HAY v THE KING [2026] SASCA 76

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) [2025] SADC 21 Appellant: TRENT JAMES HAY Counsel: MR B ARMSTRONG - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MR M HINTON KC WITH MS E CATTRALL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS Hearing Date/s: 09/06/2026 File No/s: SCCRM-25-040919 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HAY v THE KING [2026] SASCA 76 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice B Doyle) 2 July 2026 CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN The appellant was found guilty by a judge sitting without a jury of two counts of sexual abuse of a child and two counts of aggravated indecent assault involving three female children (AC, LF and LH) at a primary school where he taught Indonesian. The appellant appeals against his conviction, contending that: 1. the evidence of the three complainants was not cross-admissible on an improbability of similar account basis nor on the basis that it tended to demonstrate a particular propensity or disposition; 2. the judge erred in admitting purported prescribed interviews of AC and LF into evidence because neither amounted to an ‘audio visual record’ of the witness’ evidence within the meaning of s 13BA of the Evidence Act 1929 (SA), or because they should have been excluded on other grounds; and 3. the reasons of the trial judge did not expose, or adequately expose, the basis upon which the trial judge was satisfied as to the capacity of the complainants to give sworn or unsworn evidence at the time the recordings were made, nor the basis for finding that the offending occurred notwithstanding that it involved improbably brazen conduct. -- 1 of 26 -- Held, granting permission to appeal so far as is necessary, but dismissing the appeal: 1. the evidence of the three complainants was admissible on a propensity basis; 2. the accounts of the three complainants contained commonalities beyond those that might be expected if each had been disposed to fabricate, or somehow prone to imagine, an account of offending against them by the appellant. The evidence was admissible on a similarity of account basis; 3. the recorded interviews of both AC and LF were ‘audio visual records’ within the meaning of s 13BA of the Evidence Act 1929 (SA) and were compliant with reg 23(7) of the Summary Offences Regulations 2016 (SA); 4. having regard to the matters in issue, the reasons of the trial judge were adequate. Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56; Evidence Act 1906 (SA) ss 106HA(1), 106HB(1), 106HB(2), 106HB(5)(a); Evidence Act 1929 (SA) ss 9, 9(2)(a)(i), 9(2)(a)(ii), 9(2)(b), 13BA, 13BA(3)(b)(i), 34P(2)(a), 34P(2)(b); Evidence (Vulnerable Witnesses) Amendment Act 2020 (SA); Legislation Interpretation Act 2021 (SA) s 11(1); Summary Offences Act 1953 (SA) ss 74EA(1)(a), 74EA(1a), 74EB, 74EB(c), 74EC(1), 74EC(1)(b), 74H; Summary Offences Regulations 2016 (SA) rr 23(7)(a), 23(7)(b), referred to. Brown (a pseudonym) v The King [2025] SASCA 40; De Jesus v The Queen (1986) 61 ALJR 1; Director of Public Prosecutions (Vic) v Roder (a pseudonym) (2024) 281 CLR 18; Eddy (a pseudonym) v The King [2024] SASCA 115; Hughes v The Queen (2017) 263 CLR 338; MDM v The Queen (2020) 136 SASR 360; Possingham (a pseudonym) v The King [2026] SASCA 59; R v Hay [2025] SADC 21; R v P, G (2019) 133 SASR 157; R v Sparks [2017] SASCFC 171; Sutton v The Queen (1984) 152 CLR 528; The King v AR (2026) 100 ALJR 545, discussed. Hayward v The State of Western Australia [2025] WASCA 35; R v Cronin (2018) 131 SASR 111, considered. -- 2 of 26 -- HAY v THE KING [2026] SASCA 76 Court of Appeal – Criminal: S Doyle, David and B Doyle JJA 1 THE COURT: The appellant was charged on Information with having committed sexual offences involving the indecent touching of three female children at a primary school at which he was a teacher. He was tried before a judge sitting without a jury and found guilty of the four charges preferred against him at trial.1 2 Whilst his notice of appeal against conviction contains many grounds, as refined and ultimately pursued, the appellant contended that: (1) the evidence of the three complainants was not cross-admissible on an improbability of similar account basis nor on the basis that it tended to demonstrate a particular propensity or disposition;2 (2) the judge erred in admitting purported prescribed interviews of AC and LF into evidence because neither amounted to an ‘audio visual record’ of the witness’ evidence within the meaning of s 13BA of the Evidence Act 1929 (SA), or because, if they did, they should have been excluded on other grounds;3 and (3) the reasons of the trial judge were inadequate with respect to two particular issues.4 3 To the extent necessary, permission to appeal should be granted. However, for the reasons that follow, the appeal should be dismissed. Background 4 The appellant is a teacher. He taught at a primary school in Whyalla. The three complainants (AC, LF and LH) were members of his Indonesian class at Whyalla, and at relevant times were between Reception and Year 2.5 5 Before trial, the judge rejected an application for severance of the counts concerning the three complainants. The judge’s reasons for concluding that the evidence of the complainants was cross-admissible on two bases are set out in the reasons for verdict and their correctness is the subject of ground 1. 6 The judge also rejected an application to exclude two audio visual records comprising part of the evidence of AC and LF. This is the subject of grounds 4 1 R v Hay [2025] SADC 21 (‘Reasons’). 2 Ground 1. 3 Grounds 4 and 6. 4 Ground 11.2 and Ground 11.5. 5 Reasons [1]. -- 3 of 26 -- [2026] SASCA 76 The Court 2 and 6. An audio visual record of LH’s evidence was also received as evidence, but no complaint is made about that. The allegations concerning AC 7 The first complainant, AC, was born on 31 March 2017. She commenced Reception in January 2022 and commenced Year 1 in January 2023. On 29 June 2023, when she was six years and three months old, she disclosed that the appellant had touched her ‘fanny’ at school. She participated in a prescribed interview at the Women’s and Children’s Hospital (‘WCH’) on 13 July 2023. 8 In the course of the interview, AC told the interviewer that on the day of the offending, she had gone to the Indonesian classroom at lunch and seen the appellant (whom she called ‘Pak Trent’). She said: When I came in his room, the Indonesian room I went there and finished my camera but and then he started rubbing me in the fanny and then first ---- me on my bum and then he went to my fanny and then he pulled my pants down at school and he gave me a lolly and at the end of lunch he kissed me on the head that’s what happened. 9 Later in the interview she elaborated by saying that the appellant had given her a lolly or lollies that she placed in a bag and that after this occurred, and the appellant kissed her, she left and played with her friends. She said that during the incident the appellant was rubbing her ‘bum’ and her ‘fanny’, and in a later passage she repeated or clarified that he rubbed her bum before he rubbed her fanny. She described them both colouring in at this time. She was colouring in a picture of a camera. She was sitting on a chair on her knees. It felt ‘a bit weird’. She said that after the appellant had pulled down her pants, he heard some people ‘being loud, so he stopped’ and ‘then he went to go get a tissue and wiped his hands’ before seeing people who were being a ‘little bit noisy’. AC was able to demonstrate by her responses to questions, and by reference to a drawing, that she correctly understood the body parts to which ‘bum’ and ‘fanny’ referred. AC said that the people she had told about this were her parents. 10 AC was called as a witness at trial and following a brief exchange with the trial judge was found by the judge to be capable of giving unsworn evidence. 11 AC was asked a small number of questions in chief. She confirmed the essentials of the complaint, explaining that the appellant had rubbed her private parts in the Indonesian room before grabbing a tissue and wiping his hands and telling the kids outside to stop yelling. 12 In cross-examination she was asked about the day she got picked up from school by her parents and told them about what the appellant had done. When asked whether her father had been on a trip to Melbourne, she said ‘no’. She said that the appellant had lollies in a drawer in the classroom, but denied that he gave them to students when they were good. The cross-examiner put to her that the appellant had never touched her on the fanny or bum, pulled her pants down or kissed her. She disagreed. -- 4 of 26 -- [2026] SASCA 76 The Court 3 13 The touching of AC’s vagina and bottom were charged as aggravated indecent assault and comprised counts 2 and 3 respectively on the Information.6 14 AC’s parents gave evidence to the effect that the offending came to light on 29 June 2023 when AC told her mother in the car after school that she had been in the Indonesian classroom by herself colouring in a camera, while the appellant was sitting next to her, and that he touched her ‘fanny’. When her father returned to the car, her mother told him what AC had said. AC also mentioned that the appellant had kissed her on the forehead. The parents notified the school and police that day. 15 DNA analysis was conducted on a swab from AC’s forehead and the underwear she was wearing on the date of the offending. The swabs from her forehead tested negative to a presumptive test for saliva. In respect of the underwear, there was a statistical weighting of greater than 100 billion in favour of the appellant being a contributor to a mixed DNA profile from the inner crotch. The allegations concerning LF 16 LF was in the same year level as AC. There was complaint evidence led from her mother, KF, a teacher at the school. A few days after she was advised of allegations against the appellant at a staff meeting, she and her husband had a conversation with LF and her sister reminding them about privacy and the fact that they could talk about anything that happened. Neither child raised anything. A few days later, however, KF asked LF about her Indonesian class at school. LF disclosed that the appellant had touched her back, would sometimes play with her hair, and would pull her between his legs and rub her on the bottom sometimes, over her clothes. 17 LF participated in a prescribed interview at the WCH on 21 July 2023, when she was aged six years and almost two months old. 18 LF said that she was sitting down doing her work next to her friend in Indonesian class and, every time the appellant walked past, he kept ‘doing this or that on my back. Like pinching me’. When describing this incident she demonstrated a kind of light pinching motion with a hand on the top of her head and on her back. 19 She also described the appellant having his hand on her bum and rubbing it in Indonesian class. She said that he did this a few times when she would be standing up next to his desk, and when she would be at his desk to tell him something. The effect of the discussion was that this happened a few times, spanning from the Wednesday of the last week of term in Reception, and including on the first day of Year 1. The touching or rubbing of her bum was over her clothes. 6 Criminal Law Consolidation Act 1935 (SA), s 56. -- 5 of 26 -- [2026] SASCA 76 The Court 4 20 The touching of LF’s bottom on more than one occasion was charged as the sexual abuse of a child, and comprised count 4 on the Information.7 21 LF was called at trial. Again, the judge ruled she be permitted to give unsworn evidence. Her evidence in chief was very limited, and involved LF confirming that she remembered taking part in the prescribed interview and talking to the person about what happened with the appellant on the last Wednesday of Reception and the first day of Year 1. 22 In cross-examination she confirmed she spoke with her parents about the things she said the appellant had done before speaking with authorities in Adelaide. It was put to her that the appellant touched or rubbed LF’s back (she agreed) but that the appellant did not rub her bottom (she disagreed). The allegations concerning LH 23 LH is a little older than the other two complainants. She was born in November 2015 and was in Year 2 in 2023. The allegations made by LH came to light when her parents were notified that a teacher at the school had been charged with a child sex offence. LH’s mother was drying LH after a shower and reminded her about inappropriate touching. LH gave no indication at that time that anything inappropriate had occurred. However, after this, LH’s mother became aware that the appellant was the person charged and asked LH whether he had ever touched her. LH said that he had. This led to a notification to the school and police. 24 LH participated in a prescribed interview at the Whyalla Police Station on 22 July 2023. At that time she was seven years and eight months old. LH said that the appellant had touched her ‘minnie’ (a term she used to describe her genitals) more than one time. The first time was when she was in the Indonesian room and there were a lot of children around. The appellant was helping her and then he touched her ‘minnie’. She was standing next to him but in front of his desk. He said she was special. He pulled her ‘skort’ back and put his hand into her knickers. He then touched her ‘minnie’ and moved his hand around. 25 LH said it happened three times in March and again in May. She said that in May ‘he went from the front, and then all the way to the back, and then went into my minnie, and then with his hand, he just went around and around with his hand’. She then described an occasion when she was sitting at her desk and the appellant was on his wheelie chair which he brought over to her. LH said there were four occasions when the appellant touched her ‘minnie’. 26 LH also described an occasion when the appellant touched her ‘bum’ at lunch whilst she was alone in the classroom. This was on an occasion when the appellant gave her a letter telling her to meet him. She threw the letter out and did not want to go but decided later that she would. The appellant gave her a hug and rubbed her bottom. The appellant had given her five letters in total. Whilst she had gone 7 Criminal Law Consolidation Act 1935 (SA), s 50(1). -- 6 of 26 -- [2026] SASCA 76 The Court 5 into the classroom four times as a result, he only touched her on the bottom on one occasion. The appellant called her ‘sweet pea’ and told her not to tell her parents. 27 LH did not describe any occasions of touching outside the classroom. She did say that when she went to the toilet outside of class she would see the appellant also going to the adult toilet. 28 The touching of LH’s vagina and bottom on more than one occasion was charged as the sexual abuse of a child and comprised count 5 on the Information. 29 LH gave unsworn evidence. In her evidence in chief, she confirmed she recalled telling a police officer about what the appellant had done, and confirmed she had also spoken to her mother and father, having earlier spoken to two other people at school. In cross-examination she said that when she first told another person at school about this she had not heard about the appellant doing other things with other children that were not appropriate. 30 In cross-examination it was suggested to her that the appellant did not give her letters asking her to meet at lunch, that the appellant had not told her not to tell her parents, or that LH had not seen the appellant go to the adult toilets whenever she went to the toilet. She adhered to what she had said in the prescribed interview and maintained that the appellant had touched her on the ‘minnie’ and on the bottom. She said that LH had called her both ‘sweet pea’ and ‘sweetie’. Ground 1: cross-admissibility 31 Having canvassed, at an earlier stage in the Reasons, the similarities and nuanced differences between their accounts,8 the judge ruled that the evidence of the complainants was cross-admissible on the basis of similarity of account and propensity reasoning.9 32 The judge separately found each complainant to be credible and generally reliable.10 Having rejected the possibility of collusion or contamination,11 he then had regard to the combined force of the evidence on the two bases earlier identified in the concluding part of the Reasons, as follows: [352] I have already found that the evidence of each complainant is cross admissible with the evidence of the others, permitting both improbability and propensity reasoning. I now apply that reasoning. [353] I find that the combined effect of the three complainants makes it improbable that any one of them has lied or been mistaken about the touching by the accused that they speak of. All three of the accused’s female students in his Indonesian class, aged between five and seven, say that he touched them on the bottom in a way and in 8 Reasons [268]-[275]. 9 Reasons [278]-[293]. 10 Reasons [323], [332], [344]. 11 Reasons [276]. -- 7 of 26 -- [2026] SASCA 76 The Court 6 circumstances that bespeak a sexual intent. Two of them say that he also touched them on the vagina. [354] Both the similarities and dissimilarities of their accounts give rise to improbability of falsehood. [355] I exclude collusion and contamination between them, or them and others. I am satisfied that there was none. [356] So far, the combined effect of their otherwise credible and generally reliable evidence is that I am satisfied beyond reasonable doubt that the accused touched them in the way that they said, although I will turn shortly to make specific findings in respect of each and apply those findings to the elements of the charges. [357] Further, I find that the combined evidence of the three complainants leads to the conclusion that the accused had a propensity to sexually touch the young female students in his class. The nature of the touching of AC and LH is plainly sexual. He touched each of them on the vagina. [358] I found that the evidence of LF, taken alone, demonstrates a sexual purpose. The type of touching (rubbing), the repetition of the touching, the two different types of touching (rubbing and placing) together with the non-sexual touching (grooming) are the bases for that conclusion. [359] However, that conclusion is reinforced by the unambiguously sexual touching of AC and LH. Their evidence demonstrates that the accused had a propensity to sexually touch his young female students and he acted on that tendency. [360] In respect of any single complainant the evidence of the others is strongly probative of that tendency and the tendency to act on it. [361] In this case there are three complainants in the unusual setting of a primary school class. The alleged behaviour was particularly brazen and there was a high risk of detection. That consideration by itself is an unusual and a relevant consideration. In my view each complainant gave a credible and generally reliable account. 33 The differences between reasoning which relies on the evidence of multiple complainants demonstrating similarities that render independent concoction improbable and reasoning on the basis that the evidence of multiple complainants demonstrates that the accused has a disposition or propensity to commit crimes of the kind alleged (‘propensity reasoning’) are summarised in Eddy (a pseudonym) v The King (‘Eddy’).12 The appellant’s grounds and written submissions contend that neither basis for cross-admissibility was present. It is convenient to address them in turn. Propensity reasoning 34 The challenge to the admission of the evidence for propensity reasoning was not developed in detail and can be dealt with relatively briefly. 12 [2024] SASCA 115 at [65]-[102] (Bleby JA, David JA and B Doyle AJA). -- 8 of 26 -- [2026] SASCA 76 The Court 7 35 The judge was correct to conclude that the evidence of the complainants was cross-admissible on propensity grounds. The propensity had been formulated by the prosecution as a tendency to engage in sexual acts with young girls in his class despite the risk of detection by other students or teachers.13 The body of evidence comprising the complainants’ account plainly had the capacity to demonstrate the existence of that tendency and the existence of such a tendency had the capacity to be strongly probative in establishing that the particular acts the subject of the offences occurred, and were committed with the requisite indecent intent.14 36 That there was a risk of detection associated with carrying out the acts in a classroom may be thought to bespeak a strong desire for sexual gratification, adding to the probative force of the evidence.15 Whilst the accounts given by each child of the nature of the touching were not identical, there were clear similarities, and precise identity is not required. The evidence in question had ‘strong probative value’ having regard to the particular issue or issues arising at trial, and that value outweighed any prejudicial effect it may have had on the appellant.16 Similarity of account reasoning 37 The real contest on appeal was as to whether the evidence was admissible for similarity of account purposes. If it was not so admissible, the appeal should be allowed. In view of the judge’s reasoning, there can be no dispute about materiality, and the respondent did not seek to invoke the proviso. 38 As the recent decision in Possingham (a pseudonym) v The King (‘Possingham’)17 emphasises, some care is required in order that similarities which do not emerge from the narrative of the complaint,18 or which are stated at a level of abstraction,19 are not mistaken for similarities which, when considered in the context of the basal improbability of more than one complainant making a false allegation against the same person,20 give the evidence a probative value that outweighs any prejudicial effect it may have on the defendant.21 39 The respondent, whilst supporting the judge’s reasoning, advanced two further submissions: first, that in the present case, the ‘basal improbability’ of three young students of the appellant’s Indonesian class independently fabricating or imagining false complaints against the appellant was sufficient, even without any narrative similarities, to give the evidence the requisite probative value; and 13 Reasons [164]. 14 Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ), Director of Public Prosecutions (Vic) v Roder (a pseudonym) (2024) 281 CLR 18 at [24] (the Court), The King v AR (2026) 100 ALJR 545 at [7] (Gageler CJ, Gleeson and Beech-Jones JJ). 15 Eddy at [116] (Bleby JA, David JA and B Doyle AJA). 16 Evidence Act 1929 (SA), s 34P(2)(a)-(b). 17 [2026] SASCA 59. 18 Possingham at [51] (S Doyle, Bleby and David JJA). 19 Possingham at [61] (S Doyle, Bleby and David JJA). 20 Possingham at [48] (S Doyle, Bleby and David JJA), Eddy at [90] (Bleby JA, David JA and B Doyle AJA), MDM v The Queen (2020) 136 SASR 360 at [14] (Kourakis CJ). 21 Evidence Act 1929 (SA), s 34P(2)(a). -- 9 of 26 -- [2026] SASCA 76 The Court 8 secondly, that there should be a downwards re-calibration of the prejudicial effect usually associated with the evidence of multiple complainants in cases of this kind. As to the second proposition, the respondent submitted that case studies concerning jury reasoning considered by the Royal Commission into Institutional Responses to Child Sexual Abuse22 have undermined the assumptions underpinning the risks associated with evidence of this kind as articulated by the High Court.23 In effect, the respondent submitted that juries are less susceptible to distraction and simplistic reasoning where multiple complainants are involved than has been assumed to be the case. 40 This appeal may be resolved without evaluating the merits of those submissions, and without embarking on a consideration of whether it would be appropriate for an intermediate appellate court to embrace the second submission if it were considered to be persuasive. 41 As was explained in Eddy, the fact that there are close similarities in the age and circumstances of the complainants (particularly where their complaints and evidence are made and given proximately to the offending, and thus while they are young) not only furnishes a basal improbability but provides important context when assessing the significance of any similarities in their accounts.24 That is because what is being considered, as a matter of human experience, is whether the similarities in the accounts go beyond those which might be expected if, for conscious or sub-conscious reasons peculiar to each of them, the complainants had independently concocted, fabricated or imagined the offending which they alleged.25 42 Especially where the complainant remains a young child at the time of giving evidence, and would not be expected to have a familiarity with the acts or circumstances likely to be involved in a sexual assault, common features in their accounts which might otherwise seem unremarkable may be significant. 43 Importantly, in the present case, each of the three complainants described being touched or fondled on their bottom, with two of the three complainants describing rubbing of the genitals (with the appellant’s hand moving between those two areas). The accounts described ostensibly kind or friendly interactions or gestures (a lolly and a kiss on the head, a light touching of the head and back, a hug and the use of affectionate language such as ‘sweet pea’ and ‘sweetie’). None of the accounts described particularly forceful acts. 44 Each account as described involved touching in the classroom and to that extent, a risk of detection over and above that which would be inherent in any 22 Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017, pp 607-628. 23 Sutton v The Queen (1984) 152 CLR 528 at 541-542 (Brennan J), referred to in De Jesus v The Queen (1986) 61 ALJR 1 at 3 (Gibbs CJ), at 7 (Brennan J), at 8 (Dawson J). 24 Eddy at [92], [97] (Bleby JA, David JA and B Doyle AJA). 25 Eddy at [91] (Bleby JA, David JA and B Doyle AJA), Possingham at [49] (S Doyle, Bleby and David JJA). -- 10 of 26 -- [2026] SASCA 76 The Court 9 abuse of a school child. The appellant sought to highlight differences in the brazenness or riskiness of the offending as described, going so far as to submit that on AC’s account the appellant was risk-averse. 45 In our view, this overstates the difference. Whilst it may be accepted that there are additional risks of detection associated with inappropriately touching a child whilst other children are in the room, given what may be the limited powers of concentration, observation and comprehension of a class of very young students, in each circumstance, the primary risk, absent an adult unexpectedly entering the room, was of the child themselves reporting what had occurred (and doing so in a comprehensible and cogent way). 46 More fundamentally, however, the element of brazenness is not in this case central or critical to an identification of the requisite similarity. The conduct described by each complainant appears to have involved an attempt, in a relatively low-key way, to normalise indecent touching of a particular kind by undertaking it in a classroom setting and without any elaborate explanation or justification. In that way, it exhibits a degree of similarity, and whatever distinctions there may have been in the three accounts did not undermine the improbability of independent concoction or imagination arising from the similarities. 47 Standing back, and having regard to the overall impression formed from an evaluation of the three complainants’ accounts in their entirety, the features we have identified comprise commonalities that are beyond those that might be expected if each had been disposed to fabricate, or somehow prone to imagine, an account of offending against them by the appellant.26 When considered in the context of the ‘basal improbability’, the evidence had a probative value that outweighed its prejudicial effect, and it was admissible accordingly.27 Ground 1 should therefore be dismissed. Grounds 4 and 6: admission of audio visual records of AC and LF’s interviews 48 The appellant complains that the trial judge erred in admitting into evidence the purported prescribed interviews of AC and LF because they did not amount to an ‘audio visual record’ within the meaning of s 13BA of the Evidence Act 1929 (SA). He also adopted, without further developing, complaints made at trial that each interview failed to comply with certain prescribed requirements under the Summary Offences Regulations 2016 (SA). Statutory framework 49 AC and LF were each a potential witness, under the age of 14 years, and were being interviewed as a victim of an alleged child sexual offence.28 Those circumstances required that an audio visual recording of the interviews be made 26 Eddy at [93] (Bleby JA, David JA and B Doyle AJA). 27 Evidence Act 1929 (SA), s 34P(2)(a). 28 Summary Offences Act 1953 (SA), ss 74EA(1)(a) and (1a). -- 11 of 26 -- [2026] SASCA 76 The Court 10 pursuant to and in accordance with s 74EB of the Summary Offences Act 1953 (SA). 50 Where it applies, s 74EB requires that: (a) an audio visual recording of the interview must be made in accordance with the regulations; (b) the interview must be conducted by a prescribed interviewer; (c) the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. 51 There was no dispute that the interviews were conducted by a prescribed interviewer. Section 74H empowered the Governor to make relevant regulations. Relevantly, reg 23(7) of the Summary Offences Regulations 2016 (SA) provides that the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements for the purposes of s 74EB(c) if: (a) so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and (b) the vulnerable witness appears to understand that he or she must tell the truth; and (c) the interview is conducted in accordance with this regulation. 52 An issue was raised at trial, and is re-agitated on appeal, in relation to whether the interview with AC complied with reg 23(7)(b) and whether the interview with LF complied with reg 23(7)(a). 53 Because the present case involved charges of ‘sexual offences’, and therefore involved charges of a ‘serious offence against the person’,29 s 74EC(1) of the Summary Offences Act 1953 (SA) provided that any prescribed interview would be inadmissible unless: (a) the prescribed interviewer complied with [Division 3 of Part 17] in relation to the conduct and recording of the interview; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer’s non-compliance. 54 Section 13BA of the Evidence Act 1929 (SA) facilitates the admission of an audio visual record of the evidence of a witness in criminal trials in South Australia. Whilst it is not limited to the admission of prescribed interviews conducted under Division 3 of Part 17 of the Summary Offences Act 1953 (SA), it extends to it. 29 Summary Offences Act 1953 (SA), s 74EA(2). -- 12 of 26 -- [2026] SASCA 76 The Court 11 55 Following amendments made in 2020,30 the section has been in these terms: 13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings (1) Subject to this section, the court may, in the trial of a charge of an offence, or in a pre-trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record. (2) Subject to subsection (2a), an application for an order under subsection (1) must— (a) be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and (b) be filed in the court; and (c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and (d) otherwise be made in accordance with the rules of court. (2a) An application for an order to admit an audio visual record of the examination, cross-examination or re-examination of a witness at a pre-trial special hearing may be made orally at the pre-trial special hearing or in accordance with any directions of the court. (3) An audio visual record of the evidence of a witness may be admitted under this section if the recording— (a) has been made in a pre-trial special hearing conducted in accordance with section 12AB; or (b) has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and— (i) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and (ii) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and (iii) the witness is available, if required, for further examination, cross-examination or re-examination during the course of the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing. (4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may— (a) rule as inadmissible the whole or any part of the recording; or 30 Evidence (Vulnerable Witnesses) Amendment Act 2020 (SA). -- 13 of 26 -- [2026] SASCA 76 The Court 12 (b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason. (5) Despite subsection (3)(b)(iii), the witness cannot be further examined, cross-examined or re-examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings— (a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or (b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or (c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined. (6) If a court admits evidence in the form of an audio visual record under this section, the judge must— (a) explain to the jury that the law allows the court to admit evidence in this form; and (b) warn the jury— (i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and (ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence. 56 There was no issue about compliance with ss 13BA(3)(b)(ii) or 13BA(3)(b)(iii). As will be seen, however, it is necessary to address s 13BA(3)(b)(i). 57 There are clear advantages to the admission of the evidence of children pursuant to the scheme of provisions just described. When obtained within a short time after the alleged offending, the recording may constitute a more reliable and accurate account than evidence later given at trial. To the extent that the recorded evidence takes the place of evidence at trial, its admission reduces the number of occasions on which a witness is required to give evidence about alleged offending and thereby minimises the associated risk of re-traumatisation.31 In the case of child complainants, for whom contact with the criminal justice system may be 31 See, eg, Brown (a pseudonym) v The King [2025] SASCA 40 at [117]-[124] (Livesey P, S Doyle and Bleby JJA generally agreeing). -- 14 of 26 -- [2026] SASCA 76 The Court 13 particularly traumatic, those benefits are significant. As well, and where appropriate, a visually recorded account may be re-watched. 58 However, those advantages are required to be balanced against the importance of the fair trial of an accused.32 The presupposition of a fair trial informs the construction, and demands the careful application, of the statutory provisions facilitating admission. 59 Before addressing the issues raised by the statutory provisions in question, it is appropriate to describe some features of the two interviews and the judge’s approach to those features. The interviews of AC and LF 60 Both AC and LF participated in interviews at the WCH in July 2023. An application was made at trial for the exclusion of both recorded interviews, complaining about both the audio and visual qualities of the recordings. 61 Each interview is captured from two angles, both of which are displayed concurrently in the recording. The first, which occupies most of the visible display, comprises vision from a high oblique angle capturing the entire room, with the complainant and interviewer centred in the frame. Each is sitting at an approximately 45 degree angle to what might be described as the camera’s line of sight. The faces of the complainant (in each video) can generally be seen throughout the duration of both recordings, save for occasions where adjustments in posture and body language have the consequence of partially obscuring each complainant’s face. The footage is ‘zoomed out’, making it difficult to see either complainant’s face with a high degree of clarity. 62 The second angle is displayed within the top right corner of the display (effectively, as a ‘picture in picture’ display). The camera angle appears to be from a slightly higher vantage point and is pointed more directly towards the complainant, with the interviewer visible but sitting perpendicular to the camera’s line of sight. The face or facial expressions of the interviewer are not able to be seen, and due to the elevated angle and smaller display, the face and facial expression of the complainant is difficult to perceive in any meaningful detail. 63 Audio was captured for the duration of each interview, with transcripts produced and marked for identification in the proceedings.33 The trial judge resolved to receive and review the recordings along with the relevant transcripts before ruling on the application to exclude the recordings. He then marked up the transcripts associated with each interview to indicate any passages that were inaudible to him. 32 Hayward v The State of Western Australia [2025] WASCA 35 at [354] (Mazza and Vandongen JJA). 33 The transcripts of the interviews of AC and LF were marked as MFI-VDP1A and MFI-VDP1B respectively. -- 15 of 26 -- [2026] SASCA 76 The Court 14 64 In relation to the interview of AC, the trial judge identified 29 instances where a specific word or short strings of words were inaudible.34 In some instances, what can be heard prior to and immediately following the inaudible passage indicates that AC is not discussing the alleged offending.35 On other occasions, the substance of AC’s inaudible answer is discernible from the follow- up question asked by the interviewer. For example, on one occasion the interviewer asked AC to ‘tell [her] how Pak Trent pulled [her] pants down’. The trial judge marked AC’s response as inaudible. However, the judge was able to hear the interviewer’s next question: ‘With his body? Were you sitting, standing or something else?’. An inference can be made that the interviewer was repeating AC’s answer to the previous question, being ‘with his body’.36 65 Only seven words in the interview of LF were marked as inaudible by the trial judge.37 Five of those words were stated at the beginning of the interview in the context of an otherwise audible discussion about a drawing LF was about to complete.38 The remaining two instances are single words missed in passages that the trial judge was otherwise able to hear.39 66 Following argument, the trial judge determined that each recording constituted an audio visual record of the interviews of AC and LF. The judge’s reasons for ruling, delivered as part of the Reasons, concluded that:40 … In my view, the very brief occasions when the complainant’s face in this case was not visible was so few and so brief that they do not deprive the recording of its audio-visual character which is provided for in s 13BA of the Evidence Act. … … … This case is not being heard by a jury. I will not be distracted in the way a jury might be. The number of inaudible passages in each of the interviews is not large. In some of them, the interviewer either repeats the question or says something with impliedly repeats the inaudible answer. I give an example. At item 51 in the interview with AC, the interviewer asks AC to tell her what she has come to talk about. The transcribed but inaudible answer is ‘I don’t know’ whereupon the questioner suggests in a non leading way why she might be there. That implies that AC has not been able to answer the question. … In my view the inaudible passages do not deprive the recording of its audio visual character. Did each recording amount to an ‘audio visual record’? 67 The appellant’s notice of appeal contends that neither interview was an ‘audio visual recording’ within the meaning of Division 3 of Part 17 of the Summary Offences Act 1953 (SA), but as developed at the hearing the thrust of the 34 MFI-VDP1A items 12, 14, 24, 26, 40, 42, 46, 52, 58, 84, 106, 107, 118, 144, 146, 218, 222, 228, 234, 236, 250, 262, 264, 272, 276, 282, 296, 302 and 318. 35 See, eg, MFI-VDP1A items 40, 42, 46, 262, 264, 272, 276, 282 and 318. 36 MFI-VDP1A items 217-219. 37 MFI-VDP1B items 22, 24, 96 and 114. 38 MFI-VDP1B items 22 and 24. 39 MFI-VDP1B items 96 and 114. 40 Reasons [19], [25]-[26]. -- 16 of 26 -- [2026] SASCA 76 The Court 15 appellant’s contention was that, building on the reasoning in R v Cronin (‘Cronin’),41 neither recording was an ‘audio visual record’ within the meaning of s 13BA of the Evidence Act 1929 (SA). The appellant relied in that regard upon the poor quality of the recordings, the difficulty in observing the facial expressions of both the complainants and the interviewers and the presence of inaudible passages in each interview as, in conjunction, depriving the interview of its audiovisual character. 68 In Cronin, the complainant gave evidence critical to proof of the prosecution case in the first of two recorded interviews conducted by a police officer at a time proximate to the alleged incidents. Shortly after the questioning commenced, the camera slipped, with the consequence that only the top of the complainant’s head was visible for the remainder of the recording. In forming the view that the recording did not amount to an audiovisual record of the interview, Vanstone J said:42 It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness. As counsel for the appellant put it, it will become the evidence of the witness. In those circumstances the visual component contemplated by Parliament must surely be vision of the witness, rather than of a wall. If the tribunal is not to have the benefit of the witness giving evidence in the court room, then it would be expected that what is seen in the recording has some of the important features of evidence given in person. Even without this context, the import of the expression is clear. The Macquarie Dictionary (Macquarie Library Pty Ltd, 1982) gives the following meaning to the words: audiovisual adj. involving or directed simultaneously at the faculties of seeing and hearing. The inclusion in this definition of the concept of simultaneity is significant. What is heard must also be seen. 69 For Vanstone J, with whom Nicholson J agreed, satisfaction of the preconditions set out in s 13BA required the admission of the audio visual record as evidence in the trial. She did not consider that the word ‘may’ (which appears both in ss 13BA(1) and 13BA(3)) conferred a discretion. Vanstone J reasoned that:43 A discretion to admit evidence is foreign to the common law. The common law holds that relevant evidence is admissible unless subject to an exclusionary rule or excluded in the exercise of the judge’s discretion. Of course the provisions in question are statutory exceptions to the hearsay rule and are, in the scheme of things, superimposed on the common law rules of evidence. Certainly there are situations where Parliament provides for a discretion to admit certain evidence in the face of non-compliance with statutory prerequisites. The Summary Offences Act 1953 (SA), s 74EC (in Div 3 of Pt 17) provides an example. Provisions of that nature generally take the form of Parliament providing a regime under which evidence of a certain nature will be rendered admissible and then 41 (2018) 131 SASR 111. 42 (2018) 131 SASR 111 at [21]-[22] (emphasis in original), see also [3] (Kourakis CJ). 43 (2018) 131 SASR 111 at [17] (emphasis in original). -- 17 of 26 -- [2026] SASCA 76 The Court 16 providing a discretion to admit which can be exercised in circumstances where non- compliance with the regime is of a technical nature or resulted from circumstances beyond the control of the officer concerned. It would be unusual to instruct a court to receive evidence. I take the use of the word ‘may’ in s 13BA(1) to pay deference to the requirements of subss (2) and (3). It may be acknowledged that various drafting techniques are used throughout the Evidence Act to deal with the admission of evidence which would otherwise be excluded by the hearsay rule. However, I am fortified in my view by the specific reservation, in subs (4), of the common law discretion to exclude evidence. It would be confusing and somewhat contradictory to interpret the provisions so as to attribute to the court two discretions in relation to this, or any other evidence. 70 Kourakis CJ agreed that the recording was not an audio visual record within the meaning of s 13BA. The Chief Justice considered it unnecessary to decide whether s 13BA(3) confers a discretion whether to receive audio visual records where the requirements in that sub-section are met, but expressed a tentative view that it was difficult to foresee circumstances which would justify not giving effect to the clear legislative intention to save vulnerable witnesses from the distress of attending in person which would not fall within the scope of the unfairness discretion.44 71 The appellant did not advance an alternative argument that if the recordings qualified as ‘audio visual records’ within the meaning of s 13BA of the Evidence Act 1929 (SA), the judge erred in admitting the recordings pursuant to a discretion conferred by that section, having regard to the visual or audio quality of the recordings. Nor did either party distinctly contend that the obiter observations made by Vanstone J in Cronin were incorrect. The question whether there was a discretion of that kind (or merely a discretion to exclude evidence rendered inadmissible according to other principles such as those concerning hearsay, opinion or character evidence) was, however, briefly canvassed in oral submissions at the hearing, and may have some indirect bearing on the extent to which the sub-optimal quality of the visual or audio component of a recording can deprive it of the character of an ‘audio visual record’. 72 The Western Australian Court of Appeal was recently confronted with similar issues in Hayward v The State of Western Australia (‘Hayward’).45 Hayward involved a recorded interview in which the complainant (‘S’) ducked underneath and behind the table that she and the interviewer had been sitting at. Very occasionally, and for very short periods of time, S could be seen emerging from underneath the table such that the whole of her face was briefly visible. The appellant contended that the recording was wrongly admitted as a visual recording pursuant to s 106HB of the Evidence Act 1906 (WA). 73 Section 106HB(1) provided that a visually recorded interview may be admitted as the whole or part of the evidence in chief of a witness. Section 106HB(2) provided that such an interview was not to be admitted unless a transcript and a reasonable opportunity to view the interview had been given to the 44 (2018) 131 SASR 111 at [4]. 45 [2025] WASCA 35. -- 18 of 26 -- [2026] SASCA 76 The Court 17 accused. Section 106HB(5)(a) contemplated that parts of the interview could be excised. An earlier provision, s 106HA(1), had the effect that a visually recorded interview was a ‘visual recording of an interview with a child’ conducted in accordance with various prescribed requirements. 74 For Mazza and Vandongen JJA, the recording was plainly a visually recorded interview for the purposes of the legislative provisions even though S was not visible for much of the recording. The recording showed S being asked a series of questions and responding with information relevant to the issues at trial. It followed that the interview that was had with S was visually recorded. The fact that S was hidden from view for nearly all of the interview did not detract from that conclusion.46 75 Notwithstanding that view, having regard to the word ‘may’ in s 106HB(1), and supported by other matters of text and context (including an interpretive presumption equivalent to s 11(1) of the Legislation Interpretation Act 2021 (SA)), they considered that there was a statutorily conferred discretion whether to admit the visually recorded interview. This construction was considered to be consistent with the object of the legislation and the responsibility of a trial judge to regulate the conduct of a proceeding for an offence, and to ensure a fair trial according to law.47 Having regard to all of the relevant circumstances, their Honours considered it was not possible for the jury to make an adequate assessment of the credibility and reliability of S's evidence. In those circumstances, the only reasonable exercise of the discretion would have been to refuse to admit the recording as the whole or part of S’s evidence in chief.48 76 Hall JA agreed that s 106HB(1) conferred a discretionary power upon the court. However, he considered that whilst the fact that S was not visible for most of the interview was a relevant consideration, it did not compel the conclusion that the recording must not be admitted. Whilst that circumstance was undesirable, he did not consider the only reasonable exercise of the discretion to be to decline to admit the recording and would have dismissed the appeal. In doing so he observed that the significance of facial expressions in assessing whether a witness is telling the truth can be overstated, particularly where the witness is a child. He considered an adequate assessment of the credibility and reliability of S could be made by the jury notwithstanding the fact she could not be seen during most of the interview. His reasons for so concluding included but were not limited to the fact that S’s voice and manner of speaking were clearly audible throughout the hearing, and that there had also been a pre-recorded hearing at which S confirmed the truthfulness of the allegations in the interview and in which she could be clearly seen.49 46 [2025] WASCA 35 at [314]. 47 [2025] WASCA 35 at [334], [339]. 48 [2025] WASCA 35 at [370]. 49 [2025] WASCA 35 at [494]-[495]. -- 19 of 26 -- [2026] SASCA 76 The Court 18 77 There are relevant textual differences between the provisions considered in Hayward and s 13BA of the Evidence Act 1929 (SA). What may be tendered under the Western Australian provisions is a visual recording of an interview involving a child. It is hard to argue with the proposition that there was a visual recording of the interview conducted with S. The unusual fact was that during the interview, S hid under the table. But the interview, such as it was, was visually recorded. Section 13BA contemplates an audio visual record of the evidence of a witness. Whilst it is true that in the present case, this also entailed compliance with the requirement in s 74EB of the Summary Offences Act 1953 (SA) that there be an audio visual recording of the interview, the text of s 13BA provides support for the requirement, recognised by all members of the Court in Cronin, that what is tendered comprise both a visual depiction and audio reproduction of the witness saying that which is to comprise their evidence. That is because the recording must be an audio visual record of the witness’ evidence. 78 It may also be accepted that there must be some minimum requirement both in relation to the quality of what can be seen and what can be heard. Merely to be able to verify that the recording shows the face of and the voice of the witness (and not someone else) would not be enough to establish that there is an audio visual record of their evidence. That is no doubt what Vanstone J was alluding to when she observed that if the tribunal is not to have the benefit of the witness giving evidence in the courtroom, it would be expected that what is seen in the recording has ‘some of the important features of evidence given in person’.50 79 However, in our respectful view, the minimum requirements ought not be understood as overly demanding, and it is certainly not the case that if the visual or audio quality of the recording is in any respect inferior to the ‘live’ experience of evidence given in court, the recording does not qualify as an ‘audio visual record’. It may not be possible, and is not here necessary, to reduce the minimum requirements to a verbal formula. 80 That is because, in contrast both to Cronin and Hayward, this is not a case where the complainants were obscured from view throughout or for material parts of the recording. Indeed, most of their faces can be seen for most of the interviews. It may be accepted that by reason of the distance between the camera and the complainants (and the relatively wide angle that results), it was not possible to study the complainants’ facial expressions in quite the way that would be possible if the complainants were located a few metres away from the trier of fact, in a conventional courtroom arrangement. However, the assessment of demeanour is not confined to a study of facial expressions in close or vivid detail. It is also informed by the speed or manner of delivery, tone of voice, body language and general emotional presentation, all of which could be discerned, at least to a reasonable extent, from the recordings. It is also relevant to note that both AC and LF were only six years old at the time of their respective interviews. The benefit that might have been derived from a higher resolution image in the case of young 50 (2018) 131 SASR 111 at [21]. -- 20 of 26 -- [2026] SASCA 76 The Court 19 complainants, occupied as they were for some of the interviews in colouring in, is relatively limited. 81 During the course of oral submissions in relation to AC,51 and in a supplementary written note filed after the hearing in relation to LF,52 the appellant identified passages of each interview which were said to be of particular potential forensic significance and where the difficulty for the trier of fact to observe the facial expressions of each witness with a high degree of clarity was therefore of particular concern. These passages comprised instances of the complainants giving direct evidence about the alleged offending, demonstrating an aspect of their evidence about the offending, expressing uncertainty or doubt about a particular aspect of their evidence, or being asked to reflect on the truth of the conduct attributed to the appellant. 82 It may be accepted that these parts of the witnesses’ accounts might have been of particular interest to a trier of fact. However, the fact remains that what could be seen and heard was adequate, even if not ideal, for the task committed to the trial judge. 83 Turning to any difficulties in hearing everything said by the complainants, the assessment whether the recording qualifies as an audio visual record of the witness’ evidence must necessarily be made on a case-by-case basis, having regard to the frequency and duration of the inaudibility and the extent to which any inaudible passages may be inferred to comprise material aspects of the witness’ evidence concerning the facts in issue. 84 Understood in the broader context of the evidence given in each interview, and having regard to the brevity and small number of occasions where the inaudible word or passage related to an issue at trial, it cannot be said that any difficulties in discerning what was said materially affected AC or LF’s account of the alleged offending, such that the recordings could not be characterised as audio records of those witnesses’ evidence. 85 In our view, both recorded interviews answered the description of an audio visual record of the witnesses’ evidence. Indeed even if, contrary to the obiter observations in Cronin, there is a separate discretion whether to admit the recordings, of the kind described in Hayward, it would have warranted admission of the recordings in this case. That is because, in all the circumstances, and bearing in mind that the appellant was permitted to cross-examine the complainants at trial, the recordings permitted an adequate assessment of the reliability and credibility of the witness’ evidence, and the reception of the recordings did not compromise the fairness of the appellant’s trial. In making that assessment it should not be overlooked that even when a witness gives evidence in the conventional way, a 51 VDP1 (Interview with AC) at 12:15-14:07 (MFI-VDP1A items 51-59). 52 VDP1 (Interview with LF) at 6:45-7:20 (MFI-VDP1B items 38-43), 19:10-20:00 (MFI-VDP1B items 126-129), 24:29-26:20 (MFI-VDP1B items 162-174), 30:42-31:11 (MFI-VDP1B items 205-207), 48:10-48:43 (MFI-VDP1B items 303-307). -- 21 of 26 -- [2026] SASCA 76 The Court 20 trier of fact may for one reason or another not perceive every nuance of a witness’ presentation whilst answering a question, or may have difficulty hearing or giving meaning to every utterance of a witness. 86 Notwithstanding the conclusion that the quality of the recording did not require its exclusion, it is plainly desirable that consideration be given to improving the quality of audio visual recordings of prescribed interviews so that, as was the case for LH, a larger and clearer image of an interviewee’s face is available for consideration by the trier of fact. Compliance with the regulations 87 In relation to the interview of LF, the thrust of the appellant’s submission is that there were occasions where LF expressed a proposition with a degree of uncertainty, but the interviewer responded in a way that removed the tentativeness of the answer. He contends that this had the effect of converting the interviewer’s response to a leading question. 88 The trial judge considered that whilst limited aspects of the questioning identified by the appellant left something to be desired, there was nothing in the evidence of LF that indicated that she had acceded to any misrepresentation or suggestion made by the interviewer.53 Accepting that some of the issues raised may be relevant to an assessment of the reliability of LF, he did not consider that the interviewer’s responses went so far as to constitute improper leading questions so as to justify the conclusion that reg 23(7)(a) was not complied with.54 89 As to the interview with AC, the appellant complains that AC did not appear to understand that she must tell the truth because when asked by the interviewer ‘will you tell me the truth?’, AC gave only a slight nod of her head and did not provide an audible verbal response. Recognising that what is required by reg 23(7)(b) is less stringent than what is required by s 9 of the Evidence Act 1929 (SA), which had no direct application to the admission of the evidence,55 the trial judge concluded that AC’s nod of assent was sufficient and that, in any event, the provision of an undertaking to tell the truth was not strictly prescribed by regulation.56 90 The appellant has not identified any error in the approach taken by the trial judge to either issue. The conclusions reached by the trial judge were supported by the evidence. In our view, both interviews were compliant with the relevant regulation. There is therefore no need to consider whether, had that not been the case, it was in the interests of justice to admit the recordings pursuant to s 74EC(1)(b) of the Summary Offences Act 1953 (SA). 53 Reasons [45]-[46]. 54 Reasons [51]. 55 See, eg, R v Sparks [2017] SASCFC 171 at [41] (Blue J, Kourakis CJ and Hinton J agreeing), R v P, G (2019) 133 SASR 157 at [31] (Blue J, Kelly and Lovell JJ agreeing). 56 Reasons [33]. -- 22 of 26 -- [2026] SASCA 76 The Court 21 91 Grounds 4 and 6 therefore fail. Grounds 11.2 and 11.5: inadequate reasoning 92 The appellant pursues only two aspects of an initially wider complaint of inadequate reasons. Satisfaction of the requirement in s 13BA(3)(b)(i) 93 The first complaint is that the Reasons do not expose, or adequately expose, the basis upon which the judge was satisfied as to the capacity of the complainants to give sworn or unsworn evidence at the time the recording was made, as required by s 13BA(3)(b)(i) of the Evidence Act 1929 (SA). 94 In order for the complainants to have had the capacity to give unsworn evidence, it was necessary that they understood the difference between the truth and a lie.57 Before a witness can give unsworn evidence, the judge must tell the person it is important to tell the truth and the person must indicate that he or she will tell the truth.58 95 Before the judge, the appellant’s trial counsel advanced submissions on this topic in relation to the prescribed interview of AC only. It was made clear that it was not submitted that AC did not understand the difference between the truth and a lie.59 The submission was that it was also necessary to be satisfied that AC had undertaken to tell the truth but that AC had not clearly done so.60 96 In the course of argument, the judge had been taken to a point in the video recording, after the discussion of the difference between the truth and a lie, when the interviewer said ‘so when we are talking it is important that you tell me the truth so that means we only talk about things that have really happened’, before asking: ‘will you tell me the truth?’ As has earlier been noted in the context of grounds 4 and 6, at this point AC did not respond in words, but the prosecutor submitted that AC could be seen to nod. The appellant’s counsel accepted that an inclination of the head could be observed. 97 In the course of dealing with submissions about compliance with the Summary Offences Regulations 2016 (SA), the judge said: [33] I ruled that the ambiguity of the undertaking did not render the interview inadmissible. In my view AC’s nod of assent was sufficient, but in any event the undertaking is not prescribed. 98 In context, this conveyed the judge’s conclusion that reg 23(7)(b) did not require the witness to have undertaken to tell the truth, but that the judge accepted 57 Evidence Act 1929 (SA), s 9(2)(a)(i). 58 Evidence Act 1929 (SA), ss 9(2)(a)(ii) and 9(2)(b). 59 Transcript, p 39.12. That concession was appropriate, because the interview contained questions and answers that demonstrated AC’s understanding. 60 Transcript, p 39.16-18. -- 23 of 26 -- [2026] SASCA 76 The Court 22 that by nodding in answer to the interviewer’s question, AC had in fact given such an undertaking. Her ‘nod of assent was sufficient’. Having watched the interview, we agree with the judge’s assessment that AC nodded to indicate agreement. 99 The focus of ground 11.2 is paragraph [53] of the Reasons, in which the judge recorded his satisfaction as to the matters required by s 13BA(3), but did not elaborate. The appellant submits that this was insufficient. However, the adequacy of reasons on a matter invites consideration of whether and to what extent it was in issue and whether the basis upon which the judge proceeded is tolerably clear. 100 Given that, in the course of argument, the appellant’s counsel had indicated it was not in dispute that AC understood the difference between the truth and a lie, and given that the judge ruled, at the commencement of each complainant’s evidence, that they give unsworn evidence,61 it is apparent that the basis for the judge’s satisfaction as expressed in paragraph [53] of the Reasons is that each witness understood the difference between the truth and a lie and, if and to the extent required, they had each indicated their preparedness to tell the truth in the interviews. Aside from the limited contest respecting AC’s nod, there was no controversy about these issues at trial. In those circumstances, there is no merit in the complaint as to the brevity of the reasons. Conduct so brazen as to be implausible 101 The appellant submits that it was a central theme of his case that the offending alleged by LH is improbably brazen.62 He submits that the judge failed to grapple with what was a significant rather than peripheral issue. 102 An aspect of the reason why the appellant submitted the account given by LH was so brazen as to be unlikely was that LH described touching (inside her clothes) in the classroom for 10-15 minutes. The judge was well aware of the submission, having recited it directly.63 Ultimately, the judge accepted the submission that reliance could not be placed on her evidence that the appellant touched her for 10 to 15 minutes, but the judge observed that unreliability as to timing was common to child witnesses and did not, of itself, tell against LH’s credit.64 Whilst that finding qualifies the extent to which the account might be described as improbably brazen, it remains that what was being attributed by each of the complainants to the appellant could be described as brazen. 103 The appellant does not submit that the verdicts were unreasonable on this basis (or at all). In our view he was right not to do so. Given the relationship of authority and confidence that often exists between a teacher and a young student, 61 The basis for this is explained by the judge at Reasons [277]. He assumed, by reason of their ages, that they would not have a sufficient understanding of the sanction of an oath or affidavit. 62 Ground 11.5 cross-refers to a submission made in respect of LH alone. In written submissions this ground appears to have been extended to the allegations of offending against LF. 63 Reasons [232]-[233]. 64 Reasons [350]. -- 24 of 26 -- [2026] SASCA 76 The Court 23 the improbability that a teacher would run the risk of engaging in conduct of the kind described here cannot itself give rise to an ineradicable doubt. The teacher may be confident that the conduct will not be reported, may believe that the conduct can plausibly be denied, or in some, perhaps rare, cases, may be so motivated to engage in it that they disregard the risk in question. 104 The appellant’s complaint is with the adequacy of the judge’s reasons for finding that the offending occurred notwithstanding that the offending involved a risk of detection such as to make it seem unlikely that a person would engage in it. 105 In our view, the judge’s reasons for those findings are clear enough when read as a whole, namely: • the judge considered each of the complainants to be credible and generally reliable.65 In the case of AC, the DNA evidence provided some support for her evidence;66 • the judge considered that the similarities in the accounts were such that it was unlikely they were each independently lying or mistaken;67 • the judge excluded the possibility of contamination or collusion;68 and • the judge found that the combined evidence established a propensity to sexually touch young female students in his class, and that the propensity was strongly probative of a tendency to act on a sexual interest in young female students.69 106 A judge faced with a submission that conduct is so brazen as to be improbable is not required to provide reasons distinctly explaining why that was not so. That would elevate an obligation to give reasons for the resolution of a dispositive or important issue to an obligation to give reasons for accepting or rejecting considerations that may bear on, but not ultimately demand a particular resolution of, such an issue. The judge’s reasons were required to explain why he was persuaded beyond reasonable doubt that, however probable or improbable conduct of the kind alleged might seem in prospect, it actually occurred. It was not necessary for the judge then to make a finding that rationalised or explained why, on the judge’s findings, the appellant was or would have been prepared to engage in such a risk, or to reason that the conduct was not in fact improbable. In our view, this ground fails. 65 Reasons [323], [332], [344]. 66 Reasons [331]. 67 Reasons [353]. 68 Reasons [247]-[276], [355]. 69 Reasons [357]-[360]. -- 25 of 26 -- [2026] SASCA 76 The Court 24 Disposition 107 To the extent necessary, permission to appeal should be granted, but the appeal should be dismissed. -- 26 of 26 --