HEATH (A PSEUDONYM) v THE KING [2026] SASCA 6

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE KIMBER) DCCRM-20-1792 Appellant: HEATH (A PSEUDONYM) Counsel: MS J ABBEY KC WITH MR B ARMSTRONG - Solicitor: EVITTS LEGAL Respondent: THE KING Counsel: MR W SCOBIE WITH MS A HEDGER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/06/2025 File No/s: SCCRM-24-034499 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. HEATH (A PSEUDONYM) v THE KING [2026] SASCA 6 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice Bleby and the Honourable Justice David) 12 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE This is an appeal against conviction. Following a trial by judge alone, the appellant was convicted of various child sexual offences involving a course of interfamilial sexual abuse. He was charged with 13 offences involving nine different complainants, including his natural children and his stepdaughters. The alleged offending occurred between 1973 and 1989. -- 1 of 45 -- The appellant now appeals against five of his six convictions. The appellant complains that: - The trial Judge’s reasons or reasoning is deficient as to the issues of significant forensic disadvantage, contamination, and the interaction between the unchallenged evidence of non-sexual violence and the complainants’ reliability (Grounds 1, 5 and 6). - The trial Judge erred by finding that the appellant’s sexual interest in girls and a propensity to act upon that sexual interest, opportunistically and despite having a parental role in relation to a child, was strongly probative of Count 7 (Ground 2). - The trial Judge denied the appellant procedural fairness in respect of his reformulation of the appellant’s propensity, and its use, in relation to Count 7 (Ground 3). - The evidence of Doug Hallett was ‘glaringly improbable’, and the trial Judge’s acceptance and use of this evidence in proof of Count 7 was a material error (Ground 4). - The verdicts on Counts 1, 3, (an alternative verdict) 6, 7 and 9 were unreasonable or cannot be supported having regard to the evidence (Ground 7). Held, per the Court, granting permission to appeal on Grounds 1, 5 and 7, but dismissing the appeal: 1. As to Ground 1, the trial Judge gave clear directions as to the significant forensic disadvantage suffered by the appellant. This was taken into account when scrutinising the evidence of the complainants. The trial Judge’s reasons were not inadequate, nor was there any inadequacy of reasoning on the issue of significant forensic disadvantage. 2. As to Ground 2, the appellant’s propensity to engage in sexually predatory conduct with girls, as and when the opportunity presented itself, in order to obtain gratification, notwithstanding the risk of detection and that the appellant was, at least, the stepfather and sole male carer of the child, had significant probative value in the circumstances of this case. The trial Judge did not err by using the evidence of the appellant’s propensity, and inclination to act upon it, to reason to a guilty verdict on Count 7. 3. As to Ground 3, the trial Judge’s articulation of the appellant’s propensity did not result in procedural unfairness. This was not a case where the propensity articulated by the trial Judge was materially different from the propensity contended for by the prosecution. 4. As to Ground 4, there was no error by the trial Judge’s acceptance and treatment of Doug Hallett’s evidence. Indeed, the evidence was capable of providing significant support for JS’s account as to one of the alleged unlawful sexual acts on Count 7. 5. As to Ground 5, the trial Judge not only considered the evidence of collusion and innocent contamination in a general sense, but also explicitly brought this issue to bear upon his deliberations before reasoning to guilt on Counts 1, 6, 7 and 9. There was no inadequacy in the trial Judge’s reasons or reasoning process on the topic of collusion and innocent contamination. 6. As to Ground 6, the trial Judge’s reasons clearly identified and explained the permissible and impermissible uses of the evidence of the appellant’s non-sexual physical violence in the context of the issues in dispute. There was no inadequacy by the trial Judge in his reasons or reasoning process when considering the evidence of non-sexual violence. 7. As to Ground 7, it was open to the trial Judge to be satisfied beyond reasonable doubt of the appellant’s guilt on Counts 1, 3A, 6, 7 and 9. The verdicts are not unreasonable or not supported by the evidence. Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34CB, referred to. R v RNWH [2024] SADC 75, discussed. Brawn v The King (2025) 99 ALJR 872; Dansie v The Queen (2022) 274 CLR 651 ; Devries v Australian National Railways Commission (1993) 177 CLR 472 ; Director of Public Prosecutions of the State of Victoria v Benjamin Roder (a pseudonym) (2024) 281 CLR 18; DL v The Queen (2018) -- 2 of 45 -- 266 CLR 1 ; Eddy (a pseudonym) v The King [2024] SASCA 115; Fox v Percy (2003) 214 CLR 118; Hughes v The Queen (2017) 263 CLR 338; JGS v The Queen [2020] SASCFC 48; Lee v Lee (2019) 266 CLR 129; Lloyd v The King [2023] SASCA 106 ; M v The Queen (1994) 181 CLR 487; NMB v The Queen [2021] SASCA 105 ; Pell v The Queen (2020) 268 CLR 123; R v D, L [2015] SASCFC 24 ; R v Keyte (2000) 78 SASR 68 ; R v Rendell (2018) 131 SASR 201 ; R v Ricciardi (2017) 128 SASR 571 ; Simpson (a pseudonym) v The King [2024] SASCA 37; Sondhi v The King [2024] SASCA 7 ; TL v The King (2022) 275 CLR 83, considered. -- 3 of 45 -- -- 4 of 45 -- HEATH (A PSEUDONYM) v THE KING [2026] SASCA 6 Court of Appeal – Criminal: Livesey ACJ, Bleby and David JJA 1 THE COURT: Following a trial by judge alone, the appellant was convicted of various child sexual offences involving a course of interfamilial sexual abuse. He was charged with 13 offences involving nine different complainants, including his natural children and his stepdaughters. The alleged offending occurred between 1973 and 1989. 2 The appellant commenced a relationship with a woman (‘SW’) in 1973. She was the mother of eight of the complainants. The family lived in various locations in Victoria and country South Australia throughout the period of the alleged offending. 3 On the prosecution case, the appellant started sexually abusing the complainants shortly after he had moved in with SW and her children. The alleged sexual abuse occurred in the context of an alcohol-fuelled, violent home environment where physical abuse was regularly inflicted by the appellant on SW and all the complainants. The sexual abuse only ended for most complainants at the time they moved out of the family home. The trial Judge found the appellant guilty of six sexual offences in respect of six of the complainants. 4 The trial took place almost 50 years after the first alleged sexual incident. 5 The appellant now appeals against five of his six convictions. He does not challenge the conviction on Count 13 relating to his biological child, DA. The appellant complains that: • The trial Judge’s reasons or reasoning is deficient as to the issues of significant forensic disadvantage, contamination, and the interaction between the unchallenged evidence of non-sexual violence and the complainants’ reliability (Grounds 1, 5 and 6). • The trial Judge was in error in finding that the appellant’s sexual interest in girls and propensity to act upon that sexual interest, opportunistically and despite having a parental role in relation to a child, was strongly probative of the truth of the allegations of JS in relation to Count 7 (Ground 2). • The trial Judge denied the appellant procedural fairness in respect of his articulation of the appellant’s propensity, and its use in relation to Count 7 (Ground 3). • The evidence of Doug Hallett was ‘glaringly improbable’, and the trial Judge’s acceptance and use of this evidence in proof of Count 7 was a material error (Ground 4). -- 5 of 45 -- [2026] SASCA 6 The Court 2 • The verdicts on Counts 1, 3A, 6, 7 and 9 were unreasonable or cannot be supported by the evidence (Ground 7). 6 For the reasons that follow, we grant the appellant permission to appeal on Grounds 1, 5, and 7 but dismiss the appeal. The evidence at trial 7 The prosecution adduced evidence from nine complainants, being seven of the appellant’s stepchildren and two of his biological children. 8 The appellant met SW in the early 1970s and within months commenced a relationship with her. When they met, SW had seven daughters: (‘SDH’), (‘DG’), (‘LH’), (‘JH’), (‘JP’), (‘CB’) and (‘JS’). Her eighth daughter (‘MW’) was born in November 1973, after the appellant had moved in to live with SW. The appellant and SW then had two children together, being (‘RH’) and (‘SJH’). The complainants were DG, LH, JH, JP, CB, JS, MW and RH, as well as the appellant’s natural child from a previous relationship, (‘DA’), who lived with the family for two short periods of time. 9 The biological father of the first seven of SW’s daughters, and possibly MW, was (‘IW’). There was evidence given by DG and LH that their biological father had engaged in sexual abuse against them. IW committed suicide before MW was born in, or around, 1973. SW started a relationship with the appellant within six to 18 months after his death. 10 The family, including the appellant, moved from Elizabeth to country Victoria, then back to South Australia. They lived in various locations including Hoyleton, Kybunga, Hallett, Gum Creek and Farrell Flat. Ultimately, the family moved to Snowtown where they were living at the time the offending ended. 11 The central issue in dispute during the trial was whether the unlawful sexual acts, alleged by each of the complainants, in fact occurred. There was no dispute at trial, nor on this appeal, that the appellant was a harsh disciplinarian and was violent towards SW and the complainants at home. However, the detail and extent of his physical violence was the subject of dispute. 12 The prosecution case and the evidence given by each complainant in respect of each charged offence was broadly as follows: Count 1 – DG 13 The prosecution alleged that the appellant indecently assaulted DG at the family home in Kybunga on Christmas Eve, 1976. DG gave evidence that the appellant and SW had been drinking. The appellant complimented DG on a Christmas card she had written and said, ‘let a man kiss you’. The appellant then pushed her up against the wall, tried to kiss her and placed his hand on her knickers, pushing his fingers towards her vagina. -- 6 of 45 -- [2026] SASCA 6 The Court 3 14 The trial Judge found the appellant guilty of this offence. Count 2 – LH 15 The prosecution alleged that the appellant maintained an unlawful sexual relationship with LH. The complainant, LH, gave evidence that the appellant would enter her bedroom at night and place his fingers inside her vagina. She said the appellant did this on many occasions and that it occurred at every house they lived in. She said the offending commenced shortly after the appellant first moved in to live with her family. She said that she also recalled seeing him masturbating while standing at the doorway. 16 The trial Judge found the appellant not guilty of this offence. Counts 3 and 4 – JH 17 The appellant was charged with indecently assaulting JH in 1978 (Count 3). JH gave evidence that on the day after the birth of her brother, SJH, her mother was in the hospital. The appellant asked JH to make him a cup of tea. She did so and brought it to his bedroom. The appellant then told JH to shut the door and sit on the bed. JH said that the appellant placed his fingers in her knicker line, near her vagina, and then fondled her breast. The prosecution ultimately particularised the touching of her vagina as the alleged act of indecent assault. 18 The trial Judge found the appellant not guilty of indecent assault, but guilty of an alternative count of attempted indecent assault (Count 3A). 19 JH gave evidence that in the days following Count 3, the appellant was driving a car in which he and her siblings were passengers. JH said that the appellant reached around and grabbed her on the vagina (Count 4). 20 The trial Judge found the appellant not guilty of Count 4. Count 5 – JP 21 The prosecution alleged that the appellant indecently assaulted JP. The complainant, JP, gave evidence that she had gone to sleep intoxicated after her 16th birthday party, and she woke up to the appellant touching her on the vagina. JP said that the appellant then pulled his hand out and left the room. 22 The trial Judge found the appellant not guilty of this offence. Count 6 – CB 23 The prosecution alleged that the appellant maintained an unlawful sexual relationship with CB between the ages of five and 18. CB gave evidence that the appellant would come into her bedroom from the time she was five years old and that this continued to happen, around three or four nights a week, until she left home. She gave evidence that he would insert his fingers into her vagina, play with her breasts and on one occasion he licked her vagina. -- 7 of 45 -- [2026] SASCA 6 The Court 4 24 The trial Judge found the appellant guilty of this offence. Counts 7 and 8 – JS 25 The prosecution alleged that the appellant maintained an unlawful sexual relationship with JS between the ages of nine and 17 (Count 7). JS gave evidence that on the day after her ninth birthday, the appellant entered her bedroom and fondled her breasts, put his fingers around her vagina and licked her vagina. She gave evidence that there were also other occasions when he would try to touch her vagina or breasts and that he would sometimes succeed in doing so. 26 JS stated there were two occasions when the abuse was interrupted by her brother-in-law Doug Hallett (who was married to SDH). JS described one occasion of the appellant touching her breasts and waist, and another occasion when she woke to the appellant licking her vagina. She said Doug Hallett walked into the bedroom on both occasions. 27 Doug Hallett gave evidence that there was only one occasion when he interrupted the appellant performing a sexual act on JS, and on this occasion, he saw the appellant with his fingers inside JS’s vagina. 28 Count 8 was laid as an alternative to Count 7 and related to the one specific occasion when Doug Hallett said he discovered the appellant performing a sexual act upon JS. This alleged sexual incident is the subject of appeal Grounds 2, 3 and 4. 29 The trial Judge found the appellant guilty of Count 7 and returned no verdict on the alternative of Count 8. Count 9 – MW 30 The prosecution alleged that the appellant maintained an unlawful sexual relationship with MW from the ages of seven to 16. MW gave evidence that she recalled the appellant entering her room and touching her vagina under her pyjamas ‘more times than she could count’ and a couple of times per week. 31 MW gave evidence that when she was around 13 years old, the appellant performed oral sex on her. She said there was also an occasion when her mother, SW, caught the appellant touching her vagina. She described her mother grabbing him by the hair and pulling him out of the room. She said that the appellant continued to touch her in a sexual way after this occasion when he was interrupted by her mother. 32 The trial Judge found the appellant guilty of this offence. Counts 10, 11, and 12 – RH 33 The prosecution alleged that the appellant indecently assaulted RH on three separate occasions. RH gave evidence that the first occasion occurred when he was five or six years old, the second occasion when he was nine years old, and the third -- 8 of 45 -- [2026] SASCA 6 The Court 5 occasion when he was about 11 years old. RH said that on the first two occasions the appellant entered the bedroom and inserted his fingers into his anus. He said that on the third occasion, the appellant pulled down his pants and attempted to insert his fingers into his anus, but RH ran out of the room. 34 The trial Judge found the appellant not guilty of these counts. Count 13 – DA 35 The prosecution alleged that the appellant indecently assaulted his natural daughter, DA. DA gave evidence that she lived with the appellant and his family during two separate periods when she was aged around 11 or 12 years. She said that at some stage while she was living with the appellant, he placed his hand up her shirt and fondled her breast. 36 The trial Judge found the appellant guilty of this offence. 37 There is no challenge on appeal to this conviction. Other evidence 38 A retired police officer, Detective Geoffrey Carson, gave evidence about his involvement in the criminal investigation including the arrest of the appellant in 1998. He explained that by reason of the statutory time limitation on the prosecution of sexual offences,1 the allegations were unable to be prosecuted in the late 1990’s. In, or around, 2015, he was contacted by one or more of the complainants to see whether the investigation could be re-instated. 39 Detective Brevet Sergeant Tamara Day assumed conduct of the police investigation after Detective Carson retired in 2017. 40 There was also complaint evidence from a witness, Ms Kerri Franz, regarding CB (and Count 6). She said that she met CB when she was aged 18, and about a year later CB told her that CB’s stepfather would come into her bedroom at night and touch her. 41 As to the physical violence inflicted by the appellant on his stepchildren, Wayne Price and John Price gave evidence that they witnessed some of this violence. They were each romantically involved with one of the sisters and visited the family home to see their girlfriends during the relevant time. 1 Section 76A of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) imposed a statutory time limitation of three years on the prosecution of certain sexual offences. On 1 December 1985, s 76A was repealed. However, the result of that repeal was that sexual offences committed before 1 December 1982 (after the three-year time limit had lapsed) could not be prosecuted, as the repeal did not have retrospective effect. To address this issue, the Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Bill 2003 (SA) came into operation on 17 June 2003. Pursuant to the new amendment, ‘Any immunity from prosecution arising because of the time limit imposed by the former s 76A is abolished’. -- 9 of 45 -- [2026] SASCA 6 The Court 6 42 As to the alleged offending against JS (Counts 7 and 8), Doug Hallett gave evidence that he saw the appellant sexually touching JS on one occasion when he walked into a bedroom to check on his own children. His evidence was that he saw the appellant with his fingers inside JS’s vagina while she was in bed. He said that he immediately told SDH what he had seen. There was evidence that this alleged incident was brought to the attention of SW and the other complainants. The defence case 43 The appellant did not give evidence. 44 Defence counsel called evidence from SDH, who is the oldest of SW’s daughters. She said that she never saw the appellant do anything sexual to any member of the household nor did he commit any sexual offences against her. Contrary to the complainants’ evidence, she said there was, in effect, only a low level of violence engaged in by the appellant against other family members. The closing addresses 45 The prosecution case was that each complainant was a credible and reliable witness. It was submitted that various prior inconsistent statements, including the failure by some of the complainants to disclose sexual offending in their statements made to police in 1998, was cogently explained by each complainant, by reason, for example, of shame or intimidation. 46 In addition to the evidence of each complainant, the prosecution relied upon circumstantial evidence said to support each complainant’s evidence of the charged offending. This included the evidence of discreditable conduct relating to the appellant’s non-sexual violence, and his supply and excessive use of alcohol. The evidence of the appellant’s physical violence was adduced to show that he did not possess the instinct of care and protection which typically characterises a parental relationship, and to explain why the complainants submitted to the abuse. Similarly, the prosecution adduced evidence of the appellant’s use of alcohol as capable of explaining his disinhibition regarding the offending and his supply of alcohol to the complainants as contrary to ordinary human instinct to care for or protect a child. 47 The prosecution also relied on the complainants’ evidence as cross-admissible for ‘improbability’ reasoning, and as establishing the appellant had a sexual interest in children and a tendency to act on that interest opportunistically in the home environment, and notwithstanding a familial connection or high risk of detection. Ultimately, the trial Judge did not deploy improbability reasoning and only used his finding as to the appellant’s propensity and inclination to act upon it, in support of JS and Count 7. 48 In submitting that all charged offences were proved beyond reasonable doubt, the prosecutor emphasised the credibility and reliability of each complainant (notwithstanding the passage of time and the significant forensic disadvantage to -- 10 of 45 -- [2026] SASCA 6 The Court 7 the appellant). The prosecutor contended that each complainant’s account was supported by the evidence of the appellant’s propensity and, in relation to DA and Count 13, the fact that there was no opportunity for collusion or contamination. Further, as to Counts 7 and 8, the prosecution relied on Doug Hallett’s evidence as material support for JS’s evidence, and for Count 6, the complaint evidence of Kerri Franz. Defence submissions 49 Defence counsel submitted that the trial Judge could not be satisfied of the truthfulness or reliability of the complainants’ evidence. 50 In relation to the ‘real issue’ of the unreliability of the complainants, defence counsel relied on the numerous inconsistencies in their evidence, the reasonable possibility of contamination or innocent infection between complainants (except DA) and in relation to DG, LH and JH, the possibility of confusion with sexual offending committed by IW and possibly by another male. Defence counsel also raised the issue of the significant forensic disadvantage suffered by the appellant by reason of the lengthy delay in the charges proceeding to trial. 51 Defence counsel submitted that in the circumstances of this case, propensity reasoning and improbability reasoning could not ameliorate the shortcomings in the prosecution case. 52 As to the evidence of JS and Counts 7 and 8, defence counsel challenged the cogency of the evidence of Doug Hallett and emphasised the differences between his evidence and the evidence of JS, submitting that the trial Judge could not rely on either account. 53 Ultimately, it was the defence position that the prosecution had not proved its case on any charged offence. It was submitted that while propensity reasoning may be available, it did not in the circumstances of this case sufficiently resolve the doubts attending the reliability of each complainant’s evidence. -- 11 of 45 -- [2026] SASCA 6 The Court 8 54 As outlined earlier, the trial Judge reached and delivered the following verdicts: Count Offence Complainant Verdict 1 Indecent assault DG Guilty 2 Maintaining an unlawful sexual relationship (‘MUSR’) LH Not guilty 3 Indecent assault JH Not guilty 3A Attempted indecent assault JH Guilty 4 Indecent assault JH Not guilty 5 Indecent assault JP Not guilty 6 MUSR CB Guilty 7 MUSR JS Guilty 8 Indecent assault JS Not guilty 9 MUSR MW Guilty 10 Indecent assault RH Not guilty 11 Indecent assault RH Not guilty 12 Indecent assault RH Not guilty 13 Indecent assault DA Guilty The trial Judge’s reasons for verdicts 55 The trial Judge commenced his reasons with a summary and brief overview of the case. His Honour then turned to his general legal directions, and an overview of the appellant’s submissions before outlining the evidence. His Honour dealt with various topics of discreditable conduct including uncharged acts of non-sexual violence, the prevalence of alcohol within the household, as well as the opportunities for collusion or innocent contamination between the complainants. 56 The trial Judge then turned to consider the evidence as it related to each of the charged offences, commencing with an evaluation of DA’s evidence and Count 13. The case in respect of Count 13 was slightly different from the other charged offences as there was no suggestion of any collusion or innocent contamination between DA and the other complainants. His Honour then considered JS’s evidence and Counts 7 and 8, followed by DG’s evidence and Count 1, and MW’s evidence and Count 9. It is to be immediately observed that the case in respect of each of these counts was supported by other evidence. 57 At this point in the reasons, the trial Judge again considered the topics of propensity and improbability reasoning. Given the evidence of discussions between the complainants, his Honour did not rely on improbability reasoning. His Honour said:2 However, the evidence does not exclude that each complainant, other than DA, is aware of at least some of what is alleged of a sexual nature against [the appellant] by another 2 R v RNWH [2024] SADC 75 at [363] (Kimber DCJ). -- 12 of 45 -- [2026] SASCA 6 The Court 9 complainant(s). Further, I am already satisfied beyond a reasonable doubt that [the appellant] has the propensity I have identified. As a result, I intend to first consider the remaining counts without considering whether reliance on improbability reasoning is appropriate. As will be seen, I have only considered improbability reasoning in the case of some complainants and, for reasons to be given, have not ultimately engaged in that type of reasoning. 58 The trial Judge found as an intermediate fact that the appellant had a relevant propensity and an inclination to act on that propensity. 59 The trial Judge then proceeded to evaluate JS’s evidence and the evidence of Doug Hallett in relation to Count 7. His Honour then considered the evidence of CB and Count 6 (which also included the evidence of initial complaint). 60 The trial Judge then considered the evidence of the remaining complainants and all the charged offences for which he returned not guilty verdicts; namely, Count 2 (LH), Counts 3 and 4 (JH) – but returning a guilty verdict on the alternative charge of attempted indecent assault in respect of Count 3, Count 5 (JP) and finally counts 10-12 (RH). The appeal grounds 61 As summarised earlier, the appellant appeals his convictions on all counts (except Count 13) on the following grounds: 1. Having found that the appellant suffered a significant forensic disadvantage, the learned trial Judge erred by failing to take that disadvantage “into account” adequately in scrutinising the evidence and reasoning to guilt. 2. In reasoning to guilt on Count 7, the learned trial Judge erred in: a. Finding that the propensity he found established on the part of the appellant had strong probative value regarding the particular issues arising at trial on Count 7; and b. finding that the propensity he found established on the part of the appellant was capable of, or material to, overcoming the issues and deficits on the prosecution case (and to JS as a witness) at trial on Count 7; and c. reasoning that, if Count 8 was proved, that was a reason to find JS more reliable and credible as to her allegations on Count 7. 3. As to Count 7, the learned trial Judge erred by reformulating the nature of the discreditable propensity relied upon, and then relying upon that reformulation. 4. The learned trial Judge erred in his treatment of the evidence of Mr Doug Hallett by: a. his acceptance of the evidence as credible and reliable; and b. his use of the evidence. 5. The learned trial Judge erred in his treatment of the risk of contamination. -- 13 of 45 -- [2026] SASCA 6 The Court 10 Particulars Having found that it is not possible to exclude the possibility that each complainant (except DA) knew of at least some detail of what more than one other complainant (other than DA) had alleged before any statements were given to police, and that they had been exposed to opportunities for contamination over a “long period”, the learned trial Judge erred in failing to bring the reasonable possibility of contamination and its effects into account adequately in reasoning to guilt. 6. In identifying the uses to which evidence of the appellant’s acts of non-sexual violence might be put, the learned trial Judge erred in failing to consider adequately the potential effect of that history upon a witness' susceptibility to innocent contamination and upon the witnesses’ credibility and reliability of account of alleged sexual offending. 7. The verdicts of guilty are unsafe and unsatisfactory on account of inadequacy of evidence owing to: a. The effluxion of time between the alleged offending and the making of the allegations; b. the significant forensic disadvantage suffered by the appellant at trial; c. the spectre of innocent contamination in respect of all complainants (except DA) as between each other; d. the risk of innocent contamination in respect of some complainants as related to their recall about the acts of different alleged offenders; e. the circumstances in the family at the relevant time (including discreditable conduct of the appellant) serving to make complainants and witnesses more susceptible to contamination of recall and account; f. the idiosyncratic beliefs of some complainants about the action of memory over time, and the effect that such beliefs might have upon demeanour and presentation; g. the life events in the case of some complainants which impact upon their reliability of recall; h. the presence of factors affecting reliability and recall of complainants and witnesses at the relevant time such as alcohol consumption; and i. in the circumstances of this case, in respect of all counts except Count 8, the lack of any eye witness account where one might expect there to be one. Ground 1 – Significant forensic disadvantage 62 Under this ground of appeal, the appellant contends that the trial Judge erred by failing to adequately take into account the significant forensic disadvantage suffered by the appellant when scrutinising the evidence and reasoning to guilt on Counts 1, 3A, 6, 7 and 9. -- 14 of 45 -- [2026] SASCA 6 The Court 11 63 As the trial Judge was sitting without a jury, section 34CB of the Evidence Act 1929 (SA) (‘Evidence Act’) was not engaged. However, a trial judge sitting alone is obliged to deliver adequate reasons in reaching a verdict. As such, the relevant principles encapsulated by s 34CB may be applicable when evaluating the adequacy of the reasons of a trial judge sitting alone.3 64 However, when evaluating the appellant’s complaint under this ground of appeal, the trial Judge’s reasons and reasoning process must be considered as a whole. It is not appropriate to focus on specific aspects of the reasons, in a piecemeal fashion, and divorce them from the context of the arguments put at trial and the reasons read as a whole.4 Similarly, a trial Judge’s reasons for verdict are not to be read as a record of sequential steps in reasoning to a particular conclusion.5 65 The principles surrounding the adequacy of reasons have been considered and applied recently by the Court of Criminal Appeal,6 and the High Court.7 As Kiefel CJ, Keane and Edelman JJ observed in DL v The Queen:8 The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal. ... Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular: “Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and 3 JGS v The Queen [2020] SASCFC 48 at [143]–[160] (Lovell J, Peek and Bampton JJ agreeing). 4 NBM v The Queen [2021] SASCA 105 at [91], citing R v Ricciardi (2017) 128 SASR 571 at [25]. 5 Sondhi v The King [2024] SASCA 7 at [80], citing R v Rendell (2018) 131 SASR 201 at [79]. 6 See, for e.g. R v Keyte (2000) 78 SASR 68; JGS v The Queen [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; Simpson (a pseudonym) v The King [2024] SASCA 37. 7 DL v The Queen (2018) 266 CLR 1. 8 DL v The Queen (2018) 266 CLR 1 at [32]–[33]. -- 15 of 45 -- [2026] SASCA 6 The Court 12 why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.” (citations omitted) 66 To make good a complaint of inadequacy of reasons, an appellant must establish that the relevant issue is a significant factual or evidential dispute that was a necessary step to the ultimate verdict, rather than a peripheral or subsidiary one.9 Accordingly, the manner in which the defence case was conducted at trial, and the decisions taken by counsel, may be significant when evaluating the significance of the issue and a subsequent complaint of inadequacy of reasons. 67 The appellant contends that while the trial Judge ‘listed’ the ways in which the appellant had suffered a significant forensic disadvantage, he did not adequately identify or assess the relevance or significance of the disadvantages when considering particular issues, or when considering the ultimate question of whether the prosecution had proved each of the charged offences. The appellant contends that his Honour assessed the existence of the appellant’s forensic disadvantage in isolation from his consideration of the complainants’ evidence, resulting in an apparent quarantining of this issue. In effect, the appellant submits that his Honour confined his consideration to the possible forensic disadvantage suffered by the appellant rather than bringing it to account in his consideration of the evidence adduced in support of each of the charged counts. 68 As to the aligned complaint that there was inadequacy of reasoning, the appellant submits that the trial Judge’s failure to specifically advert to the issue of forensic disadvantage in respect of each of the charged counts means that it was genuinely overlooked in his reasoning to guilt. 69 More specifically, the appellant submits that the trial Judge did not adequately bring to account the fact that SW died in 2003. SW was married to and lived with the appellant throughout the alleged offending. There was evidence she was present, or spoken to about the following alleged sexual incidents including: • As to Count 1, DG gave evidence that SW had entered the room and interrupted the appellant sexually touching her. She also said that after the incident, SW discussed the alleged incident with DG and others. The appellant submits that when considering this count, at no point did the trial Judge explicitly mention the forensic disadvantage to the appellant by reason of SW’s unavailability at trial. • As to Count 6, CB gave evidence that she did not complain about the alleged offending to SW because of SW’s earlier comments to JS that she was mistaken. 9 Lloyd v The King [2023] SASCA 106 at [34]–[41]. -- 16 of 45 -- [2026] SASCA 6 The Court 13 • As to Counts 7 and 8, there was evidence from several of the complainants that SW was aware of Doug Hallett’s purported observations of the appellant touching JS’s vagina, and following this incident, SW was involved in discussions with the complainants. While the trial Judge accepted those conversations were a possible source of contamination between the siblings, it is the appellant’s submission that his Honour failed to adequately advert to the forensic disadvantage suffered by the appellant because of the unavailability of SW. • As to Count 9, MW gave evidence that SW had entered the bedroom during the alleged sexual incident and angrily pulled the appellant from the room. • Detective Carson gave evidence that he spoke with SW about the allegations in 1998. Yet, no statement was taken from SW. 70 In addition, the appellant submits that the trial Judge did not properly bring to account the forensic disadvantage suffered by the appellant due to the loss of Lifeline call records and police records. More specifically, his Honour did not advert to this forensic disadvantage in the context of JS’s explanation for failing to initially disclose the alleged offending to the police; namely, that when she earlier told a Lifeline operator of some form of abuse by the appellant, the operator advised her that they ‘did not take lightly to prank calls’ and hung up on her. 71 As mentioned earlier, the trial Judge outlined the forensic disadvantage to the appellant in a specific section of his reasons. His Honour said:10 Witnesses gave evidence about events alleged to have occurred sometimes as long as almost 50 years ago. The key events about which each complainant gave evidence are alleged to have occurred when they were children. The passage of time between the alleged events the subject of the offences, and the circumstances surrounding those alleged events, has resulted in significant forensic disadvantage to [the appellant]. I have taken that disadvantage into account in scrutinising the evidence. There is significant forensic disadvantage to [the appellant] in more than one way. The passage of time may have adversely impacted upon [the appellant’s] memory of relevant events and his ability to instruct his solicitor and counsel. It may have impacted upon his ability to test the evidence. Had the trial been closer to the events in question, [the appellant] may have been able to give evidence, or lead evidence from others, about where he was at the relevant time, about who might have been with him or which might have been inconsistent with the prosecution case in other ways. Evidence of this type might have come, for example, from [the appellant] himself, an employer, a witness no longer available or a business record. In terms of business records, the obvious examples relevant in this case are work records, housing records, school records, police records, a record of a call(s) to Lifeline, and the records of other agencies which might have had contact with one or more complainant. As for witnesses no longer available, the father of many complainants passed away in the early 1970’s. There is evidence he sexually assaulted as many as two complainants, being 10 R v RNWH [2024] SADC 75 at [39]–[43] (Kimber DCJ). -- 17 of 45 -- [2026] SASCA 6 The Court 14 DG and LH. SW was living in the various houses at all relevant times where important events are said to have occurred but has passed away. On the prosecution case, she even witnessed some relevant behaviour and discussed it with her children. During the evidence, there was a suggestion that another partner of SW, Mr Dennis G (Mr G), might have sexually assaulted a complainant. One child who lived in different relevant houses, SJH, has passed away. DG gave evidence of an aunt and uncle attributing conduct to IW. There was no evidence about whether those two family members were still alive. There is evidence that police may have had contact with at least JS, SW and possibly [the appellant], in approximately 1986 or 1987 shortly after an incident said to involve JS and [the appellant]. If there was contact with police as a result of something alleged to have taken place with JS, there is no record, and the identity of any police officer(s) involved may not be known. There was a police investigation in about 1998 that did not end up proceeding to a trial. Records may now be incomplete or lost together. The passage of time may also have impacted adversely upon the memory of witnesses in ways which may have caused a significant forensic disadvantage to [the appellant]. A witness may have become convinced that a particular event occurred, even though it did not. A witness may have forgotten something of significance to the case of [the appellant]. An honest and compelling witness can still be unreliable. After so many years, unreliability can be difficult to test and expose. The risk of assumption and error by witnesses is real. (citations omitted) 72 While there was no statutory requirement to do so, the trial Judge, in effect, gave himself a direction which mirrored the requirements of s 34CB of the Evidence Act. This included noting the very substantial passage of time between the commission of the alleged offences and the trial, and the impact that this delay has had on the appellant’s memory and his ability to marshall evidence that might have otherwise been useful in defending the charges. His Honour also referred to the fact the delay may have impacted the appellant’s ability to test the evidence. Significantly, his Honour stated that he had taken the forensic disadvantage suffered by the appellant into account when scrutinising the evidence. 73 Contrary to the appellant’s submissions, the trial Judge returned to the topic of forensic disadvantage throughout his reasons, and when considering the charged offences for which he returned a guilty verdict. When assessing DG’s evidence and Count 1, his Honour explicitly referred to the passage of time as a reason to be cautious before accepting her evidence. As to the evidence of JS and Count 8, and her explanation for not recounting the alleged offending to police in her statement given in 1998, his Honour referred to the absence of Lifeline records as a forensic disadvantage suffered by the appellant. In relation to Count 6, his Honour observed that there was no record of contact with police at the time of the observations made by Doug Hallett. As to the alternative verdict to Count 3 and the evidence of JH as to what the appellant allegedly said during the touching incident, his Honour specifically referred to the passage of time and ‘the very real risk’ of JH recalling inaccurately what was said such a long time ago when assessing her account. -- 18 of 45 -- [2026] SASCA 6 The Court 15 74 Moreover, during his reasons, the trial Judge explicitly referred to the ‘shifting statutory landscape’, and that there was no opportunity for the appellant to test the allegations many years earlier when they were first raised with the police. 75 Having regard to the whole of the reasons, we are satisfied that the trial Judge gave clear directions as to the significant forensic disadvantage suffered by the appellant and took it into account when scrutinising the evidence of the complainants. His Honour clearly linked the effect of the delay and the forensic disadvantage suffered by the appellant with the specific circumstances of the case. Moreover, his Honour explicitly stated that he had taken the forensic disadvantages to the appellant into account when scrutinising the evidence. 76 There was no inadequacy by the trial Judge in his reasons on the topic of forensic disadvantage. 77 We dismiss this ground of appeal. Ground 2 – The trial Judge’s use of propensity reasoning in relation to Count 7 78 The appellant complains that the trial Judge erred by finding that the appellant’s propensity had strong probative value on Counts 7 and 8, and erred when using the appellant’s propensity on Count 7. In addition, the appellant contends that his Honour erred by his use of the incident underpinning Count 8 in proof of Count 7 (an offence contrary to s 50 of the CLCA). 79 Under this ground of appeal, the appellant emphasises that defence counsel did not suggest that the appellant’s relationship with his stepchildren or children was of an orthodox, caring kind. Nor was it suggested that the complainants’ home life was anything but violent and chaotic. The appellant submits that bearing in mind JS’s credibility was ‘not in issue’, and the real challenge to JS’s evidence was her reliability, the appellant’s propensity did not have strong probative value in proof of Count 8. It was put that while the appellant’s propensity and inclination to act upon it was logically capable of rendering it more likely that some sexual offending occurred, the evidence was not capable of ameliorating the deficits in the reliability of JS’s evidence as to the particulars of the alleged unlawful sexual acts (to the extent required by s 50 of the CLCA). 80 It is well established that an accused person’s propensity, tendency or proclivity may be capable of bearing on the issue of whether the relevant offence occurred. This will require consideration of the evidence supporting the propensity, and the extent to which the propensity renders more likely the facts making up the charged offence.11 The more specific the propensity, the stronger the inferential mode of reasoning that it permits because there will be a greater 11 Hughes v The Queen (2017) 263 CLR 338 at [39]–[41] (Kiefel CJ, Bell, Keane and Edelman JJ). -- 19 of 45 -- [2026] SASCA 6 The Court 16 likelihood that the person acted or thought in conformity with the relevant tendency on the occasion in issue.12 81 In the context of a propensity to sexually offend against children where there is a risk of detection, it may be of significance that such a propensity is ‘strong’ in the sense that it is sufficient to negate the inference that ordinary inhibition and the fear of detection would usually militate against a person acting on that propensity.13 It may also be of significance that the evidence reveals the accused person’s propensity has existed over a lengthy period of time.14 82 Further, where a propensity is unusual, as a matter of human experience, its probative force may be considered strong.15 83 There is no requirement that underlying charged conduct be proved beyond reasonable doubt. Evidence of an accused person’s propensity is a species of circumstantial evidence, and it may be proved by considering the entirety of a prosecution case comprising evidence of charged and uncharged acts and other evidence which may again be deployed in proof of the elements of the charged offences.16 84 In the present case, the appellant was charged with an offence against JS contrary to s 50 of the CLCA (Count 7). The central issue in dispute was whether the prosecution had proved, beyond reasonable doubt, that during the particularised period, the appellant had committed any two or more unlawful sexual acts with or towards JS. The alternative charge of indecent assault (Count 8) concerned a single incident of touching which was said to have occurred in the particularised period of Count 7. The incident was allegedly witnessed by Doug Hallett. 85 The trial Judge, in his reasons, considered the evidence on the indecent assault charge (Count 8) before returning to the balance of the evidence on the s 50 offence. His Honour approached his analysis by considering the evidence of JS and Doug Hallett, as well as the contrary evidence of SDH (called on the defence case) before concluding that he was satisfied the prosecution had proved beyond reasonable doubt that the appellant committed the alleged act of indecent assault (Count 8). 86 The trial Judge then had regard to this finding, as well as his findings that Count 13 (DA), Count 1 (DG), and Count 9 (MW) had been proved. On the basis of all of those findings, his Honour concluded that the appellant had a propensity to engage in sexually predatory conduct with girls, as and when the opportunity presented itself, in order to obtain gratification, notwithstanding the risk of 12 Hughes v The Queen (2017) 263 CLR 338 at [93] (Gageler J). 13 Eddy (a pseudonym) v The King [2024] SASCA 115 at [77] (Bleby, David JJA and B Doyle AJA). 14 Eddy (a pseudonym) v The King [2024] SASCA 115 at [78] (Bleby, David JJA and B Doyle AJA). 15 TL v The King (2022) 275 CLR 83 at [37]; Hughes v The Queen (2017) 263 CLR 338 at [109]. 16 Director of Public Prosecutions of the State of Victoria v Benjamin Roder (a pseudonym) (2024) 281 CLR 18 at [23]–[24], [27]. -- 20 of 45 -- [2026] SASCA 6 The Court 17 detection and that the appellant was, at least, the stepfather and sole male carer of the child, and had an inclination to act upon that propensity. 87 Having made those findings, the trial Judge then turned to consider whether the prosecution had proved Count 7. His Honour observed that the central issue on Count 7 was whether he was satisfied beyond reasonable doubt that the appellant committed at least one other unlawful sexual act (in addition to Count 8) within the particularised period on or towards JS. Notwithstanding the challenges to the credibility and reliability of JS’s evidence, including the fact that she had not alleged any sexual abuse when spoken to by police in 1998, his Honour accepted JS’s evidence that the appellant sexually offended against her on ‘several occasions’ from when she was around nine years old. His Honour said that he was fortified in his conclusion that JS’s evidence was true given the probative weight of the appellant’s propensity, and inclination to act upon it. 88 We are satisfied that the appellant’s propensity to engage in sexually predatory conduct with girls, as and when the opportunity presented itself, in order to obtain gratification, notwithstanding the risk of detection and that the appellant was, at least, the stepfather and sole male carer of the child, had significant probative value in the circumstances of this case. As a matter of human experience, it is rare that a mature adult male would be sexually attracted to children, who are part of his immediate family unit, and then be willing to act on that inclination despite a high risk of detection. The evidence of the appellant’s propensity was both specific and entrenched. It existed over a substantial period (from 1976 to 1987), and there was evidence (when the testimony of all female complainants was considered) that he acted frequently upon this inclination. Bearing in mind the ‘real issue’ in dispute on Count 7 was whether the unlawful sexual acts, as described by JS occurred, we are satisfied that the appellant’s propensity was a significantly probative piece of circumstantial evidence in support of this count. 89 The trial Judge’s reasons and reasoning as to his use of the propensity evidence, and his use of the evidence underpinning Count 8 in proof of the s 50 offence (outlined above) is clearly explained and rational. There is no inadequacy in his Honour’s deployment of the evidence of the appellant’s propensity relevant to Count 8 when reaching a guilty verdict on Count 7. 90 We do not consider this ground is reasonably arguable and we refuse permission on this ground. Ground 3 – Propensity and procedural fairness 91 Under this ground of appeal, the appellant contends that the trial Judge erred by reformulating the relevant propensity, and by then deploying the reformulated propensity to reason to guilt on Count 7. Prior to the commencement of the trial, the prosecution filed a Notice of Intention to adduce Discreditable Conduct Evidence in the following terms: -- 21 of 45 -- [2026] SASCA 6 The Court 18 The use of the evidence said to be permissible under s 34P(2)(b) [of the Evidence Act] is to prove that [the appellant] had a sexual interest in his children and stepchildren and he was therefore likely to have acted pursuant to that interest. 92 Defence counsel ultimately filed a notice to object to the proposed discreditable conduct evidence on the basis that the evidence did not have strong probative value having regard to the particular issues arising at trial; and further, that the probative value of the evidence of the asserted propensity did not substantially outweigh the prejudicial effect it may have had on the appellant. 93 During closing submissions, the prosecution submitted that the evidence of the complainants tended to show that the appellant ‘had a sexual interest in children and a tendency to act on that interest opportunistically, within the home environment and notwithstanding a familial connection or a high risk of detection’. 94 Defence counsel submitted that the evidence of each complainant was not sufficiently credible and reliable to establish the correlating charge beyond reasonable doubt. Accordingly, it was submitted that the prosecution could not prove the appellant’s propensity (as articulated by the prosecution) on the evidence before the court. This submission is misconceived. The High Court has held that there is no requirement that the direct evidence of charged acts relied on in proof of an accused person’s propensity need be proved beyond reasonable doubt.17 An accused person’s propensity is an ‘intermediate fact’ that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the offence. Unless the tendency is an ‘intermediate fact’ which is ‘indispensable’ to proof of guilt, it need not be proved beyond reasonable doubt.18 It is the charges which must be proved beyond reasonable doubt. 95 In his reasons, the trial Judge initially outlined the appellant’s propensity in the same terms as advanced by the prosecution. After reaching his guilty verdicts in respect of Counts 1, 8, 9 and 13 (involving allegations by female complainants), his Honour found the appellant had a propensity ‘to engage in sexually predatory conduct with girls as and when the opportunity presented itself in order to obtain gratification notwithstanding the risk of detection and that [the appellant] was at least the stepfather and sole male carer of the child’. (Emphasis added). 96 The appellant contends that by reformulating the terms of the relevant propensity, the trial Judge denied him procedural fairness. The appellant submits there were five main differences between the prosecution articulation of the appellant’s propensity on the one hand, and the reformulation by his Honour on the other including that the reformulation: 17 Director of Public Prosecutions of the State of Victoria v Benjamin Roder (a pseudonym) (2024) 281 CLR 18 at [24]. 18 Director of Public Prosecutions of the State of Victoria v Benjamin Roder (a pseudonym) (2024) 281 CLR 18. -- 22 of 45 -- [2026] SASCA 6 The Court 19 • refined the propensity to a sexual interest in girls (as opposed to children); • introduced the notion of ‘sexually predatory’ conduct; • referred to the appellant acting on his inclinations ‘as and when the opportunity presented itself’; • introduced the notion of acting for the purpose of obtaining ‘gratification’; and • referred to the circumstance that the appellant was ‘at least, the stepfather and sole male carer of the child.’ 97 The appellant contends he was denied an opportunity to make submissions on this issue. 98 Contrary to the appellant’s contention, we are satisfied that the trial Judge’s articulation of the appellant’s propensity did not result in procedural unfairness. To the extent that the appellant contends that the prosecution did not use the terms ‘predatory’ and ‘gratification’ when articulating the relevant propensity, as a matter of logic, having a sexual interest in one’s own children or stepchildren, and an inclination to act on that interest is, by ordinary community standards, a predatory tendency. It cannot be suggested that the appellant acted upon his sexual interest in girls for any purpose other than the gratification of that interest. 99 As to the appellant’s submission that the propensity articulated by the trial Judge was confined to ‘girls’ rather than children, this appears to reflect defence counsel’s misconceived submission during the trial that the direct evidence of the charged acts relied on in support of the ‘intermediate fact’ of the appellant’s propensity was required to be proved beyond reasonable doubt, combined with the acquittals on Counts 10-12 (involving his son). His Honour’s approach in this regard was in fact favourable to the appellant. 100 We are satisfied that the trial Judge’s reasons do not reveal any material shift in the articulation of the appellant’s propensity productive of procedural unfairness. This was not a case where his Honour deployed the evidence in a manner about which notice had not been given to the appellant. Nor was this a case where the propensity articulated by his Honour was materially different from the propensity contended for by the prosecution. If contrary to this conclusion, there was some shift in his Honour’s articulation and use of the appellant’s propensity, it was so slight and, indeed, in one respect favourable to the appellant that it would in any event not amount to a ‘material’ error as recently explained by the High Court in Brawn v The King.19 19 Brawn v The King (2025) 99 ALJR 872 at [8]–[11]. -- 23 of 45 -- [2026] SASCA 6 The Court 20 101 We do not consider this ground is reasonably arguable, and we refuse permission on this ground. Ground 4 – The evidence of Doug Hallett 102 The appellant complains that the trial Judge erred by accepting the evidence of Doug Hallett as credible and reliable, and erred by using this evidence in support of Count 7. The appellant submits that there are material differences between the version of events given by Doug Hallett on the one hand, and JS on the other, which include the following matters: • Doug Hallett said that he observed sexual activity between the appellant and JS on one occasion whereas JS said it was on two occasions; • Doug Hallett said that there was no physical confrontation between himself and the appellant following the incident whereas JS said ‘punches were thrown’; • Doug Hallett said that he saw the appellant’s fingers inside JS’s vagina whereas JS said that she was lying on her side facing the appellant potentially rendering his observations less likely; and • Doug Hallett described seeing an act of digital penetration; however, JS said the appellant was ‘over the top of her’ touching her through her clothes, and on a second occasion licking her vagina. Doug Hallett said he did not see the appellant perform an act of cunnilingus on JS on any occasion. 103 The appellant relies on those inconsistencies combined with Doug Hallett’s alcohol consumption on the relevant evening and his purported inherently unlikely response (by simply walking out of the bedroom and leaving his children in the room with the appellant) to submit that the evidence lacked cogency and provided no support for the evidence of JS on Count 8. 104 The principles of appellate restraint in approaching the evaluation of witnesses by tribunals of fact were articulated by the High Court in Fox v Percy.20 The Court of Criminal Appeal has held those principles are applicable to an appeal against conviction involving a trial by judge alone.21 The limitations on the role of an appellate court when proceeding wholly on the record are well established. As explained by the High Court in Fox v Percy:22 …These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence 20 Fox v Percy (2003) 214 CLR 118. 21 See, for e.g. R v D, L [2015] SASCFC 24 at [67] (Blue J). 22 Fox v Percy (2003) 214 CLR 118 at [23] (Gleeson CJ, Gummow and Kirby JJ). -- 24 of 45 -- [2026] SASCA 6 The Court 21 taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity…to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (citations omitted) 105 When a trial Judge’s finding is based upon an assessment of a witness’s credibility, after seeing his or her evidence during a trial, it is not to be interfered with unless the findings are ‘glaringly improbable’ or ‘contrary to compelling inferences’.23 106 Doug Hallett was SDH’s former partner. He met the family when they were living at Kybunga and when SDH was around 18 or 19 years old. Doug Hallett gave evidence that he and SDH had gone to visit her family at Snowtown. He said that he and the appellant had been drinking alcohol. He went to sleep with SDH on a mattress in the lounge room. During the night, he got up to go to the toilet. He went into a big room where the children, including his own children, were sleeping. When he entered the room, he turned on the light to check on his children. After doing so, he went to turn off the light and saw the appellant with his fingers inside JS’s vagina. He said he could not believe what he had seen, so he flicked the light back on, then off again and walked away. 107 Doug Hallett gave evidence that he went and woke SDH. He said that he told SDH what he had seen and that he intended to report the matter to the police in the morning. This did not eventuate as her family did not want the police to be involved. He raised the topic with John Price, Brian Price (JH’s partner), and SW. 108 Doug Hallett agreed there was no physical confrontation between himself and the appellant. However, there was evidence that Doug Hallett was sufficiently concerned about his observations to later raise them with other family members (as supported by the evidence of JS, JH, LH, JP and CB). 109 Ultimately, the trial Judge found Doug Hallett to be a credible and reliable witness and accepted his evidence as to his observations of the appellant sexually abusing JS. To the extent that Doug Hallett’s evidence differed from the evidence of JS, his Honour preferred the evidence of Doug Hallett. His Honour said:24 Mr Doug Hallett impressed me during his evidence. His evidence had a distinct ring of truth. It is unlikely that he has imagined what he says that he saw. I reject that he might have imagined it. I reject that Mr Doug Hallett might have lied in his evidence. I am satisfied that he was shocked by what he saw. That something occurred involving JS which was seen by him is consistent with that possibility being discussed in the family at the time. I am satisfied that what happened was a significant event and it has stuck in his mind, albeit that his memory may not be perfect in every respect. That Mr Doug Hallett saw something 23 See, for e.g. Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ), citing Fox v Percy (2003) 214 CLR 118 at [29]. See also Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan, Gaudron and McHugh JJ). 24 R v RNWH [2024] SADC 75 at [259]–[261], [264]–[269] (Kimber DCJ). -- 25 of 45 -- [2026] SASCA 6 The Court 22 which concerned him involving [the appellant] and JS is not only supported by JS. The evidence of JH, LH, JP and CB is consistent with something being raised about conduct towards JS. That is, the fact that Mr Doug Hallett spoke to someone is consistent with him having seen something which concerned him. I recognise that there are some differences in the evidence about what occurred, but what is common is that Mr Doug Hallett raised something that was of sufficient concern to be discussed in the family. I cannot accept the evidence of JS that Mr Doug Hallett saw something on two occasions. JS raised that for the first time in evidence. Had that happened, I am satisfied beyond a reasonable doubt that Mr Doug Hallett would have recalled that. In my view, the evidence of SDH and Mr Doug Hallett about what occurred cannot be reconciled with both witnesses being truthful and reliable. I reject the evidence of SDH that Mr Doug Hallett did not say anything more than he had seen [the appellant] in the room of JS. That something more substantial was alleged at that time is consistent with the evidence of JS, CB, LH, JP and JH. I reject that SDH may have forgotten what Mr Doug Hallett told her. SDH was an adult at the time. I am satisfied Mr Doug Hallett told her that her step-father had been seen sexually assaulting her younger sister in some way. That allegation is not one likely forgotten. That SDH was told something about a sexual assault is consistent with the fact that she then spoke to JS. I find that SDH lied in her evidence about not recalling that Mr Doug Hallett said that he had seen [the appellant] assaulting JS in some way. It may be that SDH was dishonest about what happened in the 1980’s as she wishes to continue to enjoy a close relationship with [the appellant], but I need not identify the motive. … I accept Mr Doug Hallett’s evidence of there being some family discussion the following day. The fact of there being some discussion is consistent with the evidence of other witnesses, albeit that there are some significant differences in the evidence about what then occurred. I have set out earlier how differences in evidence about the involvement of police are explained. The differences in the evidence, not just those with respect to the involvement of police, do not cause me to doubt the evidence of Mr Doug Hallett about what he saw. There are significant differences in the evidence of JS and Mr Doug Hallett about the single occasion mentioned by Mr Doug Hallett on which he observed [the appellant] abusing JS. Nevertheless, what is common to the evidence of both is that [the appellant] was caught while touching JS in a sexual way. As I have said, contrary to the evidence of JS, Mr Doug Hallett told me of seeing [the appellant] on just one occasion in JS’s room and engaged in sexual conduct. I will not overlook JS being unreliable about it occurring on two occasions. That is not the only important difference with the account of JS compared to that of Mr Doug Hallett. Mr Doug Hallett also did not describe any yelling, or physical altercation with [the appellant]. JS’s evidence was to the contrary. I am unable to reject that aspect of Mr Doug Hallett’s evidence. Mr Doug Hallett’s evidence was of observations which were unexpected; late at night; very brief; and in what may have been poor lighting. Nevertheless, I reject that he might be mistaken about seeing [the appellant] touching JS for those reasons. Firstly, that he did interrupt inappropriate conduct is supported by the evidence of JS. Secondly, while I recognise that a person can become convinced over time that their memory is reliable and convinced that they did not make a mistake about what they saw, what he described in his evidence left me with the distinct impression that Mr Doug Hallett had seen enough to -- 26 of 45 -- [2026] SASCA 6 The Court 23 make a reliable observation of at least a sexual touching which was obviously inappropriate. Mr Doug Hallett did not give evidence of seeing an act of cunnilingus. As set out above, JH gave evidence consistent with Mr Doug Hallett telling her that act was seen by him. That out of court statement is not evidence of the truth of what was said. It is an inconsistent statement relevant to credibility and reliability. Given that out of court statement; the passage of time; and that JS gave evidence of Mr Doug Hallett interrupting an act of cunnilingus, I have carefully considered whether I can make any finding that Mr Doug Hallett saw any sexual act. I am unable to be certain whether Mr Doug Hallett saw an act of cunnilingus or a touching of the vagina with the hand as he said in evidence. Nevertheless, what is common to both the evidence of JS and Mr Doug Hallett is that Mr Doug Hallett interrupted what was a sexual touching. Mr Doug Hallett’s evidence was of a touching of the vagina. JS recalled touching ‘mainly on my breasts and waist’. What Mr Doug Hallett described was not consistent with a touching on the upper part of the body. There is a difference between the ‘waist’ and the vagina, but I accept beyond a reasonable doubt the evidence of Mr Doug Hallett that there was a touching of the vagina. That JS does not recall the precise act which was occurring is likely due to her memory being that [the appellant] touched her in a sexual way on more than one occasion. Given that, it is not surprising that she cannot accurately recall precisely what was occurring on this occasion. I have no doubt that Mr Doug Hallett was both credible and reliable about seeing [the appellant] touching the vagina of JS in some way that night and in her bedroom. I have no doubt that was a sexual act which was indecent. I am also satisfied beyond a reasonable doubt that he saw that only once. I am satisfied beyond a reasonable doubt that had it occurred more than once, he would have recalled it given the way that he reacted. 110 The trial Judge addressed all of defence counsel’s submissions as to the basis upon which the evidence of Doug Hallett should be rejected. His Honour simply preferred the evidence of Doug Hallett to JS’s evidence as to the number of occasions when Doug Hallett witnessed the appellant engage in a sexual act with or towards her, and the precise nature of that unlawful sexual act. That approach was open to him. His Honour also considered that the inconsistencies between the evidence of Doug Hallett and JS on those topics were explicable on the basis that JS gave an account of having been sexually touched on more than one occasion and there was room for some confusion in that regard. Accordingly, his Honour considered that the inconsistency between JS’s evidence and the evidence of Doug Hallett did not undermine the cogency of his evidence. Nor did it significantly undermine the credibility or reliability of JS on the core issue of whether the appellant had committed two or more unlawful sexual acts against her. 111 There was no error in the trial Judge’s ultimate acceptance of Doug Hallett’s evidence. In addition, the evidence was capable of providing significant support for JS’s account as to the alleged unlawful sexual acts. His Honour did not err in his treatment of the evidence. 112 We do not consider this ground is reasonably arguable and refuse permission to appeal. -- 27 of 45 -- [2026] SASCA 6 The Court 24 Ground 5 – Contamination and reasoning to guilt 113 The appellant complains that the trial Judge erred in his treatment of the risk of contamination when reasoning to guilt on Counts 1, 3A, 6, 7 and 9. 114 There was no dispute at trial that each complainant, other than DA, had a level of awareness of the other complainants’ sexual allegations against the appellant. The prosecution submitted that notwithstanding this level of general awareness, the evidence established that the complainants had not discussed the detail of their allegations with each other, and there was no reasonable possibility of collusion or innocent contamination between their accounts. 115 On the other hand, defence counsel submitted that the evidence revealed a reasonable possibility of deliberate collusion between the complainants, likely borne out of their violent upbringing and animosity towards the appellant, or at the very least, the prosecution was unable to exclude the reasonable possibility of innocent contamination. 116 Under this ground of appeal, the appellant challenges both the adequacy of the trial Judge’s reasons and reasoning process by contending that his Honour did not adequately bring to account the issue of innocent contamination when reasoning to guilt on Counts 1, 3, 6, 7 and 9. 117 In his reasons, the trial Judge found that there was opportunity for collusion or contamination between all the complainants, except for DA, because of the following matters: • There was discussion between family members in the 1980’s at the time of, or following, the alleged sexual incident involving JS (Count 8). • In 1997 or 1998 there was a police investigation into the appellant having committed various sexual assaults. During this investigation DG acted as a contact point between police and the other complainants. • Before 9 February 1998, there was a meeting held at DG’s property to discuss the police investigation. There was evidence that up to seven of the complainants might have been present at the meeting. Detective Carson could not exclude that at least some detail of the alleged sexual offending might have been raised by one or more of the complainants. • The police investigation into sexual assaults committed by the appellant was revived in 2015. Again, DG was the contact person between the police and the other complainants. There was at least one further meeting held at DG’s home involving several complainants. • There was evidence from DG that she was sexually abused by IW (her natural father) and possibly a family friend. -- 28 of 45 -- [2026] SASCA 6 The Court 25 118 As to the issue of collusion and innocent contamination, the trial Judge found:25 …What matters for the moment is the possibility that by the mid-1980’s, at least JP, DG, CB, LH and JS were aware of an alleged sexual assault of JS by [the appellant]. The possibility exists that what the complainants were told at that time was that it was a sexual act involving some contact with the vagina of JS which occurred in the bed of JS at night. Given the police investigation which occurred in 1997 and/or 1998 and its revival in 2015, it is possible that memories of that specific incident were discussed by all complainants, other than DA, at least, in 1997 or 1998 and again, at least, commencing in about 2015. Given the evidence of Detective Carson and the complainants (other than DA), the possibility that each complainant (other than DA), was aware by later than 1998 that more than one other complainant had alleged that [the appellant] had sexually assaulted them cannot be excluded. I recognise that some complainants gave evidence that ‘detail’ had not be[en] discussed. I do not consider that any witness deliberately misled me when giving evidence of what had been discussed and with whom. The discussions about which complainants were asked occurred as long as almost 40 years ago. Memories of exactly what was said are unlikely to be perfect. Nevertheless, when such evidence was given there was no further explanation of what was meant by the term ‘detail’. Given the passage of time, I cannot exclude the possibility that each complainant (other than DA) knew of at least some detail of what more than one other complainant (other than DA) had alleged before any statements were given to police in 1998. When I use the word ‘detail’, I mean the type of sexual act(s) and the circumstance in which it occurred (e.g. – the location, time of day and whether the conduct was repeated). I recognise that not every relevant complainant said that such detail was given. However, at least given: the passage of time; the meetings that took place; and as the term ‘detail’ likely meant different things to different witnesses; it is only appropriate to approach the evidence on the basis that I have outlined. In short, the risk of contamination is a real issue for complainants (other than DA), and I have borne it in mind throughout. That all complainants (other than DA) were likely aware that another complainant(s) had alleged being sexually assaulted by [the appellant] also might provide possible opportunities and motive to concoct an allegation. I have also borne that in mind throughout. 119 Later his Honour said that he did not propose to deploy improbability reasoning in relation to any of the counts:26 However, the evidence does not exclude that each complainant, other than DA, is aware of at least some of what is alleged of a sexual nature against [the appellant] by another complainant(s). Further, I am already satisfied beyond a reasonable doubt that [the appellant] has the propensity I have identified. As a result, I intend to first consider the remaining counts without considering whether reliance on improbability reasoning is appropriate. As will be seen, I have only considered improbability reasoning in the case of some complainants and, for reasons to be given, have not ultimately engaged in that type of reasoning. 120 The appellant contends that when assessing each complainant’s evidence, the trial Judge was nonetheless required to explain the reasoning process by which he excluded the risk of collusion and/or contamination between complainants as a 25 R v RNWH [2024] SADC 75 at [158]–[160] (Kimber DCJ). 26 R v RNWH [2024] SADC 75 at [363] (Kimber DCJ). -- 29 of 45 -- [2026] SASCA 6 The Court 26 reasonable possibility, and his Honour erred by failing to do so. The appellant emphasises that there is no explicit finding in respect of each count for which he returned a guilty verdict, that the prosecution had excluded the reasonable possibility of innocent contamination. 121 In his reasons, the trial Judge explicitly referred to and discussed the issues of collusion and innocent contamination. This included a comprehensive summary of defence counsel’s contentions.27 His Honour expressly directed himself that the prosecution were required to exclude collusion and innocent contamination as a reasonable possibility.28 All parties accepted that these issues did not arise in relation to Count 13 as there was unchallenged evidence that DA had not spoken with the other complainants about the alleged offending. 122 Contrary to the appellant’s submissions, we are satisfied that when analysing the evidence on each count, the trial Judge adequately considered the specific issues of collusion and innocent contamination. 123 For Count 1, in respect of DG, his Honour observed that the passage of time was such that DG’s awareness that others within the family had made allegations was a specific factor requiring caution before accepting DG’s account. Despite that, his Honour went on to analyse DG’s evidence, and, ultimately, accepted beyond reasonable doubt that her evidence as to the sexual touching was truthful and reliable before proceeding to find the appellant guilty of that count. 124 As to Count 6 and the evidence of CB, the trial Judge again noted the importance of the issues of collusion and contamination. His Honour observed that while the initial complaint by CB to Ms Franz was made after she left the house, and after Count 8 and the incident involving JS observed by Doug Hallett had taken place, he was satisfied that it was not a reasonable possibility that on hearing about something that may have happened to her sister, JS, CB then imagined or invented repeated sexual abuse of her. The reasons reveal that after carefully considering the whole of CB’s evidence, and the submissions of defence counsel, his Honour found that there were aspects of her evidence which were directly probative of the fact she was describing an event which actually occurred (rather than an event innocently infected by knowledge of another person’s experience) including for example, her evidence of the measures she took to protect herself from the appellant’s sexual abuse. His Honour made clear that his guilty verdict on Count 6 was based on the whole of CB’s evidence including the evidence of her initial complaint, and save and except for improbability or propensity reasoning, having regard to the specific issues of collusion and contamination. 125 As to Count 7, the trial Judge acknowledged that aspects of JS’s account meant that deliberate invention and innocent contamination required careful consideration. Significantly, and in contrast to his approach on the other counts, 27 R v RNWH [2024] SADC 75 at [48]–[49] (Kimber DCJ). 28 R v RNWH [2024] SADC 75 at [139] (Kimber DCJ). -- 30 of 45 -- [2026] SASCA 6 The Court 27 his Honour took into account the appellant’s propensity in determining whether the prosecution had proved Count 7. His Honour also had regard to the evidence of Doug Hallett. His Honour found those pieces of supportive evidence militated against collusion or innocent contamination of JS’s account. 126 In relation to Count 9, in respect of MW, the trial Judge observed that he was unable to exclude the possibility that MW knew some of the details of the other complainants’ allegations. Notwithstanding this finding, his Honour rejected a challenge to MW’s evidence on the basis she had sought specific assistance from her siblings when providing a police statement. His Honour accepted MW’s evidence as truthful and reliable in relation to her account of the unlawful sexual acts. While there was some evidence from JS and RH which was capable of providing material support for MW’s account, his Honour was willing to accept MW’s evidence beyond reasonable doubt without placing any reliance on the evidence of JS and RH. 127 The trial Judge not only considered the evidence of collusion and innocent contamination in a general sense, but he also explicitly brought the question of whether there was a reasonable possibility of a risk of innocent contamination to bear upon his deliberations before reasoning to guilt on Counts 1, 6, 7 and 9. 128 Further, our conclusion that the trial Judge had adequate regard to the issues of collusion and innocent contamination is reinforced by his reasoning and reasons for acquittals on the other counts. It appears that this issue was at least in part a reason for the acquittals on the remaining counts demonstrating that his Honour very much had the reasonable possibility of collusion and contamination in mind when analysing the evidence on each count. 129 On Count 2, the trial Judge noted that the issue of contamination was heightened for two reasons. First, because of LH’s evidence that she had suffered sexual abuse by IW and another male; and secondly, by reason of DG’s evidence that IW would masturbate in her presence. His Honour noted that while he was satisfied LH was a truthful witness, he was left with a doubt about the reliability of her evidence. 130 For Count 5, the trial Judge observed that JP alleged a single incident of sexual touching which occurred when she awoke and whilst she was intoxicated. His Honour said that those matters combined with the passage of time and the possibility of contamination, resulted in a doubt as to the reliability of JP’s evidence. 131 In respect of Counts 10, 11 and 12, the trial Judge noted the inconsistencies in the evidence of RH but also the significance of his attendance at the meeting in 1998 (directly relevant to the issues of collusion and innocent contamination) combined with the deficiencies and inconsistencies in his police statements. On that basis, his Honour was left with a doubt about both the truthfulness and reliability of RH’s account. -- 31 of 45 -- [2026] SASCA 6 The Court 28 132 After considering the reasons for verdict read as a whole, and the trial Judge’s consideration of the issues of collusion and innocent contamination generally, and in relation to each count, we are satisfied that there is no inadequacy in the reasons or reasoning process on those issues. 133 We dismiss this ground of appeal. Ground 6 – Use of the evidence of non-sexual violence 134 The appellant challenges the adequacy of the trial Judge’s reasons as to the use of the appellant’s non-sexual violence towards the complainants and SW. The appellant contends that His Honour overlooked the possibility that, because of the appellant’s violent behaviour, the complainants may have been more susceptible to innocent contamination in respect of alleged incidents of sexual abuse. 135 The trial Judge summarised the evidence of each complainant as to the non-sexual violence inflicted by the appellant. His Honour also outlined the evidence of SDH which diverged from the complainants’ evidence as to the severity and frequency of the appellant’s alleged violence within the home. 136 The trial Judge found:29 The evidence that [the appellant] was violent to, or in the presence of, his children was overwhelming. Although SDH did not always characterise the behaviour in the same way as [the] complainants did, the evidence of SDH confirmed that [the appellant] behaved in a way likely to promote fear. I am satisfied that each complainant was subjected to an upbringing in which non-sexual violence by [the appellant] was common. I am satisfied that every complainant had reason to fear [the appellant] when they were a child living in a house of [the appellant]. … The passage of time gives rise to unreliability. I recognise there is a risk the evidence given by witnesses about incidents involving a firearm and other occasions of violence, has been contaminated by discussions within the family. The incidents are of such significance that it might be expected they would be discussed. In all the circumstances, where there are relevant differences in the evidence of witnesses about what appears to be the same incident, I am unable to determine precisely when the incident took place, where, and precisely who was present. I am also unable to determine precisely what occurred on each occasion. That said, for evidence of non-sexual violence to have a use in the prosecution case, I do not have to accept every aspect of the evidence. The issue is whether I am satisfied [the appellant] was violent to children in his home and whether being the victim of that, or observing it, caused specific complainants to fear [the appellant]. If that is so, then the issue is whether that might explain why a particular complainant submitted to sexual conduct, did not complain of it and did not intervene if [the appellant] might have been sexually abusing another in their presence. It also might shed light on whether [the appellant] believed a particular complainant might submit to a sexual act. 29 R v RNWH [2024] SADC 75 at [122]–[123], [125]–[128] (Kimber DCJ). -- 32 of 45 -- [2026] SASCA 6 The Court 29 Having considered the whole of the evidence, I am satisfied [the appellant] did have children within his house removed from their bed, made them stand in a line and punished more than one child physically in the presence of others. I am also satisfied [the appellant] struck the complainants with at least a belt, jug cord, electrical cord or boot. I am satisfied [the appellant] held a firearm on at least one occasion and threatened to use it. Having considered the whole of the evidence, I am satisfied [the appellant] commenced non-sexual violent behaviour to the children in the house early in his relationship with SW and it became a regular feature of what would occur in the house. As set out earlier, it is likely that [the appellant] moved into the house with SW and others by about late 1973. LH and JH gave evidence of violent conduct occurring at every house. DG gave evidence of a specific occasion when she was about 12 years of age. That would place the violent conduct as occurring in approximately 1974. JP referred to an occasion when MW was a baby. MW was born in November 1973. SDH gave evidence of an incident with a jug cord being when she was about 14 years of age. This would place that incident in about 1974. I am satisfied that [the appellant] was commonly violent in a non-sexual way to, or at least in the presence of, all complainants. I am satisfied each complainant feared [the appellant] because of his non-sexual violent behaviour towards them and/or what they observed towards other children and that, for each complainant, that fear existed before any sexual act by [the appellant] alleged by them. 137 As to the submission that the appellant’s alleged non-sexual violence may give rise to the complainants having been more susceptible to innocent contamination in respect of alleged incidents of sexual abuse, the trial Judge said:30 Another aspect of the importance of the evidence of non-sexual violent conduct is whether it might provide an explanation for a complainant to imagine acts of sexual assault. Put another way, might it provide a setting in which a complainant might become convinced that they were a victim of, or witness to, sexual abuse by [the appellant] when they were not? Might it make a complainant more likely to become convinced something happened which did not happen? With respect to each complainant, this will not be overlooked. However, in not overlooking it, it is not obvious to me that being the victim of non-sexual violent conduct might make it more likely that a person will imagine sexual abuse. As a general proposition, a person who bears animus to a person because of their conduct might invent other conduct. It might be easier to make a false allegation about a person when you have good cause to dislike them. I will bear this in mind in evaluating the evidence of every complainant. 138 In considering this ground of appeal, it is important to recognise that there is an obvious qualitative difference between non-sexual violence and sexual abuse. Moreover, in the present case the evidence of the appellant’s non-sexual violence toward the complainants included separate and discrete physical assaults at a different time from the alleged sexual offending. 139 The evidence of the appellant’s non-sexual violence was only adduced as capable of explaining the complainants’ continued submission to the appellant and their reluctance to disclose the offending. As was recognised by the trial Judge, it is difficult on the facts of this case to conceive how the evidence of non-sexual violence perpetrated by the appellant was capable of making it more likely that the 30 R v RNWH [2024] SADC 75 at [131]–[132] (Kimber DCJ). -- 33 of 45 -- [2026] SASCA 6 The Court 30 complainants’ accounts were innocently contaminated or more readily imagined. While the evidence of the appellant’s non-sexual violence may have been regarded as a reason to deliberately concoct or fabricate the allegations, it is difficult to conceive how this could result in the innocent infection of a complainant’s account even bearing in mind the passage of time and other matters relevant to the reliability of each complainant’s account. 140 In any event, the trial Judge expressly considered the evidence and submissions on non-sexual violence at length. His Honour’s reasons on this topic identify and explain the uses of the evidence of the appellant’s non-sexual violence in the context of the issues in dispute. His Honour identified and explained the permissible and impermissible uses of the evidence as well as his findings on this topic. In his reasons, his Honour referred to the potential relevance of the non-sexual violence to innocent contamination and explicitly said that he would bear this in mind when scrutinising the evidence. There was no inadequacy by his Honour in his reasons or reasoning when considering the evidence of non-sexual violence. 141 We refuse permission to appeal on this ground. Ground 7 – Unreasonable verdicts 142 The appellant complains that the verdicts on Counts 1, 3A, 6, 7 and 9 are unreasonable or cannot be supported by the evidence. The appellant contends that having regard to the frailties of the evidence of each of the complainants, as well as the passage of time and the very real possibility of, at least, innocent contamination, this Court should conclude that the trial Judge, acting rationally, must have entertained a reasonable doubt as to the appellant’s guilt. 143 The principles governing a complaint of unreasonable verdict are well established. As the High Court explained in M v The Queen:31 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted) 31 M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). -- 34 of 45 -- [2026] SASCA 6 The Court 31 144 In Dansie v The Queen, the majority said that the same approach is to be applied by an appellate court in respect of a ground of unreasonable verdict following trial by judge alone:32 Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function [the independent assessment required by M v The Queen] with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial… 145 Before turning to consider the appellant’s complaint in respect of each guilty verdict, it is necessary to make some general observations as to the evidence. 146 First, as discussed earlier, the trial Judge found that the appellant had a propensity to engage in sexually predatory conduct with girls, as and when the opportunity presented itself, in order to obtain gratification, notwithstanding the risk of detection and that the appellant was the stepfather and sole male carer of the child, and had an inclination to act upon that propensity. The prosecution relied on that propensity in respect of all counts. 147 Upon our independent review of the evidence, considered as a whole, and bearing in mind that it is not necessary to establish the intermediate fact of the appellant’s propensity beyond reasonable doubt, we are satisfied that the evidence established the appellant had this propensity and an inclination to act upon it. The appellant’s propensity was longstanding, entrenched and specific in nature. It provided strong circumstantial support for each complainant’s account and the charged offences. This is a significant aspect of the evidence which militates against any of the verdicts being unreasonable or unable to be supported by the evidence. 148 Secondly, the complainants’ evidence of the appellant’s non-sexual violence towards them and their mother was a body of circumstantial evidence which had considerable force in explaining each complainant’s submission to the relevant offending and reluctance to disclose the offending. 149 Thirdly, and in relation to the guilty verdicts on Counts 6, 7 and 9, involving an offence against s 50 of the CLCA, the prosecution was only required to prove 32 Dansie v The Queen (2022) 274 CLR 651 at [16]–[17]. -- 35 of 45 -- [2026] SASCA 6 The Court 32 beyond reasonable doubt two or more unlawful sexual acts without the need to establish the particulars of any unlawful sexual act that would otherwise be required if the sexual acts were charged as a separate offence.33 150 Fourthly, the trial Judge formed a favourable impression of each of the complainants DG, JH, JS, CB and MW as a witness. This Court must not disregard that the trier of fact, whether it be a jury or judge sitting alone, is the body entrusted with the primary responsibility of determining guilt or innocence, and that the trier of fact has had the benefit of having seen and heard the witnesses. 151 Those matters are applicable to this Court’s independent review of the evidence and the appellant’s contention that the verdicts are unreasonable and cannot be supported by the evidence. With those general matters in mind, we turn to consider the sufficiency and quality of the evidence in respect of each specific conviction. Count 1 – Indecent assault of DG 152 In support of this count, the prosecution relied on the evidence of DG, as supported by the evidence of the appellant’s propensity. 153 In her evidence, DG alleged that the appellant indecently assaulted her around Christmas time while the family was living in Kybunga. She said that the appellant had been drinking. He approached her and said, ‘…let a man kiss you’. He then pushed her against a wall and placed his hand on her knickers and pushed his hand in towards her vagina. DG said that at this point her mother came into the room and the appellant stopped. 154 The appellant contends that the verdict on this count is unreasonable having regard to the following matters. First, DG gave a statement to police in 1998. In that statement, she did not allege that the appellant sexually touched her. However, DG explained in evidence that she did not disclose the offending at that time as she was ashamed. Secondly, it was not disputed that before and after giving her statement in 1998, it is possible that she learned of sexual allegations made by one or more of her siblings. However, DG said that while the topic was discussed, she was not aware of the details of their allegations. Thirdly, the appellant relies on a proved inconsistency as to the use of a firearm by the appellant. We do not consider this inconsistency about a peripheral, non-sexual incident of any particular significance when assessing DG’s evidence. Fourthly, the appellant relies on the passage of time and the real possibility that DG’s account has been innocently contaminated by her knowledge of the other complainants’ allegations. However, as the trial Judge observed, there were aspects of DG’s evidence which countered this submission. For example, DG described with some specificity and emotion how the appellant came into her room, sexually touched her, and importantly, how she felt when he was touching her. 33 Criminal Law Consolidation Act 1935 (SA), s 50(4)(b). -- 36 of 45 -- [2026] SASCA 6 The Court 33 155 We have considered the appellant’s submission as to the innocent contamination of DG’s account, and that she knew her siblings had made sexual allegations against the appellant, and that IW had in the past sexually abused her. We have also had regard to the fact DG was the contact point between police and her sisters and yet she made no complaint about the sexual abuse in her police statement in 1998. We have also had regard to the significant forensic disadvantages to the appellant (summarised earlier). Notwithstanding those matters, and upon our independent review of the evidence, bearing in mind the evidence of the appellant’s propensity, and inclination to act upon it, which provides material support for DG’s account, we are satisfied that the verdict was not unreasonable and can be supported by the evidence. Count 3A – The alternative offence of attempted indecent assault of JH 156 In support of Count 3, the prosecution primarily relied on the evidence of JH, as well as the evidence of the appellant’s propensity and inclination to act upon that propensity. 157 JH gave evidence that on an occasion when her brother SJH was born and her mother was in the hospital; she made the appellant a cup of tea and took it to him in his bedroom. He told her to shut the door and sit on the bed, and he then began fondling her breasts, and touching her near her vagina. He asked her, ‘do you like me touching you?’ JH explained that she felt ‘terrified’, but that she did not wish to get into trouble or to be physically punished. 158 The prosecution ultimately particularised the appellant’s alleged touching near JS’s vagina as the conduct the subject of Count 3. As outlined earlier, the trial Judge found the appellant guilty of the alternative offence of attempted indecent assault on the basis that during one single incident, the appellant touched JH on the breasts and attempted to touch JH on the vagina. While his Honour found that the appellant touched JH near her vagina and close to the line of her underwear, he entertained a doubt as to whether the appellant, in fact, touched JH’s vagina either over, or under, the underwear. His Honour was also satisfied that the appellant intended to touch JH’s vagina and that the touching was not merely preparatory but immediately connected to the completed offence. 159 In challenging the verdict as unreasonable, the appellant relies on various inconsistent statements made by JH including the following matters. • First, in evidence, JH said that she saw the appellant naked and being removed by SW from MW’s bed. Yet, in 1998, JH gave a statement to police about the incident, but she did not say the appellant was naked. JH explained that she did not think that this detail was relevant. • Secondly, JH said in her evidence the appellant would come into the bedroom wearing a towel. JH agreed that in her statement to police in 1998 while mentioning that the appellant would come into her bedroom, she did not say that he was wearing a towel. JH explained that she was -- 37 of 45 -- [2026] SASCA 6 The Court 34 not as careful about checking this police statement as she was aware that any allegation of a sexual nature was statute barred from being prosecuted.34 • Thirdly, it was an agreed fact that JH did not say in her statement to police in 1998 that the appellant had entered her bedroom and stood by her bed; and she had not used the word ‘silhouette’. • Fourthly, in evidence, JH said that she did not get her sisters together for the meeting with police which occurred in 1997 or 1998. It is an agreed fact that in a statement given to police in 1998, JH said: ‘I got my sisters together’. In evidence, JH explained that she told her sisters that ‘we needed to talk’ as she was concerned about CB, and that ‘we were all spiralling out of control’. She also clarified that ‘[t]he police have told us not to talk about it to each other and we don’t. We don’t talk about it to each other.’ 160 We have had regard to these inconsistencies and JH’s explanations for them. However, we do not consider that individually or cumulatively those inconsistencies materially undermine JH’s credibility or reliability. They either relate to peripheral matters, or the complainant provided a cogent explanation for the inconsistency. 161 The appellant raises two further matters in support of JH’s unreliability. 162 First, during her evidence, JH volunteered that her children did not sleep over at the appellant’s home. By this point of the trial, LH had been questioned about that topic. The appellant submits that an obvious explanation for the unresponsive answer by JH was that she had engaged in some conversation with LH about LH’s evidence. 163 Secondly, the appellant also relies on the evidence that JH was, at the very least, generally aware of her siblings’ sexual allegations against the appellant and submits that there was a real risk of concoction or, more likely, innocent contamination of her evidence as to the sexual offending. In this regard the appellant draws upon the trial Judge’s acquittal on Count 4, noting that part of the reason for his Honour’s doubt on this count was that he was not satisfied that the words accompanying the alleged indecent touching were in fact said. The appellant submitted that this finding is significant as his Honour could evidently not exclude that JH was susceptible to imagining details directly associated with the alleged sexual offending. However, his Honour’s finding was made in the context of evidence that the appellant played ‘games’ with JH and the passage of time. It was in those circumstances that his Honour considered that there may have been some misunderstanding as to the words used or the context in which the alleged touching 34 See s 76A of the Criminal Law Consolidation Act 1935 (SA), which imposed a statutory time limitation of three years for the prosecution of sexual offences in South Australia. This section was subsequently abolished in 2003. -- 38 of 45 -- [2026] SASCA 6 The Court 35 occurred relevant to the question of indecency. We do not consider that this finding made in a particular factual context materially undermines the credibility or reliability of JH on the alternative charge to Count 3. 164 We have had regard to those criticisms of the reliability of JH’s evidence. However, upon our independent review of the evidence, and notwithstanding those criticisms and the other inconsistencies in her evidence, we are satisfied that it was open to the trial Judge to find the appellant guilty of the alternative offence. There was also material support for JH’s account from the finding as to the appellant’s propensity and inclination to act upon it. In reaching this conclusion, we have not overlooked the significant forensic disadvantages to the appellant. We are satisfied that the verdict was not unreasonable and was supported by the evidence. Count 6 – Maintaining an unlawful sexual relationship with CB 165 The prosecution relied on the evidence of CB as supported by her initial complaint to Kerri Franz, as well as the circumstantial evidence of the appellant’s propensity and inclination to act upon it. 166 CB gave evidence that the appellant regularly sexually abused her by coming into her bedroom at night and digitally penetrating her vagina, and on occasion also licking her vagina and touching her breasts. She said that the sexual abuse began shortly after the appellant moved into her home, when she was around five years old, and that it would take place on multiple nights a week. She said that the appellant would often smell of alcohol and cigarettes. CB said that ‘an enduring memory’ of the sexual abuse was the roughness of the appellant’s hands. She gave evidence of her efforts to avoid the abuse by wearing extra layers of clothing or by ensuring she was not sleeping in a bed alone. After the abuse ended on each occasion she would ‘…just cry’. 167 CB said that the first person to whom she disclosed the abuse was Kerri Franz. However, CB clarified that she was unsure whether she spoke about sexual or non-sexual abuse. She said that the conversation took place in the late 1980’s when she was 18 or 19 years old. 168 Kerri Franz gave evidence that CB told her that her stepfather touched her at night in her bedroom. She said this conversation took place in the late 1980’s. Bearing in mind the evidence of Kerri Franz, and notwithstanding CB’s lack of clarity as to whether this conversation related to sexual abuse or non-sexual violence, the evidence was capable of constituting an initial complaint which showed a degree of consistency of conduct by CB. More specifically, the evidence showed a consistency between what CB said to Kerri Franz (according to the evidence of Ms Franz) and the evidence of CB about the sexual abuse committed by the appellant. In that way, Kerri Franz’s evidence was generally supportive of CB’s evidence as to the alleged offending. 169 The evidence of the conversation between CB and Kerri Franz also went some way to rebutting any suggestion of collusion or innocent contamination by -- 39 of 45 -- [2026] SASCA 6 The Court 36 reason of the meeting between complainants and the police in 1998 (or by any other means after the late 1980’s). 170 The appellant challenges the credibility and reliability of CB’s evidence. It was not in dispute during the trial (nor on appeal) that if CB’s evidence was accepted beyond reasonable doubt, then Count 6 and the offending contrary to s 50 of the CLCA was made out. 171 In support of the unreasonable verdict ground, the appellant contends that CB was neither a credible nor reliable witness and emphasises her unreliability. The appellant submits that there was fertile ground for contamination or innocent contamination of CB’s evidence by reason of her knowledge of the other complainants’ allegations. It was common ground that the incident involving the appellant and JS (Count 8) which was purportedly observed by Doug Hallett occurred before CB’s initial complaint to Kerri Franz. Further, CB said that she spoke with SW about it. There was also evidence that there was an opportunity for CB to learn of LH’s allegations when they attended counselling together. However, CB said they attended counselling in relation to ‘bashings’ inflicted by the appellant rather than any alleged sexual conduct. 172 The appellant also relies on two inconsistent statements made by CB. 173 First, in a statement given to police in 1998, CB referred to an occasion where the appellant was violent over a piece of cheese. She said that she was in bed during this incident. However, in her evidence, CB said that she was not in bed at the time. When challenged about this inconsistency, CB explained that it was difficult to recall specific acts of physical violence with any precision because there were so many. 174 Secondly, the appellant submits that CB was inconsistent about what she knew of the other complainants’ allegations. In evidence, CB denied meeting up with her sisters about the sexual allegations in 1997. Yet, in a statement given to police in 1998, CB said there was an afternoon when all her sisters, except for SDH, went to DG’s home and her brothers RH and SJH also turned up. 175 As to the unreliability of CB’s evidence, the appellant also refers to CB’s testimony that a Dr Cotton told her she had multiple personalities. However, it is to be immediately observed that there was no evidence from Dr Cotton to provide any further detail about this assertion. Nor was there any evidence, at all, as to the capacity of CB having various personalities (if that was in fact the case) to affect the reliability of her evidence that she was regularly sexually abused by the appellant. There was also no evidence that such a condition might mean her memories were more easily innocently contaminated by her knowledge of other complainants’ sexual allegations. 176 The appellant also submits that CB’s evidence, insofar as it related to the appellant entering the bedroom and touching CB’s breast and/or vaginal area, or -- 40 of 45 -- [2026] SASCA 6 The Court 37 penetrating her vagina, was given at a high level of generality. However, again the prosecution was only required to prove, beyond reasonable doubt, two or more unlawful sexual acts without the need for satisfaction of the particulars of any unlawful sexual act that would otherwise be required if the sexual act were charged as a separate offence.35 177 As to CB’s evidence of a single act of cunnilingus, the appellant emphasises her evidence that she was trying ‘to disassociate from the whole thing’ and submits that this undermines her reliability either on its own, or as part of a ‘constellation of factors including self-admitted personality problems and being alcohol dependent in adulthood’. 178 Upon our own independent review of the evidence, we are satisfied that the guilty verdict on Count 6 was not unreasonable. We consider it is open to accept Kerri Franz’s evidence as to the initial complaint. This evidence buttressed CB’s credibility. The evidence of initial complaint also reduced the likelihood of collusion or innocent contamination of her evidence. Moreover, the way in which CB described the alleged offending, and the details she provided meant that there was a cogency to her evidence. For example, she recalled the ‘roughness of his hands’ when the appellant touched her. She also described the measures she took to protect herself such as by wearing additional layers of clothing to bed. These aspects of her evidence to our mind reflected a person recounting an incident which in fact took place rather than an imagined or invented (even innocently) event. 179 We also consider the inconsistencies between CB’s evidence and her police statement given in 1998, for which she provided realistic explanations, are of little moment. 180 As to CB’s reliability and the risk of collusion or contamination, we consider that the combination of the evidence of her initial complaint, and the detail and descriptions provided by CB of the alleged offending, were such that the risk of collusion or contamination did not significantly undermine the reliability of her evidence. In addition, CB’s evidence was supported in a material way by the evidence of the appellant’s propensity and inclination to act upon it. 181 On our review of the whole of the evidence, we are satisfied that the trial Judge’s guilty verdict on Count 6 was not unreasonable and can be supported by the evidence. Count 7 – Maintaining an unlawful sexual relationship with JS 182 In support of this count, the prosecution relied on the evidence of JS as supported by the evidence surrounding Count 8, including the observations by Doug Hallett of the appellant touching JS in a sexual way. The prosecution also relied on the evidence of the appellant’s propensity and inclination to act upon it. 35 Criminal Law Consolidation Act 1935 (SA) s 50(4)(b). -- 41 of 45 -- [2026] SASCA 6 The Court 38 183 In relation to Count 8, JS gave evidence that the appellant would come into her bedroom at night, touch her breasts and digitally penetrate her vagina. She recalled two occasions when the appellant licked her vagina. She could often smell cigarettes and alcohol on the appellant. She said that the sexual abuse occurred regularly, and on a weekly basis. 184 She said that at one stage when she disclosed the offending to SW, her mother corrected her and told her that she was confused, and it was in fact her biological father, IW, who had done that. 185 JS acknowledged that she had a poor memory because of a car accident in 1990 and her previous abuse of alcohol. She also accepted that she had spoken with her siblings about the appellant’s alleged offending but said that she was unaware of the details of the other complainants’ allegations. 186 In support of his contention that the verdict is unreasonable and cannot be supported by the evidence, the appellant relies on the inconsistencies between JS’s out of court statements and her evidence, and the inconsistencies between her evidence and other evidence, including that of Doug Hallett, outlined earlier. We have had regard to those inconsistencies, without repeating them, when considering whether the guilty verdict was unreasonable or cannot be supported by the evidence. 187 More specifically, we have had regard to the fact that JS did not disclose any of the alleged unlawful sexual acts in her statement to police in 1998. However, we do not consider this inconsistency significantly undermines her credibility or reliability bearing in mind the fact that Doug Hallett made observations of the appellant performing a sexual act on or with JS (Count 8) well before 1998. We have also had regard to her explanation for the inconsistency, which we consider to be a cogent one. 188 The appellant also relies on the inconsistency between the evidence of JS as to the non-sexual violence within the home that ‘the amount of blood and physical violence you saw just wasn’t pleasant at all’ and the evidence of other complainants which did not refer to any such ‘blood’. The appellant submits it is suggestive of a fundamentally defective memory. 189 The appellant also submits that JS was not a reliable witness because of the reasonable possibility of collusion or innocent contamination. Notwithstanding the evidence that JS knew at least some of the other complainants had made sexual allegations against the appellant, we have had regard to her evidence that she did not know the detail of those allegations. We have also had regard to some aspects of the evidence of JS, which in our view had the hallmarks of an account which was not invented or imagined (even by way of innocent contamination). This includes, for example, JS’s evidence that the appellant smelt of cigarettes and alcohol at the time of some of the sexual abuse. -- 42 of 45 -- [2026] SASCA 6 The Court 39 190 Upon our independent review of the evidence, we have also taken into account the significant forensic disadvantage suffered by the appellant by reason of the delay, and those specific disadvantages outlined earlier. However, again the evidence needs to be considered in the context of the charged offence being contrary to s 50 of the CLCA, and that proof of an offence contrary to this provision does not require the same level of particularity as in a case where the unlawful sexual acts were charged as separate offences.36 191 Notwithstanding the inconsistencies in the evidence of JS, as well as the risk of collusion or innocent contamination and the forensic disadvantage to the appellant, we are satisfied the trial Judge’s verdict was not unreasonable or cannot be supported by the evidence. Upon our own independent review of the evidence, the matters raised by the appellant do not individually or collectively materially undermine the credibility or reliability of JS such that his Honour must, as opposed to might, have entertained a reasonable doubt as to the appellant’s guilt. 192 Moreover, the eyewitness evidence from Doug Hallett as to one unlawful sexual act, and the appellant’s propensity, and inclination to act upon it, provided material support for the prosecution case. 193 For those reasons, we are satisfied that the guilty verdict on Count 7 was not unreasonable or unable to be supported by the evidence. Count 9 – Maintaining an unlawful sexual relationship with MW 194 As to Count 9, the prosecution relied primarily on the evidence of MW as supported by the evidence of the appellant’s propensity and his inclination to act upon it. 195 MW gave evidence that the appellant would regularly sexually abuse her by touching her on the vagina. She said that on these occasions she felt scared. MW also gave evidence of an occasion when her mother, SW, came into her bedroom and interrupted the appellant sexually touching her. 196 MW gave evidence about an occasion when the appellant performed an act of cunnilingus upon her. She said this made her feel disgusting and confused. MW estimated that the appellant sexually abused her a couple of times a week. She said the abuse only ended when she left home. 197 In evidence, MW agreed that she had difficulties in remembering the details of the sexual abuse. 198 There was also evidence from RH that he saw the appellant at the bed of MW. He said this occurred on at least one occasion when he was in bed with MW. However, MW did not give evidence that she was sexually abused by the appellant 36 Criminal Law Consolidation Act 1935 (SA) s 50(4)(b). -- 43 of 45 -- [2026] SASCA 6 The Court 40 when RH was in the bedroom or in her bed. For that reason, we will put RH’s evidence to one side. 199 In support of the unreasonable verdict ground, the appellant relies on MW’s evidence that she suffered from PTSD. It is to be immediately observed that there was no evidence as to how the symptoms of this condition may manifest themselves or whether a diagnosis of PTSD may cause a person to imagine or invent a sexual incident. That being so, and on the whole of the evidence of MW, we consider this evidence to be of little moment when assessing the credibility or reliability of MW’s evidence as to the sexual offending. 200 The appellant also relies on inconsistent statements made by MW. As to the occasion when her mother interrupted a sexual incident, MW said in evidence that her vagina was being touched by the appellant. However, when confronted with a prior inconsistent statement to police that ‘he was either just about to or had just touched’ her vagina, she said that she was not sure the appellant had in fact touched her vagina at the time her mother entered the room. Bearing in mind that MW gave evidence of the appellant repeatedly touching her vagina on different occasions but in very similar circumstances, we do not consider that this inconsistency materially undermines MW’s credibility or reliability about whether the appellant committed unlawful sexual acts with her on more than one occasion. 201 The appellant also relies on the risk of collusion or innocent contamination. It is to be accepted that MW had conversations with her siblings about the appellant having sexually abused them. While MW denied that she knew the detail of the allegations made by other complainants, we have considered the possibility that MW did know, at least, some of the detail of those allegations. However, there were aspects of MW’s evidence which undermined any suggestion that her evidence as to the sexual abuse was invented (either deliberately or by way of innocent contamination). It was reflective of a genuine memory. There is, for example, her evidence that the act of cunnilingus made her feel disgusting and confused. 202 When scrutinising the evidence, we have also taken into account the significant forensic disadvantages to the appellant by reason of the delay and, in particular, the death of SW. 203 Ultimately, we are not satisfied that any of the matters raised by the appellant considered either individually or cumulatively undermined the credibility and reliability of MW to the extent that it was not open to the trial to Judge to return a guilty verdict on this count. In addition, the appellant’s propensity and inclination to act upon his propensity provided significant support for MW’s evidence. 204 Upon our independent review on the whole of the evidence, we are satisfied that the evidence of each complainant (DG, JH, JS, CB and MW) about the appellant’s sexual abuse was cogent. Moreover, in respect of Count 6, CB’s evidence was buttressed by her initial complaint. In relation to Count 8, there was -- 44 of 45 -- [2026] SASCA 6 The Court 41 eyewitness evidence from Doug Hallett. Both the evidence of Kerri Franz and Doug Hallett was also relevant to rebutting (to some extent) the risk of collusion or contamination. The evidence of each complainant was also supported by the evidence of the appellant’s propensity and inclination to act upon it which was strongly probative of the charges given its longstanding and entrenched nature. There was no body of objective evidence, or evidence of ‘compounding improbabilities’ which could properly be characterised as a ‘solid obstacle’ to reasoning to guilt.37 This was not a case where the trial Judge must, as opposed to might, have had a doubt as to the appellant’s guilt on any of the charges for which he returned a guilty verdict. 205 For those reasons, we dismiss this ground of appeal. Orders 1. Permission to appeal is granted on Grounds 1, 5, and 7. 2. The appeal is dismissed. . 37 Pell v The Queen (2020) 268 CLR 123. -- 45 of 45 --