PHILIP CAVE v THE KING (STATE) [2026] SASCA 24

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-22-126 Appellant: PHILIP CAVE Counsel: MR B ARMSTRONG - Solicitor: NORTH EAST LAWYERS Respondent: THE KING (STATE) Counsel: MR W SCOBIE WITH MR M MOTT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 23/05/2025 File No/s: SCCRM-24-029658 B 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. CAVE v THE KING [2026] SASCA 24 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Stanley) 19 March 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS This is an application for permission to appeal against conviction. The appellant, Mr Cave, was convicted following a trial by judge alone of maintaining an unlawful sexual relationship with a child and of procuring a child to commit an indecent act; namely by procuring a child, LB, to engage in anal intercourse with another person. LB, his younger brother, and their mother, SS, lived with the appellant at his home for a period of some months in about 1985 or 1986. On LB’s account, during that time, the appellant sexually abused him. At trial, the issue in dispute was whether the prosecution had proved that two or more of the alleged sexual acts had occurred. The prosecution case depended significantly on the evidence of LB, which was challenged at trial, and on appeal, as to his credit and reliability. The appellant complained that the trial judge erred in allowing for the effect on memory of the effluxion of time. It was submitted that her Honour’s reasoning was inadequate because she resolved -- 1 of 38 -- conflicting evidence between LB and SS by recourse to reasoning that, the appellant says, has no foundation in the evidence. The appellant also complained that the trial judge failed to provide adequate reasons for a number of topics, failed to direct herself, or adequately direct herself as to the elements of the charged offence, and that the verdict was unreasonable and could not be supported by the evidence. Held, per Livesey P and Stanley JA, with whom S Doyle JA agreed, granting permission to appeal on grounds 1, 2, 4 and 5, but dismissing the appeal: 1. Ground 1: Although there was room for criticism of LB’s evidence of events occurring nearly 40 years earlier, those flaws concerned largely tangential or peripheral matters. While not strictly necessary, her Honour reconciled inconsistences between the evidence of LB and SS in relation to uncharged acts, and in doing so, took into account the passage of time, LB’s young age, and the traumatic nature of the abuse. It was open to her Honour to accept LB’s evidence in relation to the charged offending, and merely find that certain uncharged acts occurred at different times; the inconsistencies explained by flaws of memory. This reflected a permissible application of common sense and experience in relation to child complainants in historical sexual offending cases. 2. Ground 2: Read as a whole, her Honour’s reasons sufficiently explained how she rationally arrived at conclusions on a number of topics; conclusions which ultimately provided the foundation for the guilty verdict. Although it may have been preferable for her Honour to explain any permissible use of the discreditable conduct evidence, a failure to do so did not involve an error fundamental to the trial, nor is it material in the sense that the error could realistically have affected her Honour’s reasoning to the verdict of guilty in the trial that was had. 3. Ground 4: As there was no dispute that, if accepted, LB’s evidence established the elements of the charged conduct, her Honour’s acceptance of that evidence established the offence of procuring a child to commit an indecent act. Her Honour did not fail to direct herself as to the elements of the foundational offence, nor did she do so inadequately. It was unnecessary to recite them in her reasons. In any event, any omission could not realistically have affected her reasoning to guilt and was therefore not material. 4. Ground 5: On an independent assessment of the evidence as a whole, it was open to her Honour to accept LB’s evidence and be satisfied beyond reasonable doubt of the appellant’s guilt, notwithstanding inconsistencies that largely concerned peripheral matters. The verdict was therefore not unreasonable or unsupported by the evidence. Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50, 58A(1), 63B; Criminal Procedure Act 1921 (SA) s 158(1)(b); Evidence Act 1929 (SA) ss 34P, 34R ; Juries Act 1927 (SA) s 7, referred to. Alford v Magee (1952) 85 CLR 437; De Silva v The Queen (2019) 268 CLR 57; Donald v The King [2024] SASCA 121; Hamilton v The Queen (2021) 274 CLR 531; Libke v R (2007) 230 CLR 559; Lloyd v The King [2023] SASCA 106; Melbourne v The Queen (1999) 198 CLR 1; MFA v R (2002) 213 CLR 606; R v Becirovic [2017] SASCFC 156; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v Singh [2019] SASCFC 51; R v Y, K [2015] SASCFC 94; Shepherd v The Queen (1990) 170 CLR 573; Simpson v The King [2024] SASCA 37; SKA v The Queen (2011) 243 CLR 400; Sondhi v The King [2024] SASCA 7, applied. Arizabaleta v The King [2023] NSWCCA 217; Dansie v The Queen (2022) 274 CLR 651; Bowen v The King [2025] SASCA 36; Brawn v The King (2025) 99 ALJR 872; DL v The Queen (2018) 266 CLR 1; Fennell v The Queen (2019) 373 ALR 433; Hamra v The Queen (2017) 260 CLR 479; JGS v The Queen [2020] SASCFC 48; JJP v The Queen (2021) 139 SASR 91; MDP v The King (2025) 99 ALJR 969; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Perara- Cathcart v The Queen (2017) 260 CLR 595; Reed v The Queen [2006] NSWCCA 314; R v Cave [2024] SADC 28; R v Sexton [2018] SASCFC 28; SS v The King [2024] NSWCCA 128, discussed. -- 2 of 38 -- CAVE v THE KING [2026] SASCA 24 Court of Appeal – Criminal: Livesey P, S Doyle and Stanley JJA LIVESEY P AND STANLEY JA: Introduction 1 This is an application for permission to appeal against conviction. Following a trial by judge alone1 the appellant was convicted of the offence of maintaining an unlawful sexual relationship with a child, LB, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). One of the particulars of the s 50(1) offence was an allegation that the appellant procured a child to commit an indecent act by procuring LB to engage in anal intercourse with another person contrary to the provisions of s 63B of the CLCA as it now is, and s 58A(1) of the CLCA as it existed at the relevant time. 2 The sexual acts were alleged to have occurred between 1 January 1985 and 31 December 1986 when LB was between the ages of six and seven years old. The particulars of the offences alleged: First Count Statement of Offence Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence Philip Cave between the 1st day of January 1985 and the 31st day of December 1986, at Alberton and other places, maintained an unlawful sexual relationship with [LB], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [LB], namely: (a) inserting his penis into [LB’s] anus on more than one occasion, and (b) inciting or causing or procuring [LB] to engage in anal intercourse with another person. 3 The prosecution alleged that the offending by the appellant, who was an adult at the time, consisted of acts of unlawful sexual intercourse contrary to its predecessor provision, s 49(1) of the CLCA. Pursuant to s 50(6) of the CLCA, as it was at the time the appellant was tried, the offence of sexual abuse of a child extended to a relationship that existed wholly or partly before the commencement of s 50 of the CLCA. Within that section, a sexual offence is defined to include a substantially similar offence against a previous enactment. Section 49(1) of the CLCA, as it stood at the time of the alleged offending, was in the same terms 1 Juries Act 1927 (SA) s 7. -- 3 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 2 during the period particularised in the Information. Section 49(1) of the CLCA provided that a person who has sexual intercourse with any person under the age of 12 years shall be guilty of an offence. Within that section, sexual intercourse was defined to include any activity, whether of a heterosexual or homosexual nature, consisting of, or involving penetration of, the anus of a person by any part of the body of another person, or by any object. The facts 4 LB, his younger brother CL, and their mother SS were acquainted with the appellant in 1985 or 1986. For a period of some months they lived with the appellant at his home and, on LB’s account, during that time the appellant sexually abused him. 5 It was the prosecution case that when LB was around six or seven years old, i.e., between 1985 and 1986, the appellant committed a number of sexual offences against LB in the office of a car yard on Port Road where the appellant worked, and on one occasion at a hotel in Elizabeth. The sexual offences at the car yard consisted of separate instances of the appellant inserting his penis into LB’s anus. The sexual offences at the hotel also consisted of the appellant inserting his penis into LB’s anus, and one instance of the appellant procuring LB to engage in anal intercourse with another person (count 1). 6 At trial the issue in dispute was whether the prosecution had proved that two or more of the alleged sexual acts had occurred. The prosecution case depended significantly on the evidence of LB. The real issue at trial was the credit and reliability of LB’s evidence.2 7 While LB’s memory of the period from 1985 to 19863 was imperfect, he identified sexual offending at the appellant’s car yard on Port Road,4 and the occasion when the appellant told SS that he was taking LB on a trip Melbourne to buy a car, but instead, the appellant put LB in the back of a car and drove him to a hotel in Elizabeth where he was sexually abused by the appellant and another unidentified adult male.5 8 The prosecution also relied on evidence of uncharged acts. One of which involved, unlike the other occasions, the appellant coercing LB into fellating him in the bathroom of the appellant’s residence, which LB thought was in Prospect (the uncharged act of coercion to fellate).6 LB alleged that following this incident he awoke on the back lawn of the house naked with a tea towel wrapped around his neck (the uncharged act of strangulation). LB gave evidence of an argument between the appellant and SS following which, on LB’s account, SS bundled him into a taxi with CL and they drove away. LB did not see the appellant again. The 2 Trial transcript 144, 155, 157; R v Cave [2024] SADC 81 at [227]. 3 LB was born on 13 June 1979. 4 Trial transcript 28. 5 Trial transcript 23. 6 Trial transcript 15. -- 4 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 3 prosecution led this evidence to explain SS’s sudden departure with LB and CL from the appellant’s residence. 9 These uncharged acts were utilised for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA) (Evidence Act) to explain the context in which the particularised sexual acts were alleged to have occurred. The uncharged act of coercion to fellate and the uncharged act of strangulation was led as relationship rather than propensity evidence. 10 Consistent across the identified acts, charged and uncharged, was the appellant threatening, amongst other things, to “break a beer bottle” in LB’s arse, or CL’s arse, if LB did not do as he was told. The appellant also threatened that he would ‘do it’ to CL, which LB understood to mean that he would rape CL (the uncharged threats).7 11 LB accepted in cross-examination that there were aspects of that time in his life that he could not remember.8 LB said he had been taking drugs for the majority of his life but denied they affected his memory.9 LB said his memory of the appellant remained vivid and he described the impact of the offending as leaving a “very bad scar” on him.10 He said, when challenged on multiple occasions, that the offending was true and he would never forget it.11 LB said that despite the passage of time, details of the abuse stuck in his mind12 and the appellant remained in his thoughts.13 12 The prosecution led evidence from SS which supported LB’s account on the issues of timing and opportunity.14 13 Evidence was led from Mr Wilkinson of initial complaint. Mr Wilkinson was a former detective that LB knew.15 Mr Wilkinson’s evidence was not admitted as to its truth. 14 Evidence was admitted of a record of interview of the appellant which supported aspects of LB’s account.16 For example, that he had taken LB to the car yard where he was employed which was on Port Road, Alberton.17 7 Trial transcript 15, 18-19, 23, 27-28, 30, 63. 8 Trial transcript 56 (what LB said to his mother on the day of the bathroom incident), trial transcript 40- 42 (location of the applicant’s house and its layout), trial transcript 57 (the behaviour of other people living in the house), trial transcript 62 (the nature of SS’s relationship with the applicant) and trial transcript 65 (whether the applicant assisted in bathtime). 9 Trial transcript 37. 10 Trial transcript 49. 11 Trial transcript 49, 63, 75-76. 12 Trial transcript 27. 13 Trail transcript 50. 14 Trial transcript 88. 15 Trial transcript 110. 16 Trial transcript 121. 17 LB described the car yard as being on Port Road, Albert Park, which is a suburb adjacent to Alberton. -- 5 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 4 Grounds of appeal 15 The application for permission to appeal is made on the following grounds: 1. The learned trial judge erred in engaging in inadequate reasoning, in that: 1.1 Her Honour resolved, or apparently resolved, conflicting accounts of witnesses by recourse to reasoning which did not have any foundation in the evidence. 2. The learned trial judge erred by failing to provide adequate reasons, in that: 2.1 The reasons do not expose, or adequately expose, the manner in which the “obvious” forensic disadvantage to the accused was brought to account. 2.2 The reasons do not expose, or adequately expose, the manner in which her Honour dealt with the issue of the uncharged acts amounting to discreditable conduct. 2.3 The reasons do not expose, or adequately expose, the manner in which the evidence of complaint was dealt with. 2.4 The reasons do not expose, or adequately expose, the manner in which the significant internal and external inconsistencies in LB’s evidence were resolved. 2.5 The reasons do not expose, or adequately expose, the basis upon which one of the foundational offences namely the offence pursuant to (the then) s 58A(1) of the Criminal Law Consolidation Act 1935 (SA), was found proved. 3. The learned trial judge erred in treating the disclosure to (then) Detective Brevet Sergeant Wilkinson as initial complaint evidence, within the meaning of s 34M of the Evidence Act 1939 (SA). (abandoned). 4. The learned trial judge erred in failing to direct, or adequately direct, herself as to the elements of the charge offence, in that: 4.1 Her Honour failed to identify the elements of a foundational offence, pursuant to (the then) s 58A(1) of the Criminal Law Consolidation Act 1935 (SA). 5. The verdict is unreasonable and cannot be supported by the evidence. 5.1 Having regard to the discrepancies and inadequacies in the complainant’s evidence as a reasonable doubt arises as to the applicant’s guilt. 16 Ground 3 was abandoned. The judge’s assessment of LB’s credit and reliability 17 The judge found LB gave evidence with candour and in a direct and wholly believable manner, giving a compelling account of the events that he recalled. The judge was impressed by him as a man who was recounting abuse he had experienced. The judge found that LB readily agreed that he had been convicted for offences of dishonesty and had been a drug user. He showed no hesitation in -- 6 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 5 responding to questions about the circumstances of his past life. The judge found that his evidence that the abuse occurred several times at least; that he had in the past tried to put these events out of his mind; and his significant drug addiction and offending history made perfect sense in the circumstances of the abuse LB alleged. 18 The judge accepted LB’s explanation as to why he had previously denied the appellant’s offending against him; the delay in reporting the offending; and his decision to finally come forward after his attention was again drawn to the appellant. The judge considered LB’s evidence was genuine. Her Honour was prepared to accept that he was embarrassed and uncomfortable in disclosing the fact and particulars of the appellant’s offending against him. Similarly, the judge accepted LB’s evidence as to why he eventually did seek out Mr Wilkinson to report the appellant’s offending against him. 19 The judge reminded herself that it was for the prosecution to prove the appellant’s guilt and to satisfy her that LB’s evidence was credible and reliable. The judge directed herself that it was not for the appellant to show that LB was wrong or lying. Her Honour also reminded herself that merely because she rejected any motive to lie on LB’s part, that rejection did not strengthen the prosecution’s case. The judge explained that she did not treat LB’s evidence as “more credible” just because she rejected one possible reason for LB to be lying, and she did not conclude that because LB had no reason to lie, he must therefore be telling the truth. 20 The judge considered it was to LB’s credit that he disclosed he had spoken to Mr Wilkinson after he had seen reports of the appellant in the media. Given his initial reluctance to discuss the detail of the offending against him, the judge accepted it was entirely plausible that when he eventually felt able to disclose the offending he sought out Mr Wilkinson. Mr Wilkinson had previously spoken to LB about this offending; and LB understood he had some knowledge of the circumstances. 21 The judge acknowledged legitimate criticisms that were made of holes in LB’s evidence, including such fundamental matters as being unable to describe the appellant’s appearance or anything about him; nor being able to recall the precise location of the house in which he lived with SS, CL and the appellant. Nevertheless, the judge held that the general location of the house LB described accorded with the appellant’s description and location of the house, and similarly with the location of the car yard. 22 Further, the judge acknowledged that LB was unable to remember when the abuse started, how long it lasted, the duration of the offending period, or the duration of the acts themselves. She found that LB had given differing accounts of how many times the abuse had occurred. -- 7 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 6 23 The judge accepted that there was a significant forensic disadvantage to the appellant in the absence of any medical or forensic evidence of injury to LB from the alleged abuse. LB was unable to recall suffering any injury, but the judge accepted that it would be difficult for a seven-year-old child to have a precise understanding of the mechanics of the acts inflicted upon him. Nonetheless, the judge considered some support was to be found in LB’s belief that on occasions the appellant had ejaculated on his back. The judge accepted that the allegation of the appellant repeatedly raping LB on one occasion may well have been the impression LB formed at the time. 24 The judge considered that the evidence of SS supported aspects of LB’s evidence. The judge accepted SS’s evidence that she and her children lived with the appellant for a period of some months at a time when LB was around the age of seven years. The judge also accepted SS’s evidence that the appellant took an active role in caring for LB by taking him to and from school, and to his work at the car yard. The judge accepted this evidence supported a finding that the opportunity existed for the appellant’s offending against LB. 25 SS’s evidence also provided some support for LB’s account of the circumstances in which SS and her children left the appellant’s residence. She recalled an occasion when the appellant had used a tea towel to strangle LB on the back lawn.18 The judge accepted her account of this event. The judge found the drama associated with what SS saw left a sufficient impression upon her that she was able to recall the occasion, particularly in view of it being the catalyst for the end of her relationship with the appellant. However, the judge recognised that SS’s description of the back yard event did not accord with LB’s recollection, at least in relation to the sequence of the uncharged act of strangulation occurring immediately after the uncharged act of coercion to fellate, during which LB said he was naked. Nonetheless, the judge found the circumstances might be accounted for by SS’s difficulty in recollection or, more likely, the difference in their recollections was explained by the two events, namely, the uncharged act of strangulation and the final departure from the appellant’s house, being separate in time. Her Honour considered the possibility that by the time of the trial, LB recalled each event as a continuum, compressed in time by virtue of his age, the time that subsequently elapsed, and the traumatic nature of both events. The judge considered that in the mind of a young child the trauma would readily be recalled as having occurred on a single occasion. 26 The appellant’s counsel was critical of the judge’s approach to the evidence concerning the sequence of those uncharged events. He submits there was no justification in the evidence for either of the two pathways supportive of LB’s account of those events to enable the evidence of LB and SS to be reconciled. While it appears the judge accepted SS’s evidence in relation to the first pathway, the appellant submits that it would be fanciful in the extreme to entertain the possibility that SS overlooked or forgot that LB was naked when he was being 18 Trial transcript 92. -- 8 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 7 strangled by the appellant on the back lawn and when she put him in a car and left the appellant’s residence for good. Alternatively, the appellant submits the second pathway to reconciling their evidence is untenable. That pathway relies on acceptance that LB recalled the two incidents as a continuum. The appellant submits that the evidence at trial did not leave open this finding. 27 At trial LB maintained, even when challenged, that he fellated the appellant in the bathroom while he, LB, was naked; that the appellant strangled him with a tea towel on the back lawn until he was unconscious; and that his mother placed him in a taxi. The appellant submits that for those events to have occurred in that sequence, it is probable that LB would have been having a bath to explain why he was naked in the first place, the uncharged act of coercion to fellate had to have occurred in the bathroom in order to explain why it was that SS did not observe any of this conduct, the state of nakedness would have had to have persisted to the uncharged act of strangulation, which was the explanation for the swift departure from the house, which would have been necessary to explain why LB was naked when placed in the taxi. 28 The appellant submits that the evidence of SS left no scope for acceptance of LB’s evidence. Accordingly, the judge was placed in the invidious position of attempting to reconcile the evidence of LB and SS so as to find that LB was both credible and reliable in giving his evidence, particularly on this matter. The appellant submits that on the evidence it was not open to the judge to separate the two events. 29 The appellant submits no evidence was given which would permit the positive finding that the trauma would readily be recalled as having occurred on a single occasion. The appellant submits that finding was not open to the judge. In other words, the available evidence did not rationally support the conclusion reached, and therefore the judge’s reasoning is inadequate. 30 We do not accept these submissions. The judge was impressed by LB. Her Honour found him to be both credible and reliable in relation to the critical events constituting the appellant’s offending. The judge had the advantage of seeing and hearing LB give evidence of events that occurred a long time ago that were both traumatic and embarrassing. Her Honour found LB’s evidence compelling. While there was room for criticism of flaws in LB’s memory of these events, they did not necessarily require the judge to reject the crucial features of his evidence which tended to prove the charged offending. The judge allowed for the effect on memory of the effluxion of time; so that she was satisfied, beyond reasonable doubt, of proof of the elements of the offence. Her Honour was entitled to do so as the constitutional finder of fact. The inconsistencies which her Honour found tended to arise in relation to incidental or peripheral matters. 31 We will return to these issues later in these reasons when addressing the specific grounds of appeal. -- 9 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 8 Evidence of victims of child sexual abuse 32 Importantly in this case, as the law now stands, there is a more realistic understanding of the assessment of evidence of the survivors of child sex abuse. 33 In a series of cases the New South Wales Court of Criminal Appeal has held that, in determining an appeal ground of unreasonable verdict, an assessment of a complainant’s evidence, and any arguments based on inconsistencies, discrepancies or omissions of detail, must be evaluated in a way that reflects recent learning on the behaviour of victims and their capacity to recount events in detail, either immediately, or at some later time.19 In Reed v The Queen,20 Spigelman CJ observed that matters that are of tangential or of peripheral detail, which can include the timing and sequencing of traumatic events, may not be significant in evaluating a complainant’s credibility or reliability.21 34 In Arizabaleta v The King22 Rothman J of the New South Wales Court of Criminal Appeal, with whom McNaughton J agreed, said: There is a difference between a memory that a conversation occurred in particular terms and the occurrence of a traumatic event such as this. There is also a difference between a direct inconsistency in the account given and inconsistencies that arise from alleged omissions, particularly when referring to traumatic events. Often, in recounting events, when there have been, for example, a number of meetings or conversations, witnesses will recall the terms of all the conversations as if it were one conversation. The present case is not a situation such as that. Similarly, if the complainant had been sexually assaulted by the applicant on a number of occasions, as is the case in many such assaults, it would not be unusual for a complainant to elide the occurrences on one occasion with the occurrences on another. Yet, in this case, elision of that kind is impossible or unavailable. In this case, the issues raised relating to the unreliability of memory relate to two factual details. First, whether penile penetration occurred; and, secondly, whether cunnilingus occurred. Ultimately, the complainant testified as to that which she said occurred. The testimony in relation to digital penetration was consistent with her early and express complaint. Her testimony as to penile penetration is consistent with her initial complaint and reference to the applicant’s “dick”. The early complaint did not mention cunnilingus. The “inconsistency” to which Leeming JA points in his reasons is that the early complaint was not as detailed as the testimony given in court and later descriptions of all that occurred. An omission, particularly in sexual offence cases, of details of all that occurred is not necessarily inconsistent with a later version that details, in evidence, all that was said to occur. 19 SS v The King [2024] NSWCCA 128 at [162]-[165]; Arizabaleta v The King [2023] NSWCCA 217 at [210]; Reed v The Queen [2006] NSWCCA 314 at [64]. 20 [2006] NSWCCA 314. 21 Reed v The Queen [2006] NSWCCA 314 at [64]. 22 [2023] NSWCCA 217 per Rothman J at [197]-[204], McNaughton J agreeing at [225]. -- 10 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 9 Any alleged inconsistency arises because, impliedly, by omitting important detail, the witness is stating that such detail did not occur. But there are good reasons why that implicit inconsistency does not arise in sexual offence cases, in particular. All criminal offences are, to the victim, traumatic. The trauma has different effects on different people. In sexual offence cases, in particular, where there is a misplaced sense of guilt from quite innocent victims, failure to detail all of the occurrences is common and a well-known aspect of the effect of sexual assault. There is also an embarrassment factor. … Further, as I stated in Hossain v R at [261]: “That the order or details of some aspects of the account were not consistent is not unusual, as observed by McCallum JA in RA v R at [45]: ‘It is not uncommon for witnesses to be certain as to acts or sensations they recall but less certain as to the order in which they occurred.’ And as McHugh J stated in the passage from M (above at [236]): ‘If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.’” 35 In SS v The King23 the New South Wales Court of Criminal Appeal said:24 [I]t is well-established by decisions of this Court that assumptions based on misconceptions about how a sexual assault complainant might behave are inappropriate: see, for example, Khamis v R at [56]–[58] (Gleeson JA), [533] (Button J); Rao v R at [98] (Gleeson JA); Xu v R at [92] (N Adams J); Maughan v R at [2] (R A Hulme J), [13] (Adamson J), [99] (Ierace J). There are also particular considerations which may be relevant to the assessment of a child’s evidence or the evidence of an adult about events which occurred when the witness was a child. In Reed v R Spigelman CJ said at [64] (McClellan CJ at CL and Sully J agreeing): “Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.” 23 [2024] NSWCCA 128. 24 SS v The King [2024] NSWCCA 128 per Adamson JA at [162]-[165], with which Stern JA and Faulkner J agreed. -- 11 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 10 In addition, it has been noted that it is not uncommon for children to be imprecise about time and sequence of events, including sexual offences: BCM v The Queen at [45]-[47] (Hayne, Crennan, Kiefel, Bell and Keane JJ). The tribunal of fact was required to have regard to the evidence as a whole. [citations omitted]. 36 In Hamra v The Queen25 the High Court observed that the enactment of s 50 of the CLCA alters the common law principles relating to particularity, and as a result, allows a tribunal of fact to focus on the critical aspects of a complainant’s account, absent a need to prove particulars as though the charges were laid separately. 37 In JJP v The Queen,26 after considering the Court’s reasons in Hamra and other decisions of the High Court, as well as the terms of the Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse,27 Doyle JA, with whom Kelly P and Bleby JA agreed, made a number of observations relevant to this topic:28 The current version of s 50, like its predecessors, also addresses the concerns that emerge from the case law and the Criminal Justice Report associated with the difficulty that victims of child sexual abuse often have in describing the acts of abuse to which they have been subjected with the particularity that would ordinarily be required by the common law for the prosecution to allege and establish a criminal offence. It does so through the abrogation by ss 50(4)(a) and (b) of the ordinary common law principles governing particularity. While s 50(5) requires that the prosecution allege the period of time over which the unlawful sexual relationship existed, s 50(4)(a) provides that the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence. In this way, s 50(4)(a) operates to remove any requirement that the prosecution specify the date, time or place of the unlawful sexual acts alleged to constitute the unlawful sexual relationship, or indeed any requirement to otherwise provide particulars sufficient to delineate or differentiate between the unlawful sexual acts alleged. As such, s 50(4)(a) of the current version of the offence operates similarly to s 50(4)(b) of the former version of the offence. Understood in this way, s 50(4)(a) is concerned merely with the framing of a charge against an accused, and does not derogate from the elements of the offence as specified in s 50(1) (and elaborated upon through ss 50(2), (3) and (12)). In my view, s 50(4)(b) performs a related function. While s 50(4)(a) operates to remove the need for the prosecution to frame its allegations of unlawful sexual acts with the usual particularity, s 50(4)(b) operates to remove the need for the trier of fact to be satisfied of unlawful sexual acts with this usual particularity. Thus, s 50(4)(b) appears intended merely to overcome any potential obstacle to a conviction that might otherwise have existed by dint of reasoning along the lines of that adopted by this Court in R v Johnson. It ensures that there is no room to argue that a conviction is dependent upon the trier of fact being 25 (2017) 260 CLR 479 at [27]-[28]. 26 (2021) 139 SASR 91. 27 Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report, 2017. 28 (2021) 139 SASR 91 at [150]-[153]. -- 12 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 11 able to identify the unlawful sexual acts relied upon to constitute the s 50(1) offence with the usual particularity, including being able to delineate or differentiate between those acts. 38 Fallibility and malleability of human memory is a matter of fact, which involves no question of law. As the report of the Royal Commission Into Institutional Responses to Child Sexual Abuse observed:29 When a victim of crime makes a report to police and when they give evidence as a complainant, they will be retrieving or recalling information about the crime. What they can retrieve will depend upon what they encoded at the time of the crime, how that memory was consolidated and reconsolidated over time, and circumstances applying at the time of retrieval. Memory is complex, even without focussing on particular complexities arising in relation to memory of child sexual abuse. The Memory Research identified that memory generally is dynamic, reconstructive and subject to many influences, so no memory is an exact replica of an experience or event. People shape their memories of events into cohesive and coherent personal narratives; memories change over time; and minor contradictions are expected. People tend to be especially poor at reconstructing the timeframe of an event. … Children may be particularly poor at providing temporal information about events, such as identifying days of the week or months of the year. Dr Penny van Burgen, a senior lecturer in educational psychology at Macquarie University, told the round table that it is important to know that children are not necessarily able to think in terms of these temporal details so that scantness of temporal detail is not wrongly taken to be a sign that the memory is inaccurate. 39 Against this analysis, we now turn to consider the specific grounds of appeal. Ground 1 40 Ground 1 concerns an allegation that the judge’s process of reasoning to the verdict of guilty was inadequate. The appellant submits that the judge erred, in that her reasoning was inadequate, given her Honour sought to resolve conflicting evidence of LB and SS by recourse to reasoning which had no foundation in the evidence. The appellant identifies the following passage in the judge’s reasons to explain this submission:30 SS’s description of the backyard event does not accord with LB’s recollection in relation to the sequence of the event coming after the bathroom incident and where LB said he was naked. The circumstances may be accounted for by SS’s difficulty in recollection or most likely, the bathroom incident and the event on the back lawn being two separate occasions which have been recalled by LB as a continuum, no doubt because of his age at the relevant time, the time that has since elapsed and the traumatic nature of both events. In the mind of a young child, the trauma would readily be recalled as having occurred on the one occasion. I have nevertheless considered whether LB’s unreliability in joining the two events in his mind, the lack of detail in recalling particulars, the differences between his 29 Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017), Executive Summary and Part I-III, 236-238. 30 R v Cave [2024] SADC 81 at [265]. -- 13 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 12 account and that of SS, and the inconsistencies between LB’s evidence and what he had told police, have caused me to doubt the evidence he gave of the critical aspects of the alleged offending, or to depart from my favourable assessment of his evidence more generally. 41 A complaint of inadequate reasoning is a complaint that the judge’s reasoning, although apparent, does not support a finding of guilt beyond reasonable doubt. Kourakis CJ explained the concept in R v Sexton as follows:31 It is important to observe the distinction between a complaint of inadequate reasons and a complaint that a judge’s reasons do not support the verdict returned. The former is a complaint that it is not possible to discern how the judge rationally arrived at the determinative conclusions, and the latter is a complaint, in an appeal against conviction, that the reasons and intermediate findings of facts do not support a finding of guilt beyond reasonable doubt. There is an understandable tendency to slip from a complaint that the reasons are inadequate to a complaint that the Judge’s reasoning, although apparent, does not rationally support their ultimate finding of fact and therefore the verdict… 42 A complaint of inadequate reasoning provides a foundation for appellate intervention either on the ground that the verdict is unreasonable or not supported by the evidence, or on the ground that there was a miscarriage of justice.32 In Bowen v The King,33 in considering the principles relevant to a complaint of inadequate reasoning, the Court of Appeal said:34 When making a complaint of inadequate reasoning said to involve a miscarriage of justice, it is not sufficient merely to undertake a general critique of the detail of the judge’s reasons. Nor is it sufficient merely to establish that a particular conclusion or aspect of the reasoning is unsound. It will be necessary to address the significance of the particular aspect of the judge’s reasoning in the context of the reasons as a whole, and to establish that the unsound or defective reasoning was sufficiently fundamental, or material to the outcome, to result in a miscarriage of justice. It will be necessary to establish that the unsound or defective reasoning had a realistic capacity to affect the verdict. Success in establishing this to be the case will, subject to any application of the proviso, ordinarily result in an order for a retrial. Alternatively, if a complaint of inadequate reasoning is advanced in support of a contention that the verdict is unreasonable or unsupported by the evidence, it will be necessary to establish that there was no reasonable pathway to guilt which was available on the evidence at trial. The usual authorities and approach to that kind of contention will be relevant. If successful, that ground would ordinarily lead to an acquittal. [citations omitted]. 43 To establish a complaint of inadequate reasoning it is necessary to demonstrate that any defect in the judge’s reasoning had the realistic capacity to affect the verdict.35 In considering inadequacy of reasoning the focus must be on 31 [2018] SASCFC 28 at [177], Peek and Nicholson JJ agreeing. 32 Criminal Procedure Act 1921 (SA) s 158(1)(a) and (c). 33 [2025] SASCA 36. 34 Bowen v The King [2025] SASCA 36 at [38]-[39]. 35 Brawn v The King (2025) 99 ALJR 872 at [8]-[11]. -- 14 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 13 whether the reasons given rationally support the ultimate findings of fact and verdicts reached.36 44 There were distinctive features about LB’s evidence. He was prompted to protest the demand for fellatio because usually the appellant had anal intercourse with him and so he was conscious of being required to put the appellant’s penis in his mouth. LB also recalled his reluctance to do so because of the smell of the appellant’s penis. This is such a distinctive feature of LB’s evidence that it is unsurprising the judge found his description compelling. 45 While in relation to the uncharged act of coercion to fellate, and the uncharged act of strangulation, LB candidly told investigating police that he was not even sure whether those incidents had occurred, at the trial LB gave evidence of the occurrence of these uncharged acts.37 46 LB said he was unable to remember some relevant matters. The judge held that it was to LB’s credit that he did not seek to embellish or give a more extensive account when pressed for more details, and that he was not prepared to give an answer when he was unable to remember. The judge considered that LB’s expressed reluctance to fill in gaps was not the result of any attempt to avoid answering difficult questions. Rather, her Honour considered that LB was evidently frustrated by his limited recollection. The judge considered LB’s lack of memory about some details was genuine, and had to be understood in the context of someone recalling events that took place in traumatic circumstances nearly 40 years ago when he was a young child. The judge formed the impression that LB struggled to confront the abuse that he had suffered, and that this struggle was continuing. 47 The judge obviously had regard to inconsistencies between LB’s evidence in court and what he had previously said to police. The judge considered this reflected LB’s concern to recount accurately events as he recalled them, when he could recall them. Clearly, the judge found aspects of LB’s account of what occurred in the bathroom persuasive. That LB did not have a precise recollection of what the appellant was wearing at the time, whether he called out to his mother, whether he was threatened by the appellant and for how long the event occurred, did not cause her to doubt LB’s evidence of being coerced to fellate the appellant in the bathroom and being strangled with a tea towel in the back yard. As we have said, the judge found LB’s evidence compelling. 48 In any event, the judge emphasised that these uncharged acts could not be used to reason that the appellant was the type of person who would commit the charged offence, or was more likely to have done so. 49 Central to the judge’s reasoning was her Honour’s acceptance that, despite the identified flaws, LB’s evidence that the appellant had sexually abused him by 36 JGS v The Queen [2020] SASCFC 48 at [205]-[208]. 37 Trial Transcript 16-17. -- 15 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 14 performing repeated acts of anal intercourse and by procuring LB to engage in anal intercourse at the hotel with an unidentified male was consistent and unshaken. The judge, in reliance on LB’s evidence, which her Honour held was based on his memory and was real and accurate, found these events had occurred. Her findings were based on careful scrutiny of the whole of the evidence, but particularly LB’s evidence, which satisfied her beyond reasonable doubt that the abuse LB described had actually occurred. 50 It is this crucial feature of the judge’s reasoning which supported the finding that LB’s evidence, concerning the elements of the charged conduct, was honest and reliable. The judge was entitled to make that finding and act upon it. Her Honour considered the inconsistencies in LB’s evidence when compared with some of the evidence given by SS. The judge also had regard to aspects of SS’s evidence which corroborated LB’s evidence. Nonetheless, the judge was alert to inconsistencies between the evidence given by LB and the evidence of SS. But the existence of inconsistencies did not mean the evidence of LB on the crucial features of the appellant’s offending could not be accepted. The judge accepted LB’s explanation for those inconsistencies, namely the effluxion of time, the impact of the trauma from the terrible sexual abuse which he had suffered from a very young age, and his subsequent recourse to the use of illicit drugs. The judge’s reasoning relied on consistencies in LB’s evidence such as his identification of the general location of the appellant’s house in Prospect, the fact of the appellant’s employment at the car yard and importantly, its location.38 LB’s account of his relationship with the appellant was also supported by SS’s evidence which the judge accepted.39 51 As we have said, the evidence of those uncharged acts were led as relationship evidence. They were relevant to explain the opportunity that the appellant had to commit the acts of abuse, and to explain why LB submitted to the abuse and did not report it to SS. The opportunity that the appellant had to commit the abuse arose from SS allowing LB to go with the appellant to the caryard and the supposed trip to Melbourne, when instead the appellant took LB to an hotel. Those opportunities also were occasions for the appellant to threaten that if LB was to disclose the abuse, the appellant would retaliate by abusing CL, or hurting LB or CL with a broken bottle.40 52 As discussed earlier, the judge reasoned that the inconsistencies between the evidence of LB and the evidence of SS in relation to the uncharged acts culminating in LB’s departure from the appellant’s residence in a taxi was explained by flaws of memory. The judge considered whether these inconsistencies in the evidence between LB and SS were of such significance that she could not rely on LB’s evidence in relation to the crucial features of the charged offending. Upon consideration the judge was satisfied beyond reasonable doubt 38 R v Cave [2024] SADC 81 at [259]. 39 R v Cave [2024] SADC 81 at [263]. 40 Trial transcript 63. -- 16 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 15 that she could rely on LB’s evidence. There was no error in her reasoning in this way. It was a process of reasoning open to her. 53 We accept the respondent’s submission that the judge’s reasoning did not involve any flaw in logic when approaching the evidence of LB and SS as to the traumatic events that occurred nearly 40 years ago when LB was a little boy. The reasoning was based in human experience, which the judge was entitled to draw on. The reasoning the appellant complains of in this ground of appeal concerned incidents which were not charged conduct; not an element of the charged offence; and were not indispensable links in the chain of reasoning to guilt.41 54 Importantly, the reasoning of the judge did not involve a rejection of LB’s evidence that each of the charged events had occurred, but merely a finding that uncharged acts occurred at different times.42 The judge’s reasoning did not involve impermissible speculation. Rather, her Honour’s reasons are a reflection on the process of reasoning a judge or jury is required to undertake as the constitutional finder of fact. 55 We would dismiss ground 1. Ground 2 56 The appellant submits that the judge erred by failing to provide adequate reasons. There are five sub-grounds of appeal on this ground. We have set out those grounds earlier in these reasons. 57 Ground 2 is a complaint about the reasons actually given by the judge as opposed to the reasoning process applied. The appellant submits that to the extent there is a tension between this ground and grounds 1 and 5, it should be understood that ground 2 is argued in the alternative. We do not understand what the appellant means by this submission. As Kourakis CJ pointed out in Sexton, it is important to observe the distinction between a complaint of inadequate reasons and a complaint that a judge’s reasons do not support the verdict returned. Accordingly, the former complaint is not an alternative to the latter complaint. Each stands or falls on its own. In the circumstances, we address the submission that the judge’s reasons failed to explain how the judge rationally arrived at the conclusions that provide the foundation for the guilty verdict. 58 The appellant’s submission addressed a number of topics, namely, forensic disadvantage, discreditable conduct, evidence of complaint and the reconciliation of internal and external inconsistencies. The appellant also complained that the judge failed to direct herself as to the elements of the underlying sexual offences as required by s 58A(1) of the CLCA. We will return to these topics. 41 Shepherd v The Queen (1990) 170 CLR 573. 42 Sondhi v The King [2024] SASCA 7 at [53]-[60]. -- 17 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 16 59 The principles relevant to the provision of adequate reasons were explained in the joint judgment of the High Court in DL v The Queen43 where Kiefel CJ, Keane and Edelman JJ in the majority said:44 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. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. 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 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]. 60 Reasons will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. A complaint of inadequate reasons is an assertion that it is not possible to discern how the trial judge rationally arrived at the conclusion by which he or she determined the matter.45 Central to the question of whether the reasons are adequate is whether or not a judge’s reasons enable the appeal court to understand the basis upon which the verdict was reached.46 This involves a consideration of whether the reasons reach “… a minimum acceptable level to constitute a proper exercise of judicial power”.47 Finally, it is important that the reasons of a judge sitting alone are to be read as a whole. In undertaking that task it is inappropriate to focus on isolated 43 (2018) 266 CLR 1. 44 DL v The Queen (2018) 266 CLR 1 at [32]-[33]. 45 R v Sexton [2018] SASCFC 28 at [177]. 46 R v Y, K [2015] SASCFC 94 at [39]. 47 JGS v The Queen [2020] SASCFC 48 at [204]. -- 18 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 17 aspects of the reasons, or to impugn certain aspects of the reasons divorced from the context of the issues joined at trial.48 Forensic disadvantage 61 In relation to forensic disadvantage, the judge gave herself the following direction:49 A period of almost 40 years had elapsed between the charged offending and the trial. There can be no doubt that this delay has resulted in a significant forensic disadvantage to the accused with respect to testing the prosecution evidence or obtaining evidence that may have assisted him in challenging that evidence. For example, the evidence of other workers at the car yard or staff at the motel in Elizabeth, where the offending is alleged to have taken place. Memories of events and surrounding circumstances, of all prosecution witnesses and the accused, have been significantly impaired. Relevant documentary or forensic evidence has not been available which may have assisted the defence. I have taken into account the significant forensic disadvantage to the accused when scrutinising the prosecution case. 62 Later in her reasons, the judge gave herself a further direction50 explaining her Honours approach to the appellant’s forensic disadvantage. Given the significant passage of time it was difficult for the accused to confirm his movements at the time, to obtain any documents which would have established his whereabouts, or his living and working circumstances more generally. The records from the motel, the records from his car yard about when he might have attended there and when he was working, house rental records showing where he was living, and that sort of material may have assisted with the accused’s defence. He could not call an ex-partner who was referred to in the record of interview because they had lost contact or others who stayed at the house and may have observed interactions between LB and the accused or between the accused and SS, or people who worked at the car yard. These issues made it more difficult to cross-examine LB on matters of detail. 63 Those directions were adequate. 64 It was not necessary for the judge to descend into a description of her process of reasoning as to how she brought her recognition of the appellant’s forensic disadvantage to account beyond that direction. To suggest otherwise would be contrary to the distinction between inadequate reasoning and inadequate reasons. It is clear that the judge had regard to the appellant’s forensic disadvantage in making findings of fact. No more was required. To suggest that the appellant’s forensic disadvantage was compounded by the nature of the charged offences, which did not require the specific particularity of other criminal charges, is to impermissibly reverse the effect of the statutory amendment effected by the enactment of s 50(4) of the CLCA. 48 Donald v The King [2024] SASCA 121 at [43]-[49]. 49 R v Cave [2024] SADC 81 at [6]. 50 R v Cave [2024] SADC 81 at [252]. -- 19 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 18 Discreditable conduct 65 In relation to discreditable conduct, the judge gave herself the following direction:51 I received evidence of the accused’s discreditable conduct and allegations of uncharged acts committed against LB. This evidence concerned the reports in the media regarding other offending by the accused, which was led to show the circumstances in which the complaint was made. I received evidence of the accused having committed fraud in Victoria, which had been led by defence purely for the purpose of showing an alibi. I received evidence regarding the bathroom incident, and violence alleged to have occurred on the lawn, with threats made against LB and his brother. This evidence was led as relationship evidence and not for any propensity use with respect to the charged acts. I have not reasoned that any of this evidence can be used to reason that the accused is the type of person who would commit the offence with which he is charged, or that he is more likely to have committed the charged offence. 66 The evidence of discreditable conduct was of uncharged threats, the uncharged act of coercion to fellate, and the uncharged act of strangulation. In addition, there was evidence adduced of the appellant’s prior convictions for child sexual offences, and evidence of his conviction for a dishonesty offence, which was alleged to bear on the opportunity to have committed the charged offending. The judge’s reasons identified this evidence52 and also contained directions on the use of the evidence. The judge directed that the uncharged acts could not be used, and were not used, to reason that the appellant was the type of person who would commit the charged offence, or was more likely to have done so.53 The judge did not place much reliance on the evidence of uncharged threats, but did consider the uncharged act of coercion to fellate and the uncharged act of strangulation.54 The submissions of both parties at trial did not dwell extensively on the evidence of discreditable conduct; this reflected the real focus of the forensic contest between the parties.55 67 The judge’s reasons adequately explain the use her Honour made, and did not make, of the evidence of discreditable conduct. The evidence was addressed by the judge consistently with her directions, of which no complaint is made. This court is not impeded in fulfilling its appellate role on a review of the whole of the evidence and the judge’s reasoning. Evidence of complaint 68 The judge found that LB’s initial complaint was to Mr Wilkinson.56 This finding was made notwithstanding the finding that the initial complaint to Mr Wilkinson was made after LB had seen reference to the appellant in the media,57 51 R v Cave [2024] SADC 81 at [6]. 52 R v Cave [2024] SADC 81 at [6], [27], [52], [62], [69]. 53 R v Cave [2024] SADC 81 at [6], [266]. 54 R v Cave [2024] SADC 81 at [266]. 55 Simpson v The King [2024] SASCA 37 at [61]. 56 R v Cave [2024] SADC 81 at [257]. 57 R v Cave [2024] SADC 81 at [258]. -- 20 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 19 and after LB had a previous conversation with Mr Wilkinson in which he had denied that the appellant had sexually abused him. Clearly the judge found LB’s later evidence in this regard to be credible and reliable. 69 The judge accepted that there was a significant degree of consistency of conduct in the complaint LB made to Mr Wilkinson and LB’s evidence at trial. LB told Mr Wilkinson that he had been sexually abused by the appellant when he was about six or seven and that the abuse occurred at Port Road, Albert Park, at a hotel in Elizabeth, and at the house where he, SS and CL lived with the appellant. 70 The judge accepted that LB’s decision to approach Mr Wilkinson with his complaint of the appellant’s offending was easy to accept given the history between them, the difficulties that LB had with police previously, and LB’s reluctance to confront his history, whether because of his drug use or his sense of embarrassment. 71 In this context the judge gave herself directions that the initial complaint to Mr Wilkinson was not admitted as evidence of the truth of LB’s allegations, and that there may have been many reasons why he made the complaint to Mr Wilkinson when he did. LB knew Mr Wilkinson and understood that Mr Wilkinson had some knowledge of allegations against the appellant. The judge accepted that it was understandable why LB sought out Mr Wilkinson. 72 The appellant submits that the judge needed to explain how her finding of initial complaint was reconciled with her finding that LB did not have a fixed position as to whether he called out to his mother immediately after the uncharged act of coercion to fellate. Clearly LB did not feel he could give accurate and reliable evidence of calling out to his mother. In any event, we do not consider that calling out to his mother would have constituted an initial complaint, even in the circumstances where the judge found that LB had called out to SS. 73 We do not accept the appellant’s submission that the judge was required to do more to explain how she concluded that the complaint to Mr Wilkinson was the initial complaint. The judge’s explanation for why she accepted that was the initial complaint was adequate. No more was required. Reconciliation of internal and external inconsistencies 74 In relation to the appellant’s complaints concerning the reconciliation of internal and external inconsistencies, it is important to recognise that in respect of any complaint about the adequacy of a judge’s reasoning an appellant must establish that an issue is in significant factual or evidential dispute, such that it is a necessary step to the ultimate verdict, rather than a peripheral or subsidiary one.58 75 One of the principal complaints made by the appellant focusses on the evidence of the uncharged act of coercion to fellate, the uncharged act of 58 Lloyd v The King [2023] SASCA 106 at [34]-[41]. -- 21 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 20 strangulation and the subsequent departure from the appellant’s residence in a taxi. The difference between LB and SS’s evidence on these uncharged acts was resolved in a manner that was open to the judge. There was significant overlap in the content of LB and SS’s evidence, including that there was a violent incident involving a tea towel in the garden that precipitated the family permanently leaving the appellant’s residence. LB’s evidence of the actual act of fellatio was not witnessed by SS. 76 LB’s evidence that he was placed in the car while naked is not implausible given the evidence of the surrounding circumstances. While SS did not remember LB being naked in the back yard before being placed into a car, this Court cannot reject LB’s evidence as incapable of acceptance. 77 The judge contemplated two pathways to resolve this issue, but ultimately considered that it was more likely that LB had elided the two events. That finding was adverse to LB’s credit and reliability. However, the judge proceeded to consider whether that finding, together with the other criticisms brought by the appellant, when the whole of the evidence, including LB’s evidence, was reviewed, was such that the judge was unable to accept LB’s credibility and reliability beyond a reasonable doubt on the critical aspects of the offending.59 It was only after that process of fact finding was undertaken by the judge that her Honour felt able to find that, despite these frailties, LB’s evidence, and the supporting aspects of the prosecution case, were adequate to establish the elements of the offence beyond reasonable doubt. 78 The judge observed that the discrepancy between SS and LB concerned the timing and sequencing, rather than the truth of the fact of the uncharged act of coercion to fellate and the uncharged act of strangulation. The judge considered the discrepancy could be explained on the basis of the passage of time, LB’s tender age when it occurred, and the impact of the trauma inflicted on him. These were not matters requiring any further explanation. The state of LB and SS’s evidence on these matters were not mutually destructive or inconsistent in a manner that meant both aspects could not stand together insofar as a finding was made by the judge that they could both have occurred. 79 The judge’s reasoning did not involve any flaw in logic in approaching the evidence of LB and SS concerning the evidence of traumatic events occurring nearly 40 years ago. As we said earlier, the judge’s reasoning was grounded in her human experience, which she was entitled to draw on as the finder of fact. The result of the judge’s reasoning was not, in any event, a rejection of LB’s evidence that each event had occurred, but instead an acceptance they had occurred, in differing circumstances.60 59 R v Cave [2024] SADC 81 at [265]. 60 Sondhi v The King [2024] SASCA 7 at [94]. -- 22 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 21 80 The appellant submits that it was not open on the evidence for the judge to find that LB had conjoined the uncharged acts as having occurred in fact but, contrary to LB’s evidence, at different times. The appellant submits that however much the assessment of complainants in historical sexual abuse trials has advanced, the conjoining of two events into one, in the circumstances of this case, exceeded what is permitted by commonsense and/or institutional experience. It required expert evidence. 81 We do not accept this submission. 82 This is simply a question of timing. At issue is whether the two events occurred on a single occasion, or separate occasions. It is a quintessential example of the mischief that the Parliament was seeking to rectify when addressing the obstacles confronting children giving evidence in historical sexual abuse trials. The authorities in this field recognise that the courts can evaluate critical evidence in such trials, notwithstanding the absence of particular evidence of timing. 83 Evidence was led from LB, and SS, of the violent circumstances in which LB, SS and CL fled the appellant’s house. This evidence of the violent conclusion to the relationship between the appellant and both SS and LB was relevant to explain the lack of contact by SS and LB with the appellant in the subsequent 40 years, and the delay in the prosecution of the appellant’s offending against LB. The difference between their evidence is whether or not the departure from the appellant’s residence occurred immediately after the uncharged act of coercion to fellate and the uncharged act of strangulation, and whether LB was naked. In any event, and as we have said, these were uncharged acts, they did not affect the core contest as to the credit and reliability of LB’s evidence in relation to the charged acts. Was the judge’s reasoning inadequate 84 The appellant submits that the judge, having admitted discreditable conduct evidence pursuant to s 34P(1) of the Evidence Act, about which there is no complaint, failed to provide adequate reasons explaining how that evidence might be used. The reasons for judgment explain the impermissible use of such evidence, and that the judge did not use that evidence for an impermissible purpose. However, the appellant submits the reasons do not explain how that evidence might have been used for a permissible purpose. The appellant submits that while this constituted a failure to provide adequate reasons for how the judge reached the guilty verdict, this was also a contravention of the obligation imposed by s 34R of the Evidence Act. 85 Section 34P provides: (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— -- 23 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 22 (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. (4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court. (5) The court may, if it thinks fit, dispense with the requirement in subsection (4). 86 Section 34R provides: (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. (2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly. 87 If evidence of discreditable conduct is admitted pursuant to section 34P(1), s 34R(1) obliges the judge, whether or not sitting with a jury, to identify and explain the purpose for which the evidence may, and may not, be used. 88 In Perara-Cathcart v The Queen61 the High Court said:62 A sufficient direction under section 34R(1) must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Compliance with 61 (2017) 260 CLR 595. 62 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [51]. -- 24 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 23 section 34R is mandatory. Whether there has been compliance with section 34R(1) will depend on the circumstances of the case. 89 The obligation under s 34R(1) is framed by the real issues at trial. It is well established that a determination of whether there has been compliance with s 34R(1) requires a consideration of the issues and forensic contest in any given case. In JGS v The Queen63 Lovell J, as he then was, said:64 As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defense. Ultimately, when considering the adequacy of the directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use. [citations omitted]. 90 In this case, the prosecution adduced discreditable conduct evidence of relationship, both between SS and the appellant, and between the appellant and LB. Relevantly, while the discreditable conduct evidence, which in this case was admitted without objection, was relevant and admissible, it was not deployed by the prosecution as a plank in reasoning to the appellant’s guilt. The judge identified the impermissible use of that evidence and expressly excluded any reliance upon it. However, the judge’s reasoning does not evidence any actual use by her Honour of that evidence. Any permissible use of that discreditable conduct evidence was not identified, probably because it was not used. In those circumstances, the failure to identify and explain permissible use evidence does not satisfy the materiality test. 91 In fact, the appellant also led discreditable conduct evidence for the purpose of establishing an alibi in the nature of his commission of dishonesty offences at around the time of the sexual abuse of LB. The forensic purpose of this evidence was to raise the reasonable possibility that the alleged abuse did not occur. 92 In two recent decisions, Brawn v The King65 and MDP v The King,66 the High Court held that there is a materiality threshold for the second limb of the common form appeal provision.67 The Court held in MDP that the materiality threshold is to be applied within the context of the following four steps. 93 First, the appellant must identify a “decision” by the trial judge on a “question of law”. The natural and ordinary meaning of a decision on a question of law involves some determination or response to a question of law by a trial judge that 63 [2020] SASCFC 48. 64 JGS v The Queen [2020] SASCFC 48 at [97]. 65 (2025) 99 ALJR 872. 66 (2025) 99 ALJR 969. 67 The equivalent to s 158(1)(b) of the Criminal Procedure Act 1921 (SA). -- 25 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 24 has legal effect in the trial. Whether a trial judge has made a decision is to be considered in the context of the duties and obligations of the trial judge at a criminal trial.68 94 Second, if there is a decision on a question of law, the appellant must then establish that the decision was wrong.69 95 Third, if it is shown that there was a wrong decision on a question of law, the appellant must show that the wrong decision involved an error that was either fundamental to the trial or, if not fundamental, material in the relevant sense, i.e., an error that could realistically have affected the reasoning of the judge, or jury, to the verdict of guilty in the trial that was had. If the wrong decision was in respect of a question of law that was fundamental to the trial, then the guilty verdict must be set aside and the proviso is necessarily inapplicable.70 96 Fourth, if the wrong decision on a question of law does not concern a question that was fundamental to the trial, but is nevertheless found to be material, the appeal must be allowed. That is unless the prosecution establishes that no substantial miscarriage of justice occurred, i.e., by applying the proviso.71 97 In this case, there is a decision on a question of law, namely, the failure of the judge to explain in what permissible way her Honour may have used the discreditable conduct evidence, having eschewed any use of the discreditable conduct evidence for the impermissible purpose of bad person reasoning. That decision on the question of law arose from an inadequacy of reasons and non- compliance with s 34R. 98 However, the materiality threshold has not been met. There is no indication that the judge used the discreditable conduct evidence for a permissible purpose. It is not a realistic prospect that she did so. The decision of the judge not to deploy the discreditable conduct evidence for a permissible purpose could not realistically have affected her reasoning to a verdict of guilty. Having regard to the circumstances of the trial that occurred, there was no realistic possibility that she relied on the discreditable conduct evidence, and thus no possibility of her reasoning process being affected. The judge’s failure to explain how she could have used the evidence for a permissible purpose did not involve an error fundamental to the trial, nor is it material in the sense that the errors could realistically have affected the judge’s reasoning to the verdict of guilty in the trial that was had. 99 In the circumstances, the question of the application of the proviso does not arise. 68 MDP v The King (2025) 99 ALJR 969 at [3], [9], [30], [44], [56], [78], [99] and [100]. 69 MDP v The King (2025) 99 ALJR 969 at [3], [9], [31], [44], [103]. 70 MDP v The King (2025) 99 ALJR 969 at [3], [9], [33], [44], [78], [104], [106] and [107]. 71 MDP v The King (2025) 99 ALJR 969 at [3], [9], [44], [78] and [108]. -- 26 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 25 Proof of the foundational offence pursuant to section 58A(1) of the CLCA 100 The appellant submits that the judge’s reasons did not expose, or adequately expose, the basis upon which the foundational offence, pursuant to s 58A(1) of the CLCA, was proved. 101 For reasons that are more conveniently addressed under ground 4, the judge’s reasons72 for judgment read as a whole make clear she had regard to the underlying sexual offences in s49(1) and s58A(1) of the CLCA as it stood at that time. 102 We would dismiss ground 2. Ground 4 103 Ground 4 is that the judge erred in failing to direct, or adequately direct herself, as to the elements of the charged offence, in that her Honour failed to identify the elements of a foundational offence, pursuant to s 58A(1) of the CLCA, as it then was. 104 The appellant submits that the judge’s failure to identify the elements of the former s 58A(1) of the CLCA as one of the “unlawful sexual acts” for the purposes of the s 50 offence justifies setting aside his conviction. 105 In JJP v The Queen73 Doyle JA, with whom Kelly P and Bleby JA agreed, considered it was necessary for directions to be given as to the elements of the underlying sexual offences of a charge laid pursuant to s 50 of the CLCA. While JJP was a jury trial, the appellant submits that the identification of the elements of the offence was a necessary component of a judge’s reasons for verdict. 106 The judge gave herself the following directions with respect to the elements of the foundational offence of unlawful sexual intercourse:74 The prosecution must prove beyond reasonable doubt each of the following elements: 1. The accused knowingly maintained a relationship during the relevant period. 2. The accused was an adult during the relevant period. 3. LB was a child under the age of 17 during the relevant period. 4. The accused engaged in two or more unlawful sexual acts with LB in the course of the relationship. 3. The prosecution alleges that the offending alleged in particular (a) and (b) are acts of unlawful sexual intercourse contrary to the previously enacted s 49(1) of the Criminal Law Consolation Act (the Act). 72 R v Cave [2024] SADC 81 at [2]-[5]. 73 (2021) 139 SASR 91 at [154]-[169]. 74 R v Cave [2024] SADC 81 at [2]-[5]. -- 27 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 26 Pursuant to s 50(6) of the current Act, the offence of sexual abuse of a child extends to a relationship that existed wholly or partly before the commencement of s 50. A sexual offence is defined to include a substantially similar offence against a previous enactment. Section 49(1) of the previously enacted Act was in the same terms during the period particularised in the information. Section 49(1) of the Act during the time relevant to the offending here provided that a person who has sexual intercourse with any person under the age of 12 years shall be guilty of an offence and sexual intercourse was defined to include any activity, whether of a heterosexual or homosexual nature, consisting of or involving penetration of the anus of a person by any part of the body of another person or by any object. With respect to the second particularised act on the information, the prosecution submits that the accused has committed the act of procuring a child to commit an indecent act contrary to the current s 63B Criminal Law Consolidation Act 1935 (and former s 58A(1) Criminal Law Consolidation Act 1935). 107 As we said, the appellant submits the judge failed to give herself directions, or failed to adequately direct herself, with respect to the offence pursuant to s 58A(1) of the CLCA. He submits that the judge simply found beyond reasonable doubt that the appellant committed the offence of procuring LB to engage in anal intercourse, without any reference to how she arrived at that verdict. He submits that the judge was required to expose the basis upon which she arrived at that finding of guilt, but she failed to do so. 108 We do not accept this submission. 109 At trial the real issue was the credibility and reliability of LB’s evidence.75 While the appellant’s counsel did submit that the relationship element was in issue76 there was no submission made that, if LB’s evidence was accepted, the second particularised unlawful sexual act would not be made out in respect of any particular element. On appeal, complaint is now made about a matter that was not in contest in any real sense at trial. This ground was not the subject of submissions at the trial. That is the context in which this Court must evaluate whether the judge succeeded in her fundamental task of identifying the real issues in dispute at trial,77 and whether, where it is submitted there was a real risk that a miscarriage of justice occurred, that risk actually existed.78 110 The directions made clear that the judge had regard to the underlying unlawful sexual offences, namely, contraventions of ss 49(1) and 58A(1) of the CLCA, as they were at the relevant time. Her Honour was satisfied beyond reasonable doubt that on more than one occasion the appellant had anal intercourse with LB, and on the occasion in the hotel, had incited, caused or procured LB to engage in anal intercourse with an unidentified man. Acceptance of LB’s evidence 75 Trial transcript 144, 155, 157; R v Cave [2024] SADC 81 at [227]. 76 Trial transcript 143; R v Cave [2024] SADC 81 at [263]. 77 Alford v Magee (1952) 85 CLR 437 at 466; Melbourne v The Queen (1999) 198 CLR 1 at 143. 78 De Silva v The Queen (2019) 268 CLR 57 at [35]; Hamilton v The Queen (2021) 274 CLR 531 at [54]- [55]. -- 28 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 27 of this event at the hotel amounted to proof beyond reasonable doubt of the elements of the offence of procuring a child to commit an indecent act. 111 In the circumstances, the judge did not need to provide any further explanation as to how she arrived at the verdict of guilty in reliance upon LB’s evidence. It was not a case where the appellant was pressing upon the Court a submission that even if the judge accepted LB’s evidence of the acts of abuse, the underlying elements of the charged conduct would not, or could not be satisfied in any way. In our view, ground 4 is not reasonably arguable, and even if made good, given the real issues in the trial, it would not amount to a material error.79 112 We would dismiss ground 4. Ground 5 113 Ground 5 complains that the verdict is unreasonable and cannot be supported by the evidence. The appellant submits the judge should have had a reasonable doubt as to the appellant’s guilt having regard to the discrepancies and inadequacies in LB’s evidence. 114 The test for determining an unreasonableness ground is authoritatively stated by the High Court in M v The Queen,80 and later refined in the context of trials by judge alone in Dansie v The Queen.81 This being a trial by judge alone, the question for this Court is whether it was open to the judge upon an assessment of the evidence as a whole, to be satisfied of guilt beyond reasonable doubt, that is to say whether the judge must, as distinct from might, have entertained a doubt about the appellant’s guilt.82 115 In considering this ground this Court must undertake its own independent assessment of the evidence. It must do so to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant is guilty of a charged offence.83 In undertaking that assessment, this Court must also consider and weigh any competing evidence to the prosecution case.84 116 This Court must not disregard or discount either the consideration that the judge was entrusted with the primary responsibility of determining guilt, and the consideration that in this case the judge had the benefit of having seen and heard the witnesses. Instead, this Court must pay full regard to those considerations.85 79 Brawn v The King (2025) 99 ALJR 872 at [8]-[11]. 80 (1994) 181 CLR 487. 81 (2022) 274 CLR 651 at [16]. 82 Libke v R (2007) 230 CLR 559 at [113]. 83 Dansie v The Queen (2022) 274 CLR 651 at [7]. 84 SKA v The Queen (2011) 243 CLR 400 at [24]. 85 M v The Queen (1994) 181 CLR 487 at 494-495; MFA v R (2002) 213 CLR 606 at [59]. -- 29 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 28 117 In Pell v The Queen86 the High Court explained the Court of Appeal’s function in the following terms:87 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. 118 In the joint judgment of the High Court in M v The Queen,88 Mason CJ, Deane, Dawson and Toohey JJ in the majority said:89 In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. 119 This authoritative statement of the principles applicable to a trial by jury applies equally to a judge where the trial is by judge alone.90 In Dansie91 the High Court said:92 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 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. 120 As we have said, the evidence at trial was that in about 1985 and 1986 SS, LB and CL lived with the appellant. LB gave evidence that during this time he was sexually abused by the appellant on a regular basis. While his memory of that time is incomplete, he gave consistent evidence of sexual offending against him 86 (2020) 268 CLR 123. 87 Pell v The Queen (2020) 268 CLR 123 at [39]. 88 (1994) 181 CLR 487. 89 M v The Queen (1994) 181 CLR 487 at 494. 90 R v Becirovic [2017] SASCFC 156 at [211]-[212]. 91 Dansie v The Queen (2022) 274 CLR 651. 92 Dansie v The Queen (2022) 274 CLR 651 at [16]-[17]. -- 30 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 29 by the appellant at the car yard on Port Road and on one occasion at an hotel in Elizabeth. In the latter case the appellant, at the very least, also permitted an unidentified male to sexually abuse LB. The nature of the sexual abuse constituting the charged offence was anal intercourse. The final instance of the appellant abusing him was at the appellant’s residence when LB and CL were in the bath, and the appellant coerced LB to fellate him, being the uncharged act of coercion to fellate, followed by the uncharged act of strangulation. A characteristic of LB’s evidence was graphic threats of violence by the appellant using a broken bottle, being the uncharged threats. 121 As can be seen, the prosecution case depended on proof beyond reasonable doubt of LB’s evidence of the crucial elements of the charged offence. LB’s evidence was supported to a degree by the initial complaint evidence given by the former detective, Mr Wilkinson, and the evidence of SS in relation to the opportunity afforded to the appellant to commit the conduct constituting the charged offence, and related to that, aspects of the relationship between LB and the appellant. 122 While it is accepted that LB’s evidence in some aspects exhibits inconsistencies and omissions of detail, resulting in a lack of precision in his evidence as to the timing of repeated sexual assaults, these shortcomings are consistent with the traumatic nature of the offending against him, his very young age at the time of the alleged offending, and the very considerable effluxion of time between the alleged offending, the provision of a witness statement to the police and LB’s evidence at the trial of the appellant. By the time LB gave evidence requiring him to recall a series of traumatic crimes of which he was the victim, it is hardly surprising that he was unable to recall tangential or peripheral matters. Acceptance of this does not require doubt about the credibility or reliability of the allegations of sexual offending against him. On the contrary, it is relevant that the judge had the benefit of having seen and heard the witnesses, including LB. 123 As has been made clear, the prosecution case was that LB’s evidence as to the central features of the charged offence was credible and reliable and while there were inconsistencies in his evidence they largely concerned peripheral and tangential matters. 124 Section 50(4) of the CLCA abolished the common law requirement to particularise the timing of the offending, and permitted the trier of fact to be satisfied without requiring the particulars of any unlawful sexual act that it would otherwise have to have been satisfied of if the act were charged as a separate offence. While the trier of fact must be satisfied as to the general nature or character of those acts, a careful analysis of all the evidence satisfies me as to the general nature of the offending by the appellant against LB, namely anal intercourse, and procuring LB to engage in anal intercourse with another person. In the circumstances, the evidence did not require a reasonable doubt as to the fundamentals of LB’s allegations of sexual abuse against him. -- 31 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 30 125 Further, in assessing the matters relied upon by the appellant, this Court may also take into account the realities and frailties of human experience; of how the recollection of traumatic events may differ, the impact upon a person’s account, and the assessment of their reliability. We have referred to these considerations throughout these reasons. This was explained by the High Court in Fennell v The Queen93 as follows:94 Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability… 126 The appellant’s case was that LB’s evidence was attended by such frailty that it was incapable of acceptance. He did not submit that there was objective evidence that represented a solid obstacle to guilt as in Pell, but rather the accumulation of inconsistencies and significant forensic disadvantage suffered by the appellant, given the decades that had passed since the alleged offending meant the judge had to be left with a reasonable doubt as to guilt. 127 This case is readily distinguishable from Pell. This is not a case of compounding improbabilities caused by unchallenged evidence which would have required the judge, acting rationally, to have entertained a doubt as to the appellant’s guilt. In Pell those compounding improbabilities were caused by the unchallenged evidence of a sacristan who accompanied the appellant at the same time it was alleged he had been committing the charged offences, as a result of which the jury should have entertained a reasonable doubt as to his guilt. Such evidence was conspicuously absent in this case. 128 In Pell, while the High Court proceeded on the assumption that the jury assessed the complainant’s evidence as thoroughly credible and reliable, the issue the Court identified was whether, notwithstanding that assumption, the compounding improbabilities caused by the unchallenged limited opportunity evidence required the jury, acting rationally, to have entertained a doubt as to guilt. Unlike Pell, in this matter, for the reasons we have explained, there are not the compounding improbabilities from unchallenged evidence which should have caused the judge to have entertained a doubt as to the appellant’s guilt. 129 Accordingly, on an independent review of the evidence, we are satisfied that it was open to accept LB’s evidence of the occurrence of the offending conduct, 93 (2019) 373 ALR 433. 94 Fennell v The Queen (2019) 373 ALR 433 at [81]. -- 32 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 31 particularly having regard to the manner in which it is now well recognised that trauma can affect the memory of child victims of sexual offending. The evidence accepted by the judge went beyond support for a finding that LB’s evidence was credible and reliable. The judge also found that the evidence of SS supported aspects of LB’s account on the topics of the relationship between LB and the appellant, and on the opportunity to have committed the charged offending. None of this involved the judge overlooking the issues with details of LB’s evidence which exposed inconsistencies in his account of tangential and peripheral matters. The judge explained why that feature of LB’s evidence did not give rise to any doubts about the credibility and reliability of LB’s core allegations.95 130 The appellant’s task on this ground is to establish that the judge must, as distinct from might, have had a doubt about the evidence given by LB in proof of the offence. In discharging that obligation, the appellant has to grapple with the fact that proof of guilt requires satisfaction beyond reasonable doubt of two or more unlawful sexual acts without the need for satisfaction of the particulars of any unlawful sexual act that it would otherwise have to have been satisfied of if the act were charged as a separate offence.96 131 The judge was alert to LB’s failure to mention aspects of the offending when interviewed by Mr Wilkinson. Throughout LB’s evidence the judge returned to the traumatic impact the offending had upon him, which in turn explained why it had taken so long for him to be willing to speak about it, including an earlier outright denial to Mr Wilkinson that he had been sexually abused by the appellant. In giving evidence LB frankly admitted his criminal antecedents, drug use and mental illness, nonetheless when challenged as to the truth of the offending conduct, his evidence was unshaken that he had been sexually abused by the appellant. In that context the appellant sought to rely on the risk of LB’s evidence being contaminated. The evidence was that he had learned from media reports and from Mr Wilkinson that the appellant had a history of suspected or actual child sexual abuse. The appellant submits that it is this very kind of contamination that has the capacity to cause a witness to innocently adopt a narrative, which in part or whole, is something other than that which actually occurred. The appellant submits that the opportunity for LB’s knowledge of the appellant’s other misdeeds to coagulate with the appellant’s apparent mistreatment of LB during his childhood was, in the circumstances of this case, real. 132 We do not accept this submission. 133 On the evidence the potential for contamination had arisen by 1997 or 1998, but LB did not make any complaint to the police or Mr Wilkinson. By 2011, when he gave a statement to Mr Wilkinson, the content of his complaint was broadly consistent with his primary evidence of the abuse he had experienced at the hands of the appellant, alleging multiple acts of intercourse at the car yard and when he 95 R v Cave [2024] SADC 81 at [194]. 96 Criminal Law Consolidation Act 1935 (SA) s 50(4)(b). -- 33 of 38 -- [2026] SASCA 24 Livesey P and Stanley JA 32 was taken to the hotel. LB testified that he had undertaken research online in relation to the appellant. He denied that the research or media reports he had seen had contaminated his memory. 134 Finally, the appellant submits that as the transcript reveals LB has a capacity and a willingness to be untruthful in connection with his dealings with authorities, including the Court, such that the judge should have entertained a reasonable doubt about the appellant committing the offence given that the prosecution case was firmly based on the credit and reliability of his evidence. 135 We do not accept this submission either. 136 As we have said, LB was frank about his record for dishonesty with the police. More importantly, the judge having carefully weighed LB’s evidence, including the criticisms of it, nonetheless remained satisfied beyond reasonable doubt of the truth of his evidence concerning the acts constituting the charged offence. 137 As a result, the appellant’s complaints do not substantially undermine LB’s credibility or reliability to the extent that a verdict of not guilty must have been returned by the judge. 138 We would dismiss ground 5. 139 We are satisfied that this Court is not impeded in fulfilling its appellate role when reviewing the whole of the evidence and the judge’s reasons. Disposition of the appeal 140 We would grant permission to appeal on grounds 1, 2, 4 and 5, but would dismiss the appeal. 141 S DOYLE JA: I agree with the orders proposed in the joint reasons of Livesey P and Stanley JA, being orders granting permission to appeal on each of the grounds pressed, but dismissing the appeal. 142 As set out in the joint reasons, the appellant was charged with one count of maintaining an unlawful sexual relationship with a child, LB, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). This charge was particularised as encompassing two types of unlawful sexual acts by the appellant: namely, (a) inserting his penis into LB’s anus on more than one occasion, and (b) inciting, causing or procuring LB to engage in anal intercourse with another person. 143 The evidence at trial, the reasons of the trial judge and the matters raised on appeal have been summarised in the joint reasons and need not be repeated. 144 As described in the joint reasons, LB gave evidence at trial of an uncharged occasion when he was required to perform fellatio on the appellant while naked in the bathroom, before then being choked with a tea towel in the backyard, and then -- 34 of 38 -- [2026] SASCA 24 S Doyle JA 33 leaving the house with his mother (SS) and younger brother (CL) in a taxi while still naked. These events were referred to by the parties as the bathroom and strangulation incidents. When SS gave evidence, she recalled the choking incident and leaving the house with the children in a taxi. However, she was not aware of the bathroom incident, and did not recall LB being naked when they left in a taxi. 145 This discrepancy between the evidence of LB and SS was the basis for the Ground 1 complaint that the judge’s reasoning was inadequate. In particular, the appellant argues that there was no rational basis for the judge to resolve this discrepancy between the evidence of LB and SS. Whilst allowing for the possibility that SS may have forgotten that LB was naked, the judge ultimately resolved the discrepancy on the basis that it was most likely (given his young age, the time that had passed, and the traumatic nature of the events) that LB had mistakenly remembered two separate incidents as one continuous incident. 146 In responding to this complaint, the first observation I would make is that it was not strictly necessary for the judge to ‘resolve’ this discrepancy, in the sense of reconciling the discrepancy, or making a finding as to the explanation for it. It was sufficient that the judge took this discrepancy into account in forming her view as to the credibility and reliability of LB’s evidence, both generally and in relation to the charged offending. That said, it is often useful, in considering a discrepancy, such as the one that arose in this case, to identify and canvass some of the potential explanations for that discrepancy. Even if the explanation remains unclear, considering the possible explanations may assist in determining the weight or significance that should be attached to the discrepancy. 147 In the present case, for the reasons set out in the joint reasons, I see no difficulty with the judge expressing a view that it was likely that LB misremembered two occasions as one continuous occasion. In my view, this involved a permissible application of common sense and experience in relation to child complainants of historical sexual offending, rather than reasoning that was inappropriately speculative in the absence of expert evidence. In any event, I see no difficulty with the judge having accepted, after appropriate reflection upon the evidence as a whole, that this discrepancy did not stand in the way of her Honour accepting that the bathroom and choking incidents both occurred; and that the unreliability of LB’s evidence in suggesting that they occurred on the same occasion did not undermine her Honour’s general acceptance of the credibility and reliability of LB’s evidence, including in relation to the charged occasions. There was nothing implausible, let alone unreasonable or irrational, in her Honour’s reasoning. Accordingly, Ground 1 has not been made out. 148 Ground 5 involves a related complaint that the frailties in LB’s evidence were such that the verdict of guilty was unreasonable; that it was not reasonably open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt. Whilst the centrepiece of this complaint was the discrepancy between the evidence of LB and SS in relation to the uncharged occasion, the appellant also relied upon some -- 35 of 38 -- [2026] SASCA 24 S Doyle JA 34 additional inconsistencies and sources of frailty in LB’s evidence. I agree with the analysis and rejection of those complaints in the joint reasons. 149 I interpolate at this point that I would endorse the reference in the joint reasons to the discussion, in the New South Wales cases to which they refer, of the evidence of child complainants in cases involving allegations of sexual offending. Care is needed in assessing the significance of inconsistencies, discrepancies and omissions in a child complainant’s account of sexual offending. There is nothing in these authorities which suggests any error in the judge’s approach to LB’s reliability or credibility. Further, in the absence of any basis for thinking that the judge misunderstood or misused her advantage from having seen and heard the complainant give evidence, these authorities tend to underscore the potential advantage of a trial judge who has seen and heard the child give evidence, and the consequential care required by this Court before intervening on appeal. These observations have informed my approach to not only Grounds 1 and 5, but also Ground 2(d) (addressed below). 150 Ground 4 involves a complaint that the judge failed to set out in her reasons the elements of the foundational offence said to render particular (b) (procuring LB to engage in anal intercourse with another person) an unlawful sexual act. As explained in the joint reasons, there is no merit in this complaint. It is to be accepted that a judge instructing a jury will generally need to identify the elements of the relevant foundational offence.97 However, the position is more flexible in a trial by judge alone. In the present case, there was no dispute that, if the judge accepted LB’s evidence as to the relevant incident, it involved the commission of the foundational offence alleged. In those circumstances, there was no need for the judge to recite the elements of the offence in her reasons. Alternatively, and in any event, in the circumstances I have described, her Honour’s failure to do so could not realistically have affected her reasoning to guilt, and hence was not material in the relevant sense.98 151 Ground 2 involves a complaint of inadequacy in the judge’s reasons in relation to various topics: (a) forensic disadvantage; (b) the uncharged acts; (c) evidence of complaint; (d) inconsistencies in LB’s evidence; and (e) the offence of procuring LB to engage in anal intercourse with another. 152 I agree generally with the joint reasons for rejecting the complaint that the judge did not adequately address these matters in her reasons. In relation to (a), the judge identified the sources of forensic disadvantage and made it clear that she had borne this disadvantage in mind in her treatment of the evidence. Given the general way in which this consideration usually feeds into the fact-finding process, I do not think any further articulation of the judge’s reasoning was required. 97 JJP v The Queen (2021) 139 SASR 91 at [154]-[169] (Doyle JA, Kelly P and Bleby JA agreeing). 98 MDP v The King (2025) 99 ALJR 969; Brawn v The King (2025) 99 ALJR 872 at [8]-[11] (the Court). -- 36 of 38 -- [2026] SASCA 24 S Doyle JA 35 153 In relation to (b), I am satisfied that the judge adequately addressed the use made of the uncharged acts (namely, the bathroom and choking incidents). As the judge explained in her reasons (at [6]), this evidence of discreditable conduct was not led for any propensity purpose; it was led only as ‘relationship evidence’. The judge twice (at [6] and [266]) disavowed any propensity use of this evidence. 154 I accept that it would have been better had the judge explained the ‘relationship’ use of the evidence. However, that use was relatively clear and uncontroversial. The evidence was led as illustrative of the abusive relationship between the appellant and LB, with LB’s description of the bathroom incident including reference to the appellant threatening to assault LB (by ‘smashing’ a beer bottle ‘in his arse’), or to ‘do it’ to LB’s younger brother, if LB did not comply with the appellant’s demands. It was an illustration of the way in which the appellant achieved his sexual abuse of LB and, in particular, achieved LB’s compliance and silence. It was also led as explaining how the appellant’s sexual abuse of LB came to an end, with LB (and his mother and brother) leaving the house in a taxi after the choking incident and ending their relationship with the appellant. 155 Understood in this way, the permissible use of the uncharged act was not only clear and uncontroversial, but also confined to a general and contextual use. I do not think that it required any greater explanation or elaboration in order to ensure compliance with the judge’s obligations both to comply with the requirements of s 34R of the Evidence Act 1929 (SA) (to identify and explain the permissible use of the evidence) and to provide adequate reasons. The judge’s compendious reference to its ‘relationship’ relevance was sufficient for this purpose. Whilst general descriptors of this nature may not be sufficiently informative when addressing a jury,99 there was no real dispute or doubt about the limited and general permissible use of the evidence of the uncharged acts in this case. 156 In any event, even if there was an error in the judge’s failure to articulate in more detail her permissible use of the evidence of the uncharged acts, it is plain from the terms of her Honour’s reasons that she did not use this evidence in any impermissible way. It can thus be said with confidence that any error did not have any realistic capacity to affect her Honour’s reasoning to guilt, and hence was not material in the relevant sense. 157 Despite this relatively limited and general use for which the evidence of the uncharged acts was admitted, it is to be acknowledged that it took on a greater prominence at trial. Perhaps because of the specificity and detail of LB’s evidence, as well as the discrepancy between the evidence of LB and SS, it became a significant battleground in the forensic contest in relation to LB’s reliability and credibility more generally. The judge plainly recognised this significance of the 99 R v Singh [2019] SASCFC 51 at [98]-[100] (Doyle J, Peek and Parker JJ agreeing); R v MJJ; R v CJN (2013) 117 SASR 81 at [19] (Kourakis CJ and Vanstone J agreeing); R v Nieterink (1999) 76 SASR 56 at [85] (Doyle CJ, Perry and Mullighan JJ agreeing). -- 37 of 38 -- [2026] SASCA 24 S Doyle JA 36 evidence and therefore addressed it at some length. However, having addressed its significance to LB’s reliability and credibility, its only residual relevance was in the ‘relationship’ sense mentioned above. For the reasons already set out, there was no need for her Honour to say more than she did about this general relevance and use of the evidence. 158 In relation to (c), insofar as this was pressed, I agree with the joint reasons for rejecting it. 159 In relation to (d), this involved a repetition of the matters raised under Ground 5, but pressed on the alternative basis that the judge failed to adequately set out her reasons for not accepting that the frailties in LB’s evidence stood in the way of her Honour accepting that that the charged offending had been established beyond a reasonable doubt. As I understand it, this complaint was pressed in the alternative to Ground 5 in the sense that Ground 5, which alleged an unreasonable verdict, involved a contention that it was not reasonably open to resolve the doubt arising from the frailties in LB’s evidence and that an acquittal must follow. Paragraph (d) of Ground 2, on the other hand, involved an argument that the judge erred in not explaining her reasons for concluding that the frailties did not give rise to any reasonable doubt, with the result that there should be a retrial. Once again, I agree with the joint reasons for rejecting this complaint. 160 In relation to (e), for the reasons already given in addressing the Ground 4 complaint that the judge failed to identify the elements of the foundational offence involved in particular (b) of the charged offence, there was no need, in the context of the forensic contest at trial, for the judge to recite those elements in her reasons. Her failure to do so did not make her reasons inadequate. 161 For these reasons, I agree with the orders proposed in the joint reasons. -- 38 of 38 --