VIPUL SONDHI v THE KING [2024] SASCA 7

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE MUSCAT) DCCRM-21-1674 Appellant: VIPUL SONDHI Counsel: MRS M SHAW KC WITH MR W MICKAN - Solicitor: CALDICOTT & ISAACS LAWYERS Respondent: THE KING Counsel: MS L DUNLOP WITH MS M ROCCA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/10/2023 File No/s: SCCRM-23-017948 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. SONDHI v THE KING [2024] SASCA 7 Judgment of the Court of Appeal (The Honourable Justice Doyle, the Honourable Justice Blue and the Honourable Justice Kimber) 8 February 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY Following a trial by Judge alone, the applicant was found guilty of five counts of rape. The complainant was the wife of the applicant. On the prosecution case, the five counts were committed on separate occasions in the months shortly after the birth of the only child of the marriage. There was evidence of an initial complaint with respect to Count 1, made to the brother of the complainant. At trial, the applicant contended that both the complainant and her brother had fabricated that the complaint had been made. The applicant did not give evidence. In submitting that the prosecution had not proven guilt beyond a reasonable doubt, the applicant placed reliance in particular upon inconsistencies in the accounts of the complainant, inconsistencies between her evidence and other evidence and evidence of his good character. The applicant appeals against his convictions on five grounds which advance several contentions. Those contentions include, but are not limited to, the following: that the trial Judge erred in his approach to the evidence of initial complaint, including failing to properly evaluate alleged inconsistencies and failing to direct himself in terms consistent with s 34M(4)(c) of the Evidence Act 1929 (SA); that the trial Judge erred in his approach to the evaluation of the credibility and reliability of the complainant; that the trial Judge engaging in preferential reasoning and misapplied the standard of proof; that the trial Judge engaged in inadequate reasoning and, in the alternative, that his reasons are inadequate. Held per the Court, granting permission to appeal and dismissing the appeal: -- 1 of 29 -- 1. The trial judge did not err in his approach to the evidence of the initial complaint. The trial Judge had regard to the inconsistencies between the evidence of the complainant and her brother about the initial complaint. It was open to the trial Judge to find that the inconsistencies did not affect the complainant’s credibility in a material way. In the circumstances of this case, the trial Judge was not required to direct himself in terms consistent with s 34M(4)(c). 2. The trial Judge did not err in his assessment of the credibility and reliability of the complainant. The trial Judge did not overlook the reliability of the complainant. The extent to which the trial Judge was required to engage with that issue must be considered bearing in mind that the issue in each count was credibility. 3. The trial Judge directed himself appropriately with respect to the standard of proof and did not engage in preferential reasoning. 4. The trial Judge did not engage in inadequate reasoning. The approach of the trial Judge to each of the matters raised by the applicant was open. The trial Judge engaged with the whole of the evidence before finding the counts proven beyond reasonable doubt. The reasons support the ultimate findings of fact. 5. The reasons of the trial Judge are not inadequate. Evidence Act 1929 (SA) s 34M; Juries Act 1927 (SA) s 7, referred to. Baptiste v The Queen [2020] SASCA 70; DL v The Queen (2018) 266 CLR; Douglass v The Queen (2012) 86 ALR 1086; Lloyd v The King [2023] SASCA 106; Murray v The Queen (2002) 211 CLR 193; R v Keyte (2000) 78 SASR 68; R v Rendell (2018) 131 SASR 201; R v Wickers (2019) 134 SASR 504; R v Sexton [2018] SASCFC 28, applied. Kakule v The King [2023] SASCA 51, discussed. -- 2 of 29 -- SONDHI v THE KING [2024] SASCA 7 Court of Appeal — Criminal: Doyle JA, Blue and Kimber AJJA THE COURT: Introduction 1 This is an appeal against conviction. Following a trial by judge alone, the applicant was found guilty of five counts of rape. 2 The complainant in each count was the then wife of the applicant and will be referred to as ‘C’. Each count occurred on a separate occasion between January and March 2021 shortly after the birth of the only child of the marriage. The prosecution case necessitated the evidence of C on a count being accepted beyond a reasonable doubt. An aspect of the evidence was evidence of an initial complaint by C to her brother about Count 1. 3 The applicant did not give evidence. His case at trial included that the evidence of initial complaint had been fabricated and that the evidence of C about having been raped should not be accepted beyond a reasonable doubt. Grounds 4 The applicant appeals, and seeks permission to appeal, on the following grounds: 1. The trial judge erred in law by failing to give adequate reasons and, or alternatively, by adopting an erroneous reasoning process, to explain how and/or why the conflicting evidence and the matters raised by the applicant did not give rise to a reasonable doubt or a reasonable possibility of innocence: a. The trial judge’s reasons did not properly address how the inconsistencies, defence criticisms and external conflicts with the complainant’s evidence impacted upon the overall assessment of her truthfulness, credibility and reliability; b. The trial judge failed to conduct a global assessment of the complainant’s credibility and reliability which brought to account the other evidence and the defence criticisms impacting on her credibility and reliability; c. The trial judge made findings which constituted an acceptance of the truthfulness, credibility and reliability of the complainant prior to considering and engaging with the evidence adduced by the applicant and the applicant’s criticisms of the complainant’s evidence; d. The trial judge engaged in preferential reasoning in relation to the complainant and other witnesses; e. The trial judge did not correctly apply the onus and burden of proof to the conflicts between the complainant and other witnesses, and the defence criticisms of her evidence; -- 3 of 29 -- [2024] SASCA 7 The Court 2 f. The trial judge erred in his reasoning in relation to the initial complaint evidence. 2. The trial judge erred when considering the complainant’s credibility and reliability by failing to properly evaluate the alleged inconsistencies, later inventions, conflicts, and the inconsistent behaviour of the complainant. 3. The trial judge erred in his approach to the evaluation of the evidence of initial complaint inter alia where there were claimed internal inconsistencies and inconsistencies with the evidence of her brother ([219]-[237]). 4. The trial judge erred in his application of the burden and standard of proof, in that his Honour: a. Determined whether he accepted the complainant’s evidence ([141]-[168]) prior to his consideration of the criticisms relied upon by the defence and prior to his evaluation of her brothers’ evidence and the defence witnesses ([170]-[210]); b. Applied sequential and/or preferential reasoning, in that having accepted the complainant’s evidence, his Honour thereby rejected the competing evidence ([170]-[210]); c. Directed himself in terms of whether the matters relied upon by the applicant caused him to doubt the finding he had already made to accept the complainant’s evidence ([210]-[275]). 5. The trial judge failed to consider and have regard to, or adequately consider and have regard to, the complainant’s reliability, as distinct from considering questions of credibility (e.g., [190]; [192]-[195]; [210]; [213]; [219]; [233]): a. The trial judge elided credibility and reliability when evaluating whether the evidence of the complainant could be ‘accepted’ beyond reasonable doubt and the evidence adduced on the defence case could be excluded; b. The trial judge did not adequately consider the impact that the inconsistencies relied upon by the applicant had on the complainant’s reliability, as distinct from credibility; c. It was incumbent upon the trial judge to consider the complainant’s reliability in circumstances where a challenge was raised on the defence case. 5 The applicant acknowledges that there is considerable overlap in the grounds of appeal. For the reasons which follow, we grant permission to appeal but dismiss the appeal. Background 6 The applicant and C met through an arranged marriage website and commenced a relationship in October 2019. They were married in India in February 2020. Prior to the marriage, C had been living and working in Melbourne. On 29 November 2020, C gave birth to their child. Following that, C said she was unwilling to engage in sexual intercourse for several weeks. It was in that context that the five counts of rape were alleged to have been committed -- 4 of 29 -- [2024] SASCA 7 The Court 3 between 11 January 2021 and 21 March 2021. On 24 March 2021, the complainant left the marital home. 7 The case of the applicant at trial was that there was no occasion on which he raped C. It was put in cross-examination of C that there had been no sexual act on the occasions the subject of Counts 2, 4 and 5. The position of the applicant about whether there had been sexual activity on the occasions on which Counts 1 and 3 were alleged to have occurred was less clear. Credibility was also in issue with respect to the alleged initial complaint about Count 1. The applicant put at trial that the initial complaint was fabricated. The applicant did not give evidence, but called his father and brother, an employer and a witness as to his good character. 8 What follows is a summary of the prosecution case on each count. Count 1 9 Count 1 was an act of vaginal sexual intercourse said to have occurred on 11 January 2021. On that day, the applicant and the complainant attended an appointment with a doctor for their child’s six-week check-up. At the time, the brother of C was visiting from interstate and was in the apartment. 10 C gave evidence that the rape occurred after arriving home from the doctor and before the applicant went to work. C said that she told the applicant that she was not ready to have sex due to the birth of the child and referred to her brother being present in the apartment but that the applicant said that he could ‘do anything’ as he was her husband and placed his hand over her mouth whilst engaging in vaginal intercourse. 11 On the prosecution case, after the applicant left for work, C told her brother about being forced to engage in sex. This was the ‘initial complaint’ and was only used by the trial Judge with respect to Count 1. The brother of C and the applicant attended a cricket match at Adelaide Oval that evening but did not speak about what the prosecution said had been disclosed. Count 2 12 Count 2 was an act of anal intercourse said to have occurred in mid-February 2021. C said that she was in the shower and the applicant penetrated her anus with his penis. C said that she asked the applicant not to commit that act but that he bent her down, placed his penis a ‘bit inside’ her anus and then ejaculated in the shower. Count 3 13 Count 3 was alleged to have occurred on 11 March 2021 at a time when C was fasting and dressed in traditional Indian clothing. C said that the applicant came into their room, lowered the curtains and had vaginal sexual intercourse with her. C said that she was repeatedly refusing but the applicant held her hands next to her head and used his body weight to hold her down. -- 5 of 29 -- [2024] SASCA 7 The Court 4 14 C said that the applicant’s father and mother were visiting and present in the apartment. C described her relationship with her in-laws as being up and down. C said that during this visit they did not speak to her despite her efforts to ‘talk to them, to make them feel comfortable’. Count 4 15 Count 4 was alleged to have occurred after C, the applicant, their child and the parents-in-law of the complainant returned from a party together. C said that the applicant and his father were intoxicated. 16 C said that after she went to bed, the applicant came into the bed with a condom, began kissing her and penetrated her vagina with his finger. C said that she said, ‘don’t do it’ and pushed at the applicant. C said that she turned away but the applicant slightly penetrated her anus before placing the condom on his penis and, in then penetrating her vagina, committed the act the subject of Count 4. C said that act was painful and that she was telling the applicant not to do what he was doing. C said that the applicant ejaculated in the condom which she removed after he fell asleep. Count 5 17 This was the last occasion on which C alleged that she was raped. C said that the applicant came home from work after midnight on 21 March 2021. They had dinner together and C went to bed. C said that she felt the applicant behind her and she told him to keep his hands away, to ‘get off me’ and said ‘Do not do it, do not do it’. C said that he said ‘No, no, I want to do it and it will take two, three minutes’. C said that the applicant removed her pants and penetrated her anus ‘very slightly’ before ejaculating into a tissue. The five issues in the appeal 18 Given the considerable overlap in the grounds of appeal, we deal with the grounds under the following headings: 1. The approach to the initial complaint (Grounds 1(f) and Ground 3) (the first issue); 2. Inadequate reasoning (Ground 1(a)–(d) and (f) and Ground 2) (the second issue); 3. Inadequate reasons (Ground 1(a)–(c) and (f) and Ground 2) (the third issue). 4. The approach to the burden and standard of proof (Ground 1(e) and Ground 4) (the fourth issue); and 5. The approach to reliability as distinct from credibility (Ground 5) (the fifth issue). -- 6 of 29 -- [2024] SASCA 7 The Court 5 The first issue — the initial complaint 19 The applicant submits that the trial Judge erred in his approach to the evidence of initial complaint in more than one respect. First, he failed to have adequate regard to inconsistencies in the evidence of the complainant and inconsistencies between the evidence of the complainant and the evidence of her brother. The applicant also submits that a proper resolution of the inconsistencies would mean that the initial complaint was not open to be relied upon. Second, the trial Judge reasoned on a basis which was not open on the evidence. Third, the inconsistencies undermined the credibility and reliability of C more broadly. Fourth, the trial Judge failed to direct himself in terms consistent with s 34M(4)(c) of the Evidence Act 1929 (SA). 20 Before considering each submission, we summarise some of the evidence. The day the complaint was made and the whereabouts of the applicant 21 As set out earlier, on the prosecution case, Count 1 took place after C and the applicant returned home after attending a doctor’s appointment with the child. There was no dispute that appointment was on 11 January 2021. On the prosecution case, C made an initial complaint to her brother about Count 1 on the same day and before the brother and the applicant went to a cricket match that evening. C said she was to attend that match with her brother and the applicant but she did not do so as the child was in pain after being inoculated that day. It was an agreed fact that there was a cricket match at Adelaide Oval on 11 January 2021 which commenced at 6.45pm and the applicant had three tickets. In evidence-in-chief, C said that she made the complaint in the evening but in cross-examination, she said that it was in the afternoon. 22 C and her brother both said that the applicant was at work when the complaint was made. It was put to C that the applicant had not worked that day, but she did not agree. 23 The applicant worked at two nursing homes (Eldercare and Resthaven) and at a Woolworths Service Station. As to which job the applicant was at when the complaint was made, C initially said it was one of the nursing home jobs. C was asked what the applicant was wearing when he left the house before the complaint; she referred to his Eldercare uniform but said ‘I am not 100 per cent sure because it is a long time now’ and expressed uncertainty about which job. At another point in her evidence, C referred to the applicant possibly having worked at Woolworths at the time of the complaint. 24 When asked about having said different things, C gave the following evidence: Q A moment ago you said that [the applicant] worked that day at one of his nursing jobs. -- 7 of 29 -- [2024] SASCA 7 The Court 6 A So I, I am not sure about the jobs, because he had three jobs and without his rosters I cannot remember now, it's like two years, nearly two years now, so I cannot recall exactly what day he worked which job. And when Ms Luu, she was asking me questions about all those conversations, then today only I recall that they went to the, watch the cricket at Adelaide Oval. Q So did [the applicant] go to work after you say that he raped you that afternoon. A Yes. 25 When pressed on the uniform worn, C said: Q I'm asking you about the uniform you saw him wear when he left the house. A I cannot recall it, it is nearly two years, I cannot exactly recall, there is so many things that have happened, I can't remember what he was wearing what day, I'm sorry. The terms of the complaint — the evidence of C 26 C said that her brother asked her more than once why she was not happy. C said that she complained to her brother in Punjabi and, in evidence, translated into English what she said. Her evidence was that she said that the applicant was being forceful and doing things she did not like. C said she used the word ‘zabardasdi’, which she said was a reference to being forceful regarding a sexual act. Some aspects of the cross-examination of C 27 In cross-examination, C agreed that she had said in a statement given on 11 April 2021 that the rape the subject of Count 1 had occurred on either 12 or 13 January 2021 and that the first record of her having said that it was 11 January 2021 was in a statement given on 29 March 2022. However, C said that on 11 April 2021 she said that rape occurred on the day the child was taken to see the doctor. The police officer who took both statements agreed that on 11 April 2021 C said that that incident occurred on the day the child was taken to the doctor but he said that he did not include that in the statement given on that day. 28 In cross-examination, C agreed that the first reference in a police statement to the initial complaint was in a statement dated 29 March 2022. However, C said that she had told the police officer about the complaint much earlier than that. The police officer said that he did not specifically recall asking C on 11 April 2021 if she had made any complaint. The police officer said that he believed that he would have asked about that and, had it been mentioned, he would have recorded it in the statement which was dated 11 April 2021. The police officer also said that he learned of the complaint from C some time between 11 April 2021 and 10 August 2021. The evidence of the brother 29 In January 2021, the brother was living in Melbourne but came to stay with C and the applicant in Adelaide. The brother said that he could not recall the date -- 8 of 29 -- [2024] SASCA 7 The Court 7 on which he arrived but said that it was in the first week of January. He said that he stayed ‘for almost two weeks’. He said that the initial complaint was made three of four days into his visit. 30 The brother said there were occasions during the visit when the complainant was not ‘connecting well’ with him and crying. The brother said he would ask C, ‘what happened?’. He said that on one occasion C told him that the applicant was ‘forcing’ and used the word ‘zabardasdi’, which he said meant forcing during sex. The brother said that, when C said that, there was silence. He said that he did not know how to address it because of a ‘culture barrier’ as he was the younger brother. He said that C was crying, and he told her that she should talk to their mother. The brother said that he felt helpless. The brother said that the applicant was not at home but at work. 31 In cross-examination, it was put that the conversation did not take place. The brother disagreed. In cross-examination, the brother was also asked when he arrived in Adelaide. He said that he could not recall if it was 5 January 2021 or not, but said that it was the first week of January. He said that he thought that he and the applicant went to a cricket match on the day he arrived or the next day. There does not appear to have been any dispute that was an earlier match than the one attended on 11 January 2021. The case of the applicant at trial 32 The case of the applicant at trial was that there was no complaint to the brother and that he did not work on 11 January 2021. 33 The applicant called his manager at the Woolworths Service Station, Mr Hrmo. Mr Hrmo said that 11 January 2021 was a Monday and that the applicant generally worked Sunday and Monday evening shifts (commencing at 6pm) and occasionally shifts on Saturdays. Mr Hrmo said that the applicant was rostered to work on 11 January 2021 but no later than about 11am on that day the applicant advised that he could not attend work and Mr Hrmo arranged someone else to do so. Mr Hrmo requested a certificate. During his evidence, a carer’s certificate dated 11 January 2021was shown to Mr Hrmo and tendered. 34 No evidence was called from Eldercare or Resthaven. The findings of the trial Judge 35 The trial Judge found that the visit to the doctor was confirmed by written records and was on 11 January 2021. As to the evidence about the applicant being at work, against the background of having earlier summarised the evidence of Mr Hrmo, the trial Judge said:1 [221] I have already referred to the evidence of Matias Hrmo, who was the manager at the Woolworths Petrol Station at Mitcham, where the defendant was rostered to work 1 R v Sondhi [2023] SADC 41, [221]–[224] (R v Sondhi). -- 9 of 29 -- [2024] SASCA 7 The Court 8 the evening shift on 11 January 2021. He said the defendant called him that day to advise that he was unable to attend work. At the request of Mr Hrmo, the defendant provided a medical certificate, dated 11 January 2021, stating the defendant was unable to work as he had to care for his baby. In fact, the defendant went to the Big Bash League cricket match at Adelaide Oval that evening. [222] Insofar as C believed the defendant worked an afternoon shift at the Woolworths Petrol Station before going to the cricket (when the defendant did not work at the Woolworths Petrol Station that evening), I am of the view that this does not affect C’s credibility or reliability in any material way. C said that her brother drove the defendant to work that afternoon after he had raped her. At first, C believed that he was going to work one of his nursing home jobs, likely at Elder Care, but then settled on the Woolworths job. I consider this is of no consequence. C said that the defendant went to work but, in my view, she was obviously mistaken that it was at Woolworths. There is no evidence that the defendant did not attend work at one of his two nursing home jobs that afternoon, as C initially suggested. As C stated in her evidence, it had been arranged that she, her brother, and the defendant were planning to go to the cricket that evening. However, as their child was in pain from the vaccination he received earlier that day, C did not attend the cricket match and her ticket was used by one of the defendant’s friends instead. [223] In my view, none of these matters detract from C’s evidence that the incident, the subject of this count, occurred on 11 January 2021 or that the defendant went to work that afternoon as C said he did. [224] C said, during her examination-in-chief, that she disclosed this incident to her brother during the evening of 11 January 2021. However, during cross-examination C said that she had made the disclosure to her brother in the afternoon, after he had returned home from dropping the defendant at work. It was submitted that C’s change from the evening to the afternoon was because C had realised during her cross- examination that she could not have made the disclosure to her brother in the evening because he had gone to the cricket with the defendant, and that this demonstrated she had fabricated this conversation. It was submitted that this was ‘devastating to C’s credibility’. (footnotes omitted) 36 The trial Judge acknowledged that C’s brother placed the complaint as being three or four days after he arrived in Adelaide (i.e. – before 11 January 2021) and referred to the submission that this was said to undermine the credibility and reliability of both the brother and C as to whether the complaint had occurred. The trial Judge found:2 [228] I consider C’s brother was simply mistaken as to when he had the conversation with his sister. Unlike C, who had every reason to remember the specific day by reference to the doctor’s appointment (it being her son’s first six-weekly check-up after his birth), her brother had no reason to recall the specific day when giving his statement to the police about seven months later. My assessment of C and her brother’s evidence of the conversation is not affected by these matters. 2 Ibid [228]. -- 10 of 29 -- [2024] SASCA 7 The Court 9 37 The trial Judge acknowledged that it had been submitted that the making of the complaint was not disclosed on 11 April 2021. The trial Judge also acknowledged the evidence of C that the complaint was made in the evening before later saying that it was made in the afternoon. The trial Judge said, ‘I do not consider this difference to affect C’s credibility in any way’. 38 The trial Judge found that the complaint of Count 1 had not been fabricated. The use of the initial complaint 39 The trial Judge directed himself that an initial complaint was ‘relevant as informing’ how the allegations the subject of the complaint first came to light and was not evidence of their truth. The trial Judge stated that he had used the initial complaint ‘as enhancing C’s credibility through the consistency of conduct demonstrated by this evidence’. The trial Judge also directed himself that the initial complaint was not evidence on any count other than Count 1. The first submission 40 We reject the submission that the trial Judge failed to have adequate regard to the inconsistencies in the evidence of C and between the evidence of C and her brother. 41 The inconsistencies in the evidence of C were: whether the complaint had been made in the afternoon or evening; and a possible failure to refer to the complaint when the making the statement on 11 April 2021. 42 As to whether the complaint was made in the afternoon or the evening, the trial Judge acknowledged that difference and the submission of the applicant that it was ‘devastating’ to credibility. The finding of the trial Judge that the difference did not affect the credibility of the complainant ‘in a material way’ was open. There was hardly a significant difference between the afternoon and the evening. The real issue was whether the complaint had been made. As to that issue, the making of the complaint was supported by the evidence of the brother. 43 As to the possible failure to disclose the complaint to the police officer on 11 April 2021, the trial Judge summarised the evidence on that issue3 and the submission of the applicant that a failure to mention the complaint on 11 April 2021 was consistent with the complaint having been fabricated.4 Having done so, the Judge nonetheless found that he was satisfied that the initial complaint had been made on 11 January 2021.5 In doing so, the trial Judge did not determine whether the complaint had been mentioned to the police officer on 11 April 2021 but the trial Judge was not obliged to do so. The issue was whether the complaint 3 Ibid [85]. 4 Ibid [225]. 5 Ibid [232]. -- 11 of 29 -- [2024] SASCA 7 The Court 10 had been made. The making of the complaint was supported by the evidence of the brother. 44 As for inconsistency between C and her brother, the relevant difference was limited to when the complaint was made (i.e. – on what date). We have set out the trial Judge’s approach to that difference at [228] of his reasons. The applicant contends that the trial Judge failed to consider the possibility, that if the brother was not mistaken, that would be a material inconsistency which went both to the initial complaint evidence and the complainant’s credibility and reliability more broadly. We reject this contention. Once the evidence of C was accepted as to the day on which the complaint was made, the evidence of the brother on that topic could not undermine her credibility or reliability. 45 For the reasons the trial Judge gave, it was open to prefer the evidence of C on that issue. 46 It being open to the trial Judge to approach the inconsistencies in the way that he did, the submission that it was not open to rely on the complaint given the inconsistencies must be rejected. The second submission 47 The applicant submits that, in finding the initial complaint had been made, the trial Judge erred as he approached the evidence on a basis which was not open. The applicant submits that in [222] of his reasons, the trial Judge considered that the applicant might have worked at a nursing home on the afternoon of 11 January, but that the evidence did not permit that approach. 48 We agree that the trial Judge reasoned in the way submitted, but reject the submission it was not an approach open on the evidence. 49 The evidence of the working hours of the applicant at Eldercare and Resthaven was limited and came only from C. C said the nursing home rosters were ‘all over the place’; that Eldercare involved seven and a half hour shifts; and ‘with Resthaven it depended, like if because Resthaven he used to normally work in the morning’. 50 The evidence was imprecise and it does not exclude the approach of the trial Judge. It can also be observed that the applicant being at work was supported by the evidence of the brother. The third submission 51 The applicant submits that the inconsistencies identified above undermined the credibility and reliability of C more broadly than just with respect to whether a complaint had been made and the trial Judge failed to recognise that. We do not agree. -- 12 of 29 -- [2024] SASCA 7 The Court 11 52 The starting point is that the issue at trial with respect to the evidence of complaint was whether a complaint was made at all. The case of the applicant was that it was a fabrication and that the inconsistencies in the evidence weighed against the evidence of C and her brother being truthful. Once the trial Judge determined that the complaint was not a fabrication, the alleged inconsistencies in the evidence about the complaint were no longer relevant to a proper evaluation of whether a count was proven beyond a reasonable doubt. The fourth submission 53 The trial Judge did not direct himself in the terms set out in s 34M(4)(c) of the Evidence Act 1929 (SA) which provides: (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— … (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. 54 Properly, the applicant does not submit that a judge sitting alone is required in every case to include in his or her reasons a direction of the kind prescribed by s 34M(4)(c). That requirement is not consistent with the terms of the sub-section. It is also not consistent with the approach taken in other parts of the Evidence Act 1929 (SA). For example, the terms of s 34M may be contrasted with s 34R which mandates the approach to be taken when evidence of discreditable conduct is admitted under s 34P and prescribes that certain directions must be given both to a jury and in trial by judge alone. 55 The application of s 34M(4) to trial by judge alone has previously been addressed in R v Wickers6 in which it was held:7 [186] Although a trial judge is required to consider the evidence of complaint if admitted under s 34M(3) and to use it only for the purposes set out in s 34M(4), I do not consider that, in a trial by judge alone, the judge is required to direct himself in the precise terms set out by s 34M(4). I consider it is obvious on the face of s 34M(4) itself that the direction therein is mandated only in respect of a trial by jury. [187] The substantive principles enacted by s 34M(3) apply in any trial. However, that does not mean that the judge is required to give himself the same direction as would be required in a jury trial. 56 That a judge sitting alone is not obliged to direct him or herself in terms consistent with s 34M(4) does not mean that, in a given case, a trial judge will not 6 (2019) 134 SASR 504. 7 Ibid 537 [186]–[187] (Kelly J). -- 13 of 29 -- [2024] SASCA 7 The Court 12 need to show attention to the matters in s 34M(4). A judge is required to give adequate reasons for the verdict. If an issue is raised in the trial that makes the direction in s 34M(4)(c) material, the reasons of the trial judge will need to demonstrate that the issue has been addressed. 57 The applicant submits that the direction has a protective purpose for a defendant which he was denied by the absence of the direction. We turn to that issue. 58 In Kakule v The King,8 the trial Judge had failed to give the direction to a jury. The Court held:9 However, s 34M(4)(c) is not only concerned with delay. It is concerned with any circumstance of timing and the identity of the recipient of the complaint. It leaves to the jury whatever inference they may determine to draw on account of the complaint being made at a particular time or to a particular person, without placing the imprimatur of the court on any one such possible reason. Where evidence of a complaint is admitted, it will generally be a feature of the defence case that the complaint is untrue. The defence will often posit reasons for why that is so, by reference to the timing of the complaint and the person to whom it is made. For example, the defence may urge a thesis that the complainant is covering for conduct which the complainant now regrets. In such a case, s 34M(4)(c) provides the court’s imprimatur to the need for the jury to consider any reasons for these circumstances of the complaint posited by the defence, without endorsing those reasons or the prohibited reasoning. Thus, in addition to serving the primary statutory policy of s 34M, as recognised by the Court of Criminal Appeal in R v Place, the direction required by s 34M(4)(c) also provides a forensic protection to the defendant, at least where a defence is raised attacking the veracity of the complaint. This aspect of s 34M(4)(c) did not require consideration in R v Place. … … First, the directions required by s 34M(4) are required by statute, not the accrued experience of the courts. Then, given that s 34M(3) permits the admission of evidence of initial complaint, it is Parliament that has prescribed, specifically in ss 34M(4)(a) and (b), the directions required to prevent misuse of that evidence. The educative and protective purposes of s 34M(4)(c) are not of the same character, in that they do not address directly the risk of misuse of the complaint evidence. Rather, s 34M(4)(c) places the imprimatur of the court on the general use of the complaint evidence by guiding the jury away from prejudicial reasoning and then, in neutral terms, permitting the jury to consider any (non-prohibited) defence thesis relating to the timing and circumstances of the complaint. The court’s imprimatur to these ends cannot be said to be of the same importance to the integrity of the trial as that which is required with respect to identification evidence, or the directions required by ss 34M(4)(a) and (b). Nevertheless, Parliament has determined that it is required. 8 [2023] SASCA 51 (Kakule). 9 Ibid, [29]–[31]; [34]–[35]. -- 14 of 29 -- [2024] SASCA 7 The Court 13 (emphasis added) 59 In Baptiste v The Queen,10 this Court confirmed that s 34M(4)(c) provides a forensic protection to a defendant ‘at least in circumstances where a defence is raised that attacks the reasons for the timing of the complaint and the identity of a person to whom the complaint is made’.11 60 The difficulty for the applicant is that the issue at trial was not why the complaint was made, nor why it was made when it was. To adopt the approach of the Court in Kakule v The King, the ‘defence thesis relating to the timing and circumstances of the complaint’ was that the making of a complaint had been fabricated. As set out above, the trial Judge found that it had not been. The direction in s 34M(4)(c) could not shed light on that issue. The suggestion of fabrication having been resolved in a way open to the trial Judge, in this case the forensic protection which s 34M(4)(c) provides was not engaged and the trial Judge did not err in failing to direct himself. The second issue — inadequate reasoning 61 While the applicant submits both that the trial Judge engaged in inadequate reasoning and that the reasons were inadequate, the focus of the submissions is on the former. We deal with that contention first. 62 In R v Sexton,12 Kourakis CJ outlined the distinction between a complaint of inadequate reasons and one of inadequate reasoning:13 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. 63 The applicant makes several complaints about the approach of the trial Judge to the credibility and reliability of C. The applicant contends that the overall approach of the trial Judge to the credibility and reliability of C was attended by error as it did not engage with the whole of the evidence. The applicant also 10 [2020] SASCA 70. 11 Ibid [18]. 12 [2018] SASCFC 28. 13 Ibid [177]. -- 15 of 29 -- [2024] SASCA 7 The Court 14 contends with respect to some specific aspects of the evidence, that the approach of the trial Judge was not adequately exposed or was otherwise flawed. Before turning to these contentions, it is necessary to set out the structure of the reasons in some detail. The structure of the reasons 64 Having directed himself on the onus of proof, the elements of the offence and other matters, the trial Judge summarised the evidence of uncontroversial matters of background. The trial Judge then set out the evidence of C about the birth of the child, requests made for sexual intercourse, and other aspects of her evidence about the relationship with the applicant. 65 The trial Judge set out the evidence of C about Count 1, and the evidence that she and her brother gave of the initial complaint. This summary included references to some of the cross-examination. The trial Judge summarised the evidence of C about Counts 2–5 inclusive, again making references to the cross-examination. 66 The trial Judge summarised the evidence in the defence case given by the father and brother of the applicant; the evidence of Mr Hrmo; and evidence given by a Mr Ash about the good character of the applicant. The trial Judge gave himself a direction about good character evidence. 67 The trial Judge turned to the consideration of the evidence. The trial Judge commenced that consideration by directing himself in the following terms:14 [139] Proof of all counts is totally dependent upon C’s evidence of the charged acts being accepted as truthful and reliable. As such it is important that C’s evidence is scrutinised with care when determining if any of the counts have been proved beyond a reasonable doubt by the prosecution. [140] Furthermore, I am to consider all of the evidence presented in the case, (including the defence evidence) and decide whether on the whole of the evidence (and notwithstanding the defence evidence and arguments) any of the charges have been proved. [141] I will first deal with C’s credibility and reliability generally, before discussing the counts. 68 The trial Judge turned to consider several matters (or topics) raised during the trial which related to evidence which was not about the conduct the subject of a count. Each may be described as a matter of background which, consistent with the description by the trial Judge in [141], was said by the applicant to undermine C’s credibility and/or reliability generally but was not direct evidence in respect of any count. 14 R v Sondhi (n 1) [139]–[141]. -- 16 of 29 -- [2024] SASCA 7 The Court 15 69 There were nine such topics which may be described as: the evidence of C about isolation or control; C having remained in contact with the applicant after leaving the house; the reason for C leaving the home; differences in the evidence of C on the one hand and the father and brother of the applicant on the other; the evidence of how the complainant felt during the relationship; opportunities for C to complain to police before she ultimately did; the failure of C to disclose to police the approaches of the applicant for consensual sex; statements in a Family Court affidavit; and possible motives raised in the cross-examination of C for her to make a false allegation. 70 From paragraphs [142]–[209], the trial Judge dealt separately with these nine topics. In doing so, the trial Judge set out the evidence directly relevant to the topic and the contentions of the applicant. The trial Judge resolved each topic in a way which was not adverse to the credibility and/or reliability of C and gave reasons. As will be explored, some of those reasons are said to be examples of inadequate reasoning. 71 Having undertaken the process in [142]–[209], and before making any finding as to any count beyond a reasonable doubt, the trial Judge said:15 [210] I have had regard to the submissions advanced by the defence in considering C’s overall credibility as a witness. I have already addressed those submissions. What has been submitted or advanced has not caused me to doubt the truthfulness or reliability of C’s evidence, either generally, or particularly as it relates to the counts. [211] I have taken into consideration the evidence of the defendant’s good character as outlined earlier in these reasons when considering whether any of the counts have been proved. [212] I found C to be a very impressive witness. She gave thoughtful and carefully considered answers and provided significant detail of the sexual acts the subject of the counts, as I have already set out in these reasons. [213] I am satisfied that C gave truthful and reliable evidence in relation to the circumstances of each count. [214] I now set out my reasons for my assessment of C’s evidence and conclusions in relation to each count. 72 The trial Judge then turned to consider each count separately. In doing so, he summarised the submissions made by the applicant, gave reasons for rejecting them as matters which undermined the credibility of C and, separately in respect of each count, found the elements proven beyond a reasonable doubt. In considering Count 1, the trial Judge also considered the evidence of initial complaint. We have dealt with that above. 15 Ibid [210]–[214]. -- 17 of 29 -- [2024] SASCA 7 The Court 16 73 The conclusion of the trial Judge with respect to each separate count can be illustrated by the way in which he expressed his conclusion in Count 1.16 [240] Based on C’s evidence, I am satisfied beyond a reasonable doubt that the defendant engaged in an act of penile/vaginal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting. [241] I find the defendant guilty of this count. 74 The same conclusion was later separately expressed with respect to each of Counts 2–5. The contention of a failure to engage with the whole of the evidence 75 The applicant contends that, during his consideration of the general credibility of C within [142]–[209] of his reasons, the trial Judge erred in making findings about her credibility without evaluating the whole of the evidence and every criticism which had been made. We do not agree. 76 As set out above, within [142]–[209], it is the case that the trial Judge dealt with the nine topics individually. It is difficult to see that he could give reasons for his approach to each matter without dealing with each in turn. Nevertheless, that approach is not to be mistaken for the existence of a risk that the trial Judge overlooked the need to consider the whole of the evidence. The reasons must be read as a whole; not by isolating topics which the trial Judge needed to address for his reasons to be adequate. 77 Read as a whole, the reasons demonstrate that the trial Judge was cognisant of the need to consider the whole of the evidence, and submissions about that evidence, before making any finding with respect to any count being proved beyond a reasonable doubt. 78 As set out above, at [140] of his reasons, and before turning to consider any of the nine topics said to be relevant to the general credibility and reliability of C, the trial Judge acknowledged the need to consider the whole of the evidence. Further, before drawing any conclusion as to whether any of the matters raised said to be relevant to the credibility and/or reliability generally caused him to doubt C, at [210] of his reasons, the trial Judge again referred to the submissions by the applicant on the nine topics. The trial Judge stated they did not cause him to doubt the credibility or reliability of C generally or in relation to the counts charged. The first finding of guilt beyond a reasonable doubt was not made until [240]–[241] (in respect of Count 1). The approach just outlined is not consistent with failing to consider the combined force of the matters advanced by the applicant. 79 In advancing Ground 1, the applicant also directed attention to specific aspects of the reasons which he says establish that the trial Judge accepted the 16 Ibid [240]–[241]. -- 18 of 29 -- [2024] SASCA 7 The Court 17 credibility and reliability of C before engaging with the evidence led by the applicant and his criticism of the evidence of C. We turn to each. 80 At [155] of his reasons the trial Judge identified that it had been submitted by the applicant that C tended to make up non-sexual allegations against others and identified the evidence of the applicant’s father and brother said to justify that conclusion. At [156] the trial Judge said that he accepted the evidence of C over that of the applicant’s father and brother. The applicant submits that the trial Judge did so prior to considering and engaging with the evidence of the father and brother. We do not agree. Earlier in his reasons, the trial Judge summarised the evidence of the father and brother of the applicant and within [155] he set out the topics on which the evidence of C differed to that of the applicant’s witnesses. The reasons for rejecting the relevant aspects of the evidence of the brother were given at [169]–[187]. The reasons of the trial Judge are not to be read as a ‘real time’ record of the sequential steps in reaching the conclusion expressed in [156].17 81 There was evidence that C had contact with the police on 8 March 2021 and 24 March 2021, made no complaint of having been raped on either occasion and the reasons C did not do so. The trial Judge considered this evidence in detail at [161]–[169]. The trial Judge accepted the evidence of C as to why no complaint had been made and found C was ‘confronting some extremely difficult circumstances in her life at that time’. The applicant submits that the conclusion is ‘circular’ as it reflects a determination that C had been raped before all evidence and submissions had been considered. Again, we do not agree for the same reasons as with [156]. The reasons are not to be read as a ‘real time’ record of the sequential steps in reaching any conclusion.18 Complaints about the approach to other specific aspects of the evidence 82 We turn to complaints about the reasoning of the trial Judge with respect to other specific aspects of the evidence. An approach for consensual sex 83 C gave evidence that the applicant had attempted to initiate sexual intercourse in December 2020, but no intercourse had occurred. C agreed that this did not appear in any statement given before trial but said that she had mentioned it to police. The investigating officer said that he had no memory of that being mentioned, and if it had been, he would have included it in a statement. 84 The trial Judge found that the non-disclosure by C of these attempts to the police did not have an adverse impact on the credibility of C’s evidence of the conduct the subject of any count:19 17 R v Rendell (2018) 131 SASR 201, [79]. 18 Ibid. 19 R v Sondhi (n 1), [191]–[192]. -- 19 of 29 -- [2024] SASCA 7 The Court 18 [191] It was submitted by defence counsel that C had failed to disclose to the police that the defendant tried to initiate sex with her in December 2020. While C agreed that this incident did not appear in any of her police statements, she claimed that she mentioned it to Detective Ryan. However, Detective Ryan said that he had no memory of her mentioning this incident to him on any occasion, and if C had mentioned this to him, then it would have been included in a statement. [192] It was submitted that C’s failure to have mentioned this incident to Detective Ryan is demonstrative of C having made this incident up and that this must affect her credibility. I do not accept this submission. On C’s evidence relating to this incident, the defendant did not force her to engage in sex with him and, indeed, he stopped asking her to have sex when she told him that she would not. C’s omission in disclosing this incident to Detective Ryan does not, in my view, affect her credibility in relation to her evidence concerning the conduct the subject of any of the counts. What C said in evidence of this incident was not something directly related to the counts and if she had failed to mention it to Detective Ryan, as he said, then there is a natural explanation for that as I have indicated. 85 The applicant submits that, having accepted the evidence of the police officer that C did not mentioned these approaches about intercourse, the trial Judge only considered whether the failure to mention it before trial was significant. The applicant submits that the trial Judge did not consider that C had been contradicted by the police officer about it being mentioned. 86 We reject this criticism. 87 The criticism of C advanced at trial was that she was not to be believed as she had given evidence of something which was not in a statement given before trial. That criticism was dealt with in a way open to the trial Judge. As for the submission on appeal, that was not raised at trial. It not having been raised, we are not satisfied that there is inadequate reasoning, nor that the reasons are inadequate, because it was not dealt with. Approach to the evidence of the father and brother of the applicant 88 At trial evidence was given by C and by the applicant’s father and brother about the relationship between C and the applicant and C and the family of the applicant. Aspects of that evidence conflicted. The trial Judge summarised this evidence in some detail. The trial Judge preferred the evidence of C and gave reasons for doing so. 89 The applicant complains that the reasons given by the trial Judge for rejecting the evidence of the father and brother are examples of inadequate reasoning. The applicant highlights two aspects of the approach to the rejection of this aspect of the defence evidence. The first is in the following passage:20 [180] Having considered all of the evidence, I am satisfied that the defendant’s brother did not want the defendant to have a court marriage to C because he did not like C, and he did not want her to be part of the family. I consider that he felt aggrieved that the 20 Ibid [180]. -- 20 of 29 -- [2024] SASCA 7 The Court 19 defendant went against his advice and that this was the reason he did not want anything further to do with the defendant thereafter. 90 That reasoning was not, in our view, inadequate. It was open on the evidence. 91 In any event, that reasoning was of no significance in the trial Judge’s later acceptance of the evidence of C as to the conduct the subject of the counts. Immediately after the passage above, the trial Judge said:21 [181] That said, I consider nothing turns on this evidence in proof of any of the counts. The conduct the subject of the counts is quite distant from these early discussions involving the court marriage, and by January 2021, C and the defendant had not had anything to do with the defendant’s brother and his wife for many months. They were no longer part of their lives. 92 The applicant also complains about the rejection of the evidence of his father. The applicant submits that the trial Judge did not expose his reasoning. We reject this criticism. 93 The trial Judge found that the father ‘displayed antipathy’ towards the complainant and he said that he formed the ‘clear impression from the manner in which he gave his evidence that he did not like C and would say anything to support his son’.22 The applicant complains that this finding was based solely on an inconsistency between the father’s evidence and that of C. We disagree. As just mentioned, the trial Judge formed this impression based upon the manner in which the father gave his evidence. As an observation based upon the manner in which the father gave evidence, little more could be said. 94 In any event, the rejection of the evidence of the father and the brother was not central to the assessment of the evidence of C as to the conduct the subject of a count and whether the prosecution had proved that count beyond a reasonable doubt. The trial Judge found:23 [189] Almost all the evidence given by the defendant’s brother and father was collateral to the allegations the subject of the counts. I consider that the only relevance of this evidence lies in its potential capacity to undermine C’s credibility of her description of the relationship between herself and the defendant’s family. This was the submission advanced on behalf of the defendant during his counsel’s closing address and I have approached the evidence in this way. 95 This approach was open. The real issue in the trial was not the relationship of C with the family of the applicant. The real issue was whether the charged conduct had been proven beyond a reasonable doubt. 21 Ibid [181]. 22 Ibid [187]. 23 Ibid [189]. -- 21 of 29 -- [2024] SASCA 7 The Court 20 Good character 96 The applicant complains about the approach to the evidence led of his good character. The applicant accepts that the trial Judge accurately summarised that evidence and directed himself appropriately as to its proper use but contends that the reasons of the trial Judge do not reveal why that evidence did not prevent guilty verdicts. 97 We reject this criticism. On two occasions, the trial Judge said that he had considered the evidence of good character. One was immediately before he turned to reach a conclusion on each of Counts 1–5 where he said:24 [211] I have taken into consideration the evidence of the defendant’s good character as outlined earlier in these reasons when considering whether any of the counts have been proved. 98 The evaluation of that evidence, and its rejection as an obstacle to proof beyond a reasonable doubt, did not require a more detailed explanation. The removal of the condom — Count 4 99 In his evaluation of Count 4, the trial Judge referred to the evidence of C that she removed a condom worn by the applicant after the act of intercourse. The trial Judge said:25 [265] In relation to C’s evidence, the prosecution submitted that what C did after the defendant ejaculated and had fallen asleep, in removing the condom from her husband’s penis, was so incredible that it must be true. I consider there is strength in this submission. It is a detail that is simply inexplicable unless it happened. 100 The applicant submits that this reasoning was flawed as it imposed an obligation upon him to provide another reason for the detail. We reject this criticism. It was open to the trial Judge to consider whether that detail was the hallmark of a true account or one invented and to treat it as the former for the reasons the trial Judge gave. The approach of the trial Judge did not impose any obligation on the applicant. The third issue — inadequate reasons 101 In advancing this contention, the applicant relies upon the same matters as relied upon when complaining that the trial judge engaged in inadequate reasoning. 102 A contention that reasons are inadequate is a contention that it is not possible to discern how the Judge rationally arrived at the determinative conclusions.26 We turn to that complaint. 103 Section 7(4) of the Juries Act 1927 (SA) provides: 24 Ibid [211]. 25 Ibid [265]. 26 R v Sexton [2018] SASCFC 28, [177]. -- 22 of 29 -- [2024] SASCA 7 The Court 21 7—Trial without jury … (4) If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury. 104 In R v Keyte,27 Doyle CJ, with whom Williams and Wicks JJ agreed, held that s 7(4) impliedly requires a judge to give reasons for a verdict following upon the trial of a charge by judge alone.28 105 The principles applicable to the statutory obligation imposed on a judge to provide reasons are well settled. In DL v The Queen,29 Kiefel CJ, Keane and Edelman JJ, in considering an appeal from a criminal conviction, said that: 30 The content and detail of reasons ‘will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision’. In the absence of an express statutory provision, ‘a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied’. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal. … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge's conclusion’. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular: Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. (footnotes omitted) 106 Earlier we have set out the structure of the reasons of the trial Judge. The reasons are detailed and deal with all relevant issues. As set out earlier, each of 27 (2000) 78 SASR 68. 28 Ibid 74 [26]. 29 (2018) 266 CLR 1. 30 Ibid 12–13 quoted in Lloyd v The King [2023] SASCA 106, [29]–[33]. -- 23 of 29 -- [2024] SASCA 7 The Court 22 the matters upon which the applicant relies were resolved by the trial Judge in a way that was open. 107 The issue in each count was the credibility of C. The trial Judge set out the relevant evidence, including cross-examination; the key arguments of the applicant; and resolved the key issues. The trial Judge explained why the evidence of C was accepted beyond a reasonable doubt on each count. Rather than being inadequate, the approach of the trial Judge reflects the identification and application of the relevant legal principles; a detailed consideration of the evidence and resolution of the key criticisms of the evidence of C; and reasons which were open for accepting that evidence and finding guilt proven beyond a reasonable doubt. The fourth issue — the approach to the burden and standard of proof 108 The applicant contends the trial Judge erred by engaging in ‘preferential reasoning’ and misapplied the onus of proof. Attention is directed to specific aspects of the reasons. The directions 109 We commence with the directions the trial Judge gave himself. They are not consistent with any misapplication of the burden of proof or a risk of finding guilt merely because the evidence of the complainant was preferred. 110 At the commencement of his reasons, the trial Judge directed himself:31 [3] The defendant is presumed to be innocent of the charges. He is not required to prove anything. The prosecution is required to prove the charges and to do so beyond a reasonable doubt. The prosecution must also exclude any matter raised by the defendant that might affect proof of the charges, as a reasonable possibility. 111 Before considering the general credibility and reliability of C, the trial Judge gave himself the direction at [139] which we have earlier set out. As also set out above, before finding the applicant guilty of a count, the trial Judge found each element of that count established beyond a reasonable doubt. Complaints about specific passages 112 We turn to specific passages relied upon by the applicant as demonstrating error in approach to the onus. Attention is directed to passages in which the trial Judge stated that he ‘accepted’ the evidence of the complainant; did not ‘accept’ evidence led by the applicant; and did not ‘accept’ submissions made by the applicant. 113 No such reference reflects a misapplication of the burden of proof. To explain why, it is helpful to give an example of where the trial Judge referred to 31 R v Sondhi (n 1) [3]. -- 24 of 29 -- [2024] SASCA 7 The Court 23 ‘accepting’ the evidence of C and an example of not accepting evidence given by a witness called by the applicant. 114 The complainant gave evidence that she left the home on 24 March 2021 but continued to have contact with the applicant. The applicant submitted that contact was not consistent with C having been raped. The trial Judge referred to that submission and set out relevant aspects of the evidence of the complainant. The trial Judge then said:32 [151] I accept C’s explanations for communicating with the defendant after separating from him. It has not caused me to doubt the truthfulness of her evidence in relation to the allegations the subject of each count. 115 There is no error in the way the trial Judge expressed himself. The requirement for satisfaction beyond a reasonable doubt did not apply to this aspect of the evidence of C. It was not evidence of an element of any count. 116 There was a conflict between the evidence of C and the brother of the applicant about whether the brother was supportive of the applicant marrying the complainant. The trial Judge said that he did not ‘accept’ the evidence of the brother. Again, there is no error. This aspect of the evidence was not one in respect of which the prosecution bore an onus. 117 As for the trial Judge on occasions not ‘accepting’ a submission made on behalf of the applicant, there is no onus upon the prosecution to disprove a submission. The onus is to prove guilt beyond a reasonable doubt. 118 At [236] the trial Judge found that the complaint had not been fabricated. The applicant submits that the trial Judge cast an onus on the applicant. We reject that submission. It cannot be read into that finding. The applicant also submits that the trial Judge had to exclude the fabrication of the complaint beyond a reasonable doubt. That onus only applied to the elements of a count, not to whether the complaint had been fabricated. 119 The applicant also complains about the trial Judge observing at [198] that there was ‘no evidence that C consented to any of the sexual acts on the occasion of each count’. This observation was in the context of the trial Judge evaluating the significance of the evidence that the applicant refrained from engaging in sexual activity on two occasions after his requests were refused. In that context, the trial Judge observed that it had not been suggested in cross-examination that the conduct the subject of any count was consensual. There is no error. The trial Judge was not casting an onus on the applicant. The trial Judge was simply observing what the evidence was in respect of each count which was relevant to the significance of the applicant having respected the wishes of C about sex on two occasions. 32 Ibid [151]. -- 25 of 29 -- [2024] SASCA 7 The Court 24 120 The applicant makes a further complaint. At trial, the applicant suggested possible motives for C to make a false allegation. The applicant submits that the trial Judge misapplied the onus of proof in rejecting the possible motives. 121 It is necessary to set out this part of the reasons in full. The trial Judge said:33 [205] Consistent with the onus of proof in a criminal trial, a defendant is never under any obligation to prove why a witness might be lying in their evidence. [206] The rejection of a motive or motives advanced by the defence for a prosecution witness to have lied in their evidence does not mean that the witness has been truthful in their evidence or that it enhances that witness’s credibility. The rejection of a motive to lie does not strengthen the prosecution case against a defendant. It simply falls away and becomes a neutral consideration. The onus always remains upon the prosecution to prove a charge beyond a reasonable doubt. [207] I accept that C was jealous of the defendant’s relationship with Preeti. This was conceded by C, who said she had looked through the defendant’s telephone and noticed that he was communicating with Preeti, despite him having previously told her that he was not. C said she suspected he was cheating on her and that this upset her. Indeed, this is what led to the heated argument on 8 March 2021, that resulted in the police attending the unit. C sent Preeti a text message on 13 March 2021, telling Preeti that she did not want anyone interfering in her personal life and asking Preeti to stop talking to the defendant. [208] I have considered each of the motives suggested to C by the defence, individually and in combination. [209] I find that C did not make allegations about being raped because she was jealous of the defendant’s relationship with Preeti, nor that she made up allegations of rape for any of the other reasons suggested to her. I do not find that she was motivated to make such serious false allegations against the defendant out of revenge against him and his family, or as a means of remaining in Australia in the event the defendant left her or divorced her. (footnotes omitted, emphasis added) 122 The applicant directs attention to the second sentence in [209] and submits that the trial Judge approached the issue on the basis that the applicant had to establish the motive. Were that sentence viewed in isolation, there might be force in that submission. However, that sentence must be read in the context of the trial Judge having directed himself at [3] that the applicant ‘is not required to prove anything’ and in the immediate context of [205], [206] and the first sentence in [209]. Read in that context, the trial Judge did not approach this issue on the basis that the applicant needed to persuade him that the complainant had a motive to lie. Preferential reasoning 123 The applicant submits the trial Judge merely preferred the evidence of the complainant over that of witnesses called by the applicant and, from that 33 Ibid [206]–[209]. -- 26 of 29 -- [2024] SASCA 7 The Court 25 foundation, convicted without a correct application of the onus of proof. The applicant directs attention to Douglass v The Queen,34 and a passage in that judgment quoted from Murray v The Queen:35 The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the applicant. 124 It must be accepted that, on occasions, the trial Judge preferred the evidence of C rather than the evidence of another witness. Most particularly, he preferred the evidence of C rather than the evidence of the father and brother of the applicant and preferred the evidence of C to that of her brother as to the day on which the initial complaint was made. 125 However, these are not examples of the trial Judge engaging in preferential reasoning. The trial Judge did not leave his analysis of whether any count had been proven beyond a reasonable doubt at a preference for the evidence of C on matters which did not have to be proven beyond a reasonable doubt. As set out earlier, the trial Judge plainly understood that satisfaction beyond a reasonable doubt was essential before guilt could be found and found each element of each count proved to that standard. The fifth issue — the approach to reliability as distinct from credibility 126 In this ground, the applicant makes a further complaint about the approach of the trial Judge to the evidence of the complainant. The applicant contends that the trial Judge limited his evaluation to credibility and did not deal adequately with reliability. The applicant directs attention to certain passages in the reasons in which the trial Judge considered criticisms of the evidence of the complainant but only mentioned credibility (or truthfulness). 127 Before turning to the passages relied upon, we deal with the overall complaint that the trial Judge did not have regard to reliability, or did not do so adequately. We do not agree. 128 It is important to place the overall complaint in context. First, as the applicant concedes, the trial Judge did not overlook the issue of reliability altogether. We refer to, without repeating, the reasons at [139]–[141], [210] and [213] which expressly refer to reliability. Second, the extent to which the trial Judge was obliged to engage with the issue of reliability must be considered without overlooking the issue in each count. Contrary to the submission of the applicant on appeal, on the evidence at trial, a reasonable possibility of unreliability about the conduct the subject of each count did not exist. The issue at trial on each count was not reliability but credibility. It was not suggested at trial that C might have been mistaken in her evidence the subject of any count (e.g. – might have mistaken 34 (2012) 86 ALJR 1086, 1089 [12]. 35 (2002) 211 CLR 193, 213 [57] (Kirby J). -- 27 of 29 -- [2024] SASCA 7 The Court 26 the act; might have consented; or might have failed to communicate a lack of consent). As set out above, the trial was conducted by the applicant on the basis that C fabricated her evidence of the conduct the subject of each count. 129 The limits of the relevance of reliability to the issues in the trial is further illustrated by the approach taken in the closing address of the applicant. During that address, only two issues were relied upon as going to both credibility and reliability. The first related to the evidence of the complainant with respect to Count 3. Counsel for the applicant referred at trial to a failure by C to refer to aspects of her clothing and appearance before Count 3 and a call for help during the occasion the subject of that count. The clothing and appearance were not referred to in a statement before trial and the call for help was not supported by the evidence of the father of the applicant who was within the house. The trial Judge did not overlook these matters but referred to them when discussing Count 3. The trial Judge considered that failures of the complainant to refer to what she was wearing, or doing, on the night of Count 3 did not diminish her credibility or reliability. The trial Judge had earlier rejected the evidence of the father. 130 The second related to events said to precede Count 4. C gave evidence that, upon returning home before the act the subject of that count, she had difficulty parking the car. C said that the applicant then did so, accelerating quickly and causing C to scream and the neighbours to ask if she was alright. The trial Judge rejected that this was relevant to the credibility or reliability of C as to the conduct the subject of Count 4. 131 Against the above background, we turn to the passages relied upon by the applicant in which the trial Judge referred only to credibility. Each was one of the background topics considered in [142]–[209] of the reasons. As will be seen, in each instance, there was no error in limiting the consideration to credibility. 132 The first passage relates to the evidence of C about aspects of her behaviour within the relationship and whether she was submissive or able to stand up for herself. The trial Judge found that C stood up for herself from time to time but did not consider that translated ‘to her not being a truthful witness’.36 133 There is no error in the absence of reference to reliability. The issue only had relevance if it impacted upon the credibility of C about the conduct the subject of a count. Put another way, the applicant’s contention at trial was that the ability of C to stand up for herself was not consistent with her being a credible witness about being raped. 134 We turn to the next passage. The police attended the family home on 8 March 2021 and 24 March 2021. As set out earlier, C did not complain on either occasion. The trial Judge evaluated whether that adversely impacted credibility. The trial Judge accepted the explanations given by C for not complaining and 36 R v Sondhi (n 1) [160]. -- 28 of 29 -- [2024] SASCA 7 The Court 27 found those failures had not ‘affected my assessment of C’s truthfulness in relation to her evidence concerning her allegations the subject of each count’.37 Again, there is no error in failing to refer to reliability. The failure to complain was being relied upon as undermining the credibility of the evidence of C that she had ever been raped. 135 The next passage is within the discussion by the trial Judge of differences in the evidence of C on the one hand and the father and brother of the applicant on the other. The trial Judge found that ‘almost all’ the evidence of the brother and father was collateral to the allegations the subject of the counts. The trial Judge considered the only relevance was its potential capacity to undermine the credibility of the descriptions by C of the relationship between her and the family of the applicant. Again, there is no error. The evidence was being advanced as examples of the complainant being prepared to be untruthful, and, in that event, as being relevant to whether she was truthful about the conduct charged. 136 The next topic related to what was said to be a prior inconsistent statement by C. The inconsistency asserted was a failure to refer to the applicant having tried to initiate sex on a particular occasion. We have dealt with that at [83]–[87] above. The trial Judge found that it did not affect the credibility of C about the conduct the subject of any count. Again, there is no error. The inconsistency was being relied upon by the applicant as an example of C not being truthful in her accounts of her relationship with the applicant. It was not suggested that she was mistaken in her evidence with respect to any count. As set out above, the issue the subject of the counts was credibility, not reliability. 137 The applicant also draws attention to [219] of the reasons as an example of the trial Judge failing to properly engage with the question of whether C was reliable. This paragraph dealt with an inconsistency in C’s evidence as to the date of Count 1. The trial Judge found that this did not affect C’s reliability or credibility because she had been consistent that the incident had occurred on the date of her child’s first doctor’s appointment. That finding was open. We reject that this is an example of the trial Judge failing to engage with the question of reliability. Conclusion 138 We grant permission to appeal but dismiss the appeal. 37 R v Sondhi (n 1) [168]. -- 29 of 29 --