PHAM (A PSEUDONYM) v THE KING [2025] SASCA 94

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALEXANDRIDES) DCCRM-22-103 Applicant: PHAM (A PSEUDONYM) Counsel: MR J WILSON - Solicitor: BRIAN DEEGAN LAWYERS Respondent: THE KING Counsel: MS TJ COSTI WITH MR RM GULLIVER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/08/2025 File No/s: SCCRM-24-035483 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. PHAM (A PSEUDONYM) v THE KING [2025] SASCA 94 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 4 September 2025 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE This is an application for permission to appeal against conviction. After a trial by judge alone, the application was convicted of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). By amended grounds of appeal, the applicant contends that there was a miscarriage of justice resulting from the trial judge’s inadequate reasoning on various issues relevant to his assessment of the credibility and reliability of the complainant. The applicant abandoned a complaint that the verdict was unreasonable or unsupported by the evidence. Held (the Court), refusing permission to appeal and dismissing the application for permission to appeal: 1. The reasons of the trial judge must be considered as a whole, recognising that acceptance of key aspects of the complainant’s evidence by the trier of fact was essential to the prosecution case. -- 1 of 5 -- 2. It was a matter for the trial judge as the trier of fact to determine what evidence was accepted and why, as well as the weight to be given to the various issues that arose on that evidence. 3. It cannot be said that the reasoning of the trial judge concerning the credibility and reliability of the complainant’s evidence was so flawed, irrational or illogical that the high bar required for a conclusion of inadequate reasoning has been met in this case. 4. It is not reasonably arguable that the trial judge has engaged in inadequate reasoning. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 28, 29, referred to. Bowen (A Pseudonym) v The King [2025] SASCA 36; Brown (A Pseudonym) v The King [2025] SASCA 40; Donald v The King [2024] SASCA 121; DL v The Queen (2018) 266 CLR 1; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; R v PLN [2024] SADC 97; R v Trabolsi (2018) 131 SASR 297, considered. -- 2 of 5 -- PHAM (A PSEUDONYM) v THE KING [2025] SASCA 94 Court of Appeal – Criminal: Livesey P, S Doyle and David JJA THE COURT: Introduction 1 This is an application for permission to appeal against conviction. The applicant was convicted after a trial by judge alone of maintaining an unlawful sexual relationship with a child, his biological daughter, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).1 2 By his amended appeal grounds, the applicant complained that there was a miscarriage of justice resulting from the trial judge’s inadequate reasoning on various issues relevant to his assessment of the credibility and reliability of the complainant.2 3 The applicant abandoned a complaint that the verdict was unreasonable or unsupported by the evidence. The verdict under appeal 4 The applicant and the complainant came to Australia from Vietnam some years ago. In the course of comprehensive reasons, and despite the challenges to the complainant’s evidence in cross-examination, the trial judge found that her evidence about the applicant’s offending was both credible and reliable. The defence case on the complainant’s motive to lie was rejected.3 5 The applicant did not give or call evidence. 6 The applicant addressed inconsistencies between the evidence given by the complainant in court and statements she had made to police, including shortly before the trial. These included some matters omitted from those earlier statements. Though the complainant denied some of the inconsistencies, with the benefit of agreed facts the trial judge found that they were established. The trial judge took these into account but found that they did not cause him to doubt the complainant’s credibility or reliability.4 7 The applicant also addressed an inconsistency between the complainant’s account and the elaboration of her complaint made to her brother, V. The trial judge effectively found that this did not undermine the credibility or reliability of 1 R v PLN [2024] SADC 97 (Reasons). 2 Amended Appeal Grounds dated 17 December 2024, paragraph 1. 3 Reasons, [654]-[664]. 4 See, for example, Reasons, [591] and [619]. -- 3 of 5 -- [2025] SASCA 94 The Court 2 the complainant, and that the complaint evidence “provides little if any support for a consistency in the narrative of the complainant”.5 8 Ultimately, the trial judge took the various inconsistencies into account but found that they did not cause him to doubt the complainant’s evidence. It was not suggested that this course was not open to him. The judge returned a verdict of guilty.6 Determination of the application for permission to appeal 9 The reasons of the trial judge must be considered as a whole, recognising that acceptance of key aspects of the complainant’s evidence by the trier of fact was essential to the prosecution case.7 10 The reasons clearly explain why the judge accepted the complainant’s evidence, notwithstanding the inconsistencies and omissions. The trial judge had regard to the fact that the complainant related a large number of acts of sexual abuse which had occurred over some years between the ages of 9 and 13, at a time when she was 18 years, in English, which was her second language. 11 As for the comments by the trial judge that no opportunity was given to the complainant to explain the inconsistencies, we reject the submissions that this revealed some misunderstanding about the rules concerning proof of prior inconsistent statements under ss 28 and 29 of the Evidence Act 1929 (SA),8 or that they entailed any criticism of counsel for the applicant at the trial. 12 Counsel for the parties exercised their respective forensic judgments in determining to prove the prior inconsistent statements by way of agreed facts at the trial. The prosecutor had been present at the pre-trial meeting, placing the prosecutor in a difficult position, and counsel for the applicant was no doubt concerned to ensure that the prosecution was not given any further opportunity to lead evidence or have the complainant explain her evidence. 13 Though the trial judge took into account the fact that the complainant did not see her pre-trial statement, he was commenting on what had occurred and, more importantly, those observations were not essential to his reasoning.9 It was conceded before us that it was open to the judge to take the absence of an explanation from the complainant on these matters into account when evaluating her evidence.10 There was no denial of procedural fairness. 5 Reasons, [653]. 6 Reasons, [666]-[669]. 7 DL v The Queen (2018) 266 CLR 1, [33] (Kiefel CJ, Keane and Edelman JJ). 8 R v Trabolsi (2018) 131 SASR 297, [187] (Doyle J, with whom Kourakis CJ agreed); Brown (A Pseudonym) v The King [2025] SASCA 40, [152]-[164] (Livesey P). 9 Compare Reasons, [588] and [618] with [591] and [619], “In any event, I am not satisfied that the apparent inconsistency undermines my assessment of the credibility or reliability [of the complainant]”. 10 Donald v The King [2024] SASCA 121, [67] (Doyle JA, McDonald and Hall AJJA). -- 4 of 5 -- [2025] SASCA 94 The Court 3 14 The criticisms regarding the complaint evidence go nowhere in circumstances where the complainant’s evidence was preferred and where, in any event, the complaint evidence was not regarded as providing support for consistency in the complainant’s narrative.11 15 Ultimately, the applicant is confronted by the difficulty that, even if these various inconsistencies or omissions in the complainant’s evidence could be regarded as important, the trial judge took them into account and his reasons as a whole adequately explained his favourable credibility and reliability findings. It was a matter for the trial judge as the trier of fact to determine what evidence was accepted and why, as well as the weight to be given to the various issues that arose on that evidence. 16 It cannot be said that the reasoning of the trial judge concerning the credibility and reliability of the complainant’s evidence was so flawed, irrational or illogical that the high bar required for a conclusion of inadequate reasoning has been met in this case.12 17 In these circumstances, it is not reasonably arguable that the trial judge has engaged in inadequate reasoning. Conclusion 18 Permission to appeal should be refused. 19 It should be recorded that, despite the efforts made by Court staff in the day or so before the hearing, it was not possible to confirm the attendance of a Vietnamese interpreter. That was unsatisfactory. That meant that though the applicant was able to view and hear proceedings by an audio-visual link, he could not provide instructions nor have what was said in the course of argument interpreted. With the consent of the parties, the Court heard the appeal argument and, whilst it may have been unduly cautious to do so,13 gave the applicant’s legal advisors the opportunity following the hearing to make further submissions after speaking with the applicant with the benefit of an interpreter and a transcript of the hearing. 20 As it transpired, the Court was later told by counsel for the applicant that no further submissions would be made. 11 Reasons, [653]. 12 Donald v The King [2024] SASCA 121, [80] (Doyle JA, McDonald and Hall AJJA); Bowen (A Pseudonym) v The King [2025] SASCA 36, [32]-[38] (Livesey P, S Doyle and David JJA). 13 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329. -- 5 of 5 --