SANDERSON (A PSEUDONYM) v THE KING [2026] SASCA 1

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE BARNETT) DCCRM-24-032076 Appellant: SANDERSON (A PSEUDONYM) Counsel: MR A TOKLEY KC AND MR C HAEBICH - Solicitor: COATES LAWYERS Respondent: THE KING Counsel: MR M HINTON KC AND MS A O’SULLIVAN - Solicitor: THE DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 12/12/2025 File No/s: SCCRM-25-033499 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. SANDERSON (A PSEUDONYM) v THE KING [2026] SASCA 1 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley) 29 January 2026 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION Appeal against conviction. Following a trial by jury, the applicant was found guilty of aggravated indecent assault contrary to s 56(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The complainant gave evidence that the applicant entered her bedroom while she was on her bed, lay with her on the bed, and touched her left breast. The applicant appeals on five grounds. Grounds 1 to 4 allege a miscarriage of justice on the basis that the trial judge: 1. failed to direct the jury as to forensic disadvantage (Ground 1); 2. failed to adequately direct the jury as to the inconsistencies in the prosecution case (Ground 2); 3. misstated an aspect of the complainant’s evidence (Ground 3); and -- 1 of 14 -- 4. replayed the complainant’s recorded interviews and gave the jury a copy of the transcript of her evidence, without reminding the jury of the mother’s evidence and the issues it raised (Ground 4). Ground 5 involves a complaint that the verdict was unreasonable by reason of the inconsistencies in the complainant’s evidence and between her and her mother’s evidence. Held, per the Court, granting permission to appeal, but dismissing the appeal: 1. The judge’s failure to direct the jury as to forensic disadvantage was not productive of a miscarriage of justice in circumstances where, despite being formally particularised by reference to an 18-month period, the complainant’s evidence was that the offending occurred while she was in primary school, and hence in 2022 (at [38]). 2. The inconsistencies in the complainant’s evidence and as between her mother’s evidence were adequately addressed in the judge’s summing up (at [46]). 3. The misstatement of the complainant’s evidence that she was underneath the covers of her bed at the time of the offending was immaterial in the forensic context of the trial (at [55]). 4. No miscarriage of justice was occasioned by reason of the trial judge replaying the complainant’s recorded evidence and providing the jury with the transcript of her oral evidence (at [59]). 5. The complainant’s evidence provided an adequate basis for the jury to conclude beyond reasonable doubt that the appellant committed the charged offending (at [67]). Criminal Law Consolidation Act 1935 (SA) s 56(1)(b); Evidence Act 1929 (SA) s 13BA(3)(b), s 34CB, referred to. Arizabaleta v The King [2023] NSWCCA 217; Brawn v The King (2025) 99 ALJR 872; Brown (a pseudonym) v The King [2025] SASCA 40; Dansie v The Queen (2022) 274 CLR 651; Driscoll v The Queen (1977) 137 CLR 517; Heathcote v The King (2023) 143 SASR 176; Longman v The Queen (1989) 168 CLR 79; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v Cassebohm (2011) 109 SASR 465; R v DRG (2004) 150 A Crim R 496; R v Rippey [2022] SASCA 141; R v T,S (2017) 128 SASR 66; Reed v The Queen [2006] NSWCCA 314; Simic v The Queen (1980) 144 CLR 319; SS v The King [2024] NSWCCA 128; Tran v The King [2024] SASCA 27, considered. -- 2 of 14 -- SANDERSON (A PSEUDONYM) v THE KING [2026] SASCA 1 Court of Appeal – Criminal: S Doyle, Bleby and Stanley JJA 1 THE COURT: Following a trial by jury, the appellant was convicted of one count of aggravated indecent assault, contrary to s 56(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The offence was aggravated by reason that the victim of the appellant’s offending was his step-daughter. 2 The offending involved a single incident which occurred one night when the complainant was on her bed watching television. The appellant lay next to her, placing his head on her breast. He moved his hand under her shirt and bra, and touched her breast. The complainant disclosed the incident to her mother the following day. 3 The appellant seeks permission to appeal on five grounds. Grounds 1 to 4 involve complaints of a miscarriage of justice by reason of: • the judge’s failure to direct the jury in relation to the forensic disadvantage to the appellant arising from the lack of specificity as to the date of the offending (Ground 1); • the judge’s failure to adequately direct the jury in relation to the inconsistencies in the complainant’s evidence as to the timing and nature of the offending, and in the complaint evidence (Ground 2); • the judge’s misstatement of the complainant’s evidence, suggesting that she said she was on top of the bed covers when her evidence was that she was under the covers (Ground 3); and • the judge’s decision to replay the complainant’s recorded evidence for the jury, and to provide them with the transcript of her oral evidence, without providing the jury with the transcript of TS’s evidence or otherwise reminding the jury of the existence of this evidence and its inconsistency with the complainant’s evidence (Ground 4). 4 Ground 5 involves a complaint that the jury’s verdict was unreasonable by reason of the inconsistencies in the complainant’s evidence as to the timing and nature of the offending, and between the evidence of the complainant and her mother in relation to her complaint. 5 For the reasons which follow, we would grant permission to appeal, but dismiss the appeal. Background 6 The complainant was born on 24 June 2010. Her mother, TS, separated from her biological father when she was about two years of age. When the complainant -- 3 of 14 -- [2026] SASCA 1 The Court 2 was about three years of age, TS commenced a relationship with the appellant. TS and the appellant had two children together. 7 TS, the complainant, and her two younger brothers, lived with the appellant at their home in Whyalla Norrie. The complainant attended Memorial Oval Primary School until she completed year six at the end of 2022. She commenced year seven at Whyalla Secondary College in 2023. 8 The trial took two days, with the prosecution case consisting of two witnesses (the complainant and her mother, TS) and a set of agreed facts. The complainant’s evidence 9 The complainant participated in two prescribed interviews, on 29 September 2023 (‘the first interview’) and 26 March 2024 (‘the second interview’). She was 13 years of age at the time of these interviews, and in years seven and eight respectively of her schooling. 10 Audio-visual recordings of these interviews were admitted, without objection, as part of the complainant’s evidence in chief.1 The jury were given transcripts of the interviews to assist them while viewing the recordings. However, the transcripts were not received as exhibits; they were merely marked for identification, and retrieved from the jury at the conclusion of the prescribed interviews. 11 The complainant also gave sworn evidence. 12 Given the issues raised by the appellant’s grounds of appeal, and the focus upon the inconsistencies in the complainant’s evidence, it is appropriate to summarise the pertinent aspects of the complainant’s two interviews and sworn evidence. The first interview 13 The complainant described an incident that she said had occurred a ‘few weeks or months ago’. The appellant, smelling of alcohol, entered her bedroom at night while she was sitting on her bed watching television. After talking about something which she could not recall, the appellant lay down with his head on her breast. He began ‘tickling besides [her] stomach’, and then ‘slid his hand under [her] shirt and [her] bra’. He touched her breast on the left side, and was ‘moving his hands around’. He was ‘telling [her] stuff’ as he did so, but she could not recall what he said. The incident lasted for about ‘five minutes or a bit longer’, and ended with the appellant hugging her, getting up from her bed, and saying ‘something like’ that he loved her. 14 The complainant said that she spoke to her mother about the incident ‘the next day’. She told her mother that the appellant was ‘touching’ her, and her 1 Pursuant to s 13BA(3)(b) of the Evidence Act 1929 (SA). -- 4 of 14 -- [2026] SASCA 1 The Court 3 mother told her that ‘if he does it again [she] can tell him to fuck off’. The complainant said that she ‘didn’t really talk about it much after cause [she] felt uncomfortable about talking and thinking about it’. The second interview 15 In her second interview, the complainant commenced her reference to the incident by stating that she told her mum about it the next day, when she was getting dropped off at school with her brothers. Later in the interview she said that she was in primary school at the time she told her mum; that she was in year six. When she was reminded that she had said in her first interview that it had occurred a ‘few weeks or months ago’, and was asked whether she had thought more about when the incident occurred, the complainant responded that she ‘didn’t really think about it’. 16 The complainant was not asked anything further about the incident itself. However, when asked to elaborate upon her complaint to her mother, she said that she spoke to her mother once her brothers had left the car. She told her mother ‘what happened’; later adding that she told her mother that she was lying in her bedroom watching television when the appellant ‘came into [her] room and started touching [her] and laid his head on [her] breasts’; that he was ‘like moving his hands around’. 17 The complainant also said that she told her mother that ‘it was probably just teasing because he was drunk and I didn’t really think much about it’. But when she got to high school, she ‘started thinking about it a lot’. When asked what her mother said in response to her complaint, she said that she ‘didn’t really remember’ but that she thought that ‘she only didn’t really seem to mind it cause she wasn’t thinking about it much’. Sworn evidence 18 The complainant also gave sworn evidence at trial. She was 15 years of age at the time, and in year nine. 19 The complainant gave evidence that on the night of the incident she was sitting on her bed, leaning against her pillows. She was under the covers. When the appellant first came into her room, he stood by the side of her bed. Then he lay on her bed. He was ‘sort of hanging off [her] bed’, with one leg on her bed and his other leg on the floor. He was on top of the covers and lying ‘partly on top of’ her, with his head just below her right breast. She was wearing a ‘slightly baggy’ red and dark brown shirt, a bra and underpants. She said that, after putting his hand under her shirt and bra, the appellant moved his hand ‘just a little bit’, ‘in a little circle’. She said that the appellant only touched her left breast. 20 As to the timing of the incident, when asked what year of school she was in, the complainant initially said that she did not remember. However, when reminded that she had said she told her mother about the incident when being dropped off at -- 5 of 14 -- [2026] SASCA 1 The Court 4 school, she said this was when she was in year six and being dropped at the primary school she attended until year six. 21 Under cross-examination, the complainant maintained that she told her mother about the incident when being dropped at her primary school, and hence in 2022, when she was in year six. She agreed that she was quite sure about this. The complainant was reminded that she had said in her initial interview, in September 2023, that the incident had occurred a ‘few weeks or months ago’. However, she maintained that the incident occurred when she was in primary school, and that she told her mother about it when she was being dropped at her primary school. She said that she had then put the incident out of her mind for a period of time, before starting to think about it more once she was attending high school. The mother’s evidence 22 The complainant’s mother, TS, gave evidence of a conversation she recalled having with her daughter. She said that her daughter ‘was in high school, I believe, so she would have been 13, maybe’. She said the conversation occurred at their home, in the kitchen. She thought it was daytime, and that only she and her daughter were around at the time. 23 TS said that her daughter told her that the appellant had gone into her room, that they were talking, and that he had started ‘poking her and had poked her boob’. She asked her daughter whether she had told him to stop, and her daughter said ‘no, because she thought he would yell at her’. She told her daughter that ‘if it happens again’, to let her know. 24 She said that her daughter did not tell her when the incident had occurred; that she seemed a bit hesitant to tell her; and that she had asked her daughter why she hadn’t said anything. 25 When cross-examined, TS agreed that, following this conversation with her daughter, she did not think much of the incident because she thought they were ‘just mucking around’. Other evidence 26 The only other evidence in the case was some facts agreed between the parties. 27 The appellant did not give evidence. Ground 1: forensic disadvantage 28 The appellant contends that the judge’s failure to direct the jury in relation to the forensic disadvantage to the appellant arising from the lack of specificity as to the date of the offending resulted in a miscarriage of justice. 29 The appellant was charged with offending which was originally particularised as having occurred between 1 January 2023 and 30 June 2023. At -- 6 of 14 -- [2026] SASCA 1 The Court 5 the commencement of the trial, the Information was amended without objection to allege offending between 1 January 2022 and 30 June 2023. In other words, the particulars of the offence were amended from a six month period when the complainant was in year seven of her schooling, to an 18 month period which included the last year of her primary schooling. This amendment was intended to address the shift in, or clarification of, the complainant’s version to the effect that the offending occurred when she was in primary school. 30 The appellant’s complaint is that, in circumstances where there was no dispute that he had the opportunity to offend in the manner alleged, the breadth of the particularised period, and the lack of specificity in the circumstances surrounding the complainant’s allegation more generally, meant that he was left at a forensic disadvantage in attempting to meet the case against him. 31 In contending that a direction was required to avoid a miscarriage of justice, the appellant argues that whilst abolishing the requirement to give a Longman warning2 based on forensic disadvantage attributable to the passage of time, s 34CB of the Evidence 1929 (SA) leaves open the possibility that it may be appropriate for a trial judge to direct on particular circumstances that have resulted in a significant forensic disadvantage, including by reason of delay. As Doyle CJ explained in R v Cassebohm:3 I consider that s 34CB(1) must be read as abolishing a Longman warning in the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time. … … I conclude that s 34CB(1) abolishes the duty to warn a jury, along the lines indicated in Crampton, by reference to the adverse impact on the defendant’s ability to defend a charge, attributable to the passage of time. The duty to warn might have arisen solely from the passage of time or from that, in some cases, other particular circumstances of the case. The obligation arose only when the accused was at a forensic disadvantage attributable to passage of time. The abolition of that obligation leaves open the possibility that it may be appropriate for a trial judge to comment on particular circumstances, including delay. But a trial judge should not use this as a means of resurrecting the Longman warning in another form. It is also necessary to bear in mind that the abolition of the obligation to give a Longman warning does not abolish an obligation to give a warning to a jury which might result from circumstances, other than the passage of time, that give rise to a forensic disadvantage to the accused person. 32 Accepting that forensic disadvantage may arise from circumstances other than delay, the focus must be upon circumstances which relate to the accused’s ability to adequately marshal and present his defence, and to test the prosecution case.4 Further, the circumstances relied upon, and the directions to be given, must be anchored in the specifics of the particular case. It is not enough to identify, or 2 Longman v The Queen (1989) 168 CLR 79. 3 R v Cassebohm (2011) 109 SASR 465 at [24]-[28] (Doyle CJ, White and Peek JJ agreeing). 4 R v T, S (2017) 128 SASR 66 at [101], [106] (Hinton J). -- 7 of 14 -- [2026] SASCA 1 The Court 6 direct in terms of, general assertions or assumptions about delay or other difficulties confronted by the defence.5 Usually, it will be necessary to identify the type of evidence that might have existed, or steps that might have been taken, had the delay or other circumstances relied upon not occurred or existed. 33 It has been accepted that a lack of specificity in the prosecution allegations may give rise to a forensic disadvantage requiring direction from the trial judge. As Doyle CJ said in R v DRG:6 But although a warning that it was dangerous to convict on L’s evidence was not called for, it was necessary to bring home to the jury, quite clearly, the difficulty faced by the defence in a case like this in testing the allegations made against the accused. The generality of the evidence [given] in relation to the first three counts, and of the evidence of uncharged conduct, meant that it was very difficult to test that evidence. The problem lay not so much in the lapse of time, as in the fact that if the occasion could not be identified with reasonable precision, it became impossible to deny the existence of the opportunity to offend or the possibility of the offence having been committed at the time in question. As well, on the occasions that were identified with reasonable precision, the fact that DRG had the opportunity to commit the offences meant that there was nothing he could do other than deny having taken that opportunity. … The jury might not have appreciated the difficulty that the defence faced, and that is a reason why that difficulty needed to be brought home to them. It needed to be brought home clearly, and as based on the experience of the courts. I consider that the direction that the judge gave to the jury was not adequate in this respect. The passages that I have set out above, the only portions of the summing up that bear on the point, would not have brought home to the jury the difficulty that the defence faced in this respect. The jury might not have appreciated, in considering the fairly detailed evidence given by L, and the undeniable opportunity to offend, that there was not a great deal that DRG could provide by way of answer, and that this made it necessary to scrutinise the evidence of L with care, and, more importantly, to bear in mind the difficulty that the defence faced in testing her allegations. As it happened, in the course of his address to the jury the prosecutor referred to the considerable detail that L provided, and contrasted that with the evidence of DRG, saying that: The accused’s version of events, the bland simple denial ‘didn’t happen’, is a very easy story to make and a very easy one to maintain. … In short, the matters that needed to be brought to the jury’s attention more clearly was not the effect of delay on memories, and on the ability of the defence to test L’s evidence by checking it against surrounding circumstances and the evidence of other people. It was the disadvantageous position of the defence when opportunity to offend is admitted or proved, and the defence can do little to answer the detailed allegations other than simply deny that what is alleged did occur. 34 Although this case provides some support for the appellant’s argument, it is trite to observe that each case turns on its own facts. It appears to have been significant in R v DRG that the prosecution case involved multiple allegations of offending by the accused, with the prosecutor drawing an express contrast between 5 R v Cassebohm (2011) 109 SASR 465 at [30]-[32] (Doyle CJ, White and Peek JJ agreeing). 6 R v DRG (2004) 150 A Crim R 496 at [36]-[38] (Doyle CJ, Bleby and Gray JJ agreeing). -- 8 of 14 -- [2026] SASCA 1 The Court 7 the detail of the complainant’s evidence and the accused’s ‘bland simple denial’ that it ‘didn’t happen’. In the present case, there was only one allegation of offending, without the same explicit or implicit contrast between the specificity of the prosecution and defence cases. 35 Here, there was no suggestion of any significant forensic disadvantage associated with delay. Indeed, defence counsel accepted that he could not point to any ‘significant’ forensic disadvantage at all. Whilst he requested that the judge nevertheless direct the jury in terms that brought home to them the difficulty faced by the defendant in responding to, and defending, the case against him, we do not think the judge’s decision not to give any direction along these lines resulted in a miscarriage of justice. 36 The prosecution case involved an allegation of only one incident. Although formally particularised by reference to an 18 month period, the complainant’s evidence was ultimately to the effect that the incident occurred while she was in primary school, and so in 2022 rather than 2023. This degree of uncertainty about the timing of the incident was understandable, and not unusual. 37 We accept that there was an inherent difficulty in the appellant responding to the allegation, and that this was significant for him in circumstances where the evidence left ample opportunity for him to have offended in the way alleged. However, this would have been obvious to the jury. And defence counsel, in requesting that the judge nevertheless explain the difficulty to the jury, did not suggest any particular or specific prejudice beyond that which was inherent and obvious from the nature of the case. The evidence did not reveal, and defence counsel did not otherwise identify, any particular evidence or inquiry that could have been obtained or pursued had the allegation been more specific as to its timing or surrounding circumstances. As such, any direction or comment by the judge would necessarily have been very general in its terms. 38 In the circumstances, we are not persuaded that the judge’s failure to give any direction as to the forensic disadvantage faced by the appellant occasioned a miscarriage of justice. Ground 1 has not been made out. Ground 2: directions about inconsistences in the evidence 39 There were obvious inconsistences in the evidence given at trial. The most significant of the inconsistencies were as follows. 40 The first related to the timing of the incident. In her first interview, in September 2023, the complainant said it occurred a ‘few weeks or months ago’. On this version, the incident would have occurred during 2023 and so while the complainant was in high school. However, in her second interview, and in her sworn evidence, the complainant said that the incident occurred while she was in year six at primary school, and so during 2022. -- 9 of 14 -- [2026] SASCA 1 The Court 8 41 The second related to the nature of the offending. As summarised earlier, the complainant said in her first interview, that the appellant had touched her breast by sliding his hand under her shirt and bra, and then moving his hand around. During her sworn evidence, she described the incident in similar terms, but adding that he moved his hand ‘just a little bit’, ‘in a little circle’. However, when describing the terms of the complaint made to her, the complainant’s mother, TS, said that the appellant had ‘poked’ her breast, later adding that did she not think much of the incident, as described to her, because she thought they were ‘just mucking around’. 42 The third related to the circumstances of the complaint made by the complainant to her mother. On the complainant’s evidence, she told her mother when being dropped off at primary school one morning. On the mother’s evidence, the complainant spoke to her about the incident in the kitchen of their home, during the day and while the complainant was in high school. 43 The first of these inconsistencies was internal to the complainant’s evidence, noting that the statements made in her prescribed interviews formed part of her evidence in chief, and not merely statements admissible as prior inconsistent statements. The second and third inconsistences related to differences between the complainant’s evidence and the mother’s evidence of complaint. 44 The significance of these inconsistencies to the verdict reached is addressed in the context of Ground 5, and the appellant’s contention that the jury’s verdict was unreasonable. The complaint made under Ground 2 is that the judge failed to adequately direct the jury in relation to these inconsistencies. While accepting that the judge summarised the parties’ submissions in relation to these inconsistencies, the appellant contends that the judge ought to have directed further. In particular, he argues that the judge should have lent her imprimatur to the existence of the inconsistencies, and should have provided the jury with some assistance in their consideration of the significance of the inconsistencies. 45 In support of this argument, the appellant relied upon the following passage from the reasons of this Court in R v Rippey:7 The directions that should be given by a trial judge in relation to inconsistencies in the evidence of a prosecution witness, including a complainant, will depend very much upon the circumstances of the particular case, and what is necessary in those circumstances to ensure that the jury have an adequate appreciation of the inconsistencies relied upon, and their relevance to the jury’s task. In some cases it will be sufficient to refer in general terms to the alleged inconsistencies, and to their relevance to the jury’s task in assessing the reliability and credibility of the relevant witness. In other cases it may be necessary to go further and to identify the inconsistencies relied upon, and to provide the jury with assistance in their consideration of the potential significance of these matters to their assessment of the reliability and credibility of the witness’ evidence. It may be necessary 7 R v Rippey [2022] SASCA 141 at [76] (Livesey P, Doyle JA and Buss AJA). -- 10 of 14 -- [2026] SASCA 1 The Court 9 to do so in terms which go beyond merely summarising defence counsel’s address, and hence which carry the weight of the judge’s authority. 46 In our view, the directions given by the judge were adequate for the circumstances of the case. 47 In expanding upon our reasons for so concluding, it is noteworthy that the first of the inconsistences involved an inconsistency which was internal to the complainant’s evidence, rather than an inconsistency between the complainant’s evidence and a statement she had made outside of that evidence. Accordingly, there was no need for the judge to explain the nuanced reasoning that must be applied where a submission of inconsistency involves consideration of a statement which is not admissible for its truth.8 48 Each of the three inconsistencies relied upon by defence counsel were obvious, and were the subject of clear submissions by counsel, as summarised by the judge. Indeed, the existence and significance of these inconsistencies was the central issue in the case. Whilst this observation tends to underscore the importance of the inconsistencies, it also highlights the inevitability that the jury would have understood that they needed to consider the inconsistencies in assessing the complainant’s evidence and the prosecution case. There was no risk that the jury would have failed to understand that they were required to evaluate the alleged inconsistencies.9 49 Further, the simple and clear nature of the inconsistencies was such that, the competing submissions having been made and summarised, no further assistance was required. This was not a case where it was necessary for the judge to provide the jury with any further assistance in order to understand how the inconsistencies might affect their assessment of the complainant’s credibility and reliability. 50 The absence of any request by defence counsel at trial for further instruction in relation to the inconsistencies in the evidence tends to reinforce our conclusion that there was no miscarriage of justice. 51 Ground 2 has not been made out. Ground 3: misstatement of the complainant’s evidence 52 In her evidence, the complainant said that, at the time of the alleged offending, she was on her bed, leaning against her pillows, and that she was ‘under the covers’. However, when the judge was summarising the complainant’s evidence for the jury, she incorrectly suggested that the complainant had said she was ‘on top of the covers’. 53 The appellant argues that this misstatement of the evidence occasioned a miscarriage. He argues that the misstatement was to the appellant’s significant 8 Driscoll v The Queen (1977) 137 CLR 517 at 536 (Gibbs J). 9 Heathcote v The King (2023) 143 SASR 176 at [62] (Bleby JA, David JA and Buss AJA). -- 11 of 14 -- [2026] SASCA 1 The Court 10 disadvantage because it would have been more difficult for the incident to have occurred, as the complainant described it, if she was under the covers. On the complainant’s version, there might have been some logistical difficulty in the appellant’s hand reaching under the covers and then back up under the complainant’s clothing to reach her breast. 54 Although there is some superficial force in this submission, it tends to ignore the forensic context of the trial. Whether the complainant was under the covers, and whether this presented a logistical difficulty in the offending having occurred in the manner alleged, was not a matter of challenge at trial. It was not the subject of any cross-examination or submission. Indeed, as it was not a matter of forensic contest at trial, there was no consideration of what precisely the complainant meant by her reference to being ‘under the covers’. If she was only partially under the covers, for example, with some or all of her upper body above the covers, there would not have been any logistical difficulty in the offending having occurred in the manner alleged. 55 It is unfortunate that the judge slipped in her summary of the complainant’s evidence. However, the significance of a misstatement of the evidence may vary a great deal,10 depending upon the circumstances. In the circumstances of the forensic context in the present case, we do not think it can be said that the slip was of any material significance. We are not persuaded that the slip could realistically have affected the jury’s reasoning to guilt.11 56 Once again, we are reinforced in this conclusion by the failure of counsel to notice, or raise any complaint about, the judge’s misstatement of the evidence. This is consistent with it not being a matter of significance given the way the case was conducted. Ground 4: provision of material to the jury 57 The potential to replay the complainant’s audio-visual evidence having been raised by the judge, the jury requested that this occur. The judge acceded to this request, and also provided the jury with a copy of the transcript of the in-court evidence given by the complainant for them to consider during their deliberations.12 However, the judge did not give the jury a copy of the transcript of the evidence given by the complainant’s mother, or any instructions as to the use that might be made of the transcript which they were provided. 58 It is to be accepted that a trial judge must be astute to ensure and maintain an appropriate balance when replaying evidence, and when providing the jury with 10 Simic v The Queen (1980) 144 CLR 319 at 331-332 (the Court). 11 Brawn v The King (2025) 99 ALJR 872 at [10] (the Court). 12 The jury did not have access to the transcripts of the prescribed interviews during their deliberations; they were required to return the transcripts which had been marked for identification after watching the audio-visual recordings and before retiring to consider their verdict. -- 12 of 14 -- [2026] SASCA 1 The Court 11 excerpts from the trial transcript.13 Ideally, the judge in the present case ought to have accompanied the course she adopted with a brief reminder to the jury of the need to bear in mind both the entirety of the complainant’s evidence (that is, as given both in the audio-visually recorded interviews and in court), and also the mother’s evidence. 59 However, once again, the significance of the departure from this preferred course must be assessed in the forensic context of the individual trial. Given that the trial in this matter was so short in duration, with the only real issue being the significance of the inconsistencies within the complainant’s evidence, and between her evidence and that of her mother, we do not think it is realistic to think that the course adopted by the judge disturbed the balance of the trial or was otherwise realistically capable of affecting the jury’s reasoning to guilt. We do not consider that the course adopted by the judge, with which trial counsel acquiesced, occasioned any miscarriage of justice. Ground 5: unreasonable verdict 60 In contending that the verdict of guilty was unreasonable, the appellant relies upon the inconsistencies identified above in the context of our consideration of Ground 2; that is, the inconsistencies within the complainant’s evidence as to the timing and nature of the offending, and between the evidence of the complainant and her mother in relation to the circumstances and content of the complaint. 61 The principles governing consideration of this ground are not in dispute and do not need repetition. They are as set out in M v The Queen,14 and have been summarised in recent decisions of this Court such as Tran v The King,15 drawing upon the High Court’s articulation of the principles in cases such as Pell v The Queen16 and Dansie v The Queen.17 62 There is no issue with the sufficiency of the complainant’s evidence. Nor is there any issue as to the inherent plausibility of the alleged offending, or as to the opportunity for it to have occurred. There was no other ‘solid obstacle’ to the prosecution case. The only basis for contending that the verdict is unreasonable is the frailty of the complainant’s evidence by reason of the inconsistencies in her evidence, and between her evidence and that of her mother. 63 It may be accepted that the inconsistencies relied upon by the appellant were significant and required careful consideration. However, in the ultimate analysis, they were of a type which is not uncommon in cases of child complainants in sexual assault cases, and of a type capable of being resolved in favour of the complainant’s evidence nevertheless being credible and reliable in relation to the 13 Brown (a pseudonym) v The King [2025] SASCA 40 at [220]-[223] (Livesey P, S Doyle and Bleby JJA agreeing). 14 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). 15 Tran v The King [2024] SASCA 27 (Doyle JA, Bleby JA and McDonald AJA). 16 Pell v The Queen (2020) 268 CLR 123. 17 Dansie v The Queen (2022) 274 CLR 651. -- 13 of 14 -- [2026] SASCA 1 The Court 12 charged conduct. The inconsistencies, whilst stark, related primarily to matters of timing and surrounding circumstances rather than the offending itself. It is the experience of the courts that a victim of sexual offending, particularly a child victim, will often have difficulty accurately recalling matters of timing and other surrounding circumstances.18 This difficulty does not necessarily indicate any lack of credibility or reliability in relation to the alleged offending. 64 As to the inconsistency in the complainant’s evidence about the timing of the incident, and the complaint, the jury had the advantage of seeing the complainant clarify her evidence in the witness box, and withstand cross-examination on these issues. In our view, it was reasonably open to the jury to accept her clarification of these matters as credible and reliable. 65 The complainant was generally consistent in her description of the offending itself. She gave consistent descriptions of the appellant resting his head on her, and then placing his hand on her breast, and moving it in a circular motion. She also gave some additional details, such as the position in which the appellant was lying on her bed. 66 It is true that some of the complaint evidence might be taken as suggesting a less serious version of the offending. However, this variance in the evidence was a matter for the jury to assess. Given the consistency of the complainant’s evidence as to the offending, it was reasonably open to the jury to accept that evidence beyond reasonable doubt, despite the terms of the complaint evidence. 67 In our view, the complainant’s evidence provided an adequate basis for the jury to conclude beyond reasonable doubt that the appellant committed the charged offending. Any doubt arising from the inconsistencies in the evidence was reasonably capable of resolution in favour of the credibility and reliability of the complainant in relation to the charged conduct. It cannot be said that the jury, acting reasonably, must have entertained a reasonable doubt. 68 We dismiss this ground of appeal. Conclusion 69 For the reasons given, we grant permission to appeal, but dismiss the appeal. 18 SS v The King [2024] NSWCCA 128 at [162]-[165] (Adamson JA, Stern JA and Faulkner J agreeing); Arizabaleta v The King [2023] NSWCCA 217 at [210] (Rothman J); Reed v The Queen [2006] NSWCCA 314 at [64] (Spigelman CJ, McClellan CJ at CL and Sully J agreeing). -- 14 of 14 --