THOMAS FRANCIS PEACOCK v THE KING [2024] SASCA 97

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) DCCRM-20-1923 Appellant: THOMAS FRANCIS PEACOCK Counsel: MR B ARMSTRONG WITH MS T JOHANSON - Solicitor: DANNI STEPHENS LEGAL Respondent: THE KING Counsel: MS L DUONG WITH MR F NIEMANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/06/2024 File No/s: SCCRM-23-035800; SCCRM-24-021640 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PEACOCK v THE KING [2024] SASCA 97 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice Bleby and the Honourable Justice David) 8 August 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY The appellant was convicted following a trial by judge alone of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The issue at trial was whether the appellant had established the defence under s 49(4)(b)(ii) of the CLCA (s 49(4) defence), namely that he believed on reasonable grounds that the complainant was 17 years or older when he had sexual intercourse with her on two occasions, a few weeks apart. The complainant’s evidence was largely rejected and the appellant’s evidence was largely accepted. The appellant said he believed the complainant when she said she was 18 at the time of the first occasion, and he believed her and her friend when they said they were 17 on the second occasion. The trial judge found that the appellant made out the s 49(4) defence in connection with the first sexual encounter but not the second. -- 1 of 40 -- On appeal the appellant contended that the trial judge failed to give adequate reasons and the verdict was unreasonable or could not be supported having regard to the evidence. The appellant also sought permission to appeal against his sentence. HELD (by the Court) allowing the appeal, setting aside the conviction and entering an acquittal, dismissing the application for permission to appeal against sentence: 1. The s 49(4) defence involves a two-stage test. The first element concerns the accused’s honest and genuine belief. The second concerns whether there were reasonable grounds for the accused’s belief. Both elements call for a finding of fact to be made on the balance of probabilities. The second element is broadly, but not wholly, objective. Self-induced intoxication will not assist in the evaluation of the second element. 2. The reasons given by the trial judge for rejecting the appellant’s s 49(4) defence were not adequate. 3. When determining whether the verdict was unreasonable or unsupported having regard to the evidence, after undertaking an independent assessment of the whole of the record the appeal court must determine whether the appellant established his s 49(4) defence on the balance of probabilities, with the consequence that it was not open to the trial judge to reject it. That is, whether this is a case where the trial judge must, as distinct from might, have acquitted the appellant. 4. On the balance of probabilities, the findings should be made that the appellant believed the complainant was 17 at the time of the second sexual encounter, and that it was reasonable for him to hold that belief. Both elements of the s 49(4) defence were established. It was not open to the trial judge to reject the appellant’s s 49(4) defence. An acquittal should be entered. 5. It is not necessary to address the application for permission to appeal against sentence. Criminal Code Act 1899 (Qld) ss 24, 27, 28, 271; Criminal Code Act Compilation Act 1913 (WA) s 24; Criminal Code Act 1924 (Tas) s 46; Criminal Law Consolidation Act 1935 (SA) ss 15, 49, 50, 269C; Criminal Procedure Act 1921 (SA) s 158, referred to. AK v Western Australia (2008) 232 CLR 438; Amaca Pty Ltd v Werfel (2020) 138 SASR 295; Aubertin v Western Australia (2006) 33 WAR 87; Beale v Government Insurance Office of NSW (1997) 49 NSWLR 247; Boyle (A Pseudonym) v The Queen [2022] SASCA 50; Boyle v The Queen (2022) 299 A Crim R 92; BRK v The Queen [2001] WASCA 161; Daniels v The Queen (1989) 1 WAR 435; Dansie v The Queen (2022) 274 CLR 651; DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525; Edwards v The Queen (2021) 273 CLR 585; Filippou v The Queen (2015) 256 CLR 47; GJ Coles & Co Limited v Goldsworthy [1985] WAR 183; Hamra v The Queen (2017) 260 CLR 479; Harwood v Police (1998) 71 SASR 300; HCF v The Queen (2023) 97 ALJR 978; Hofer v The Queen (2021) 274 CLR 351; Houghton v The Queen (2004) 144 A Crim R 343; Huxley v The Queen (2023) 98 ALJR 82; JGS v The Queen [2020] SASCFC 48; Jiminez v The Queen (1992) 173 CLR 572; Lloyd v The King [2023] SASCA 106; M v The Queen (1994) 181 CLR 487; Marwey v The Queen (1977) 138 CLR 630; NBM v The Queen [2021] SASCA 105; Oblach v The Queen (2005) NSWLR 75; Osland v The Queen (1998) 197 CLR 316; Papps v Police (2000) 77 SASR 210; Pell v The Queen (2020) 268 CLR 123; Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135; R v Douglas [1985] VR 721; R v Fitzpatrick (1926) 18 Cr App R 91; R v Graham [1995] QCA 190; R v Gray (1998) 98 A Crim R 589; R v Julian (1998) 100 A Crim R 430; R v Kagan 2004 NSCA 77; R v Keyte (2000) 78 SASR 68; R v Kusu (1981) 4 A Crim R; R v Lavallee [1990] 1 SCR 852; R v Masters [1987] 2 Qd R 272; R v McCullough (1982) 6 A Crim R 274; R v Miers [1985] 2 Qd R 138; R v Mrzljak (2004) 152 A Crim R 315; R v Muratovic [1967] Qd R 15; R v Nelson (1992) 71 CCC (3d) 449; R v O’Grady [1987] QB 995; R v Pacino (1998) 105 A Crim R 315; R v Ricciardi (2017) 128 SASR 571; R v Sexton [2018] SASCFC 28; R v W, GC (2006) 96 SASR 301; R v Werry [2009] VSCA 94; R v Wilson (No 2) (2007) 169 A Crim R 553; R v Winner (1995) 79 A Crim R 528; R v Y, K [2015] SASCFC 94; Simic v The Queen (1980) 144 CLR 319; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Stingel v The Queen (1990) 171 CLR 312; Subramanian v Public Prosecutor (1956) 1 WLR 965; Truica v The Queen [2001] WASCA 221; Trussell v The King (2023) 142 SASR 337; Viro v The Queen (1978) 141 CLR 88; -- 2 of 40 -- Walton v The Queen (1989) 166 CLR 283; WGC v The Queen (2007) 233 CLR 66; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, considered. -- 3 of 40 -- -- 4 of 40 -- PEACOCK v THE KING [2024] SASCA 97 Court of Appeal – Criminal: Livesey A/CJ, Bleby and David JJA THE COURT: Introduction 1 The appellant appeals against his conviction for unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The appellant has also sought permission to appeal against his sentence.1 2 The appellant was originally charged on Information with six offences involving two complainants who were, at the time of the alleged offending, both 16 years. The Director entered a nolle prosequi in relation to the four charges which concerned the complainant, SN. 3 The trial proceeded without a jury on the two charges which concerned the other complainant. The first charge concerned the offence of what was then described as maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the CLCA. The appellant was acquitted on that charge. The appellant was convicted on the second, being the alternative charge of unlawful sexual intercourse.2 4 As will be seen, this appeal is primarily concerned with the adequacy of the trial judge’s reasons, and with whether the verdict is unreasonable or cannot be supported having regard to the evidence. For the reasons that follow, the appeal should be allowed. 5 These reasons are set out as follows: The prosecution charges and the s 49(4) defence ......................................................................................... 2 Overview of the trial ..................................................................................................................................... 3 Overview of the appeal ................................................................................................................................. 4 The approach of the appeal court .................................................................................................................. 5 Circumstances of the offending - overview .................................................................................................. 5 The passage in the reasons which referred to the complainant as 16 years .................................................. 8 The treatment of the appellant’s defence under s 49(4) of the CLCA .......................................................... 8 The appellant’s grounds of appeal .............................................................................................................. 11 The contentions of the parties ..................................................................................................................... 12 Appeal grounds 1 and 2: inadequate reasons .............................................................................................. 14 Relevant principles .......................................................................................................................... 14 Evaluating the s 49(4) defence ........................................................................................................ 16 1 The Court directed that both appeals be called on together, with the hearing of the sentence appeal deferred pending the outcome of the conviction appeal. 2 R v Peacock [2023] SADC 117 (Judge Kudelka) (the Reasons). -- 5 of 40 -- [2024] SASCA 97 The Court 2 An accused’s belief and reasonable grounds in other contexts....................................................... 16 Conclusions regarding the s 49(4) defence ..................................................................................... 26 The context for the s 49(4) findings made by the trial judge ........................................................... 28 Appeal ground 3: error concerning the transcript extract .......................................................................... 32 Appeal ground 4: verdict unreasonable and unsupported .......................................................................... 33 Conclusion .................................................................................................................................................. 35 The prosecution charges and the s 49(4) defence 6 Count 1 of the Information laid against the appellant alleged that between 1 November 2019 and 19 August 2020 the appellant maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts, being: (a) inserting his penis into her vagina on more than one occasion; (b) causing her to perform an act of fellatio upon him on more than one occasion; (c) performing an act of cunnilingus upon her on more than one occasion. … 7 In the alternative, count 2 alleged that the appellant had sexual intercourse with the complainant, a person under the age of 17 years, between 8 April and 11 April 2020 by inserting his penis into her vagina. 8 There was no issue regarding proof of two elements of the offence of unlawful sexual intercourse under s 49(3) of the CLCA. The appellant admitted that he had penile/vaginal sexual intercourse with the complainant on two occasions, and he also admitted that she was then under the age of 17 years. On the appellant’s case, what was in issue was whether he could establish the defence under s 49(4)(b)(ii) of the CLCA (the s 49(4) defence). The relevant provisions of the CLCA are as follows: (3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence. (4) It shall be a defence to a charge under subsection (3) to prove that— (a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and (b) the accused— (i) was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or (ii) believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years. -- 6 of 40 -- [2024] SASCA 97 The Court 3 9 It followed that an important issue at trial was whether the appellant “believed on reasonable grounds” that the complainant was “of or above the age of seventeen years” for the purposes of the s 49(4) defence. Overview of the trial 10 The prosecution called the complainant, two police officers and the appellant’s former domestic partner, Ms Sonnex. A number of documents, text messages, photographs and video were tendered. 11 The appellant gave evidence in his own defence. He also tendered various documents and text messages and called evidence from his daughter and his former landlady, Ms Ansell. 12 The disparity between the accounts given by the complainant and the appellant was very marked. The complainant described a sexual relationship that spanned a number of months, during which she had told the appellant that she was only 16 years. On the appellant’s evidence there were only two sexual encounters with the complainant, on 21 March and 10 April 2020 and at the outset he was told by the complainant that she was 18. 13 The trial judge preferred the evidence of the appellant over that given by the complainant. The rejection of the credibility and reliability of the complainant’s account was comprehensive. For example, at one point the trial judge held:3 I do not accept the complainant’s evidence that she had a sexual relationship with the accused from the end of 2019 to January 2021. In my view, she exaggerated her evidence about her relationship with the accused. It was troubling that she maintained her evidence about aspects of that relationship in the face of objective evidence to the contrary. For example, the text messages in Exhibit P7 make it plain that the complainant and accused first met on Saturday, 21 March 2020. Despite that, the complainant insisted that she and the accused had met and had sex on prior occasions. (Citation omitted.) 14 Later, after addressing events following the alleged offending in April 2020, the trial judge explained:4 I formed the impression that the complainant was making her evidence up as she went along to try and fit the text messages that were put to her. Her answers were evasive and circular. I think the complainant was asking and begging for money because she knew the accused was likely to pay her. She lied to the police on 11 April when she said she had never had a sexual relationship with the accused and knew the accused would want her to maintain that lie. She also knew that she was a material witness to the rape allegations made by Ms SN and the accused needed her help to defend himself. 3 Reasons, [112]-[113]. 4 Reasons, [147]-[152]. -- 7 of 40 -- [2024] SASCA 97 The Court 4 I found the complainant’s evidence that the accused told her after her 17th birthday that he did not want her anymore to be a self-serving embellishment of her story. It did not ring true nor fit with the tone and substance of the text messages after her 17th birthday as set out in Exhibit P12. The accused gave evidence that he did not want any sexual contact with the complainant after his arrest when he found out she was 16. He did not want to be with her ‘because she was 16 and had already caused me a world of hurt’. He was asked in cross-examination whether he told the complainant that he was angry and horrified that she was 16. He answered, ‘I felt I needed to tread on eggshells somewhat…because she was a kid and I needed her help and I didn’t want to alienate her in any way’. Although the accused only had himself to blame for the situation in which he found himself, I found his responses to those questions to be reasonable and consistent with the tone and content of the text messages. I am not satisfied that the accused continued to have sexual intercourse with the complainant after he was arrested on 11 April 2020. I am not prepared to rely upon the complainant’s evidence about that. I am satisfied beyond reasonable doubt that the accused engaged in unlawful sexual acts with the complainant on 21 March 2020 and 10 April 2020. It has not been proved that there were any other occasions when the accused engaged in unlawful sexual acts with the complainant. (Citations omitted.) 15 In connection with the first of the two occasions of sexual intercourse, the trial judge found that the appellant had made out the defence under s 49(4) of the CLCA because he believed on reasonable grounds that the complainant was aged 18 years. 16 The trial judge rejected the appellant’s defence in connection with the second occasion of sexual intercourse. On the findings of the trial judge, the critical difference between these two occasions was that at the time of the first, the complainant told the appellant that she was 18, but at the time of the second, she and SN both said that they were 17. Overview of the appeal 17 In substance, the appellant contended that the trial judge failed to give adequate reasons (appeal ground 1) or engaged in inadequate reasoning (appeal ground 2) when rejecting his s 49(4) defence concerning the second occasion of sexual intercourse on 10 April 2020. 18 In addition, the appellant contended that there was a miscarriage of justice because the passage from the transcript of the appellant’s evidence set out in the reasons of the trial judge contained an important error;5 as extracted, this passage included line numbers from the transcript. They were included in a way that suggested that the appellant said that he believed that the complainant was “16 or something”, when his evidence was generally that he believed that the complainant 5 At Reasons [178], set out below. -- 8 of 40 -- [2024] SASCA 97 The Court 5 was 18 years at the time of their first sexual encounter in March and 17 years at the time of their second encounter in April 2020. 19 Finally, at the request of the Court, the parties were invited to address whether the verdict was unreasonable or cannot be supported having regard to the evidence within the meaning of s 158(1)(a) of the Criminal Procedure Act 1921 (SA) (the CPA). The appellant applied to amend and, without opposition, was given leave to add this appeal ground. The approach of the appeal court 20 This Court must address a question of law (concerning the adequacy of the reasons), a suggested error of fact (resulting in what is said to be a miscarriage of justice) and whether the verdict is unreasonable or unsupported (essentially, another question of fact).6 21 When considering the arguments of the parties on appeal, the Court may treat the findings of fact made by the trial judge about which no issue is taken as an accurate reflection of the evidence relevant to those findings.7 22 When determining the unreasonable and unsupported ground, it remains necessary for this Court to consider the whole of the record and consider whether the evidence of the complainant should be accepted or rejected, as well as whether the evidence of the appellant should be accepted or rejected.8 It also remains necessary for this Court to determine what inferences it should draw from the evidence for the purposes of determining the issues raised by the appellant’s reliance on s 49(4)(b)(ii) of the CLCA. Circumstances of the offending - overview 23 The appellant and the complainant met via Snapchat. At that time, the complainant was 16 years, living in the northern suburbs and in year 9 at school. The appellant was living in a property he rented from Ms Ansell some distance south of Adelaide. The appellant had four children with his former domestic partner, Ms Sonnex. They were aged between 13 and 17 years. 24 Although the complainant asserted that she first had contact with the appellant in November 2019, the evidence before the trial judge required that this be rejected. As the appellant maintained, they commenced communicating via Snapchat in early 2020. 6 See Hamra v The Queen (2017) 260 CLR 479, [46], albeit in the context of offending under s 50 of the CLCA. See generally, M v The Queen (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ); Zaburoni v The Queen (2016) 256 CLR 482, [56] (Gageler J); and GAX v The Queen (2017) 91 ALJR 698, [25] (Bell, Gageler, Nettle and Gordon JJ). 7 Dansie v The Queen (2022) 274 CLR 651, 661, [16]. 8 Notwithstanding the concession by the prosecution that whether the appellant’s defence was made out did not turn on the evidence of the complainant. -- 9 of 40 -- [2024] SASCA 97 The Court 6 25 The appellant admitted that he initially said that he was 20 years, but the “complainant called him out”. In the course of what appears to have been a light-hearted conversation, the appellant said that he admitted that he was 40, when in fact he was 41. 26 The evidence of the appellant, accepted by the trial judge, was that the complainant looked to him to be 18 or 19 years.9 The appellant gave evidence that he did not ask questions to check whether the complainant was in fact 18 because he assumed she was 18: she told him she was 18, she acted 18 and there was nothing to suggest that she was younger. It did not cross his mind that the complainant may have been younger than 18 years.10 The complainant acted and communicated in a highly sexualised manner toward the appellant. 27 The appellant gave evidence that he did not meet the complainant in person until 21 March 2020 when he picked her up from the train station. His son met her on the train platform. This account was supported by text messaging between the complainant and the appellant. They drove to the appellant’s home. The appellant’s two sons were also at home. The complainant told the appellant that she was 18. They drank alcohol and later went to his bedroom where the appellant made a “consent” video with the complainant, after which they had sexual intercourse. 28 The complainant stayed overnight and, the following day, the appellant drove her to the train station. 29 The appellant said the second time he met with the complainant was on 9 April 2020. He gave evidence that the complainant called him a number of times, asking to be collected. The complainant told the appellant she wanted to come and have a drink and bring a friend. The appellant collected the complainant and her friend, SN, and drove them back to his home. 30 The appellant said that SN told him that she was 17 years. He was told and overheard the complainant say that she was 17. The complainant gave evidence that the appellant learned that SN had friends who knew the appellant’s younger children. The nature of the friendship or connection was not identified. 31 The appellant drank alcohol with the complainant and SN. The complainant and SN appear to have smoked cannabis. The appellant went to bed with the complainant and SN. The complainant took some photographs and videos using her mobile telephone. The appellant did not object. Though the appellant did not feature in these, his penis was depicted in one. The complainant became unwell that evening and left the bed but remained in the bedroom. The following morning – on 10 April 2020 - the appellant had sexual intercourse with the complainant. Later, he drove the complainant and SN back to SN’s home. 9 Reasons, [165]. 10 Reasons, [166]. -- 10 of 40 -- [2024] SASCA 97 The Court 7 32 During the early evening of 10 April 2020, the complainant called the appellant and asked him to collect her from SN’s home. She said that she had fallen out with SN. The appellant, his daughter and his daughter’s friend drove to SN’s home. When they arrived, a man came out of SN’s home with a cricket bat and hit the appellant’s car. They drove off. 33 The appellant’s daughter gave evidence that she thought the complainant looked between 18 and twenty years but when they arrived back at the appellant’s home the complainant said that she was 17, nearly 18. She was not sure whether her father was at the table at that time. The three of them drank alcohol. 34 Later that evening, Ms Sonnex went to the appellant’s home and stood outside and shouted at him. She accused the appellant of being a “paedophile” and told him the complainant was under-age. Later that night she sent texts to the appellant in which she said, amongst other things, that the “little girl you have there tonight is only 16”. 35 After Ms Sonnex left, the appellant said that he was tired and affected by alcohol and he went to bed without having sexual contact with the complainant. Early the following morning, on 11 April 2020, police attended and the appellant was arrested in connection with rape allegations made by SN. 36 When police knocked at the door and asked the appellant about the complainant, he told the police that only his daughter was at home. Whilst the trial judge found that the appellant lied to police about whether he knew the complainant was at his home, and her Honour recorded that it was “fairly conceded [by the prosecution] that his lie might have some bearing on what happened with Ms SN”, it will be necessary to consider whether this lie affects the appellant’s evidence about what he believed on 10 April 2020.11 37 After the appellant was taken away by police, the complainant stayed in the appellant’s home with the appellant’s daughter. 38 Extensive evidence was given, and findings were made, about the communications between the appellant and the complainant following his arrest. This evidence was primarily regarded as relevant to the assessment of the credibility and reliability of the evidence of the complainant and the appellant. The same may be said about discreditable conduct evidence concerning issues such as the alcohol supplied by the appellant. 39 The evidence of Ms Ansell was that when she gave the complainant a lift on one occasion, the complainant talked about lots of past boyfriends. Ms Ansell asked the complainant how old she was. The complainant said that she was 18, and 11 Cf Reasons, [109]. -- 11 of 40 -- [2024] SASCA 97 The Court 8 the trial judge accepted the evidence of Ms Ansell to the effect that she believed the complainant’s statement.12 40 The trial judge found that it was probable that the complainant told the appellant on 9 April 2020 that she and SN were both 17.13 The passage in the reasons which referred to the complainant as 16 years 41 The appellant’s evidence about what he was told by the complainant concerning her age was addressed by the trial judge in the following way:14 The accused gave evidence that during his first Snapchat call with the complainant, she told him that she was 18. She said the same when they first met. I do not reject his evidence and I think he is probably telling the truth about that. He gave evidence that on her second visit, the complainant said she and Ms SN were 17. I do not reject that evidence. Because the complainant and Ms SN were so keen to visit the accused on 9 April 2020 and drink and smoke with him, I consider it unlikely that they told the accused they were 16. (Citations omitted.) 42 The trial judge then referred to the following passage when reciting what the appellant said in his evidence about how old he thought the complainant was on 10 April 2020:15 So I believed that [complainant] was 18 and [SN] was a week off her 18th birthday and then somehow, throughout the night, it came out that [the complainant], I don't know how it all came out and then she goes ‘Nah nah I’m only 17’ or 16 something and that’s, yeah. It was some conversation that went on there, I don't know exactly how it – but 18 yeah. And given what happened after, I probably should have been more across it. (Citation omitted.) 43 In this passage from the reasons, it can be seen that there is a reference to the words “17 or 16 something”. It is agreed by the parties that this does not reflect what the appellant said in his evidence, nor what was recorded in the transcript of his evidence. The appellant did not say “only 17 or 16 something”. His answer in evidence was in fact “only 17 or something”. 44 The numeral 16 appears in the margin as a line number on this page of the transcript. The numeral 16 was accidentally copied from the transcript and pasted into this portion of the trial judge’s reasons. The treatment of the appellant’s defence under s 49(4) of the CLCA 45 On the defence case, the question for decision was whether, for the purposes of s 49(4)(b)(ii) of the CLCA, the appellant had established on the balance of probabilities that, at the time of each sexual encounter, he “believed on reasonable 12 Reasons, [104]. 13 Reasons, [103]. 14 Reasons, [110]. 15 Reasons, [178]. -- 12 of 40 -- [2024] SASCA 97 The Court 9 grounds that the person with whom he [was] alleged to have had sexual intercourse was of or above the age of seventeen years”. 46 It was necessary for the appellant to prove his defence on the balance of probabilities.16 47 The trial judge accepted that the appellant had met the onus of proving that he believed on reasonable grounds that the complainant was 17 or older at the time of their first sexual encounter on 21 March 2020 because he believed that she was 18 and there were reasonable grounds for that belief. The trial judge found that if the appellant had thought that the complainant was under-age it made no sense for him to create a video of her to protect himself before having sexual intercourse: “To the contrary, the making of a video created evidence which tended to incriminate him”.17 48 The trial judge referred to a text message exchange between the complainant and the appellant on 16 February 2021, nearly a year after the alleged offending, when the complainant told the appellant that her new boyfriend thought that she was 18. To this the appellant responded, “Yeah I thought you were as well”. The complainant’s response was “Oh shit yeah”.18 49 The trial judge reasoned as follows regarding the appellant’s belief about the complainant’s age on 21 March 2020:19 I find that the accused probably did believe that the complainant was 18 at the time he had sexual intercourse with her on 21 March 2020. The issue of whether the accused held that belief on reasonable grounds is a difficult one to resolve. I think the complainant told the accused she was 18. Is that sufficient for his belief that she was 18 to be a belief held on reasonable grounds? He was then 41, at least 23 years older than her. Given such a disparate age difference, it may not be reasonable to simply rely upon her assertion that she was 18. He had previously communicated with her over the phone and had only just met her. However, in all the circumstances, I consider that the complainant was, contrary to her evidence, determined to have the accused believe that she was 18. From the outset, she portrayed herself in a very sexual way. … (Citations omitted.) 50 The trial judge did not consider that the appellant had proved his defence on the balance of probabilities in connection with the sexual intercourse which 16 R v Douglas [1985] VR 721; R v W, GC (2006) 96 SASR 301; WGC v The Queen (2007) 233 CLR 66. 17 Reasons, [169]. 18 Reasons, [170]. 19 Reasons, [171]-[173]. -- 13 of 40 -- [2024] SASCA 97 The Court 10 occurred on 10 April 2020. In the course of her acceptance of the evidence of the appellant,20 the trial judge found:21 There is no dispute that on Thursday, 9 April 2020, the complainant visited the accused’s home with Ms SN and they both stayed the night with the accused. The accused gave evidence that [this] was the second time the complainant visited his home. That is consistent with the texts he sent his friend on the morning of 10 April 2020 in which he bragged about having a threesome the night before. His friend asked in those texts, ‘who were they’. The accused responded, ‘Just some random I met n fucked then ask her to bring a friend next time and she did, both only 17 omg’. (Citations omitted.) 51 The trial judge later referred again to the appellant’s text message to his friend in which he “bragged” about the complainant and SN both being 17.22 It was never suggested to the appellant at the trial that he had made a false statement to his friend when on 10 April 2020 he said that the complainant and SN were “both only 17 omg”. 52 The trial judge also addressed the following matters: 1. First, following the initial meeting in March 2020, the complainant sent the appellant a text which essentially asked whether she could stay another night “if my parents say it’s all good”. The appellant’s evidence was that it did not cross his mind that there was something inconsistent with an 18-year-old asking for parental permission to stay at his home.23 2. Secondly, the appellant gave evidence that his two sons were at home when the complainant and SN visited on 9 April 2020. He recalled that there was a conversation during which “something came out” about the complainant being 17.24 After referring to these matters, the trial judge concluded in the following way, in a passage which is critical to the disposition of this appeal:25 I am not sure whether the accused genuinely believed the complainant was 17 before he had sexual intercourse with her on 10 April 2020. Even if he did, I do not consider that belief was held on reasonable grounds. On his evidence, the complainant had contradicted herself about her age. She was now saying she was 17, not 18. At that point, as the accused said, he probably should have been ‘more across it’. 53 This comprises the extent of the reasoning concerning the s 49(4) defence. On this basis, the trial judge rejected the appellant’s reliance upon the s 49(4) defence in connection with the second sexual encounter and, as none of the other elements were in dispute, she convicted him of unlawful sexual intercourse. 20 Reasons, [118]-[120]. 21 Reasons, [121]. 22 Reasons, [178]. 23 Reasons, [176]. 24 Reasons, [177]. 25 Reasons, [179]. -- 14 of 40 -- [2024] SASCA 97 The Court 11 The appellant’s grounds of appeal 54 The appellant’s grounds of appeal are as follows: 1. The Learned Trial Judge erred in failing to give adequate reasons, in that: 1.1 The reasons do not expose, or adequately expose her Honour’s findings as to the state of mind of the appellant as at the time of the alleged offending on, or about 10 April 2020 ([Reasons] [179]-[180]); 1.2 The reasons do not expose, or adequately expose, the basis upon which her Honour rejected the appellant’s evidence as to his belief as to the complainant’s age ([Reasons] [179]-[180]); 1.3 The reasons do not expose, or adequately expose, the basis upon which her Honour deployed the text message referred to at [Reasons] [176]; 1.4 The reasons do not expose, or adequately expose, the basis upon which her Honour concluded that the appellant had not established his defence pursuant to s 49(4) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) ([Reasons] [180]). 2. The Learned Trial Judge erred in engaging in inadequate reasoning in that her Honour: 2.1 Found that the complainant contradicting herself about her age was a proper foundation, either in whole or in part, to reject the appellant’s defence pursuant to s 49(4) of the CLCA; 2.2 Found that the age disparity between the appellant and the complainant impacted upon the reasonableness of his belief as to her age ([Reasons] [172]). 2.3 Found that in relation to the alleged offending on, or about, 10 April 2020, the appellant did not have a belief on reasonable grounds that the complainant was of or above the age of 17 years. 3. A miscarriage of justice occurred when the Learned Trial Judge relied upon an incorrectly extracted portion of transcript to support critical finding(s) of fact ([Reasons] [178]-[179]; TT542). 55 Finally, and as earlier mentioned, the appellant contended that the verdict was unreasonable and unsupported within the meaning of s 158(1)(a) of the CPA. 56 If made out, the first three grounds would result in a new trial. If the verdict is demonstrated to be unreasonable or unsupported in the relevant sense, then an acquittal may be entered. -- 15 of 40 -- [2024] SASCA 97 The Court 12 The contentions of the parties 57 The appellant argued appeal grounds 1 and 2 together, contending that there was both inadequacy in reasons as well as inadequate reasoning.26 58 Though not separately reflected as a suggested error in the grounds of appeal, the appellant also contended that when the trial judge said that she was “not sure” whether the appellant genuinely believed that the complainant was 17,27 it appears that she “cast a burden which was too high” and did not determine whether the appellant had established the requisite belief on the balance of probabilities.28 That is, the trial judge determined the issue as if the appellant had to prove his defence beyond reasonable doubt. 59 The appellant contended that “the lack of sureness on the part of the trial judge” made it “difficult, to the point of being impossible” to understand in circumstances where no reasons for this conclusion were given and where the balance of the evidence pointed “inexorably to a conclusion” that the appellant believed the complainant to be at least 17. 60 The appellant then contended that the “opacity of the reasons” was compounded by use of the phrase “[e]ven if he did” which commenced the analysis as to whether the appellant’s belief was based on reasonable grounds. The appellant contended that the reasons of the trial judge allowed for the construction that he had in fact established, on the balance of probabilities, that he believed that the complainant was 17 before he had sexual intercourse on 10 April 2020. 61 The appellant next contended that the trial judge referred only to two matters: (1) the fact that the complainant had contradicted herself about her age and, (2) the evidence of the appellant that he “should have been more across it”. 62 The appellant suggested that it was unclear whether the trial judge had applied a subjective or objective approach to the question whether he believed on reasonable grounds that the complainant was of or above the age of 17. The appellant relied on the reasons of the Western Australian Court of Appeal in Aubertin v Western Australia which suggest a hybrid approach, one that is not wholly objective.29 The appellant acknowledged that there were limitations associated with this comparison given the difference between s 49(4) of the CLCA and s 24 of the Criminal Code Act Compilation Act 1913 (WA) (the Western Australian Code). The Western Australian Code provision deals with an honest and reasonable but mistaken belief, and is in the following terms: A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or 26 Relying on JGS v The Queen [2020] SASCFC 48, [205]. 27 Reasons, [179], set out above. 28 Citing R v Wilson (No 2) (2007) 169 A Crim R 553. 29 Aubertin v Western Australia (2006) 33 WAR 87 (Aubertin), [43] (McLure JA, with whom Roberts-Smith and Buss JJA agreed), set out below. -- 16 of 40 -- [2024] SASCA 97 The Court 13 omission to any greater extent than if the real state of things had been such as he believed to exist. 63 The appellant’s contention was that it was not clear what approach the trial judge had taken, and the paucity of her reasoning represented a fundamental defect which could not be cured by reading her reasons as a whole. 64 The appellant criticised the reasoning that the complainant’s contradiction in her age, as between 18 and then 17, meant that it became unreasonable for the appellant to believe that the complainant was 17. It was, contended the appellant, necessary for the trial judge to explain her approach to the complainant’s contradictory statements about her age. The paucity in the reasoning was, it was said, reinforced by the apparent acceptance by the trial judge of the appellant’s text message to his friend following the second encounter in which he referred to the complainant and SN as both being 17. 65 As for the third ground, the appellant contended that it could not be assumed that the erroneous reference to the age of 16 played no part in the reasoning of the trial judge. The appellant referred to the nature of an assessment of creditability as a non-linear process which can be impressionistic in nature. Accordingly, the trier of fact may rely on observations or unconscious factors about which the trier of fact may be completely unaware.30 The appellant contended that this misstatement of an important matter of fact amounted to a miscarriage of justice.31 66 The appellant contended that this was not an appropriate case for the application of the proviso because of the need for the evidence to be carefully weighed having regard to the impression conveyed by the appellant in the witness box.32 67 As for whether the verdict was unreasonable and unsupported, the appellant contended that, on the facts as found and about which there was no dispute, the defence under s 49(4) of the CLCA had been made out. Given the favourable factual findings, having regard to all the circumstances of this case, the appellant contended that his evidence that he believed the complainant to be 17 should have been accepted and, in addition, that belief was based on reasonable grounds. 68 The respondent contended that a reading of the reasons as a whole disclosed that the trial judge had given careful consideration to the issues and that there was no inadequacy of reasons or reasoning. In particular, there was no uncertainty about the onus which was applied and the trial judge provided an appropriate explanation for her reasoning process and the matters she took into account when determining that the s 49(4) defence was not established. 30 Relying on DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525, [51]-[52] (Beach J). 31 Filippou v The Queen (2015) 256 CLR 47, [86] (Gageler J), citing Simic v The Queen (1980) 144 CLR 319. 32 Boyle v The Queen (2022) 299 A Crim R 92, [145]. -- 17 of 40 -- [2024] SASCA 97 The Court 14 69 Whilst the respondent accepted that the judge had incorrectly extracted a portion of the transcript, that did not lead to a miscarriage of justice. The reasoning of the trial judge demonstrated that the mistaken incorporation of line numbers from the transcript was not relied on in any way and it did not impact on her reasoning process. 70 On whether the verdict was unreasonable or unsupported, the respondent contended that the disparity in the ages of the appellant and the complainant, combined with the circumstances in which they met, and the contradictory statements the complainant made about her age between March and April 2020, meant that it was not reasonable for the appellant to rely upon what she said about her age, with the result that even if he had believed that she was 17, that belief was not based on reasonable grounds. 71 The respondent contended that, on an independent assessment of the evidence, the finding that the appellant had not established a defence under s 49(4) of the CLCA on the balance of probabilities was open to the trial judge. 72 Accordingly, the respondent submitted that the verdict was neither unreasonable nor unsupported by the evidence. Appeal grounds 1 and 2: inadequate reasons Relevant principles 73 The relevant principles concerning a complaint of inadequate reasons have been addressed on many occasions.33 The basis for a decision must be adequately set out so that justice can be seen to be done.34 A central question is usually whether the reasons enable the appeal court to discharge its function.35 That is, the legal requirement to provide adequate reasons is to enable the parties to understand the basis upon which the decision was made and to allow an appeal court to discharge its statutory duty on appeal.36 74 When determining the adequacy of reasons, they must be read as a whole.37 While a trial judge must articulate the grounds which have led to a conclusion concerning factual questions, it is not necessary that the arguments be dealt with at great length, or that a detailed explanation be given for every step in the 33 R v Keyte (2000) 78 SASR 68, 76 (Doyle CJ), cited with approval in Douglass v The Queen (2012) 86 ALJR 1086. See also JGS v The Queen [2020] SASCFC 48, [201] (Lovell J, with whom Peek and Bampton JJ agreed); NBM v The Queen [2021] SASCA 105; Boyle (A Pseudonym) v The Queen [2022] SASCA 50, [118] (Livesey P, Lovell and Bleby JJA); Lloyd v The King [2023] SASCA 106. 34 Harwood v Police (1998) 71 SASR 300, 305 (Duggan J); Papps v Police (2000) 77 SASR 210, [24]-[26], [34]-[35] (Gray J, with whom Olsson and Wicks JJ agreed). 35 R v Y, K [2015] SASCFC 94, [39] (Sulan J, with whom Kourakis CJ and Parker J agreed); Amaca Pty Ltd v Werfel (2020) 138 SASR 295 (Kourakis CJ, Nicholson and Livesey (as he was then) JJ). 36 DL v The Queen (2018) 266 CLR 1, [32] (Kiefel CJ, Keane and Edelman JJ). 37 R v Ricciardi (2017) 128 SASR 571, [25] (Vanstone J). -- 18 of 40 -- [2024] SASCA 97 The Court 15 reasoning process.38 When addressing the requirements for adequate reasons in the context of a trial by judge alone, in AK v Western Australia the following explanation was given:39 … 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.) 75 And, absent an express statutory provision:40 … 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. 76 In DL v The Queen a majority of the High Court contrasted the extremes of disputes “peripheral to the real issues”, and inadequacies which go to “a necessary step to the final conclusion”:41 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".42 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.43 77 The complaint of inadequate reasons has been described as an assertion that it is not possible to discern how the judge rationally arrived at the conclusions by which the matter was determined.44 By contrast, a complaint of inadequate reasoning has been described as a complaint that the trial judge’s reasons do not 38 R v Keyte (2000) 78 SASR 68, [48]-[49], [54] (Doyle CJ), citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259 (Kirby P), 280 (Mahoney JA); R v Winner (1995) 79 A Crim R 528, 530-531 (Kirby ACJ). 39 AK v Western Australia (2008) 232 CLR 438, [85] (Heydon J). 40 DL v The Queen (2018) 266 CLR 1, [32] (Kiefel CJ, Keane and Edelman JJ), citing Douglass v The Queen (2012) 86 ALJR 1086, 1089 (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 41 DL v The Queen (2018) 266 CLR 1, [33] (Kiefel CJ, Keane and Edelman JJ; Bell and Nettle JJ dissenting). 42 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259. 43 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443. 44 R v Sexton [2018] SASCFC 28, [177] (Kourakis CJ, with whom Peek and Nicholson JJ agreed). -- 19 of 40 -- [2024] SASCA 97 The Court 16 support a finding of guilt beyond reasonable doubt. These were explained in the following way by Kourakis CJ in R v Sexton:45 … 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. 78 For the purposes of determining this appeal, it is not necessary to address any distinction that may exist between inadequate reasons and inadequacy of reasoning.46 Evaluating the s 49(4) defence 79 In order to address the complaint of inadequate reasons, it is first necessary to consider the nature of the task facing the trier of fact where an accused relies on the defence available under s 49(4)(b)(ii) of the CLCA. 80 Textually, there are two elements to this defence. They are, first, whether the accused believed the complainant was aged 17 years or more and, secondly, whether there were reasonable grounds for that belief. Essentially, these are two questions of fact. They must both be approached from the perspective of the accused, for it is the accused’s belief which is critical to the defence. 81 The accused bears the onus of establishing these two elements on the balance of probabilities.47 It is helpful to address each element in more detail by reference to the authorities relied on by the parties. An accused’s belief and reasonable grounds in other contexts 82 On the hearing of this appeal, both parties relied on cases under the Criminal Code Act 1899 (Qld) (the Queensland Code) and the Western Australian Code, where different provisions refer to an honest and reasonable, but mistaken, belief held by an accused. Whilst acknowledging that each provision must be considered in its proper context, it was submitted that these cases were of some assistance when evaluating the s 49(4) defence in the absence of binding authority. As will be seen, some of those authorities drew on cases of self-defence, whether at common law or under the Codes. 45 R v Sexton [2018] SASCFC 28, [177] (Kourakis CJ, with whom Peek and Nicholson JJ agreed). 46 R v Sexton [2018] SASCFC 28, [177] (Kourakis CJ, with whom Peek and Nicholson JJ agreed); JGS v The Queen [2020] SASCFC 48 [208] (Lovell J, with whom Peek and Bampton JJ agreed). 47 R v Douglas [1985] VR 721; R v W, GC (2006) 96 SASR 301; WGC v The Queen (2007) 23 CLR 66. -- 20 of 40 -- [2024] SASCA 97 The Court 17 83 In Queensland, a number of the cases commence with Marwey v The Queen,48 where Barwick CJ (with whom Aickin J agreed) referred to similar words used in the second paragraph of s 271 of the Queensland Code concerning self-defence, as follows: (1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm. (2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm. (Emphasis added.) 84 In Marwey the High Court addressed an earlier decision of Gibbs J in R v Muratovic, delivered when he was a member of the Supreme Court of Queensland.49 In that case Gibbs J had referred to both self-defence under s 271 and honest and reasonable but mistaken belief under s 24 of the Queensland Code. Whilst similar concepts arose under each provision, Barwick CJ found it unnecessary to have resort to s 24.50 85 One of the issues in Marwey concerned a jury direction that suggested that the need for the use of force by way of self-defence had to be objectively reasonably necessary. Barwick CJ rejected that approach and addressed the issue of an accused’s belief on reasonable grounds in the following way:51 Further, what the second paragraph of s. 271 calls for is the actual belief by the accused on reasonable grounds of the necessity of the fatal act for his own preservation. That paragraph, it seems to me, when the occasion is appropriate makes the belief of the accused the definitive circumstance. As that belief must be based on reasonable grounds, there is no point in repeating the word “reasonably” before the word “necessary”. ... What the second paragraph requires is that the accused believes on reasonable grounds when he does the fatal act that it must be done if he is to survive the assault made upon him. The element of reasonableness is supplied by the need for the belief to be founded on reasonable grounds. If there are such reasonable grounds - a matter for the determination of the jury - the self-defence will itself have been reasonable. 86 That is, the accused’s belief is the “definitive circumstance”, and that belief must be “founded on reasonable grounds”.52 In the same case Stephen J explained:53 48 Marwey v The Queen (1977) 138 CLR 630 (Marwey). 49 R v Muratovic [1967] Qd R 15, 18-19 (Gibbs J, with whom Lucas J agreed). 50 Marwey v The Queen (1977) 138 CLR 630, 636-637 (Barwick CJ, with whom Aickin J agreed). 51 Marwey v The Queen (1977) 138 CLR 630, 637 (Barwick CJ, with whom Aickin J agreed). 52 Marwey v The Queen (1977) 138 CLR 630, 637 (Barwick CJ, with whom Aickin J agreed). 53 Marwey v The Queen (1977) 138 CLR 630, 640-641 (Stephen J). -- 21 of 40 -- [2024] SASCA 97 The Court 18 Had the Judge charged the jury in terms of the second paragraph of the section he would have told them that if they thought this was a case of reasonable apprehension of death or grievous bodily harm falling within that paragraph of s.271 they would then have to go on to consider two questions: whether there was a belief on the part of the accused that the force he used was necessary and whether there existed reasonable grounds for that belief. The former inquires as to the state of the accused’s mind; the latter is an objective question in the sense that it does not at all involve the accused's belief but is exclusively concerned with the jury’s view of the grounds, whether they constitute reasonable grounds for the accused’s belief … The jury’s task will thus involve a subjective element followed by an objective element. The form of question which deals with the objective element “Are we satisfied that the accused did not have reasonable grounds for believing that stabbing was necessary?” cannot, I think, produce an answer different from that which would be given to the question, “Are we satisfied that his belief that stabbing was necessary was not a reasonable one?” If reasonable grounds exist then the belief was itself reasonable. To ask “Had he a reasonable belief?” is not different in substance from asking “Had he reasonable grounds for belief?” The critical question is, then, whether it is a different matter if what is asked is “Was the stabbing reasonable in all the circumstances?”, that being the way in which the question was predominantly posed to the jury. The “circumstances” referred to in this form of question would involve all those matters going to the formation of the accused's “belief upon reasonable grounds”. The only relevant difference which I detect in this last form of question is that it omits, or perhaps only slurs over, the first and subjective element, the possession by the accused of an honest, of an actual, belief. It may do no more than slur it over because possession of that belief is no doubt one very important “circumstance”, all of which the jury were told to consider. 87 In this passage, the questions for the jury are posed by Stephen J in terms that reflect the onus: it is for the prosecution to exclude self-defence, whereas in this case the defence must be established by an accused on the balance of probabilities. Stephen J was prepared to conclude that if the accused had the requisite belief, and there were reasonable grounds for it, then that was no different to asking whether the accused’s belief was reasonable. Nonetheless, the question was not posed as whether a reasonable person would have held the belief, nor whether what was done be objectively necessary. That is consistent with the view of Mason J, who explained:54 When the whole of the trial judge’s summing up is read it becomes apparent that his Honour was using the word “reasonably” in conjunction with “necessary” to modify the force the latter word might have had, had it stood on its own, in order to convey the impression to the jury, as his Honour was at pains to point out on several occasions, that it was all a question of “what was reasonable in all the circumstances”. By this means his Honour sought to avoid putting to the jury as a separate and distinct issue the objective necessity of what the appellant did in fact. Reading the directions in their entirety I do not think they went beyond what was appropriate to an exposition of the need for the existence of reasonable grounds to sustain the appellant’s belief, though it would have been preferable had his Honour directed his observations to this precise question. 54 Marwey v The Queen (1977) 138 CLR 630, 642 (Mason J). -- 22 of 40 -- [2024] SASCA 97 The Court 19 88 Jacobs J explained his approach in Marwey in the following way:55 The summing up was defective in that some passages were so phrased that they could suggest a test of objective necessity, the defect arising largely from the addition of the word “reasonably”. The addition of this word would have been meaningful if the test of necessity were an objective one. It added nothing and was practically meaningless when the question was the applicant’s belief in the necessity. In the context of self-defence against an assault causing apprehension of death or grievous bodily harm the belief on reasonable grounds that the force used is necessary is not really distinguishable from the belief on reasonable grounds that the force used is reasonably necessary. 89 The line of Queensland cases addressing aspects of the reasoning of the High Court in Marwey includes R v Gray, where McPherson JA (with whom Davies JA and Fryberg J agreed), made observations that suggested that though “it is the existence of an actual belief that is the critical or decisive factor”, it was appropriate to ask whether a reasonable person must have believed that self-defence was necessary.56 Subsequently, a differently constituted Court of Appeal cast doubt on this latter aspect of the approach in R v Gray. In that case, R v Julian, Pincus JA described a direction in these terms as defective:57 But the essential defect in the directions the learned judge gave is that his Honour told the jury … that it was a question whether a reasonable person would have or must have held the belief mentioned in s 271(2). The judge equated the requirement in the section that the belief be on reasonable grounds with a requirement that a reasonable person must or would have so believed. 90 The other members of the Court generally agreed that it was incorrect to ask whether a reasonable person would have held the same belief.58 91 Subsequently, in R v Mrzljak, Julian was followed in a case where the issue was whether an accused could rely on the defence of “an honest and reasonable, but mistaken, belief” in a case of rape under s 24(1) of the Queensland Code. In that case the accused was found to have language difficulties and a “mild mental retardation”.59 The question was whether these attributes were relevant to an assessment of the accused’s belief that a woman with a marked intellectual impairment had consented to sexual intercourse.60 92 Whilst all members of the Court in Mrzljak agreed that the direction to the effect that the complainant’s intellectual impairment necessarily prevented her from giving consent was defective, they disagreed about the extent to which the accused’s mental functioning could be taken into account. The majority comprised 55 Marwey v The Queen (1977) 138 CLR 630, 643-644 (Jacobs J). 56 R v Gray (1998) 98 A Crim R 589, 593 (McPherson JA, with whom Davies JA and Fryberg J agreed). 57 R v Julian (1998) 100 A Crim R 430 (Julian), 433-434 (Pincus JA). 58 R v Julian (1998) 100 A Crim R 430, 438 (Thomas J), 443-448 (Dowsett J, in dissent as to the outcome), regarding the belief “on reasonable grounds” for the purposes of self-defence under the second paragraph of s 271 of the Queensland Code. Cf, R v Werry [2009] VSCA 94, [25] (Kellam JA, with whom Redlich JA and Williams AJA agreed), referring to the charge given to the jury in that case. 59 R v Mrzljak (2004) 152 A Crim R 315 (Mrzljak), [10] (McMurdo P), [71] and [73] (Holmes J, with whom Williams JA agreed). 60 R v Mrzljak (2004) 152 A Crim R 315, [67] (Holmes J, with whom Williams JA agreed). -- 23 of 40 -- [2024] SASCA 97 The Court 20 Holmes J (as she was), with whom Williams JA agreed. McMurdo P dissented on this point. 93 Holmes J referred to two Western Australian cases where “a reasonable man” test had been applied.61 It is clear that her Honour did not follow those cases, pointing out that, in one, the question of intoxication was relevant to whether a belief was held but not to whether the belief was reasonable,62 and in the other, how the relevant test was framed was “not crucial” to the decision.63 Holmes J put the issue in the following way, citing Julian as authority for her conclusion:64 But the question here is whether the section provides an excuse from criminal responsibility where the mistaken belief is one which is honest and which would have been held by a reasonable person; or whether it applies where the mistake is honest and the belief is one held by the accused on reasonable grounds. It is clear that a requirement that a belief be on reasonable grounds does not equate to a requirement that a reasonable person would have held it.65 94 Holmes J cited the High Court’s decision in Jiminez v The Queen, a case which considered the common law defence of honest and reasonable mistake to a charge of dangerous driving causing death.66 There the question was posed as whether the driver “might honestly have believed on reasonable grounds that it was safe for him to drive” given the driver’s particular circumstances.67 Having regard to those circumstances - the driver had had some sleep, had not consumed alcohol or drugs, had not been driving for an excessive period, and had experienced no drowsiness – there was laid “a foundation for [his belief that it was safe to drive] being an honest and reasonable belief”.68 95 As for other authorities under the Codes, Holmes J cited with approval the Western Australian decision of GJ Coles & Co Limited v Goldsworthy on the equivalent to s 271(2), where Burt CJ had held:69 The belief “under” which the act is done must be honest, which is to say no more than it be held in fact; it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief; it must be mistaken and it must be a positive belief because the extent of the criminal responsibility is not to be greater “than if the real state of things had been such as he believed to exist”. 96 Consistently with her citation of Julian, Holmes J also derived assistance from cases of self-defence under s 271(2) of the Queensland Code when examining 61 R v Mrzljak (2004) 152 A Crim R 315, [77]-[78] (Holmes J, with whom Williams JA agreed); being Daniels v The Queen (1989) 1 WAR 435, 445 (Kennedy J); R v Pacino (1998) 105 A Crim R 309, 320 (Kennedy J). 62 Daniels v The Queen (1989) 1 WAR 435, 445 (Kennedy J): “A reasonable man is a sober man”. 63 R v Pacino (1998) 105 A Crim R 309, 320 (Kennedy J). 64 R v Mrzljak (2004) 152 A Crim R 315, [79] (Holmes J, with whom Williams JA agreed). 65 R v Julian (1998) 100 A Crim R 430. 66 R v Mrzljak (2004) 152 A Crim R 315, [80] (Holmes J, with whom Williams JA agreed). 67 Jiminez v The Queen (1992) 173 CLR 572, 584. 68 Jiminez v The Queen (1992) 173 CLR 572, 583. 69 GJ Coles & Co Limited v Goldsworthy [1985] WAR 183, 187-188 (Burt CJ); R v Mrzljak (2004) 152 A Crim R 315, [81] (Holmes J, with whom Williams JA agreed). -- 24 of 40 -- [2024] SASCA 97 The Court 21 the reasonableness of the grounds for an accused’s belief.70 The importance of focussing on the accused’s belief was demonstrated by R v Masters, where an accused was held entitled to lead evidence of the information he had been given which caused him to fear the man he killed.71 In that case Thomas J relied on R v Fitzpatrick for the proposition that “the state of a man’s mind is as much a fact as the state of his digestion, and that an accused person must be permitted to give his account of it”.72 97 Moreover, as Holmes J explained,73 the proposition that “there must be an aspect of the subjective” when evaluating the reasonableness of an accused’s belief was supported by the decision of the Court of Criminal Appeal in Tasmania in R v McCullough, a decision on s 46(2) of the Criminal Code Act 1924 (Tas), the equivalent to s 271(2) of the Queensland Code.74 In that case the Court held that intoxication was relevant to whether the accused actually held the belief in question. As the Court held:75 In our opinion the learned trial judge in these passages properly directed the jury that the test of reasonableness under s. 46(2) is a subjective test, in the limited sense that the question to be considered by the jury was whether it was reasonable for the applicant in all his then circumstances to hold the relevant apprehension and to have the relevant belief (cf. Reg. v. Muratovic [1967] Qd. R. 15, at p. 20 [per Gibbs J]). 98 The Court then explained why the effects of intoxication were not relevant to whether the accused’s belief was held on reasonable grounds:76 The criterion of reasonableness is in its nature an objective one, and in our view it would be incongruous and wrong to contemplate the proposition that a person’s exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk. Any more positive or detailed direction than the learned trial judge gave was unnecessary, but if a more specific direction were to be given it should be in the terms that a person’s state of intoxication may be taken into account in considering whether or not he held the apprehension and belief to which s. 46(2) refers, but not in respect of whether such apprehension and belief were reasonable or held on reasonable grounds. 99 Accordingly, it can be seen that the Court emphasised the subjective nature of the accused’s belief, whilst also emphasising that though the second element was objective, it was not wholly objective. The question arising on the second element concerned the reasonableness of the accused’s belief in all of the accused’s circumstances, but excluding the effects of any intoxication. 100 This same approach was reflected in the ruling made by Holmes J in Mrzljak, albeit that was a case concerning an “intellectual handicap” and language 70 R v Mrzljak (2004) 152 A Crim R 315, [82]-[84] (Holmes J, with whom Williams JA agreed). 71 R v Masters [1987] 2 QdR 272, 272. 72 R v Masters [1987] 2 QdR 272, 275, citing R v Fitzpatrick (1926) 19 Cr App R 91, 92. See also Subramanian v Public Prosecutor (1956) 1 WLR 965; Walton v The Queen (1989) 166 CLR 283. 73 R v Mrzljak (2004) 152 A Crim R 315, [84] (Holmes J, with whom Williams JA agreed). 74 R v McCullough (1982) 6 A Crim R 274 (Green CJ, Neasey and Everett JJ). 75 R v McCullough (1982) 6 A Crim R 274, 281 (Green CJ, Neasey and Everett JJ). 76 R v McCullough (1982) 6 A Crim R 274, 281 (Green CJ, Neasey and Everett JJ). -- 25 of 40 -- [2024] SASCA 97 The Court 22 difficulties, not intoxication.77 Her Honour referred to Canadian authorities,78 and the decision of the High Court in Osland v The Queen,79 another case of self-defence. There, with some reservations, expert evidence of heightened arousal in what was described as a “battered woman” context was held admissible. Her Honour explained:80 The circumstances of the present case point up the inevitability of reference to the characteristics of an accused in considering the reasonableness of mistake. It would be absurd here to introduce a fiction that the appellant had a full command of the language into the process of considering whether he laboured under a reasonable but mistaken apprehension as to the existence of consent. But if one accepts, as Mr Copley seemed to, that a language handicap is a feature of the accused relevant to assessment of the reasonableness of his belief, it becomes difficult to assert that an intellectual handicap is not similarly such a feature. It is not the handicap per se which bears on the excuse of mistake. It is the fact that the handicap results in the accused having to form his belief on a more limited set of information that is relevant, just as other external circumstances affecting the accused’s opportunity to develop and test his perception are relevant. A jury cannot assess the rationality of a belief in isolation from the circumstances in which, and the information on which, it is formed. 101 Her Honour earlier described the “characteristics of an accused” which should be taken into account as including “intellectual impairment, psychiatric disorder or language difficulties”.81 It is noteworthy that Holmes J expressly left to one side cases of delusions falling short of mental disease or infirmity under s 27(2), as well as cases of mental disease or infirmity which give rise to “excuse” under s 27(1) of the Queensland Code.82 Holmes J concluded:83 The new evidence of intellectual impairment was, it seems to me, relevant to possible excuse from criminal responsibility under s 24, as indeed was the evidence of the appellant’s language difficulties. If the jury accepted that evidence, both those features had the potential to affect the appellant’s appreciation of the situation in which he found himself, and more particularly to inhibit his capacity to recognise R’s condition and to interpret her responses. In those circumstances, a jury might be prepared to accept that a belief which would not be reasonable if held by a native English speaker of normal IQ was honestly held by the appellant on reasonable grounds. 102 In the course of his reasons on this issue, Williams JA agreed with the view of Holmes J regarding the effect of the expert evidence concerning the accused’s “intellectual impairment” and language difficulties. He too also left to one side any 77 R v Mrzljak (2004) 152 A Crim R 315, [85]-[89] (Holmes J, with whom Williams JA agreed). 78 R v Lavallee [1990] 1 SCR 852; R v Nelson (1992) 71 CCC (3d) 449, 467-468; R v Kagan 2004 NSCA 77, 23 (10 June 2004). 79 Osland v The Queen (1998) 197 CLR 316, 337 (Gaudron and Gummow JJ). 80 R v Mrzljak (2004) 152 A Crim R 315, [89]-[90] (Holmes J, with whom Williams JA agreed). 81 R v Mrzljak (2004) 152 A Crim R 315, [85] (Holmes J, with whom Williams JA agreed). 82 R v Mrzljak (2004) 152 A Crim R 315, [91] (Holmes J, with whom Williams JA agreed). 83 R v Mrzljak (2004) 152 A Crim R 315, [92] (Holmes J, with whom Williams JA agreed). -- 26 of 40 -- [2024] SASCA 97 The Court 23 suggestion that the accused was of “unsound mind” within s 27 of the Queensland Code. Williams JA put the issue in the following way:84 The critical fact for a defence based on s 24 is the offender’s belief. For the defence to arise the belief held by the offender must be both honest and reasonable. Whilst that means that the belief must be based on reasonable grounds it is nevertheless the belief of the offender which is critical. That must mean, in my view, that the critical focus is on the offender rather than a theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable. That must mean that factors such as intellectual impairment, psychiatric problems and language difficulties are relevant considerations though none would be necessarily decisive. 103 Whilst not raised on the facts of the case before him, for completeness, Williams JA explained that self-induced intoxication would not be relevant given the separate treatment of that issue in s 28 of the Queensland Code, and the majority ruling in R v Kusu.85 His Honour otherwise agreed with the analysis of Holmes J, together with her Honour’s view as to the appropriate direction required in that case.86 104 In dissent on this issue, McMurdo P was not convinced that intellectual impairment constituting a natural mental infirmity under s 27 could be relevant to a defence of an honest mistaken belief under s 24 of the Queensland Code.87 Nonetheless, her Honour also relied on Julian for the proposition that it is necessary to consider whether there were reasonable grounds for the accused’s belief, not what a reasonable person would have believed.88 105 Like Williams JA, the President also excluded cases of self-induced intoxication under s 28 of the Queensland Code: “self-induced intoxication cannot turn what would otherwise be an unreasonable belief into a reasonable one”.89 Her Honour took the view that s 27 was intended to cover the field of “natural mental infirmity” in the same way as s 28 covered the field for intoxication, and could not be considered in cases under s 24 of the Queensland Code:90 Just as s 28 Criminal Code is intended to cover the field for criminal acts said to have been committed by those whose capacity to apprehend is affected by intoxication, so s 27 Criminal Code is intended to cover the field where the evidence is that a person is suffering from a natural mental infirmity, depriving the person of the capacity at the time of doing an act to know that they ought not so act. I think it is likely that this is why I have been able to find no example since the passing of the Criminal Code Act 1899 (Qld) where a person who makes an honest mistake of fact because of a natural mental infirmity causing the person to do an act which would otherwise constitute an offence has been able to avoid 84 R v Mrzljak (2004) 152 A Crim R 315, [53] (Williams JA). 85 R v Mrzljak (2004) 152 A Crim R 315, [55] (Williams JA); R v Kusu (1981) 4 A Crim R 72. 86 R v Mrzljak (2004) 152 A Crim R 315, [54] (Williams JA). 87 R v Mrzljak (2004) 152 A Crim R 315, [20] (McMurdo P). 88 R v Mrzljak (2004) 152 A Crim R 315, [21] (McMurdo P); R v Julian (1998) 100 A Crim R 430. 89 R v Mrzljak (2004) 152 A Crim R 315, [21] (McMurdo P) citing R v Graham [1995] QCA 190 and, at common law, R v O’Grady [1987] QB 995. Her Honour also referred to R v Kusu (1981) 4 A Crim R 72 and R v Miers [1985] 2 Qd R 138 regarding intoxication under s 28 of the Code. 90 R v Mrzljak (2004) 152 A Crim R 315, [24] (McMurdo P). -- 27 of 40 -- [2024] SASCA 97 The Court 24 criminal responsibility based on the person’s honest and reasonable mistake of fact under s 24 Criminal Code. 106 In Western Australia, in Aubertin, the Court of Appeal took a similar approach to that taken by the majority in Mrzljak in another case of honest and reasonable, but mistaken, belief.91 McLure JA (as she was), with whom Roberts- Smith and Buss JJA agreed, followed the approach of Burt CJ in G J Coles & Co Ltd v Goldsworthy,92 and of Holmes J (with whom Williams JA agreed) in Mrzljak.93 Like Holmes J, McLure JA observed that Daniels v The Queen was a case involving intoxication, and rejected it in so far as it posed a “reasonable man test” more generally.94 107 McLure JA derived assistance from cases on self-defence, citing the explanation given by Mason J in Viro v The Queen regarding the common law requirement that an accused must reasonably believe that he was about to be subjected to an unlawful attack which threatened death or grievous bodily harm:95 By the expression “reasonably believed” is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself. 108 On this approach, the element of reasonableness is assessed having regard to the personal characteristics or attributes of the particular accused.96 109 To this may be added the relatively recent decision of this Court in Trussell v The King, where it was held that s 15 of the CLCA did not change the common law of self-defence that an accused does not act defensively if the accused does not “genuinely believe conduct to which the charge relates to be necessary and reasonable for a defensive purpose”.97 The Court cited the following passage from Zecevic v Director of Public Prosecutions (Victoria):98 Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused 91 Aubertin v Western Australia (2006) 167 A Crim R 1, [25] (Roberts-Smith, McLure and Buss JJA), concerning s 24 of the Western Australian Code. 92 GJ Coles & Co Limited v Goldsworthy [1985] WAR 183, 187-188 (Burt CJ). See also BRK v The Queen [2001] WASCA 161, [34]-[40] (Murray J); Truica v The Queen [2001] WASCA 221, [41] (Anderson J); Houghton v The Queen (2004) 144 A Crim R 343, [62]-[64]. 93 R v Mrzljak (2004) 152 A Crim R 315, [89]-[90] (Holmes J, with whom Williams JA agreed). 94 Aubertin v Aubertin v Western Australia (2006) 167 A Crim R 1, [26]-[27] and [42] (McLure JA, with whom Roberts-Smith and Buss JJA agreed); Daniels v The Queen (1989) 1 WAR 435, 445 (Kennedy J, with whom Malcolm CJ and Seaman J agreed). 95 Viro v The Queen (1978) 141 CLR 88, 146 (Mason J). 96 McCullough v The Queen [1982] Tas R 43; R v Conlon (1993) 69 A Crim R 92, 99 (Hunt CJ); cf Oblach v The Queen (2005) NSWLR 75. 97 Trussell v The King (2023) 142 SASR 337, [154] (Lovell, Bleby and David JJA). 98 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, 663 (Wilson, Dawson and Toohey JJ). -- 28 of 40 -- [2024] SASCA 97 The Court 25 declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. 110 The reference to a “belief, upon reasonable grounds” has obvious relevance to a s 49(4) defence. 111 In Aubertin, McLure JA distinguished cases of provocation where it was necessary to consider the power of self-control of the hypothetical ordinary person.99 McLure JA drew these various authorities to a conclusion that the Western Australian Code provision required a subjective test regarding an actual belief, as well as a separate, “hybrid test” or “mixed element” in so far as that belief must be reasonable:100 For there to be an operative mistake under s 24 [of the Criminal Code (WA)], an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused’s belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive. 112 As in Mrzljak,101 McLure JA excluded intoxication, whether from alcohol or drugs, from the evaluation of reasonableness. There were, her Honour found, “obvious public policy considerations” supporting that approach.102 113 It is necessary to consider these interstate and High Court authorities having regard to the particular provisions and contexts with which they were concerned. Most concerned the articulation of general defences at common law or under various Code provisions, whether by way of self-defence or for honest and reasonable mistakes. Though one cannot simply transfer a common law approach to a Code provision, and vice versa, when considering s 49(4), it is significant that very similar words and concepts were considered. 99 Stingel v The Queen (1990) 171 CLR 312, 327 100 Aubertin v Western Australia (2006) 167 A Crim R 1, [42]-[43] (McLure JA, with whom Roberts-Smith and Buss JJA agreed). 101 R v Mrzljak (2004) 152 A Crim R 315. 102 Aubertin v Western Australia (2006) 167 A Crim R 1, [44] (McLure JA, with whom Roberts-Smith and Buss JJA agreed). Oblique support for this was found in Jiminez v The Queen (1992) 173 CLR 572, referred to earlier. -- 29 of 40 -- [2024] SASCA 97 The Court 26 114 Whilst s 49(4) is concerned only with a defence to offending under s 49 of the CLCA rather than a general defence, the broad concurrency in wording and approach to cases involving an accused’s belief, and whether that belief was based on reasonable grounds, is significant. Conclusions regarding the s 49(4) defence 115 These authorities tend to support what is apparent from the text of the s 49(4) defence and the approach taken before this Court. That is, the adoption of a two- stage test, where the first element concerns the accused’s belief, and the second concerns whether there are reasonable grounds for that particular accused’s belief. The authorities also support the proposition that these elements must be evaluated having regard to the particular attributes and circumstances of the accused, save that self-induced intoxication must be left out of account when evaluating whether there were reasonable grounds for the accused’s belief. 116 The first element of the s 49(4) defence is concerned with the accused’s belief about the complainant’s age. That may be described as the subjective element. 117 Whether the accused’s belief is reasonable is not relevant to the first element. The court is not concerned with what the accused should have believed but with what, in fact, the accused honestly and genuinely believed was the age of the complainant. If the accused had no belief at all on the topic the defence must fail, though that circumstance might be thought rare. There may be cases where what is said to have been believed appears so unreasonable that it will be difficult to accept that it could represent what the accused actually believed. Having said that, the question for the court remains the factual question as to what the accused believed at the time of the alleged offending. That will call for a finding of fact to be made on the balance of probabilities based on the evidence before the court. 118 The second element is concerned with whether the accused’s belief was based on reasonable grounds. That element is broadly, but not wholly, objective. The accused’s belief remains the centrepiece for the defence. The question for the court is whether, assuming that the accused believed that the complainant was of or above the age of 17, were there reasonable grounds for that belief. That is to say, the trier of fact must determine whether on the evidence before the court and known to the accused, there was a reasonable basis for the accused’s belief. The evaluation of what is “reasonable” will involve a normative judgment. The trier of fact must consider whether what is offered as reasonable grounds are in fact “reasonable”. That will require an evaluation to be made in the context of the circumstances of the case. 119 To reiterate, the grounds relied on must have been known to the accused at the time of the alleged offending, they must have grounded the accused’s belief, and they must be capable of providing reasonable support for that belief. 120 In some cases it may be helpful to ask whether, based on the evidence of the circumstances before the court and known to the accused, it was reasonable for the -- 30 of 40 -- [2024] SASCA 97 The Court 27 accused to hold the belief. That is not the same as asking in any abstract way whether the belief was reasonable. For example, the defence is not concerned with whether a hypothetical reasonable person would have believed the same thing. Both elements of the s 49(4) defence are concerned with the belief held by the accused. 121 What represents reasonable grounds will inevitably depend on the circumstances of the case. Where and in what context the accused and the complainant first made contact will usually be relevant. The appearance and manner of the complainant will be relevant. Whether the complainant told the accused what her or his age was, or whether the accused asked about the complainant’s age, will likely also be relevant. 122 Nonetheless, it may not always be necessary for an accused to ask about the complainant’s age before a belief about it can be said to be based on reasonable grounds. That may depend on the existence of other evidence, particularly whether that other evidence can be said to furnish reasonable grounds for the accused’s belief that, for example, the complainant appeared to be an adult. 123 Similarly, where the accused asks about the complainant’s age, and is told that it is 17 or older, that one fact alone may not necessarily represent reasonable grounds for the accused’s belief where other facts or circumstances demonstrate that what was said should have been doubted. So, on this part of the defence it may be relevant to know whether there were obvious signs or questions about the complainant’s age which appear to have been ignored. For example, if an accused believed that the complainant was 17 because the complainant said so, but the complainant had the appearance and manner of a very much younger person, there may be room to doubt whether there were reasonable grounds for the accused’s belief. 124 Under this second element, whether the accused was immature or operating under a recognised mental illness or impairment at the time of the alleged offending may be relevant to whether there were reasonable grounds for the accused’s belief. Those matters may assist the trier of fact when determining whether it was reasonable for the accused to hold the requisite belief. 125 Speaking generally, the authorities have drawn a line between the accused’s personal attributes and characteristics, matters about which the accused has no control, and self-induced intoxication due to drugs or alcohol. Self-induced intoxication due to drugs or alcohol will not assist an accused in connection with evaluating whether there were reasonable grounds for the accused’s belief. Intoxication must be left out of account in connection with evaluating the second element. 126 However, where mental impairment or intoxication gives rise to questions about an accused’s mental competence to commit the offending, it is necessary to -- 31 of 40 -- [2024] SASCA 97 The Court 28 separately address those issues having regard to the separate requirements of the CLCA and the common law.103 The context for the s 49(4) findings made by the trial judge 127 Having identified the approach that must be taken to the evaluation of the s 49(4) defence, it is necessary to consider the evidence and findings made by the trial judge in order to determine whether the reasons were adequate in connection with the critical findings by which the s 49(4) defence was rejected. 128 Between March and April 2020, the appellant was 41 years, and the complainant was under the age of 17. However, the complainant’s account of events was largely rejected and the appellant’s account preferred. They engaged in sexual intercourse on two occasions and the question was what the appellant believed, and whether there were reasonable grounds for his belief, on 10 April 2020. In particular, the trial judge addressed the following matters: 1. The evidence from the appellant, from Ms Ansell and from the appellant’s daughter was to the effect that the complainant initially said that she was 18 years, and that she looked and spoke and acted in a manner consistent with being that age. The appellant said that the complainant looked older than his own children and, to him, she looked 18 or 19.104 2. In that connection the age difference between the appellant and the complainant did not cause the trial judge to doubt the genuineness of the appellant’s belief that the complainant was 18, nor that it was held on reasonable grounds on 21 March 2020. Central to this part of the analysis was the complainant’s determination to portray herself as both 18 and as “very sexual”.105 3. There was, in addition, the evidence of the “consent” video taken by the appellant before his first sexual encounter with the complainant on 21 March 2020 which, as the trial judge found, tended to support the proposition that the appellant did not then believe that the complainant was under-age. This formed part of the basis for the acceptance by the trial judge of the appellant’s s 49(4) defence in connection with that initial encounter. 4. That conclusion was, if anything, reinforced by the subsequent communication between the appellant and the complainant on 16 February 2021. As has already been set out, the appellant and the complainant exchanged messages suggesting that he thought the complainant was 18 and she, at the least, acknowledged that he had held that belief.106 103 See, for example, s 269C within Part 8A of the CLCA and Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135. 104 Reasons, [165]. 105 Reasons, [173]. 106 Reasons, [170]. -- 32 of 40 -- [2024] SASCA 97 The Court 29 5. Following their initial encounter, the complainant asked about again staying overnight and referred to needing permission from her parents. Though relied on by the prosecution on this appeal, the trial judge made no finding about whether this was regarded by her as undermining the appellant’s belief about the complainant’s age, nor whether that belief was held on reasonable grounds. Seeking parental permission for staying away from home is not necessarily inconsistent with being 18. Much will depend, inevitably, on the nature of the particular relationship between the 18-year-old and her parents. At a time when many teenagers, and indeed young adults, are continuing to live with their parents this fact, standing alone, could not be regarded as undermining the appellant’s belief or whether it was held on reasonable grounds. 6. There was nothing else in the communications between the appellant and the complainant between 21 March and 9 April 2020 which might be thought to have caused the appellant to reflect on the complainant’s age. 7. The question then is what the appellant believed on 10 April 2020 and whether, in the circumstances established by the evidence, that belief was held on reasonable grounds. 8. The principal matter apparently relied upon by the trial judge was that on 10 April 2020 the complainant told the appellant, and he heard her say in his presence, that she was 17. That is, she contradicted what she had earlier said to the appellant about her age. In March she said she was 18, in April she said she was 17. It may be accepted that this kind of contradictory statement may in some cases alert an adult to the risk that the complainant may not be telling the truth about her age. In those kinds of cases, it may be expected that this kind of contradiction would put an adult on enquiry about the complainant’s true age. Nonetheless, each case must inevitably depend upon its own particular circumstances. 9. The only other matter raised by the trial judge is the appellant’s concession that he should probably have been “more across it”.107 10. The trial judge did not reject the appellant’s evidence that on 9 April he was told by the complainant that she and SN were 17.108 Indeed, the evidence is consistent with the content of the statutory declaration later sworn by the complainant on 16 December 2020 which was to the effect that she knew the appellant thought that the complainant and SN were both 17 because they told him that they were 17.109 11. It may be accepted that the finding that the appellant later lied about the presence of the complainant in his home when questioned by police on 107 Reasons, [178]-[179]. 108 Reasons, [110]. 109 Reasons, [103]. -- 33 of 40 -- [2024] SASCA 97 The Court 30 11 April 2020 is capable of affecting his credibility. It is potentially capable of being used as evidence that the appellant lied because he did not want police to know that he had been having sex with a girl who was underage. Having said that, this is not how the evidence was used by the prosecution. That might be thought understandable given that, by the time police attended, the appellant had already been confronted by his former domestic partner and told the truth about the complainant’s age. 12. On the whole of the evidence, it cannot be said that this lie was told out of a consciousness of guilt, nor that it necessarily undermined what the appellant said he believed about the complainant’s age earlier the previous day, before his second sexual encounter with the complainant, and before he was confronted with the truth about the complainant’s age by his former partner. In addition, and as the trial judge thought, this lie may also be associated with the appellant’s concern regarding his involvement with SN in the face of rape allegations concerning SN. 13. The trial judge rejected the complainant’s evidence about her sexual activity with the appellant on 10 April 2020 and preferred the appellant’s evidence about that, for the purposes of making a finding beyond reasonable doubt that the appellant engaged in one unlawful sexual act of penile/vaginal intercourse with the complainant on 10 April 2020.110 14. Finally, and importantly, the trial judge referred to the appellant’s message to his friend on 10 April 2020 to the effect that he had sexual intercourse with two 17-year-old girls.111 129 There is nothing in the complaint that the trial judge misapplied the relevant onus. She clearly articulated the correct onus concerning the burden of establishing the s 49(4) defence,112 and her statement about being “not sure” must be taken to amount to a statement that she was not sure whether the appellant had established on the balance of probabilities that he believed that the complainant was 17.113 130 Whilst the appellant’s consumption of alcohol might conceivably bear on the issue of his belief, it would appear that the statements made by the complainant and SN were made relatively early during the evening of 9 April 2020 and before much alcohol had been consumed. 131 Having regard to the task before the trial judge and the evidence which she accepted, or at the least did not reject, it is difficult to understand why she was not sure that the appellant believed that the complainant was 17 at the time of their second sexual encounter on 10 April 2020. 110 Reasons, [181]. 111 Reasons, [121], [178]. 112 Reasons, [19]. 113 Reasons, [179]. -- 34 of 40 -- [2024] SASCA 97 The Court 31 132 When one takes into account that this was what the complainant and SN told the appellant, and that he repeated their ages in his text message to his friend the following morning, there is strong support for the finding that the appellant honestly and genuinely believed that the appellant was 17. 133 It must be acknowledged that the critical passage is contained in one sentence of the reasons of the trial judge, and that it is not otherwise explained. In some cases that may be unremarkable. It will not always be necessary for a conclusion to be explained, at least where it follows naturally from the evidence or the reasons as a whole. Here, however, the conclusion really runs counter to the evidence and the reasoning and it is not otherwise explained. 134 The reasons given for being unsure about whether the appellant had established this first element of the defence are not adequate. Whilst this finding is sufficient to warrant the appeal being allowed, it is also helpful to consider the reasons given for rejecting the second element of the s 49(4) defence. 135 Respectfully, the same conclusion must be reached regarding the reasons concerning the second element of the defence, as to whether the appellant’s belief was based on reasonable grounds. The trial judge did not explain what approach she took to this element. She did not explain whether a wholly objective test was applied or, as was required, a “hybrid” approach. 136 An evaluation of the second element must be made against all of the facts and circumstances before the court. The evaluation must be made at the time of the offending, and not with the benefit of what was later learned about the complainant. Though the complainant gave contradictory statements about her age in the course of a few weeks, it is difficult to regard that one fact as a sufficient explanation for why a genuine belief could not be based on reasonable grounds having regard to the earlier findings made about the complainant’s appearance, manner and conduct. Indeed, it is difficult to see why the stated difference of one year in age should wholly undermine the basis for the appellant to accept what the complainant said about her age on the second occasion. 137 Remembering that the issue must be viewed in prospect and not with the benefit of hindsight, this is not a case where the complainant’s statement was made in a context where the evidence showed that she was wholly unreliable on the topic of her age. In addition, it cannot be overlooked that the trial judge accepted that both girls said that they were 17, and the appellant repeated that in his text to his friend. In the particular circumstances of this case, the complainant’s contradictory statements about her age, standing alone, do not adequately explain why the appellant’s belief was not based on reasonable grounds. 138 The other matter mentioned by the trial judge was the appellant’s concession that he should probably have been “more across it”.114 114 Reasons, [178]-[179]. -- 35 of 40 -- [2024] SASCA 97 The Court 32 139 It is important not to take this concession out of the context in which it was made. It was a statement made by the appellant from the witness box in a criminal court in the course of giving evidence in his own defence of serious criminal charges. It is entirely unsurprising that, with the benefit of hindsight, the appellant would acknowledge that he should have been better informed about the complainant’s age. Indeed, this statement must be understood in a case where he had gone to the trouble of taking a “consent” video before his first sexual encounter with the appellant and then, after the second when allegations of rape had been made concerning SN, he asked the complainant to complete a statutory declaration. 140 In the circumstances of this case, the complainant’s contradictory statements about her age and the concession the appellant made at trial do not adequately explain why he had no reasonable grounds for the belief that the complainant was 17 at the time of the second sexual encounter. 141 Appeal ground 1 should be upheld. It is not necessary to address appeal ground 2. Appeal ground 3: error concerning the transcript extract 142 Strictly, it is not necessary to rule on appeal ground 3. There is no dispute that a transcription error was unfortunately made. 143 The issue is whether the judge took that error into account in the sense that she erroneously considered that the appellant might have thought the complainant could have been 16. 144 The question for this Court is whether the suggested error has been made, with the result that there has been a miscarriage of justice. That is: (1) Was there a departure from a trial conducted according to law to the prejudice of the appellant;115 or (2) Did the asserted error or irregularity have the capacity to cause practical injustice capable of affecting the outcome of the trial,116 such that the trier of fact may have been deflected from her proper task?117 145 On this latter approach, the enquiry is concerned with the nature of the error or irregularity and its capacity to affect the outcome rather than its likely or actual effect. 146 There is no sign in the reasons that the trial judge ever made the error of thinking that the appellant had countenanced that the complainant was 16 in April 115 Hofer v The Queen (2021) 274 CLR 351, [41] (Kiefel CJ, Keane and Gleeson JJ), [121] (Gageler J). 116 Edwards v The Queen (2021) 273 CLR 585, [74] (Edelman and Steward JJ); HCF v The Queen (2023) 97 ALJR 978, [78]-[79] (Edelman and Steward JJ). 117 Huxley v The Queen (2023) 98 ALJR 82, [41] (Gordon, Steward and Gleeson JJ). -- 36 of 40 -- [2024] SASCA 97 The Court 33 2020. The suggested error is inconsistent with a reading of her reasons as a whole and there is no hint that it affected her assessment of the appellant’s credit. 147 Were it necessary to do so, this ground should be dismissed. Appeal ground 4: verdict unreasonable or unsupported 148 It has been necessary for this Court to consider the record as a whole. Whilst the trial judge was assisted by seeing and hearing the witnesses give their evidence, the product of that process has been clearly articulated in detailed, undisputed findings which largely favour the appellant. Apart from failing to make a finding about whether the appellant believed the complainant was 17 at the time of the second encounter, the appellant’s evidence was accepted or, at the very least, not rejected whereas the complainant’s evidence was rejected. Having reviewed that evidence, the suggestion that the complainant had more than two sexual encounters and told the appellant that she was 16 years before he was arrested on 11 April 2020 must be rejected, as the respondent effectively conceded. 149 On whether the verdict was unreasonable or unsupported, the question is usually whether this Court has a reasonable doubt about the appellant’s conviction following its own, independent review of the evidence.118 150 In cases where the trial has been by judge alone, the reasons of the trial judge must be approached with “circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence”.119 When considering the arguments of the parties on appeal, the appeal court may nonetheless treat findings of fact made by the trial judge about which no issue is taken as an accurate reflection of the evidence relevant to those findings:120 But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. 151 In a case where the elements of the s 49 offending are not in contest, the issue is whether the appellant has satisfied the requirements of the s 49(4) defence. 152 The question for this Court is whether, on our own independent assessment of the whole of the record, we are satisfied that the appellant established the s 49(4) defence on the balance of probabilities, with the consequence that it was not open to the trial judge to reject it. That is, whether this is a case where the trial judge must, as distinct from might, have acquitted the appellant.121 118 M v The Queen (1994) 181 CLR 487, 494; MFA v The Queen (2002) 213 CLR 606, [59]. 119 Dansie v The Queen (2022) 274 CLR 651, 661 [16]. 120 Dansie v The Queen (2022) 274 CLR 651, 661 [16]. 121 Cf Libke v The Queen (2007) 230 CLR 559, [113] (Heydon J), followed in Pell v The Queen (2020) 268 CLR 123, [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). -- 37 of 40 -- [2024] SASCA 97 The Court 34 153 We have considered whether the trial judge had some identifiable advantage over this Court when rejecting the s 49(4) defence. As has been seen, the trial judge gave inadequate reasons for her failure to accept the appellant’s evidence that he believed the complainant was 17 at the time of the second encounter. On that issue, this Court is at no disadvantage. Otherwise, her rejection of the s 49(4) defence was based on two features of the evidence – the contradiction in the complainant’s statements about her age and the concession made by the appellant in the witness box that he should have been “more across it” – and this Court is not at any disadvantage when evaluating the inferences to be drawn from the evidence. 154 On the first element, the appellant’s belief, it must be acknowledged that the complainant did not have friends or places to visit, and she wanted friends and a place to visit, as well as alcohol, drugs and, most importantly, attention. It is clear that the appellant offered these things. The complainant recognised that, if she told the appellant her true age, she risked not getting what she wanted and she was determined to appear older than her true age. 155 It is necessary to consider the appellant’s belief throughout March and April 2020 so as to put his belief at the time of the second encounter into proper context. Given the evidence about the complainant’s appearance, manner and conduct, we find that the appellant honestly believed on reasonable grounds that the complainant was 18 at the time of the first sexual encounter in March 2020. 156 This is not a case where a great deal of information was available as a result of a long acquaintance. Whilst a short acquaintance might put an accused on guard, that must be weighed against the complainant’s appearance, manner and conduct. Having considered the evidence and circumstances before the Court, including that the complainant gave conflicting statements about her age and the appellant later lied about whether the complainant was at his home, the basis for a finding that the appellant honestly believed before the second encounter that the complainant was 17 is clear. 157 Whilst the respondent pressed this Court with the fact that the complainant had said that she needed to check with her parents whether she could stay over again, for the reasons earlier given that does not demonstrate that the appellant should have doubted what the complainant said about her age. The same may be said about the fact that SN said that she had friends in common with the appellant’s younger children. On the evidence there was no suggestion that the complainant or SN said that they were at school or doing anything else to suggest that they were not 17. That SN knew friends in common with the appellant’s younger children does not suggest that the appellant should have disbelieved what he was told about the age of the complainant. 158 Particular weight must be given to the text message that the appellant sent in which he told his friend that the complainant and SN were both 17. We find on the balance of probabilities that the appellant believed that the complainant was 17 between 9 and 10 April 2020. Having regard to the evidence and the -- 38 of 40 -- [2024] SASCA 97 The Court 35 submissions of the parties, it was not open to the trial judge to reject the appellant’s evidence that he believed that the complainant was 17 at the time of their second sexual encounter. 159 As for the second element, and whether the appellant’s belief was based on reasonable grounds, it is necessary to consider all of the facts and circumstances before the Court regarding the nature of the interactions between the appellant and the complainant, the evidence about her appearance and manner, and her determination to present as someone older than her actual age. 160 The evidence that the complainant told the appellant that she was going to ask her parents about staying over does not undermine the reasonableness of the appellant’s belief about the complainant’s stated age. On the evidence, the appellant might well have thought that the complainant’s parents were, thereby, effectively permitting the complainant to stay the night with him. 161 In addition, the contradiction in what the complainant had said about her own age must be viewed against the other evidence which generally supported his belief based on reasonable grounds that the complainant was 18 on 21 March 2020. That contradiction does not suggest that the appellant should have disregarded everything the complainant had said and done to that point, especially as both the complainant and SN were both saying that the complainant was 17. 162 In circumstances where the complainant and SN both told the appellant that they were 17, and where they appear to have said the same thing to the appellant’s children, those statements must be regarded as forming part of a reasonable basis for the appellant’s belief. The evidence does not suggest that the appellant’s perception was affected by alcohol. When one adds that the complainant and SN were acting in a mature way, consuming alcohol and cannabis, and did not obviously appear to be the age of the appellant’s younger children, there were reasonable grounds for the appellant’s belief. 163 On the balance of probabilities, the appellant’s belief on 9 and 10 April 2020 that the complainant was 17 years of age was a reasonable one for him to hold. Having regard to the evidence and the submissions of the parties before this Court, it was not open to the trial judge to reject the appellant’s s 49(4) defence that on 10 April 2020 he believed on reasonable grounds that the complainant was 17 years of age. 164 Accordingly, as both elements of the s 49(4) defence have been made out, the conviction on count 2 must be set aside. An acquittal should be entered. Conclusion 165 In these circumstances, it is not necessary to address the appellant’s application for permission to appeal against sentence. That should be dismissed. -- 39 of 40 -- [2024] SASCA 97 The Court 36 166 The appeal should be allowed, the conviction set aside, and an acquittal entered. -- 40 of 40 --