R v KEYTE No. SCCRM-00-174 [2000] SASC 382

1 DOYLE CJ The appellant appeals against his conviction by a Judge who heard a trial on Information without a jury.

2 The appellant complains that the Judge, a Judge of the District Court, "erred in law in failing to give adequate reasons" for preferring the evidence of prosecution witnesses to the evidence of the defendant and his witnesses, and for entering a verdict of guilty on the basis of that evidence. The appellant also complains that the Judge erred in law in failing to direct himself as to certain matters of law and fact that fell for decision in the course of reaching his decision. The appellant complains that there has been a miscarriage of justice, and that the verdict is "unsafe and/or against the evidence".

3 As the argument developed it was apparent that in substance it is a submission that to find the appellant guilty the Judge had to make a decision, in the light of certain rules of law, as to the use to be made of evidence before him. He also had to have regard to certain principles affecting his assessment of that evidence. The complaint is that the Judge has failed, in his reasons, to explain adequately or at all how he dealt with these matters. The complaint is also that the Judge failed to give adequate reasons for preferring the evidence of the complainant to that of the appellant, and for reaching a conclusion of guilt on the basis of the her evidence.

4 A decision in the case requires some consideration of the obligations of a Judge to give reasons for a decision, as to the guilt of an accused, that would otherwise have been made by a jury, and that by virtue of s 7(4) of the Juries Act 1927 (SA) ("the Juries Act") is to "have the same effect as a verdict of a jury".

5 The appellant was charged with six offences on a single Information. The alleged victim in each case was Ms C. The appellant and Ms C began a relationship in 1984 that lasted until early 1998. Four children were born of the relationship.

6 The offences charged were as follows. Count 1 charged an assault occasioning actual bodily harm, alleged to have occurred in about 1984. Count 2 charged an assault occasioning actual bodily harm, alleged to have occurred between 1 January 1985 and 31 December 1985. Count 3 charged a common assault alleged to have occurred between 1 September 1985 and 1 April 1986. Count 4 was a charge of rape, alleged to have occurred between 1 November 1997 and 30 November 1997. Count 5 was an offence of threatening life, alleged to have occurred on about 28 November 1997. Count 6 charged rape, alleged to have occurred on 8 January 1998.

7 The appellant elected to be tried by a Judge alone, an entitlement conferred on him by s 7(1) of the Juries Act.

8 The Judge convicted the appellant on counts 1-5, and acquitted him on count 6.

9 The Judge provided written reasons for his decision.

10 The Judge began by summarising the charges, referring briefly to the relationship between the appellant and Ms C, and by identifying the elements of each offence.

11 He then turned to the evidence called. He summarised the evidence of Ms C. That evidence described the course of the relationship, and the incidents the subject of each charge. It emerges from the summary of her evidence that the appellant did not live with Ms C. He was a frequent visitor to her house, and slept there on occasions. Ms C gave evidence of a number of acts of violence on the part of A that were not the subject of charges. She gave evidence of a number of assaults. She also gave evidence of sexual intercourse on a number of occasions when she did not consent to intercourse, these occasions also not being the subject of charges. Some of this evidence of assaults and intercourse was by reference to specific incidents, some of it was general in nature. I will refer to this evidence as evidence of uncharged acts.

12 The only count that was directly supported by other evidence was count 2. As to that, the evidence of Ms C received some support from her daughter ERC, who was 30 years of age at the time of trial. The evidence of ERC also supported the evidence of Ms C in relation to assaults during the relationship. So did the evidence of another daughter, STC, who was aged 23 at the time of trial. A medical practitioner whom Ms C had consulted over the years was also called. On one occasion, on 19 January 1990 (this is not a date that accords with any of the charges laid), a relieving doctor had made a note of bruising, for which the explanation given by Ms C was that she was hit on the head with a cricket ball. Apart from this, on none of the many occasions on which Ms C had consulted the doctor over the years had the doctor observed any sign of trauma or injury.

13 After summarising the evidence given by these witnesses, the Judge then turned to the evidence for the defence. He summarised the evidence of the appellant, in which he denied the offences and denied any violence on his part during the relationship. Two children of the appellant by other women were called as witnesses. One of them was 20 years of age, and the other was 14 years of age. They said that they mixed frequently with the family of Ms C. Their evidence was that they never saw any violent behaviour by the appellant directed towards Ms C.

14 The Judge's summary of the evidence before him is quite comprehensive. Having done that, he recorded very briefly the submission by the Director of Public Prosecutions ("the Director") to the effect that the appellant should be found guilty. Not surprisingly, the essence of that submission was that Ms C should be believed, and that her two daughters provided relevant support for her evidence. In particular, the Judge said:

"The Director viewed the evidence of [the daughters] as most important as they were doing their best to accurately recall the nature of their mother's relationship with the accused. Their evidence was given without emotion, was credible and should be accepted. The totality of such evidence must lead to a finding that it was a violent relationship which continued because of the nature of Ms C's fear of the accused. This resulted in her subservience to him and tolerance of his conduct, but notwithstanding this fact, at the relevant times she made her lack of consent perfectly clear."

15 The Judge briefly summarised the facts relevant to each count. He then summarised the submission advanced at trial for the appellant. The submission raised "the relationship issue", the lengthy delay in the making of a complaint, the impact of that delay on the defence, and the fact that, as was submitted, one of the daughters had manifested a dislike for the appellant.

16 The Judge then spent a page or so dealing with the issue of credit. He began by saying:

"Having observed Ms C give evidence and being cross-examined over a long period, I have no doubt that she was very genuine and in her simple manner of expression endeavoured to accurately outline the physical and very emotional events in her long relationship with the accused. Clearly, it was a relationship dominated by violence. It is impossible for one to at times understand the passiveness of a partner or appreciate fully the dynamics of such a violent relationship which may well have fear as its base. It is an appalling situation but, unfortunately, appears as a fact of life."

17 The Judge found that Ms C was to be believed, as were her two daughters. He did not accept the appellant's denial of violence. He found that the evidence of the appellant's children was not of any assistance.

18 The Judge then made findings. He began by saying:

"It is impossible to fully understand the dynamics of such a relationship. To say there are difficulties in understanding or rationalising such a long and violent relationship like this is a complete understatement."

19 He referred to the difficulty of proof when a charge is made of rape in the course of a continuing sexual relationship. He referred to the impact of motives, disclosed or undisclosed, arising out of the tensions in the relationship. He referred to the difficulty in some cases of distinguishing between submission and consent. The Judge made findings of guilt on counts 1-5 inclusive. He did so quite briefly, in effect stating that on each count he accepted the evidence of Ms C. On count 6 he acquitted the appellant. His findings were as follows:

"My caution in this matter must be extreme. At this point of time the relationship had been on foot for 14 years and in that long period I accept there was continuous and no doubt violent sexual relations involving habitual physical conduct. In the final stages of their relationship, on Ms C's own admission, sex occurred almost daily.

The issue of consent and whether the same is freely given is for a jury to determine. Although there is that fine line here between submission and consent, the legal principles are clear. The social interaction between these two parties over the 14 years belies a rational understanding. In this case clearly there was a long active consensual sexual relationship, therefore there is great need for caution to isolate one act and conclude that it lacked consent. My unease in regard to this last incident must transpose into a doubt."

20 Neither counsel embarked upon a detailed consideration of the obligation of a Judge, on a trial without jury, to provide reasons for a decision that has "the same effect as a verdict of a jury". Mr Cuthbertson, counsel for the appellant, began with three brief propositions. He submitted that these were sufficient to deal with the appeal. They are, first, that a failure to give adequate reasons is an error of law. Secondly, that a failure to make an assessment of the defence evidence, or to give reasons for rejecting the defence evidence, is a failure to give adequate reasons. The third proposition is that the failure to give adequate reasons cannot be excused on the basis that the Judge is presumed to know and to apply the law, when difficult questions arise concerning the use of prejudicial material. He then submitted that, in various respects, the Judge had failed to give adequate reasons.

21 It suffices to summarise briefly the criticisms that he made of the Judge's reasons. The Judge does not explain, other than inferentially, how he dealt with the delay. It may well be that the explanation lies in one of the passages set out above, in which the Judge referred to the length and violence of the relationship. The Judge does not explain in any detail why he acted on the evidence of Ms C, other than to say that he thought that she was genuine, and received some support from her daughters. But, as Mr Cuthbertson pointed out, only count 2 received direct support and only from one of the daughters. The Judge does not deal with some suggested difficulties in the evidence of Ms C, or with the lack of supportive evidence on aspects which one might have expected to be supported. The Judge does not explain how he used the evidence of uncharged acts. Mr Cuthbertson did not complain about the admissibility of this evidence, but submitted that it was crucial that it be used correctly. The reasons do not indicate if the Judge used it as relevant only to credit, or whether the Judge reasoned that guilt could be inferred from the fact that he had found the relationship to be a violent one. The Judge does not explain whether, and how, he used the evidence on one count as admissible evidence in proof of another count. Nor does the Judge explain how he arrived at a verdict of guilty on count 4, a rape alleged to have occurred in November 1997, but not guilty on count 6, a rape alleged to have occurred on 8 January 1998. Mr Cuthbertson submitted that each incident occurred toward the end of what the Judge called "a long active consensual sexual relationship", and that there was no rational explanation for an acquittal on count 6 and yet a conviction on count 4.

22 Mr Millsteed QC, counsel for the Director, accepted as correct the propositions of law advanced by Mr Cuthbertson. Mr Millsteed submitted that, when the reasons are related to the issues at trial, they are sufficient. He submitted that the real issue at the trial was whether Ms C was to be believed. This turned, essentially, on the manner in which she gave evidence and the inherent plausibility of what she said. He submitted that it was not necessary to spell out the process of reasoning when the issue is credibility, and credibility turns so much on the two matters identified. He submitted that having accepted Ms C as truthful, the Judge's reasons for rejecting the defence case are self-evident. He submitted that the Judge had given reasons for admitting the evidence of uncharged acts, and there was no reason to think that when he came to consider his verdict, the Judge had departed from the basis suggested by those reasons. There was no reason to think that the Judge had engaged in any propensity reasoning, the ruling on admissibility having given no hint of that. He submitted that it was possible to explain the different results on counts 4 and 6. The evidence of Ms C was that in the period preceding count 6 intercourse had occurred almost daily, and in that context particular care was required before the Judge found there was a lack of consent. He made the point that the other four counts had no sexual component, and were different in time and circumstance, and that there was no inconsistency between the acquittal on count 6 and the conviction on counts 1-3 and 5.

23 It is impossible to dispose of the appellant's complaints, without some consideration of the obligation of a Judge who decides whether an accused is guilty when trying a criminal case without a jury.

24 The beginning point is that s 7 of the Juries Act, while providing that an accused may elect, in accordance with the Rules of Court, to be tried by judge alone, and while providing that the decision of the judge will "have the same effect as a verdict of a jury" makes no statement about the obligation of a judge to give reasons for the judge's decision. In that respect s 7 stands in sharp contrast with s 17 of the Criminal Procedure Act 1986 (NSW), which is similar to s 7(4) of the Juries Act, but goes on to provide as well that:

"(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied."

25 A person who is convicted by a judge sitting alone has a right of appeal on any ground that involves a question of law alone: s 352(1)(a)(i) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"). The convicted person may appeal on any other ground, if the leave of the Full Court is obtained or on the certificate of the Court of trial: s 352(1)(a)(ii). If a judge sitting alone acquits the person tried, the Director "may appeal against the acquittal on any ground with the leave of the Full Court": s 352(1)(ab). Section 353(1) sets out the grounds on which the Court must allow the appeal. They are that the verdict of the jury is "unreasonable or cannot be supported having regard to the evidence", that the judgment of the Court should be "set aside on the ground of a wrong decision on any question of law", and finally that "there was a miscarriage of justice". The response to the verdict of a jury must include the decision of a jury sitting alone. It is not necessary to set out other substantive and procedural provisions found in the CLCA. They are in a well known form.

26 The provision made by s 7(4), for the decision of a judge to have the same effect as a verdict of a jury, is a significant change to the means of determining guilt of offences tried on Information. The law is now to be applied to the facts by a judge, who is assumed to know the law, rather than by a jury comprised of members of the community who cannot be expected to know the law. The need for the relevant principles of law to be explained no longer exists, in the sense that the person who is to apply those principles to the facts is assumed to know the principles. To that extent, the position has changed. On the other hand, the verdict is now to be given by a judge, who might reasonably be expected to provide reasons for that verdict, and to provide reasons dealing with matters of law and matters of fact. That is an accepted aspect of the judicial function: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 ("Osmond") at 666-667 Gibbs CJ. The giving of reasons is not something that has been expected of juries. Thus, the change effected by s 7(4) of the Juries Act has implications for the manner in which the judicial function under that provision is to be discharged. It goes without saying that the question is one of implications, because Parliament has remained silent on the issue.

27 The issue which this Court must decide is whether there is any obligation for a Judge to give reasons for a decision which has the same effect as a verdict of a jury. If there is no obligation at all, then the appeal must be dismissed, except to the extent that it complains of an inconsistency between the not guilty verdict on count 6, and the guilty verdicts on the other counts. I say this because, apart from that point, the argument for the appellant was based on the absence of reasons. It was not suggested that as a matter of law the appellant could not be convicted on the counts charged, nor was it suggested that as a matter of law there was no basis upon the available evidence upon which the appellant could be convicted, nor was it suggested that the state of the evidence was such that a jury, if properly instructed, or the Judge properly instructing himself, must have had a reasonable doubt about the appellant's guilt. The essence of the complaint was that inadequate reasons were given, even though in the submissions this was put as producing a situation in which the verdict is unsafe and unsatisfactory.

28 If the Court decides that reasons are required, then the Court must decide whether it was necessary for the Judge to give reasons dealing with the matters identified by Mr Cuthbertson. There is no need to go any further than that. If there was an obligation to deal with those matters, the appeal must succeed unless adequate reasons were given. If there was not, the appeal fails, and there is no need, on this occasion, to consider more generally the obligation to give reasons.

29 There are three bases upon which an obligation to give reasons might be implied.

30 The first basis is that by conferring on a judge the power to decide innocence and guilt, Parliament must be taken to have intended that reasons would be given, because Parliament would have assumed that this would be done. One can understand Parliament assuming, because of the widespread acceptance that the giving of reasons is a necessary incident of the judicial function, that reasons would be given once the function of deciding innocence or guilt was conferred on a judge. Another possible basis for implying an obligation to give reasons is the existence and nature of the remedy of appeal. Once again, it may be that Parliament is to be taken as having by implication indicated that reasons are to be given, because the decision of a judge on the question of innocence or guilt is subject to appeal on the grounds identified by s 353(1) of the CLCA. If reasons are not given, the remedy of appeal may be frustrated, or at least substantially contracted in its scope.

31 The third basis draws on more fundamental considerations. Bearing in mind the history of our criminal process, it would be surprising if Parliament had established a process of deciding innocence or guilt which would deprive the parties and the community of any explanation, in terms of matters of law and matters of fact, for the decision reached. Our system of criminal procedure accepts the so-called inscrutable verdict of the jury, pronounced after adequate instruction by the judge on matters of law and of fact. There are practical reasons why that should be so. As well, the involvement of the community through the jury is a significant factor. It may be said that a decision made by a group, representative of the community, removes the need for an explanation by that group to the community of the reasons for its decision. The jury acts on behalf of the community. If the conferral of the jury's function on a judge were to lead to a situation in which neither law nor facts need be expounded, the result would be a curious one, and unsatisfactory as well. The community has a real interest in the administration of criminal justice, and a process that requires no explanation at all for a verdict of guilt or innocence would deny a legitimate community interest in the criminal process.

32 Nevertheless, it could be said that when the judge stands in place of the jury, there is no need for the judge to instruct himself on the law, and that the inscrutability of the jury verdict surrounds the whole judicial decision.

34 I begin with the remedy of appeal. The institution of an appeal as of right, or with leave, will require the Full Court (or the Court of Criminal Appeal ("CCA") as it is commonly called when sitting in the criminal jurisdiction) to discharge an important function. The role of the CCA is to ensure that the trial has been conducted according to law, that the trial has been fair, and that the verdict is supportable by reference to the evidence before the trial Court. The CCA does that by reference in particular to the statement in s 353(1) of the CLCA of the grounds upon which an appeal is to be allowed, and by reference to the grounds of appeal put before it.

35 In the case of trial by jury, the CCA will scrutinise the judge's summing up to determine whether the judge has accurately and adequately directed the jury on matters of law. This is part of ensuring a trial according to law. The CCA will also decide for itself whether the evidence upon which it was open for the jury to act was able to produce satisfaction of guilt beyond reasonable doubt. The former function requires the Court to scrutinise the summing up, in light of the conduct of the trial. The latter function usually requires some consideration of the terms of the summing up, but also requires the Court to consider the evidence as a whole, and to relate it to the verdicts reached. What I have said is something of a generalisation, but for present purposes it suffices.

36 As well, if the grounds of appeal require it to do so, the Court will scrutinise the course of the trial to see whether there has been any irregularity or decision by the Judge, contrary to law, affecting the outcome of the trial.

37 In short, putting aside complaints about the conduct of the trial, because that issue does not arise here, the CCA will decide whether the applicable law has been accurately and adequately stated to the jury. The CCA will also decide whether, in light of the evidence properly available, it was open to the jury to reach a conclusion of guilt beyond reasonable doubt.

38 If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the Judge has correctly applied the relevant rules of law. Absent reasons from the trial Judge, the ability to correct a verdict affected by "a wrong decision on any question of law" will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the Judge to convict. Cases in the latter category would be relatively rare. The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the Judge identified and correctly applied the relevant rules. The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the Judge dealt with the matter requiring particular care. To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt was reached. I do not suggest that this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.

39 On the other hand, the absence of reasons would not inhibit the CCA in deciding whether or not it was open to the trial Judge, on the available evidence, to be satisfied of guilt beyond reasonable doubt. That aspect of the CCA's function does not require that reasons be available. It has been performed satisfactorily in the past, in relation to a jury verdict.

40 An appeal by the Director against an acquittal would be stultified by the absence of reasons. For all the CCA would know, the judge might simply have failed to reach a state of satisfaction beyond reasonable doubt.

41 In my opinion the availability of the remedy of an appeal, on grounds identified by s 353(1) of the Criminal Law Consolidation Act, strongly suggests that to some reasons must be given by a judge when sitting without a jury. If reasons are not given, the remedy of appeal will be significantly restricted by the exercise of the right to be tried by Judge sitting alone. It is not impossible that Parliament intended that this consequence follow the exercise of that right, but I suggest that it is unlikely that that was the intention.

42 The conclusion that reasons must be given is supported by the fact that the function of deciding innocence or guilt is now to be performed by a judge, and the giving of reasons for a decision is an established incident of the judicial process. The conclusion is also supported by the community interest in the administration of justice. To this one could add the point made by the High Court in Fleming v The Queen (1998-1999) 197 CLR 250 ("Fleming") at 260, that:

"... justice must not only be done but also be seen to be done."

43 One could also say that the parties and the public are entitled to know, as a matter of public accountability, how and why the Court made its decision. These latter points may be no more than particular aspects of the point earlier made, that is, the community interest in the due administration of criminal justice.

44 There is authority to support the view that in a case like this, that is, a judicial decision subject to appeal, there is a requirement to give reasons, and that the failure to give reasons when required is itself an error of law. In Pettitt v Dunkley (1971) 1 NSWLR 376, a decision often referred to with approval by other Courts, the Court of Appeal of the Supreme Court of New South Wales decided that in a civil action tried without a jury, the failure of the trial judge to give adequate reasons for his decision was an error of law, because that failure made it impossible for the appellate court to determine whether or not the decision was based on an error of law, and so frustrated the statutory right of appeal. I respectfully adopt the following remarks of Asprey JA at 382:

"In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."

45 I also respectfully adopt what Moffitt JA said at 388:

"The observations of Jordan CJ recognize that an obligation, concerning the giving of reasons, lies upon any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court. The necessity referred to is, of course, of particular significance in a trial at first instance, when mixed questions of fact and law are involved and an appeal on a question of law only is given. It is important to observe, however, that the judicial obligation to give reasons in an appropriate case is directed to facilitating the exercise of a right of appeal."

46 That decision was approved by Gibbs CJ in Osmond, in a judgment which was approved of by other members of the Court, although Gibbs CJ remarked at 66 that:

"The decision in that case that the failure to give reasons was an error in law may have broken new ground ... ".

47 However, more recently in Fleming the High Court appears to me to have approved of the decision in Pettitt v Dunkley in unqualified terms, and added (at 260) that:

"We should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley ... ".

48 The requirement for reasons was affirmed by the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ("Soulemezis"). Although there was some divergence of views as to the extent of the obligation, all members of the Court agreed that there was an obligation to give adequate reasons for a decision that was subject to appeal. The extent of the obligation depended upon the scope of the appellate review. I agree with what Kirby P said at 259:

"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. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done."

49 I also agree, without setting it out, with the approach taken by Mahoney JA and his adoption of the approach of McHugh JA when he said (at 280):

"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ... the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons'. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies."

50 More recently, in Papps v Police [2000] SASC 183 the Full Court of this Court, approving of the same decisions, has held that a failure to give adequate reason (that is reasons adequate for the purpose of appellate review) is an error of law: at [33].

51 For the reasons of principle identified by me, supported by a distinct trend in judicial authority, I conclude that there is an obligation on a judge to give reasons for a decision which, by s 7(4) of the Juries Act, has "the same effect as a verdict of a jury", and that the failure to do so is an error of law. The more difficult question is the extent of the reasons required.

52 Sound guidance is to be found in the reasons of Moffitt JA in Pettitt v Dunkley, and in particular in the passage set out above. The same applies to the passage set out above from the reasons of Kirby P in Soulemezis. I likewise accept the views expressed by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) 3 NSWLR 378 at 385-386, which reasons Mahoney JA repeated and adopted in Soulemezis. I refrain from setting out the whole of the relevant part of the Judge's reasons, confining myself to his concluding observations at 386:

"But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

53 I have already set out part of the reasons of McHugh J in Soulemezis (at 280) where he likewise outlined the approach to be taken in determining the extent of the obligation to give reasons.

54 This is not the case in which to decide in a comprehensive way the extent of the obligation to give reasons for a decision as to guilt or innocence in a trial without a jury. It is not appropriate to do so because it is not a matter on which the court has had the benefit of full submissions. Different considerations might apply to matters of law and of fact, to a verdict of guilty and a verdict of not guilty. I should make it clear that, in what I have already said, there is no assumption that in such a case the reasons for decision must replicate the instructions that would be given to a jury, and also include detailed findings on all issues of fact. There is considerable force in what Kirby P said in Winner (1995) 79 A Crim R 528 at 530-531:

"... It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.

The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office; cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal."

55 For the purposes of the present case, it suffices to say that in my opinion the judge's obligation to give reasons required him to explain what use was made of the evidence of uncharged acts, at least to the extent of identifying how the evidence would be used, and how it would not be used, if not necessarily identifying in terms of a finding the precise use actually made of it. This is a difficult area of the law, and one in which considerable care is required to avoid error. It is a topic with which I grappled in R v Nieterink [1999] SASC 560, (1999-2000) 206 LSJS 135. The judge was also obliged to explain whether and how evidence relevant to one count was used as evidence tending to prove another count. This also is a matter that gives rise to difficulty at times. There was an obligation to give reasons on these matters because, having regard to the evidence admitted by the judge and the issues at trial, the proper use of the evidence in these respects was an important issue at the trial. They are matters that the judge had to decide. The decision required the proper application of a substantial body of law. The judge's reasons themselves suggest that the evidence of uncharged acts, and the judge's conclusion that the relationship between Ms C and the appellant was a violent one, played a significant part in the judge's finding of guilt. That being so, the appellant is entitled to have the CCA decide whether or not whether there was an error of law in this respect, and the silence of the judge's reasons in that respect prevents the court from discharging its statutory function on appeal.

56 I also consider that the judge's obligation required him to explain how he dealt with the issue of the delay in the making of a complaint, and with the absence of a complaint during the existence of the relationship. However, in fairness to the Judge it may be that his references to the violent nature of the relationship are an adequate explanation of his approach to that topic. I do not have to decide whether it was incumbent upon the judge to identify the central evidence upon which he was prepared to act, and the basis upon which he preferred the evidence of Ms C to that of the appellant. I do not have to decide this issue, the extent of the obligation to make findings of fact, because in this respect the judge's reasons are adequate. I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.

57 I accept the submission by Mr Cuthbertson that the adequacy of reasons will depend upon the circumstances of the case, and the issues in the case. But, for the reasons indicated, in my opinion there are two central aspects of this case, the use of evidence of uncharged acts and the use of evidence on one count in proof of another count, in respect of which an explanation of the judge's reasoning process is required to enable this Court to discharge its function. These are important issues at trial, and had to be resolved by the judge before he could make a decision. The judge has given no explanation of, or reasons for, this aspect of his decision. I do not accept that the ruling made by the judge, when deciding that the evidence of uncharged acts was admissible, can stand in place of reasons for a decision as to the use of that evidence when deciding upon guilt. And, as I have said, the judge has said nothing at all about the use of evidence on one count in relation to another count.

58 There are other aspects of the judge's reasons which fall short of what one might expect in a case like this. There are other matters of law upon which one would have expected a careful direction if it were a jury trial, and as to which one would have expected the judge to provide some explanation of his approach. I repeat, so that there can be no doubt, that in saying this I am not suggesting that the decision of a judge must set out all those matters that would be found in directions given to a jury.

59 The case cannot be disposed of on the basis that the issue was oath against oath, and once the judge had decided who was to be believed, and that he could be satisfied of guilt beyond reasonable doubt on the evidence of Ms C, that was the end of it. The evidentiary issues to which I have referred had to be decided before the judge could properly come to that conclusion.

60 For those reasons, regrettably, the verdicts of guilty must be set aside.

61 Mr Cuthbertson submitted that there should not be an order for a re-trial. He submitted that the verdict or not guilty on count 6 was inconsistent with the verdicts of guilt on the other counts. Subject to count 4, I disagree. The verdict of not guilty on count 6 is clearly based on a doubt centred around the issue of consent to sexual intercourse, in the context of evidence of almost daily intercourse at the relevant time. In my opinion there is no inconsistency at all between that verdict and the verdict of guilty on counts 1, 2, 3 and 5. Consent was not an issue on those counts. As to count 4, the position is not so clear. The rape the subject of count 4 occurred at most about two months before the alleged rape the subject of count 6. Both incidents came close to or at the end of what the judge called "a long active consensual sexual relationship". The judge offers no explanation for the different verdicts, other than a passing reference to sexual intercourse occurring almost daily at the time of count 6.

62 On this topic, I agree with the reasons that Williams J gives for concluding that there is an inconsistency between the verdict of guilty on count 4, and the verdict of not guilty on count 6, and that a verdict of not guilty should be entered in relation to count 4.

63 For those reasons I would allow the appeal, set aside the convictions recorded by the District Court, direct that there be a verdict of acquittal on count 4, and order that there be a re-trial of counts 1, 2, 3 and 5.

64 WILLIAMS J In my opinion, the reasons given by the Trial Judge are insufficient to enable this Court properly to discharge its appellate function in accordance with s 353(1) of the Criminal Law Consolidation Act 1935 (SA). I am prepared to treat the principle identified in Pettitt v Dunkley (1971) 1 NSWLR 376 with respect to a civil trial without a jury as applying also to a criminal trial by Judge alone in accordance with s 7(4) of the Juries Act 1927 (SA). The principle underlying this decision is stated by Jordan CJ in Carlson v King (1947) 64 WN (NSW) 65 at 66:

"It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 4-5; 63 WN 34 at 36 and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch [1943] NSWStRp 14; (1943) 43 SR (NSW) 207 at 212; 60 WN 148 at 150."

65 In Fleming v The Queen (1998-1999) 73 ALJR 1 at par 22 five members of the High Court of Australia said:

"Section 142 of the District Courts Act 1912 (NSW) provided for an appeal to the Court of Appeal by a party who was "aggrieved by the ruling, order, direction, or decision of the judge in point of law". It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law. In Public Service Board of NSW v Osmond, Gibbs CJ said that the decision in Pettitt v Dunkley:

"that the failure to give reasons was an error in law may have broken new ground."

Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal upon the construction of s 142 should be accepted."

66 It seems to me, that in the present case, the Trial Judge's reasons for verdict do not address the process which links various pieces of evidence with the verdicts.

67 The evidentiary questions (referred to by the Chief Justice in his reasons), are so notoriously difficult as to be deserving of specific attention by the Trial Judge - particularly this is so in light of the issues raised by counsel. My decision to treat the guilty verdicts as unsatisfactory is based upon the peculiar issues arising upon the evidence in this case, the way in which the case was conducted at trial, and the lack of explanation from the Trial Judge.

68 The justification for the admission of certain evidence and the manner in which it might be used was addressed by defence counsel at the conclusion of the prosecution's opening address. This topic then became the subject of a ruling which recognised provisionally the probative value that this evidence might have, notwithstanding the potential for prejudice suggested by the defence. The way in which the evidentiary questions were opened up required the Trial Judge's ultimate use of this evidence to be exposed as to be capable of scrutiny for the purposes of an appeal.

69 In my view, the extent of a Trial Judge's obligation to give reasons should not be divorced from consideration of the way in which a trial was conducted, and issues raised and disposed of in exchanges between counsel and with the Trial Judge. I note that in Ghys v Crafter [1934] SAStRp 10; [1934] SASR 28 at 33-34 Napier J, (as he then was), placed particular emphasis upon the issues raised and the course of trial as being relevant to the adequacy of reasons.

70 At the end of the day upon the facts of this case, I am of the opinion that the appeal has been frustrated by the Trial Judge's silence upon live questions. If these matters had not been so clearly raised by counsel at trial, my conclusion might be different. However, in my view, this case is not a convenient vehicle for dealing more generally with the extent of a Trial Judge's obligation to give reasons.

71 I agree that the appeal against conviction should be allowed and that there be an order for retrial upon Counts 1, 2, 3 and 5.

72 With respect to Count 4, I consider that in order to avoid seemingly inconsistent verdicts, a judgment of acquittal should be entered.

73 The Trial Judge acquitted the appellant with respect to a charge of rape on 8 January 1998 (Count 6 on the information) but returned a guilty verdict to a charge of rape on an unspecified date in November 1997 (Count 4).

74 The earlier incident is alleged to have occurred at the appellant's house when the victim was ordered into the bedroom. The later incident is alleged to have occurred at the victim's home when she was directed by the appellant to the bathroom. On each occasion the appellant became violent in his sexual demands and the victim told him to stop.

75 I cannot see anything in the evidence or in the Trial Judge's reasons which would have warranted distinguishing between the evidence with respect to Count 4 and Count 6. The Trial Judge found that in the "final stages" of a fourteen year relationship sexual relations between the appellant and his victim occurred almost daily. With respect to Count 6 the Trial Judge said:

"The social interaction between these two parties over the 14 year belies a rational understanding. In this case clearly there was a long active consensual sexual relationship, therefore there is great need for caution to isolate one act and conclude that it lacked consent. My unease in regard to this last incident must transpose into a doubt."

76 The prosecutor has pointed to the frequency of sexual intercourse in the "final stages of the relationship" as justifying differentiating between the allegation with respect to November 1997 and that concerning 8 January 1998.

77 The victim gave evidence that the incident involving Count 4 occurred on a Wednesday "about the end of November 1997 [T.40]. She said that this was followed a couple of days later by an incident in which the appellant held a knife to her throat. The victim said that thereafter she had sexual intercourse with the appellant nearly every day until the relationship ended [T.42]. Therefore, as now relevant, the "closing stages of the relationship" ought to be related back quite specifically at least to a point in time which is effectively so close to the Wednesday incident in November 1997, as to merge with it.

78 In my opinion, there was insufficient before the Court to justify a different legal outcome with respect to the two occasions. Accordingly, the doubt which existed in the mind of the Trial Judge with respect to Count 6, ought to be extended to Count 4.

79 I therefore conclude that the appeal should be allowed. There should be an order for retrial on Counts 1, 2, 3 and 5. There should be an acquittal on Count 4.

80 WICKS J I agree with the orders proposed by the Chief Justice for the reasons given by him.