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1. John Garay was tried by judge alone on an indictment containing 18 counts of sexual offences alleged to have been committed when the complainant, a boy, was of or above the age of 10 years but under the age of 16 years. The indictment included two counts alleging sexual intercourse contrary to s 92E(2) of the Crimes Act 1900 (ACT) and 16 counts alleging an act of indecency contrary to s 92K(2) of the Act.

2. The trial judge (Loukas-Karlsson J) returned verdicts of not guilty on counts 1, 3, 4, 5, 6, 7, 8, 9, 10 and 18 and verdicts of guilty on counts 2, 11, 12, 13, 14, 15, 16 and 17. For those offences, a sentence of a term of imprisonment for five years with a non-parole period of three years was imposed.

3. Mr Garay appeals against his conviction on the counts on which he was found guilty. There is no appeal against sentence.

4. The appeal is brought pursuant to s 37O(2) of the Supreme Court Act 1933 (ACT). That section provides: (2) The Court of Appeal on an appeal against conviction must— (a) allow the appeal if it considers that— (i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or (ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or (iii) on any other ground there was a miscarriage of justice; or (b) dismiss the appeal.

5. Section 68C of the Supreme Court Act provides that a finding of guilt by the judge in a trial without a jury has, for all purposes, the same effect as a verdict of a jury. Such a finding must accordingly be taken to be amenable to appeal on the same grounds: cf Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [9] (French CJ, Bell and Keane JJ, Nettle and Gageler JJ agreeing at [74]).

6. The appellant’s notice of appeal specifies five grounds of appeal but those were helpfully distilled to three in his written submissions, by reference to the three limbs of s 37O(2). As reframed, the grounds are as follows and are referred to in that way in this judgment: (1) the verdicts are unreasonable, or cannot be supported, having regard to the evidence; (2) the trial judge erred in law in failing to apply either the Liberato direction or the Markuleski direction and in finding there was a case to answer on counts 2, 11 and 12; (3) the trial judge failed to provide adequate reasons as required pursuant to s 68C(2) of the Supreme Court Act resulting in a miscarriage of justice.

7. The case on appeal was further refined by the appellant’s concession that the alleged error of law in finding there was a case to answer on counts 2, 11 and 12 was effectively subsumed within the unreasonable verdict ground. Accordingly, it is not necessary to address that point separately.

8. In the written submissions, the unreasonable verdict ground was put forward as the central complaint. In his separate judgment below, Elkaim J has noted that, conversely, the ground alleging inadequate reasons dominated the appeal hearing. His Honour has formulated his reasons on that basis. In my respectful opinion, the convenient course is to determine the unreasonable verdict ground first since that ground, if successful, would result in the entry of verdicts of acquittal: cf AK v Western Australia [2008] HCA 8; 232 CLR 438 at [18] (Gleeson CJ and Kiefel J). However, as I will explain, it is necessary for that purpose to consider the use that can properly be made of the trial judge’s reasons in light of the appellant’s contention that they were inadequate.

9. The appellant’s written submissions reversed the order of the remaining grounds, addressing the alleged failure to give reasons second and the alleged failure to apply the two legal directions third. I will adopt the same course.

Ground 1: unreasonable or unsupported verdicts

10. The submissions in support of the unreasonable verdict ground addressed the convictions in two groups. As to counts 2, 11 and 12 (three acts of indecency alleged to have been committed on separate occasions), the appellant reprised the argument put to the trial judge in support of the “no case” submission that the complainant’s evidence was “formulaic” and that “the counts were accordingly uncertain”. That point, which was referred to in the submissions variously as the “uncertainty” or “ambiguity” or “specificity” point, is referred to in this judgment as the uncertainty argument. The appellant further contended that there was a lack of corroborating evidence in support of those counts and that material witnesses were not called.

11. The convictions on the remaining counts, referred to by the appellant as the “train set” counts, were challenged on the basis that the complainant’s evidence in support of those counts was “inextricably linked to the appellant working on a train set in his garage”. The appellant contends that the evidence established that the train set was not built until considerably later, “indicating that the complainant was mistaken or lying and in any event unreliable.”

Principles to be applied in determining an unreasonable verdict ground

12. The approach to be taken to a ground that a verdict is unreasonable, or cannot be supported, having regard to the evidence is well settled. As submitted by the appellant, the law remains as stated by the High Court in M v The Queen [1994] HCA 63; 181 CLR 487 at 493 [7] (Mason CJ, Deane, Dawson and Toohey JJ). The question the appellate court must ask itself (in an appeal after a trial by jury) 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”.

13. In Filippou, an appeal from New South Wales, the High Court held that the approach is the same after a trial by judge alone: at [11]–[12] (French CJ, Bell, Keane and Nettle JJ); [81]-[82] (Gageler J). That conclusion was based on the language of the relevant New South Wales provision, s 133(1) of the Criminal Procedure Act 1986 (NSW), particularly the fact that the section equates a judge’s finding of guilt with the verdict of a jury “for all purposes”. As already noted, s 68C(1) of the Supreme Court Act is in substantially the same terms. It may accordingly be taken that the test in M applies equally to a finding of guilt by a judge in the Australian Capital Territory.

14. The question for the appellate court is one of fact. It is not to be confused with the question of law whether, taken at its highest, the evidence can support the verdict. As explained in M, it is a question of fact “which the court must decide by making its own independent assessment of the evidence”: at 492 [6]. In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], the question was framed as being whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, “which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.” (Emphasis in original.) However, the High Court has since clarified that the question so framed is not to be understood to qualify the enduring principles stated in M: see Pell v The Queen [2020] HCA 12; 268 CLR 123 at [43]–[45]; Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [13]. To say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell at [45].

15. Finally, it is well settled that, in determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M at 494 [8]. In Filippou, the High Court treated that principle as being of equal application in an appeal from a finding of guilt by a judge: at [12] (French CJ, Bell, Keane and Nettle JJ); [83] (Gageler J). Despite this well-established principle, appellate courts are repeatedly invited to place more faith in their own logic and intellect than to give effect to the acknowledged advantage of being immersed in the atmosphere of the trial. The weight to be given to the trial judge’s advantage in seeing and hearing the evidence in the present case is a matter raised by a submission made by the appellant, to which I now turn.

Significance of the trial judge’s assessment as to credibility

16. The trial judge recorded her view that the complainant was “highly credible” and that there was “nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence”: R v Garay (No 3) [2021] ACTSC 215 at [796]–[797]. After some brief additional observations, her Honour concluded at [799], “[a]s far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable”.

17. The appellant submitted, in effect, that this Court should pay no heed to that assessment to resolve any doubt as to the appellant’s guilt because it was not supported by “intermediate reasoning”. The submission was not put in those terms but that is as I understood its effect. The Director of Public Prosecutions submitted that any absence of intermediate reasoning could not preclude consideration of the trial judge’s “explicit assessment” of the complainant’s evidence and that the importance of that assessment is critical, given the judge’s advantage of seeing and hearing the witnesses give evidence over a number of days.

18. The point is moot because, for the reasons explained below, my assessment of the whole of the record of the trial has not left me in any doubt as to the appellant’s guilt. It follows that I have reached the conclusion that the findings of guilt were open to the trial judge (in the sense explained in M) without needing to resort to her Honour’s assessment of the complainant’s credibility. I am nonetheless fortified in that conclusion by the assessment recorded by the trial judge. For that reason, and in deference to the careful submissions put by the appellant, it is appropriate to engage with the point.

19. The appellant’s central argument was that, “unlike was the case in Pell or Vunilagi, no assumption can be made that the evidence of the complainant was assessed to be credible and reliable”.

20. The submission rolls up several propositions that need to be considered separately. It is correct that, in Pell, the High Court proceeded on the assumption that the evidence of the complainant was assessed to be credible and reliable. The Court explained at [39] that, in determining an unreasonable verdict ground “in a case such as the present”, the appellate court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable, the task then being to: "…examine the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy, or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt”.

21. However, that was an appeal from the verdict of a jury. It was also an appeal in which the appellant had indicated (in the context of a debate as to whether the Victorian Court of Appeal should watch the audio-visual recording of the complainant’s evidence) that his case on appeal did not depend upon an assessment of the credibility of any witness: at [32]. Rather, his argument was that, assuming a credible account, there were inconsistencies and discrepancies that deprived the Crown case of the cogency required for proof beyond reasonable doubt.

22. I interpolate to note that the appellant’s central challenge to the findings of guilt on counts 2, 11 and 12 is in the same category. The uncertainty argument is capable of being determined on the assumption that the complainant was assessed to be credible and reliable (hence its assimilation of the no case submission). The submissions invited this Court to conclude, notwithstanding a favourable assessment of credibility, that the trial judge ought nonetheless to have entertained a reasonable doubt as to proof of guilt on those counts.

23. In any event, returning to Pell, the approach taken by the High Court (of proceeding upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable) was appropriate in a case of that kind. An assumption as to the jury’s assessment of the complainant’s credibility and reliability was made because juries do not give reasons. The content of the assumption followed inexorably from the fact of conviction. In order to convict, the jury must have believed the complainant.

24. The same can be said in criminal proceedings for sexual assault tried by judge alone; in order to convict, the judge must believe the complainant, at least as to the elements of the offence. However, it will not ordinarily be necessary to make any assumption on that issue because the trial judge will have given reasons that include an assessment of the credibility and reliability of the complainant.

25. So it was in Vunilagi (the second authority invoked by the appellant in the submission set out above). Following a trial without a jury, the trial judge in that case (Murrell CJ) recorded her assessment that the complainant “presented as an honest witness” and supported that assessment with her observations about the way in which the complainant had given her evidence: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 at [360].

26. The Court of Appeal in Vunilagi v The Queen [2021] ACTCA 12 nevertheless cited the passage in Pell at [39] (quoted above) in the context of an observation that, to have convicted on the counts she did, the trial judge “must have accepted the complainant’s evidence as credible and reliable in respect to those counts”: at [10] (Mossop, Loukas- Karlsson and Abraham JJ). The reference to the assumption adopted in Pell was, with respect, inapposite in that context. There was no need to deduce the assumed reasoning of the trial judge in Vunilagi because her Honour gave reasons which identified and explained her assessment of complainant’s credibility. Importantly, however, there was no reason not to have regard to that assessment because, although some criticism was evidently made of her Honour’s reasons in the appeal, there was no ground of appeal (as there is here) asserting a failure to provide adequate reasons resulting in a miscarriage of justice: Vunilagi appeal judgment at [17].

27. The point is that care must be taken in applying principles concerning the approach taken in an appeal from the verdict of a jury to an appeal from a finding of guilt by a judge. As established by the decision of the High Court in Filippou, the question for each kind of ground of appeal is the same, whether the appeal follows a trial by judge or by jury. However, in an appeal following a trial by judge alone, to the extent that a ground of appeal is capable of being informed by the judge’s reasons, the approach might be different. A helpful analysis of the ways in which a different approach might be taken according to the issues raised on appeal is provided in the separate judgment of Gageler J in Filippou at [83] where his Honour acknowledged that a court of appeal might, in a proper case, adopt unchallenged intermediate findings of fact of the trial judge, without need for independent assessment, whereas in other cases the court will have to undertake a full independent assessment of the evidence without regard to the trial judge’s reasons.

28. I apprehend that is the real point sought to be raised by the appellant’s submission. Although framed (with respect, inappositely) by reference to the “assumption” to be made in accordance with the decision in Pell, the argument was directed to the reliance that can properly be placed on an assessment of credibility recorded in an inadequately reasoned judgment. That is a legitimate concern.

29. However, there is a difficulty with the way the point was framed. The submissions implicitly equated an assessment of credibility with an intermediate finding of fact. Citing the remarks of Gageler J in Filippou at [83] to which I have referred, the appellant acknowledged that the Court of Appeal can, in an appropriate case, “adopt intermediate findings of fact of the trial judge” but contended that this Court cannot make the “assumption” or adopt the conclusion that the complainant was credible and reliable because there was “no intermediate reasoning” to justify that conclusion.

30. The argument conflates findings of fact with the process by which they are reached. An assessment of credibility is part of the process of deciding the facts. Such a conclusion should be explained but it is not susceptible of the same kind of intermediate reasoning as a finding of fact. It is not a critical analysis of the statements of another. It is an expression of one’s own experience of seeing and hearing the witnesses give evidence. As a conclusion informed by the advantages of presiding over a trial, it is one ordinarily to be given some deference by an appellate court.

31. Whatever differences exist between trial by jury and trial by judge alone, the advantage of being immersed in the atmosphere of the trial is one thing they undoubtedly have in common; an advantage not shared by the appellate court. The assessment of credibility involves more than a lawyerly analysis of the words on the page of a transcript. The advantage enjoyed by the tribunal of fact has myriad elements that can never be replicated in the sterile atmosphere of an appellate court. It is the difference between reading a play and seeing it performed. Full allowance cannot be made for the advantage of presiding over a trial without an honest reckoning of the extent to which observations can be made, tone and expression interpreted, apparent inconsistencies assessed, anomalies synthesised with other evidence, mistakes understood, misunderstandings resolved and judgments made as words are spoken by a witness.

32. I accept that, in principle, there could be cases in which a trial judge’s assessment as to credibility could properly be put to one side by the appellate court because the particular finding was inadequately explained or was predicated on a mistake of fact or law. It is probably unhelpful to suggest examples, lest they be understood to constrain the consideration of a future case.

33. As already noted, as in Pell, the appellant’s central case on appeal in respect of counts 2, 11 and 12 does not depend upon an assessment of the credibility of any witness. However, the case in relation to the train set counts squarely challenges the complainant’s credibility. There are also some separate points made about credibility in relation to counts 2, 11 and 12. In each instance, the challenge is one in respect of which the trial judge’s assessment as to credibility would ordinarily properly be taken into account. In circumstances where the judge’s reasons are impugned, the question raised by the appellant is whether that assessment can and should properly be put to one side here, notwithstanding the deference ordinarily due to such an assessment.

34. In determining that question, it is appropriate to foreshadow my conclusion as to the third ground of appeal concerning the alleged inadequacy of the trial judge’s reasons. Justice Elkaim has outlined in detail the structure of her Honour’s judgment. In short, the bulk of the judgment consists of a lengthy recitation of the evidence and submissions without any analysis along the way. The consideration at the conclusion of the judgment is spare. However, for the reasons explained more fully below in the discussion of that ground, while the approach taken by the trial judge to the writing of her judgment is undesirable and not to be imitated, I am not persuaded in the circumstances of this case that the reasons fall short of the statutory requirement.

35. It follows that, had it been necessary to consider whether any doubt as to the appellant’s guilt was resolved by the advantage of the trial judge in seeing and hearing the witnesses, in my view it would have been open to this Court at that point to have regard to the trial judge’s assessment that the complainant was a credible and reliable witness. Indeed, in accordance with the authorities discussed above, this Court could not accede to the unreasonable verdict ground without making full allowance for the advantage enjoyed by the trial judge, which necessarily underpinned her conclusion as to credibility.

36. However, for my part, that has not been necessary. I have determined ground 1 based on my own review of the whole of the evidence without any regard to the reasons for judgment of the trial judge: cf Filippou at [83].

A case involving direct evidence of sexual assault is not a circumstantial case

37. Separately, the appellant relied on a passage from the decision of the High Court in Coughlan v The Queen [2020] HCA 15; 267 CLR 654 for its reiteration of the task for an appellate court “where, as in the present case, the Crown relies as part of its proof on circumstantial evidence”. The passage cited was [55] of the judgment, where the Court (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) said: An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.

38. A footnote to that passage included reference to the decision of the High Court in Shepherd v The Queen [1990] HCA 56; 170 CLR 573 which remains the seminal authority as to the proper approach to a circumstantial case.

39. I do not think the principles stated in Coughlan and Shepherd assist in this case. Coughlan was properly characterised as a circumstantial case attracting the principles in Shepherd. Mr Coughlan was charged with arson and attempted insurance fraud after his holiday house was destroyed by fire following an explosion. There was no eyewitness who gave an account of any act of his that caused the explosion. Instead, the prosecution case was based on a combination of circumstances (listed in full at [10] of the judgment) including Mr Coughlan’s presence at the scene of the explosion, the observations of witnesses who saw him run away and scientific evidence linking the cause of the explosion to the clothes he was wearing at the time.

40. The present case is not a circumstantial case. There was an eyewitness who gave an account of the appellant’s alleged participation in the offences: the complainant. He gave direct evidence that the appellant fondled his penis and anally raped him. To ask whether it ought to have been inferred from that evidence that the appellant fondled the complainant’s penis and anally raped him is to convert the complainant’s evidence to the status of something other than direct, stand-alone, eye-witness evidence.

41. The principles stated in Coughlan do not assist because they are concerned with cases where proof of guilt rests on an inference to be drawn from a combination of circumstances. The present trial did not require the trial judge to draw an inference as to the appellant’s guilt. His guilt was proved, or not, according to the judge’s assessment of the evidence of the complainant. The process of testing that evidence by reference to other evidence in the case did not make it a circumstantial case in the sense discussed in Shepherd. The trial judge found the appellant guilty because she accepted the evidence of complainant to the criminal standard. That entailed an acceptance that facts were proved, not the drawing of an inference from other proved facts.

Overview of the case

42. Before turning to the detail of the appellant’s submissions concerning the individual counts, it is helpful to provide a brief overview of the case.

43. The complainant grew up in Sydney in the state of New South Wales. He has known the appellant, who is fourteen years his senior, his whole life. They met through the complainant’s uncle, who went to school with the appellant. The appellant maintained contact with the uncle and the complainant over many years and came to be considered a family friend.

44. At the time the appellant was committed for trial for the present matters, he pleaded guilty to an offence of possession of child abuse material found by police on a USB device at the time of his arrest, some 35 years after the alleged offences. He admitted during cross-examination to having an interest in that material. An application by the Crown to rely on that admission as tendency evidence was rejected by the trial judge because it showed no tendency at the relevant time: Garay (No 3) at [399]. However, the evidence was not excluded as it remained relevant in the context of the appellant’s reliance on his claimed good character: at [675], [791].

45. The complainant’s parents separated when he was two years of age. He gave evidence that he had no relationship with his father during his childhood. He and his mother first moved into a unit but ended up living with his grandmother, where his uncle also lived. The appellant initially lived close by. The complainant said that the appellant would often visit the family and that the complainant would often visit the appellant to play computer games and learn about photography in a darkroom in the backyard. The complainant said that, through these visits, he and the appellant “struck up a friendship”. The appellant gave evidence in the trial the effect of which was to dispute the frequency of such visits but ultimately there was no dispute that a friendship of sorts developed between the complainant and the appellant.

46. The complainant gave evidence that the appellant began indecently assaulting him from an early age and that the first indecent assault occurred at the appellant’s address near the grandmother’s house. That evidence was admitted only as evidence of the relationship between the complainant and the appellant. The trial judge noted a concession by the Crown in closing submissions that “this incident could not be proven beyond reasonable doubt, due to questions relating to the timing of the event in relation to the accused’s trip to the United States”. It was rejected as tendency evidence for that reason: at [373]–[379].

47. At some point the appellant moved to an address further away but still within a short drive of the grandmother’s house. The complainant said that he continued to visit the appellant at the new house, but as it was no longer within walking distance, he had to be driven there. He said the appellant indecently assaulted him several times at that address. That evidence was admitted only as relationship evidence and was rejected as tendency evidence at [380]-[385] and [422].

48. In February 1986, the appellant moved to Canberra for work. The complainant and the appellant remained in contact. The complainant travelled to Canberra several times during school holidays, staying at the appellant’s house for periods of several days or, as he recalled, up to a week. It was the complainant’s evidence that, on all but one of the nights he stayed with the appellant at the Canberra address, he slept in the appellant’s bed and was indecently or sexually assaulted by him. All of the counts on the indictment were based on acts alleged to have been committed at that address.

49. The complainant said he always wore his summer pyjama shorts in the appellant’s bed because he was always hot when he slept with the appellant. He attributed this in part to the fact that he usually slept alone whereas, when he stayed at the appellant’s house, they shared a bed and the appellant would cuddle him and rub against him, creating additional body heat. The complainant’s pyjamas were made of a light material similar to the fabric used in T-shirts and went down to halfway between his hip and his knee. They had a slit in the groin area.

50. As already noted, the appellant gave evidence at the trial. In many respects, his account coincided with that of the complainant. He accepted that the complainant had come to stay with him at the Canberra address and that they had engaged in many of the social activities the complainant had described, such as going to movies, going to “Wonderland” and on one occasion going skiing. He agreed that the complainant had stayed at his house in Canberra several times. The trips he remembered or identified were in August 1986 for three to four days, in November 1986 for two nights and in January 1987 for “three, four, maybe five days”.

51. The appellant even admitted that the complainant had slept with him in his bed. He thought that had happened on three occasions. He said that, in “the August school holiday” (presumably a reference to the August 1986 visit), the complainant “just turned up” in his room about 10 or 20 minutes after he went to bed. At that time, the complainant was 13 and the appellant was 27. Asked what the circumstances were in which that occurred, the appellant said, “[s]omething – something gave him a reason to come in, and I don’t – can’t put my finger on what it was”. However, he denied that there was any sexual contact between them.

52. All of the offences are alleged to have been committed “on a date unknown between 28 January 1986 and 5 December 1988”, when the complainant was between 12 and 14 years of age. The start date, 28 January 1986, is around the date the appellant moved to Canberra. The end date is the date the complainant turned 15, by which time it was common ground he had stopped visiting the appellant.

53. The complainant did not approach police in relation to the offences until 2018, when he was 44. He was unable at that time to specify precise dates when particular offences were alleged to have been committed. For that reason, it was made plain on the prosecution case that the counts on the indictment were not necessarily presented in chronological order. st Count 2: cousin’s 21 birthday

54. Count 2 was an act of indecency alleged to have been committed on the night of the st complainant’s cousin’s 21 birthday party. The effect of the complainant’s evidence was that this was one of the last incidents in time, if not the last. He was uncertain as to the precise chronology. In fact, the evidence at the trial established that the party was held on 24 May 1986, which would make it one of the earlier incidents in Canberra.

55. The appellant denied that the complainant stayed at his house that night. He said: “I’m thinking he would have stayed with the family that weekend”.

56. The complainant said that he went to Canberra specifically for his cousin’s party, not to stay with the appellant. He did not want to stay at the appellant’s house that night because he had been subjected to sexual offences by the appellant on previous occasions. However, he thought if he made his concerns known, it would raise suspicion and force him to recount his experiences to his relatives. He said his cousin’s house was full and “it would be strange for me not to go to John’s house”, so he stayed there.

57. The complainant recalled that others also stayed at the appellant’s place that night. He said that he slept in the appellant’s bed with the appellant. He recalled that a family friend, Mr HL, slept in a sleeping bag in the loungeroom. Mr HL gave evidence and could not recall where he or anyone else stayed (he did not even remember that the party was in Canberra) but the appellant remembered that Mr HL had “definitely” stayed at his place. The complainant also thought that Mr MM might have stayed at the appellant’s that night. Mr MM was not called as a witness but, again, the appellant confirmed that he did stay. The suggestion appears to have been that, because others stayed, it was unlikely that the complainant did. However, as evidenced by count 11 (the surprise party incident discussed below), having other people in the house was not inconsistent with the complainant sleeping in the appellant’s bed. Indeed, on the occasion of count 11, it was the appellant’s explanation for the complainant sleeping in his bed.

58. The complainant’s older sister gave evidence of a conversation in which it was agreed that the complainant would stay at the appellant’s because there was not much room at the cousin’s house. The complainant’s mother also thought the complainant stayed at the appellant’s place that night along with others, possibly including Mr MM.

59. The complainant was sure he stayed at the appellant’s place that night. His evidence on that issue (set out in the primary judgment at [248]) is discussed below. He said when it was just him and the appellant in the house the bedroom door would be left open but that if there were other people there, “like when the teacher and the student stayed over” and “on that night of the twenty-first birthday”, it would be closed. As explained below, the reference to the night “the teacher and the student stayed over” was a reference to count 11. Although he recalled that the door was shut on the night of the cousin’s party, the complainant did not think the fact of his sleeping in the appellant’s bed had been hidden from the other people in the house.

60. The cousin’s party was held at the Ukrainian Club. The complainant recalled that he went straight back to the appellant’s house from there. He was not certain whether the appellant returned at the same time or whether he went out and came back later – he said his evidence on that issue “could be a little bit tainted” because he had recently spoken to his cousin asking for photographs and she had told him, “we went out afterwards as well”. Either way, the complainant said that he went to bed in the appellant’s bed and that they either went to bed together or the appellant came in at a later stage.

61. In describing the alleged indecent assault, the complainant said: Um, and – and again, um, it was – it was the same as – as all of the other periods in – in that I – um, the same modus operandi. I was lying on my right side or I may have been laying on my back. Um, if I – you know, I don’t know if I was asleep or awake. Um, but if I was asleep, I was awoken, um, he pulled my penis out of my – the slit in my pyjama pants, he masturbated me and, um, and I ejaculated, and then again pretended like nothing happened and went back to sleep.

62. In assessing the language of that description, it is important to understand that, although this is the first count to be described in this judgment (being count 2), it was described by the complainant many hours into his evidence-in-chief statement. The interview began shortly after 9:00am. The complainant’s evidence-in-chief interview went for many hours and involved a change of discs. The discs were changed shortly after midday. During the course of morning before he got to this incident, the complainant had already described many occasions on which the same kind of assault had been committed. It is informative in that context to consider his description of the very first incident he recalled, which was in Sydney before the appellant moved to Canberra: Q76. Yep. A Um, I can’t remember its exact position, but it was obviously opposite the lounge. Um, and so John was, um, seated on his - on – on the lounge with his back, um, against the – the left arm of the lounge. Um, so the lounge is against the wall, um, and there’s the left arm, he was seated sort of across the lounge --- Q77. Yep. A --- um, with his – with his back and left arm or whatever, um, against the left arm and part of the back of the lounge. Um, and I was sitting in between his legs, um, and my back was on his chest and we were watching TV. I can’t remember what we were watching. I don’t know if it was a movie or TV show or what, um, but we were watching television, and um, at some stage I just – I fell asleep. And I don’t know how long I was asleep for, um, but I woke up and one of John GARAY’s hands were down my pants. Q78. Mm-hmmm. A And my – I had an erect penis.

63. The complainant then described further acts of a similar kind that occurred in similar circumstances at the second Sydney address. He then turned to the incidents alleged to have occurred when he made trips to Canberra after the appellant moved there. He said there was “this one modus operandi that happened over and over again” in Canberra, in which they would sleep in the same bed and he would actually be asleep or be pretending or trying to be asleep and the appellant would remove his penis from the slit in his pyjamas, play with it until it became erect and masturbate the complainant until he “ejaculated” (without emitting any ejaculate). His description of count 2 came towards the end of the interview, after he had described that modus operandi.

Appellant’s submissions as to count 2

64. The appellant sought to impugn the trial judge’s finding of guilt for count 2 on two grounds. First, it was submitted that it could not be concluded beyond reasonable doubt that the complainant even stayed at the appellant’s house that evening. The appellant noted, correctly, that this was an indispensable intermediate finding of fact to a finding of guilt on that count.

65. The trial judge did make that finding at [833]. Based on my reading of the evidence summarised above, I am satisfied that the finding was well open.

66. In his evidence at the trial, the accused claimed to be certain that the complainant did not stay at his house that night. However, when police first attended his house and executed a search warrant, he said he could not recall whether the complainant stayed at his house on that occasion. His dogmatic position at the trial was plainly undermined by that earlier answer. No other witness contradicted the complainant’s evidence; in the main, they supported it. It was plainly open to the trial judge to accept the complainant’s evidence on that issue.

67. The second point, which was common to counts 2, 11 and 12, was that the trial judge should not have found a case to answer on those counts because each was “infected by latent ambiguity”. The contention was that the complainant’s evidence on each count was “not based on a recollection of a specific incident, but on an assumption that ‘the usual modus operandi’ had happened, on or following an event the complainant could remember” (emphasis in original). For the reasons expanded upon below, I do not accept that the complainant’s evidence was not based on recollection. That issue is addressed in relation to all three counts below. Counts 11 and 12: complainant’s surprise birthday party

68. Count 11, also an act of indecency, was alleged to have been committed when the complainant was visiting the appellant in Canberra on a date close to the complainant’s st birthday. That appears to have been earlier in time than the cousin’s 21 birthday. Unassisted by any records (as I will explain, deliberately so), the complainant placed that trip as having occurred when he was between Year 5 and Year 7 at school. He found photographs of the event which he provided to police.

69. The appellant accepted that there was such a trip. By reference to contemporaneous documents (his diary and a letter he had received), he thought it was in November 1986, which would place it shortly before the complainant’s 13th birthday (5 December 1986).

70. The complainant remembers catching the train to Canberra and being collected from the railway station by the appellant in his Volvo. They arrived at the appellant’s house where the complainant dropped his bag in the kitchen and entered the dining room to find a surprise birthday party for him. It was a small gathering. Other people present included a woman, who was a friend of both the appellant and the complainant’s cousin, and two friends of the appellant, whom the complainant described as a man “about John’s age” and a boy who was about 16 or 17. The complainant remembered the boy telling him that he was a student and that the older man was his teacher. He also recalled the older man saying that he was the boy’s teacher.

71. The complainant said he stayed with the appellant for about a week on that occasion. He thought the two male visitors stayed one or two nights. He said it could have been during that week that the appellant took him to see the Kiss of the Spider Woman, but he was not sure. Count 1 on the indictment was based on an allegation of indecent assault the night they saw that movie. He gave a plausible description of that outing including recalling his feelings of confusion about being taken to see such a movie by the appellant. The defence case was that there was uncertainty as to that count based on a consideration of the dates on which the film was showing in Canberra and the absence of any clear evidence that the complainant stayed overnight with the appellant on any of those dates. The trial judge found the appellant not guilty of count 1.

72. Returning to count 11, the complainant remembers the woman leaving the appellant’s house after the party while the two men remained. They slept in the spare room while the appellant and the complainant slept in the appellant’s bedroom.

73. The complainant said he went to bed with the appellant in the appellant’s bed. He described what followed in the following terms: Um, and the same thing happened that night, um, the same modus operandi. I, um, went to – went to bed and ah, slept on – on the left side, John was on the right side. Um, I was either on my right side or on my – on my back. Um, I was either asleep or falling – in the process of falling asleep. Um, um, he either awoke me or I pretended to remain asleep. He pulled my penis out of the – the slit in my pants, um, he fiddled with it until it was erect. Um, he lubricated it with something wet and masturbated me until I ejaculated, yeah.

74. As with count 2, in assessing the language of that description, it is important to recall that this incident was being described by the complainant well into a lengthy interview in which he set out to describe as many incidents as he could recall.

75. Count 12 was based on an allegation of a further act of indecency alleged to have been committed the following night. The complainant remembered certain specific details about that day. For example, he remembered that, at some point during the day, the “student” became upset because the complainant teased him for wearing an all-white outfit, suggesting that he looked like a cricketer. The complainant also recalled the teacher and the student staying overnight at the appellant’s house for a second night.

76. The complainant said that, on the second night, the appellant performed an act of indecency in the same way as had become usual; he reached into the complainant’s pyjama pants, extracted his penis and masturbated it until ejaculation. The complainant said he then fell back to sleep and that the appellant would have either done the same or left the room for a brief period.

Appellant’s submissions as to counts 11 and 12

77. The appellant made two substantive points in relation to counts 11 and 12. First, as with count 2, he relies on the uncertainty argument, which is addressed below.

78. Secondly, he submitted that “an issue” with respect to both counts was “the presence of the two other men in the appellant’s house at the time of the alleged offences”. The issue concerned the complainant’s evidence that he remembered the boy telling him that he was a student and that the older man was his teacher. The complainant remembered the older man also saying that he was the boy’s teacher.

79. Those two men are depicted in photographs which the appellant accepts were taken on the night of a surprise party he arranged for complainant. In his evidence at the trial, the appellant identified the men by name. He said that the older man was not a teacher and the younger man was not a student.

80. At the trial, the appellant used this issue to attack the credit of the police officer in charge of the investigation because the officer accepted that he had interviewed the older man but had not asked him if he was ever a teacher.

81. The appellant also relied on the fact that neither man was called to give evidence. He submitted that the failure to call either man is “troubling”. It was contended that, on the account of both the complainant and the appellant, they were “material witnesses”. As to the older man, who was interviewed by the informant, it was submitted that it could be inferred from the failure to call him that he would not have assisted the Crown case.

82. The submission mistakes the evidence. The complainant did not, and could not, give evidence as to the actual occupations of those men. He was simply recounting what he recalled being told by them. Proof that neither visitor to the house was a teacher or a student does not disprove the complainant’s evidence as to what he was told. Nor was the complainant’s evidence on that issue inherently implausible. After describing the boy as “[c]aucasian, skinny, blondish-type hair”, he said: Um, and I can remember the man telling me that – that he was a teacher and that the – the young – the younger person told me that he was a student and that the – that the teacher, um, was his teacher.

83. The photograph of the surprise party depicting the two men shows that the younger man looked considerably younger than the older man. It is not inherently implausible that they might have offered an account of their relationship, whether intended seriously or in jest, to a nearly-thirteen-year-old boy.

84. In any event, it is important to be precise as to what was and was not in issue in respect of count 11. The appellant agreed that there was a surprise party and that the two men stayed that night. He gave sworn evidence that the complainant slept in his bed that night. The central issue at the trial concerning count 11 was whether, while the appellant and the complainant were admittedly in the appellant’s bed together, the appellant indecently assaulted the complainant. Whether another man and youth who it is accepted slept together in a different bed in the same house on the same night described themselves to the complainant as teacher and student (words not asserted to have been said in the presence of the appellant) was irrelevant to the proof of the elements of the offence. If it was relevant to the complainant’s credit, it was barely so.

85. Had either of the men been called as a witness, the highest their evidence could have taken the matter favourably to the appellant is that they might have denied telling the complainant that they were teacher and student and denied staying a second night. Neither point would be sufficient to create a doubt as to the complainant’s evidence concerning the indecent assaults he described.

86. The complainant had a recollection of the second night. He recalled the teasing of the younger man. He also recalled the detail that, on that occasion, it did not take him long to ejaculate.

87. There is no reason to doubt that evidence. The complainant’s evidence in relation to counts 11 and 12 provides an example of the care he took to specify when he was relying on his own recollection and when he was not (a matter considered further below). It was common ground that the appellant was a keen photographer. The complainant remembered the appellant taking photographs at the surprise party and he remembered being given photographs by the appellant (presumably at a later point — there was detailed evidence as to the appellant’s practice in relation to having photographs developed in those days).

88. In his evidence-in-chief interview with the Australian Federal Police, the complainant explained that he had previously told NSW police that he did not know where those photographs were. He thought they were “gone”. However, he had later searched his mother’s house and, to his “utmost surprise”, found the photographs. By the time he gave his evidence-in-chief interview for the present matters to the AFP, the complainant had refreshed his memory by looking at the photographs. He was careful to explain that, before doing so, he could not recall who was at the surprise party but that the photographs had reminded him (or enabled him to work out) that the people at the party who stayed at the appellant’s house at that time were the people he knew as the teacher and the student.

Uncertainty

89. Alleged uncertainty or ambiguity was the central challenge to the findings of guilt on counts 2, 11 and 12. The appellant submitted that the complainant’s version of events was “formulaic” and that those counts were “accordingly uncertain”. It was submitted for that reason, considered together with the complaints that there was a lack of corroborating evidence and that material witnesses were not called, that it was not open to the trial judge to be satisfied beyond reasonable doubt of those counts.

90. I have already considered the complaint that material witnesses were not called. As to the lack of corroborating evidence, there were issues on which the complainant’s evidence found support in the evidence of other witnesses, including the appellant.

91. It may be accepted that there was no evidence to corroborate the complainant’s evidence as to the central issues in the trial, the elements of the offences. It is over 10 years since the requirement for corroboration of the evidence of complainants in sexual assault cases was abolished in the Australian Capital Territory: s 164 of the Evidence Act 2011 (ACT) commenced on 1 March 2012. For almost four years, trial judges have been forbidden from directing juries otherwise: s 80 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) commenced on 5 December 2018. Other jurisdictions have had similar provisions for considerably longer.

92. The effect of those amendments was to recognise (if a statute were needed for this purpose) that the sworn account of a person who claims personally to have experienced a sexual assault is capable, without more, of proving the assault beyond reasonable doubt. The perception that such an account is not adequately probative (or worse, inherently unreliable) and requires independent corroboration appears nevertheless to remain deeply embedded in the public psyche. To give effect to that perception in criminal proceedings for sexual assault at any level of the court hierarchy is wrong for several reasons. It perpetuates stereotypes and preconceptions in a legal system that claims impartiality as its hallmark. It subverts the legislative amendments to which I have referred. It puts complainants in sexual assault cases in a different class from the alleged victims of other kinds of offences and, in that way, suffers incoherence in the rule of law.

93. Turning to the central issue, the complaint of uncertainty, the appellant relied on the principles considered in the decision of the High Court in Johnson v Miller [1937] HCA 77; 59 CLR 467, particularly the remarks of Dixon J at 489, and the reiteration of those principles in the context of sexual offences in the decision of the High Court in S v The Queen [1989] HCA 66; 168 CLR 266.

94. I do not think the present case falls foul of the principles established in those cases. Johnson v Miller was a liquor licensing prosecution in which the offence charged was that the defendant was the licensee of licensed premises out of which “a certain person” was seen coming during a Sunday. It had been disclosed in advance of the hearing that the evidence would establish that, indeed, many persons were seen coming out of the premises that day. The informant refused to specify a particular person relied upon to prove the charge. It was clear enough that the informant was in a position to specify one or other of the many persons seen leaving the premises that day as the “unknown person” whose presence on the premises was relied upon to support the charge. However, the informant took the view that “the complaint was adequate and that he was entitled to support the charge by any instance of the offence he was able to prove”. In other words, it was sought to prove many offences over which the prosecution case would float, the contention being that it could crystalise on any one or other offence at the conclusion of the evidence.

95. The charge was dismissed by the magistrate as defective. The High Court held that the Magistrate was right to dismiss the charge because, while the complaint was not defective on its face, the facts relied upon by the informant (that many persons left the premises during the period specified) disclosed a latent ambiguity in the complaint.

96. The principle that emerged from that decision is that “a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”: at 489.

97. That principle was applied in the context of sexual offences in S v The Queen. That was an incest case in which the complainant gave evidence that she had been sexually assaulted by her father many times over several years. She said she could not remember the details because she had “blanked them out”. The accused was arraigned on an indictment containing three counts of incest, one in each of three separate periods. As in Johnson v Miller, the prosecutor refused to provide particulars of the precise conduct to which each count in the indictment related. The complainant’s evidence was in general terms. No particular act committed at a particular time and place was described. Instead, as in Johnson v Miller, the prosecution sought instead to present a floating case involving the proof of many offences, any one of which might crystalise into a finding of guilt at the conclusion of the evidence. The Court held that the prosecution was fundamentally flawed as the requirement for certainty was not met: at 278 (Dawson J), 283 (Toohey J), 287 (Gaudron and McHugh JJ).

98. The appellant also relied on the decision of the Victorian Court of Appeal in R v SLJ [2010] VSCA 16; 24 VR 372. That was a case in which the complainant gave generic evidence as to what the accused “would” do, without specifying any particular incident. The Court said at [17]: In our view – and as senior counsel for the Crown conceded – this evidence was not capable of supporting such a conclusion. As is apparent from the complainant’s repeated references to what the accused ‘would’ do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.

99. The appellant submitted that the evidence in the present case suffered from the same difficulty and also has “some resonance” with S v The Queen. I do not think the comparison is apt. The difficulty in each case was that offences as described could have been committed on any one of many occasions, leaving the defendant unable, due to that ambiguity or uncertainty, to know the occasion as to which he might raise a defence. The prosecution case against the appellant was decidedly not presented in that way. On the contrary, mindful of that very requirement, the complainant went to some lengths to specify particular incidents of sexual offending. It was not a case where the indictment suffered latent ambiguity. It was not a case in which generic evidence of many offences was relied upon to support a particular charge. Precise particulars of each individual offence were given. Each count was sought to be proved by specific evidence relating to that count as particularised. The appellant knew the case against him and was able to defend specific allegations made by the complainant, such as in the case of the “Kiss of the Spider Woman count” where the Crown could not exclude a reasonable doubt as to whether the showing of that film coincided with a night on which the complainant was staying with the appellant. That is reflected in the several findings of not guilty.

100. It is relevant in that context to note something about the way in which the complainant approached the task of making his statement. As already noted, he was 44 when he went to police. By then, he had qualified and worked first as a police officer and then as a solicitor. During the recording of his evidence-in-chief, he referred to his prior occupations and said he was aware of “what it takes to prove these sorts of offences”. He said he was being “ultra-conservative” in giving police a description of one incident that happened at the second Sydney address, even though he said there were other offences committed at that address. He repeatedly made remarks to the effect that he was being careful to distinguish between what he actually recalled and what he could only guess or had learned from another source. In the portion of the interview to which I have referred, he concluded, “so I can lock down that one, ah, offence definitely”.

101. Shortly after that, still in the opening portion of the interview, he said: So I’m going to describe some events that – that happened while – um, when I visited John in Canberra and – but I just want to – to say from the outset that as with the Sydney offences, um, lots of offences – every night that I was at his Canberra address … I slept in his bed with him and he, um, conducted unlawful sexual, um, sexual assaults against me … with the exception of one occasion. Um, but I’m only going to relay the ones to you that I can actually remember where – that I can link to circumstances, that there are – I can actually say that, um, a hundred percent, um, you know, on this day, um, like, you know, something happened and then this happened.

102. The appellant made the broad submission that, in the result, the complainant’s evidence of each indecent assault followed “a remarkably similar formula” which was “to recall specific events, such as trips to the movies, trips away, birthdays, visits to restaurants, etc, then to assert he stayed at the appellant’s house on each of the dates of these specific events, and that every night he stayed the same thing would happen, being an act of indecency”. The appellant contended that the evidence was “invariably” what the complainant said the appellant “would have done”. It was submitted on that basis that the complainant was “seeking to convey, based on his assertion that the accused always engaged in ‘the usual modus operandi’ on each occasion, the indecent activities must have happened on each occasion” (emphasis in original) and that he “was not claiming to remember that such an act actually occurred”.

103. The appellant sought to support that submission by reference to a passage extracted from the cross-examination of the complainant in the trial, set out at [272] of the primary judgment. The passage relied upon was as follows: Now, in respect of any other incident, do you have a memory of the actual sexual activity that happened, or are you just saying that because you think it happened every night, this is what would've happened; do you understand what I'm saying?---Yes. No, no, I absolutely know that there were occasions when I was staying at John's house, so let me be clear: every night that I slept in that man's bed, he sexually interfered with me, with the exception of one. Yes?---Now, I'm linking - trying to link those instances to as many events as I can. So you've got the movies that I've given you already; the other one, another movie would be when he took me out one time to see 'The Kiss of the Spiderwoman,' okay, because that - - (Emphasis added by the appellant.)

104. An examination of the whole of the relevant passage as set out in the transcript of evidence reveals that, contrary to the appellant’s submission, the complainant specifically denied that he had no memory of particular sexual incidents. The relevant exchange was as follows: So you’ve given descriptions of things you did, and then said, “that night, we would have the sex,” sexual activity would have occurred?--- Yes. So it’s the case that you don’t have a memory of a specific sexual incident at Canberra, like as a particular incident that occurred?--- Well, that’s not right.

105. On a fair reading of the whole of the relevant exchange, it is clear that the complainant was saying he did have a recollection of particular sexual incidents. He was asked to say which ones, and began to list them, but was stopped by the cross-examiner. The extract relied upon by the appellant came at the conclusion of that exchange. st

106. In relation to count 2 (the cousin’s 21 birthday party), the appellant relied on the following extract from the cross-examination of the complainant set out at [248] of the primary judgment: In regards to [SD’s] birthday party, you didn't remember it when you first gave your statement, but then you did the initial - so the second statement in December 2017 where you referred to that. Is there a reason something prompted your memory about that, [Ms SD’s] 21st birthday party?---I was just thinking about the times that - so because I can't say specifically on this date at this time this happened at John's house, because I just don't know. I've been trying to link each of the sexual assaults that John did upon me to an event that occurred and as - and bearing in mind that I try not to think about this matter as much as possible. But - so it just popped into my head. I can just remember, yes, I went to John's house on [Ms SD’s] 21st birthday party, but I just can't remember when her party was or where that fits into the place. But I know that I stayed at John's house that night. And you recall that it was either the last occasion or just before the last occasion?---Well, I don't know if it's just before the last occasion. I don't - I don't know when it happened. I don't know when her birthday was. It could have been - it could have been a year before the last occasion, it could have been a year after the last occasion. I just don't know. (Emphasis in original judgment.)

107. In the way in which that evidence was extracted and presented in the appellant’s written submissions, the suggestion appears to have been that the complainant was there admitting that he could not recall the incident relied upon as count 2. When that exchange is read in context, it is clear that is not what he is saying at all. He is reprising the point that, from his own memory alone (without assistance from any record), he was not able to give dates and times for any of the offences. He specifically said he remembered staying at the appellant’s house on the night of the cousin’s party, he just did not know the date of that party or its place in the chronology of events.

108. Accordingly, I reject the contention that the complainant was describing what must have happened and not claiming to remember what actually happened. It is true that his description of the indecent assault alleged to have occurred on each occasion was in substantially the same terms. However, the cogency of the evidence given in that way must be assessed in the context I have described and having regard to the complainant’s evidence as a whole. As illustrated in the remarks set out above, he made plain that he was acutely aware of the importance of confining his allegations to events of which he had an actual recollection.

109. It may be noted that every act of indecency alleged was an act of masturbation of the complainant by the appellant in the appellant’s bed. On each occasion, the complainant said he was wearing the same kind of pyjamas. His description of their respective positions in the bed was always the same. Until the appellant’s conduct is alleged to have escalated towards the end of the relationship, the sexual act was the same. The complainant was always either asleep, or pretending to be, while the appellant pulled his penis out of his pyjamas and masturbated him. There is nothing inherently implausible about any of that. If it was in fact the complainant’s experience that the assaults had a certain sameness, there are only so many ways in which he could have described them. In one instance where the complainant did provide plausible detail (that the appellant did not want him to touch the train set), the appellant’s submission is to accuse him of “embellishment”.

110. The appellant relied in this context on the fact that, in describing the assaults, the complainant often used the expression “he would have”. That was part of the basis on which it was contended that the complainant was saying what must have happened rather than what he could remember. Leaving aside the fact that the complainant expressly denied that to be the case, I do not think the complainant’s use of the word “would” indicated speculation as opposed to recollection. He repeatedly said that sexual activity occurred every time he slept in the appellant’s bed. That is the language of a recollection. He said there was only one night when he stayed at the appellant’s house but not in his bed and that there was no sexual activity that night. That is also the language of a recollection. His use of the word “would” does not indicate otherwise. In its natural meaning, “would” can be used to convey the fact that something was done repeatedly in the same way. Used in that way, it does not suggest uncertainty or speculation. A person could say, “every Friday when I was in sixth class, my brother made my lunch. He would make a sandwich on soft white bread with butter and Vegemite and would cut it into triangles.” That is the language of memory.

111. In his description of the acts of masturbation, the complainant’s language varied. He sometimes described what he or the appellant did; sometimes described what they would do and sometimes described what they would have done. I accept that the last form of expression, taken in isolation, is capable of suggesting inference or speculation. However, having closely read the whole of the complainant’s evidence, I have no doubt that he was describing his recollection. Where he could not recall something, he said so. That approach accounts for the proportion of counts on which the appellant was found not guilty. The counts on which the trial judge found the accused guilty were those as to which the spectre of ambiguity did not arise, either because the relevant visit was admitted by the appellant or because the evidence had particular cogency.

112. Separately, the appellant submitted that, even if it is assumed that the complainant’s evidence is credible and reliable, there are discrepancies and uncertainties in the evidence such that the case “looks similar to Pell”. I am not persuaded by that submission. As already noted, the determination as to whether a verdict is unreasonable or cannot be supported having regard to the evidence raises a question of fact. The decision of the High Court in Pell is not authority for a legal principle that the existence of discrepancies and uncertainties in the evidence of a complainant in a sexual assault case requires the appellate court to quash the conviction. It is a decision that turned on a question of fact peculiar to that appeal.

113. I accept that the complainant’s evidence was “formulaic” in the sense that he described each of the sexual acts relied upon to support counts 2, 11 and 12 in the same terms, reciting the same details each time. That does not in itself indicate a lack of recollection. Indeed, if he was prepared to lie, he could easily have advanced variations on the theme, particularly when pressed on that issue in cross-examination. Instead, he steadfastly maintained that, apart from one particular occasion, every time he stayed with the appellant he slept in the appellant’s bed, and every time he slept in the appellant’s bed the same sexual act was committed, until it escalated towards the end.

114. The entire course of offending described by the complainant was far from formulaic; it was plausible and compelling. He described a relationship that began with what would readily be recognised as grooming, in which a man 14 years his senior befriended him, took him out, let him play computer games at his home, sat on the couch with him watching movies and eventually initiated sexual contact by touching his penis when he was asleep. The “friendship” survived the move to Canberra where, rather than sleeping separately as would be expected of a man and a boy of their respective ages, they ended up in bed together. There is nothing inherently implausible about the proposition that, for part of that period, the same pattern of sexual activity was repeated many times. Then the complainant attempted to stop the assaults by sleeping in a different bed, only to find he had made his “friend” angry. The pretence was up; further sexual assaults were committed openly and their seriousness escalated.

115. Finally, the appellant sought support for the uncertainty argument from the fact that the trial judge acquitted on some counts because her Honour found that there was “an issue with the specificity as to the date the movie ‘Kiss of the Spider Woman’ was playing in Canberra” and a similar issue with “the specificity as to dates” concerning other counts. The appellant submitted that there was no elaboration as to what the “issue” with “specificity as to dates” was, nor any explanation as to what distinguished the counts where there was found to be such an issue from those where there was no such issue.

116. With respect, that is not a fair complaint. There is no inconsistency between the verdicts and no ground of appeal alleging inconsistency between the verdicts. On a fair reading of the judgment informed by a close familiarity with the issues raised at the trial, it is clear that the findings of not guilty reflected an acceptance that points made by the appellant at trial precluded satisfaction beyond reasonable doubts on those counts. If anything, based on my own analysis of the evidence, the findings of not guilty were conservative. They do not derogate from the integrity of the findings of guilt. The train set counts

117. The remaining counts are the counts referred to by the appellant as the train set counts. The events relied upon in support of those counts are marked in the complainant’s memory principally by reference to the fact that they begin with his decision to sleep in the spare bed. He said that was the only night he spent at the appellant’s house in Canberra when he did not sleep in the appellant’s bed. He recalls experiencing emotional turmoil during that period of his life as he recognised that the way he was being treated by the appellant was wrong and he wanted the sexual activity to stop. He said he distinctly remembered arriving at the appellant’s house and making a “beeline” for the spare room where he placed his bags down and went to bed alone.

118. The next morning, the complainant awoke and went outside to find the appellant working on his hobby train set in a visibly foul mood. That was the first time the complainant had ever seen the appellant angry. The complainant apprehended it was because he had slept in the spare room. He confirmed that verbally with the appellant and he promised to return to the appellant’s bed that evening.

Counts 13, 14 and 15: movie with Asian actor

119. After dinner, the complainant went to the appellant’s bedroom where they lay in the bed and watched a crime fiction movie. The movie was selected by the appellant. Rather than waiting until the complainant was falling asleep, as was the usual pattern of these events, the appellant pulled the complainant’s penis out of the slit in his pyjamas and began to touch it while they were both wide awake and watching the movie. That is an aspect of the incident that stands out in the complainant’s memory. The appellant said, “This is better, isn’t it?” which the complainant interpreted to mean sleeping in the appellant’s bed rather than in the spare room. The complainant said he agreed. The complainant recalled that the touching made him semi-erect, but recalled then experiencing a full erection during a sex scene in the movie in which an Asian actor’s breasts were exposed. The appellant noticed the change in the complainant’s erection and commented “[o]h, you like her don’t you?”. Those acts were the subject of count 13.

120. While they were still watching the movie, the complainant felt the appellant’s erect penis rub up and down his anal cavity. Through his pyjama shorts, the complainant could feel the appellant’s erect penis and thought it felt as if the appellant had taken it out of his own clothes.

121. The complainant was trying to prevent the appellant’s penis entering his anus by tensing the muscles in his bottom cheeks together, but this was difficult as the appellant was cuddling him from behind and had bent his legs. On at least two occasions the appellant thrusted with sufficient force to push inside him. The penetration was not very deep as the complainant’s pyjamas acted as a barrier, but both times the complainant had to remove the fabric from the inside of his anus after the appellant withdrew his penis. These acts were the subject of count 14.

122. After the movie had finished, the complainant prepared himself for bed and pretended to be asleep. As had been the pattern on previous occasions, the complainant felt the appellant remove his penis from his shorts. He felt something wet touch his penis which had the effect of lubricating it as the appellant masturbated him until ejaculation. These acts were the subject of count 15.

Counts 16 and 17: Hot Dog The Movie

123. A night or two after this, the complainant and appellant again watched a movie chosen by the appellant in the appellant’s bed. The movie was called “Hot Dog The Movie…or…something like that” and had various sex scenes in which actors’ breasts were exposed. As with the movie with the Asian actor, the complainant became aroused when viewing the nudity and the appellant masturbated him. The complainant ejaculated and recalls his penis becoming somewhat flaccid but then returning to an erect state throughout the movie as the appellant continued to touch him. The appellant also rubbed his own penis up and down the complainant’s anal cavity before inserting it into the complainant’s anus at least twice. He knew it was the appellant’s penis because he could feel the movement of the appellant’s waist and one of the appellant’s hands was touching his penis while the other was pressed against his body. The complainant recalls having to wiggle around to pull the fabric of his pyjama shorts out of his anal cavity after the appellant had withdrawn his penis. These acts were the subject of count 16.

124. After the movie, the complainant went to the bathroom before returning to bed and lying on his back. The appellant followed the same pattern of lubricating his penis and masturbating him until he ejaculated for the second time that evening. These acts were the subject of count 17.

Appellant’s submissions as to the train set counts

125. The essence of the challenge to the findings of guilt on those counts was the contention that the complainant’s evidence could not be accepted, and certainly could not prove the offences beyond reasonable doubt, because his account was inextricably linked with a recollection of a train set which, according to the appellant, did not yet exist. This was put to the complainant in cross-examination at the trial: And I suggest to you that at the time that you were visiting Mr Garay at the house, he did not have the table in the garage set up with the trains?---At some stage he did, absolutely. Right. I suggest to you that he didn’t start building that train set until many years after you had stopped coming to his house?---No, that’s just ridiculous. I went to a shop with him, where he bought bits and pieces for the train. I went into the garage and saw him working on his train set.

126. The curious phenomenon of the complainant accurately foreseeing the construction of a train set that did not come into existence until many years after he had stopped visiting the appellant was not explored. It was faintly suggested that he may have seen photographs or else been lying. In his evidence at the trial, the appellant sought to point out the supposed absurdity of the complainant’s account by saying that the incident could not have occurred as he described “unless he had a time machine”. But if the construction of the train set did not commence until many years after the complainant stopped visiting the appellant, how was he able to describe it so well? If he had never seen it, how did he build it so plausibly into his compelling account of sleeping in the spare bed for the first time, finding the appellant angry for the first time, capitulating and agreeing to return to the bed that night and then experiencing an escalation in both the brazenness and the seriousness of the offending? The appellant’s quip about a time machine was something of an own goal. His point was that the complainant could not have seen the train set unless he travelled forward in time. Given the complainant’s plausible account that he had seen the train set, the obvious explanation is that the appellant’s evidence as to when he began building the train set was wrong.

127. The complainant said he had seen the train set “many times”. He did not suggest its construction was completed by the time of the events in counts 13 to 17. On the contrary, in the cross-examination set out above, he said that the appellant was “working on” the train set the morning after he slept in the spare bed.

128. The appellant gave evidence that the train set took him years to build. The central plank of the argument was the contention that his photographs proved that this process had not even commenced until after the complainant had stopped visiting the appellant. That was the conclusion said to follow from a vague assertion by the appellant, which does not even make sense, that his photographs taken over many years are arranged in chronological order in two albums he created many years after the photographs were taken. When executing a search warrant, police located the volumes in the order in which the appellant says they were intended. It is convenient to refer to them as volume one and volume two. Photographs of a trip the appellant made to China with his partner, Paul, were at the end of volume one. The photographs of the train set located by police were contained in volume two. It was said to follow that they were taken “years after” the alleged offences.

129. The first difficulty is that the premise of the submission (that the photographs were arranged in chronological order) was not established. I am not here falling into the error of reversing the onus. I am merely engaging with the premise of a submission that the commission of the offences in the manner described was impossible.

130. The appellant began dating photographs when he went through a process of digitising his photographs in the early 2000s. At the trial, he gave evidence about the process he adopted to determine the date on which any given photograph was taken. In 1991, the appellant got back into black and white photography and usually dated the negative images at the time of developing the photograph. However, he explained that the dates of photographs taken before 1991 “were all a bit fuzzy”. For those photographs, the appellant would “usually go back through [his] diary and try and work out where [he was] and roughly put in a date”. He said that, because he had so many photographs to go through, this involved “putting arbitrary dates on things” as a “working copy”. The appellant accepted that this process had inaccuracies, conceding in cross-examination that he has incorrectly dated a number of photographs from separate events. It may be seen that the process was not as robust as the appellant’s submissions assume.

131. The second difficulty is that, according to the appellant’s own evidence, it took him “years” to build the train set. The existence of a photograph of an apparently completed train set at a particular point in time does not disprove the existence of a train set under construction at an earlier point in time. Indeed, it rather tends to confirm it.

132. The appellant also relied in this context on his attack on the credibility of the police officer in charge of the investigation, whom he effectively accused of deliberately withholding a critical photograph of the train set under construction, “and the chronology of which suggested that it had been taken well after the alleged incidents could have occurred”. For the reasons already explained, I would not place any store on the order of the photographs. Further, I reject the suggestion that the officer’s conduct involved any impropriety. The submission assumes that the importance of the photograph and its placement in the supposed chronology was obvious. I think that reasoning was probably infected by both hindsight and a skewed view of the strength of this argument. Looking at the conduct of the police officer through a different lens, he understood from the complainant’s evidence in chief that photographs of a train set would be relevant and he seized photographs of a train set. I do not think he could be expected to anticipate the significance the timing of its construction would later assume in the appellant’s defence. Absent misconduct, the course of the investigation has no ongoing significance. The question for this Court is what the evidence we do have establishes.

133. It was open to the trial judge to reject the appellant’s dogmatic assertion that the complainant would have needed a time machine to see the train set in any form and it is clear enough that she did. Her Honour recorded the prosecution submission in reply on that issue at [705] of the judgment as follows: It is accepted that the accused’s evidence suggests that the train set photographs are taken post 1986. The prosecution submitted that the train set existed in 1986 because the complainant said it did. The prosecution submitted that the accused’s evidence should be put to one side and the fact finder return to scrutinize the prosecution case.

134. On that approach, it was plainly open to the trial judge to be satisfied of the train set counts beyond reasonable doubt. The complainant’s evidence concerning those counts was detailed and compelling. Those offences stuck in his mind because they were the first sexual acts committed by the appellant without any pretence that the complainant was or could have been asleep. For the first time, they spoke openly about the complainant being sexually aroused at a time when the appellant was fondling his penis. It was also the first time the appellant penetrated the complainant anally. I have no doubt as to the appellant’s guilt of those offences. It was well open to the trial judge to make findings of guilt on those counts.

Ground 3: failure to give adequate reasons

135. Section 68C of the Supreme Court Act provides: 68C Verdict of judge in criminal proceedings (1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury. (2) The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied. (3) In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.

136. The section appears to have been drawn from, and is almost identical to, s 33 of the Criminal Procedure Act 1977 (NSW) (now replicated in s 133 of the Criminal Procedure Act 1986 (NSW)). The New South Wales provision was considered by the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250; where the Court held at [28] that, although it makes no reference to “reasons”, the requirement for the judgment to include the principles of law applied and the findings of fact on which the judge relied will not be satisfied “merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”. That construction of the section was reaffirmed by the High Court when it considered the equivalent provision in Western Australia in AK: at [16] (Gleeson CJ and Kiefel J); [44] (Gummow and Hayne JJ); [85] (Heydon J).

137. The requirement is mandatory. It follows that an accused person found guilty by a judge on the strength of a judgment which does not include the matters specified and expose the reasoning process will not have received a trial according to law. In Fleming at [27], the High Court characterised a failure to give reasons in accordance with the statutory requirement as a wrong decision on a question of law within the meaning of a provision in the same terms as s 37O(2)(a)(ii). While statements suggesting doubt as to the correctness of that aspect of the decision in Fleming can be found, it is not doubted, as the Court further held, that as the requirement was mandatory there was also a miscarriage of justice within the meaning of a provision in the same terms as s 37O(2)(a)(iii): Fleming at [38].

138. It will be a rare case in which the adequacy of the reasons can be determined by reference to the structure of the judgment alone. The provision is concerned not with the quality of the writing but with the quality of the reasoning, which must necessarily be informed by the issues in the case. The statute does not impose a requirement that the judgment be reasoned beautifully; only that the reasoning process be exposed. It is trite that, in determining whether that has occurred, the appellate court must read the judgment fairly, as a whole.

139. Finally, as noted by Heydon J in AK at [84], the question whether there has been compliance with the requirements of a provision in the terms of 37O(2)(a)(ii) is one of degree. His Honour’s discussion of that issue included the following observation: In many cases the question of whether there has been compliance with [the equivalent WA provision] will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the “reasoning process linking” the principles of law to the findings of fact.

140. While noting that it was not necessary in that case to elaborate upon the various ways in which the trial judge might have fulfilled the obligation, Heydon J ventured the following at [85]: Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

141. Those remarks were cited with approval by a majority of the High Court in DL v The Queen [2018] HCA 26; 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ). That was an appeal from a jurisdiction that has no statutory provision of the kind found in s 68C. The content of a duty to give reasons may well be the same whether founded in the common law or a provision in the terms of s 68C but it is always prudent to bear such distinctions in mind.

142. It was observed in the same passage in DL that “not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict”. That observation implicitly acknowledges the need for the appellate court to assess the adequacy of the reasons by reference to the materiality of the particular intermediate finding in respect of which the mandatory requirement is said not to have been met. As Heydon J said in AK in the passage cited above, it may be difficult in that context to distinguish between an unconvincing factual finding (which would not fall foul of the requirement) and a failure to make a finding of fact or expose the “reasoning process linking” the principles of law to the findings of fact (which would).

143. The appellant relied in this context on the recent decision of the New South Wales Court of Criminal Appeal in AB v R [2022] NSWCCA 104 which it was submitted was “very similar” to the present case. The Court held by majority (Wright and Dhanji JJ, Adamson J as her Honour then was dissenting) that the reasons were inadequate. The majority was not satisfied that the proviso should be applied in the circumstances of that case and so ordered a new trial.

144. The majority in AB applied a summary of principles drawn from civil cases, set out in the judgment of Dhanji J at [115]. His Honour was evidently fortified in taking that approach by the remarks of Nettle J (in dissent as to the outcome) in DL at [132] that a judge in a criminal trial 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.” (footnotes omitted)

145. Justice Dhanji found that observation “informative with respect to the requirement to give reasons, there being many cases in the civil sphere which have expanded on the nature of the duty to give reasons”. On that premise, his Honour adopted a summary of the principles set out by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]–[66], an appeal from a decision of the District Court in a building case in which the primary judge had given ex tempore reasons for finding that the appellants were personally bound by an unsigned contract (the summary in turn was one provided by a party and applied by his Honour in O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519, an appeal from the Local Court to the Supreme Court under s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW)).

146. By that path, a majority of the Court of Criminal Appeal has approved the proposition that eleven principles drawn from a contract case on appeal from the District Court are applicable in an appeal from a judge’s finding of guilt in proceedings governed by a statutory provision in the terms of s 68C. Those principles are now invoked here.

147. There are two difficulties with the appellant’s reliance on the decision in AB. The first concerns his reliance on that decision as authority for the proposition that a principle taken from a civil case applies a fortiori in a criminal case where the obligation to give reasons is governed by statute. In fairness to Dhanji J, in taking that approach, his Honour was relying on the remark of Nettle J in DL that a judge in a criminal trial is “bound to produce reasons for judgment of at least the quality expected of his or her civil brethren”. While the principles will often be the same, care must be taken not to supplant the words of the statute as construed by the High Court. Section 68C does not impose a standard of quality of writing by reference to what is expected of our learned “civil brethren”. It requires that a reasoning process be exposed.

148. The particular principle relied upon by the appellant drawn from AB at [115] was that “bald conclusionary statements should be eschewed” (sound advice but not a principle of law) and that “it is not appropriate for a trial judge merely to set out the evidence adduced from one side, then set out the evidence adduced by another, and then to assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one over the other”. That is not a fair description of the judgment here, which also set out the relevant legal principles correctly and comprehensively and then expressly adopted detailed submissions as to the analysis of the evidence in accordance with those principles. Further, as I have endeavoured to explain, the adequacy of a trial judge’s reasons will rarely be able to be assessed by reference to the structure of the judgment alone.

149. The second difficulty with the appellant’s reliance on AB concerns the submission that the case is “very similar” to the present case. With respect, the submission invites the Court down a dangerous path. A ground alleging inadequate reasons cannot be determined by reference to a similar case raising similar issues. The proper determination of such a ground can only be made by reference to the circumstances of the case at hand.

150. Turning to the present case, I do not think the complaint as to the adequacy of the reasons can be demonstrated by reference to the structure of the judgment alone. It is true that the vast bulk of the judgment consists of recitation of principles, evidence and submissions without analysis. It does not follow that the adequacy of the reasons can be judged by considering the last five pages of the judgment in isolation. The judgment must be read fairly, as a whole. While the conclusions considered in isolation are glib and in some respects oblique, the lengthy recitation of the submissions allows them to be understood in context. This is not a case like AK where the trial judge failed to include any reference in the judgment to the central issue in the case. The vice of the judgment in the present case is not that it fails to record any issue of fact raised by the parties but that it records too much. Setting out, as it does, virtually all of the evidence and all of the submissions in the trial, it includes a great deal of material that did not need to be included. It fails to distil the issues in a way that is helpful.

151. But the critical question is whether the judgment fails to include the findings of fact relied upon to support the findings of guilt and to expose the reasoning process linking the principles of law applied to those findings, justifying the findings and justifying the verdict (it is not suggested that the trial judge failed to state any applicable principle of law). I do not think that question can be determined in the circumstances of the present case without identifying the facts in issue in the proceedings and considering the judgment by reference to its treatment of those issues. It is for the appellant to demonstrate, as to some fact in issue, that there was either no finding of fact or no exposure of the reasoning justifying that finding and the ultimate verdict.

152. Further, in my view, the impugned reasoning must relate to an issue that is material to the ultimate verdict reached. The submission accepted in AK (as recorded at [85]) was that the trial judge’s reasons in that case “constituted a manifest and substantial (as opposed to trivial) departure from the statutory imperative”. The reasons given by the trial judge in that case are set out in the judgment of Gleeson CJ and Kiefel J at [15]. They included no reference at all to what was accepted by the High Court to be the central issue in the trial, the question of identification (there having been two men in the bed in which the complainant was sexually assaulted). I note in passing the different view taken by Roberts-Smith JA in the Court of Appeal which, with respect, is compelling. His Honour said, “[i]n my view this case was not so much about identification by touch as about the facility of a witness to express herself in the English language”: AK v the State of Western Australia [2006] WASCA 245 at [2]. That is by the by, but the remarks highlight the difficulties identified by Heydon J in AK at [84]. Consideration of the adequacy of a trial judge’s judgment following a trial by judge alone involves careful evaluative judgments as to what was or was not an important issue in the case and as to the extent of reasoning (if any) required to explain the acceptance or rejection of any particular submission.

153. Based on my reading of the judgment, informed by my reading of the record of the trial, I am satisfied that the reasons in this case were adequate in the sense that they met the minimum requirement of s 68C(2). I emphasise that this conclusion is very much based on my analysis of the issues raised at trial in this case and their treatment in the parties’ submissions. I would not wish to be understood to condone an approach of adopting the prosecution submissions without articulating any separate analysis. However, I do not think it is enough, to establish an error of law based on failure to comply with s 68C(2), to point to the fact that such an approach has been taken. If the central issues in the trial were comprehensively and cogently analysed in the prosecution submissions, and that analysis coincided with that of the trial judge and left nothing further to be said, a judgment in the form published here could satisfy the statutory requirement. Whether it did would ultimately turn on the circumstances of the case and the nature of the issues required to be resolved. That is the only way to resolve difficulties of the kind identified by Heydon J in AK of distinguishing between a judgment that is merely susceptible of criticism and one that fails to meet the minimum requirements of the section.

154. The central issues in the present case were the credibility and reliability of the complainant and the appellant. As noted by the Director, the trial judge’s assessment of their credibility and reliability followed upon her adoption of detailed prosecution submissions on that issue which had been set out at length earlier in the judgment. In that way, the reasoning was laid bare.

155. There were several points in the judgment where the trial judge stated that the prosecution submissions accorded with her own view of the evidence. The first place where that occurred was in her Honour’s publication of her reserved reasons for rejecting the appellant’s “no case” submission. The application related to counts 1 to 12 and 18 and was based on a contention of uncertainty (“latent ambiguity”) in those counts.

156. The trial judge had found that there was a case to answer on each of those counts apart from count 7. In recording her reasons for each finding where there was a case to answer, her Honour wrote: “In my view, there is a case to answer concerning this count. The prosecution submissions accord with my view of the evidence”: at [311], [315], [321], [328], [333], [343], [347], [352], [361], [366], [371]. Senior Counsel for the appellant in the appeal noted that, in determining that application, the judge was discharging a legal function, not a fact-finding function. So much may be accepted. However, it does not follow that the adoption of the Crown’s submissions for that purpose “had no relevance to her Honour’s discharge of her ultimate responsibility to include findings of fact on the ultimate issue in her judgment”, as further submitted by the appellant. The effect of the submission is that the adoption of prosecution submissions in one context cannot serve to expose the trial judge’s reasoning process for a different purpose.

157. It is correct in principle that a “no case” submission determines a question of law which falls to be determined on an assumption as to the facts without the need to determine the facts. However, it is important to consider how the “no case” submission was put at trial in the present case. The trial judge recorded the appellant’s overarching submission at [281] as follows: It was submitted that it was apparent that the complainant was describing a generic event rather than an event he had a specific recall of. It was further submitted that it was also apparent that the complainant had no specific recall about whether he actually stayed at the complainant’s house following a number of the incidents. His evidence is generally couched in “I would have..” done this and “I would have..” done that.

158. The prosecution submissions, in turn, engaged with that submission. In adopting the prosecution submissions on that issue, the trial judge was in effect accepting that the complainant was claiming to recall specific events that happened rather than describing a generic event. It follows that, in the circumstances of this case, the judge’s adoption of the prosecution submissions in support of the “no case” submission did entail an assessment as to how the complainant’s evidence was to be understood. If that was wrong in principle (as to which I make no comment), it was only a reflection of the way the “no case” application was argued. The important point is that the judge’s adoption of the prosecution submissions on the “no case” application can, in this case, properly be considered to be part of the reasons for the findings of guilt.

159. After dealing with the “no case” application and the tendency applications, the trial judge turned to the prosecution closing submissions in the trial proper. For the reason I have just explained, the recitation of those submissions is to be read in the context of the trial judge’s acceptance, in determining the “no case” submission, that the complainant’s evidence described events of which he claimed to have a recollection. That meant that the central questions were whether he was credible and reliable and whether the appellant’s evidence was credible or reliable or else raised a reasonable doubt as to the complainant’s account.

160. The trial judge set out the facts as summarised in the prosecution closing submissions at length, at [428]–[522] of the judgment. She then set out the prosecution submissions as to the complainant’s honesty and reliability at [523]–[545]. Those submissions addressed a number of credit issues in detail and supported each point with examples from the evidence. The points made were that the complainant did not appear to embellish the facts, that he made appropriate concessions, that he was upfront with his answers, that his evidence had a ring of truth, that it had been shown to be reliable in a number of respects, that he stood up to cross-examination, that his reliability was bolstered by complaint evidence and that the suggestion that he had a motive to lie should be rejected because he had told three people about the offences long before he knew about the possibility of obtaining compensation.

161. After setting out those points separately, the trial judge reiterated them under the heading “Conclusion – prosecution”. In that portion of the judgment, she recorded the prosecution submission that the accused’s evidence as a whole should be dismissed and that the prosecution case should be considered separately and very carefully, reflecting an application of the Liberato direction.

162. From [567] of the judgment, the trial judge then set out the closing submissions for the accused. The appellant’s opening point as to the complainant’s reliability rested on the supposed impossibility of the train set counts (at [573]): The train set - Counts 13 to 17 (the Asian movie and the Hot Dog movie incidents) are inextricably linked to the train set in the garage. The train set was not built until 1989. The complainant is either completely mistaken (and unreliable) or is lying. Either way, it affects the credibility of his evidence in relation to counts 13 to 17, and this flows into the remaining counts.

163. It may be noted that the last point invited application of the Markuleski direction.

164. The points addressed were that the last date when the complainant stayed with the appellant was probably January 1987; the fact that the appellant had given a version of events, both during the execution of the search warrant and in sworn evidence in the trial, which it was noted raised the need for a Liberato direction; a summary of the appellant’s evidence which included a reiteration at [594] of the proposition that, “if the evidence of the accused were to not be accepted, but it was considered that the accused's evidence and account might be true, the accused is entitled to be acquitted”; a reference at [596]-[597] to the appellant’s admission that the complainant had stayed at his house and, on three occasions, slept in his bed; the appellant’s submissions as to each count and as to the complaint evidence; the alleged motive to lie; the credibility of the complainant; the appellant’s claimed good character; a repetition of the rejection of the tendency evidence and the need for a Longman warning.

165. After giving herself final directions of law (the correctness of which is not disputed in the appeal), the trial judge turned to her conclusion. As already noted, she recorded her assessment that the complainant was credible and reliable. It was here that the judge again recorded her adoption of the prosecution submissions: 796. In my view, the complainant was a highly credible witness. 797. There was, in my view, nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence. 798. He made appropriate concessions as to the limits of his knowledge and memory. There was no tendency towards embellishment. His evidence was detailed. He was, in my view, an impressive witness. The submissions of the prosecution accord with my view of the complainant’s evidence: he was frank in his answers, his evidence had a ring of truth, and he withstood cross-examination. (Emphasis added.)

166. It may be noted that the trial judge did not there repeat every point made in the prosecution submissions. However, it is clear that her Honour intended to refer back to the submissions she had set out. The judgment is not to be construed as if it were a statute.

167. The structure of the last portion of the judgment may be summarised as follows. First, there were the findings set out above that the complainant was credible and reliable. After brief observations about other witnesses, there was then the following assessment of the appellant’s evidence at [803]: The accused was not an impressive witness. He appeared, to me, to tailor his evidence in the trial in a manner that detracted from his credibility and reliability.

168. The appellant complained that the trial judge gave no examples to illustrate that statement and that it was not explained which parts of the appellant’s evidence were accepted or rejected. The submission highlights the importance of considering the judgment as a whole. In my view, it is tolerably clear that the judge was harking back to the prosecution submission recorded at [554] of the judgment: It was submitted that the accused tailored his evidence in the trial in an attempt to defend himself. It was submitted that his evidence was also unreliable regarding the dates of photos and diary entries. The accused admitted to going over the dates of certain photographs in preparation for this trial. The accused stated that he changed the dates on photographs and put dates on videos last year in preparation for this trial. He conceded that there were flaws in his original record keeping system. It was submitted that the dates provided by the accused are unreliable.

169. Based on my own reading of the appellant’s evidence, there was considerable force in that submission. The appellant was evidently a keen photographer. He also appears to have been what might politely be termed a “collector”, apparently keeping every receipt and other quasi-official piece of paper he ever received. However, he was not a careful archivist. He may have wished to order his vast collection of old photographs chronologically but his account of the way in which he approached that task many years after they were taken does not inspire confidence in the results.

170. The point made by the prosecution was that, after he was charged, he went over the dates of the photographs and changed some in preparation for the trial. In other words, as her Honour found, he tailored his evidence in an attempt to defend himself.

171. Having recorded those respective assessments, the trial judge reminded herself of various directions including the Liberato direction.

172. Her Honour then expressly found at [812] that the complaint evidence supported the evidence of the complainant.

173. The appellant submits that at no point did the trial judge make a finding rejecting the appellant’s evidence. It is unfortunate that her Honour did not say so in terms but, with respect, the judgment cannot be read any other way. In short, it is plain beyond dispute that she disbelieved the appellant’s denials and believed the complainant.

174. The judge then turned to the questions of timing and specificity. It was in that context that she recorded the “issue with the specificity” as to the dates of some of the counts and recorded findings of not guilty on those counts. She found that there was no such issue with count 2, counts 11 and 12 and counts 13–17. Her Honour then proceeded in respect of those counts to remind herself of legal directions to be applied in the determination of those counts. That recitation included reference to the Liberato direction and the Markuleski direction.

175. It is appropriate to set out the concluding reasoning in full, remembering that those conclusions were recorded in the context I have described, after the trial judge had made positive findings as to the complainant’s credit and an adverse finding as to the appellant’s credit, acquitted on some counts due to uncertainty as to the occasion in question and given appropriate final directions to herself. Her Honour said: 833. In relation to Count 2, I am satisfied beyond reasonable doubt that the complainant slept in the accused’s bed after the 21st birthday party and that the offence was committed. 834. In relation to Count 11, it was conceded the complainant slept in the accused’s bed. I am satisfied beyond reasonable doubt that the offence was committed. 835. In relation to Count 12, it was not conceded that the complainant slept in the accused’s bed. I am nevertheless satisfied beyond reasonable doubt that the offence was committed, in the accused’s bed. 836. The critical attack on Counts 13 to 17 involved the evidence concerning the model train set. I have very carefully considered the evidence concerning the model train set. The evidence is set out in this judgment, see in particular [640]-[658]. I find that the evidence concerning this issue does not leave me with a reasonable doubt. In other words, I am persuaded beyond reasonable doubt on the evidence in the prosecution case that the accused committed the offences alleged. In my view, the evidence was compelling. 837. In conclusion, in my view, all the elements of Counts 2 and Counts 11 to 17 have been proved beyond reasonable doubt.

176. In my view, the reasons do not fall short of the minimum requirement of s 68C. The essential findings of fact were made. The reasoning for those findings was, in short, that she believed the complainant and disbelieved the denials by the appellant. That reasoning in turn adopted the prosecution submissions, which were comprehensive and persuasive. Accordingly, I would reject ground 3.

Ground 2: failure to apply the Liberato and Markuleski directions

177. The remaining ground can be dealt with briefly. There is no complaint as to the trial judge’s directions to herself as to the law, nor could there be. Her Honour set out the Liberato and Markuleski directions and made clear, more than once, that she had given herself those directions. This is not a case in which there was any failure on the part of the trial judge to record any applicable direction of law.

178. The appellant nonetheless asserts that “there is no indication that her Honour took the [Liberato] direction into account”. Similarly, as to the Markuleski direction, the appellant asserts that there was a “mere incantation” of the direction with no explanation of how it was applied.

179. No compelling reason has been identified for disregarding the trial judge’s several statements that she acted in accordance with those directions. Based on my analysis of the reasons (set out above) as informed by my understanding of the issues in the trial, I am not persuaded that her Honour failed to apply the directions.

Proviso

180. In case I am wrong in my conclusion that the trial judgment met the requirements of s 68C, it is appropriate to consider the application of the proviso, as requested by the prosecution. In AK, the High Court accepted that the proviso can apply where a miscarriage of justice has resulted from a failure to give adequate reasons. The Court was not persuaded to apply the proviso in that case because there was no reference in the judgment to the central issue in the trial, the issue of identification. This is not such a case.

181. My conclusion that the unreasonable verdict ground is not made out does not of itself justify the application of the proviso because the onus is different. It is for the prosecution to persuade the Court to apply the proviso. The process of considering that ground has nonetheless persuaded me that, even if the reasons were inadequate, there has been no substantial miscarriage of justice and there is no risk that an innocent man has been found guilty. The essential reasoning is exposed; the trial judge believed the complainant. For the reasons explained in the discussion of ground 1, I do not have any doubt that her Honour was right to do so. Conclusion

182. Accordingly, noting that Collier J agrees, the appeal is dismissed. Elkaim J:

183. The appellant came to trial before the primary judge on 7 June 2021. He was facing an indictment containing 16 counts of an act of indecency upon a person aged between 10 and 16 years of age and two counts of sexual intercourse with the same person within the same age range.

184. The appellant pleaded not guilty to all of the charges. He was acquitted of one charge (Count 7) by direction during the hearing. Following 13 days of hearing the parties provided written submissions which were filed by 8 July 2021.

185. The decision was delivered on 31 August 2021 (R v Garay (No 3) [2021] ACTSC 215). The appellant was found not guilty of Counts 1, 3, 4, 5, 6, 7, 8, 9, and 10. He was found guilty of Counts 2 and 11 to 17 inclusive.

186. On 10 June 2022, the appellant was sentenced to a total of five years’ imprisonment with a non-parole period of three years (R v Garay (No 4) [2022] ACTSC 138).

187. By this appeal, the appellant has asserted that the verdicts were unreasonable, that the primary judge did not ‘comply’ with directions she had given herself and that the reasons were inadequate.

188. The appeal hearing was dominated by the inadequacy ground. This ground is also the basis upon which these reasons have been formulated.

189. As a starting point it is necessary to look at the structure of the primary judgment. It is 838 paragraphs in length. The table of contents at the beginning of the primary reasons sets out the topics covered.

190. After a useful introduction, her Honour described the general and specific directions that she regarded as necessary in order to embark on reaching a decision in a judge alone trial. These are the directions that would have been given to a jury. No complaint can be made about the scope of the directions or their necessity. No essential directions are missing.

191. Following the directions, her Honour listed the elements of the offences. No criticism can be made of the description of the elements. Next is an overview of the prosecution case followed by a short, but accurate, summary of the defence case.

192. The next part of the judgment is a summary of the evidence. Judges will sometimes reach conclusions during such a summary as to the portions of evidence they have accepted or rejected. That is not the case here. The summary is accurate but confined to the evidence. No complaint can be made about this approach.

193. The next part of the judgment describes the various applications and objections that were made during the course of the trial. Her Honour describes each application or objection and how it was dealt with. The reasons for each finding are set out although perhaps somewhat tersely. For example, in respect of Count 1, her Honour concludes, at [311]: In my view, there is a case to answer concerning this count. The prosecution submissions accord with my view of the evidence.

194. As will be seen below this ‘formula’ was adopted as the general approach to reasoning on the ultimate questions of guilt or acquittal.

195. The next portion of the judgment concerns tendency evidence. Ultimately her Honour did not rely on this type of evidence. Naturally there is no complaint about this conclusion.

196. Her Honour then moved on to the prosecution’s closing submissions. These are followed by the submissions for the accused. The recitation of the submissions is detailed and accurate. This is not surprising. It emerged during the hearing of the appeal that the submissions of both parties had been ‘cut and pasted’ from the written submissions.

197. Then from [707], her Honour returns to legal directions and sets out the further directions that she thought necessary to the matter. The directions are appropriate to the circumstances of the case.

198. Her Honour, from [796], proceeds to the reasons for the various verdicts. These reasons are effectively contained in eight paragraphs, falling under the heading of “Consideration: Conclusion”. They are as follows: Assessment of the evidence of the complainant 796. In my view, the complainant was a highly credible witness. 797. There was, in my view, nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence. 798. He made appropriate concessions as to the limits of his knowledge and memory. There was no tendency towards embellishment. His evidence was detailed. He was, in my view, an impressive witness. The submissions of the prosecution accord with my view of the complainant’s evidence: he was frank in his answers, his evidence had a ring of truth, and he withstood cross-examination. 799. As far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable. Assessment of the evidence of other prosecution witnesses 800. Ms LM, Mrs IH, Mr HL, and Ms SD were all credible and reliable witnesses. In my view, individually they were doing their best to tell the truth. 801. Similarly, the complainant’s mother and the complainant’s wife were credible and reliable witnesses doing their best as individuals to tell the truth. Assessment of the evidence of the Informant 802. Constable Middlemiss was a credible and broadly reliable witness who frankly conceded that there were aspects to the investigation that could have been better. Accused’s Evidence 803. The accused was not an impressive witness. He appeared, to me, to tailor his evidence in the trial in a manner that detracted from his credibility and reliability.

199. Section 68C of the Supreme Court Act 1933 (ACT) states: 68C Verdict of judge in criminal proceedings (1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury. (2) The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied. (3) In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.

200. The almost identical legislation in New South Wales has been interpreted in Thornton v R [2017] NSWCCA 86, as follows 163. Pursuant to s 133(2) of the Criminal Procedure Act 1986 (NSW), the trial judge was required to include in the reasons for judgment the principles of law applied and the findings of fact on which her Honour relied. She was required to refer expressly to all warnings that would be required to be given had there been a jury. In other words, her Honour was required to expose her reasoning process (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6]). Her Honour was also required to explain the reason for findings of fact (Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [30]). 164. The obligation to give reasons has been considered in various authorities. Most often cited in this context is Soulemezis v Dudley (Holdings) Pty Ltd (albeit a case in the civil context). There, Kirby P said: This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. 165. In the present case, the trial judge did not fall into the error identified in Douglass of reducing the case to a “word against word” case. Nor did her Honour proceed on the basis that, if she accepted M’s evidence, that alone would be sufficient to convict. Rather, her Honour did what the High Court in Douglass emphasised was necessary – considering M’s evidence in the light of the whole of the evidence. Her Honour gave reasons for rejecting the comingling/conflation argument. Accepting that there is force to the criticism that on some issues (such as the presence of D at the time of the offences) her Honour’s reasoning involved simply a statement of conclusion, there was in my opinion a sufficient statement of reasons for her Honour’s ultimate satisfaction beyond reasonable doubt as to the appellant’s guilt on the indecent assault counts.

201. McColl JA in the New South Wales Court of Appeal, in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, provided a comprehensive analysis of the obligation to give reasons and their content: 58. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59. The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 60. Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following. 61. The general proposition was stated by Samuels JA in Mifsud (at 728): “…[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’ – to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634.” In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said “[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant”: Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (at 18). 62. In Beale (at 443) Meagher JA referred to the requirement that a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons. While his Honour explained that it was unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, he added that where such evidence was not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it, referring to North Sydney Council v Ligon 302; see also TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ (Mason P and Grove J agreeing). Meagher JA added that “[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.” 63. Where, as in the present case, there is documentary material arguably supporting a party’s case, that material must be considered in the judge's reasons in a satisfactory way: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J. 64. Bald conclusionary statements should be eschewed. As Ipp JA said in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]): “28. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.” 65. Finally, where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s. “[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision”: Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing). 66. Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130]–[131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing). 67. Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent's version of what occurred, Sheller JA (with whom Handley JA agreed) said, “[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow”: Mesiti (BC9403342 at 9); see also Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 (at 284). In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 (at [37]) per Nettle JA.

202. Paragraph 64 is particularly applicable here: I will repeat it: Bald conclusionary statements should be eschewed. As Ipp JA said in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]): “28. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”

203. Returning to the reasons given in this matter, (commencing at [796] and set out above), they are constituted by a series of statements essentially agreeing with the Crown submissions. It is to be recalled that, as acknowledged by both parties, the respective submissions of the parties in the court below had been “cut and pasted” into the judgment.

204. The appellant however did not complain about her Honour copying the submissions of the parties. Her Honour cannot be criticised for doing so if that was the most efficient means of reciting the submissions. However, once recited, the obligation was then on her Honour to analyse the submissions and reach a reasoned conclusion about their respective merits and deficiencies. As stated by Mr White SC in his oral submissions: The parties gave extensive written submissions. They were very industrious. Both parties in the middle of the trial were doing that. Nothing wrong with that. But again, there has to be some kind of analysis at some point and there just isn't an analysis at any point.

205. The suggested analysis is precisely what did not occur in the judgment.

206. The critical portion of the judgment begins at [796]. This is where the reasoning for the acceptance of the Crown case and the rejection of the appellant is said to begin. It is worth repeating these paragraphs: 796. In my view, the complainant was a highly credible witness. 797. There was, in my view, nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence. 798. He made appropriate concessions as to the limits of his knowledge and memory. There was no tendency towards embellishment. His evidence was detailed. He was, in my view, an impressive witness. The submissions of the prosecution accord with my view of the complainant’s evidence: he was frank in his answers, his evidence had a ring of truth, and he withstood cross-examination. 799. As far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable.

207. Her Honour also said that a number of other witnesses were credible ([800] to [802]). But why were they credible? At [803] her Honour commented on the credibility of the accused: The accused was not an impressive witness. He appeared, to me, to tailor his evidence in the trial in a manner that detracted from his credibility and reliability.

208. Again, why was the accused not impressive or credible? What evidence was tailored? How was it tailored?

209. In Beale v GIO (1997) 48 NSWLR 430 (Beale), from 443, Meagher J described the ingredients of adequate reasons: It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related “to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam University of the West Indies [1983] 1 WLR 585. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, unreported, 6 September 1991). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted by this court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sincik v Tess (Court of Appeal, unreported, 15 March 1995). The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can. On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system. The costs and delays involved in litigation today are problems which have attracted enormous public attention, a plethora of government inquiries and the attention of the Australian Law Reform Commission. In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.

210. Returning to the ‘reasons’ from [796] to [803], Beale says the ‘loser’ must be told why he or she lost. This appellant could well ask: why was he convicted based on these paragraphs? Where is the understandable and logical process of reasoning referred to in Beale?

211. The trial was long, there was a great deal of evidence and some of the issues were complex. Her Honour gave herself every appropriate direction and warning that was required. Her Honour clearly came to a firm view about the absence of proven guilt of the appellant on some counts and his guilt on other counts. Unfortunately, what her Honour did not do was provide an adequate explanation of why the appellant was guilty of the latter counts.

212. I have had the benefit of reading the comprehensive judgment of McCallum CJ. I agree that the grounds of appeal relating to unreasonable verdicts and directions should be dismissed (grounds 1 and 2). I also agree that a judgment need not be “reasoned beautifully”. However, the beauty of a sound judgment is that it tells the reader, and in particular the loser, why and how the critical findings were made. As stated by McColl JA in Pollard, it is not sufficient to adopt the submissions of a party and then only add a statement of agreement.

213. It follows that the appeal must be allowed and the matter returned to the Supreme Court for, at the option of the Director of Public Prosecutions, a re-hearing. I propose orders to this effect.

Collier J:

214. I have read in draft the judgments of the Chief Justice and Elkaim J, and am very grateful for the opportunity to do so.

215. For the reasons given by the Chief Justice, the appeal should be dismissed.

I certify that the preceding two hundred and fifteen [215] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Grace Hartley Date: 27 January 2023