Simpson (a pseudonym) v The King - [2024] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SIMPSON (A PSEUDONYM) v THE KING
[2024] SASCA 37
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
28 March 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
This is an appeal against conviction.
The appellant pleaded not guilty to two counts of gross indecency contrary to s 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) two counts of inciting or procuring a child to commit an indecent act contrary to s 63B(1)(a) of the CLCA, and one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The three complainants are sisters and were the stepdaughters of the appellant. Following a trial without a jury, the appellant was found guilty of one count of gross indecency (Count 1) and one count of inciting or procuring a child to commit an indecent act (Count 2). He was acquitted of the remaining counts (Counts 3, 4 and 5).
In relation to Count 1, it was alleged that between 31 December 2004 and 1 January 2006, the appellant committed an act of gross indecency in the presence of the first complainant, B, a person under the age of 16 years, by exposing his penis to her. In relation to Count 2, it was alleged that between 30 January 2005 and 1 January 2009, the appellant incited or procured the second complainant, S, a person under the age of 17 years, to commit an indecent act, namely touching his penis. The charges the subject of Counts 3, 4 and 5 were in relation to a third complainant, C.
The appellant now seeks permission to appeal against his convictions on the following grounds:
1.There was a miscarriage of justice occasioned by the trial Judge’s treatment of B’s evidence regarding the first occasion she spoke to S about the alleged sexual offending, (‘the hypothetical conversation’). The appellant complained that the trial Judge erred by failing to take into account the evidence of the hypothetical conversation when assessing whether there was ‘inadvertent contamination’ between the accounts of B and S, and when assessing the credibility and reliability of B.
2.The trial Judge erred by using a finding that the appellant lied about having a positive relationship with the complainants, without more, to reject the appellant’s denials, and by providing inadequate reasons for rejecting the appellant’s denials.
Held, per the Court, granting permission to appeal on both grounds but dismissing the appeal:
1. The hypothetical conversation (considered alongside all the evidence adduced at trial) did not provide an evidentiary basis for a finding of inadvertent contamination between the accounts given by B and S, and there was no miscarriage of justice.
2.B provided a cogent explanation for the purported prior inconsistent statement, embedded in the hypothetical conversation, that the offending ‘didn’t happen’. By virtue of her explanation and the context in which the statement was made, it could have had no material bearing on the credibility and reliability of B’s evidence. There was no miscarriage of justice.
3.It was open to the trial Judge to reject the appellant’s denials as being reasonably, possibly true.
4.The trial Judge’s reasons, although brief, adequately set out his basis for rejecting the appellant’s denials.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 58(1)(a), 63B(1)(a); Evidence Act 1929 (SA) s 34M, referred to.
DL v The Queen (2018) 266 CLR 1; Nguyen v The Queen (2020) 269 CLR 299, discussed.
JGS v The Queen [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; Mule v The Queen (2005) 79 ALJR 1573; R v Keyte (2000) 78 SASR 68; R v M, DV (2019) 133 SASR 470; Sexton v The Queen (2022) 141 SASR 325, considered.

SIMPSON (A PSEUDONYM) v THE KING
[2024] SASCA 37
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: This is an appeal against conviction. The appellant pleaded not guilty to two counts of gross indecency contrary to s 58(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), two counts of inciting or procuring a child to commit an indecent act contrary to s 63B(1)(a) of the CLCA, and one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the CLCA. The three complainants are sisters and were the stepdaughters of the appellant. Following a trial without a jury, the appellant was found guilty of one count of gross indecency (Count 1) and one count of inciting or procuring a child to commit an indecent act (Count 2). He was acquitted of the remaining charges (Counts 3, 4 and 5).
In relation to Count 1, it was alleged that between 31 December 2004 and 1 January 2006, the appellant committed an act of gross indecency in the presence of the first complainant, B, a person under the age of 16 years, by exposing his penis to her. In relation to Count 2, it was alleged that between 30 January 2005 and 1 January 2009, the appellant incited or procured the second complainant, S, a person under the age of 17 years, to commit an indecent act, namely touching his penis. The charges the subject of Counts 3, 4 and 5 were in relation to a third complainant, C.
On 29 September 2023, the appellant was sentenced to 12 months imprisonment with a non-parole period fixed at six months.
The appellant now seeks permission to appeal against his conviction on the following grounds:
1.There was a miscarriage of justice occasioned by the trial Judge’s treatment of B’s evidence of the first occasion she spoke to S about the alleged sexual offending (Ground 1).
a.   The trial Judge correctly found that the evidence did not constitute an initial complaint. However, the trial Judge erred by considering the evidence inadmissible and failing to take into account the evidence, which amounted to a prior inconsistent statement related directly to the alleged offending, when assessing B’s credibility and reliability.
b.   The trial Judge, in addressing the topic of collusion and rejecting its possibility, erred by failing to consider the evidence of this conversation and the potential for inadvertent contamination.
2.There was a miscarriage of justice occasioned by the erroneous and inadequate reasons for the trial Judge’s rejection of the appellant’s denials made during his police interview (Ground 2).
a.   The trial Judge erred by finding that the appellant had lied about having a good relationship with the complainants.
b.   The trial Judge erred by using that finding, without more, to reject the appellant’s denials beyond reasonable doubt.
On the appeal hearing, the appellant accepted that it was open to the trial Judge to find that the appellant lied in his police interview about having a good relationship with the complainants, and thereby abandoned particular (a) of Ground 2.
For the reasons that follow, we grant permission to appeal on both grounds, but dismiss the appeal.
The trial
For the purposes of this appeal, the relevant contested issues at trial included: whether the appellant’s denial of the allegations in his record of interview with police could be rejected as reasonably possibly true; the conflicting evidence about the nature of his relationship with the complainants; B’s disclosure of the alleged offence to S; and the timing of a meeting between MP, S, B, C and Detective Brenton Holmes (‘Detective Holmes’) relating to the initial statements made to police by S and B. To properly address the grounds of appeal, it is not necessary to delve into the evidence regarding the third complainant, C.
At trial, all three complainants gave evidence, as did their mother, MP. B was 31 years old at the time of the trial, and S was 27. Relevantly, in relation to the complainants S and B, the prosecution relied on the evidence of five additional witnesses: police officer Christopher Kuchel, who took statements from both S and B; two student counsellors, Amanda Knight and Andrew Coulter, who gave evidence about S’s relationship with the appellant; Jessica Maynard, a former friend of B’s; and Detective Holmes, the investigating officer, who conducted a record of interview with the appellant on 17 November 2017.
The appellant did not give or adduce any evidence.
Summary of relevant evidence
B, the eldest sister, was born on 24 June 1991, and S, the middle sister, was born on 23 September 1995. B was around 13 or 14 years old, and S was around 12 or 13 years old at the time of the alleged offending. When the complainants first met the appellant, they resided with their mother, MP at their grandmother’s house in Murray Bridge. In 2005, the complainants relocated with their mother and the appellant to a residence on Christian Road in Murray Bridge, where the offences allegedly took place.
The allegations were confined to a single charged incident in respect of each complainant. In respect of Count 1, B gave evidence that she and the appellant were in the loungeroom watching television. The appellant, who was seated in his reclining chair and wearing only a dressing gown, began talking about male arousal, asking B if she knew what happens when a man gets ‘excited’. B gave evidence that the appellant then opened his dressing gown, exposing his erect penis, and asked B to touch it. B declined and left the room. She described feeling scared and uncomfortable.
B recalled this incident as a ‘sexual education type thing’, although she acknowledged that the appellant had never previously engaged her in a discussion about sex. During cross-examination, B denied any suggestion that her account was false.
Relevantly to the first ground of appeal, B’s evidence was that the first person to whom she spoke of the incident was her sister, S, shortly after the offending occurred (when she was around 13 or 14 years old). B said that the conversation was cast as a hypothetical. She said she ‘sort of proposed it to [S] as “if this happened would you tell mum?”’ (‘the hypothetical conversation’). In cross‑examination, B gave the following evidence:
QNow I think you said that the first person you told about this was [S].
AIn a hypothetical yes.
QWhat did you actually say to [S].
AI just said – explained what had happened ‘If he had asked me to touch his penis would you tell mum’ and she said ‘yes’ so I said ‘well it didn’t happen’, because I didn’t want her to tell them.
QSo where were you when that conversation occurred.
AAt our father’s house.
QWhere were you living at the time.
AChristian Road.
QAnd you have a clear recollection of this conversation with your sister [S].
AYes.
There was some brief cross-examination on another topic before defence counsel returned to the conversation:
QI’ll just go back to what you spoke to [S] about. So did you tell [S] precisely what happened.
AJust a hypothetical.
QBut hypothetically what happened.
AYes.
QWhat did you say to her. What were the words you used.
AI’m pretty sure I said – I just said ‘If Phil had shown his penis to me and asked me to touch it would you tell mum’ and she said ‘yes’. I said ‘It didn’t happen’.
Notably, S was not asked any specific questions about this conversation during her evidence-in-chief. S denied that she and her sisters discussed the appellant’s alleged sexual conduct with each other.
In respect of Count 2, S gave evidence that she was in the appellant’s bedroom with, she believed, her sister C, who would have been very young at the time. She said the appellant came out of the ensuite with an erect penis and invited her to touch it, which she did with her finger. She described ‘poking’ it. S was unable to provide any further detail about the alleged incident.
S said that the first person she spoke to about the allegations was police officer Kuchel, in May 2017. This occurred when she made her initial statement to police. She said that she had not previously disclosed the incident to anyone because she thought it was an ‘educational thing’ and, at the time, believed it to be ‘normal’. During cross-examination, she agreed that it was not until after her mother separated from the appellant (that being in June 2013) that she disclosed the alleged incident.
Evidence of physical punishment
It was the complainants’ evidence that the appellant was an excessive disciplinarian. Ultimately, this evidence was used by the trial Judge to rebut the appellant’s assertions, in his police interview, of having a positive relationship with the complainants. While it was acknowledged that it was permissible to use the evidence for this purpose, the appellant challenged the adequacy of the trial Judge’s reasons for using this evidence to reject the appellant’s denials (Ground 2).
B gave evidence that the appellant employed a ‘very strict’ and ‘military style’ parenting method, recalling instances of harsh discipline for minor issues. She detailed several physical altercations where he allegedly head-butted, pushed, and forcefully threw her to the ground. Similarly, S described the appellant as strict and controlling, and referred to occasional physical aggression, including one incident where he pushed her down the stairs. Both B and S mentioned instances of him using Tabasco sauce on them as punishment, by forcing them to put it in their mouths.
MP also gave evidence regarding the appellant’s relationship with the complainants. She acknowledged that he was a father figure to the complainants, and a disciplinarian. During cross-examination, however, MP said that while some of the discipline she witnessed by the appellant toward the complainants was inappropriate, it was not ‘extreme.’ She said that had she observed anything truly extreme she would have intervened.
In the appellant’s police interview on 17 November 2017, he claimed his relationship with the complainants was ‘excellent’ and that he treated them like his own daughters. While admitting to being strict, he denied any acts of brutality towards them.
The April meeting with Detective Holmes
At the trial, the complainants and their mother gave evidence about a meeting with Detective Holmes. The timing of this meeting was in dispute. Detective Holmes gave evidence that the meeting occurred on 13 April 2017 (‘the April meeting’). Detective Holmes, aided by his notes, gave evidence that the meeting was arranged to discuss C’s allegations against the appellant. It was his understanding that he would only be speaking with C and MP, and he was unaware that S and B would also be present as, at that stage, they had not made any complaint against the appellant.
Detective Holmes gave evidence that during the April meeting, all three complainants and their mother were present, and B and S disclosed instances of offending by the appellant towards them. Subsequently, on 8 and 9 May 2017, MP, B and S provided statements to police.
However, B, S and MP gave evidence which differed from that of Detective Holmes in relation to the sequence of events. S and B denied the April meeting occurred before they provided their initial statements to police, albeit acknowledging that their respective statements were dated May 2017. Furthermore, B and S both denied discussing the substance or detail of the allegations during the April meeting.
It was the defence case that the April meeting occurred after the appellant’s separation from MP, during a period marked by hostility due to the financial distress caused by the appellant to MP, and against the background of an ongoing dispute in the Family Court. Defence counsel suggested to both B and S that the allegations were fabricated at the instigation of their mother as a form of retaliation against the appellant. During cross-examination, both B and S denied these propositions.
B rejected the suggestion that she was present when her sisters S and C gave their statements to police.
S gave evidence that she had discussed the appellant’s physical conduct toward herself and her sisters after his separation from their mother, which, it was agreed, occurred in June 2013. However, she could not remember talking about the appellant’s alleged sexual misconduct with B or her mother before the April meeting. She acknowledged, however, discussing the appellant’s physical (but not sexual) behaviour towards herself and her sisters with B and her mother after the April meeting.
Appellant’s record of interview
Detective Holmes interviewed the appellant on 17 November 2017, more than a decade after the first instance of alleged offending, and about five years after his separation from MP. A transcript of that interview was tendered at trial as an aide-memoire.[1]
[1] Trial Exhibit MFI-P4 – Transcript of interview with accused dated 17 November 2017 (‘Trial Exhibit MFI-P4’).
During the interview, the appellant was not informed of the details of the allegations made by B and S against him. He denied there was any sexual contact with B and S, and said he was ‘shocked’ by the accusations.
Relevantly, during the interview, the appellant claimed he had an ‘excellent’ relationship with the complainants and treated them like his own daughters. He acknowledged that he could be strict with them on occasion. He agreed that he showered with S and C (and said that MP was aware of this) but not B, who, he said, was about 14 or 15 years of age at the time. He also admitted that C had touched his genitals in an inquisitive manner when she was very young. There was a lengthy discussion regarding the appellant’s erectile dysfunction and the appellant gave police authority to access his medical records to confirm this.
When asked why the complainants may have made the allegations, the appellant could not provide a reason, but acknowledged that his relationship with the complainants’ mother had not ended on positive terms. He also admitted that he had left them in a difficult financial situation.
On 18 January 2018, after being informed that he would be reported, the appellant engaged in a subsequent conversation with police. An audiovisual recording and transcript of that interview were also tendered at trial.[2] This interview did not advance either case and has no relevance to the appeal.
[2] Trial Exhibit P5 – Recording of interview with accused on 18 January 2018; Trial Exhibit MFI-P6 – Transcript of interview with accused on 18 January 2018.
The appeal
The grounds of appeal relate to whether the trial Judge erred in failing to take into account the evidence of the ‘hypothetical conversation’ as a prior inconsistent statement, and as relevant to the issue of inadvertent contamination,[3] when assessing the credibility and reliability of both complainants. This failure is argued to amount to a miscarriage of justice (Ground 1). Additionally, the appeal concerns whether the trial Judge dealt correctly with the appellant’s denials in his record of interview (Ground 2).
[3] The distinction between contamination and collusion has been referred to in decisions of this Court and its predecessor without analysis of the difference. See, for example, R v M, DV (2019) 133 SASR 470 at [137]-[140] per Blue J (with whom Kourakis CJ and Lovell J substantially agreed) and Sexton v The Queen (2022) 141 SASR 325.
Ground 1

The trial Judge made a finding that B’s disclosure to S during the hypothetical conversation, referred to above, did not constitute an initial complaint for the purposes of s 34M of the Evidence Act 1929 (SA) (‘the Evidence Act’). His Honour said:
In her evidence, the complainant, [B], stated that the first occasion that she spoke to anyone about the alleged sexual offending was to [S] when she posed a hypothetical as in ‘if this happened would you tell mum?’.
I do not regard this evidence as evidence of complaint. It does not fall within what is admissible under s 34M of the [Evidence Act]. It is not referable to a charged offence in that it is not a disclosure, but rather a hypothetical question. As the evidence is [inadmissible], I place no weight on it.
(Emphasis added)
While the appellant accepted that the evidence was not admissible as evidence of complaint, and constituted an out-of-court statement which could not be used for its truth, he contended that the evidence remained relevant to an assessment of the reliability and credibility of the evidence of the complainants, B and S.
The appellant contended that the evidence was relevant in the following ways. First, it provided an occasion for the inadvertent contamination of one or another’s version of events. The appellant emphasised that this was a case where there was a degree of similarity of account between the complainants’ evidence, and the evidence of B and S was cross-admissible based on improbability reasoning. The evidence also fell to be considered against the background of the April meeting. According to Detective Holmes, B and S made their initial report of the allegations while they were in the company of one another, along with C, who was speaking generally about her allegations. The appellant submitted that the hypothetical conversation, viewed in the context of all the evidence, particularly the April meeting, gave rise to a reasonable possibility of inadvertent contamination by B of S’s evidence in relation to Count 2.
The appellant contended that while the trial Judge considered the issue of deliberate collusion between the complainants, his Honour erred in failing to consider the relevance of the hypothetical conversation when assessing the credibility and reliability of the evidence of B and S in relation to the issue of inadvertent contamination.
Second, the appellant contended that the trial Judge erred in failing to have regard to the prior inconsistent statement by B, embedded in the hypothetical conversation, where she stated ‘it didn’t happen’ in relation to the alleged conduct that is the subject of Count 1, when assessing her credibility and reliability.
In considering the appellant’s contention that the trial Judge erred in failing to consider the issue of inadvertent ‘contamination’ between B and S, and the relevance of the hypothetical conversation to that issue, it is necessary to have regard to the defence case at trial. The defence case was that the sexual allegations made by the complainants were all false; that each complainant had told deliberate untruths when they alleged the appellant committed each sexual act; and that they had colluded with their mother, MP, and each other, to deliberately concoct the sexual allegations. Defence counsel submitted that the complainants were motivated to lie because of the acrimonious separation of the appellant from their mother, and the financial harm which ensued to their family.
As outlined earlier, B gave evidence that the first time she disclosed the charged act was to S, she did so by posing a hypothetical scenario to S, rather than making a complaint that the appellant had exposed his penis to her and asked her to touch it. B then told S that ‘it didn’t happen’. This conversation took place ‘not long after it had happened’, which meant that B was around 13 or 14, and S was nine or 10 years old.
In cross-examination, defence counsel did not ask S any questions about the hypothetical conversation. Nor was it suggested to S that, because of this conversation, she had misinterpreted or reinvented an innocent incident or exchange between herself and the appellant. Rather, defence counsel specifically put to S that she had lied about the allegations and deliberately colluded with B (and C) and her mother to make false allegations of sexual impropriety against the appellant. In response, S reiterated that the appellant committed the alleged sexual act, that she had not discussed the incident with her sisters or mother in any detail, nor colluded with them to concoct the allegations.
Further, defence counsel, in his closing address, confined his submissions on the issue of collusion to whether the prosecution had proved that the complainants did not deliberately collude with each other to make false allegations against the appellant by reason of his acrimonious separation from their mother. There was no argument put in relation to inadvertent contamination. This was understandable given the crux of the defence case was that B and S had deliberately lied and were motivated to do so for a specific reason. Introducing the notion of inadvertent contamination as an alternative argument may have undermined the force of that submission.
The trial Judge, in considering the topic of collusion, expressly outlined the defence submissions on deliberate collusion, summarised the relevant evidence on the topic, and found that there was no collusion or deliberate contamination between the complainants B and S. Indeed, his Honour went further and found that what was known to each complainant about the other complainant’s allegations was limited to the fact of those sexual allegations against the appellant. That the trial Judge did not proceed to consider the possibility of inadvertent contamination between B and S, as distinct from deliberate collusion, can be attributed to the manner in which the defence case was conducted at trial.
Notwithstanding the defence case at trial, the question remains whether the trial Judge’s failure to consider the issue of inadvertent contamination between B and S resulted in a miscarriage of justice. We are not satisfied that the hypothetical conversation (considered with all of the evidence adduced at trial) provided an evidentiary basis for a finding of inadvertent contamination between B and S. This is because there was no evidence that B or S had spoken about the detail of their sexual allegations with each other. The highpoint of the evidence on this topic was from Detective Holmes. He said that B and S mentioned that the appellant had sexually offended against them after C had spoken generally about the fact of her sexual allegations against the appellant. Detective Holmes said that none of the complainants provided any detail about the appellant’s alleged sexual impropriety against them.
Moreover, the hypothetical conversation took place many years before B and S reported the allegations to police, and when they were still very young. Apart from the April meeting, there was no evidence of any discussion between B and S about alleged sexual impropriety by the appellant in the ensuing years. We consider it highly unlikely that S would have drawn on a conversation with B from many years earlier, when she was aged about nine or 10 years old, to inadvertently contaminate an innocent incident or experience such as to form the basis of a false sexual allegation. There was no miscarriage of justice.
As to the appellant’s contention that the trial Judge did not have proper regard to the prior inconsistent statement by B that ‘it didn’t happen’ when assessing the reliability and credibility of B, it is to be immediately observed that this inconsistency was never directly put to B. Nor was it made the subject of submissions by defence counsel in his closing address. Contrary to the respondent’s submissions before this Court, B’s statement that ‘it didn’t happen’ was referrable to the sexual incident the subject of Count 1 (notwithstanding that the charged act was referred to in hypothetical terms). To the extent it could be regarded as a prior inconsistent statement, it was explained by B during her evidence. That explanation was not challenged.
While defence counsel did not expressly put the inconsistency to B, B volunteered an explanation for the inconsistency. She said:
I just said – explained what had happened ‘If he had asked me to touch his penis would you tell mum’ and she said ‘yes’ so I said ‘well it didn’t happen’, because I didn’t want her to tell them.
The statement ‘it didn’t happen’ was, on B’s account, not accurate. On her evidence, it did happen. There was no prior inconsistent statement in any ordinary sense. B’s explanation for the inconsistency (bearing in mind she was not asked the question directly nor given any real opportunity to expand upon her explanation) was cogent and clear. It also needs to be borne in mind that the inconsistent statement was made in the context of B raising the alleged offence for the first time as a young teenager in a tentative way to gauge her sister’s reaction. By reason of B’s explanation for the inconsistency, and the context in which it was made, we are satisfied that B’s prior inconsistent statement could have no material bearing on the credibility and reliability of B’s evidence. There was no miscarriage of justice.
For those reasons, we grant permission to appeal but dismiss this ground of appeal.
Ground 2
The appellant accepted on the appeal hearing that it was open to the trial Judge to find that the appellant lied when he told police that he had a good relationship with the complainants. However, the appellant contended that the trial Judge erred by reasoning directly from that finding to a ‘wholesale rejection’ of his denials without engaging in any reasoned analysis of the whole of the interview. This complaint has two limbs: first, that the trial Judge erred in reasoning from an adverse credit finding directly to a rejection of the appellant’s denials, without considering the other favourable aspects of the interview. Second, the trial Judge provided inadequate reasons for his rejection of the appellant’s denials.
Relevantly, in his reasons for verdict, the trial Judge summarised the record of interview as follows:
The accused’s record of interview was tendered as Exhibit P3. The interview was conducted by Detective Holmes on 17 November 2017.
During the course of the interview, the accused confirmed his marriage to [MP] and his role of stepfather to each of the complainants in this matter.
The accused stated that he thought the marital separation took place in 2012.
He stated that he had an excellent relationship with [B], [S] and [C]. The accused said that he was shocked when the allegations were put to him and denied the allegations. The accused confirmed that he showered with the girls, but not with [B]. the accused stated that [C] once touched him around the groin area in innocent circumstances but denied that there were a number of occasions where inappropriate sexual contact took place.
The accused stated that he was on very good terms with the girls and treated them like his own daughters.
The accused stated that [C] would shower with him occasionally and that this stopped when [C] was probably about 8 or 9. When the allegations of counts 1 and 2 were put to the accused by Detective Holmes, the accused rejected those allegations.
The topic of whether or not the accused could get an erection was raised. I set out that aspect of the interview as follows:
I said, “Hmm. [Can] You get an erection?”
He said, “Did I?”
I said, ‘Can you?”
He said, “Nah, I cant.”
I said, “Hmm?”
He said, “Got erectile dysfunction.”
I said, “Hmhm.”
He said, “Had it for a long time. [MP]’s quite aware of that. Well she was.”
The accused then disclosed that he had sought medical assistance in relation to erectile dysfunction which included of a diagnosis of prostate cancer in early 2015.
Later in his reasons for verdict, the trial Judge said:
In addition, I have summarised the contents of the record of interview with the accused. The accused voluntarily participated in the interview. He did not have to answer any questions. He denied the allegations.
As to the evidence relating to the topic of erectile dysfunction, the final state of the evidence is unclear as to the symptoms of any erectile dysfunction and the timeframe applicable to any erectile dysfunction. Accordingly, I disagree with the prosecution submission that I should treat the comments of the accused on this topic as lies arising from a consciousness of guilt, nor do I find what was said by the accused on this topic amounts to a lie.
Conversely, I have found that the accused lied about the status of his relationship with the complainants. This is not a lie borne out of a consciousness of guilt. I take this into account in assessing the version provided by the accused in his record of interview.
I find that the denials of the accused in the record of interview are not reasonably possibly true.
Having made this finding, this does not add to the prosecution case. It is not a makeweight for the Crown. I remind myself that at all times it is for the prosecution to prove its case beyond reasonable doubt.
In challenging the trial Judge’s approach to the record of interview and his denials, the appellant highlighted several aspects of the police interview which he submitted were favourable including: his composed demeanour and lack of evasiveness; his concession that he assisted bathing S and C when they were younger; his admission that C had inquisitively touched his genitals when she was younger; and his recognition that it was unusual that multiple complainants had made allegations against him. The appellant submitted that while it was open to the trial Judge to reject his denials, he failed to address important aspects of his interview. The appellant contended that the trial Judge’s failure to consider other favourable aspects of the interview before rejecting the appellant’s denials, and the inadequacy of reasons for doing so, amounted to errors of law which resulted in a miscarriage of justice.
It is well established that a tribunal of fact is entitled to accept or reject, in whole or in part, a defendant’s account given in a police interview.[4] In this case, there was a sound basis for the trial Judge to reject the appellant’s denials as being reasonably, possibly true. That is so notwithstanding the other aspects of the interview relied on by the appellant. The appellant’s denials were unsworn. In Nguyen v The Queen,[5] the High Court held that unsworn, exculpatory statements made in a record of interview are not statements made against interest and are untested by cross-examination. Therefore, should a defendant’s record of interview contain mixed statements, a tribunal of fact may give less weight to exculpatory assertions than to any admissions and it is for the tribunal of fact to decide what weight to give to a particular statement. [6]
[4] Mule v The Queen (2005) 79 ALJR 1573 at [21]-[22] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.
[5] (2020) 269 CLR 299.
[6] Nguyen v The Queen (2020) 269 CLR 299 at [24] per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ.
Furthermore, the appellant’s alleged physical punishment of the complainants was an important issue at trial. The appellant’s assertions about the positive nature of his relationship with the complainants was contradicted by all three complainants. They gave evidence in some detail that he was a strict disciplinarian and, on occasion, meted out physical and psychological punishment. The evidence was capable of providing the context in which the alleged offences occurred, explaining to some extent why the complainants submitted to the sexual acts, and the delay in their complaints. While the appellant’s lie about the positive nature of his relationship with the complainants was not used by the trial Judge as evidence of guilt, it related to a contested issue of some importance, rather than a minor or peripheral issue. That being so, the trial Judge’s finding that the appellant lied on this topic had the capacity to significantly undermine his credibility as to other aspects of his account, in particular his denials of the alleged offending. Furthermore, the other aspects of the appellant’s record of interview considered either individually or collectively were of limited significance and added little to a consideration of the veracity of his account.
As to the adequacy of a trial Judge’s reasons, the plurality in DL v The Queen[7] observed:[8]
The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
(Citations omitted)
[7] (2018) 266 CLR 1.
[8] DL v The Queen (2018) 266 CLR 1 at [32]-[33] per Kiefel CJ, Keane and Edelman JJ.
The principles have recently been considered by this Court.[9] It is to be accepted that the appellant’s denials were a significant part of the defence case. For the trial Judge to convict the appellant, it was necessary to reject his denials as being reasonably, possibly true. This was not a peripheral or subsidiary issue.[10]
[9] See, for example, JGS v The Queen [2020] SASCFC 48 at [198]-[208] per Lovell J (with whom Peek and Bampton JJ agreed); Lloyd v The King [2023] SASCA 106 at [30] per David JA, Stanley and Kimber AJJA, referring to R v Keyte (2000) 78 SASR 68.
[10] Lloyd v The King [2023] SASCA 106 at [34]-[41] per David JA, Stanley and Kimber AJJA.
The appellant contended that the trial Judge did not give adequate reasons for rejecting his denials. More specifically, the appellant submitted that the trial Judge did not explicitly refer to the more positive aspects of his interview with police before using the adverse credit finding that the appellant lied about his positive relationship to reject his denials. The appellant emphasised the specific aspects of the interview, as set out earlier, that the trial Judge did not explicitly address.

During the trial, defence counsel did not address the trial Judge on any of the matters now raised by the appellant. Rather, defence counsel emphasised the appellant’s denials as reflecting the defence case that the complainants’ allegations were deliberate untruths, and that the complainants had a motive to lie. The trial Judge’s reasons to a large extent reflect the way in which defence counsel dealt with the appellant’s record of interview and denials in his closing address.
In any event, earlier in his reasons, the trial Judge did have regard to many aspects of the interview now relied on by the appellant. It cannot be said that the trial Judge overlooked them. The trial Judge summarised the content of the appellant’s record of interview, including: the fact that he conceded that he had showered with the complainants when they were young and that C had once touched his genitals in an inquisitive manner. Furthermore, at the commencement of his discussion of the record of interview, the trial Judge referred to his earlier summary of the content of the record of interview; noting the voluntary nature of the interview and the appellant’s denial of the allegations.
The trial Judge’s reasons, whilst brief, adequately set out the basis for his rejection of the appellant’s denials. The brevity with which the trial Judge dealt with the interview reflected defence counsel’s submissions on the topic. The reasons provided a summary of the content of the interview and the submissions of both parties. The reasons also included the trial Judge’s key findings regarding the dispute about the nature of the appellant’s relationship with the complainants. Additionally, they focus on the central feature of the interview; namely, the appellant’s denial of the allegations and the trial Judge’s reason for rejecting the denials as reasonably possibly true, that being the adverse credit finding that the appellant lied about his positive relationship with the complainants. This Court is not impeded in fulfilling its appellate role upon reviewing the reasons.[11]
[11] Cf R v Keyte (2000) 78 SASR 68 at [44]-[50] per Doyle CJ (with whom Wicks J agreed).
We grant permission but we dismiss this ground of appeal.
Conclusion
1. We grant permission to appeal on both grounds but dismiss the appeal.