FLETCHER (A PSEUDONYM) v THE KING [2026] SASCA 35

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE SCHAMMER) DCCRM-22-373 Appellant: FLETCHER (A PSEUDONYM) Counsel: MR W MICKAN - Solicitor: SHAW LEGAL & ADVISORY Respondent: THE KING Counsel: MR J SLOCOMBE WITH MS N WILLIAMSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/06/2025 File No/s: SCCRM-24-040411 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. FLETCHER (A PSEUDONYM) v THE KING [2026] SASCA 35 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stanley) 9 April 2026 CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW CRIMINAL LAW - EVIDENCE - CREDIBILITY - EVIDENCE IN CONTRADICTION This is an application for permission to appeal against conviction. Following a trial by judge alone, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The complainant is the sister of the appellant. The complaint evidence was given by the complainant, her friend, and her brother. The complainant initially disclosed the offending to her friend and subsequently to her brother. The evidence of the complainant and her brother regarding the complaint was adduced pursuant to s 34M of the Evidence Act 1929 (SA) (Evidence Act), as an elaboration of the initial complaint. The appellant sought leave to appeal on a single ground relating to the evidence of complaint, specifically relating to the brother’s evidence. The appellant complained that the trial judge’s reasons do not adequately resolve the conflict between the complainant and the brother as to the precise terms of the complaint, nor the conflict between her Honour’s various intermediate findings on the brother’s evidence. Held, per the Court, granting permission to appeal but dismissing the appeal: -- 1 of 24 -- 1. While the trial judge found there were differences in what the brother recalls the complainant telling him, the brother’s evidence was largely consistent with what the complainant told the Court; an account of which the trial judge found was truthful. 2. It follows that, this was not a case of such significant disparities in the two accounts that the trial judge was bound to use these discrepancies in forming her overall assessment of the credibility of the complainant. The trial judge only had to consider the evidence of the elaborated complaint made to the brother in terms of the limited use that could be made of such evidence. 3. Where discrepancies exist between the evidence of the complainant and the brother concerning the elaborated complaint, but where the elaborated complaint evidence from the brother was not the only source of complaint evidence admitted at trial, it was nonetheless open to the trial judge, in her overall assessment of the evidence, to conclude that, in respect of some matters, she preferred the evidence of the complainant over the evidence of her brother, and to accept some of the evidence given by the brother while rejecting other evidence he gave. 4. Further, the absence of challenge to aspects of the brother’s evidence, together with the likelihood that discrepancies were the result of misunderstanding or imperfect recollection, supported the trial judge’s findings. 5. In those circumstances, the discrepancies were not so significant as to establish the ground of inadequate reasons or, for that matter, inadequacy of reasoning, particularly having regard to the high bar that must be overcome to reach the latter finding. Rather, the trial judge’s reasons, read as a whole, adequately explain the basis upon which her Honour made her findings in relation to the complaint evidence. 6. Accordingly, the appellant failed to demonstrate any appellable error in the trial judge’s findings, or inadequacy in the trial judge’s reasons. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M, referred to. Carr v The King [2024] SASCA 69; JGS v The Queen [2020] SASCFC 48; Kirkland v The Queen [2021] SASCA 14; Pham v The King [2025] SASCA 94; R v Wickers (2019) 134 SASR 504; R v Y, K [2015] SASCFC 94; TM v The King [2024] SASCA 5, applied. AK v Western Australia (2008) 232 CLR 438; Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92; DL v The Queen (2018) 266 CLR 1; Donald v The King [2024] SASCA 121; R v E (1996) 39 NSWLR 450; R v Humble (2009) 193 A Crim R 324; R v Rippey; Rippey v The King [2022] SASCA 141; R v JLF [2024] SADC 107; R v Landmeter (2015) 121 SASR 522; R v Sexton [2018] SASCFC 28, discussed. Brown (A Pseudonym) v The King [2025] SASCA 40, considered. -- 2 of 24 -- FLETCHER (A PSEUDONYM) v THE KING [2026] SASCA 35 Court of Appeal – Criminal: Bleby, David and Stanley JJA THE COURT: Introduction 1 The appellant was found guilty after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 2 The offending occurred at Morphett Vale and other places between 19 December 2019 and 23 February 2021 when the victim of the offending, (the complainant), was aged 12 or 13 years. The complainant is the appellant’s sister. At the time of the offending the appellant was aged between 21 and 23 years. 3 This was the second trial of the appellant on this charge. Overview of the facts and issues 4 The prosecution case was that the appellant touched the complainant on her bottom, breasts and vagina on more than one occasion; inserted his finger into her vagina on more than one occasion; and placed her hand on his penis on one occasion. 5 At the second trial the complainant’s evidence comprised prescribed interviews and a recording of her evidence from the earlier trial. Most of the particularised acts occurred in the complainant’s bedroom. The appellant would regularly stay at the complainant’s home on weekends and, on his own admission, would sleep in her bedroom. On one occasion, the complainant alleged that the appellant digitally penetrated her in the lounge room. She also alleged that the appellant engaged in unlawful sexual acts in a tent set up at the family home (offending in the tent), at a friend’s house on New Year’s Eve 2020, and at her grandmother’s house. The prosecution case critically depended upon an acceptance of the complainant’s evidence. The prosecution sought to draw support for the complainant’s account from evidence of an initial complaint to a friend 1 in late 2020, and a subsequent elaboration of that complaint to her other brother in about February 2021. 6 The appellant participated in a record of interview in June 2021, during which he denied the allegations. He also gave evidence at the earlier trial; the transcript of that proceeding was tendered as an exhibit in this trial. In his evidence, the appellant denied the allegations and provided an alternative explanation for many of the matters which featured in the complainant’s account. 1 T 4, 233. -- 3 of 24 -- [2026] SASCA 35 The Court 2 7 The appellant’s case at trial challenged the credibility and reliability of the complainant. This included relying upon prior inconsistent statements and the complainant’s admitted use of drugs throughout the particularised period. The appellant also challenged the credibility and reliability of the other brother, who it was alleged had tailored his evidence and had told various lies. The trial judge was urged to be extremely cautious in accepting that brothers evidence insofar as it was relied upon to support the complainant’s evidence as to the offending.2 8 The key issue at trial was the complainant’s credibility and reliability. The significance of this was two-fold. First, it informed the court’s assessment of the content of the trial judge’s obligation to provide adequate reasons. Second, evidence of complaint could assume particular significance in such a trial. Central to the appeal is the appellant’s challenge to the complaint evidence adduced at the appellant’s trial. 9 Complaint evidence is admissible as an exception to the hearsay rule. It is admissible for the limited purposes of explaining how the allegation first came to light and assessing whether the complainant has been consistent regarding his or her account of the alleged sexual abuse. It is relevant in assessing the credibility and reliability of a complainant. Evidence of this nature can assume particular significance in the context of a trial which critically depends upon acceptance of the complainants evidence. 3 10 Accordingly, it was necessary for the trial judge’s reasons to do two things. First, to adequately expose the reasoning process by which her Honour resolved the anterior factual conflicts bearing upon the use of the complaint evidence, and second, to identify how her Honour’s reasons supported the conclusions reached.4 Ground of appeal 11 The appellant seeks leave to appeal against his conviction on a single ground relating to the evidence of the complaint to the complainant’s other brother (the brother).5 The appellant contends that the trial judge erred in the way in which her Honour evaluated and used the complaint evidence. Ground 1 is particularised as follows: (a) The trial judge failed to make findings as to the precise terms of the complaint to [the brother] citing paragraphs [734], [737] of the reasons for judgment (reasons); (b) The trial judge erred in finding that the complaint demonstrated consistency of conduct, in the sense of consistency between the terms of the complaint and [the complainant’s] sworn evidence citing paragraphs [738]-[739] of the reasons; (c) The trial judge erred in finding that the complaint demonstrated consistency of conduct, in the sense of [the complainant] making a complaint when, and in 2 T 238-240; [2024] SADC 107 (Trial reasons) at [488]. 3 Donald v The King [2024] SASCA 121 at [68]. 4 Donald v The King [2024] SASCA 121 at [49]. 5 AB 3. -- 4 of 24 -- [2026] SASCA 35 The Court 3 circumstances, one might expect. This particular is no longer being pursued by the [appellant]; (d) The trial judge did not adequately resolve the conflict between [the brother] and [the complainant’s] evidence as to the terms of the complaint citing paragraphs [735], [738] of the reasons; (e) The trial judge erred in failing to have regard or alternatively, adequate regard, to the conflicts between [the brother] and [the complainant] in assessing the credibility and reliability of [the complainant]; and (f) The trial judge did not adequately resolve the internal conflict between her findings as to [the brother’s] credibility and reliability, including how those intermediate findings impacted upon her analysis of the complaint evidence citing paragraphs [627] cf [737] of the reasons. 12 The appellant submits that the trial judge’s reasons do not adequately resolve the conflict between the complainant and the brother as to the precise terms of the complaint, nor the conflict between her Honour’s various intermediate findings that generally concern the brother’s evidence. The consequence is that the trial judge: (i) did not make findings as to the precise terms of the complaint to the brother; (ii) held that the complaint evidence demonstrated consistency of conduct in circumstances where the evidence did not have that capacity;6 and (iii) failed to consider how the inconsistency between the brother’s evidence of the content of the complaint and the allegations made by the complainant in evidence impacted upon her Honour’s assessment of the complainant’s credibility and reliability. 13 The appellant submits that he and the court have been deprived of adequate reasons and reasoning dealing with a matter central to the evaluation of the complainant’s credibility. It is common ground that if the court is satisfied of the errors raised on the appeal, this is not an appropriate case in which to apply the proviso.7 6 In this connection, consistency of conduct means consistency between the wording of the complaint and the conduct alleged. The appellant does not pursue a submission that consistency means in this case consistency in making the complaint when it would be expected to be made. 7 [Fletcher (a pseudonym] v The King (Court of Appeal, SCCRM-23-017785, Livesey P, S Doyle JA and David JA), at [82]. -- 5 of 24 -- [2026] SASCA 35 The Court 4 General principles Inadequacy of reasons 14 In Boyle (a pseudonym) v The Queen8 this Court analysed the judicial obligation to give reasons in the following terms:9 The judicial obligation to give reasons is directed, in part, to facilitating the exercise of a party’s right of appeal, in addition to promoting public accountability as to how and why a judge has made a particular decision. Reasons for a verdict following a trial by judge alone or magistrate are essential to enable an appellate court to perform its statutory function in determining whether the judge has correctly applied the relevant rules of law. The adequacy of a magistrate or judge’s reasons (distinct from the adequacy of reasoning) will depend on the circumstances of each case. However, there are general established principles that operate as a guide. Reasons are to be read as a whole. It is not necessary for a judge or magistrate to give extensive and elaborate reasons. The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision. However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge. A trial magistrate or judge will ordinarily be expected to expose their reasoning on points critical to the contest between the parties. This expectation applies to both evidence and argument. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. [citations omitted]. 15 In AK v Western Australia10 the High Court said:11 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]. 16 In DL v The Queen12 the High Court gave further consideration to the principles. The majority held that between the extremes of inconsequential mere inadequacies and those which go to significant matters necessary to reach a verdict, 8 (2022) 299 A Crim R 92. 9 Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92 at [118]-[120]. 10 (2008) 232 CLR 438. 11 AK v Western Australia (2008) 232 CLR 438 at [85]. 12 (2018) 266 CLR 1. -- 6 of 24 -- [2026] SASCA 35 The Court 5 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. 17 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 conclusions by which he or she determined the matter.13 Central to the question of whether the reasons are adequate is whether or not a trial judge’s reasons enable the appeal court to discharge its function.14 This involves a consideration of whether the reasons reach a minimum acceptable level to constitute a proper exercise of judicial power.15 Finally, it is important that the reasons of a judge sitting alone are read as a whole. It is inappropriate to focus on isolated aspects of the reasons or to argue certain aspects of the reasons divorced from the context of the issues joined for trial. 18 In Donald v The King16 this Court summarised the principles in the following terms:17 The obligation of a judge to give adequate reasons in a trial by judge alone is well established. The necessary implication of s 7 of the Juries Act 1927 (SA), which provides that an accused may elect to be tried by judge alone and that the decision of the judge has the same effect as a verdict of a jury, is that a judge will provide reasons. The giving of reasons is an established incident of the judicial process. Reasons in a trial by judge alone are essential to enable the parties and the community to understand why the verdict has been reached, to enable the parties to assess whether there might be grounds to appeal, and for an appellate court to perform its statutory function of determining whether the judge has correctly applied the relevant rules of law. In Fleming v The Queen, the High Court considered the adequacy of reasons in the context of a trial by judge alone and held that the obligation to give reasons demands more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”. In Fleming, there was a statutory duty to give reasons, but the obligation to give adequate reasons is no less burdensome at common law. The adequacy of reasons must be assessed by reference to the forensic issues at the trial. Matters that were of limited significance or were not relied on by the parties at trial do not require detailed consideration by the trial Judge. The reasons should deal with the critical matters at issue in the proceedings. It would only be productive of unnecessarily long reasons if judges were required to mention every fact or argument relied on by the losing party as relevant to an issue. A judge’s failure to mention such facts and arguments cannot be presumed to be evidence that he or she has not properly considered the losing party’s case. 13 R v Sexton [2018] SASCFC 28 at [177]. 14 R v Y, K [2015] SASCFC 94 at [39]. 15 JGS v The Queen [2020] SASCFC 48 at [204]. 16 [2024] SASCA 121. 17 Donald v The King [2024] SASCA 121 at [43]-[48]. -- 7 of 24 -- [2026] SASCA 35 The Court 6 In DL v The Queen, the High Court explained that inadequacy of reasons is not always established by a failure to resolve every matter in dispute, nor because they fail to provide a minute explanation for every step in the reasoning process. Kiefel CJ, Keane and Edelman JJ said: 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 obligated 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) Whilst it is not necessary for a judge to give extensive or elaborate reasons, an appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. The reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge. In assessing the adequacy of reasons, it is important to consider them as a whole. It is not appropriate to focus on specific aspects of the reasons or to divorce those aspects from the context of the arguments put at trial. [citations omitted]. -- 8 of 24 -- [2026] SASCA 35 The Court 7 Inadequacy of reasoning 19 In R v Sexton18 Kourakis CJ outlined the distinction between a complaint of inadequate reasons, and one of inadequate reasoning in the following terms:19 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. In the context of a criminal appeal against conviction pursuant to s 353 of the CLCA, the latter complaint may be an appeal on the ground that the verdict was unreasonable or not supported by the evidence, in which case it will result in an acquittal. Alternatively it may be an appeal on the ground that there has been a miscarriage of justice because the reasoning actually employed does not support the conviction even though there was another rational basis on which guilt might have been proved on the evidence. In such a case, there will ordinarily be an order for a retrial. These grounds might be made good, or shown to be unfounded, by reference to matters of evidence or law which are not dealt with in the judge’s reasons. 20 This Court has recently emphasised that a high bar must be overcome to reach a conclusion of inadequate reasoning.20 The appellant’s submissions did not really engage with the distinction between inadequate reasons and inadequacy of reasoning as discussed by Kourakis CJ in Sexton. The appellant’s submission conflated the two propositions.21 Complaint evidence 21 Section 34M of the Evidence Act 1929 (SA) (Evidence Act) governs the purpose, admission and use of complaint evidence in sexual cases. The section prescribes the mandatory directions required in trials in which initial complaint evidence is admitted. Specifically, the section requires that a jury must be directed as provided by ss 34M(4)(a), (b) and (c) and 34M(5). Section 34M of the Evidence Act provides: (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. 18 [2018] SASCFC 28. 19 R v Sexton [2018] SASCFC 28 at [177]. 20 Donald v The King [2024] SASCA 121 at [80]; Pham v The King [2025] SASCA 94 at [16]. 21 Respondent’s written submissions at [38]. -- 9 of 24 -- [2026] SASCA 35 The Court 8 (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). 22 In R v Rippey; Rippey v The King22 this Court discussed the circumstances in which complaint evidence is admissible as follows:23 To be admissible under s 34M(3), the complaint must be one that is referable to the charged conduct, and hence capable of demonstrating a degree of consistency of conduct on the part 22 [2022] SASCA 141. 23 R v Rippey; Rippey v The King [2022] SASCA 141 at [113]-[115]. -- 10 of 24 -- [2026] SASCA 35 The Court 9 of the complainant. However, it is not necessary that the terms of the complaint correspond precisely with the charged conduct. Evidence of a complaint about an alleged sexual offence will be an initial complaint, as defined in s 34M(6), and be admissible, despite the complaint not being accompanied by a description of the offending conduct, provided the evidence of the complaint is capable of being probative of the purposes specified in s 34M(4)(a)(i) or s 34M(4)(a)(ii); that is, the evidence is capable of informing the jury as to how the allegation first came to light and is evidence of the consistency of conduct of the complainant. In the case of a general complaint of sexual abuse, it is accepted that evidence of the complaint will be admissible if it encompasses the charged conduct. As Peek J explained in R v S, DD, this approach is necessary and appropriate because it is often unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity. Similarly, the fact that there are discrepancies between the terms of the complaint and the charged conduct is not generally a barrier to the admissibility of the complaint. The requirement that the complaint be referable to the charged conduct calls for a broader and more general enquiry, with discrepancies between the complaint and the charged conduct generally being relevant not to the admissibility of evidence of the complaint, but to the directions that must be given as to the use that might be made of the complaint. As explained in R v E, in a passage quoted with approval in R v Humble, discrepancies between the terms of the complaint and the allegations made in evidence will be relevant to the degree of consistency demonstrated by the making of the complaint, and hence the jury’s consideration of the credibility of the complainant’s evidence: Evidence of complaint is also relevant to the credit of the complainant. If a complaint has been made in substantially the same terms as the complainant’s sworn evidence, that may be treated as enhancing the credibility of the sworn account. If, on the other hand, a complaint has been made in substantially different terms (because it was altogether different or because it contained additional allegations or did not contain all the allegations made in the sworn evidence), that may be treated as detracting from the credibility of the sworn account of events. This is because consistency, in giving the same account after the event as in sworn evidence, may be treated as enhancing the likelihood that the sworn account is true, and inconsistency may be treated as having the converse effect … [citations omitted]. Ground 1 – the complaint evidence 23 The complaint evidence was given by the complainant, her friend and her brother. 24 There was no challenge to the admissibility of the complaint evidence, nor was there an overt challenge to the brother’s evidence concerning the complaint. This was emphasised by the prosecutor during her closing address24 and was the subject of analysis by the trial judge.25 The appellant submits this involved a flawed premise from which to evaluate the evidence of complaint. 25 The appellant submits that the trial judge should have exercised extreme caution in accepting the brother’s evidence, particularly where it was relied upon 24 T 234.13-14. 25 Trial reasons at [624], [627]. -- 11 of 24 -- [2026] SASCA 35 The Court 10 to support the complainant’s evidence of the offending.26 The appellant submits that the balance of the brother’s evidence concerned relatively peripheral matters and did not have the capacity to support the complainant’s account as to the offending. 26 In her first prescribed interview, the complainant alleged that the first person she told about the offending was her friend. The complainant told her friend that the appellant had touched her sexually and had tried to have sex with her.27 She did not tell her friend exactly what the appellant had done.28 Her friend gave evidence that the complainant told her that the appellant was trying to touch her in her “private areas”.29 The complainant said the appellant would “do stuff” to her. In cross-examination the complainant’s friend accepted that she told the investigating police she could not recall the exact words used by the complainant and that she must have interpreted “private parts” from what the complainant told her.30 The trial judge found the friend’s recollection of the complainant using words to the effect of the accused trying to touch her in her “private parts” was consistent with the nature of the offending as described by the complainant.31 27 The complainant gave evidence that she only told her brother about the alleged offending after she had told her friend. She explained that the context of the conversation was that she had been fighting with her mother and had attempted to overdose on pills. She then went and visited her friend before being picked up by her brother and mother. On the way home, the complainant’s brother and mother both shouted at her and asserted that she was attention seeking. When they returned home, the complainant and her brother remained in the car.32 The complainant said that she then:33 … ended up telling him, because I didn’t want them to think I was doing it for attention. I don’t remember the exact words, but I just told him that like [the appellant] has been touching me for a while now, and I didn’t really want to be there at the time. 28 When the prosecutor sought to elicit further details as to the terms of the complaint, the complainant said that she did not remember the exact words, that she would not have told her brother in detail, but instead would have said that the appellant was “touching me”.34 The trial judge accepted that this was a complaint of sexual touching. 29 The brother’s account of the surrounding circumstances was largely consistent with that given by the complainant. He gave evidence that the complainant initially did not provide any detail, but that she elaborated as he asked 26 T 240.4-7; Trial reasons at [488]. 27 Trial reasons at [287]. 28 Trial reasons at [287]. 29 Trial reasons at [292]. 30 T 173-174, Trial reasons at [294]. 31 Trial reasons at [731]. 32 Trial reasons at [733]-[734]. 33 MFI P19 at T 131.9-33; Trial reasons at [295]. 34 MFI P19 at T 133.31-32. -- 12 of 24 -- [2026] SASCA 35 The Court 11 her questions.35 The brother explained that the complainant told him it started with “just cuddles” and escalated. The prosecutor sought further details, and he responded that the complainant said:36 … one time in the bed that they were cuddling and she felt his, like, penis on her and she just couldn’t say anything, or do anything and didn’t know what to do, and then, like, she got, like, touched or whatever as well, like later on… … then she told me about another point on the couch where she was sitting down on the couch and mum was like awake and walking around and stuff and apparently he had, like, his arm on her back and then slowly kept just going down to the point where he was basically fingering her or whatever and they were like the two main things that she went into detail that I can remember. 30 In cross-examination, the brother confirmed that the complainant said something to him about the appellant’s penis touching her bottom.37 31 The appellant submits that it is readily apparent from the evidence of the complainant and her brother that there was a conflict between the two of them as to the content of the complaint. On the one hand, the complainant positively asserted that she would not have provided any detail but instead would have said that the appellant was “touching me”.38 On the other hand, her brother asserted that she told him about a specific incident in the lounge room, albeit with a number of differences, including that the offending occurred on a couch rather than while lying on the floor, and that the digital penetration occurred via a different mechanism. Additionally, he referred to an unlawful sexual act which did not feature in the complainant’s allegations in court, namely, that the appellant rubbed his penis against her bottom. 32 The appellant contends that the commencement of the trial judge’s analysis of the fact and the terms of the complaint emphasise that the evidence of the brother in both respects was not challenged,39 and that the absence of challenge formed a significant part of the trial judge’s reasoning. He submits that her Honour appeared to approach the issue on the basis that the absence of challenge meant that the fact of the complaint and the terms of the complaint had been proved, or at least more easily proved. The appellant submits this was an inappropriate process of reasoning;40 and the absence of cross-examination on the issue could not logically bear upon these issues, particularly, where it was explicable on the basis that the appellant was not present during the conversation constituting the elaboration.41 The appellant submits it remained necessary for the prosecution to satisfy the trial judge as to the precise terms of the complaint. 35 T 125.18-38; Trial reasons at [300]-[302], [734]. 36 T 127.8-28. 37 T 148.19-24. 38 MFI P19 at T 133.31-32. 39 Trial reasons at [624], [627]. 40 Brown (a pseudonym) v The King [2025] SASCA 40 at [155], [197]-[201], [203]. 41 Brown (a pseudonym) v The King [2025] SASCA 40 at [201]. -- 13 of 24 -- [2026] SASCA 35 The Court 12 33 The appellant submits that the fact of the complaint and the conflict between the complainant and her brother as to the terms of the complaint were entirely consistent with the appellant’s case that the complainant had made up the allegations and that the brother had given evidence designed to implicate the appellant. He submits that the credibility of the brother was subject to wholesale attack. As a matter of logic, this attack extended to the brother’s evidence concerning the terms of the complaint. The appellant submits the trial judge’s reasons had to reveal how her Honour was satisfied of the brother’s credibility and reliability concerning the complaint. He submits her Honour failed to do so. 34 We do not accept this submission. 35 As we have explained, the complainant’s evidence on the elaborated complaint to her brother was that it occurred in the car after her mother and her brother had brought her home from her friend’s house. After her mother left the vehicle, the complainant told her brother that she did not want him or their mother to think her behaviour was attention seeking. She said:42 I don’t remember the exact words, but I just told him that like [the appellant] has been touching me for a while now, I didn’t really want to be there at the time. 36 As we have said, she went on to give evidence that she “would not have told [her brother] in detail about the offending and would have just said that [the appellant] was touching her”. She could not recall anything else she had told her brother or what he had said to her.43 She gave a statement that the appellant’s conduct in touching her had been happening for months.44 37 The complainant was cross-examined as to the terms of what she said to her brother. It was put to her that she also told her brother about an incident that occurred between her and the appellant in the lounge room of the family residence where the appellant digitally penetrated her vagina. It was put to her that she told her brother she was sitting down in the lounge room when this occurred, but her evidence had changed to allege that she was in fact lying down in the lounge room when this occurred. She agreed this incident had occurred while she was lying down in the lounge room. 45 38 The impugned complaint evidence from the brother was led in examination- in-chief.46 In cross-examination it was put to him that he had made up the details of the complaint given to him by the complainant in an attempt to conceal his own misconduct.47 That misconduct consisted of providing the complainant with alcohol on her 13th birthday and lying about it in his evidence at the first trial;48 42 MFI P19 at T 131.9-33; Trial reasons at [295]. 43 MFI P19 T 133.5-134.8. 44 MFI P19 T 131 to 134. 45 MFI P19 T 188 to 189. 46 T 124-128. 47 T 130-131. 48 T 131-133. -- 14 of 24 -- [2026] SASCA 35 The Court 13 lying in his evidence about seeing the appellant and the complainant inside the tent under the carport;49 and attempting to conceal that he had provided the appellant with drugs including cannabis, acid, MDMA and hallucinogenic mushrooms.50 Only the evidence of the offending in the tent was relevant to the charge.51 The other matters were challenges to his credibility in relation to observations he had made in the family home referable to the charge. 39 The absence of cross-examination of the brother concerning the terms of the complaint made to him by the complainant was a matter that could have been weighed by the trial judge in consideration of the charge. The deficiencies now raised by the appellant concerning the elaborated complaint evidence were not put to the brother at trial. This left available an inference that the failure to cross- examine him on this topic was the result of a deliberate forensic decision.52 However, assuming that it was the result of a deliberate forensic decision, that is not the end of the matter. 40 The appellant submits there is a need for a court to exercise caution when considering the relevance and admissibility of complaint evidence. He relies on the dissenting judgment of Peek J in R v Landmeter.53 In Landmeter Peek J emphasised the importance of clear objective proof of when, in what circumstances, and in what terms the complaint was made. Peek J explained that if one starts with such objective evidence and then, comparing that complaint with the complainant’s evidence in court, finds that they are consistent, it can be appreciated how the evidence in court is thereby buttressed.54 41 The evidence of the complainant and her brother regarding the complaint was adduced pursuant to s 34M, as an elaboration of the initial complaint to the complainant’s friend, within the meaning of s 34M(6). Pursuant to s 34M(3) the evidence was admissible for several purposes, including relevantly to assess whether the complainant was consistent regarding her account of the alleged abuse. Section 34M(3) applies equally to a judge sitting without a jury. A trial judge is required to consider the evidence if admitted under s 34M(3) and to use it only for the purposes set out in s 34M(4).55 A trial judge is required to provide adequate reasons.56 42 The question of consistency involves comparing the terms of the complaint and the allegations made in evidence.57 If a complaint is being made in 49 T 137, 149. 50 T 147. 51 Trial reasons at [3]. 52 Carr v The King [2024] SASCA 69 at [5]; see also Kirkland v The Queen [2021] SASCA 14 at [166]- [167]. 53 (2015) 121 SASR 522 starting at [39]. 54 R v Landmeter (2015) 121 SASR 522 at [99]. 55 R v Wickers (2019) 134 SASR 504 at [186]-[187]. 56 TM v The King [2024] SASCA 5 at [53]. 57 R v Rippey; Rippey v R [2022] SASCA 141 at [115]. -- 15 of 24 -- [2026] SASCA 35 The Court 14 substantially the same terms as the complainant’s sworn evidence, that may be treated as enhancing the credibility of the sworn account.58 43 The appellant submits that the trial judge could not rely on the brother’s evidence of the conversation in the car with the complainant as an elaboration of the initial complaint to the complainant’s friend because the complainant said nothing more than what she told her friend. Further, the brother’s evidence was inconsistent with the complainant’s evidence of what occurred in the car. Accordingly, the appellant submits the brother’s evidence was neither admissible nor capable of demonstrating consistency of conduct. 44 We do not accept that s 34M is an obstacle to the admission of the brother’s evidence of complaint, or reliance on that evidence by the trial judge, for the purpose of making findings of fact. It is necessary to consider the terms of s 34M, particularly s 34M(3), which provides that evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of that offence and may be given by any person about, inter alia, the content of the complaint and the circumstances in which it was made, including why the complaint was made to a particular person at a particular time, and why it was not made earlier. 45 It was not necessary for the trial judge to make findings as to the precise terms of the complainant’s complaint to her brother.59 In R v Rippey; Rippey v The King60 this Court held that it is not necessary that the terms of a complaint sought to be admitted pursuant to s 34M correspond precisely with the charged conduct. Evidence of a complaint about an alleged sexual offence will be an initial complaint, as defined in s 34M(6), and be admissible, despite the complaint not being accompanied by a description of the offending conduct, provided the evidence of the complaint is capable of being probative for the purposes specified in s 34M(4)(a)(i) or s 34M(4)(a)(ii); that is, the evidence is capable of informing the trier of fact of how the allegation first came to light, and is evidence of the consistency of conduct of the complainant.61 The fact that there are discrepancies between the terms of the compliant and the charged conduct is not generally a barrier to the admissibility of the complaint. The requirement that the complaint be referable to the charged conduct calls for a broader and more general enquiry, with discrepancies between the complaint and the charged conduct generally being relevant not to the admissibility of evidence of the complaint, but to the directions that must be given as to the use that might be made of the complaint. 46 As explained in R v E,62 in a passage quoted with approval in R v Humble,63 discrepancies between the terms of the complaint and the allegations made in 58 R v E (1996) 39 NSWLR 450 at 457, cited with approval in R v Humble (2009) 193 A Crim R 324 at [6]; R v Rippey; Rippey v R [2022] SASCA 141 at [115]. 59 Trial reasons at [734], [737]. 60 [2022] SASCA 141. 61 R v Rippey; Rippey v The King [2022] SASCA 141 at [113]. 62 (1996) 39 NSWLR 450 at 457. 63 (2009) 193 A Crim R 324 at [6], [66]-[67]. -- 16 of 24 -- [2026] SASCA 35 The Court 15 evidence will be relevant to the degree of consistency demonstrated by the making of the complaint, and hence the finder of facts’ consideration of the credibility of the complainant’s evidence. On the other hand, if a complaint has been made in substantially different terms, because it was altogether different or because it contained additional allegations or did not contain all the allegations made in sworn evidence, that may be treated as detracting from the credibility of the sworn account of events.64 47 Peek J’s dissenting reasons in Landmeter are not authority for the proposition that evidence of complaint is only admissible where the terms of the complaint correspond precisely with the charged conduct. 48 In any event, the trial judge found the complaint evidence demonstrated a degree of consistency of conduct on behalf of the complainant.65 That finding has not been shown to be wrong. The trial judge’s findings regarding the complaint evidence 49 The trial judge made the following findings in respect of the complaint evidence:66 I am satisfied that [the complainant’s friend] was the first person [the complainant] told about the offending and that she did so during a conversation they had on 16 December 2020, the day they walked from Kenneth Road together to [the complainant’s friend] house, and on the way, stopped and collected flowers and leaves. The fact that [the complainant] chose to first disclose the offending to her very close friend, rather than a family member, is readily explicable having regard to the circumstances of the offending, her young age and the fact the offending involved her otherwise trusted and loved older brother. It is consistent with [the complainant’s] evidence, which I accept, that she did not disclose the offending earlier because she did not want to break up the family. She needed to tell someone, but she felt that she could not tell anyone in her family. [The complainant’s friend] recalls [the complainant] telling her words to the effect that the accused was trying to touch her in her private parts. This is consistent with the nature of the offending as described by [the complainant]. If, as [the complainant’s friend] recalled, [the complainant] said the accused was ‘trying’ to touch her, rather than ‘he is touching me’, this is consistent with what I consider to be [the complainant] overall reluctance to talk about what happened between her and the accused in detail, and to downplay the offending, if anything, rather than to exaggerate it, as it was such a cause of embarrassment and unease for her. As such, I am satisfied that the circumstances in which [the complainant] made the initial complaint to [the complainant’s friend] and what she told her demonstrate a degree of consistency of conduct on her part. I further accept the evidence of both [the complainant] and [her brother], that [the complainant] disclosed the alleged offending to [her brother] when she spoke to him in the car, following her attempted overdose on Panadol, at which time she disclosed further 64 R v Rippey; Rippey v The King [2022] SASCA 141 at [115]. 65 Trial reasons at [738]-[739]. 66 Trial reasons at [729]-[739]. -- 17 of 24 -- [2026] SASCA 35 The Court 16 information as to the circumstances of the offending, by way of an elaboration of the initial complaint. [The complainant] could not recall the exact words used by her during this conversation, other than she told [her brother] that the accused had been touching her for a while now. However, I accept [the brother’s] evidence that he prodded [the complainant] to give him more details, so that he could understand what had happened. He remembered her telling him that he could not tell [the complainant’s mother] as [the complainant] was worried the family would fall apart. I accept [the brother’s] evidence to this effect. His recollection of this aspect of the discussion is consistent with [the complainant’s] own concerns about keeping the offending to herself, in order to protect the family. Similarly, [the complainant’s] reluctance to talk to him about the details of the alleged offending is consistent with her presentation during the interviews with Officer Kittel and at trial. [The brother] also recalled being told by [the complainant] that in addition to saying that the accused had touched her inappropriately, she told him about feeling the accused’s penis on her back, when they were cuddling and about an incident in the lounge room. [The brother’s] recollection as to the latter incident was that [the complainant] told him the offending happened when she and the accused were sitting on the couch, and he described conduct which was very different to that described by [the complainant] in her evidence. [The brother] gave evidence that he had a memory that [the complainant] told him the offending started ‘after the big acid trip, which was my birthday. Or the night [the accused] ran away and stuff’. Although there was no specific evidence as to precisely when this party was (ie was this a party for his 16th or his 17th birthday). Having regard to [the brother’s] evidence about his consumption of ‘other drugs’, which he claimed only started during mid-2020, I consider it likely to be a reference to his 17th birthday. If the alleged offending in the tent occurred in April 2020, then, this was before [the brother’s] 17th birthday. As previously stated, [the brother] gave evidence that [the complainant] was unintelligible for much of the conversation. As previously stated, it may well be that [the brother] has misinterpreted some of what he heard during that conversation. I accept his evidence that he now recalls these things being raised by [the complainant] during that conversation, however whether his recollection is accurate, given the way in which that conversation unfolded, the obvious heightened emotions involved for both he and [the complainant] and his stated difficulties in understanding some of what [the complainant] was saying, is uncertain. As such, I am not satisfied that his memory of precisely what [the complainant] told him about the offending is accurate. [The complainant] spoke to [her brother] about the offending, it being when she was at a very low point in her life, just after the attempted overdose. I am satisfied this demonstrates consistency of conduct. While there were some differences in what [the brother] recalls [the complainant] telling him about the details of the offending and [the complainant’s] account of the offending, what [the complainant] told [her brother] about the nature of the unlawful sexual acts, together with the fact she told him something happened in the lounge room, is consistent with what she told the Court. As stated, any differences in the details recalled by [the brother] are likely due to a misunderstanding (or misremembering) on his part of what she told him at that time. I am satisfied therefore that the complaint evidence demonstrates a degree of consistency of conduct on behalf of [the complainant]. [Citations omitted]. -- 18 of 24 -- [2026] SASCA 35 The Court 17 Consideration of the trial judge’s approach to the complaint evidence 50 The appellant submits that particular care is needed when considering the relevance and admissibility of complaint evidence. It is important that there is clear objective evidence, inter alia, of the terms of complaint evidence which can be compared with the complainant’s evidence in court so as to establish consistency of conduct. The appellant submits that in the present case there was no such clear or objective proof of the terms of the complaint made to the complainant’s brother. 51 The trial judge clearly was conscious of the credibility and reliability of aspects of the brother’s evidence of complaint. As a result, the trial judge indicated that she exercised considerable care in assessing all of the evidence.67 The trial judge identified several areas in which she rejected the brother’s evidence.68 Her Honour also accepted aspects of his evidence, in particular, in relation to a subtle change in the appellant’s behaviour.69 52 The trial judge also identified concerns she had as to the reliability of aspects of the brother’s evidence, namely, seeing the appellant and the complainant in the tent together, either cuddling or watching something on a phone. Not only did the brother not give this evidence at the first trial, but at the first trial he gave evidence that he had not seen the appellant and the complainant sleeping together in the tent.70 The trial judge, in evaluating that evidence, concluded it was possible that the complainant’s brother was mistaken, or that the evidence was a reconstruction.71 The trial judge also indicated she had doubts as to the reliability of the brother’s evidence of his specific recollection that the tent was set up outside for two weeks during 2020.72 53 The trial judge next turned to an assessment of the brother’s evidence concerning the complaint. She emphasised that he was not cross-examined to the effect that the conversation in the car between him and the complainant did not occur.73 The appellant submits that this was an erroneous basis from which to consider complaint. We do not accept this submission. 54 While it can readily be accepted that the appellant was not present during the conversation, the unchallenged nature of that evidence is an available basis for the trial judge to rely on the brother’s evidence in circumstances where the trial judge might have otherwise had less confidence in that evidence had it been the subject of challenge. For reasons the trial judge explained, her Honour found that the brother was mistaken as to when the conversation occurred, but she accepted that he questioned the complainant about her behaviour, finding that it was unlikely 67 Trial reasons at [611]. 68 Trial reasons at [613]. 69 Trial reasons at [616]-[617]. 70 Trial reasons at [621]. 71 Trial reasons at [622], [627], [737]. 72 Trial reasons at [623]. 73 Trial reasons at [624], [627]. -- 19 of 24 -- [2026] SASCA 35 The Court 18 that when the brother gave his evidence he had a perfectly accurate recollection of everything that was discussed with the complainant.74 Nonetheless, the trial judge accepted that while in the car the complainant told her brother of the appellant’s offending. 55 While the trial judge found there were differences in what the brother recalls the complainant telling him about: the details of the offending against the complainant’s own account of that offending; what the complainant told her brother about the nature of the unlawful sexual acts; together with the fact she told him something happened in the lounge room; was consistent with what the complainant told the Court. The trial judge found that any differences in the details recalled by the brother were likely to be due to a misunderstanding or misremembering of what the complainant told him at the time.75 56 The appellant submits that the complainant’s evidence went further than a mere inability to recall the exact terms of the complaint, which, the appellant says, is how the trial judge approached the issue. We do not accept that submission. The trial judge plainly had regard to the differences between the brother’s account of the complaint about the lounge room incident and the complainant’s allegation in court.76 In the circumstances, it was open to the trial judge to find that the brother was simply mistaken about some of the details of the elaboration notwithstanding her Honour’s reservations about aspects of his evidence.77 This was not mere conjecture on the part of the trial judge but an instance of inferential reasoning to a finding of fact. 57 Ultimately, the trial judge found that the complainant told her brother about the appellant’s offending, which her Honour considered demonstrated consistency of conduct, notwithstanding there being some differences in what the brother recalls the complainant telling him about the details of the offending, against the complainant’s account of the offending. The trial judge found that what the complainant told her brother about the nature of the unlawful sexual acts, together with the fact she told him something happened in the lounge room, is consistent with what the complainant told the Court. 58 We reject the appellant’s submission that the trial judge did not explain how her Honour resolved the conflict between the complainant and the brother’s evidence when dealing with her findings as to the terms of the complaint. The trial judge explained her reasoning in the following terms:78 [The brother] also gave complaint evidence. Of note, was that neither [the complainant] nor [the brother] were cross-examined to the effect that the conversation they both described in the backseat of the car, after the time [the complainant] tried to overdose on 74 Trial reasons at [625]-[626]. 75 Trial reasons at [737]-[739]. 76 Trial reasons at [735]. 77 Trial reasons at [611], [738]. 78 Trial reasons at [624]-[627]. -- 20 of 24 -- [2026] SASCA 35 The Court 19 pills, had occurred. I accept [the brother’s] evidence, and that of [the complainant], that there was such a conversation. I consider [the brother] is now genuinely mistaken at to his recollection that this conversation occurred before [the complainant] ran away (ie before New Years Eve 2020). However, I accept his evidence that during the conversation, he was questioning [the complainant] on her behaviour, being consistent with his evidence that in the last half of 2020, [the complainant’s] behaviour worsened in the sense that she seemed to be acting like a nuisance and doing things simply to get attention. I consider it unlikely that [the complainant] now has a perfectly accurate recollection of everything that was discussed with [the complainant] [sic]79 during this conversation. He was a 17-year old, learning of allegations that his younger sister had been sexually abused by his older brother. It must have been extremely difficult for him to both learn of the allegations and then to grapple with what, if anything, he should do about them. In this respect, I accept the evidence [the brother] gave as to why he did not immediately tell [the complainant’s mother] about the allegations. I accept [the brother’s] evidence, which was not challenged, that during this conversation, [the complainant] told him that the accused had touched her inappropriately, that he fingered her and that she had felt his penis touching her bottom. I also accept [the brother’s] evidence, which again was unchallenged, that [the complainant] told him about a specific incident that occurred in the lounge room, and that his memory now of that conversation was that [the complainant] told him the incident occurred when she and the accused were sitting on the couch. It may well be that [the brother’s] memory as to precisely what [the complainant] told him occurred in the lounge room is inaccurate, either due to the passage of time, and/or that he misunderstood precisely what she was saying, given his evidence that she was unintelligible for some of the conversation. 59 This evidence was the foundation for the trial judge’s intermediate findings which were crucial to the question of elaboration. 60 As the trier of fact, it was open to the trial judge to accept some of the evidence given by the brother and to reject other evidence he gave. As we have said, her Honour identified evidence which fell into either category. Her Honour explained the basis of her doubts which led her to not accept some of the brother’s evidence, while she was prepared to accept other parts of his evidence. 61 An example is the brother’s evidence that he did not observe any change in the nature of the relationship between the appellant and the complainant during the time they were at Kenneth Road. In addition, he gave evidence that he never saw the appellant give the complainant cannabis, nor did he ever see the complainant under the influence of cannabis. While he gave evidence of the appellant sleeping in his swag on the floor of the complainant’s bedroom, his evidence was that he never saw them sleeping together in the complainant’s bed. Although he had seen the appellant sleep in the complainant’s bed, this was only when the complainant was not there. He also gave evidence that he had seen the complainant and the appellant lying on her bed. The trial judge relied on this evidence to find that the brother did not seek to exaggerate what he had seen, rather he simply said that they 79 It is sufficiently clear that the reference in the judge’s reasons here to [the complainant] should be understood as a reference to the complainant’s brother. -- 21 of 24 -- [2026] SASCA 35 The Court 20 were “like cuddling”, or the appellant “would be on his phone”.80 The trial judge found this evidence, and other similar evidence, was an obstacle to the submission that the brother was prepared to lie to secure the conviction of the appellant.81 62 The trial judge’s reasons addressing the distinctions between the complainant’s account and the complaint evidence of the brother demonstrated that her Honour was aware of the differences in the accounts between the complainant and her brother concerning the elaborated complaint.82 However, as the trial judge found, this was not a case of such significant disparities in the two accounts that the trial judge was bound to use these discrepancies of account in forming her overall assessment of the credibility of the complainant. In these circumstances, the trial judge did not have to consider the inconsistencies between the brother’s evidence of the complaint made to him, compared with the complainant’s evidence of the terms of the complaint made to her brother when considering the reliability and credibility of the complainant. As we have said, the trial judge did not consider those inconsistencies of account to be substantially different from each other. The trial judge only had to consider the evidence of the elaborated complaint made to the brother in terms of the limited use that could be made of such evidence, i.e. to inform the trier of fact as to how the allegations first came to light and as evidence of the degree of consistency of conduct of the complainant.83 63 The explanations for the trial judge’s approach to the evidence of the elaborated complaint included, on the one hand, recognition of the imperfection of memory that faded over time and her Honour’s inability to rely upon aspects of the brother’s evidence, for example, his evidence about the tent, because of a failure on his part to refer to it in the first trial.84 On the other hand, as we have said, the trial judge explained why she was prepared to rely upon other parts of the brother’s evidence, which were inconsistent with the appellant’s case, that he had deliberately reconstructed evidence to inculpate the appellant. It is clear that the trial judge recognised the differences in the evidence of the complainant and her brother concerning the elaborated complaint. 64 Nonetheless, these discrepancies were not so significant as to establish the ground of inadequate reasons or, for that matter, inadequacy of reasoning, particularly having regard to the high bar that must be overcome to reach the latter finding. By way of example is the fact that the complainant did not recall the exact words she used in making the elaborated complaint to her brother. The trial judge found that in part this explained her reluctance to disclose the appellant’s offending against her, whether to her brother, during the interviews with the investigating officer, or at trial.85 80 Trial reasons at [615]. 81 Trial reasons at [614]. 82 Trial reasons at [729]-[739]. 83 Trial reasons at [75]. 84 Trial reasons at [622], [627]. 85 Trial reasons at [734]. -- 22 of 24 -- [2026] SASCA 35 The Court 21 65 We do not accept that it was not open to the trial judge to be satisfied of the credit and reliability of the brother’s evidence concerning the provision of additional details by way of elaboration in the discussion in the backseat of the car. Notwithstanding the discrepancies, and the trial judge’s favourable assessment of the credit and reliability of the complainant, it was open to her Honour to prefer the evidence of the brother on this issue, particularly where it was apparent that aspects of the complainant’s evidence involved the reconstruction of what she would have done or said in those circumstances. The trial judge was clear that she harboured doubts about the truthfulness and accuracy of aspects of the brother’s evidence. As a result, she approached the assessment of his evidence with considerable care.86 The exercise of care in assessing the brother’s evidence did not dictate its rejection. 66 There was no error in the trial judge concluding that the evidence of the conversation between the complainant and her brother in the backseat of the car was an elaboration of the initial complaint. As a matter of fact, the complaint evidence was unchallenged.87 That the appellant was not present during the conversation did not mean that he could not have challenged the complainant and the brother concerning the terms of the conversation. That he did not do so suggests a deliberate forensic decision. The trial judge’s reliance on the absence of challenge to that evidence by the appellant does not constitute error. 67 The elaborated complaint evidence from the brother was not the only source of complaint evidence admitted at trial that had to be weighed by the trial judge in considering the issue of the consistency of conduct of the complainant. The trial judge’s consideration of the discrepancies between the brother and the complainant had to be weighed against that other evidence concerning the consistency of the complainant’s conduct. 68 Ultimately, the central issue was the credibility and reliability of the complainant. During the course of the complainant’s evidence she was examined about various matters including alcohol use, drug use, admitted dishonesty and prior inconsistent statements which had the potential to bear upon her credit and reliability. The trial judge had regard to these matters in assessing the complainant’s credit and reliability. These aspects of the appellant’s case were the subject of cross-examination of the brother. They did not give rise to a reasonable doubt on the trial judge’s part that the appellant had committed the charged offence. 69 On the evidence, where discrepancies exist between the evidence of the complainant and the brother concerning the elaborated complaint, it was open to the trial judge in her overall assessment of the evidence to conclude that, in respect 86 Trial reasons at [611]. 87 Trial reasons at [624], [627]. -- 23 of 24 -- [2026] SASCA 35 The Court 22 of some matters, she preferred the evidence of the complainant over the evidence of the brother. 70 As we have said, the trial judge set out the inconsistencies between the complainant and the brother. The trial judge identified the use to be made of the inconsistencies in the court’s assessment of the complainants reliability and credibility. The courts failure to use the inconsistencies, as the appellant submits she should have done, is not indictive of error. 71 Based on these reasons, after carefully considering the totality of the evidence, particularly the complainant’s evidence, the trial judge was satisfied beyond a reasonable doubt that the complainant gave a truthful account of the offending against her. The trial judge was further satisfied beyond a reasonable doubt that the complainant was not mistaken about, nor did she dream the offending, and that her evidence of the offending was not the product of her imagination as a result of the consumption of illicit or other substances. The trial judge was further satisfied beyond a reasonable doubt that the complainant’s memory of the occurrence of the various unlawful sexual acts as described by her was reliable.88 72 The appellant has failed to demonstrate any error in the trial judge’s findings, or inadequacy in the trial judge’s reasons. 73 The trial judge’s lengthy and extensive reasons adequately explain the basis upon which her Honour made her findings in relation to the complaint evidence. Those reasons enable this Court to perform its appellate function. 74 None of the particulars, (a), (b), (d), (e) and (f), to ground 1 are made out. Conclusion 75 We would grant permission to appeal but dismiss the appeal. 88 Trial reasons at [740]-[741]. -- 24 of 24 --