidence as part of his defence case.
The appellant brings six grounds of appeal. Ground 1 is that the Magistrate erred in directing himself that the forensic disadvantage was to be taken into account in scrutinising defence evidence. Ground 2 is that the Magistrate erred in failing to have regard to the finding of support for the appellant’s evidence on count one, and the implicit acceptance of his evidence in relation to that count, when considering the appellant’s credibility and reliability in in relation to count two. Ground 3 is that the Magistrate erred in failing to provide any or adequate reasons for finding that the appellant's evidence was false. Ground 4 is that the Magistrate erred in failing to determine whether the appellant’s evidence raised a reasonable doubt as to proof of the charge. Ground 5 is that the Magistrate erred in failing to give himself “a Murray direction” and a direction, or an adequate direction, that he was required to scrutinise the complainant’s evidence in light of the significant disadvantage the appellant faced in challenging her evidence. Ground 6 is that the finding of guilt on count two is unreasonable and against the weight of the evidence.
Held:
1.      The appeal with respect to grounds 3 and 4 and also ground 6 to the extent that it replicates the matters considered under grounds 3 and 4 is upheld.
2.      The appeal with respect to grounds 1, 2 and 5 and also ground 6 to the extent that it does not replicate grounds 3 and 4 is dismissed.
3.      The conviction entered against the appellant on 8 June 2022 is quashed.
4.      An order of acquittal be entered.
Criminal Law Consolidation Act 1935 (SA) s 56(1); Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) ss 34CB, 34L; Criminal Procedure Act 1921 (SA) s 158(1)(a), referred to.
S, N v Police [2021] SASC 49; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; R v T, WA (2014) 118 SASR 382; JGS v The Queen [2020] SASCFC 48; Murray v The Queen (2002) 211 CLR 193; R v Calides (1983) 34 SASR 355; Douglass v The Queen (2012) 290 ALR 699; R v Markuleski (2001) 52 NSWLR 82; R v B, P [2006] SASC 229; R v Hare [2007] SASC 427; R v Murray (1987) 11 NSWLR 12; R v Cheng [2015] SASCFC 189; Robinson v The Queen (1999) 197 CLR 162; R v N, RC (2012) 112 SASR 399; Police v Williams [2014] SASC 177; Davis and Hyland v The Queen (1995) 183 LSJS 186; R v Livingstone (2011) 109 SASR 380; R v Sexton [2018] SASCFC 28; Kerin v The Queen [2022] SASCA 19; King v The Queen (1986) 161 CLR 423; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Pell v The Queen (2020) 268 CLR 123; Harris v Mill (Supreme Court of South Australia, von Doussa J, 7 April 1988); Selig v Hayes (1989) 52 SASR 169; R v Liddy (2002) 81 SASR 22; R v KWG [2000] SASC 398; Police v Kyriacou (2009) 103 SASR 243; Police v Adams (2011) 213 A Crim R 323; R v Keyte (2000) 78 SASR 68; R v Winner (1995) 79 A Crim R 528; Fleming v The Queen (1998) 197 CLR 250; R v Elliott (1909) 2 Cr App R 171, CCA; R v Payne, R v Spillane (1971) 56 Cr App R 9, CA; R v Le Caer (1971) 56 Cr App R 727, CA, considered.

RGB v POLICE
[2022] SASC 124
Magistrates Appeal: Criminal
PARKER AJ:
Introduction

The appellant has appealed against his conviction on one count of indecent assault (count two) contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). He was acquitted of a further count of indecent assault (count one).
Count one allegedly occurred between 1 January 1971 and 1 January 1973. At that time the complainant was aged between seven and eight years and the appellant was aged between 18 and 20 years. Count two allegedly occurred between 1 January 1973 and 1 January 1974 when the complainant was aged nine years and the appellant was aged 21 years.
The complainant’s eldest sister, MB, was married to the appellant in 1973. They separated relatively recently.
Although the appellant was acquitted of count one, it is necessary to refer to that allegation as the acquittal is relevant to some of the grounds of appeal. The conduct alleged in support of count one was that the appellant had touched the complainant’s vaginal and clitoral areas. This had allegedly occurred while the complainant and the appellant were sitting on a bed and watching television in a bedroom at the home of the appellant’s parents at Alberton, where the appellant then resided.
Count two also involved an allegation that the appellant had touched the complainant in her genital and clitoral areas. This conduct allegedly occurred in the bedroom of the home occupied by the appellant and MB, who were recently married. The evidence of the complainant was that she was invited to join the appellant in the bedroom while he had a nap or a lie down after lunch.
The amended grounds of appeal
The appellant has advanced the following amended grounds of appeal:
1.The learned Magistrate erred in directing himself that the forensic disadvantage was to be taken into account in scrutinising defence evidence.
2.The learned Magistrate erred in failing to have regard to the finding of support for the appellant’s evidence on count one, and the implicit acceptance of his evidence in relation to that count, when considering the appellant’s credibility and reliability in relation to count two.
3.The learned Magistrate erred in failing to provide any or adequate reasons for finding that the appellant’s evidence was false.
4.The learned Magistrate erred in failing to determine whether the appellant’s evidence raised a reasonable doubt as to proof of the charge.
5.The learned Magistrate erred in failing to give himself “a Murray direction” and a direction, or an adequate direction, that he was required to scrutinise the complainant’s evidence in light of the significant disadvantage the appellant faced in challenging her evidence.
6.The finding of guilt on count two is unreasonable and against the weight of the evidence:
6.1 the transcript relating to part of the complainant’s evidence is unavailable and therefore the Court is precluded from undertaking its independent evaluation of the whole of the evidence.
6.2 alternatively, in so far as the evidence is available:
6.2.1the complainant’s evidence was lacking in detail, demonstrated inconsistencies and was in conflict with other evidence that was not shown to be unreliable or false;
6.2.2the appellant’s evidence was not shown to be incorrect or false; and
6.2.3in so far as the Court was required to consider the evidence of the complainant and of the appellant together with the other evidence, the evidence was incapable of discharging the onus of proof.
The Magistrate’s reasons
It is necessary to consider separately the Magistrate’s reasons in relation to count one and count two. Before doing so, it is necessary to refer to a problem that arose with the audio recording of the complainant’s evidence-in-chief.
Apparently, due to a malfunction in the audio recording equipment in the Magistrates Court, the greater part of the complainant’s evidence-in-chief was not recorded and is thus not included in the transcript of the trial. Importantly, the transcript of the evidence given by the complainant commences at a point after she had given evidence about the charges. The missing portion comprises 23 minutes of oral evidence.
Count one
The Magistrate found that the complainant was unable to recall a number of peripheral matters relating to the alleged indecent assault. These included the time that the indecent assault occurred, the clothing that she and the appellant were wearing, the television program that they were watching, whether she or the appellant spoke, details of the furniture and the layout of the bedroom, and whether there were one or two beds in the room. The Magistrate observed that this lack of recall about peripheral matters was unsurprising given that the complainant had been aged seven or eight years, the relevant event occurred some 50 years ago and she had only visited the house on a few occasions.
The analysis by the Magistrate focussed on other aspects of the incident, i.e., where the alleged assault occurred and why the complainant and the appellant were alone in the bedroom. The Magistrate was satisfied beyond reasonable doubt that the alleged assault would have occurred in the bedroom occupied by the appellant’s brother, CB.
The complainant stated that she believed she had gone into the bedroom with the appellant to watch television and further stated that she did not understand why they would have been in the room if it was not to watch television, and also did not understand why her grandparents would have allowed her to enter the bedroom with someone 12 years older than her if it was not to watch television. The Magistrate observed that these answers suggested the possibility of circular reasoning in that the complainant’s recollection of watching television in the bedroom with the appellant may have been influenced by an assumption that she would not have been there for any other purpose and that her grandparents would not have permitted her presence for any other purpose.
The Magistrate stated that he was satisfied that the complainant’s evidence concerning count one was her honest recollection. However, his Honour stated that her evidence that she was watching television with the appellant raised a reasonable possibility that her recollection may have either been mistaken as to the room or influenced by an assumption that she would not have been allowed to be alone in a bedroom with a young adult except for the purpose of watching television.
On that basis the Magistrate went on to find that there was a reasonable possibility that the complaint’s evidence of a recollection that she was alone with the appellant watching television in the particular bedroom was unreliable due either to a mistake or an innocent or subconscious reconstruction of critical parts of the circumstances of count one. The possibility of a mistake or an innocent reconstruction might also be heightened by the fact that some 50 years had passed between the incident and the first formal statement made to the police. For that reason, his Honour expressed reservations about the reliability of that aspect of the complainant’s evidence concerning count one.
The appellant stated that there was only one television set in his parents’ house during the early 1970s and that was located in the lounge room. He also stated that he spent very little time at that address during 1971. The Magistrate noted in relation to that evidence that it was difficult for the appellant to be more specific due to the difficulty in obtaining corroborative evidence from records, documents or witnesses about events so long ago.
The appellant also stated that he had no recollection of the complainant visiting his parents’ home, although he conceded that she may have done so during the early 1970s but not when he was there. The appellant denied the alleged indecent assault that is the subject of count one.
The Magistrate accepted beyond reasonable doubt the evidence of the appellant’s brother, CB, that the only television in their parents’ home at the relevant time was located in the lounge room and not in a bedroom.
The Magistrate found that the complainant was an honest witness who tried to truthfully recollect the circumstances of the alleged indecent assault referred to in count one. However, his Honour was not satisfied beyond reasonable doubt that her recollection that an indecent assault had occurred in the bedroom while she and the appellant were watching television was reliable. These matters were not secondary or peripheral facts to the allegation of indecent assault but were central to the allegation as to where the alleged indecent assault had occurred and why the appellant and the complainant would be alone in a bedroom. That alone was sufficient to raise a reasonable doubt concerning count one. His Honour noted that the evidence of the appellant’s brother confirmed his reservations about the reliability of the complainant’s evidence on critical aspects of the alleged indecent assault in count one. That count was dismissed.
Count two
The evidence of the complainant was that during the second half of 1973 the appellant and his wife (her sister, MB) were living in a house at Seaton owned by her parents. Her grandparents lived in another house to the rear of that property. The complainant said that she frequently visited her grandparents and sometimes visited her sister.
The complainant gave evidence of visiting the Seaton house for lunch during the second half of 1973. After having lunch with her sister and the appellant, he stated that he was going to “have a lay down”. She stated that he said words to the effect of “do you want to have a lay down too?” The complainant also stated that her sister asked “why don’t you lay down as well?”
The complainant gave evidence about the details of the indecent assault. She did not tell her sister or grandparents what had happened. However, that night at home, because she was suffering pain in the vaginal and clitoral area, she told her mother. Her mother applied cream and used words to the effect that “we would not tell anyone” and that she “would be ok”. The complainant gave several reasons as to why she had not told her sister or others about the indecent assault until she eventually reported it to the police in 2021.
The appellant denied that he had ever laid down in the afternoon for a rest. He also stated that on the occasions when the complainant had visited the Seaton house, she would spend most of her time with her sister. He was busy doing things in the shed or in the house or studying. The Magistrate found that the evidence of the appellant in relation to count two was consistent, and his denial of any sexual assault or contact with the complainant was emphatic. His Honour also took into account the fact that the long delay from the alleged offending until the trial may have made it more difficult for the appellant to raise a detailed defence, e.g., one based on an alibi or that it was unlikely that he would have been home at the time of the alleged offence and also made it difficult for him to challenge some details of the complainant’s evidence due to witnesses or other evidence being unavailable or untraceable.
The Magistrate further found that the appellant was consistent in his denial of any indecent assault at the Seaton house. In that respect, his Honour noted that if the evidence of the appellant was to be accepted, or found to be a reasonable possibility, or if it was not possible to conclude where the truth lay, the charge must be dismissed.
The Magistrate held that the appellant’s denial that he had a habit or practice of taking a daytime lie down or nap was plausible given his study and age at the relevant time, and was as definitive as the lapse of time allowed. In considering that evidence, his Honour had regard to the significant forensic disadvantage suffered by the appellant when assessing his evidence and also the evidence generally.
Nevertheless, the Magistrate went on to find that the complainant was a most impressive witness and her evidence concerning count two was thoroughly convincing. Although there were some aspects relating to count two that the complainant could not recall, or could only recall with some uncertainty, his Honour was satisfied beyond reasonable doubt that her recollection and evidence concerning the substance of the indecent assault by the appellant at the Seaton address in the latter part of 1973 was honest and reliable. His Honour was satisfied beyond reasonable doubt that the appellant’s denials of an indecent assault on the complainant at the Seaton house were false. Where the evidence of the complainant and the appellant conflicted concerning count two, his Honour rejected the evidence of the appellant and accepted beyond reasonable doubt the evidence of the complainant. Accordingly, his Honour found the appellant guilty of count two.
The appellant’s submissions
The missing transcript
The appellant raises as a threshold issue and, pursuant to ground 6.1, the issue of the missing passage of transcript.
The appellant observes that an appeal to this Court under s 42 of the Magistrates Court Act 1991 (SA) is an appeal by way of rehearing.[1] That requires this Court to conduct a “real review” of the evidence given in the Magistrates Court and of the reasons of the Magistrate so as to determine whether the Magistrate has erred in law or in fact.[2]
[1] See, for example, S, N v Police [2021] SASC 49 at [2].
[2] Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, French CJ, Bell, Keane, Nettle and Gordon JJ at 686-687.
The appellant further submits that the Court must weigh for itself the evidence of the complainant and determine whether the guilt of the appellant has been proven beyond reasonable doubt. In performing that statutory function, the Court will be impeded by an incomplete record of the evidence given by the complainant.
Further to that submission, the appellant observes that the lost passage of evidence does not relate to peripheral or ancillary matters. The situation is that the court record does not contain the evidence given by the complainant in relation to the charged acts. Thus, the Court finds itself wholly reliant upon the summary by the Magistrate of the evidence given by the complainant. This evidence is central to the assessment by this Court of whether the evidence proved the appellant’s guilt beyond reasonable doubt. The incomplete record necessarily frustrates the ability of the Court to carry out its appellate task and thus precludes the Court from properly exercising its jurisdiction. For that reason, the appellant submits that the appropriate order is for the appeal against conviction to be allowed and the matter remitted for retrial.
If the appellant succeeds on the substantive grounds where he contends that the conviction should be set aside, the contention that the matter should be remitted for retrial because of the gap in the transcript will be irrelevant.
Ground 1
The appellant acknowledges that s 34CB of the Evidence Act 1929 (SA) does not require a magistrate or judge sitting alone to give themselves a direction concerning forensic disadvantage.[3] Nevertheless, the obligation to give adequate reasons may require that a judge or magistrate consider and comment upon circumstances that give rise to a significant forensic disadvantage.[4] Whether or not a judge has adequately dealt with the issue of forensic disadvantage will depend on the particular circumstances of the case and the reading of the reasons as a whole.[5]
[3]     R v T, WA (2014) 118 SASR 382, Kourakis CJ at [19]-[22].
[4]     JGS v The Queen [2020] SASCFC 48, Peek, Bampton and Lovell JJ at [146].
[5]     R v T, WA (2014) 118 SASR 382, Kourakis CJ at [22].

The appellant notes that the Magistrate correctly found that he had suffered a significant disadvantage at trial. The appellant also acknowledges that the Magistrate correctly stated the basis for that disadvantage and how it affected the evidence adduced on the defence case. Nevertheless, the appellant contends that the Magistrate erred in the following passage of the judgment:
Secondly, the defendant’s significant forensic disadvantage must be considered when scrutinising the prosecution and defence evidence concerning each charge.
(emphasis added)
The appellant submits that the purpose of directions regarding forensic disadvantage is to alleviate the prejudice that can be caused to the proper presentation of the defence case due to the effluxion of time. This may require highlighting the loss or destruction of evidential material that may have assisted the defence and may also constitute “a lens through which an accused person’s evidence is to be assessed”. The appellant submits that this “lens” does not require that the trier of fact scrutinise the evidence of a defendant.
The appellant submits that the effect of the direction given by the Magistrate to himself that he must scrutinise the defence evidence in light of the forensic disadvantage was to subtly reverse the burden of proof. The appellant further submits that the fact that the impugned direction appeared at the point in the judgment where the Magistrate was dealing with a number of topics which formed the basis for the assessment of each of the charged offences caused a risk that the Magistrate would improperly approach the entirety of the appellant’s evidence by reference to a perceived need to scrutinise it. As the forensic disadvantage was significant, the defendant submits that the direction by the Magistrate constituted an error of law and has given rise to a miscarriage of justice.
Ground 3
The appellant observes that both count one and count two involved a contest of oath against oath. There was no evidence independent of the complainant that was capable of proving the alleged offences. For that reason, proof of the guilt of the appellant rested on acceptance of the complainant as a truthful and reliable witness so that her version of what had occurred may be accepted beyond reasonable doubt. An indispensable intermediate step in reaching that conclusion was the rejection beyond reasonable doubt of the evidence of the appellant as a reasonable possibility.
The appellant submits that the Magistrate failed to explain the reasoning process by which the evidence of the appellant was rejected, nor did his Honour explain the basis upon which that evidence was rejected. His Honour simply proceeded to a conclusion and stated the ultimate finding without revealing how that finding had been made. The manner in which the ultimate conclusion was expressed suggests that the Magistrate had utilised binary or preferential reasoning. In other words, the reasons of the Magistrate suggest that by finding the complainant to be a “truthful and impressive” witness, his Honour preferred her evidence and thus rejected that of the appellant beyond reasonable doubt. The appellant submits that this gave rise to the precise error identified in Murray v The Queen[6] and R v Calides.[7] The appellant submits that the Court is therefore left to speculate as to the potential reasoning pathway applied by the Magistrate. The Court cannot exclude the possibility that the Magistrate embraced the notion that a trier of fact can select between two witnesses, accepting one and rejecting the other, in order to determine where the truth lies. The absence of reasons sufficient to exclude such a possibility constitutes a legal error.[8]
[6] (2002) 211 CLR 193.
[7] (1983) 34 SASR 355.
[8] Douglass v The Queen (2012) 86 ALJR 1086, French CJ, Hayne, Crennan, Kiefel and Bell JJ at [14].
Ground 2
Both the appellant and his brother, CB, gave evidence that the relevant bedroom at the Alberton house did not contain a television and that the only television was located in the lounge room. They both also gave evidence that the bedroom contained two single beds. The Magistrate accepted the evidence of CB beyond reasonable doubt in relation to the layout and contents of the bedroom.
The Magistrate found, correctly in the submission of the appellant, that the presence of a double bed and a television were important elements of the account given by the complainant in relation to the offence comprised in count one. As the Magistrate accepted the evidence of CB, he held a reasonable doubt in relation to count one.
The appellant submits that the Magistrate implicitly accepted the evidence of the appellant in preference to that of the complainant in relation to material aspects relevant to count one. Thus, his Honour ought to have made positive findings in relation to the credibility and reliability of the appellant in the context of count one. While a trier of fact must consider each count separately, the appellant submits that positive or adverse findings regarding credibility and reliability to one count can permissibly and materially affect consideration of other counts.[9] For that reason, the acceptance by the Magistrate of the evidence given by the appellant concerning count one, and the corroboration of that evidence, is a relevant consideration when evaluating his evidence in relation to count two. However, the Magistrate failed to adopt that approach when rejecting the appellant’s evidence in relation to count two as a reasonable possibility.
[9] R v Markuleski (2001) 52 NSWLR 82, Spigelman CJ at [31] and Simpson J at [322]; R v B, P [2006] SASC 229, Doyle CJ at [6]; R v Hare [2007] SASC 427, Vanstone J at [22].
The appellant further submits the fact that the Magistrate had previously resolved evidential conflicts and made positive findings in his favour in the context of count one serves to emphasise the inadequacy of his Honour’s reasons in the context of count two.
Ground 4
The appellant refers to his evidence that in 1973 he was attending college, would often be out of the house during the working week, and when at home was often occupied studying or working around the house. As previously noted, he had also given evidence that he was not in the practice of taking a nap during the daytime. This evidence, if it could not be negatived as a reasonable possibility, was a solid barrier to reaching the conclusion of guilt beyond reasonable doubt. The evidence was inconsistent with the existence of an opportunity to commit the offence. This obstacle existed despite the positive finding made by the Magistrate as to the credibility and reliability of the complainant.
The finding by the Magistrate that the evidence of the appellant was plausible was an acknowledgement that his evidence was a reasonable possibility. Nevertheless, the Magistrate rejected his evidence in relation to count two and found it to be false. This was done in a conclusory fashion with the Magistrate failing to consider how the evidence of the appellant on this topic intercepted with the evidence of the complainant. The Magistrate did not acknowledge the capacity of the appellant’s evidence to amount to an obstacle to conviction in that it tended against a finding of opportunity. The Magistrate simply accepted the evidence of the complainant without identifying or resolving the evidential conflict. The acceptance of the complainant’s evidence cannot easily be reconciled with the finding that the evidence of the appellant was plausible.
While the appellant does not suggest that his evidence rose to the level of an alibi, his denial that he took naps during the day, and the limited interactions he had with the complainant during the working day, went to the heart of the charge. It was therefore essential for the Magistrate to consider the effect of his evidence on proof of opportunity. The appellant submits that the failure of the Magistrate to analyse this aspect of the evidence, together with the incongruency between findings, compounds the inadequacy of his Honour’s reasoning.
Ground 5
The appellant submits that because his guilt depended upon the uncorroborated evidence of the complainant, the Magistrate should have given himself a direction of the nature identified in R v Murray.[10] A Murray direction requires a judge to stress that where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before arriving at a verdict of guilty.[11] However, a direction of that kind does not, of itself, imply that the evidence of the witness is unreliable.
[10] (1987) 11 NSWLR 12.
[11] Ibid at 19.
In R v Cheng,[12] Sulan and Peek JJ noted that the Murray direction had been approved by the High Court in Robinson v The Queen[13] although on a broader basis. Sulan and Peek JJ supported that observation by reference to the analysis by Peek J in R v N, RC where his Honour had explained the finding of the High Court in Robinson to be that a Murray direction was required “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”.[14]
[12] [2015] SASCFC 189 at [144].
[13] (1999) 197 CLR 162.
[14] (2012) 112 SASR 399 at [108], quoting Robinson v The Queen (1999) 197 CLR 162, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ at [19].
Although the appellant’s trial counsel did not specifically refer to the need for a Murray direction, the clear effect of his closing submissions was that it was necessary to consider carefully the evidence of the complainant. That was necessary because of the effluxion of time and the fact that the complainant was a young child when the offences occurred. Accordingly, the fact that there was not an express submission referring to a Murray direction cannot be decisive.
The appellant submits that the circumstances of the trial combined with a number of features of the evidence indicate that a Murray direction was required to avoid a miscarriage of justice, i.e:
·The period of 48 to 50 years between the offending and the trial;
·The appellant suffered from a significant forensic disadvantage as the Magistrate found. This had the capacity to affect testing of the complainant’s evidence and the marshalling of a defence;
·The alleged offences had occurred when the complainant was aged between seven and eight years (count one) and nine years (count two);
·The evidence of the complainant in relation to count one indicated a real risk of reconstruction or mistake, to such an extent that the Magistrate entertained a reasonable doubt as to the occurrence of the offending;
·The evidence of the complainant was entirely uncorroborated;
·The central issue in the dispute was the reliability of the complainant;
·In addition to the demonstrated inaccuracies in the memory of the complainant concerning the layout and contents of the bedroom at the Alberton house, a number of prior inconsistent statements were also proved in relation to count two;
·The complainant’s evidence was that she had “blocked it out for many, many years” before first reporting her memories in a formal statement to police about 48 years after the alleged offence. She stated that she had been reflecting on the events over the past 10 or 11 months and had been “trying to put all the pieces of the puzzle together”;
·The complainant could not recall contextual details relating to the charged acts; and
·The appellant made a sworn denial.
For these reasons, the appellant submits that the failure of the Magistrate to give himself a Murray direction has created a perceptible risk of a miscarriage of justice.
Ground 6
The appellant submits that the verdict was unsupportable in that it was not open to the Magistrate to find count two proven beyond reasonable doubt. The appellant points to the fact that the task of this Court when considering an appeal under s 42 of the Magistrates Court Act is much wider than when a court considers an appeal under the first limb of the common form appeal provision contained in s 158(1)(a) of the Criminal Procedure Act 1921 (SA).[15] Rather than conducting an independent review of the evidence so as to determine whether it was open to the trier of fact to find the appellant guilty beyond reasonable doubt, this Court must conduct a rehearing on the materials before the Magistrate and consider for itself whether the guilt of the appellant in relation to count two has been proven beyond reasonable doubt.
[15] Police v Williams [2014] SASC 177, Peek J at [180]-[183].
The appellant advances three broad propositions in support of ground 6. They are, first, that the evidence of the complainant lacked detail, was demonstrated to contain inconsistencies and directly conflicted with evidence that was not proven to be unreliable or false. Secondly, the evidence of the appellant was not, and could not be, found to be incorrect or false. Thirdly, the entirety of the evidence is incapable of discharging the onus of proof.
The appellant observes it is not possible to establish the level of detail contained in the complainant’s evidence of the alleged offence. The balance of her evidence-in-chief was no more than a generalised account about ancillary issues. Importantly, during cross-examination, she could not say on what day of the week or month the alleged act occurred. She could also not remember whether the appellant had laid down, what he was wearing or which hand he had used to touch her genital area. She also could not recall how long she had spent at the house afterwards.
While the evidence of the complainant addressed the physical act, it suffered from a lack of detail about important contextual questions. This scarcity of detail cannot be divorced from the risk of reconstruction that attaches to her evidence.
The appellant submits that it is well recognised that inconsistencies can bear upon the reliability of a witness.[16] In this case, two inconsistencies in the evidence of the complainant were established. They were, first, that the complainant said in evidence that the appellant had knelt between her knees whereas she told the police that he had sat between her knees. Secondly, she apparently said in her evidence that the appellant had removed her underwear; however, she told the police that he had removed her clothing from the waist down.[17]
[16] Davis and Hyland v The Queen (1995) 183 LSJS 186.
[17] Precisely what she said in evidence-in-chief cannot be established without the missing transcript.
The appellant acknowledges that not every contradiction or inconsistency in the evidence of a witness will cause a fact finder to doubt their essential reliability. It is a matter of degree.[18] In this matter the inconsistencies in the evidence of the appellant related to matters central to the proof of count two. Those inconsistencies, particularly when they were considered in light of the findings made by the Magistrate about mistake and reconstruction in connection with count one, were capable of affecting the credibility and reliability of the complainant. The fact that the complainant was inconsistent in respect of conduct inextricably linked to the actus reus of the offence shows that there was a risk of reconstruction on her part.
[18] R v Livingstone (2011) 109 SASR 380, Vanstone J at [23].
The appellant relies on the submissions made in respect of grounds 2 and 4 in support of his contention that the complainant’s evidence was in conflict with other evidence not shown to be false or unreliable.
In spite of his contention that his evidence was not, and could not, be found to be incorrect or false, the appellant observes that his evidence is supported by that of his brother, CB, in respect of count one. That finding should have been taken into account in assessing of his evidence in respect of count two. Furthermore, the Magistrate accepted that the evidence of the appellant in respect of an absence of opportunity was a reasonable possibility. There being a reasonable possibility that there was no occasion upon which the offending could have occurred, the Magistrate should have entertained a reasonable doubt about the occurrence of the offence. That doubt should be shared by this Court.
The appellant further submits that the failure by the Magistrate to provide any reasons for rejecting the evidence of the appellant is consistent with the fact that the Magistrate could not identify any such reasons. Instead, the Magistrate wrongly reasoned that the acceptance of the evidence of the complainant required that the evidence of the appellant must be rejected.
The final proposition advanced by the appellant in support of ground 6 is that having regard to the deficiencies in the evidence given by the complainant, combined with the inability to exclude the evidence of the appellant as being a reasonable possibility, it was not open to the Magistrate, nor it is open to this Court, to find the appellant guilty of count two beyond reasonable doubt. There exists a reasonable doubt as to his guilt of count two.
Retrial or acquittal
The appellant points to the fact that grounds 2, 3 and 4 are each based upon inadequate reasoning by the Magistrate. In R v Sexton, Kourakis CJ stated that where the essence of the complaint of inadequate reasoning is that the verdict is unreasonable or not supported by the evidence, the appeal will result in an acquittal.[19] If the basis of the appeal is that there has been a miscarriage of justice because the reasoning does not support a conviction, even though there was another rational basis on which guilt might have been established, there will ordinarily be an order for a retrial.
[19] R v Sexton [2018] SASCFC 28, Kourakis CJ with Peek and Nicholson JJ agreeing at [177].
The appellant observes that the Magistrate made positive findings concerning his credibility and reliability in the context of count one. His Honour also accepted that an important component of his evidence in relation to count two was a reasonable possibility. Furthermore, despite rejecting his evidence relating to count two on the basis of a finding that it was false, the Magistrate did not make any express finding concerning falsehoods.
The appellant submits that the findings by the Magistrate as to his credibility and reliability concerning count one are not divisible when assessing count two. Thus, it was not open to the Magistrate, nor is it open to this Court, to reject his evidence as a reasonable possibility. Accordingly, the appropriate order is for an acquittal.
The appellant further submits that the interests of justice do not favour a retrial in the exercise of the Court’s power under s 42 of the Magistrates Court Act. The appellant notes, in contrast to s 158(1) of the Criminal Procedure Act, the power of this Court to order a retrial following a successful appeal is not conditional upon the Court being satisfied of any specific criteria. Nevertheless, the appellant submits that the principles applied when considering the order of a retrial under the common form appeal provisions are instructive.
In that context, the Court of Appeal recently held in Kerin v The Queen that the power to order a retrial is discretionary and the onus lies with the prosecution to satisfy the Court that a new trial should be ordered with the primary consideration being whether it is in the interests of justice for a new trial to be held.[20] The Court of Appeal referred to King v The Queen where Murphy J rejected the contention that there should be a presumption in favour of a new trial and also held that where there was insufficient evidence at the original trial to warrant a conviction, or if the evidence that would be available at a new trial is insufficient, it would be contrary to the interests of justice to order a new trial.[21] The Court of Appeal also referred to, amongst other authorities, the decision of the High Court in Director of Public Prosecutions (Nauru) v Fowler where the High Court stated a number of considerations that are relevant to the question of whether it is in the interests of justice to order a new trial.[22] The first matter referred to by the High Court was whether the admissible evidence at trial was sufficiently cogent to justify a conviction. The High Court also stated that it was necessary to take into account any circumstances that might render it unjust to the accused to make him stand trial again while remembering that the public interest in the proper administration of justice must be considered together with the interests of the accused.
[20] [2022] SASCA 19 at [15].
[21] (1986) 161 CLR 423, Murphy J at 426.
[22] (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ at 630.

The appellant submits that the admissible evidence is not sufficiently cogent to justify a conviction. The evidence led by the prosecution does not have the capacity to exclude the appellant’s evidence as a reasonable possibility nor to prove the guilt of the appellant beyond reasonable doubt. The appellant further submits that because an important part of the transcript of the evidence of the complainant has been lost, he will be denied the ability to compare her evidence‑in-chief at any trial with the evidence given at first instance. This denies him an important forensic device in the marshalling of a proper defence. Thus, considerations of fairness militate against a retrial.
Respondent’s submissions
The threshold issue
The respondent submits that the incomplete transcript does not frustrate the performance of this Court’s function of reviewing the evidence presented at trial. The transcript of the cross-examination of the complainant, the addresses of counsel and the summary by the Magistrate of the evidence-in-chief given by the complainant are all available to the Court. The respondent submits that the combined effect of this material is sufficient for the Court to discharge its appellate function.
In cross-examination, the complainant provided an account of the act that gave rise to count two. The cross-examination was conducted in such a way as to effectively invite the complainant to repeat the evidence that she had given in‑chief. Moreover, she was also asked questions about additional matters that had apparently not been put to her in-chief.
At trial, counsel for the appellant summarised in his closing address aspects of the evidence given by the complainant. Counsel did not submit that there was any uncertainty about her evidence. To the contrary, counsel did not address the description given by the complainant of the charged acts. Counsel focussed on what he submitted were improbabilities or inconsistencies in the account given by the complainant.
For these reasons, the respondent submits that there was no uncertainty in cross-examination or during closing addresses as to the evidence that the complainant had given about the facts that underpinned the charges brought against the appellant.
The respondent also notes that the Magistrate included an extensive summary of the complainant’s evidence in the judgement. There has been no suggestion by the appellant that the summary by the Magistrate was inaccurate or incomplete.
The respondent submits that for the preceding reasons the Court is able to discharge its appellate function. It is simply speculation for the appellant to submit that the missing portion of the transcript may have contained answers which undermined the credibility of the complainant in circumstances where counsel for the appellant had made no such complaint at trial and where the summary by the Magistrate of the complainant’s evidence is not now challenged.
Ground 1
The respondent acknowledges that, although s 34CB(2)(b) of the Evidence Act did not apply, it was appropriate for the Magistrate to consider the significant forensic disadvantage to which the appellant was subject. The Magistrate expressly recognised that disadvantage. Although his Honour referred to scrutiny of the defence evidence, the respondent submits that it is quite clear that the Magistrate did not mean that he was using the forensic disadvantage against the appellant. The natural meaning of the impugned passage in the Magistrate’s reasons is that when his Honour considered the evidence of the appellant, and the evidence generally, he would have regard to the significant forensic disadvantage experienced by the appellant. At a later point in the judgment, the Magistrate describes his approach to the appellant’s forensic disadvantage in precisely that way.
The respondent submits that to read the impugned passage otherwise is to distort the meaning of the word “disadvantage”. The complaint by the appellant also ignores the detailed explanation by the Magistrate of the ways in which the appellant was disadvantaged. It also ignores the later formulation by the Magistrate of the forensic disadvantage and his Honour’s explicit treatment of the appellant’s forensic disadvantage in his assessment of the evidence relating to count two. The respondent submits that ground 2 is without merit.
Ground 3
The respondent submits that this matter can be distinguished from Douglass v The Queen.[23] In that case the trial judge had arrived at a conclusion of guilt without having rejected a sworn denial by the appellant of the offence. The High Court held that “Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true”.[24]
[23] (2012) 290 ALR 699.
[24] Ibid at [13].
The Magistrate provided reasons as to why he accepted the evidence of the complainant relating to count two beyond reasonable doubt and for rejecting the denial by the appellant beyond reasonable doubt. The respondent submits that the Magistrate was not required to do any more than that when explaining his findings.
The respondent further submits that the requirement that the Magistrate provide reasons for his rejection of the appellant’s denial must be viewed in the context of the evidence presented at trial. The appellant’s evidence-in-chief comprised less than nine pages of transcript, and much of that was occupied with objections. His evidence contained little detail. Thus, there was little for the Magistrate to say when rejecting his evidence. Nevertheless, the respondent submits that the Magistrate closely scrutinised the evidence of the complainant and had regard to the denial by the appellant and the significant forensic disadvantage which he suffered. Despite that, he was satisfied of the guilt of the appellant and consequently rejected his evidence. The respondent submits it is difficult to conceive what more the Magistrate could have provided by way of explanation about his rejection of the blanket denial by the appellant of the conduct alleged in count two.
By way of analogy, the respondent submits that it is conceivable that a defendant could simply state in evidence that he was not guilty. In those circumstances it must be open to the judge or magistrate to reject such a denial where the evidence could otherwise prove the defendant’s guilt beyond reasonable doubt. In such a case there could not be a valid complaint that the defendant’s denials could not be rejected without an explanation being provided for that rejection.
The evidence given by the appellant in which he denied the alleged offence was limited. While denying the sexual assault, he agreed that the complainant had visited the Seaton address. He also stated that he could not think of a reason why he would have been lying down on a bed during the day whether on his own or with the complainant.
After scrutinising the evidence of the complainant at some length, the Magistrate explained his reasons for being satisfied as to her credibility and reliability in respect of count two. The respondent submits that the Magistrate’s reasons adequately explained his Honour’s satisfaction with the evidence of the complainant.
In the particular circumstances of this case, it was sufficient for the Magistrate after having considered the evidence of the complainant and of the appellant to find that he was satisfied beyond reasonable doubt as to the truth of the evidence given by the complainant. That necessarily entailed a rejection beyond reasonable doubt of the evidence of the appellant. The denials by the appellant, as a matter of logic, must have been false, as the Magistrate found. It was not simply a matter of the Magistrate preferring the evidence of the complainant to that of the appellant. To the contrary, his Honour accepted the evidence of the complainant beyond reasonable doubt and rejected beyond reasonable doubt the denial by the appellant. His Honour’s judgment exposes the process by which that finding was reached.
Ground 2
The respondent submits that the submission by the appellant that the Magistrate implicitly made positive findings in relation to the credibility and reliability of the appellant in respect of count one, but failed to apply those findings when considering count two, misconceives his Honour’s judgment. The Magistrate did not expressly endorse the credibility and reliability of the appellant’s evidence nor, the respondent submits, did the doubts held by the Magistrate concerning count one constitute implicit endorsement of the appellant’s evidence.
The Magistrate did not make any finding concerning the evidence of the appellant as to the presence of a television in the bedroom at the Alberton house but did accept the evidence of the appellant’s brother on this issue beyond reasonable doubt. The respondent submits that, at most, this involves implicit acceptance of the evidence by the appellant that there was no television in the bedroom at the relevant time.
The finding that there was no television in the room did not constitute an acceptance of the denial by the appellant of the offending comprised in count one but rather a finding by the Magistrate based on the evidence of his brother that there was a reasonable doubt as to the reliability of the complainant as distinct from her credibility. Thus, the Magistrate found the appellant to be not guilty of count one.
The respondent submits that it is not surprising that the Magistrate did not make a positive finding concerning the credibility and reliability of the respondent in respect of count one. His evidence was that his memory of the layout of the relevant bedroom was “not perfect” and he could not remember all the “specific details” of the furniture and layout of the house. Thus, the acceptance by the Magistrate of the evidence of the brother that there was not a television in the bedroom, although consistent with the evidence of the appellant on that point, did not necessitate a finding that the appellant was credible and reliable. The finding of not guilty may or may not constitute acceptance of the evidence given by an accused person. The finding that the appellant was not guilty of count one should not be elevated to an acceptance of his evidence denying that he had committed that offence.
The respondent further submits that upon having found the complainant to be unreliable in respect of a central aspect of count one, the Magistrate was required to scrutinise her reliability closely in relation to count two. The Magistrate did that. The respondent submits that the Magistrate did not err in treating his finding about the absence of the television in the bedroom at Alberton as being a separate issue to the allegation of sexual abuse at that location and a in failing to apply that finding in favour of the appellant when considering count two.
Ground 4
The respondent submits that the fourth ground raised by the appellant is unarguable. That is because, contrary to the submission of the appellant, the Magistrate made an express finding that the evidence of the appellant did not give rise to a reasonable doubt. Furthermore, contrary to the submission of the appellant, the Magistrate specifically considered the evidence given by the appellant concerning opportunity to commit the offence in count two. The appellant has conceded that his evidence that he was not in the habit of taking daytime naps and was often absent from the home during the week did not amount to an alibi. Thus, his evidence did not present a “solid obstacle” to a finding of guilt. Even if accepted, his evidence was consistent with him having the opportunity to commit count two. Taken at its highest, the evidence of the appellant merely limited his opportunity to commit the offence.
In that respect, the respondent submits that the evidence of the appellant can be contrasted with the “solid obstacle” to guilt identified by the High Court in Pell v The Queen.[25]In Pell there was an unchallenged body of evidence that was inconsistent with the appellant having had the opportunity to commit the offences of which he had been convicted.
[25] (2020) 268 CLR 123 at [40], [127].
In this case, even if the evidence of the appellant that he had limited opportunities to commit the offence was accepted, that was not inconsistent with him having committed the offence. Thus, it was open to the Magistrate, having found the appellant’s evidence plausible, to accept the evidence of the complainant beyond reasonable doubt and to reject the denial by the appellant.
Ground 5
The respondent submits that the appellant’s complaint that the Magistrate did not give himself at Murray direction, or an adequate direction to scrutinise the complainant’s evidence with care, overlooks the Magistrate’s close scrutiny of her evidence.
The failure of the Magistrate to specifically refer to Murray is, in the submission of the respondent, understandable because counsel for the appellant at trial failed to refer either to that decision or the direction that it contemplates. Instead, counsel referred in his submissions to the need for a direction under s 34L(5) of the Evidence Act.
Although the Magistrate did not refer to Murray, the respondent submits that his Honour had regard to each of the matters that the appellant contends were required to have been taken into account when scrutinising the evidence of the complainant. The appellant has not identified any necessary matter that the Magistrate did not consider when scrutinising the prosecution case. The Magistrate specifically took into account each of the matters referred to at [46].
Accordingly, the appellant submits that it was not necessary for the Magistrate to direct himself to scrutinise the evidence of the complainant with care. It is quite apparent from his Honour’s reasons that he gave practical effect to such a direction. Moreover, the respondent submits that a Murray direction “makes more sense” in the context of the directions given by a trial judge to a jury.
Ground 6
The respondent submits that the Court should give due weight to the advantage of the Magistrate in assessing the witnesses. Here, the Magistrate assessed the complainant as being articulate and measured in her evidence. She was clear as to what she did and did not recall, and described the alleged indecent assaults in a composed manner. Her evidence about attending the Seaton house was clear, as was her evidence about the conversation preceding her entry into the bedroom with the appellant. Her evidence of how and where she was touched was detailed. The pain that she felt and her evidence of her complaint to her mother were prominent in her memory. The Magistrate also found that the complainant’s evidence of her complaint to her mother was honest and reliable. The Magistrate concluded that the complainant was most impressive and that her evidence concerning count two was thoroughly convincing. The Magistrate found that there was no indication that the complainant was mistaken or had reconstructed her evidence in relation to count two. In this light, the respondent submits that the assessment of the evidence given by the complainant is not affected by the missing passages of her evidence-in-chief.
The respondent submits that there is no particular level of detail that must be included in an account of sexual assault for it to be accepted beyond reasonable doubt. Here, the complainant provided considerable detail on significant matters relating to count two. It is unremarkable that she was unable to state the day of the week or the month in which count two occurred. Similarly, the inability of the complainant to state whether the appellant had laid down at a particular point, what he was wearing, which hand he had used to assault her, or how long she had stayed on the premises was not in any way remarkable. The respondent submits that it would be extraordinary if a conviction could only be sustained on appeal where such details had been provided at first instance. The respondent submits that it is unarguable that the Magistrate correctly concluded that these criticisms about the evidence of the complainant were directed to “facts of peripheral or lesser importance”.
The respondent also submits that the Magistrate dealt within his judgment with the submissions by the counsel for the appellant concerning inconsistencies in the account given by the complainant. The respondent submits that the difference between kneeling and sitting at the time of the offence was correctly characterised by the Magistrate as being of little significance. Similarly, the respondent submits that there was no substance in the complaint that the complainant was inconsistent in that she said that the appellant removed her underpants when she previously said that he had removing her clothing from the waist down.
For these reasons, the respondent submits that the evidence of the complainant in relation to count two was appropriately detailed. After carefully considering her evidence, the Magistrate assessed her to be a most impressive witness. Her evidence at trial was not materially inconsistent with earlier statements. Bearing in mind the forensic disadvantage to which the appellant was subject, the respondent submits that his evidence does not give rise to a reasonable doubt as to his guilt and should be rejected.
Consideration
Ground 1
The appellant complains in ground 1 that the Magistrate erred by directing himself that the forensic disadvantage to which the appellant was subject was to be taken into account in assessing defence evidence.
The Magistrate referred at several points in his judgment to the issue of forensic disadvantage. In particular, his Honour stated:
The defendant RB’s evidence on count 2 was consistent and his denial of any sexual assault or contact with GB emphatic. I take into account the long delay from the alleged offending until the trial may make it more difficult for the defendant to raise a detailed defence (for instance, one based on an alibi or, at least, that it was unlikely he would have been home at the time of the alleged offence), or to challenge some details of GB’s evidence, due to witnesses or other evidence being unavailable or untraceable.
At a later point in the judgment, after discussing the evidence of the appellant that there were times during the latter part of 1973 when he would have been away from home during the day and that he denied having the habit or practice of taking a daytime lie down or nap, the Magistrate observed that this evidence was plausible and:
… as definitive as the lapse of time of 48 or 49 years allowed. In considering RB’s evidence, I have regard to the significant forensic disadvantage (outlined earlier) to RB when assessing his evidence (and the evidence generally).
The two passages from the judgment that I have quoted make it quite clear, particularly when read in the context of the judgment as a whole, that the Magistrate correctly approached the question of forensic disadvantage. It is certainly not the case that his Honour approached the appellant’s evidence on the footing that it should be treated as lacking in reliability because of the time elapsed. His Honour correctly identified that, when assessing the appellant’s evidence, it was necessary to recognise that the passage of time presented a real difficulty for him in marshalling evidence and responding to the allegations made by the complainant. I therefore reject the contention by the appellant that the Magistrate misunderstood how forensic disadvantage bore upon the assessment of his evidence. To the contrary, the Magistrate was alert to the difficulty faced by the appellant.
I find that the Magistrate did not err in directing himself that forensic disadvantage was to be taken into account in scrutinising the defence evidence. The approach adopted by his Honour was perfectly orthodox and correct. I dismiss ground 1.
Ground 3

Ground 3 asserts that the Magistrate erred by failing to provide any or adequate reasons for finding the appellant’s evidence to be false. More specifically, the appellant contends that the Magistrate failed to explain the reasoning process that led to the rejection of his evidence nor the basis for doing so. In essence, the appellant submits that the Magistrate engaged in impermissible binary or preferential reasoning.
The respondent submits that because of the minimal detail in the evidence given by the appellant, there was little that his Honour could say by way of explanation for the rejection of that evidence after having given it careful scrutiny and also having considered the denial by the appellant and taken account of his significant forensic disadvantage.
The appellant relies on Douglass v The Queen.[26]However, the respondent submits that Douglass is distinguishable as in that case the trial judge had concluded that the appellant was guilty without having rejected his sworn denial of the offence.
[26] (2012) 290 ALR 699.
In Douglass, the South Australian Court of Criminal Appeal had held that it may be enough for a judge to state that he or she believes one witness in preference to another witness. That observation had been made in relation to a trial characterised as a case of “word against word” which required the trial judge to assess the credibility and reliability of the evidence of the complainant and the appellant.
Where the evidence of the appellant and the complainant conflicted in respect of count two, the Magistrate expressly rejected the evidence of the appellant beyond reasonable doubt and accepted beyond reasonable doubt the evidence of the complainant. Thus, his Honour did not err in the manner identified by the High Court in Douglass where the trial judge had not rejected the evidence of the appellant. To that extent, I accept the respondent’s contention that Douglass is distinguishable. However, there remains an issue as to the Magistrate’s reasoning process and the basis upon which his Honour rejected the appellant’s evidence.
In that respect, the appellant contends that the Magistrate may have fallen into the error identified in Murray v The Queen[27] and in R v Calides.[28]
[27] (2002) 211 CLR 193.
[28] (1983) 34 SASR 355.
In Murray, Gummow and Hayne JJ held that:[29]
The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
[29] (2002) 211 CLR 193 at [57].
To like effect, Gaudron J observed in Murray that the issue put to the jury was whether they accepted the prosecution or defence version of events. However, the required question was whether the prosecution had negatived the defence version as a reasonable possibility. The result of the direction given by the trial judge had been to remove the need for the prosecution to prove its case beyond reasonable doubt.[30]
[30] (2002) 211 CLR 193 at [23].
In Calides, Wells J held, with Legoe and Matheson JJ agreeing, that there are three possibilities in a criminal trial.[31] Those being, first, that the jury believes the prosecution evidence and, if so, the defendant must be found guilty. Secondly, the jury believes the defendant, in which case there must be an acquittal. Thirdly, if the jury is unsure where the truth lies, there must be an acquittal. As the judge had not mentioned the third possibility in his directions, the matter had to be sent back for re-trial.
[31] (1983) 34 SASR 355 at 358-359.
A further authority referred to by the appellant is a passage from the judgment of von Doussa J in Harris v Mill[32] that was referred to with approval by Jacobs J in Selig v Hayes[33] where von Doussa J had stated:
In a sense the key issue in many trials is credibility, but to pose the question as ‘who to believe’ is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: ‘Which of the parties giving the competing stories is to be preferred.’ The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.
[32] Harris v Mill (Supreme Court of South Australia, von Doussa J, 7 April 1988).
[33] (1989) 52 SASR 169 at 171-172.
It is necessary to closely examine the findings of the Magistrate in light of the principles stated in Murray, Calides and Harris v Mill. The Magistrate made the following findings concerning the evidence of the complainant:
·She was a truthful and impressive witness.
·An honest witness may be mistaken.
·There were some aspects of the circumstances of count two that the complainant did not recall or did so with uncertainty.
·Her evidence was clear on when, where and how count two occurred and the physical and emotional impact it had on her.
·Her evidence on the substance of the alleged indecent assault was detailed and convincing.
·The Magistrate was satisfied that the complainant’s evidence about having a conversation with her mother concerning her disclosure of an indecent assault by the appellant was honest and reliable.
·Her evidence as to her reasons for having continued contact after 1973 with the appellant and for making no formal complaint or disclosure to the police until January 2021 was truthful and reliable.
·The Magistrate considered the possibility that the complainant’s evidence on count two may have been influenced by mistake or an innocent or unconscious reconstruction of events. Such a finding had been made in respect of count one albeit that it was an offence different in time, place and circumstances from count two, and the same factor of long delay between the alleged offence and the police statement and trial was relevant to count two.
·Overall, the evidence of the complainant on the substance of the alleged indecent assault was clear and detailed.
·There was no indication of mistake or innocent reconstruction occasioned by a delay or other circumstances.
·The complainant’s evidence on count two did not indicate unreliability or a tendency towards reconstruction in her recollection regarding count two.
·The complainant was a most impressive witness and her evidence concerning count two was thoroughly convincing.
·While there were aspects of count two that the complainant could not recall, or were recalled with some uncertainty, the Magistrate was satisfied beyond reasonable doubt that her recollection and evidence concerning the substance of the indecent assault was honest and reliable.
·Where the evidence of the complainant and the appellant conflicted concerning count two, the Magistrate rejected the evidence of the appellant and accepted beyond reasonable doubt the evidence of the complainant.
In contrast to that fairly detailed assessment of the credibility and reliability of the complainant, the Magistrate said very little about the appellant’s evidence. The Magistrate made the following findings:
The appellant was consistent in his denial of any indecent assault on the complainant at the Seaton house.
Clearly, there were times during the latter part of 1973 when the appellant would have been away from home during the day for study or field training.
The appellant denied having a habit or practice of taking a daytime lie down or nap.
That evidence was plausible, given his study and age at the time, and as definitive as a lapse of time of 48 or 49 years allowed.
In considering the appellant’s evidence, the Magistrate had regard to the significant forensic disadvantage.
The Magistrate expressly observed that if the evidence of the appellant was to be accepted, or found to be a reasonable possibility, or if his Honour was unable to conclude where the truth lay, the charge must be dismissed. In effect, that observation amounted to a direction given by the Magistrate to himself. To that extent, the judgment of the Magistrate was consistent with the decision of the Full Court in Calides.
However, the Magistrate found that the appellant’s denial that he had a habit or practice of taking a daytime lie down or nap during 1973 was plausible and was as definitive as the significant forensic disadvantaged caused by the lapse of 48 or 49 years allowed. Despite this formal compliance with the reasoning in Calides, the rejection of the appellant’s evidence beyond reasonable doubt is very difficult to reconcile with this finding.
The Macquarie Dictionary relevantly defines “plausible” as “having an appearance of truth or reason; seemingly worthy of approval or acceptance: a plausible story” (emphasis in original). That definition reflects my understanding of general usage of the word and there is nothing to suggest that the Magistrate used the word “plausible” in any other sense. That conclusion is reinforced by his Honour’s observation that the plausible evidence was a definitive as the lapse of time allowed.
Thus, the Magistrate found that the evidence of the appellant that he did not have a habit or practice of taking a daytime lie down or nap at the relevant period had the appearance of truth and was seemingly worthy of acceptance. Furthermore, that evidence was as definitive as the lapse of time allowed.
The Magistrate has not explained or reconciled those findings with the subsequent conclusion made beyond reasonable doubt that the denial by the appellant of the indecent assault at the Seaton house was false. In a case such as this, where the evidence in respect of count two amounted to oath against oath, the finding that the evidence of the appellant was false beyond reasonable doubt might potentially have been explained if there had been adverse findings by the Magistrate concerning the credit or reliability of the appellant based on his Honour’s observations as the appellant gave evidence. Thus, for example, the rejection of his evidence might have been explained if, after making appropriate allowance for forensic disadvantage, the Magistrate had found that the appellant had been inconsistent in his evidence in respect of fundamental issues, was evasive and implausible and the like. However, there was no such finding and nor has there been any suggestion that there should have been any finding to that effect. To the contrary, the appellant’s evidence on the key issue of opportunity was found to be plausible and as definitive as the lapse of time allowed. In those circumstances, I conclude that the Magistrate erred by failing to explain the basis upon which he concluded beyond reasonable doubt that the appellant’s evidence was false. For that reason, the Magistrate failed to provide adequate reasons. I uphold ground 3.
Ground 2
The substance of the complaint made by the appellant in ground 2 is that the Magistrate erred by failing to have regard to the finding made in respect of count one when considering the credibility and reliability of the evidence given by the appellant in relation to count two.
A submission that a judge should have warned the jury that a failure to be satisfied in respect of any one count should be carried into their consideration of other counts was considered by the Court of Criminal Appeal in R v B, P.[34]Vanstone J held (with Doyle CJ agreeing) that there was no requirement to warn a jury that if it doubted the evidence of a complainant with respect to one count it should take that into account in determining whether it was prepared to accept that witnesses’ evidence on other counts.[35] Vanstone J agreed with the reasons of Mullighan J in R v Liddy that“if any such warning were required it was an incident of the general duty of a trial judge to give such directions as are appropriate in the circumstances of the case”. [36]
[34] [2006] SASC 229.
[35] Ibid at [20]-[27].
[36] Ibid at [26], citing R v Liddy (2002) 81 SASR 22 at [190].
Vanstone J expressly rejected in R v B, P the finding of the Full Court in R v KWG that in a case of a sexual nature, resting only on the evidence of a single complainant where there was no material reason to discriminate between the evidence going to each count, the jury should be warned that if it doubted the complainant’s evidence with respect to one count, it should take that into account in determining whether it was prepared to accept the complainant’s evidence on other counts.[37] Vanstone J also rejected the decision to like effect by the New South Wales Court of Criminal Appeal in R v Markuleski.[38] In R v Hare, the Court of Criminal Appeal (Vanstone J, with Nyland and Bleby JJ agreeing) followed the decisions in Liddy and R v B, P.[39]
[37] [2000] SASC 398, Martin J at [82] with Wicks J agreeing and Lander J at [7].
[38] (2001) 52 NSWLR 82.
[39] [2007] SASC 427.
In R v B, P, Doyle CJ agreed with Vanstone J. However, his Honour also observed that “I would expect the jury to realise that a doubt about the reliability of the complainant’s evidence on a particular count could be taken into account when considering other counts.”[40]
[40] [2006] SASC 229 at [6].
It is quite clear that the law in South Australia as expressed in the Full Court decisions in Liddy, R v B, P and Hare is that a judge is not required to warn a jury that if it doubts the evidence of a complainant concerning one count it should take that into account when deciding whether it is prepared to accept the complainant’s evidence on other counts. Whether any warning of that type is required must be determined under the general duty to give such warnings as may be necessary in the circumstances of the case.
The Magistrate expressly recorded that given the delay between the alleged incident in 1973 and the first formal statement made by the complainant to the police in 2021 and the trial in 2022, he had considered the possibility that her evidence on count two may have been influenced by mistake or an innocent or unconscious reconstruction of events. After making that observation, his Honour referred to his finding in respect of count one that there was a reasonable possibility of mistake or innocent or subconscious reconstruction by the complainant on two aspects of her evidence. His Honour further noted that while this finding was discrete to count one, which was an offence different in time, place and circumstances from count two, and when the complainant was one or two years younger, the same factor of long delay was relevant to count two.
After making those observations, the Magistrate went on to find that not only was the complainant’s evidence concerning the substance of the indecent assault alleged in count two clear and detailed, but also that it was without any indication of mistake or an innocent reconstruction occasioned by delay or other circumstances.
Given the matters I have referred to in the two preceding paragraphs, I consider it to be quite clear that the Magistrate was well aware that he could take into consideration any doubt that he held about the reliability of the complainant in respect of count one when considering her evidence in respect of count two. Most importantly, his Honour clearly did that. I therefore reject the appellant’s contention in ground 2 that the Magistrate erred by failing to have regard to the finding made concerning count one when considering his credibility and reliability in relation to count two. I dismiss ground 2.
Ground 4
A central element in the factual account put forward by the complainant was that the indecent assault alleged in count two occurred when she had joined the appellant in taking a nap during the afternoon in the bedroom at the Seaton house. Thus, just as the complainant’s evidence that she was watching television with the appellant in a bedroom at the Alberton house was a central element of the allegation made in count one, the taking of a nap or having a lie down was central to count two. The rejection of the complainant’s evidence that there was a television in the bedroom at Alberton resulted in the acquittal of the appellant on count one. The issue is whether there is a reasonable doubt as to the reliability of the complainant’s evidence about taking a nap with the appellant at the Seaton house.
The appellant complains in ground 4 that the Magistrate erred by failing to determine whether his evidence raised a reasonable doubt as to the proof of count two. While the appellant acknowledges that his evidence that he did not take naps or lie downs during the day did not amount to an alibi, he submits that the Magistrate was required to consider the effect of his evidence on the question of opportunity. The failure to do so, combined with the incongruity between the findings, reinforces his submission as to the inadequacy of the Magistrate’s reasoning.
The respondent submits that this is a very different case to Pell v The Queen.[41] The issue in Pell was that unchallenged evidence showed that the appellant had no opportunity to commit the two alleged offences. The unchallenged evidence included that, at the relevant times, Cardinal Pell would have been talking to the congregation outside the cathedral, rather than at the two places where the offences allegedly occurred. This effectively amounted to an alibi. In contrast, the appellant acknowledges that his evidence that he was not in the habit of taking daytime naps and was often absent from home did not constitute an alibi. Thus, the respondent submits that this evidence was not a “solid obstacle” to a finding of guilt in the sense found in Pell. Thus, even if the appellant’s evidence were to be accepted, it was consistent with him having the opportunity to commit the conduct comprised in count two. His evidence did no more than limit his opportunity to commit the offence. It was therefore open to the Magistrate, after finding the appellant’s evidence to be plausible, to accept the complainant’s evidence beyond reasonable doubt and to reject the appellant’s denial.
[41] (2020) 268 CLR 123.
In considering this appeal under s 42 of the Magistrates Court Act, I must scrutinise and evaluate the evidence and make up my own mind after undertaking an independent review. If I come to a different view on the evidence, I must give effect to that view by substituting my view for that of the Magistrate.[42]
[42] Police v Kyriacou (2009) 103 SASR 243, Sulan J at [52]; Police v Adams (2011) 213 A Crim R 323, Stanley J at [47].
In his evidence-in-chief, the appellant unequivocally denied that he lay down for a rest during the day at the time of the alleged offence, although he conceded that as he was now aged 69 years he might do so. In cross-examination he stated that he had no recollection of ever lying down in the afternoon at the Seaton address. When asked whether it was possible that he may have laid down he said it was unlikely. He then denied that it was possible because he did not recall ever lying down in the afternoon.

After hearing and seeing the appellant give this evidence, the Magistrate found it to be plausible given the appellant’s study and age at the time, and as definitive as the lapse of some 48 or 49 years allowed. There is certainly nothing on the face of the oral evidence that causes me to doubt in any way the accuracy of the assessment made by the Magistrate. As I have previously found, the Magistrate correctly recognised the forensic disadvantage to which the appellant was subject.
The respondent submits that even when taken at its highest, the evidence of the appellant only limited his opportunity to commit the offence comprised in count two and did not amount to a “solid obstacle” to his conviction. However, I do not consider that to be a correct understanding of the evidence given by the appellant. While at one point he used the word “unlikely” in response to a question as to whether it was possible that he had forgotten laying down in the afternoon, his subsequent evidence was that he did not accept that he would ever have laid down during the day. The interpretation advanced by the respondent is also contrary to the finding by the Magistrate.
I consider it to be clear as a matter of construction that the words used by the Magistrate, namely “[t]his evidence was plausible … and as definitive as the lapse of time of 48 or 49 years allowed” (emphasis added) related to both the appellant’s evidence that he was often absent from home during the week and also his evidence that he did not take daytime naps, i.e., “this evidence” referred to both limbs of the preceding sentence. The evidence of absence from home served only to limit the appellant’s opportunity to commit the alleged offence but did not preclude its commission. In that respect I accept the submission by the respondent. However, the appellant’s evidence that he did not take naps operated to remove the opportunity to commit the offence.
I consider that the finding by the Magistrate that the appellant’s evidence that he did not take naps was plausible and as definitive as the lapse of time allowed gave rise to a reasonable doubt that he had the opportunity to commit the offence alleged in count two.
The Magistrate did not consider or explain how the finding of plausibility and definitiveness might be reconciled with the subsequent finding that the evidence of the appellant was false beyond reasonable doubt. Whether or not that was the product of binary or preferential reasoning as the appellant contends, I consider that the rejection of the appellant’s evidence beyond reasonable doubt was plainly inconsistent with the Magistrate’s finding that his evidence relating to lack of opportunity was as plausible and definitive as the passage of time allowed. Given that express finding on the evidence, I am satisfied that there was a reasonable doubt as to the proof of count two. I therefore uphold ground 4.
Ground 5
The extent to which reasons for a decision by a judge alone must replicate the instructions that would be given to a jury was considered by the Full Court in R v Keyte.[43] Doyle CJ stated[44] that there was considerable force in what Kirby P had said in R v Winner where his Honour stated:[45]
It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred.
[43] (2000) 78 SASR 68.
[44] Ibid at [54].
[45] (1995) 79 A Crim R 528 at 530-531.
Doyle CJ held in Keyte that the circumstances of that case required the Judge to explain what use was made of the evidence of uncharged acts and also to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. These two matters involved difficult areas of law and the silence of the Judge’s reasons prevented the Court of Appeal from discharging its statutory function.[46] Doyle CJ also stated that the adequacy of reasons will depend upon the circumstances of a case and the issues involved.[47] However, his Honour made clear that he was not suggesting that a decision of a judge must set out all matters that would be found in directions given to a jury.[48]
[46] (2000) 78 SASR 68 at [55].
[47] Ibid at [57].
[48] Ibid at [58].
The appellant has referred in support of his submissions to the decision of the High Court in Fleming v The Queen.[49]The appellant, Fleming, had been convicted of sexual offences after a trial by judge sitting alone in New South Wales. Section 33(3) of the Criminal Procedure Act 1986 (NSW) requires that, in a trial by judge alone, if any Act or law requires a warning to be given to a jury in any such case, the judge is to take the warning into account in dealing with the matter. Section 33(2) requires a judgment in any such case to include the principles of law applied by the judge and the findings of fact on which the judge relied.
[49] (1998) 197 CLR 250.
The High Court held in Fleming that the effect of these provisions was to require that a warning be recorded and heeded if it was called for in a particular case. Effect must be given to a warning “in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.”[50]
[50] Ibid at [33].
I consider the decision of the High Court in Fleming to be distinguishable on the basis that that case was decided in accordance with the relevant NSW statute. The law in South Australia is as stated in Keyte. The question therefore is whether the Magistrate needed to warn himself that because the prosecution case relied entirely on the evidence of the complainant it was necessary to scrutinise her evidence with particular care or, alternatively, whether it is apparent from the judgment that the Magistrate did adopt this approach without administering a formal warning.
I am satisfied for the reasons indicated at [110] that the Magistrate carefully scrutinised the evidence of the complainant. I therefore accept the correctness of the submission by the respondent that although the Magistrate did not administer himself a Murray warning, he effectively adopted the approach required in such a direction. I also accept the respondent’s submission that the appellant has not identified any matter that the Magistrate failed to take into account when scrutinising the complainant’s evidence. For these reasons, I dismiss ground 5.
Ground 6
The appellant contends in ground 6 that the finding of guilt in count two is unreasonable and against the weight of the evidence. Ground 6.1 is founded upon the failure to record that part of the evidence-in-chief of the complainant where she described the conduct of the appellant that was said to comprise the offence. The appellant contends that the unavailability of that material precludes the Court from undertaking its independent evaluation of the whole of the evidence. The respondent contends that the unchallenged recitation by the Magistrate of the complainant’s evidence-in-chief is sufficient to fill the gap created by the missing transcript, particularly as there seems to be no doubt as to what the complainant had said.
As previously noted, the missing transcript covering the complainant’s evidence-in-chief covered a period of 23 minutes. The transcript resumes with the complainant’s answer to a question that apparently asked why she had not resisted the appellant allegedly committing the indecent assault that is the subject of count two. She then went on to give evidence about telling her mother that evening about what had occurred and her mother’s response. She then referred to various alleged incidents of discreditable conduct on the part of the appellant. That material was received de bene esse but was ultimately not admitted into evidence.
The complainant gave quite detailed evidence of the specific nature of the indecent assault in cross-examination but she was unable to provide much detail about the surrounding circumstances. Importantly, counsel for the appellant at trial did not suggest in the course of cross-examination that the answers given to his questions about the details of the actual indecent assault or the surrounding circumstances were inconsistent with the complainant’s evidence-in-chief. The Magistrate also set out in some detail the complainant’s evidence-in-chief and noted that he was able to do so by reference to his own notes taken at the trial. While the counsel at trial proved two inconsistencies in the evidence of the complainant (i.e., as to whether the appellant had knelt or sat between her knees and whether the appellant only removed her underwear or all of her clothing from the waist down), the alleged inconsistencies related to her statements to the police and her evidence at trial rather than between her evidence-in-chief and cross‑examination.
Counsel did not refer to any authority and nor has my research identified any Australian authority where the issue of missing transcript has been considered on appeal. However, there are three decisions of the Court of Appeal in England where the issue was considered in the context of determining whether a conviction was unsafe or unsatisfactory.[51] It was held in each of those cases that an absence of or defect in the transcript was not, of itself, a ground on which an appeal could succeed. However, if there was reason to believe that there was something wrong in connection with the hearing, then the absence or insufficiency of the transcript may be material.
[51] R v Elliott (1909) 2 Cr App R 171, CCA; R v Payne, R v Spillane (1971) 56 Cr App R 9, CA; R vLe Caer (1971) 56 Cr App R 727, CA.
In R v Spillane, the transcript was grossly inadequate.[52] The issue before the Court of Appeal was whether the Chairman of Quarter Sessions had directed the jury on a particular question of law. Defence counsel deposed that no such direction had been given while the prosecutor deposed to the contrary but did not firmly press the point. In a note prepared for the Court of Appeal, the Chairman stated that he had a firm recollection of directing on the relevant question and that was supported by his preparatory notes. The Court held that while it was more likely than not that the Chairman was correct, as this was a criminal matter, the benefit of the doubt must be given to the appellant. The Court declined to apply the proviso and the conviction was quashed.
[52] (1971) 56 Cr App R 9, CA.
The issue in the present case is whether the gap in the transcript prevents this Court from conducting an independent review of the matter. Because of the conclusions I have reached in respect of grounds 3 and 4, it is not strictly necessary to reach a final decision on this question. The English authorities support my view that a defect in transcript is not, of itself, decisive. In the context of the present appeal, the issue is whether that deficiency has prevented the Court from properly conducting an independent review of the evidence.
I consider that question to be finely balanced. As I have determined that the appellant’s conviction should be quashed and a verdict of acquittal entered, it is unnecessary to decide the point. If I had decided that the gap in the transcript required that the appeal be upheld, that could only have resulted in the remission of the matter for re-hearing.
The appellant complains in particular 6.2.1 that the complainant’s recorded evidence was lacking in detail, included demonstrated inconsistencies and conflicted with other evidence that was not shown to be unreliable or false. The appellant supports this ground with the observation that the level of detail contained in the evidence-in-chief of the complainant relating to count two is unknown. Her evidence-in-chief about ancillary issues was very generalised and in cross-examination she was able to provide little detailed further information with the result that there is a paucity of detail about important contextual matters.
The Magistrate specifically noted that there were aspects of count two that the complainant could not recall, or only recalled with some uncertainty. Nevertheless, his Honour was satisfied beyond reasonable doubt as to the recollection and evidence of the complainant concerning the substance of the indecent assault charged in count two. On this basis the Magistrate was satisfied beyond reasonable doubt that the offence had occurred as charged. At an earlier point, his Honour had stated that in assessing the complainant’s evidence he had regard to the potential difficulty in accurately recalling events from nearly 50 years earlier.
The Magistrate clearly turned his mind to the inability of the complainant to remember peripheral or incidental matters relating to the indecent assault. Having done so, his Honour was satisfied beyond reasonable doubt. I have conducted an independent review of the evidence while bearing in mind that a significant element of the transcript is missing.
I consider it unsurprising that after some 50 years a person who was aged nine years at the time of the alleged indecent assault was unable to remember the day of the week or the month when the incident occurred, or what the appellant was wearing. Those are truly peripheral details when compared to the fact of the alleged indecent assault.
After careful consideration, I have reached the same conclusion concerning the uncertainty of the complainant as to which hand the appellant used to touch her genital area. The evidence of the complainant in cross-examination concerning the actual indecent assault was specific and not shaken in the course of the cross‑examination. For that reason, and having regard to the finding by the Magistrate that the complainant was a most impressive witness and that her evidence was thoroughly convincing, I am not persuaded that the lack of detail in her evidence in relation to ancillary or incidental issues was such as to cause me to hold a reasonable doubt about her evidence.
The appellant also complains of inconsistencies in the evidence of the complainant. He submits that his counsel at trial proved two inconsistencies. Those inconsistencies were, first, that she had told the police that the appellant had sat between her knees whereas in evidence she stated that he had knelt between her knees, and, secondly, that she apparently said in evidence that he had removed her underwear while she had told the police that he had removed her clothing from the waist down. The Magistrate specifically addressed both of those issues.
His Honour considered it to be of little significance whether the appellant had knelt or sat between the complainant’s legs. In both instances an action was being described that was physically similar and consistent with the type of sexual assault being alleged. I have reviewed that evidence and find the inconsistency does not persuade me to hold a reasonable doubt about the evidence given by the complainant. I very much doubt that the primary focus of a child who is the victim of such an offence is going to be on whether the perpetrator was kneeling or sitting.
The Magistrate held that the difference between the complainant’s evidence that the appellant took her underwear off when they were on the bed was fundamentally consistent with her statement to the police that the appellant had “removed my clothing from the waist down”. His Honour explained that observation by noting that the description given in evidence may be less complete or detailed as to what undressing was required to expose the complainant’s genital area. As his Honour noted, if the complainant was wearing a dress or a skirt it would only have been necessary to remove her underwear but if she was wearing trousers they would also have needed to be removed.
As the Magistrate identified, because the complainant could not remember what she had been wearing at the time of the alleged assault, the statement she made to the police and her evidence at trial were not necessarily inconsistent. As I understand it, the focus of her evidence and of her statement to the police was upon the fact that the appellant allegedly removed so much of her clothing as was necessary as to enable the commission of the offence. Of course, it is this lack of detail that forms the basis of the appellant’s complaint that the shortage of detail indicates a risk of reconstruction. Ultimately, however, I consider the core issue to be that the appellant had removed the complainant’s clothing to the extent necessary to perpetrate the indecent assault. As the Magistrate identified, it may not necessarily have been an inconsistency but simply a lack of detail. Nevertheless, to the extent that there was an inconsistency, this aspect of the complainant’s evidence, even when considered in conjunction with the other matters of detail she could not or did not recount, does not cause me to hold a reasonable doubt as to the truth of her evidence.
The appellant submits in particular 6.2.2 that his evidence was not shown to be false or incorrect. He observes that the failure to give any reasons for rejecting his evidence is consistent with his Honour being unable to identify any such reasons. That, in his submission, indicates that the Magistrate wrongly reasoned that the acceptance of the complainant’s evidence necessarily resulted in the rejection of his evidence. As previously submitted in grounds 3 and 4, the appellant contends that this reasoning is not valid or correct. It is unnecessary for me to repeat what I have already said in respect of grounds 3 and 4.
The appellant submits that due to the deficiencies in the evidence of the complainant, combined with the inability to exclude his evidence as a reasonable possibility, it was not open to the Magistrate to find him guilty of count two beyond reasonable doubt. There remains a reasonable doubt as to his guilt. Once again, I have already considered this issue in response to grounds 3 and 4.
Ground 6 replicates some of the issues that I have considered in response to grounds 3 and 4, but also advances additional contentions. While I accept the correctness of the contentions advanced in support of grounds 3 and 4 insofar as they relate to the finding by the Magistrate that the appellant’s evidence concerning the opportunity to commit the offence was plausible, thereby raising a reasonable doubt as to his guilt, I have previously rejected his other contentions raised pursuant to ground 6. I uphold ground 6 to the extent that it replicates the matters considered under grounds 3 and 4 but otherwise dismiss ground 6.
Disposition of the appeal
I have found that the appeal should be upheld on grounds 3 and 4 and under ground 6 to the extent that ground replicates the matters considered under grounds 3 and 4 and otherwise dismissed. Clearly the conviction on count two must be quashed. The further question is whether a verdict of acquittal should be entered or the matter remitted for rehearing before a different Magistrate.
Section 42(5) of the Magistrates Court Act empowers the Court on the hearing of this appeal to confirm, vary or quash the judgment that is the subject of the appeal. The Court may also remit the case for further hearing before the Magistrates Court. While s 42(5) is materially different from s 158(1) of the Criminal Procedure Act which deals with appeals to the Court of Appeal from decisions of the District Court and the Supreme Court, the principles that have been developed concerning the order of a retrial under the common form appeal provisions (which include s 158(1)) are highly relevant to the exercise of the discretion under s 42(5).

In Director of Public Prosecutions (Nauru) v Fowler, the High Court stated the relevant principles in the following terms:[53]
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. … Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.
[53] (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ at 630.
The Court of Appeal recently considered the application of these principles in Kerin v The Queen.[54] The Court of Appeal held that the prosecution carried the onus of satisfying the Court that a new trial should be ordered and also that the primary consideration in exercising the discretion was whether it is in the interests of justice for a new trial to be held.[55]
[54] [2022] SASCA 19.
[55] Ibid at [15].
In my consideration of ground 4 I have concluded that due to the finding by the Magistrate that the evidence of the appellant concerning lack of opportunity to commit the offence was plausible and definitive as the passage of time allowed, a reasonable doubt existed as to the guilt of the appellant. For that reason, consistently with the decision of the High Court in Fowler, and of the Court of Appeal in Kerin, the appellant’s conviction must be quashed and a verdict of acquittal must be entered.
Conclusion
I make the following orders:
1.I uphold the appeal on grounds 3 and 4 and also ground 6 to the extent that it replicates the matters considered under grounds 3 and 4.
2.I dismiss grounds 1, 2 and 5 and also ground 6 to the extent that it does not replicate grounds 3 and 4.
3. I quash the conviction entered against the appellant on 8 June 2022.
4. I order that a verdict of acquittal be entered.