//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] HCA 34
appellant. Appeal allowed. Order of the Court of Criminal Appeal set aside. In its place: appeal to that Court allowed, conviction and sentence quashed, verdict of acquittal directed to be entered.
The High Court overturned the conviction of a grandfather for touching by his three-year-old granddaughter because the trial judge never properly explained why he disbelieved the grandfather's sworn denial, and the little girl's changing and prompted stories were not strong or clear enough to prove the crime beyond reasonable doubt. The Court stressed that criminal cases are not simply 'my word against his' and that even young children's evidence must be reliable, not just seemingly truthful.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
3,496 words · generated 24/04/2026
Raymond Howard Lyle Douglass was tried in the District Court of South Australia before Barrett DCJ sitting alone on a charge of aggravated indecent assault upon his granddaughter, referred to as CD. At the time of the alleged offence on or about 23 October 2008 CD was three years old, one week short of her fourth birthday. The Crown case was that while alone with CD in a shed the appellant contrived to have her hold his penis while he urinated. No one else witnessed the event. The only direct evidence came from CD herself.
2 cited instruments linked from this judgment.
CD's allegation first surfaced spontaneously on 27 October 2008 when, while in her separated father's bedroom with her older brother, she asked "Do you have a beautiful penis, daddy?". The following day, after her father urinated in a friend's backyard, CD volunteered that she had been made to hold "grandpa's willy while he did wees" and that it had happened "on the weekend". These statements were admitted only as initial complaint evidence showing consistency of conduct, not as proof of the facts asserted.
CD's mother was told of the complaint and confronted the appellant, who denied it. Further conversations with the mother on 31 October 2008 elicited that the appellant had told CD to "hold his willy" while urinating on the tyre of a tractor in the tractor shed. On 26 November 2008, five weeks after the alleged event, CD was interviewed by a psychologist employed by the Child Protection Agency. In that interview, when first asked if someone had asked her to touch their willy, CD volunteered that she had touched her brother's. She then denied on three occasions that anyone else had asked her to touch a penis before, only after the interviewer said she had been talking with CD's mother "about all that sort of stuff", CD stated "I touched on my grandpa's". She said this occurred in "the shed" at "his shed", that he told her to do it, that she said she did not want to, but that she held it again. She described the penis as looking like her six-year-old brother's and the urine as yellow. The interviewer used some leading questions.
At trial in August 2010 CD was five years and nine months old. She was not asked to give sworn evidence. Instead, after a brief inquiry under s 9(2) of the Evidence Act 1929 (SA) in which she correctly identified that saying there were two people in the remote room was truth and saying there were 50 was a lie, and after being told it was important to tell the truth, she was permitted to give unsworn evidence. Permission was granted under the restrictive terms of s 34CA to cross-examine her on only four topics. In cross-examination CD agreed with a detailed account of the day that included shopping for doughnuts, riding a motorbike to visit her great-grandmother, digging a hole in a sheep paddock and lining up rocks. She did not volunteer any shed visit or touching incident. When shown the recording of her interview shortly before giving evidence she confirmed she had told the interviewer she touched her brother's willy in the toilet while he was peeing because he asked her to. She maintained she had touched both her brother's and the appellant's willy and had spoken to her parents about it on ten occasions. She appeared to have no clear memory of her great-grandmother's dog Lucky despite earlier statements.
The appellant gave sworn evidence that he had been alone with CD that afternoon. They left at 2.30 pm to visit his mother (CD's great-grandmother) because he needed to repair a broken pipe in the sheep paddock. He dug the hole, glued a new pipe, and CD lined up rocks. They rode a quad bike, spent about 30 minutes at the house where CD ate part of a doughnut, then returned. His wife was home. He denied entering any shed with CD, denied urinating in her presence, and denied that she had ever touched his penis. His wife gave evidence that CD returned happy and excited, recounted playing with Lucky and digging the hole, and displayed nothing concerning.
The trial judge warned himself about the caution required with unsworn evidence of a young child. He noted the appellant had given sworn evidence denying the allegations and that nothing in his demeanour assisted the prosecution. Nevertheless he was satisfied beyond reasonable doubt that the appellant had contrived to have CD touch his penis while urinating in a shed, although unsure which shed. He found CD truthful because the allegation was unusual and unlikely to be invented by a three-year-old, the initial complaint to her father was spontaneous, later elaborations to her mother were important bolsters, and she maintained the allegation firmly in cross-examination. He considered her initial denials in the interview and lack of detail did not diminish her credit because of her age, nor did the inconsistency about the shed location matter.
The Court of Criminal Appeal (Doyle CJ, Anderson and David JJ) dismissed the appeal. It characterised the case as "word against word" and held that once the judge accepted CD as credible and reliable he had necessarily rejected the appellant's evidence. On the unreasonable verdict ground it applied the test in M v The Queen and held it had been open to the judge to accept CD's account despite difficulties, having regard to her age.
The High Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) granted special leave, heard the appeal on 16 August 2012 and immediately allowed it, quashing the conviction and directing a verdict of acquittal. The published reasons explain that the trial judge's reasons were legally insufficient and that the evidence could not support a finding of guilt beyond reasonable doubt.
The High Court decided the appeal should be allowed for two independent reasons, each sufficient to require the conviction to be set aside and an acquittal entered. The first was that the trial judge's reasons did not adequately demonstrate that he had applied the criminal standard of proof. The second, and ultimately decisive, was that the evidence was insufficient in law to prove the offence beyond reasonable doubt.
On the reasons ground the Court held that, although the Juries Act 1927 (SA) does not prescribe the content of reasons in the manner considered in Fleming v The Queen or AK v Western Australia, a judge sitting alone must still give reasons sufficient to identify the principles of law applied and the main factual findings. Those reasons must enable an appellate court to determine whether the judge correctly applied the rules of law. In a case where the accused has given sworn evidence denying the offence, that obligation requires the judge to explain why that evidence is not reasonably possibly true. The trial judge's three concluding paragraphs noted the caution required with CD's unsworn evidence, recorded the appellant's sworn denial and the absence of anything in his demeanour assisting the prosecution, and then simply stated satisfaction beyond reasonable doubt that the offence occurred. This left open the real possibility that the judge had merely preferred CD's evidence and convicted upon it without being satisfied that the appellant's denial was not reasonably possibly true. Reliance by the Court of Criminal Appeal on the statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd that in a pure credibility case it may be enough to say one witness is believed in preference to another was misplaced. Soulemezis concerned civil reasons where appeal lay only on questions of law. A criminal trial cannot be reduced to "word against word". As Gummow and Hayne JJ observed in Murray v The Queen, the question is never which version is preferred but whether the prosecution has proved the elements beyond reasonable doubt. Acceptance that CD was truthful did not necessarily exclude a reasonable doubt arising from the appellant's evidence or from weaknesses in CD's own account. The absence of reasons excluding that possibility was legal error. Because the second ground also succeeded it was unnecessary to decide the precise consequence of the first error.
The second ground succeeded because the whole of the evidence did not permit a rational finding of guilt beyond reasonable doubt. The Court carefully traced the reception of CD's evidence. Her out-of-court statements were admitted under s 34CA of the Evidence Act 1929 (SA) only after a voir dire and a finding of sufficient probative value. She was cross-examined on limited topics after the judge was satisfied the statutory test was met. She was permitted to give unsworn evidence after satisfying the s 9(2) criteria. The Court did not criticise these procedural steps. The difficulty lay in the reliability of the resulting evidence.
CD's interview contained an initial unsolicited reference to touching her brother's penis, followed by three express denials that anyone else had asked her to touch a penis or willy. The allegation against the appellant emerged only after the interviewer referred to having spoken to her mother. The detail supplied was limited: the event occurred in "the shed", he told her to do it, she said she did not want to but held it again, the penis looked like her brother's, the wee was yellow. She gave inconsistent accounts to her mother and to police about whether the shed was on her great-grandmother's property (wood shed or tractor shed) or the appellant's property. When shown a plan of the wrong property she identified a wood shed. In cross-examination 22 months later she agreed with a detailed innocent account of the day's activities that omitted any shed or touching incident. She appeared to have little independent memory.
The trial judge had regarded the allegation as one a three-year-old was unlikely to invent, treated the spontaneous complaint and later elaborations as bolstering credibility, and considered her firmness in cross-examination significant. The High Court found these reasons unpersuasive. First, CD had already described an almost identical incident with her six-year-old brother at his request while he urinated; it was therefore difficult to draw any inference that repeating the allegation against the appellant described an event unlikely to be invented. Secondly, firmness in cross-examination about an event 22 months earlier when she was only five years nine months could not safely ground a finding that her earlier prompted interview was reliable, especially when she adopted an innocent account of the day. The Court of Criminal Appeal had correctly questioned the weight the trial judge placed on these two matters but had nevertheless concluded it was open to him to find CD truthful and reliable "having regard to [her] age". The High Court held this reasoning could not be reconciled with the earlier correct observation that difficulties with her evidence could not simply be discarded because she was three years old.
The criminal standard is "designedly exacting". It is not the lesser standard used in care and protection proceedings. In the circumstances the limited, prompted, inconsistent and uncorroborated evidence from a very young child, confronted by sworn denial from the appellant that was not inherently weak and was supported in general terms by his wife's evidence of CD's normal demeanour on return, could not sustain a finding beyond reasonable doubt. The appeal was therefore allowed and, the evidence being insufficient, a verdict of acquittal was the only proper order.
Before Douglass v The Queen the law governing judge-alone trials in South Australia required reasons sufficient to reveal the principles applied and the main factual findings, as explained in R v Keyte. However, there had been uncertainty about the precise content of that obligation when the case turned on competing oral evidence. The Court of Criminal Appeal had relied on civil authorities such as Soulemezis and statements that in credibility cases it may be enough to say one witness is preferred. Douglass clarified that this approach is inapplicable in criminal trials. The obligation is stricter: the reasons must demonstrate that the judge has excluded any reasonable possibility that the accused's evidence is true and has applied the beyond-reasonable-doubt standard to the evidence as a whole, not merely chosen between versions. This aligns the content of reasons with the principles in Fleming v The Queen and AK v Western Australia even though the South Australian statute does not prescribe the form of reasons.
The decision also reinforced the law concerning assessment of young children's evidence. Section 34CA had expanded the admissibility of out-of-court statements by protected witnesses to prove the truth of facts asserted. Section 9(2) had lowered the barrier to unsworn evidence. Section 12A had restricted warnings about child evidence. These provisions reflected a legislative policy against treating children as a class inherently unreliable. Douglass made clear that while these changes facilitate reception of the evidence, they do not alter the fundamental requirement that the evidence, once received, must be capable of proving guilt beyond reasonable doubt. Reliability remains distinct from truthfulness. Initial denials, responses to leading questions, inconsistencies (especially as to location), paucity of detail, and the passage of time may still render the evidence insufficient. The criminal standard is not relaxed; difficulties cannot be ignored merely by reference to the child's age. The decision therefore operates as a judicial counter-balance to the statutory liberalisation of admissibility rules.
After Douglass trial judges in South Australia (and elsewhere) must ensure their reasons expressly address defence evidence and explain why it does not raise a reasonable doubt. Appellate courts must scrutinise both the sufficiency of reasons and the objective sufficiency of child evidence with care. The decision has become a standard reference for the proposition that criminal trials are not credibility contests and that the exacting standard applies with full force even to very young complainants.
"[T]he resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt." (High Court reasons)
Plain-English: It is never enough to decide who seems more believable. The judge must look at everything and be sure the prosecution has proved every part of the crime. If there is any reasonable doubt left after looking at all the evidence, including the accused's denial, the accused must be found not guilty.
"Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true." (High Court reasons)
Plain-English: Just because the judge does not believe the grandfather does not automatically mean he is guilty. The judge must go further and decide that the grandfather's story could not possibly be true. If there is any realistic chance the grandfather is telling the truth, the case has not been proved beyond reasonable doubt.
"The criminal standard of proof is a designedly exacting standard. A different, lesser, standard is applied by courts dealing with contested issues involving the care and protection of children. This was not such a proceeding." (High Court reasons)
Plain-English: The "beyond reasonable doubt" test is deliberately very high because a criminal conviction can destroy a person's life. Family Court or child-protection cases use a lower test because the focus is the child's welfare. This was a criminal trial, so the high test had to be met no matter how young the child was.
"One cannot simply say that because [CD] was a three year old one could discard any difficulties with her evidence, accepting and acting on her evidence of the alleged offence. But equally one cannot say that [CD's] evidence should be assessed in the same way as one would assess the evidence of an adult. Nor could one say that [CD's] evidence was inherently unreliable because of her age." (Court of Criminal Appeal, quoted and analysed by High Court)
Plain-English: The Court of Criminal Appeal correctly said you cannot ignore problems in a child's story just because she is little, but then seemed to do exactly that by saying her age made it "open" to the judge to accept her anyway. The High Court pointed out this contradiction and held that age explains some problems but does not remove the need for the evidence to be reliable enough to remove all reasonable doubt.
Douglass is triggered whenever a judge-alone criminal trial involves a very young child complainant whose evidence is the only direct proof of the offence and the accused has given sworn evidence denying the conduct. It applies with particular force where:
The precedent also applies to any appellate review of a conviction resting on uncorroborated evidence of a young child where the reasons do not demonstrate that the judge excluded reasonable doubt arising from the child's limited detail, inconsistencies or the accused's evidence. It is not limited to sexual offences; the principles concern the standard of proof and sufficiency of reasons in any judge-alone criminal trial.
Although the provided judgment is the authoritative statement, the High Court itself treated earlier authorities in a particular way that indicates how Douglass should be applied. It followed the statement in Murray v The Queen that criminal cases are not contests between competing versions. It distinguished the civil reasoning in Soulemezis as inapplicable to criminal trials. It cited R v Keyte with approval for the content of the obligation to give reasons under South Australian law. It referred to the test in M v The Queen as the correct test for unreasonable verdict but held that the Court of Criminal Appeal had misapplied it by giving undue weight to the child's age and failing to confront the cumulative weaknesses in the evidence.
The judgment makes clear that statutory provisions liberalising the reception of child evidence (ss 9(2), 12A and 34CA of the Evidence Act 1929 (SA)) do not alter the fundamental requirement that the evidence must still satisfy the criminal standard. Later courts are therefore directed to treat Douglass as requiring close scrutiny both of the adequacy of reasons and of the objective reliability of child evidence, rather than deference to a trial judge's assessment of truthfulness. The decision stands as a corrective against any tendency to dilute the standard of proof when the complainant is very young.
The High Court left open the precise consequence of the insufficiency of reasons standing alone, because the evidence was independently insufficient to sustain the conviction. Future cases will need to decide whether inadequate reasons would require a retrial or whether, in some circumstances, they could lead directly to an acquittal.
The Court did not need to resolve questions of construction of s 34CA that have troubled the Court of Criminal Appeal. The precise limits on cross-examination once evidence is admitted under that section, and the interaction between s 12A and s 9(4), remain to be worked through in later decisions.
The judgment does not prescribe a checklist for assessing reliability of very young children's evidence. Trial judges must still evaluate each case on its facts, but Douglass leaves open how much weight may be given to spontaneity of initial complaint when the complaint itself contains no detail and is followed by inconsistent accounts. Similarly, the extent to which expert evidence about child memory and suggestibility may be used to bolster or undermine such evidence was not addressed.
Finally, the Court did not explore whether the principles it restated apply with equal force to jury trials where no reasons are given. While the unreasonable verdict ground remains available, the absence of reasons means appellate courts must still perform the M v The Queen task without the benefit of seeing how the fact-finder reasoned. That tension may require further clarification.
Most people don't realise that after Douglass a conviction resting on the uncorroborated evidence of a three- or four-year-old can be set aside even if the trial judge expressly found the child truthful and the appellate court agrees the child was trying to tell the truth. Reliability is a separate and exacting requirement; the criminal standard does not bend simply because Parliament has made it easier to admit the child's statement.
Douglass v The Queen [2012] HCA 34 Date of Order: 16 August 2012 Date of Publication of Reasons: 11 September 2012 A17/2012
On appeal from the Supreme Court of South Australia
M E Shaw QC with B J Doyle for the appellant (instructed by Patsouris & Associates)
M G Hinton QC, Solicitor-General for the State of South Australia with A F Cairney and J Litster for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal law - Evidence - Trial by judge alone - Appellant convicted of aggravated indecent assault of granddaughter ("CD") - CD aged three years at time of alleged offence - Appellant gave sworn evidence denying offence - CD's unsworn statement only evidence of offence - Trial judge did not record any finding respecting appellant's evidence - Whether reasons sufficient to make clear appellant's evidence rejected beyond reasonable doubt - Whether CD's evidence reliable - Whether evidence sufficient to prove offence beyond reasonable doubt.
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. After a trial before a judge alone in the District Court of South Australia (Barrett DCJ) the appellant was convicted of the aggravated indecent assault of his granddaughter, CD, a child aged three years. He was alleged to have persuaded CD to hold his penis on an occasion when the two were alone in a shed. The only evidence of the offence came from CD. It comprised statements made by her in an interview with a psychologist employed by the Child Protection Agency ("the interview") and her unsworn answers in cross-examination at the trial. The offence was alleged to have occurred on or about 23 October 2008, one week before CD's fourth birthday. The interview took place five weeks later on 26 November 2008. The trial was held in August 2010. CD was then aged five years and nine months. Her evidence was confined to her answers to questions on four topics for which the Court had given permission for cross-examination. The appellant gave evidence of his contact with CD on the day of the alleged offence. He denied that they had been inside a shed or that she had touched his penis. The trial judge did not in terms reject the appellant's evidence. Nonetheless, his Honour was satisfied beyond reasonable doubt that on or about 23 October the appellant had contrived to have CD touch his penis around the time he urinated in a shed. His Honour was not able to identify the shed in which the offence occurred since, as will appear, CD had given inconsistent accounts in this respect. On 10 November 2010, the appellant was sentenced to a term of three years' imprisonment, with a non-parole period of 18 months. The Court of Criminal Appeal of the Supreme Court of South Australia (Doyle CJ, Anderson and David JJ) dismissed the appellant's appeal against his conviction. On 11 May 2012, Crennan and Bell JJ granted the appellant special leave to appeal from the order of the Court of Criminal Appeal. The appeal was heard before the Full Court on 16 August 2012. At the conclusion of the hearing, the Court made orders allowing the appeal, setting aside the order of the Court of Criminal Appeal made on 3 December 2010 and in its place allowing the appeal to that Court, quashing the appellant's conviction and sentence and directing the entry of a verdict of acquittal. Our reasons for joining in the making of those orders are set out below. The first ground - sufficiency of the reasons The appellant's primary challenge was to the sufficiency of the judge's reasons for the verdict. He complained that the judge had arrived at a conclusion of guilt without rejecting his sworn denial of the offence. The material discussion is contained in the concluding three paragraphs of the judgment: "I warn myself of the caution I must take in determining whether to accept CD's unsworn evidence and the weight to be given to it. I bear in mind as well that the accused has given sworn evidence denying the allegations. Further, I do not find anything in his demeanour that assists the prosecution. While bearing all these matters in mind, I am satisfied beyond reasonable doubt that the accused contrived to have CD touch his penis during or about the time he urinated in a shed. I am unsure of which shed. I find the incident occurred on or about 23 October ..." In South Australia, s 7 of the Juries Act 1927 (SA) provides for the trial of an accused on an information presented in the Supreme or District Court by a judge alone. Unlike the statutory provisions governing trial by judge alone considered in Fleming v The Queen and AK v Western Australia, the South Australian statute does not specify requirements for the contents of the reasons for judgment. However, it was common ground on the appeal that 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. The appellant submitted that discharge of that obligation required that the judge give some explanation of why he had excluded the appellant's evidence as not reasonably possibly true. The first ground - the Court of Criminal Appeal The same challenge was advanced in the Court of Criminal Appeal. The Court said that following a trial by judge alone, a judge should state findings on the main grounds on which the verdict rests and the judge should usually give reasons for making those findings. However, when a finding or the resolution of a case turns on credibility, the Court said that it may be enough for the judge to state that he or she believes one witness in preference to another. This was a reference to the statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd: "Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J." (emphasis in original) The Court of Criminal Appeal characterised the appellant's trial as a case of "word against word"; observing that it had been for the trial judge to assess the credibility and reliability of the evidence of CD and the appellant. It said: "The fact that there was no inherent weakness in the evidence given by [the appellant], and the fact that there was nothing in his demeanour that led the Judge to reject his evidence, do not mean that the Judge was not entitled to do so." And: "Having considered the evidence as a whole, and being satisfied of the truth and reliability of [CD's] evidence, the Judge necessarily rejected the denials by [the appellant]." The first ground - consideration The Court of Criminal Appeal's reliance on McHugh JA's statements in Soulemezis was misplaced. Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court of New South Wales in a proceeding in which the right of appeal was confined to a question of law or in relation to the admission or rejection of evidence. It was an error to view the appellant's trial as reducing to a case of "word against word". It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen: "The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant." To dismiss the appellant's complaint respecting the sufficiency of the reasons on the footing that the judge's acceptance of CD's evidence necessarily carried with it rejection of his evidence was to overlook that the judge's acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true. In R v Keyte, Doyle CJ explained why a judge is required to give reasons for the judge's verdict following a trial under s 7 of the Juries Act 1927 (SA). These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant's second ground must succeed. The second ground - the sufficiency of the evidence In its discussion of the appellant's challenge to the sufficiency of the trial judge's reasons, the Court of Criminal Appeal said that the judge had adequately explained why he found CD "to be credible and reliable." The judge's finding was of satisfaction "beyond reasonable doubt of the truthfulness of CD's evidence" (emphasis added). Nowhere did the judge address the distinct question of the reliability of CD's evidence in the sense of its capacity to establish the commission of the offence to the criminal standard. That question is the subject of the appellant's second ground, which contends that the verdict cannot be supported by the evidence. Success on this ground requires that the appellant's conviction be quashed and a verdict of acquittal be entered. The evidence of young children Before referring to the evidence it is convenient to say something about the reception of the evidence of young children under the Evidence Act 1929 (SA) ("the Evidence Act"). A "young child" is a child of or under the age of 12 years. A young child is a "protected witness" for the purposes of s 34CA of the Evidence Act. That section permits the court to admit evidence of the nature and contents of a statement made outside the court by a "protected witness" to prove the truth of the facts asserted in the statement. Reception of an out‑of‑court statement under s 34CA is subject to the court's satisfaction that the statement has sufficient probative value to justify its admission and the availability of the protected witness to be called as a witness in the proceeding. CD's statements made in the interview were received under s 34CA as evidence of the truth of the facts asserted therein. Senior counsel for the appellant objected to their admission at trial, submitting that they lacked sufficient probative value to justify admission. Following a voir dire examination, the trial judge ruled that CD's statements possessed sufficient probative value to justify admission (subject to an inquiry into CD's capacity to give unsworn evidence). A court may only give permission to allow a protected witness to be cross-examined on matters arising from evidence admitted under s 34CA if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence. The Court of Criminal Appeal of South Australia has remarked on the difficulties presented by the drafting of s 34CA. No question involving the interpretation of the provision arises in the appeal. The appellant's counsel sought and obtained permission to cross-examine CD on four topics: CD's account that she had touched her older brother's penis; the relationship between CD and the appellant; the number of times CD had spoken to people about her allegation; and putting the appellant's case that "it didn't happen". A person is presumed to be capable of giving sworn evidence in any proceedings in South Australia unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving such evidence. As earlier noted, CD was not yet six years old at the date of the trial. The judge did not embark on an inquiry of the sufficiency of her understanding of the obligation entailed in giving sworn evidence. His Honour proceeded directly to the consideration of whether the requirements for the admission of unsworn evidence were satisfied. Section 9(2) of the Evidence Act provides: "If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that - (a) the judge - (i) is satisfied that the person understands the difference between the truth and a lie; and (ii) tells the person that it is important to tell the truth; and (b) the person indicates that he or she will tell the truth." At the commencement of the s 9(2) inquiry it was ascertained that there were two other persons in the remote location from which CD gave her evidence. The judge asked CD the following questions and obtained the following replies: "Q. If I were to say there were two people in the room with you, would that be the truth or would that be a lie. A. Truth. Q. If I were to say there were 50 people in that room with you, would that be the truth or would that be a lie. A. A lie." The judge impressed on CD the need for people to tell the truth in court and she agreed that she would do so. His Honour was satisfied that the conditions of s 9(2) were met and CD was permitted to give unsworn evidence. The evidence - CD's complaint In summarising the evidence at the trial it is convenient to commence with an account of how CD's allegation came to light. CD's parents were separated at the time of these events. On 27 October 2008, CD and her older brother, MD, were staying with their father, TD. It was about a week before CD's fourth birthday. Both the children were in TD's bedroom when CD asked "Do you have a beautiful penis, daddy?". TD had never heard CD use the word "penis" before and he was shocked by her question. The following day a further incident occurred. TD had taken CD with him to visit the home of a friend. During the course of the visit, TD urinated in the backyard of his friend's house. CD asked, "Did you just do wees, daddy?", TD said that he had, and CD volunteered "I had to hold grandpa's willy while he did wees". She said that this had happened on the weekend. CD did not understand the distinction between weekends and week days at the time. She had not stayed with the appellant on the weekend; however she had stayed with him overnight on the previous Wednesday. TD's evidence of CD's statements was admitted as evidence of her "initial complaint". The statements were not evidence of the truth of the assertions but they were available to be used as evidence of the consistency of her conduct. TD told CD's mother, LD, of CD's complaint. LD confronted the appellant, her father, with the allegation. The appellant denied it. LD said that TD was going to report the matter to the police, to which the appellant replied "Let him". LD gave evidence of statements made by CD, which were received by way of elaboration of her initial complaint. LD had spoken with CD on 31 October 2008 and asked her about "what they did at [CD's] grandparents". This inquiry led to CD saying that the appellant had told her to "hold his willy". On a subsequent occasion, CD told her mother that the offence occurred while the appellant was urinating on the tyre of a tractor in the tractor shed. The contents of CD's statements to LD were not received to prove the truth of the assertions. Those statements, too, were received as bearing on the consistency of CD's conduct. The interview The evidence relied upon by the Crown to establish the offence was the answers that CD gave during the interview. After some initial questions, the interview with the psychologist, L, proceeded as follows: "L Has someone ever asked you to touch their willy? [CD] … I touched [m]y brother's. L You touched your brother's did you. And what happened? [CD] … I told to MD to pee in the bucket. L Did you? And he did. Oh Okay. And what about anybody else. Did someone ask you to touch their willy? [CD] No. L Or do anything to their willy? [CD] No. L Or. Some people call this a penis. Did you know that? That's the proper word for it isn't it. [CD] Yes. L Has anyone asked you to touch their penis? [CD] No. L Are you sure? [CD] No. L Yeah? Okay. I was just was talking with mum about all that sort of stuff before. [CD] … L If somebody did ask you to hold or touch their penis. [CD] I touched on my grandpa's. L O did you? You touched your grandpa's? Oh, tell me about that. What happened? [CD] I don't know. L Oh, okay. Well do you know what. I wasn't there and you were there. So what if I try and figure out what happened and you help me. Okay? [CD] Yes. L Alright. So where were you when that happened? [CD] In the shed. L You were at the shed, were you? At whose house? [CD] His shed. L His shed, yeah, and what were you do[i]ng in the shed? [CD] Holding his willy. L Holding his willy. Ohm, and how did that happen, like? [CD] He told me. L Yeah, and then what, he said, what did he say to you? [CD] He just said I said to him I didn't want to. L Oh did you? Good. That was good. And then what happened? [CD] Mmm, I holded his willy again. L Did you? Even though you said you didn't want to? [CD] Yes, L Yeah. That was a bit rough wasn't it. [CD] Yeah." The interviewer asked CD what the appellant's "willy" looked like and CD replied that it looked like MD's "willy". At the time, MD was six years old. The only other details of the offence provided by CD in the interview were that the appellant was wearing pants and a singlet and that his "wee" was yellow. The cross-examination of CD The cross-examination of CD commenced with some "settling questions". CD's answers to these questions may be thought to illustrate one difficulty in making an assessment of the reliability of her account given in the earlier interview: "Q Do you know your great-nanna. A Not anymore. Q Not anymore. When did you last see great-nanna. A A long time ago. Q Do you remember the last time you saw her. A No. Q You don't or you do. A Don't." The last occasion on which CD had seen her great-grandmother was the date of the alleged offence. In the course of cross-examination, counsel put to CD an account of the events of 23 October 2008, with which she appeared to agree, variously responding "Mm", "Yes" or "Yep". In summary, that account was that CD had gone shopping with her grandmother in the morning and bought some doughnuts. In the afternoon she and the appellant rode on a motorbike to visit her great-grandmother. Afterwards, they dug a hole in a sheep paddock and CD lined up some rocks. CD did not volunteer that the outing included a visit to a shed or that she had held the appellant's penis. Nor was it suggested to her that any such incident had occurred. The only information that CD supplied concerning the events of the afternoon was that they had buried the rocks. While CD agreed with the proposition that on her return from the outing she had told her grandmother that she had played with the dog, Lucky, other of her answers suggested that she had no memory that her great-grandmother had a dog called Lucky or of playing with Lucky that day. CD had been shown a recording of her interview not long before she gave evidence. Counsel asked CD if she remembered the lady interviewer asking her about her brother, MD. The cross-examination continued: "Q did that lady ask you this 'Has someone ever asked you to touch their willy?' and you said 'I touched my brother's'. A Yes. … Q When did you touch your brother's willy. A After a long time ago. Q Where were you when you touched his willy. A Toilet. Q In the toilet. Was he having a pee. A Yes. Q And while he was having a pee you touched his willy, did you. Is that because he asked you to touch his willy. A Yes." Counsel put to CD that she had "never touched [the appellant's] willy". CD maintained that she had. She said that she had touched MD's "willy" and the appellant's "willy". She had talked to her mother and father about these matters on 10 occasions. The scene of the offence It will be recalled that CD told her mother that the appellant had urinated on the tyre of a tractor on the occasion of the offence. The appellant and his de facto wife, CD's grandmother, were living on a property at Lenswood at the time of these events. The appellant's mother, CD's great-grandmother, was living on a neighbouring property. There were two sheds on the great-grandmother's property: a wood shed and a tractor shed. There were three sheds on the appellant's property but none housed a tractor. On 1 November 2009, Detective Kelly, who was investigating the matter, asked LD why she believed that the offence had occurred in the tractor shed. Detective Kelly permitted LD to show CD a plan with a view to inviting her to identify the shed in which the offence had taken place. For reasons that are unexplained, CD was not shown a plan of the appellant's property but only a plan of the great-grandmother's property. It appears that CD identified the wood shed on the great-grandmother's property as the scene of the offence. The defence case The appellant gave evidence of the last occasion on which CD had stayed with him and his wife. He said that he had been alone with CD for a period during the afternoon. They had left home at 2.30pm to visit the great‑grandmother. He was in the habit of visiting her every afternoon at 3.00pm. They left early on this occasion because the appellant had to fix a broken pipe in the sheep paddock. He had dug a hole and glued a new piece onto the pipe. While he did this, CD lined up rocks beside the hole. They rode on a quad bike to the great-grandmother's house. They spent about 30 minutes there, during which CD ate some of her doughnut. Then they returned to the appellant's property. The appellant's wife was at home. The appellant denied that he and CD had been inside a shed or that he had urinated in CD's presence. He said that CD had never touched his penis. The appellant's wife gave evidence in the defence case. She recalled the appellant taking CD to see his mother on the day he fixed the broken pipe. She had packed a doughnut for CD to take on the trip. On their return, CD was happy and excited. She had given an account of playing with Lucky at her great‑grandmother's house and of digging a hole with the appellant. The appellant's wife saw nothing in CD's demeanour to cause her concern. The trial judge appears to have accepted the appellant's wife as a truthful witness. The Court of Criminal Appeal observed that the wife's evidence supported the appellant in a general way but that it did not exclude that the appellant had the opportunity to commit the offence. As the Court commented, evidence of CD's normal behaviour on her return did not assume significance given that there was nothing to suggest that she would have been upset if the offence had occurred. The trial judge's assessment of CD's evidence The trial judge gave reasons for accepting that CD was truthful when she said that the appellant had contrived to have her touch or hold his penis while urinating. Her allegation was of an "unusual event", one his Honour considered unlikely that a three year old would make up. Her complaint to her father was "completely spontaneous", and her reports to her mother by way of elaboration of the complaint were "important bolsters" to her credibility. Another reason for accepting CD as a truthful witness was the firmness with which she had maintained her allegation in cross-examination. The judge noted that when the topic of touching a penis was first raised in the interview, CD volunteered that she had touched MD's penis. Thereafter, on three occasions, she denied touching anyone else's penis, before saying that she had touched the appellant's penis. That allegation only emerged after the interviewer said that she, the interviewer, had spoken to CD's mother "about all that sort of stuff". The judge said that if an adult or older child had responded in the interview in the way that CD had, it would have cast "serious doubt" on the occurrence of the incident. He considered that CD's inability to provide details of her allegation would add to the doubts about its occurrence had she been an adult or older child. However, CD's initial denials and lack of detail did not diminish her credit. Nor was the inconsistency in CD's account of the location of the offence a matter of significance. The second ground - the Court of Criminal Appeal When it came to deal with the appellant's second ground the Court of Criminal Appeal applied the test formulated in the joint reasons in M v The Queen: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (footnotes omitted) The Court of Criminal Appeal agreed with the trial judge that CD's initial denials and the inconsistencies between her statements in the interview and on later occasions were explicable on the basis of CD's young age. However, the Court was not prepared to place the same weight on the two factors on which the trial judge relied for his finding that CD was truthful. Doyle CJ, who gave the leading judgment, was not confident that the allegation was one a three year old child was unlikely to make up. Nor was Doyle CJ confident that he would have given as much weight to CD's firmness in cross-examination as the trial judge had done. Nonetheless, Doyle CJ considered that it had been open to the trial judge to accept CD's account and to rely on it to reach a finding of guilt. In reaching that conclusion, Doyle CJ said this: "One cannot simply say that because [CD] was a three year old one could discard any difficulties with her evidence, accepting and acting on her evidence of the alleged offence. But equally one cannot say that [CD's] evidence should be assessed in the same way as one would assess the evidence of an adult. Nor could one say that [CD's] evidence was inherently unreliable because of her age. However, having regard to [CD's] age, it was open to the Judge to decide that she was truthful and reliable during the interview by the psychologist, which became her evidence, despite the problems with that evidence that [the appellant's counsel] identified." The respondent's submissions The respondent embraced the Court of Criminal Appeal's reasons respecting the assessment of CD's evidence. In written submissions, the respondent referred to a body of research dealing with the capacity of children to give reliable evidence and to the enactment of s 12A of the Evidence Act. The latter provision precludes the giving of a warning that it is unsafe to convict on a child's uncorroborated evidence unless, in the circumstances of the case, there are cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of that evidence. No question of the giving of a warning under s 12A (or of the relationship between s 12A and s 9(4)) of the Evidence Act arises. The respondent's invocation of s 12A was because its enactment was said to reflect "contemporary understanding of a child's capacity to give truthful and reliable evidence". Contrary to the tenor of that submission, the evident intention of the provision is that child witnesses are not to be treated as a class. The issue raised by the appeal is not resolved by recourse to the results of studies concerning the capacity of children generally to give truthful and reliable evidence. In question in the circumstances of this trial is the sufficiency of CD's evidence to support a conclusion beyond reasonable doubt that the offence charged in the Information occurred. The second ground - consideration The Court of Criminal Appeal was right to question the cogency of the reasons given by the trial judge for his acceptance of CD's account. First, CD said that she had touched her brother's penis at his request while he was urinating. In these circumstances it is not apparent how the trial judge drew the inference that CD's account of doing the same thing at the appellant's request was a description of an event that it was unlikely a child of her age would make up. Secondly, since it was at least possible that CD could not recall the day of the alleged offence when she gave evidence 22 months later, her firmness in cross‑examination, while capable of bearing on her truthfulness, was an uncertain foundation for accepting that her account in the interview was reliable. In the passage set out earlier in these reasons, the Court of Criminal Appeal said that one could not discard any difficulties with CD's evidence simply because she was a three year old. In the same passage, the Court went on to say that having regard to CD's age it had been open to the judge to decide she was truthful and reliable despite the problems with her evidence. The Court did not explain how the two propositions were to be reconciled. How was the judge to arrive at a state of satisfaction beyond reasonable doubt of the reliability of CD's statements in the interview given that the limited detail of the allegation was supplied in response to leading questions and only after initial denials? Those statements were the only evidence of the commission of the offence. In later statements, CD gave inconsistent accounts of the scene of the offence. It is understandable that CD may have been confused when she was shown the plan of her great-grandmother's property and asked to identify the shed. Nonetheless, the fact that CD gave three different accounts of the scene of the offence cannot be dismissed in any assessment of her reliability as an historian. The criminal standard of proof is a designedly exacting standard. A different, lesser, standard is applied by courts dealing with contested issues involving the care and protection of children. This was not such a proceeding. In the circumstances of this trial, it was an error for the Court of Criminal Appeal to hold that it had been open to the trial judge to be satisfied of the reliability of CD's statements in the interview and to reason from that, despite the appellant's denials, to a conclusion that his guilt had been proved beyond reasonable doubt.
Douglass
The Queen
Appeal allowed. Order of the Court of Criminal Appeal set aside. In its place: appeal to that Court allowed, conviction and sentence quashed, verdict of acquittal directed to be entered.