NETTLE J. Following a trial before judge alone in the District Court of South Australia, the appellant was convicted of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA") and sentenced therefor to 10 years' imprisonment with a non-parole period of seven years. His appeal against conviction to the Full Court of the Supreme Court of South Australia (sitting as the Court of Criminal Appeal) was dismissed. By grant of special leave, he now appeals to this Court.
Relevant statutory provisions
At the time of trial, s 50(1) of the CLCA provided that:
"An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life."
Section 50(2) of the CLCA provided that, for the purposes of s 50, an adult person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence. Section 50(7) defined "sexual offence" by reference to other provisions of the CLCA including, relevantly, in Pt 3, Div 11 (Rape and other sexual offences).
The "prescribed age" for the purposes of s 50 of the CLCA was 18 years in the case of an adult person who was in a position of authority in relation to the particular child and 17 years in any other case.
As was recently explained in Chiro v The Queen, because s 50(1) defined the offence of persistent sexual exploitation of a child as an offence constituted of underlying acts of sexual exploitation, in order for a jury to find an accused guilty of the offence the jury must reach unanimous agreement (or, after four hours, must reach agreement by a requisite statutory majority) that the Crown has proved beyond reasonable doubt that the accused committed the same two or more underlying acts of sexual exploitation separated by not less than three days. It is thus an error of law productive of a miscarriage of justice for a trial judge to fail to direct a jury that they cannot convict an accused of an offence of persistent sexual exploitation of a child unless they are unanimously agreed that at least the same two acts of sexual exploitation separated by not less than three days have been proved beyond reasonable doubt. Similarly, in the case of trial by judge alone, the judge cannot find an accused guilty of an offence of persistent sexual exploitation of a child unless the judge directs himself or herself as to the need to be, and is, satisfied beyond reasonable doubt of the commission of two or more of the alleged acts of sexual exploitation separated by a period of not less than three days.
The Crown case at trial
The complainant was born in February 1979. The Crown case at trial was that the appellant, who was the complainant's uncle, was guilty of the charged offence of persistent sexual exploitation of a child which allegedly took place between 6 February 1984 and 28 August 1994; the latter date being the same day on which the complainant had indecently assaulted the appellant's five year old daughter. The alleged acts of sexual abuse were, in effect, comprised of ten distinct groups of alleged acts of sexual exploitation delineated by reference to the type and time of commission of the alleged conduct. They were:
(1) When the complainant was around five years old, there were "lots of times" when he was playing with slot cars, which he alleged were set up in the appellant's lounge room in front of some chairs, a fire place and a television, when the appellant stood behind the complainant and touched him on his private parts over his clothing.
(2) When the complainant was "about seven years of age", the appellant showed the complainant pornographic videos and magazines of "Asian content" which the complainant alleged were kept in a cupboard "right in front of the main entrance to the [appellant's] house".
(3) When the complainant was seven or nine years of age, the appellant gave the complainant a remote control car as a present when the family were all together on Christmas Day at the complainant's grandmother's home, and when the complainant was playing with the remote control car on the lawn outside the home the appellant inappropriately touched the complainant over his clothes and said that he should not say anything about it because the appellant could get into trouble.
(4) When the complainant "would have been close to nine", the appellant drove the complainant from the appellant's home to a slot car racing venue called "Red Line" and, on the way there in the car, the appellant fondled the complainant's penis on top of his clothes, which made the complainant "pretty hard", and the appellant threatened the complainant with consequences if he said anything to anyone about it.
(5) From the time that the complainant was about nine years old until he was 15, the appellant would allow the complainant to ride the appellant's motor bike, which he kept in a shed at his house, in return for acts of oral sex. In cross-examination, the complainant accepted that the motor bike was as shown in a photograph, which was tendered in evidence, but denied that he would have been physically incapable of riding such a bike from the age he alleged.
(6) When the complainant was "growing up", there were "numerous times" (later, in cross-examination, described as "about three, four times") when the appellant sat on the chaise lounge in the master bedroom of his home "wanking himself off" while the complainant played games on the computer in the bedroom. The complainant pulled his pants down and the appellant showed the complainant how to masturbate but the complainant could not ejaculate at that time.
(7) When the complainant was "the age of nine going on to 12", he was playing with slot cars at the slot car track set up in the second shed at the appellant's house ("Shed 2") when the appellant came behind the complainant "feeling [him] down on [his] genitals" and then asked him if the appellant could give him oral sex. The appellant performed oral sex on the complainant and the complainant performed oral sex on the appellant as well. This was the first act of oral intercourse that had occurred between them.
(8) When the complainant "would have been close to 12", the appellant took the complainant to a two storey unit in South Terrace to look at some hydroponic plants "that [the appellant] had with a lady called Lucy". The appellant went up to the hydroponic room in the unit. The complainant sat at a table at the back of the unit and "[the appellant] came back down and smoking [cannabis] again, getting high and then it was oral sex again". The complainant and the appellant had "a good talk" and then the appellant performed oral sex on the complainant.
(9) When the complainant was "over 12, 12 nearly", the appellant took the complainant to a place at Cherry Gardens where the appellant grew cannabis. They sat there, "[had] cones on [the appellant's] brass pipe and [got] stoned" and then performed oral sex on each other.
(10) Lastly, on 28 August 1994, when the complainant was 15 and a half years old, he had a ride on the appellant's motor bike and in return gave the appellant oral sex. The complainant was then playing with slot cars in Shed 2 when the appellant's daughter began "jumping all over [his] back" and the complainant went to grab her and "felt her between the legs and … stuck [his] finger … into her vagina and broke her hymen".
Following the complainant's indecent assault of the appellant's daughter, the complainant underwent three years of court appointed psychological counselling. He did not at any time throughout those three years say anything to the counsellor about having been sexually abused by the appellant. According to the complainant, the first time he ever spoke to anyone about it was in 2003 or 2004, when he told his partner that he had been sexually abused, without saying by whom, when or where. The complainant's partner gave evidence that the complainant had told her that "he had had a rough childhood, he had been sexually abused as a child", but he did not say by whom or give any detail.
When the appellant's daughter turned 18 years of age, the appellant assisted her to make a claim for compensation under the Victims of Crime Act 2001 (SA) in respect of the complainant's indecent assault of her. On 22 October 2009, she was awarded $50,000 compensation.
According to the complainant, the next time that he complained to anyone about the appellant having sexually abused him was in about 2010 or 2011 when he was receiving counselling for relationship problems with his partner. He said that he told the counsellor about the alleged sexual abuse and that she advised him that he should stand up for himself and go and see what the appellant was up to. The counsellor was not called to confirm that advice. The complainant said that, shortly thereafter, he went to the appellant's home and knocked on the door and the appellant let him in. They smoked cones of marijuana together and the appellant showed the complainant the cannabis plants that he was growing in Shed 2. The complainant asked for and received a cutting from one of the plants. The complainant said that, at that time, he was also growing marijuana, and he gave the appellant a telephone number on which to contact him if the appellant wished to purchase some of it. There was then a second occasion on which the complainant went back to the appellant's home to sell him some of the marijuana. The complainant did not say anything to the appellant about sexual abuse on either of those occasions.
The first complaint that the complainant made to the police was on 21 December 2011, 17 years after the last of the alleged acts of sexual abuse.
The defence case at trial
The appellant gave evidence that he had never sexually assaulted the complainant. In particular, the appellant stated that there had only ever been one occasion on which slot cars had been set up in his lounge room, which was for someone else and the complainant was not there on that occasion. He deposed that the only pornography that he ever had in his home was a video about wife swapping, which had been lent to him and his ex‑wife by a friend and was returned within a few weeks. He had ordered one catalogue containing Asian pornography and received a number of them, but he did not show them to the complainant. He said that he had not given the complainant a remote control car - his ex‑wife used to purchase the Christmas presents for the family - and he had not sexually assaulted the complainant at the complainant's grandmother's home or at all. He did not recall ever taking the complainant to Red Line. He had only ever permitted the complainant to ride his motor bike from the time that the complainant was 15 years old, and he had never given the complainant permission to ride the bike in return for oral sex. He had not masturbated while the complainant was on the computer, and the computer had been kept in his daughter's bedroom. His slot car track was not set up in Shed 2 until June 1993, by which time the complainant was 14 years old. He had never stood behind the complainant and felt his genitals or performed oral sex on him, and the complainant had never performed oral sex on him. He met Lucy in 1995, which was after the last occasion of alleged sexual abuse, and did not take the complainant to Lucy's unit in South Terrace until then. He never took the complainant to Cherry Gardens and did not supply him with marijuana until years after 28 August 1994.
The appellant's testimony was, in some respects, supported by evidence given by his ex-wife, who had been called as a witness for the Crown. In cross‑examination, she testified that the computer was kept in their daughter's bedroom, and in re‑examination she said that she did not know if the computer had ever been set up anywhere else in the house. She also gave evidence that a 1993 calendar containing handwritten entries that suggested the slot car track in Shed 2 was not operational until June 1993 was familiar to her, and that the handwriting in it was that of the appellant.
The trial judge's reasons for judgment
After summarising aspects of the evidence adduced by the Crown, the trial judge stated that he perceived there to be three aspects of the defence case: an attack on the truthfulness and reliability of the complainant; a submission that the appellant gave evidence and was not shaken in his testimony; and a submission that, having regard to the inconsistencies in and implausibility of the complainant's account and the appellant's unshaken denials, there was insufficient evidence to be satisfied of guilt beyond reasonable doubt.
The trial judge acknowledged that it was clear to him that "some of [the complainant's] evidence about when some events occurred is inaccurate" but averred that he "[did] not have to accept everything [the complainant] says to be satisfied of the charge". The judge added that in his judgment, having watched the complainant and heard him give his evidence, the complainant's "presentation was that of a man endeavouring to tell the truth" and the complainant "was describing real events that happened to him and was not led by the suggestions of others". It is to be interpolated that "the suggestions of others" is possibly a reference to evidence that there had been a considerable falling out between the appellant and his ex-wife and that she had been active in persuading the complainant to complain to the police.
The trial judge added, apparently epexegetically, that the complainant lacked guile, was not intellectually bright and was a long term drug user. The judge then stated:
"I also accept [the complainant] as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being 'stoned'), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years". (emphasis added)
By contrast, the trial judge stated:
"I was unimpressed by the [appellant's] presentation. I found his answers to be glib and evasive on some topics, particularly about the number and duration of occasions when [the complainant] and his siblings stayed or the [appellant] was alone with [the complainant] ... In addition to that, the [appellant] was, in my view, understating [the complainant's] interest in slot cars and using the track in Shed 2 because the use of the slot car track provided an opportunity for sexual misconduct … I also thought his answers on the aspect of adult pornography quite evasive".
Then, after brief reference en passant to "the difficulty an accused person is in when giving evidence and so long after the time of the alleged events" and the appellant's "personal difficulties" and "significant forensic disadvantage given that these alleged events occurred many decades ago and without any timely complaint", the trial judge concluded:
"I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the [appellant] on substantive issues where he denied the alleged sexual conduct.
I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse."
That was it.
The appeal to the Court of Criminal Appeal
The appellant's appeal to the Court of Criminal Appeal was made on three grounds. The first, and as it appears principal, ground was that the verdict was unreasonable and not supported by the evidence. Under and in support of that, the appellant advanced two sets of particulars.
The first related to an alleged failure by the trial judge to have sufficient regard to matters relevant to the complainant's credibility and reliability. It consisted of extensive, precise particulars of a number of alleged inconsistencies and implausibilities in the complainant's evidence, including inconsistencies as to his age when acts of sexual abuse were alleged to have occurred, inconsistencies and implausibilities in and between identified witnesses' testimony, the implausibility of the complainant's evidence with respect to the supply of cannabis by the appellant to the complainant, the implausibility of the complainant's evidence as to his use of the appellant's motor bike from the age of nine, the appellant's evidence as to the timing of his relationship with Lucy as against the complainant's evidence as to the timing of his visit to the South Terrace unit, the timing of the appellant's commencement of growing cannabis in Shed 2, and the complainant's motive to make false allegations against the appellant (scil the appellant's daughter's claim for compensation). It should be understood that those were the same inconsistencies and implausibilities that the judge dismissed peremptorily with the statement: "I have considered whether … the various criticisms of [the complainant's] evidence caused me to have a reasonable doubt and they do not."
The second set of particulars in support of the first ground related to the appellant's contention that the trial judge placed undue weight on identified aspects of the appellant's evidence in the assessment of his credibility and reliability. Under and in support of that, the appellant provided particulars of five Crown witnesses' evidence which it was contended supported the appellant's testimony.
The second ground of appeal was that the trial judge erred in his application of the burden of proof. The judge stated in his reasons: "Although it is not determinative of the case, having listened to [the complainant] over a number of days, I simply believed him and found him to be reliable." The appellant contended that that statement, taken together with the judge's reasons, demonstrated that the judge had formed a conclusion on the complainant's credibility and reliability at the end of the complainant's evidence, and thus did not retain an open mind as to his credibility and reliability when hearing from other witnesses.
The third ground, which was advanced with leave given in the course of the hearing before the Court of Criminal Appeal, was that the trial judge erred as a matter of law in failing to give adequate reasons in that he did not deal with incontrovertible, or arguably incontrovertible, inconsistencies affecting the credibility of the complainant, and thus affecting the judge's conclusion of proof of guilt beyond reasonable doubt. The alleged inconsistencies included:
(1) inconsistency between the complainant's evidence that the first act of oral intercourse occurred when the complainant was playing with slot cars in Shed 2 at the age of "nine going on to 12", and thus at some time between 1988 and 1991, and the appellant's evidence that the slot car track in Shed 2 was not operational until June 1993;
(2) inconsistency between the complainant's evidence that the appellant had sat on the chaise lounge in the master bedroom masturbating in front of the complainant as the complainant played games on the computer set up in the bedroom, and the appellant's evidence that the computer had only ever been located in his daughter's bedroom; and
(3) inconsistency between the complainant's evidence that the appellant had taken him to Lucy's South Terrace unit when the complainant was "close to" 12 years of age, and thus in 1991 or 1992, and the appellant's evidence that he did not meet Lucy until 1995 and consequently did not take the complainant to Lucy's unit until after the last alleged act of sexual abuse on 28 August 1994.
The judgment of the Court of Criminal Appeal was delivered by Blue J, with whom Kourakis CJ and Bampton J agreed. As to the first ground of appeal, of unreasonable verdict not supported by the evidence, Blue J reasoned that the mere fact that the trial judge may have made a credibility finding without giving sufficient weight to specific evidence or aspects of the evidence did not establish that the verdict was unreasonable or not supported by the evidence. Blue J stated that, while an appellate court will have regard to a trial judge's reasons, the ultimate question is whether the evidence in itself was sufficient to support the judge's findings and the verdict. Hence, even if the alleged inconsistencies and implausibilities in the complainant's evidence were established, they would not in themselves lead to the conclusion that the verdict was unreasonable or could not be supported having regard to the evidence. Blue J then went in some detail through each of the alleged inconsistencies and implausibilities, noting in each instance either that no inconsistency or implausibility was demonstrated or that any such inconsistency or implausibility was insignificant or insubstantial.
As to the trial judge's assessment of the appellant's credibility, Blue J referred to each of the identified passages of the transcript on which the appellant relied, noting in each case that the judge had seen and heard the appellant give the evidence and that on the face of the transcript it was open to the judge to form the impression which he did. Blue J then concluded his analysis of the first ground with the observation that the case essentially turned on the direct conflict between the evidence given by the complainant and the evidence given by the appellant and that it was open to the judge to be satisfied beyond reasonable doubt that the complainant was telling the truth about the alleged sexual abuse and that the appellant was not.
On the second ground, concerning the burden of proof and whether the trial judge had prejudged the matter of the complainant's credibility and reliability, Blue J found that the judge's statement, when read in context, demonstrated that the judge was "aware of and applied the axiomatic principle that it was his assessment of the complainant's evidence at the end of all of the evidence that was determinative and impressions formed before that point were only tentative and provisional". There was thus no basis to find prejudgment.
As to the third ground, of inadequacy of the judge's reasons in failing to deal adequately or at all with the identified inconsistencies, including the three set out above, Blue J relevantly stated:
"Timing of construction of slot car track
The Judge explicitly identified the conflict between the evidence of the complainant and the [appellant] on this issue and then summarised the [appellant's] case that the complainant was wrong about when cannabis was grown and 'when the slot car track was completed, such that, in conjunction with other inconsistencies, he cannot be relied upon about the substantive allegations.' The Judge said that he accepted the complainant's evidence and rejected the [appellant's] evidence and it is evident that this extended to the conflict concerning the slot car track. There is no substance in this complaint.
Location of computer
There was no conflict between the evidence of the complainant and [the appellant's ex-wife] … There was a conflict between the evidence of the complainant and the [appellant], but that conflict was subsumed in the larger conflict that the complainant asserted inappropriate touching and the [appellant] denied that allegation outright. The Judge accepted the complainant's evidence that such touching occurred and rejected the [appellant's] evidence denying it. In the circumstances, there was no need for the Judge to address specifically the question identified by the [appellant].
Relationship with the other woman
There was no conflict between the evidence of the complainant and the [appellant] for the reasons given ... above. In the circumstances, there was no need for the Judge to address specifically the question identified by the [appellant]."
Earlier in his reasons, Blue J had said in relation to the evidence about the alleged visit to Lucy's South Terrace unit:
"The complainant gave evidence that he and the [appellant] visited the Adelaide unit and the [appellant] performed oral sex on him. He said that he was 'close to 12' on that occasion and in cross-examination denied that this occurred after the incident with [the appellant's daughter] (when he was 15).
The [appellant] gave evidence that there were separations from [his ex-wife] when she left in 1995, 1996 and then in 1998 for good. He said that all of the times that [his ex-wife] left were because of the other woman and that he was going with her at those times, but did not say when he commenced a friendship or relationship with her. The [appellant] gave evidence that he and the complainant visited her unit but said that, as far as he remembered, this occurred after the incident with [the appellant's daughter]. He said that he was 'not quite clear about it' and then that he was 'almost hundred-per-cent sure about it'.
Given the vagueness of the [appellant's] evidence, there was no clear inconsistency between the evidence given by the complainant and the [appellant] concerning their visit to the unit. In any event, the Judge was not obliged to accept the [appellant's] evidence as to the timing of that visit for the purpose of assessing the complainant's credibility."
Grounds of appeal to this Court
The grounds of appeal to this Court are, in substance, that the Court of Criminal Appeal erred in not holding that: (1) the verdict was vitiated by the trial judge's failure to give adequate reasons; (2) the verdict was uncertain, unreasonable or unsafe; and (3) there was a miscarriage of justice.
The first ground was put on the basis of the same inconsistencies and implausibilities relied on in support of the inadequacy of reasons ground of appeal before the Court of Criminal Appeal, but with the added element, not advanced below, that it was necessary for the trial judge to be satisfied beyond reasonable doubt of each of the two or more acts of sexual abuse which he found to be proved; and, therefore, that the reasons for judgment were deficient in that they failed to identify which two or more acts of sexual abuse the judge found to be proved beyond reasonable doubt and explain how, despite the identified inconsistencies and implausibilities, the judge was able to reason to satisfaction beyond reasonable doubt of the proof of those acts.
The second and third grounds of appeal were based on the first. In effect, the second was that the verdict was uncertain, unreasonable or unsafe because of the inadequacy of the trial judge's reasons, and the third was that there was a miscarriage of justice because of the inadequacy of the reasons. It was not contended that it would not have been open to the judge to be satisfied on the evidence beyond reasonable doubt of at least two of the alleged acts of sexual exploitation separated by a period of not less than three days.
For reasons which will be explained, the first ground of appeal is determinative. But it is necessary to say something first of the law that governs the standard of reasons for judgment in a criminal case and also of the change in the state of authority in relation to the offence of persistent sexual exploitation of a child since the appeal to the Court of Criminal Appeal was determined. It was because of that change that special leave to appeal was granted in this case.
The need for adequate reasons
There was a time past when trial judges sitting in civil causes involving substantial conflicts of evidence sometimes delivered reasons for judgment that consisted of no more than a recitation of the evidence, an assertion of preference for the credibility of one witness over another - usually justified by incantation of the mantra of having seen and heard the witnesses in the witness box - and an asseveration of conclusion according to the preferred witness's version of events. As recently as 1983, the Privy Council gave its apparent approval to the practice. But, if the law of this country ever countenanced the practice, it does so no longer. As early as 1947, the Supreme Court of New South Wales, in a judgment delivered by Jordan CJ, stated in Carlson v King that a court of first instance from which an appeal lies to a higher court had a duty "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision." A plethora of cases since then has established that, although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge's findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.
The trial of an indictable offence (or, as it is called in South Australia, an offence charged on information) by judge alone is an extraordinary procedure fundamentally at odds with the deep seated conviction of Anglo‑Australian criminal justice that a man or woman accused of a serious offence should be tried by a jury of peers. Due as much, therefore, to the extraordinary nature of the procedure as, in some States, to specific legislative requirements, a judge who tries an indictable offence without a jury is bound to produce reasons for judgment of at least the quality expected of his or her civil brethren. It is, however, even more important in criminal proceedings than in civil that a trial judge's reasons meet the standard required. It follows that a judge's failure to deliver adequate reasons is an error of law productive of a miscarriage of justice which, subject to application of the proviso, will necessitate that a conviction be set aside.
The change in the state of authority
The appeal to the Court of Criminal Appeal was heard on 21 August 2014. Previously, in 2011, a differently constituted Court of Criminal Appeal in R v M, BJ had held that the reasoning in KBT v The Queen (as to the need for a jury to be unanimous in relation to the underlying sexual acts found to constitute an offence of maintaining a sexual relationship contrary to s 229B(1) of the Criminal Code (Q)) applied, mutatis mutandis, to an offence of persistent sexual exploitation of a child contrary to s 50 of the CLCA. In M, BJ, however, it was also held that despite the trial judge's failure to direct the jury as to the need to be unanimous as to each of the acts found to constitute the offence of persistent sexual exploitation, there had not been a miscarriage of justice. It was observed that, in the particular circumstances of that case, the possibility that different jurors based their findings of guilt on different underlying acts could be "entirely discounted", and, therefore, the conviction was not uncertain or unsafe.
Two years later, in R v C, G, a further differently constituted Court of Criminal Appeal in effect rejected the idea that this Court's reasoning in KBT applied to an offence of persistent sexual exploitation contrary to s 50 of the CLCA. Basing themselves on an earlier decision of the Court of Criminal Appeal in R v Warsap, they held that it was not necessary for a trial judge sitting alone to identify particular acts of sexual exploitation. It sufficed to sustain a conviction, it was said, "if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt".
Thus stood the state of relevant Full Court authority in South Australia at the time of the appeal to the Court of Criminal Appeal in this case. It was not until some 12 months after the hearing and determination of that appeal that a five member Court of Criminal Appeal, convened by Kourakis CJ to resolve the point, held in R v Little, correctly, that it is necessary for the Crown to prove beyond reasonable doubt the two or more underlying acts of sexual exploitation which constitute the offence of persistent sexual exploitation which it alleges and that a trial judge should direct a jury accordingly that they must be unanimous as to each of the underlying acts of sexual exploitation found to be proved beyond reasonable doubt. A failure to give the extended unanimity direction is an error of law productive of a miscarriage of justice which will necessitate a conviction being quashed unless the proviso can be applied.
It is to be observed in passing that it was also held in Little that, despite the trial judge's failure in M, BJ to give the jury an extended unanimity direction, the appeal was rightly dismissed because the failure to give that direction had not occasioned a miscarriage of justice. With respect, that is debatable. Possibly some of the reasoning in M, BJ suggested that the proviso was applicable and that, in holding that there was no miscarriage of justice, the Court of Criminal Appeal intended to convey that there had been no substantial miscarriage of justice. But, at least in terms, that was not the way in which the case was decided. It was decided on the expressed basis of there having been no miscarriage of justice, when plainly there was.
Be that as it may, it was only after and as a consequence of Little that it appears to have been appreciated that, just as it is necessary in the case of a trial by judge and jury for an offence of persistent sexual exploitation for the trial judge to give the jury an extended unanimity direction, in the case of trial by judge alone it is necessary for the judge to identify in his or her reasons for judgment the underlying acts of sexual exploitation found to be proved and identify the evidence and explain the reasoning which has led the judge to be satisfied of proof beyond reasonable doubt of each such act. It was only then that an application for special leave to appeal was made in this case - at the same time as applications for special leave to appeal were made in Chiro and Hamra v The Queen - and it was for that reason that special leave to appeal was then granted, out of time, in each case.
The trial judge's reasons were inadequate
Given the state of authority in South Australia at the time of the trial in this matter and at the time of the appeal to the Court of Criminal Appeal, it is hardly surprising that the trial judge did not identify and that the Court of Criminal Appeal did not consider it necessary for the judge to identify the acts of sexual exploitation which the judge found to be proved beyond reasonable doubt and properly to explain the reasoning which led him to those conclusions. Nonetheless, the reasons are deficient in both of those respects.
The Crown contended to the contrary that, when the reasons are read as a whole, as it appeared the Court of Criminal Appeal had done, it was not open to doubt that the trial judge was entitled to be and was satisfied beyond reasonable doubt of each and every one of the acts of sexual exploitation which the complainant alleged. More specifically, it was submitted that, despite the judge's recognition of inconsistencies and implausibilities regarding the complainant's testimony as to times and dates, the fact that the judge stated that he accepted the complainant as a witness of truth and "as a reliable witness as to the core allegations" (emphasis added), coupled with his statements that he "simply believed" the complainant and that the complainant was "describing real events", signified the judge's acceptance of the allegations that lay at the core of the charge; meaning thereby that he was satisfied beyond reasonable doubt that each and every one of the alleged acts of sexual exploitation was proved beyond reasonable doubt.
That contention cannot be accepted for two reasons. First, it is not what the trial judge wrote. He did not state that, despite his concerns about the inconsistencies and implausibilities in the complainant's recall of times and dates, he was nevertheless satisfied that each and every one of the acts of sexual exploitation alleged by the complainant had been proved beyond reasonable doubt. What the judge wrote was: "I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years." He had earlier remarked: "I do not have to accept everything [the complainant] says to be satisfied of the charge." One is left to wonder what was meant by the "core allegations" and, since this is a criminal matter, one should not be left to wonder.
Secondly, if the trial judge meant to convey that, despite his concerns about the inconsistencies and implausibilities in the complainant's recall of times and dates, he was nevertheless satisfied that each and every one of the acts of sexual exploitation alleged by the complainant had been proved beyond reasonable doubt, the judge's reasons do not explain how, given the extent of the inconsistencies and implausibilities as to times and dates, he could legitimately have reached that standard of satisfaction. As already observed, the furthest the judge went in the identification of the acts of sexual abuse which he found to be proved was to say that he was satisfied beyond reasonable doubt that "the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years", and the furthest the judge went in the provision of reasons as to why, despite the extent of inconsistencies and implausibilities, he was satisfied of that beyond reasonable doubt was to say, in effect, that he had seen and heard the complainant in the witness box and considered him to be an honest and reliable witness as to the "core allegations". That is the kind of reasoning that the cases decry.
This is not to overlook that there are cases of a type posited in Hamra where a trial judge may encounter numerous underlying acts of sexual exploitation of a particular kind or kinds that are alleged to have taken place within a discrete, designated period of time, and, therefore, where, without being able precisely to identify the time or circumstances of commission of any one of those alleged acts, the judge is able to conclude on the basis of the evidence that he or she is satisfied beyond reasonable doubt that, within that discrete, designated period of time, at least two acts of the particular identified kind or kinds alleged took place, separated by not less than the required period of three days.
By contrast, however, where, as here, there are distinct groups of underlying acts of sexual exploitation which are alleged to have occurred at different times and in different circumstances, and the evidence as to the likelihood of each group of acts having occurred as alleged is distinct, different and attended by disparate inconsistencies and implausibilities, each group requires separate analysis. Contrary to the Crown's contentions, in such cases it does not suffice for a trial judge to say that, having seen and heard the witnesses give their evidence in the witness box, the judge is satisfied beyond reasonable doubt that the complainant is telling the truth. Rather, just as when an offence of persistent sexual exploitation is tried before a jury the judge must direct the jury that they must be unanimous as to each underlying act of sexual abuse which they find to be proved beyond reasonable doubt, so, too, when such an offence is tried before judge alone it is mandatory for the judge to direct himself or herself of the need to be satisfied beyond reasonable doubt of the commission of two or more of the acts of sexual offending alleged and to explain in reasons for judgment how he or she has reasoned to the conclusion of guilt beyond reasonable doubt in respect of each such act.
The importance of the distinction may be demonstrated by reference to three of the inconsistencies which the appellant urged in support of his third ground of appeal before the Court of Criminal Appeal. It will be recalled that one of those inconsistencies was as between the complainant's evidence that the first act of oral sex occurred when he was the age of "nine going on to 12" and playing with slot cars in Shed 2, and thus at some time between 1988 and 1991, and the appellant's evidence that the slot car track was not set up in Shed 2 until June 1993. It is impossible to say from the judge's reasons what he made of that inconsistency, or, therefore, whether he ever truly turned his mind to its ramifications. All one has is his inscrutable declaration that, despite all of the identified inconsistencies, he considered the complainant to be a truthful and reliable witness as to the "core allegations". As has been seen, the Court of Criminal Appeal dismissed the matter as one of no moment. But plainly it was a matter of considerable forensic moment.
As mentioned, the appellant's evidence that the slot car track in Shed 2 was not operational until June 1993 appeared to be corroborated by contemporaneous calendar entries identified by his ex-wife. In June 1993, the complainant would have been 14 years and four months of age, not "nine going on to 12", and it would have been only 14 months before the last act of sexual abuse was alleged to have been committed on 28 August 1994. Assuming the appellant's evidence coupled with the calendar entries and his ex‑wife's testimony were accepted, or at least in aggregate created a reasonable doubt as to whether the slot car track was operational before June 1993, it would have to follow that there was a reasonable doubt as to whether the alleged act of sexual abuse ever occurred at all, or, at least, if it did occur, whether it occurred before June 1993. Since the complainant's evidence was that the first instance of oral sex occurred in Shed 2, it must equally follow that there was thereby created a reasonable doubt as to whether the occasion when the appellant was alleged to have taken the complainant to Lucy's South Terrace unit and fellated him when the complainant was "close to 12" ever occurred at all or, if it did, whether it occurred before June 1993, within 18 months of the last alleged act of sexual abuse on 28 August 1994. So, too, must it follow that there was thereby created a reasonable doubt as to whether the occasion when the appellant was alleged to have taken the complainant to Cherry Gardens when the complainant was "over 12, 12 nearly" ever occurred at all or, if it did, whether it occurred before June 1993. And, to the extent that the complainant's evidence suggested that instances of oral sex occurred when he was aged between "nine going on to 12" and 14 years and four months, it must also follow that those instances were not proved beyond reasonable doubt.
Conceivably, it may be that the trial judge was satisfied that, despite the appellant's corroborated and, save for the complainant's testimony, effectively uncontested evidence that the slot car track was not operational in Shed 2 until June 1993, the judge considered it was proved beyond reasonable doubt that the slot car track was in fact set up and operational in Shed 2 at an earlier date, and, therefore, that the alleged first act of oral sex did occur as and when alleged. But if so, the judge did not say so, still less disclose how, despite the inconsistency in the evidence, he was able to reason to that conclusion beyond reasonable doubt.
Granted, as the Crown submitted, the trial judge stated that he was "unimpressed by the [appellant's] presentation", "found [the appellant's] answers to be glib and evasive on some topics, particularly about the number and duration of occasions when [the complainant] and his siblings stayed or the [appellant] was alone with [the complainant]" and that "the [appellant] was … understating [the complainant's] interest in slot cars and using the track in Shed 2". But in both terms and substance, that falls far short of rejecting beyond reasonable doubt the appellant's evidence that the slot car track was not operational in Shed 2 until June 1993 or, for that matter, that the appellant did not meet Lucy until 1995 and so could not have taken the complainant to the South Terrace unit until after 28 August 1994, and that he never took the complainant to Cherry Gardens. To repeat, the requirement to refer to the evidence is not limited to the evidence which a judge accepts. Where, as here, an accused has relied upon substantial and cogent evidence which the judge rejects, the judge must refer to it and explain why it has been rejected.
More likely perhaps, although recognising the existence of reasonable doubt as to when the slot car track was first operational in Shed 2, the trial judge was satisfied beyond reasonable doubt that the track was operational by June 1993, by which time the complainant would have been 14 years and four months old, and that there then occurred the first occasion of oral sex. In point of principle, there would have been nothing wrong with reasoning to that conclusion. But if that were the case, the difficulty remains that it is not what the judge said he did. And as should now be understood, it is no answer that an appellate court may be able to reverse engineer a logical path of reasoning capable of sustaining a trial judge's conclusion. An appeal against conviction to the Court of Criminal Appeal is not a rehearing. Unless it is clear from a judge's reasons that he or she has so reasoned, the reasons are inadequate and as such productive of a miscarriage of justice. And where, as here, the inadequacy of reasons relates to the central issue to be tried, the proviso can be applied only if it is apparent that the judge must have reasoned by that route and no other. Otherwise the appellate court cannot be satisfied that the error at trial did not affect the verdict.
It will be remembered that a second inconsistency relied upon in the Court of Criminal Appeal related to the appellant's alleged acts of masturbation in front of the complainant while the complainant played on the computer. The complainant's evidence was that there were "numerous times" when he was "growing up" when the appellant would be sitting on the chaise lounge masturbating while the complainant played games on the computer. According to the complainant, the computer was in the master bedroom, where the chaise lounge was situated. The appellant's evidence, however, was that the computer was always kept in his daughter's bedroom (where there was no chaise lounge), and it was not put to him in cross-examination that it was ever located anywhere else. Similarly, as will be recalled, the appellant's ex-wife's evidence in cross‑examination was that the computer was in the daughter's bedroom and, when asked in re-examination whether it had ever been set up anywhere else, she said that she did not know but that all she could remember was that it was set up in the daughter's bedroom.
The Court of Criminal Appeal dismissed the matter as one of no moment. But it, too, was a matter of moment. If the trial judge accepted that the computer was always kept in the daughter's bedroom, or at least that there was a reasonable doubt as to whether it had ever been elsewhere than in the daughter's bedroom, that meant that there was a reasonable doubt as to whether there was ever an occasion of the type alleged when the appellant sat on the chaise lounge in the master bedroom masturbating in front of the complainant while the complainant played games on the computer. Conceivably, the judge may have been satisfied beyond reasonable doubt that there were occasions when the appellant sat on the chaise lounge masturbating while the complainant was present in the master bedroom doing something other than playing games on the computer. If so, however, the judge did not say so or explain why, notwithstanding the doubt about reliability that the discrepancy was bound to engender, he was able to exclude the reasonable possibility that the alleged acts of masturbation did not occur. And it is to be remembered that inconsistencies are cumulative. For the complainant to be wrong as to the date when the slot car track was first set up in Shed 2, and thus as to when occurred the first alleged act of oral sex, is one thing. For the complainant to be wrong about both that and the circumstances in which the appellant is alleged to have masturbated in front of him is another thing, and one which is of potentially greater forensic significance in the assessment of which of the allegations are established beyond reasonable doubt.
So then to a third inconsistency relied upon, which was as between the complainant's evidence that the appellant had taken him to Lucy's South Terrace unit when the complainant was "close to 12" years old, and there fellated him, and the appellant's evidence that he did not meet Lucy until 1995 and, therefore, did not take the complainant to Lucy's unit until after 28 August 1994, being the date of the last alleged act of sexual abuse. The Court of Criminal Appeal held that there was no need for the trial judge to deal with that issue because the appellant did not say when he commenced a friendship or relationship with Lucy, and although he said that he did not take the complainant to Lucy's unit until after the complainant indecently assaulted the appellant's daughter, he said that he was "not quite clear about it" and then that he was "almost hundred-per-cent sure about it". That is incorrect.
The appellant stated clearly that the visit to Lucy's South Terrace unit was not until after the incident in which the complainant indecently assaulted the appellant's daughter, which occurred on 28 August 1994. When it was put to him whether the complainant would then have been 15 or 16 years old, the appellant replied "15, 15 and a half or something like that, I'm not sure". On the next day of the trial, in the second day of the appellant's cross-examination, he was asked when he first saw Lucy and he said it was after his daughter was indecently assaulted by the complainant. He was then asked when he had his first massage with Lucy (she was a masseuse), and whether it was towards the end of 1994, and he answered 1995. Asked then whether it was a few months after his daughter was indecently assaulted by the complainant, he said: "I'm not really sure about the date when I went to get my first massage from Lucy" but agreed it was "[a] number of months after August 1994". Asked then again whether the complainant was 15 or 15 and a half years old when the appellant took the complainant to Lucy's unit he answered: "I'm not quite sure of exactly how old he was ... He was 15, something about that, yeah. I mean - when was he born again?" When it was then put to him that he could have taken the complainant to Lucy's unit before February 1995, he answered that he did not meet Lucy until 1995. Put to him then that he took the complainant to Lucy's unit before his daughter was indecently assaulted, he denied it. Later, when the appellant was being questioned about how often the complainant and his siblings would stay at the appellant's and his ex-wife's home, the appellant was asked whether on occasions when the complainant stayed at the appellant's home the appellant had taken the complainant out on "boys' trips". He answered, emphatically, "I don't think so". That it was emphatic is apparent from the terms of the exchange:
"Q. Do you agree that you would take [the complainant] on outings.
A. By himself; just me and him?
Q. Boys' trips.
A. I don't think so.
Q. What do you mean 'I don't think so'; are you sure.
A. Of course I'm sure, absolutely 100%.
Q. Never happened.
A. Never ever. I'm emphatic about that."
The appellant's evidence about the trip to Lucy's unit being after 28 August 1994 was clear and emphatic, just as was his evidence that he did not ever take the complainant on any "boys' trips" when the complainant and his siblings came to stay at his home. Whether or not the appellant's evidence on the point was accepted was a matter for the trial judge. But it could not properly be sloughed off on the basis that it was vague. For the reasons already stated, it needed to be dealt with specifically and in the detail which has been explained.
Similar considerations apply to the act of oral sex which was alleged to have occurred at Cherry Gardens when the complainant was 12 years old (ex hypothesi, some two years before the first alleged act of oral sex in Shed 2), especially given the appellant's categorical and, save for the complainant's testimony, uncontradicted denial of ever having taken the complainant to Cherry Gardens. In that connection, too, it is to be noted that, although the Crown called the appellant's ex-wife, who deposed that she had been to Cherry Gardens with the appellant many times, she was not asked whether and did not suggest that the appellant had ever taken the complainant to Cherry Gardens.
Finally, it may be observed that the same considerations also apply to the inconsistencies between the complainant's evidence and the appellant's evidence as to the occasions when the appellant allowed the complainant to ride the appellant's motor bike and whether it was in return for acts of oral sex. On the appellant's evidence, the complainant did not ride the motor bike until he was at least 15 years of age, after the incident involving the appellant's daughter - a version of events consistent with evidence of the size and capacity of the motor bike and the unlikelihood of a child of much less than 15 years of age being able to ride it. Presumably, it was for that reason that the trial judge stated that the complainant's estimates of his age when allowed to ride the appellant's motor bike were not reliable. But, as has been seen, having just made that observation, the judge then went on to observe that such lack of reliability was not sufficient to cause him to doubt the complainant's "truthfulness or reliability" (emphasis added). What that meant is impossible to say. One possibility perhaps is that, despite the judge's expressed doubt as to the reliability of the complainant's evidence of his age when he was permitted to ride the motor bike, the judge was satisfied beyond reasonable doubt that the complainant was allowed to ride the motor bike from the age of 15 and, too, that there were then instances of oral sex in return for motor bike rides. If so, however, that is not what the judge said. Nor does it explain how the judge managed to reason to that conclusion beyond reasonable doubt given that, if there were no motor bike rides until the age of 15, or at least if there was reasonable doubt as to whether there were any rides before then, there was reasonable doubt that there were instances of oral sex in exchange for motor bike rides before the age of 15, and the last date of alleged oral sex was said to have occurred when the complainant was 15 and a half years old. Another possibility is that, despite the judge's expressed doubt as to the complainant's reliability regarding his age when permitted to ride the motor bike, other evidence persuaded the judge that there were instances of motor bike rides for oral sex before the age of 15 and therefore before the date of the last alleged instance of oral sex. But again, that is not what the judge said and, in the absence of further explanation, it taxes credulity that the judge could have reasoned to that conclusion beyond reasonable doubt consistently with his misgivings about the complainant's reliability.
Conclusion and orders
The trial judge's reasons did not meet the standard required in the case of a trial by judge alone of a serious indictable offence. The failure to do so constituted an error of law productive of a miscarriage of justice. It is not suggested that the proviso can be applied, and, for reasons already explained, it cannot be applied. It follows that the appeal should be allowed. The conviction should be quashed, the sentence passed below should be set aside, and it should be ordered that a new trial be had.