DONALD (A PSEUDONYM) v THE KING [2024] SASCA 121

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BARKLAY) DCCRM-22-702 Appellant: DONALD (A PSEUDONYM) Counsel: MR J WILSON - Solicitor: JON LISTER BARRISTER & SOLICITOR Respondent: THE KING Counsel: MR W SCOBIE WITH MS A SHATTOCK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/09/2024 File No/s: SCCRM-24-006811 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. DONALD (A PSEUDONYM) v THE KING [2024] SASCA 121 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice McDonald and the Honourable Auxiliary Justice Hall) 17 October 2024 CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS This is an appeal against conviction. After a trial by judge alone, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, JM, was the granddaughter of the appellant’s wife and was aged between eight and 13 years old at the time of the offence. -- 1 of 39 -- The appellant was acquitted of a second count of a similar nature in respect of JM’s sister. JM was born on 31 August 2001. During her childhood JM and her younger siblings would visit the appellant’s house with their mother and father. The appellant had a shed at the back of his property where the children would go and play games. JM would often be alone with the appellant in the shed. When JM was aged 18 or 19 she spoke to her mother, JLM, about the abuse. The prosecution relied on this telephone conversation as evidence of an initial complaint. The account of the conversation given by JM in her evidence differed from the account given by JLM. The appellant relied on this, and other alleged inconsistencies, in support of the defence case that the trial Judge could not be satisfied beyond reasonable doubt of the credibility and reliability of JM regarding the sexual abuse; that evidence being critical to the prosecution case. The prosecution also relied on evidence of two uncharged acts which occurred when JM was between 17 and 19 years old. The first uncharged act was a conversation in which the appellant told JM that he had received an inheritance and that if she continued doing what she was doing with him, he would give her half of that inheritance. The second uncharged act was that the appellant sent JM a photograph of his penis and requested that she send him an intimate photograph of herself in return. The appellant appeals on two grounds. Ground 1 contends that a miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of JM. Permission to appeal on ground 1 was granted by Livesey P on 2 April 2024. Ground 2 contends that the trial Judge failed to adequately identify and explain the permissible use of the uncharged acts evidence, such that he did not comply with the obligation to direct himself pursuant to s 34R(1) of the Evidence Act 1929 (SA). HELD, per the Court, granting permission to appeal on ground 2 to the extent necessary, but otherwise dismissing the appeal on both grounds: In relation to ground 1, it is not necessary for a trial judge to deal with every aspect of the disputed facts. What is required depends on the circumstances of the particular case. The reasons in this case were much more than a bare statement of the principles of law applied and the findings of fact made and when considered as a whole, having regard to the forensic issues at the trial, there was no inadequacy. In relation to ground 2, whilst the sexual attraction evidence was adduced at the trial as discreditable conduct evidence, it was concluded by the trial Judge that it was not admissible under s 34P. Whilst it was appropriate for the trial Judge to direct himself not to engage in bare propensity reasoning, given the evidence had been heard, the was no requirement to give a s 34R direction. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 28, 34M, 34M(4), 34M(4)(b), 34P(1), 34R, 34R(1); Juries Act 1927 (SA) s 7, referred to. DL v The Queen (2018) 266 CLR 1; Fleming v The Queen (1998) 197 CLR 250; R v P, S (2016) 261 A Crim R 329; R v Rippey [2022] SASCA 141, discussed. Alford v Magee (1952) 85 CLR 437; DL v The Queen (2018) 266 CLR 1; Douglass v R (2012) 290 ALR 699; Fleming v The Queen (1998) 197 CLR 250; JGS v R [2020] SASCFC 48; Lloyd v The King [2023] SASCA 106; MWJ v The Queen [2005] HCA 74; NBM v The Queen [2021] SASCA 105; Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595; R v Keyte (2000) 78 SASR 68; Trussell v The King [2023] SASCA 5; Whisprun Pty Ltd v Dixon (2003) 234 CLR 492, considered. -- 2 of 39 -- DONALD (A PSEUDONYM) v THE KING [2024] SASCA 121 Court of Appeal – Criminal: Doyle JA, McDonald and Hall AJJA 1 THE COURT: The appellant was convicted after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, JM, was the granddaughter of the appellant’s wife and was aged between eight and 13 years old at the time of the offence. The appellant was acquitted of a second count of a similar nature in respect of JM’s sister, SRM. 2 When JM was aged 18 or 19 she spoke to her mother, JLM, about the abuse. The prosecution relied on this telephone conversation as evidence of an initial complaint. The account of the conversation given by JM in her evidence differed from the account given by JLM. The appellant relied on this, and other alleged inconsistencies, in support of the defence case that the trial Judge could not be satisfied beyond reasonable doubt of the credibility and reliability of JM regarding the sexual abuse; that evidence being critical to the prosecution case. 3 The prosecution also relied on evidence of two uncharged acts which occurred when JM was between 17 and 19 years old. The first uncharged act was a conversation in which the appellant told JM that he had received an inheritance and that if she continued doing what she was doing with him, he would give her half of that inheritance. The second uncharged act was that the appellant sent JM a photograph of his penis and requested that she send him an intimate photograph of herself in return. 4 The appellant appeals against his conviction on two grounds. The first ground contends that a miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of JM. The particulars to this ground refer to various alleged inconsistencies in the evidence of JM, including the inconsistency between JM and her mother regarding the terms of the complaint. The second ground contends that the trial Judge failed to adequately identify and explain the permissible use of the uncharged acts evidence, such that he did not comply with the obligation to direct himself pursuant to s 34R(1) of the Evidence Act 1929 (SA). 5 Permission to appeal on ground 1 was granted by Livesey P on 2 April 2024. The second ground was added subsequently. For the reasons that follow we would grant permission to appeal on ground 2, to the extent necessary, but dismiss the appeal. Prosecution case 6 The appellant was married to JM’s maternal grandmother. He was treated by JM and her siblings as their grandfather, and we will refer to him as such in these reasons. -- 3 of 39 -- [2024] SASCA 121 The Court 2 7 JM was born on 31 August 2001. During her childhood JM and her younger siblings would visit the appellant’s house with their mother and father. The appellant had a shed at the back of his property where the children would go and play games. JM would often be alone with the appellant in the shed.1 8 The prosecution case was that, when JM was about eight years old, the appellant started playing a game with her whereby he would hide a set of keys in the shed and she would have to find them, or she would hide the keys and the appellant would be the one searching. When JM was searching for the keys, the appellant would tell her whether she was ‘hot’ or ‘cold’. When she was about nine years old the location where the appellant hid the keys began to change. Whilst he would initially hide the keys around the shed, he started to include hiding the keys in his pants. He would encourage JM to retrieve them. JM would find the keys between the appellant’s pants and underwear. Later this changed, such that the appellant would hide the keys inside his underwear. On these occasions the appellant would reassure JM that it was okay to put her hands into his underwear, and she did so.2 9 As time went on, when the appellant and JM played the keys game it would take less time before the keys would be hidden in his pants. He might hide them once or twice around the shed before they would be put in his pants. Sometimes the appellant would lower his pants slightly to indicate where the keys were.3 10 Between a few weeks to a month after the appellant first started hiding the keys in his pants, he prompted and encouraged JM to put the keys in her pants when it was her turn to do the hiding. When the appellant retrieved the keys from JM’s pants, he would leave his hand lingering for some time before he grabbed the keys.4 11 In addition to the keys game, the appellant would take his penis from his pants and expose himself whilst they were both in the shed. The keys game went on for months and JM had conflicting feelings of embarrassment and curiosity. However, she still felt safe with the appellant and affectionate towards him.5 12 The appellant told JM that what happened between them in the shed was their secret and that she should not tell anyone about it. As she got older the appellant started giving JM money. She understood that this was to encourage her silence. There was a jar of money in the shed on top of a refrigerator. The appellant would mention to JM that he had put money in the jar after something of a sexual nature had occurred between them. JM did not tell anyone about the money because the appellant told her not to. He would also tell her that if she told anyone he would be sent away, would not be able to see anyone, and everyone would be 1 Trial ts 52-54. 2 Trial ts 54, 466-467. 3 Trial ts 183-184. 4 Trial ts 463, 467. 5 Trial ts 193. -- 4 of 39 -- [2024] SASCA 121 The Court 3 disappointed. He told her that if she said anything about what he had done to her, her family would be angry with her.6 13 JM stayed at the appellant’s house on about a monthly basis. Sometimes she would stay on her own and sometimes with her siblings. The last occasion that there was any sexual abuse was on a night that JM slept at the appellant’s house. JM’s grandmother was away that night and the appellant and JM were alone in the house. The appellant went to his bedroom and retrieved some pornographic magazines and DVDs and brought them to the lounge room. He showed JM some pornographic magazines and played a pornographic DVD. While the movie was playing, the appellant masturbated JM, performed cunnilingus on her, masturbated himself, caused JM to masturbate him and caused her to perform fellatio on him.7 14 The prosecution case was that the sexual abuse relevant to the charge ended sometime before JM commenced year 8 at school. However, the prosecution also relied on evidence of sexual overtures made by the appellant to JM when she was an adult. These overtures occurred when JM was about 18 or 19 years old. On one occasion the appellant told JM that he had recently received an inheritance from his mother and that if she (JM) continued what she was doing with him, he would give her half of his inheritance. She declined the offer.8 15 The second overture was in a text message sent by the appellant to JM. The text message was ‘do you want to see it?’. JM was not sure what he was referring to but agreed. The appellant then sent her a photograph of his penis and asked if she would send him a photograph of herself. She said no, deleted the photograph and asked the appellant to do the same.9 16 The prosecution case was that the inheritance proposition and the sending of the penis photograph demonstrated that the appellant had a sexual attraction to JM, both at the time of these events and when he was offending against her as a child. The prosecution relied on this evidence as circumstantial evidence that made it more likely that the offending the subject of the charge occurred.10 17 The prosecution also relied on evidence of a complaint made by JM when she was about 18 years old. At that time, she was asked by her mother whether any sexual abuse had occurred. JM initially denied any abuse, but in a later conversation told her mother that she had been sexually abused by the appellant.11 The exact terms of this complaint are the subject of one of the particulars of ground 1. 6 Trial ts, 54-55, 195-197, 479. 7 Trial ts 55-56. 8 Trial ts 476-477. 9 Trial ts 56, 223-224, 477. 10 Trial ts 59, 474-477. 11 Trial ts 482-483. -- 5 of 39 -- [2024] SASCA 121 The Court 4 Trial Judge’s reasons 18 The trial Judge’s reasons comprise 58 pages and 253 paragraphs. 19 The trial Judge commenced by setting out the charges and the elements of the charged offences. Under the heading ‘General Directions’, his Honour sets out standard directions regarding the onus and standard of proof, the right to silence and the special arrangements made for the giving of evidence by JM and SRM. After a section dealing with contentions that the complainants may have had motives to lie, his Honour turned to the issue of complaint evidence. 20 The trial Judge noted that the prosecution had led complaint evidence in relation to both complainants. His Honour referred to the principles relevant to such evidence distilled in R v P, S12 at [22]-[26]. In particular his Honour referred to the following principles: that once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to the charge, at least in a general way; if evidence of complaint is admitted a direction in accordance with s 34M(4) of the Evidence Act is required; and that a determination of the consistency of the complaint with the complainant’s evidence includes a comparison between the wording of the complaint and the conduct alleged.13 21 The trial Judge dealt with the cross-admissibility of evidence relating to the two charges and then set out the general background. His Honour then turned to the evidence of JM and said that in making findings he would consider the whole of JM’s evidence and take into account what the defence submitted were ‘compounding improbabilities in JM’s evidence’.14 His Honour then turned to a summary of each aspect of the complainant’s evidence, commencing with the evidence about the ‘hide the keys’ game. 22 The trial Judge set out the evidence given by the complainant regarding the hide the keys game. He then noted the prosecution submission that the detail of JM’s account of the game, including her ability to describe her feelings about what was happening and her description of the warmth of the appellant’s body in contrast to the keys, indicated a truthful account. He also noted the defence submission that the significance of the details was diminished by the fact that JM was an intelligent, articulate young woman by the time she came to give evidence. The defence suggestion was that details which might have been the hallmarks of a truthful account if JM were a child had less weight now that she was an adult. His Honour concluded that JM’s account of the hide the keys game was compelling both because of the level of detail and her presentation as a witness. He was not persuaded that the fact that JM was an intelligent, articulate young woman when she gave her evidence was a reason to discount the persuasive nature of her evidence.15 12 R v P, S (2016) 261 A Crim R 329. 13 R v TL [2024] SADC 4 at [22]-[23] (‘Reasons’). 14 Reasons at [33]. 15 Reasons at [35]-[43]. -- 6 of 39 -- [2024] SASCA 121 The Court 5 23 The trial Judge then set out JM’s evidence regarding the appellant exposing his penis to her in the shed. She said that this became so common that she wasn’t looking for it anymore, it was just there. His Honour said that this evidence had ‘a ring of truth about it’.16 24 The trial Judge then turned to another incident in which JM had described feeling the appellant’s penis on her back when she was sitting on his lap. In cross-examination, JM conceded that she was not sure that what she felt was the appellant’s penis. It is unnecessary to say more about this incident as his Honour concluded he could not be satisfied beyond reasonable doubt that this incident occurred as alleged. He accepted that JM honestly believed that the appellant placed his penis on her back, but found that there was an element of reconstruction and uncertainty about her evidence in this regard. He did not consider that JM had fabricated this part of her account. The defence also raised an issue about a possible inconsistency in that, in opening, the prosecution had said that JM would give evidence that at the time of this incident the appellant squeezed her bottom, whereas she gave no evidence in that respect. His Honour said that he had considered whether, either on its own or in combination with other inconsistencies, this issue caused him to doubt JM’s credibility and reliability. He considered that it did not, because this was a detail that might easily have been forgotten as compared to other more serious aspects of the offending.17 25 The trial Judge then dealt with JM’s evidence about being told by the appellant not to tell anyone. JM’s evidence was that initially the appellant told her that what happened between them in the shed was their secret and that she could not tell anyone about it. As she got older, the appellant offered her money and told her that if she told anyone her family would hate her. The defence raised several criticisms about the evidence, which his Honour dealt with. First, his Honour said that it was an ‘inconsequential omission and readily understandable’ that JM had not mentioned in her police statement that the appellant had also told her not to say anything about the money he gave her, whereas she had said this in her evidence. Secondly, his Honour said it was not an omission of ‘any real consequence’ that JM had told police that she could not recall what she spent the money on, whereas in evidence she said that she would buy lollies. Thirdly, the prosecutor in opening had referred to the appellant putting $20 to $100 in the jar for JM, whereas in evidence she could only recall a few five-dollar notes. His Honour said that in his view the difference in denominations was a ‘minor inconsistency’. Fourthly, JM had not mentioned in her police statements that the appellant had told her that the hide the keys game was their secret. His Honour again viewed this as a minor inconsistency. Fifthly, there was said to be no explanation of why JM’s relationship with the appellant went from being amicable to one where she was receiving threats to stay quiet. His Honour said that, without accepting that the change was unexplained, a possible explanation was that JM was getting older. In any event, it would not be expected that a child would be able to describe why an 16 Reasons at [44]-[45]. 17 Reasons at [46]-[51]. -- 7 of 39 -- [2024] SASCA 121 The Court 6 adult’s approach had changed. His Honour said that he rejected this submission as having any meaningful effect on his assessment of JM’s evidence either alone or in combination with the whole of her evidence.18 26 The trial Judge then dealt with an aspect of JM’s evidence that was referred to as the Anaconda movie. JM gave evidence that after watching the named movie whilst staying at the appellant’s house, she had a nightmare later that night. She said that she went to the appellant’s bedroom because it was closer than that of her grandmother. She got in to bed with the appellant, who was clothed from the waist down. His Honour treated this incident as being ‘entirely innocent’ and noted that it was not relied on by the prosecution as being a discreditable act. However, the defence had sought to make something of inconsistencies between JM’s evidence about this incident and her police statements. First, JM had not mentioned in her police statements that she had watched the movie at the appellant’s house, only that she had been scared about the movie whilst staying there. His Honour concluded that if this was an inconsistency, it was inconsequential. Secondly, in her police statements, JM said that she went to the appellant’s bedroom because her grandmother only had a single bed. His Honour concluded that this alleged inconsistency was ‘minor at best’ (in circumstances where it was not put to JM that she did not get into bed with the appellant).19 27 The trial Judge then dealt with the evidence of JM concerning the last time sexual conduct occurred. This was the occasion on which JM said she stayed at the appellant’s house whilst her grandmother was out, and that the appellant showed her pornography and then engaged in sexual acts with her. The defence suggested that there was inconsistency between JM’s police statements and her evidence regarding whether this was the first time that JM had stayed over. JM did not accept that there was any inconsistency. His Honour described the alleged inconsistency as being a ‘difference with little meaning’ and that it was never disputed that JM had stayed the night at the appellant’s house without her other siblings.20 28 The trial Judge then turned to the issue of where the appellant got the pornographic material from. In her evidence, JM said she was not a hundred percent sure whether she stayed in the lounge room or followed the appellant when he went to get the pornography. The location of the pornography was relevant because in a later police search pornography was found in the appellant’s bedroom. In cross-examination, JM said that her memory was that she had followed the appellant to his bedroom when he retrieved the pornography, but accepted that this was not referred to in her police statement. She explained this as being because she was emotional when she made the statement and had missed a detail that she later remembered when she reviewed the statement. JM denied being told by police where the pornography had been located. She also denied finding the 18 Reasons at [52]-[58]. 19 Reasons at [59]-[63]. 20 Reasons at [64]-[68]. -- 8 of 39 -- [2024] SASCA 121 The Court 7 pornography on any other occasion when she was at the house. His Honour accepted JM’s evidence in that regard and that, whilst she knew that some pornography had been discovered, she was not told where it had been found. He said that whilst he had not relied on the evidence as establishing esoteric knowledge, the location of the pornography seized by police was consistent with JM’s account of where she saw the appellant get it from.21 29 The trial Judge referred to evidence given by JM regarding a description of the pornography that she saw. The defence submitted that there was a significant inconsistency in that in her first police statement she had referred to a female pleasuring herself, whereas in evidence she had referred to a man pleasuring a woman and said that this reminded her of the hide the keys game. His Honour said that he disagreed that it was a significant inconsistency. His Honour found that the effect of JM’s evidence was that a person touching a woman’s vagina reminded her of the hide the keys game and that whether the person doing the touching was male or female made little difference.22 30 The trial Judge then moved to the sexual abuse that occurred when the appellant and JM were watching the pornography. After extracting the relevant evidence, his Honour said that the detail of the evidence and JM’s presentation when she gave it was compelling. Those details included JM describing a sexual awakening (realising she was attracted to women), being reminded of what the appellant had done to her in the find the keys game, her description of how she felt after the appellant licked her vagina and her description of the appellant telling JM to lick his penis like a lollipop. His Honour accepted that JM’s detailed account had the hallmarks of a truthful account.23 31 The trial Judge then turned to the sexual attraction or uncharged acts evidence. His Honour noted that the appellant’s mother died on 2 August 2020, and so the inheritance proposition, if made, must have occurred when JM was 18 or 19 years old. JM did not know whether the inheritance proposition or the penis photograph came first. His Honour described the basis on which the prosecution relied on this evidence and whether that use was permissible in the following terms ([98]-[100]): The prosecution submits that the inheritance proposition and the penis photograph, if accepted, demonstrate that [the appellant] had a sexual attraction towards JM both at the time of the inheritance proposition and when he sent the penis photograph but also when he was offending against her as a child. The prosecution submitted that I could use the evidence of sexual attraction as an item of circumstantial evidence, making it more likely the offending the subject of the charge occurred. The process of reasoning relies on propensity reasoning. The evidence is discreditable conduct and in those circumstances s 34P governs the admissibility of this evidence. 21 Reasons at [69]-[84]. 22 Reasons at [85]-[88]. 23 Reasons at [89]-[94]. -- 9 of 39 -- [2024] SASCA 121 The Court 8 I accept that the evidence may be capable of showing that [the appellant] was sexually attracted to JM when she was an adult. However, it has very little probative value as to whether he was sexually attracted to her as a child. JM was between 8 and 13 years old when the sexual offending is alleged to have occurred. It was five or six years later, when she was 18, or 19 years old, that the inheritance proposition was made, and the penis photograph sent. As has been said, there is a “stark qualitative difference between attraction to a person as an adult as opposed to when that person was a child”: [Brant v The King [2023] SASCA 67 (Livesey P, Doyle and David JJA)]. It does not follow that because [the appellant] was sexually attracted to JM as a young adult, he was therefore attracted to her in the same way when she was a child. In my view, the evidence is incapable of demonstrating a sexual attraction towards JM during the charged period. I have not used the evidence in any way to support JM’s evidence about the charged offending. Although obvious, for the sake of completeness, I make clear I have not used the evidence to suggest that [the appellant] is more likely to have committed the offence because he engaged in the discreditable conduct (s 34P (1)(a)). I have not engaged in bare propensity reasoning or what is sometimes referred to as ‘bad person’ reasoning: R v C, CA [2013] SASCFC 137, [76] and [79] (Kourakis CJ). 32 The trial Judge noted that the defence submitted that the uncharged acts evidence was relevant in assessing the credibility of JM. This was because it was said to be inherently unlikely that the appellant would proposition JM so many years after the offending had ended and that he would send her a photograph of his penis that she could use against him. The defence also suggested that JM’s evidence that she deleted the photograph out of concern for the impact on her teaching studies did not ring true. The defence also relied on the fact that JM stated for the first time in evidence that the appellant had asked her to send a photograph of herself. Reliance was also placed on text and Facebook messages between the appellant and JM between December 2020 and March 2021 that appeared to show that JM was getting on well with the appellant at that time.24 33 The trial Judge addressed these submissions at [108]-[112] of the reasons. He concluded that the gap of years between the offending and these events did not necessarily make JM’s evidence unlikely. Nor did he consider it unlikely that the appellant would have sent the penis photograph, noting that it was not uncommon for offenders to engage in brazen or risky behaviour, which may leave them vulnerable to detection. His Honour accepted that JM felt compromised by having the penis photograph on her telephone, even though the telephone was password protected. He said it was understandable why she might feel vulnerable and rejected the defence submission that her evidence was inherently implausible. His Honour did not accept that the texts and Facebook messages were inconsistent with the abuse or the later sexual propositions. He noted that the appellant was JM’s grandfather and that she had mixed feelings about him. It was not to be expected that all interactions would be hostile or that JM would necessarily rebuff the appellant or be rude to him. These were not matters that caused his Honour, either alone or in combination with other matters raised by the defence, to doubt JM’s honesty and reliability. 24 Reasons at [101]-[105]. -- 10 of 39 -- [2024] SASCA 121 The Court 9 34 The trial Judge then moved to the complaint evidence, which he set out at [113]-[126] of the reasons. His Honour noted that JLM said in her evidence that JM had told her that when she was 17 and staying at the appellant’s house she had come out of the shower one day and the appellant made her sit on a couch and had stood in front of her with no pants on and had then touched her, placing his fingers inside her vagina (‘the shower incident’). In contrast JM said in evidence that she told her mother about the abuse but provided no details. His Honour then said “[b]ased on JLM’s evidence, I accept it is a reasonable possibility that JM did tell her mother about the shower incident”. 35 The trial Judge accepted the prosecution position that the shower incident evidence was not complaint evidence because it was not referrable to any charged act. However, he accepted that it was relevant to take into account the discrepancy between JM’s evidence and JLM’s evidence when considering the weight to be attached to the complaint evidence and in assessing JM’s evidence more generally. 36 The trial Judge then dealt with the defence submissions regarding the discrepancy in the following way ([130]-[138]): As to the complaint evidence, the defence submission that the differences between JM and JLM as to what was said when JM complained was a matter that reflected adversely on JM’s credibility. I do not accept that submission. In my view, the difference between the two is explicable given the high emotions that were present when the complaint was made. It is understandable that JM may not recall all of the detail she provided to her mother. It was submitted that JLM’s evidence about the shower incident was entirely inconsistent with the complainant’s evidence regarding the nature of the abuse and her age when it occurred. This was said to materially undermine her credibility both on its own and in combination with the other matters the defence submitted undermined JM. As to the inconsistency in the account about the shower incident when compared with JM’s evidence the defence submitted that: (1) JM gave no evidence that the accused had ever penetrated her vagina with his finger (or anything else); (2) she had said nothing about any offending occurring after she had showered; (3) the last occasion of sexual abuse she gave evidence about was when she was a child (before she went into year 8 - the pornography incident); and (4) she agreed during cross-examination that she received the penis photograph a number of years after the physical touching. It was submitted, based on that evidence I should conclude that JM was effectively saying that the shower incident did not occur, and therefore the statement made by JM to her mother about the shower incident was materially inconsistent with her evidence. The defence submitted I should treat the evidence of JLM about the shower incident as a prior inconsistent statement made by JM. The topic of the shower incident was never put to JM. She was never asked if she had made the statement to JLM. I make it clear that the defence was not obligated to do so: MWJ v The Queen [2005] HCA 74 at [19], [37]-[41]. I can readily understand why, from a tactical point of view, they would not want to. There were risks associated in asking the question. Had JM agreed that she had said that to her mother and worse (from the defence perspective) said that the accused had put his finger in her vagina when she was 17 years old the inconsistency between JM and JLM would have evaporated. From a tactical point of view, the risk she might say that as opposed to denying she ever said anything about the -- 11 of 39 -- [2024] SASCA 121 The Court 10 shower incident to her mother and denying the shower incident ever occurred was ample justification to leave the topic alone. After final addresses and before delivering my verdict, I called the matter on and raised with defence counsel whether they wished to apply to recall JM to put the inconsistency to her. Although the defence initially applied to do so, that application was ultimately abandoned. In weighing whether JLM’s evidence about the shower incident is inconsistent with JM’s evidence (on the defence case a material inconsistency) it remains the case that I have no evidence from JM as to ‘any reason, explanation, or exculpation’ she may have for why she said that to her mother or even whether she agreed she said it and if she said it, whether it was true or not. As the fact finder, the absence of any evidence from her about that issue means her credibility cannot be assessed in the same way it could have been, had the suggested inconsistency been put to JM (R v Trabolsi (2018) 131 SASR 297 at [159] (Doyle J)). It was agreed that I should not speculate about the reasons why she may not have given evidence about the shower incident or why she did not say she said that to her mother. I agree with that submission. I have not done so. Whilst I accept the statement made by JLM is, on one view, inconsistent with JM’s evidence, it remains to consider the weight to be attached to that inconsistency. I accept that JM did not say in evidence that the accused had put his finger inside her vagina, although that was in the context of her giving evidence about what occurred in the shed and during the pornography incident. I do note that she did say that the accused put his fingers inside the outer flaps of her vagina on those occasions. I accept the last physical sexual act she gave evidence about was when she was a child and that she gave no evidence about anything occurring after having a shower but again her evidence about the sexual abuse was focussed on what happened to her when she was a child. JM’s agreement during cross-examination that she received the penis photograph a number of years after the physical touching may be inconsistent with the shower incident evidence although much would depend upon JM’s understanding of the question. Presumably she understood the question to be suggesting many years after the sexual offending as a child. Having considered the issue and noting there is no direct evidence from JM on this topic, to the extent there may be an inconsistency between JM’s evidence and the disclosure to her mother about the shower incident it is not a matter that has caused me to have a doubt about JM’s honesty and reliability as to the unlawful sexual acts the subject of the charge. As I have said a number of times, I have not considered this inconsistency in isolation but in combination with the various other matters raised by the defence as going to an assessment of JM’s credibility. 37 The trial Judge then returned to consider the admissible complaint evidence, that is those parts of the conversation that were referable to the charged acts. His Honour concluded that JM complained at a time when it might be expected that she would and those parts of the conversation that were referable to the charged conduct were consistent with her evidence. His Honour directed himself, in accordance with s 34M, that the evidence was capable of establishing consistency but was not evidence of the truth of what was said.25 38 The trial Judge then turned to consider whether JM had a motive to lie, as suggested by the defence, and found that she did not. He acknowledged that this 25 Reasons at [139]-[141]. -- 12 of 39 -- [2024] SASCA 121 The Court 11 finding did not make JM’s evidence any more likely and that the defence bore no onus of proving a motive to lie.26 39 The trial Judge then considered the possible significance of evidence from JM’s father that at some point JM and SRM had indicated a reluctance to go to the appellant’s house. His Honour concluded that the evidence in this regard was unreliable and non-specific. He said that he had disregarded that evidence and not used it in any way in assessing JM’s credibility.27 40 In conclusion, the trial Judge said that he found JM to be an honest and reliable witness. He said that JM’s account of what occurred in the shed was detailed and compelling. He referred to the richness in the detail of her account and that her evidence regarding the hide the keys game was “a multilayered account with all the hallmarks of a truthful account – one that she experienced”. He said that he accepted JM’s account about the appellant exposing his penis in the shed. He said that JM’s evidence about what happened in the house when the pornography was played was also compelling and referred to the details of that account.28 His Honour then said ([158]-[161]): I have considered the various criticisms of JM’s account individually and collectively. For the reasons I have set out earlier, the various arguments that have been put forward have not caused me to have doubts about JM’s evidence. I am satisfied for the reasons I have given that JM was an honest witness. Apart from her evidence that she thought that the accused’s penis was placed on her back when she was playing craft, I found her to be a reliable witness. I have had no regard to SRM’s evidence as to what she says occurred to her when assessing JM’s evidence. As I have indicated earlier, I have not relied on the similarity of account reasoning, nor have I relied on propensity reasoning. Whilst I found that JM did complain to her mother in circumstances that are capable of establishing consistency of conduct, and that is a matter that can be taken into account in assessing her credibility, I placed little weight on that evidence in coming to the conclusion I have about JM’s honesty and reliability. 41 The trial Judge then made findings regarding the sexual conduct that had been proved beyond reasonable doubt and concluded that he was satisfied beyond reasonable doubt that more than two unlawful sexual acts, namely indecent assault, unlawful sexual intercourse and various acts of gross indecency had been committed by the appellant. Accordingly, the appellant was found guilty of count 1.29 The balance of the reasons related to count 2 (of which the appellant was acquitted) and are not relevant for the purposes of this appeal. 26 Reasons at [149]. 27 Reasons at [155]. 28 Reasons at [156]-[157]. 29 Reasons at [162]-[163]. -- 13 of 39 -- [2024] SASCA 121 The Court 12 Grounds of appeal 42 As noted earlier, the grounds of appeal were amended. In their final form, the grounds are:30 1. A miscarriage of justice resulted from the trial Judge’s inadequate and erroneous reasoning on issues relevant to the assessment of the credibility and reliability of the complainant. 1.1 A miscarriage of justice resulted from the trial Judge’s erroneous reasoning in relation to the significance of the ‘shower conversation’ in the assessment of the credibility and reliability of the complainant ([122]-[142] of the LTJ’s reasons). 1.2 A miscarriage of justice resulted from the trial Judge’s failure to consider the combined force of the defence criticisms made of the complainant’s evidence on the topic of being told by the applicant not to disclose the offending and the applicant purportedly provided the complainant with money to keep her quiet ([54]-[58] of the LTJ’s reasons). 1.3 A miscarriage of justice resulted from the trial Judge’s inadequate reasoning in resolving the inconsistencies in the complainant’s evidence as to whether she did or did not observe the applicant retrieve pornography from his bedroom (particularly against the backdrop of what occurred during the [pre-trial] proofing) ([69]-[84]) of the LTJ’s reasons). 1.4 [particular 1.4 was abandoned] 1.5 A miscarriage of justice resulted from the trial Judge’s failure to consider the combined force of the defence criticisms made of the complainant’s evidence regarding the sexual proposition and penis photograph ([95]-[112]) of LTJ’s (reasons). 2. The trial Judge failed to adequately identify and explain the permissible use of the inheritance proposition and penis photograph evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA). Ground 1 – relevant legal principles 43 The obligation of a judge to give adequate reasons in a trial by judge alone is well established. The necessary implication of s 7 of the Juries Act 1927 (SA), which provides that an accused may elect to be tried by judge alone and that the decision of the judge has the same effect as a verdict of a jury, is that a judge will provide reasons. The giving of reasons is an established incident of the judicial 30 Appellant’s amended appeal grounds, filed 14 August 2024. -- 14 of 39 -- [2024] SASCA 121 The Court 13 process. Reasons in a trial by judge alone are essential to enable the parties and the community to understand why the verdict has been reached, to enable the parties to assess whether there might be grounds to appeal, and for an appellate court to perform its statutory function of determining whether the judge has correctly applied the relevant rules of law. 31 44 In Fleming v The Queen,32 the High Court considered the adequacy of reasons in the context of a trial by judge alone and held that the obligation to give reasons demands more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”. In Fleming, there was a statutory duty to give reasons, but the obligation to give adequate reasons is no less burdensome at common law. 45 The adequacy of reasons must be assessed by reference to the forensic issues at the trial. Matters that were of limited significance or were not relied on by the parties at trial do not require detailed consideration by the trial Judge. The reasons should deal with the critical matters at issue in the proceedings. It would only be productive of unnecessarily long reasons if judges were required to mention every fact or argument relied on by the losing party as relevant to an issue. A judge’s failure to mention such facts and arguments cannot be presumed to be evidence that he or she has not properly considered the losing party’s case.33 46 In DL v The Queen,34 the High Court explained that inadequacy of reasons is not always established by a failure to resolve every matter in dispute, nor because they fail to provide a minute explanation for every step in the reasoning process. Kiefel CJ, Keane and Edelman JJ said:35 The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obligated to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal. The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to 31 R v Keyte (2000) 78 SASR 68 [38]; Douglass v R (2012) 290 ALR 699 [14]; DL v The Queen (2018) 266 CLR 1 [32]; Fleming v The Queen (1998) 197 CLR 250 [22]. 32 Fleming v The Queen (1998) 197 CLR 250 [28]. 33 Whisprun Pty Ltd v Dixon (2003) 234 CLR 492 [62]; Lloyd v The King [2023] SASCA 106 [33]. 34 DL v The Queen (2018) 266 CLR 1. 35 DL v The Queen [32]-[33]. -- 15 of 39 -- [2024] SASCA 121 The Court 14 address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular: “Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.” (citations omitted) 47 Whilst it is not necessary for a judge to give extensive or elaborate reasons, an appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. The reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.36 48 In assessing the adequacy of reasons, it is important to consider them as a whole. It is not appropriate to focus on specific aspects of the reasons or to divorce those aspects from the context of the arguments put at trial.37 49 Reasons may be inadequate because it is impossible to discern how the Judge arrived at the conclusion he or she did. This failing is one of insufficiency – that is, that the reasons do not deal with some issue in the trial that it was necessary to resolve. Reasons may also be inadequate because the reasoning process which is set out does not rationally support the findings of fact or the verdict. This failing is one of illogicality – that is, the reasons do not as a matter of logic and sound reasoning support the conclusion reached. The distinction is not always obvious, but the two concepts should not be conflated.38 In the present case most of the appellant’s complaints fall into the category of inadequate reasoning. That is, that the reasons given do not rationally support the ultimate findings of fact and therefore the verdict. In Trussel v The King,39 this Court expressed the distinction in the following terms: It is necessary, however, to be clear that there is a difference between the complaints. A complaint of inadequate reasons involves a submission that it is not possible to discern how the judge arrived at their determinative conclusions or findings. That is to be distinguished from an allegation as to inadequacy of reasoning, where it is contended that a trial Judge’s 36 DL v The Queen (2018) 266 CLR 1 [130]-[131]; NBM v The Queen [2021] SASCA 105 [91]. 37 NBM v The Queen [2021] SASCA 105 [91]. 38 JGS v R [2020] SASCFC 48, [205]. 39 Trussell v The King [2023] SASCA 5, [117]. -- 16 of 39 -- [2024] SASCA 121 The Court 15 reasoning, although apparent, does not properly support or justify their findings and ultimate verdict. 50 The approach of the appellant was to identify parts of the trial Judge’s reasons dealing with an asserted inconsistency. Each relevant part of the reasons is the subject of one of the particulars of ground 1. In submissions the appellant then sought to challenge the sufficiency of the reasons or the reasoning process in each of those parts. It is convenient to follow the same approach, remembering always that the reasons need to be viewed as a whole. It will also be necessary to refer to the relevant evidence in order to provide the context for the reasons. Particular 1.1 – the complaint - relevant evidence 51 In her evidence-in-chief, JM said that there were two relevant telephone calls with her mother when she was over 18 years old and attending university. In the first call, her mother asked her whether she was sexually abused by the appellant (her sister having already made a complaint). JM’s grandmother was also on the line at the time. JM said that she was embarrassed and scared when this question was put to her. She was afraid that if she revealed the abuse it would break the family apart. She was also concerned about the impact it may have on her future career prospects. For these reasons, she answered ‘no’ when her mother asked her if she had been abused in this first conversation.40 52 Sometime later JM spoke again with her mother by telephone. On this occasion JM told her mother about the sexual abuse. In examination-in-chief, JM said:41 Q. Using the exact words, if possible, if you can, [JM], what did you tell your mum on that occasion about what [the appellant] had done to you. A. I rang her in tears and if only - the first thing that I really said is 'He did it to me too'. Q. Apart from 'He did it to me too', did you say anything else to your mum at that time. A. I told my mum that [the appellant] had touched me too. I told - I apologised to her that I didn't tell her sooner and I told her I - I told her that I apologised to [JM’s sister], that 'I want to apologise to [JM’s sister]' because I didn't want her to hate me after I didn't believe her originally. I remember just crying to her and she reassured me that it wasn't - it wasn't my fault, that I wasn't to blame and that [JM’s sister] wouldn't hate me for not speaking up sooner. Q. Did you tell your mum any details at that time about what [the appellant] had done to you. A. No. Q. Did you tell her anything at all about what [the appellant] had done to you. 40 Trial ts 227-228. 41 Trial ts 226. -- 17 of 39 -- [2024] SASCA 121 The Court 16 A. No, only that he touched me. 53 In cross-examination, JM gave the following evidence:42 Q. As I understand your position, the extent of what you told your mother was that [the appellant] had touched you. A. Yes. No details about what had happened to me were expressed at the time. Q. And what about at any time. A. No. Q. So you've never told your mother any details about what you say [the appellant] did to you other than that he touched you. A. No. I was very cautious in what I said. So I left - remained that he touched me. Q. And you're absolutely sure about that; that the extent of any detail you gave to your mum was that he touched you. A. I believe so. Q. And you're certain about that. A. I can't be certain exactly to what extent I told my mum, but I know for a fact that no details or anything in regards to when it happened, the duration, dates, nothing was expressed in regards to what happened to me. I'm not sure whether or not I expressed any other 'He touched me' or 'He pinched me' or 'groped me' but no details were ever expressed. Q. When you said yesterday in chief that you told your mum no detail other than that he touched you, is it the case that that's not quite right. A. It's the case of that I can't be certain that I only said 'He touched me' as 'touched me' is such a broad thing. I can't say whether or not, in the event of, if she asked me what happened, I'd say 'He touched me' or 'He had sexual contact with me', but no details of how old I was, when it happened was ever expressed. It was a general sense of what happened. Q. But you accept what you said yesterday was 'no details'. A. Around the lines of no details and I still stand by that. Q. And you didn't provide any qualification that 'Well, I might have told her about some of the acts' or anything like that, like you just told us now. A. Yes, I didn't say that at the time but it's what I meant. Q. So you say, do you, that when you said 'details' yesterday, you were talking about times and dates. 42 Trial ts 302-304. -- 18 of 39 -- [2024] SASCA 121 The Court 17 A. Yes, or what happened to me, the events of what happened. As I've disclosed - so, for example, on the couch, I've never disclosed anything, or hide the key game. Only along the lines of 'He touched me' or there might have been sexual nature. Never in detail about what happened. Q. So never in detail about any of the acts even. A. No, no detail about the acts. 54 JM’s mother, JLM, gave evidence after JM. She was also asked about the relevant telephone conversation. There was no dispute between the parties that JM and JLM were talking about the same conversation. In evidence-in-chief, JLM said:43 A. So I had rung [JM] just to have a general chitchat with her because she had moved out of home at that stage so I was trying to keep in contact with her. The conversation went along the lines of 'Hey, do you know what [her sister] has just come out with?', or 'Your sister exploded on Sunday at your brother, this is what was said', so I would have told her the situation of what [her sister] had said to me and then [JM] went very, very quiet on the other end of the phone and I was like 'Hello, are you there?', and [JM] turned around to me and she said 'Mum, I'm really sorry, I was very confused' didn't know why she was saying 'Mum, I'm really sorry', and then she turned around to me and said 'I lied to you'. Q. Were they the words that she used 'I lied to you'. A. That is correct, yes. Q. After telling you that, what, if anything else, did she say. A. She then went on to say to me 'Please don't disown me, please don't kick me out, I am sorry I lied to you' and I'm all confused on the phone going - I said to her 'What are you on about?', I had no clue about what she was about to tell me. After she said to me 'I lied to you', she then said to me that [the appellant] had done some stuff to her. Q. Did she give you any more detail about what she meant when she said [the appellant] had done some stuff to her. A. She told me that there had been many occasions that she had been at [the appellants’] and that he had touched her inappropriately and that a few things had happened. I cannot remember the conversation exactly, but I do recall that she had said - she told me something about a couch and the lounge room and that [the appellant] had gone down on her, but as for the exact conversation, I cannot recall exactly what was said. Q. How did [JM] sound on the phone at the time that she was telling you about [the appellant]. A. Upset, embarrassed. I would say probably more embarrassed and felt very, very guilty. That was her tone of voice that I had over the phone, was very embarrassed and felt very, very guilty and upset. 43 Trial ts 343-345. -- 19 of 39 -- [2024] SASCA 121 The Court 18 Q. Can you say anything about her emotions as she was talking to you on the phone. A. She - her emotional - probably in her voice was - she was very, very upset. I do remember her saying to me that if she had said something sooner, it wouldn't have happened to [JM’s sister]. 55 It should be noted at this point that JLM’s police statement included additional information about what JM had told her. In particular, in her police statement JLM had said that JM told her about a particular incident that had occurred when JM was aged 17 and had just come out of the shower (“the shower incident”). This part of the evidence was not led by the prosecution. It is apparent from what later transpired that this was a deliberate decision based on a view that this part of the conversation did not relate to the alleged sexual abuse that was the subject of the charge. However, the evidence was adduced in cross- examination. 56 In cross-examination, JLM was asked:44 Q. If I can just go back slightly to this conversation that you had over the phone with your daughter [JM], which was just before she came back to Barmera. She told you during that phone call that she was 17 years of age and that she was staying at [the appellants’] house in Renmark and that she was in the shower. Do you remember this. A. I cannot remember the conversation, no. Q. What I suggest she told you that she was 17 years of age and she was staying at the house in Murray Price Drive, Renmark, she was in the shower, that after she finished showering the accused made her sit on the couch in the lounge room, stood in front of her with no pants on and that he started touching her and placed his fingers inside her vagina. A. I believe that is correct, yes. HIS HONOUR Q. What does 'I believe that's correct' mean. Do you mean that's correct, that's what she says, or are you uncertain or - A. It was - the conversation was three years ago, I cannot recollect it completely to 100% of the conversation that I had with her, so I am only going off what I know is in my statement. Q. So what does 'I believe' mean. A. I am just going off what I believe that is obviously the truth. If I had said that at the time, yes, it is definitely the truth. 44 Trial ts 389-340. -- 20 of 39 -- [2024] SASCA 121 The Court 19 Particular 1.1 – the hearing on 18 December 2023 57 Some months after the trial had ended and closing submissions were complete, the trial Judge requested further submissions from the parties as to the significance of the difference between the evidence of JM and JLM regarding the shower incident. His Honour was concerned as to how to deal with this inconsistency in circumstances where no questions had been put to JM in cross-examination as to whether she had referred to the shower incident in her conversation with her mother. In these circumstances, there had been no opportunity for JM to provide any possible explanation for the inconsistency.45 58 At a specially convened hearing on 18 December 2023, the prosecution submitted that evidence of the shower incident was not led from JLM by the prosecution because it did not relate to the matters that were the subject of the charge and was not, therefore, a relevant complaint. The prosecution’s position was that the defence had chosen to adduce this evidence in cross-examination of JLM as, in effect, a prior inconsistent statement. In those circumstances, s 28 of the Evidence Act should have been complied with, in that the contention that JM had given JLM details of at least one incident of sexual abuse during the complaint conversation should have been put to JM. That not having occurred, the prosecution submitted that the alleged inconsistency could be given little weight.46 59 The defence submitted that the shower incident formed an integral part of JLM’s evidence regarding the complaint and should have been led by the prosecution. The evidence was included in JLM’s witness statement, and the defence had an expectation it would be led. No objection to the evidence had been raised by the defence (given the possible prejudice arising from the fact that it referred to an additional uncharged act). The defence position was that the evidence was relevant in assessing whether the complaint, taken as a whole, was consistent with the account given of the sexual abuse by JM.47 60 In effect, the defence suggested that there was inconsistency in two respects. First, there was inconsistency between JM and JLM as to what was said in the complaint conversation. Secondly, if JLM’s account was accepted and the shower incident was referred to by JM, there was inconsistency between the terms of the complaint and the evidence that JM had given regarding the sexual abuse. Both aspects were said to reflect adversely on the credibility and reliability of JM. As to the second aspect, the defence pointed to the fact that the shower incident claim was inconsistent with evidence that JM had given that the abuse ended when she was in year 8 at school. Particular 1.1 – the submissions on appeal 61 The appellant submits that in adducing evidence of complaint under s 34M of the Evidence Act, the prosecution should have adduced the whole of JLM’s 45 Directions ts, 18 December 2023, 2. 46 Directions ts, 18 December 2023, 11-13. 47 Directions ts, 18 December 2023, 4-8. -- 21 of 39 -- [2024] SASCA 121 The Court 20 evidence regarding the conversation that she had with JM. The fact that the defence were left to adduce the shower incident part of the conversation in cross-examination does not mean that this evidence was not part of the complaint. The appellant rejects the suggestion that the evidence was adduced by the defence as a prior inconsistent statement.48 62 The appellant contends that where evidence of complaint is led, the whole of that evidence should be adduced so that the finder of fact can make a proper assessment of the extent to which the complaint is consistent with the complainant’s evidence. Where evidence of complaint includes aspects which are consistent and other aspects which are not consistent with the complainant’s evidence, then it is open to the defence to use those parts that are not consistent to support a submission that this impairs the credibility or reliability of the complainant.49 63 The appellant submits that the discrepancy between JM and JLM regarding whether the shower incident was referred to and whether JM provided any details of the abuse, was significant. The relevant telephone conversation took place only a matter of days before JM and JLM provided statements to the police. The conversation must have been very fresh in JLM’s mind at the time.50 64 The appellant contends that the inconsistency is such that, in a case that relied entirely upon the acceptance of JM as a credible and reliable witness, it should have caused the trial Judge to entertain a reasonable doubt as to the appellant’s guilt. The appellant suggests that this inconsistency is sufficient in itself but, in the alternative, it is sufficient when taken together with the other inconsistencies referred to in the other particulars. The appellant says that to the extent that the trial Judge did deal with the discrepancy, it was by engaging in impermissible speculation as to possible reasons for it.51 65 The appellant also submits that the trial Judge failed to take into account the second aspect of inconsistency, that is, if it was accepted that JM had referred to the shower incident in her complaint then that was inconsistent with her evidence that the last abuse had occurred when she was in year 8 at school. It was submitted that the trial Judge needed to deal with the possibility that JM had made a false claim to her mother. Such a false claim would have a significant impact on her credibility.52 66 The respondent accepts that where complaint evidence reveals a difference as to the contents of the complaint between the complainant and another witness, both parties may seek to rely on that evidence in their case. Any discrepancy has to be weighed against the positive consistency of the complaint. However, the 48 Appellant’s written submissions, filed 23 August 2024, 8-10. 49 Appellant’s written submissions, filed 23 August 2024, 9-11. 50 Appellant’s written submissions, filed 23 August 2024, 11-12. 51 Appellant’s written submissions, filed 23 August 2024, 12-14; Appeal ts 31. 52 Appellant’s written submissions, filed 23 August 2024, 13; Appeal ts 69. -- 22 of 39 -- [2024] SASCA 121 The Court 21 respondent submits that reliance on a discrepancy remains constrained by the terms of s 34M(4)(b), and any proof of a discrepancy as a prior inconsistent statement must still comply with the procedure set out in s 28 of the Evidence Act.53 67 The respondent submits that the appellant’s trial counsel made a forensic decision not to cross-examine JM on the discrepancy. Whilst that decision was understandable, it meant that JM had no opportunity to comment on the discrepancy. The trial Judge was left to grapple with the discrepancy and he ultimately concluded that it was capable of explanation by the heightened emotion that attended the conversation. The Judge’s reasoning was rational and logical, and clearly set out the central issues in dispute and how they were resolved.54 Particular 1.1 – the merits 68 The evidence of JLM regarding the complaint made to her by JM was adduced pursuant to s 34M of the Evidence Act. Such evidence is admissible as an exception to the hearsay rule. It is admissible for the limited purposes of explaining how the allegation first came to light and assessing whether the complainant has been consistent regarding his or her account of the alleged abuse. It is relevant in assessing the credibility and reliability of a complainant. Evidence of this nature can assume particular significance in the context of a trial which critically depends upon acceptance of the complainant’s evidence. 69 Where complaint evidence is to be led, some care needs to be taken to ensure that the contents of the complaint relate to the allegations. Plainly, it is not possible to make any assessment as to consistency unless the complaint is referrable to the allegations that are the subject of the complainant’s evidence. In R v Rippey,55 this Court said: In our view, this was not a case where the complainant made two quite separate complaints, one referrable to charged conduct and another referable to other uncharged conduct. Rather, the evidence of R disclosed, as a matter of substance, one complaint, albeit a complaint which in its terms (by its inclusion of the references to both licking and play fighting) diverged from L’s evidence and the charged particulars. Despite these divergences, the complaint nevertheless related, as a matter of substance, to the sexual abuse of L by the appellant that was the subject of the charge of maintaining an unlawful sexual relationship. It followed that R’s evidence of that complaint was admissible under s 34M(3) of the Evidence Act. In a case involving wide ranging allegations of sexual abuse, as is often the case where a defendant has been charged with maintaining an unlawful sexual relationship, a focus upon the essential substance of the complaint is appropriate in determining whether a complaint is referable to the charged conduct. That approach is required and appropriate having regard to considerations such as the difficulty that a child victim might have in recalling or describing the various incidents of sexual abuse; the reluctance that a victim might have in making a complaint with a high degree of specificity; and the potential for differing 53 Respondent’s written submissions, filed 6 September 2024, 7. 54 Respondent’s written submissions, filed 6 September 2024, 11-12. 55 R v Rippey [2022] SASCA 141, [121]-[124]. -- 23 of 39 -- [2024] SASCA 121 The Court 22 memories on the part of the victim and the person to whom the complaint was made as to what was said. There will be some cases in which it will be appropriate to consider confining the complaint evidence to particular parts of a conversation between the victim and the complaint witness. However, there is a risk of evidence becoming artificial where particular statements and allegations are intertwined within the one conversation and not neatly severable. In our view it was appropriate in the present case to receive the entirety of R’s evidence as to the complaint made by L. However, in those cases where a complaint that diverges in its terms from the charged conduct is admissible, it will be incumbent upon the trial judge to give careful directions as to the use that may be made of that evidence. That will be particularly so where the complaint includes additional allegations of sexual abuse. The directions to be given must conform to the requirements of s 34M, and must make clear the use to which the complaint evidence adduced can, and cannot, be put. 70 In the present case, the shower incident was not referrable to the allegations that were the subject of the charged offence. Viewed in isolation that part of the conversation was not admissible as complaint evidence. Other parts of the conversation, however, were referrable to the charged conduct. The only relevant issue was whether the shower incident part of the conversation was an integral part of a single complaint. If so, it should have been adduced in evidence-in-chief from JLM. 71 The position is far from clear. JLM said that the conversation was emotional and she could not remember everything that was said. She did not have an independent recollection of the shower incident being referred to but accepted that her police statement was correct. Given her limited recall, there was no evidence as to when in the conversation this was said or what the immediate context was. It is difficult in these circumstances to determine whether this was an allegation that was intertwined with the complaint about the abuse as a child and was not neatly severable. 72 The issue has been assumed by the parties to be significant because the shower incident evidence was adduced in cross-examination by the defence. If the basis for admissibility was, as the appellant contends, that it was an integral part of the complaint, the fact that it was adduced in cross-examination would have no significance. In contrast, if it was adduced as a prior inconsistent statement the respondent submits that it can have little weight as it was not put to JM as required by s 28. 73 In our view, the basis on which the shower incident evidence was adduced makes no material difference. Whether it was led as part of the complaint evidence or as a prior inconsistent statement, the fact it was not put to JM remains relevant in assessing the significance of the alleged inconsistency. Assuming, favourably to the appellant, that the shower incident was admissible as part of the complaint evidence, the fact that JM was not asked about it meant that there was no explanation from her for the apparent inconsistency. In saying this, we do not -- 24 of 39 -- [2024] SASCA 121 The Court 23 overlook the fact that the defence is not required to cross-examine a complainant on such an inconsistency.56 There are, of course, obvious forensic reasons why that course would not be taken. There would be a danger that in doing so the complainant might confirm that other sexual conduct had occurred that had not been relied on by the prosecution. However, this does not mean that in assessing the weight to be given to this inconsistency the trial Judge was obliged to ignore the fact that the complainant did not have an opportunity to address it. 74 In the end, nothing turns on the basis upon which the evidence was received. The evidence was before the trial Judge and was relevant to an assessment of the credibility of JM. The real issue is whether it was properly dealt with by the trial Judge. 75 It is evident from the trial Judge’s reasons that he accepted that the shower incident discrepancy, even if not admissible as complaint evidence, was a relevant consideration in assessing the credibility of JM. His Honour carefully considered each of the arguments raised by the defence and resolved them. 76 The appellant’s suggestion that the trial Judge’s reasoning regarding possible explanations for the inconsistency involved speculation cannot be accepted. The trial Judge had to deal with the fact that there was a discrepancy, but that it had not been put to JM. He had to consider whether that inconsistency was incapable of explanation, such that it necessarily adversely impacted on JM’s credibility. To consider whether possible explanations might exist was not to speculate, rather it was to test the defence proposition that the inconsistency was a significant one. His Honour considered that there were possible explanations; in particular, that JM was upset at the time of the conversation and may have said things that she had subsequently forgotten. There was evidence, from both JM and JLM, that JM was emotionally distraught and crying during the conversation, which JLM said was a very long one. 77 As to the suggestion that if JLM was correct and JM did tell her about the shower incident, and therefore this was inconsistent with JM’s other evidence regarding when the abuse had ended, the trial Judge dealt with that at [137] of his reasons. The answers that the defence relied on as being inconsistent were not answers that directly related to the question of whether there had been any later abuse. As his Honour noted, the whole context of the trial was on abuse that occurred when JM was a child and it was reasonable to suppose that she understood the questions in that context. 78 The appellant’s contentions rely on a series of propositions that become increasingly open to conjecture. This is illustrated by recalling that the trial Judge did not make a finding that JM had referred to the shower incident. Rather, he merely accepted that it was a possibility. The appellant’s argument proceeds on the basis that if it was possible that JM spoke of the shower incident, then it is 56 MWJ v The Queen [2005] HCA 74 [19], [37]-[41]. -- 25 of 39 -- [2024] SASCA 121 The Court 24 possible that this part of the complaint was false because it is possible that it is inconsistent with other evidence. If it was false, then it is possible that other things said by JM are also false. As is apparent, this argument is a possibility, built on a possibility, which in turn is built on another possibility. The difficulty in assessing whether any of these steps involve a realistic possibility lies in the fact that JM had no opportunity to provide an explanation for the discrepancy. 79 In a trial by judge alone, the judge must deal with all of the significant matters in contention by resolving them or otherwise assessing their significance, where possible, and explaining the reasoning process. However, this does not mean that every argument advanced by a party must be chased down its burrow. The forking paths in an argument may come to involve such a degree of conjecture that the endpoint is unlikely to be of any real assistance. To follow a line of argument that involves a series of compounding possibilities, becomes, at some point, merely academic. A trial judge is not obliged to pursue every argument raised by a party regardless of how speculative it becomes. 80 The reasoning process of the trial Judge in regard to the shower incident was not patently flawed or illogical, nor was it deficient in any relevant way. It is not sufficient for an appellant to propose a different course of reasoning that could produce a different result. Nor is it sufficient that the reasoning followed is capable of being disputed or compared unfavourably to other approaches. The high bar that must be reached where the reasoning is challenged is that the process was irrational or illogical. The appellant’s case falls well short of that bar. Particular 1.2 – the secret – relevant evidence 81 In evidence-in-chief, JM said that she did not tell anybody what was happening at the time because the appellant told her not to. She was then asked:57 Q. Who told you not to. A. [The appellant]. Q. If you can recall and using the exact words, if you can, what would [the appellant] say to you. A. I can't recall the exact words but along the lines of 'This is our secret. You can't - you can't tell anybody.' Q. Can you recall when he first started saying that to you. A. No. Q. Can you recall when he told you that in regards to the sexual acts that were occurring in the shed. 57 Trial ts 194-195. -- 26 of 39 -- [2024] SASCA 121 The Court 25 A. I know that something along the lines of that was said after the first time that I had to retrieve the keys. I'm not sure of the exact wording, but I know that I wasn't supposed to tell anyone. Q. Apart from saying to you 'This is our secret' and 'You can't tell anyone', did he ever say anything else to you about what was happening in the shed. A. Could you rephrase that one for me? Sorry. Q. That's okay. Apart from saying to you along the lines of 'This is our secret' and that you can't tell anyone, did he ever say anything else to you about what was happening between you and [the appellant] in the shed. A. Not that I can recall at that time until a little bit older. Q. You said 'a little bit older'; what do you mean by that. A. When I started to question whether or not it was right, I - sorry, [the appellant] had to go to more of the bribery way to ensure that I wouldn't say anything, such - along the lines of if I told anyone, my family would hate me, the introduction of money in a jar started and he would give me money to keep quiet, and an incident a long time ago, another incident that happened to me sexually from another family member was used to make me keep quiet. Q. I'm going to go back, if I can - A. Yep. Q. - in a little bit more detail about what you've just told us. You said that you were quite a bit older, that the money came along and that you started questioning [the appellant] more about what was happening. Are you able to say how old you were when that started. A. No. Q. And you've spoken about money in a jar; is that right. A. That's correct. Q. Can you recall when that started. A. Not the exact date, no. Q. Can you recall how old you were. A. No. 82 Later in her evidence, JM said that she could not recall how much money was in the jar, though she could remember a few five-dollar notes being in it. Sometimes the appellant would mention that money was in the jar after a sexual incident, but he also would mention it even if an incident had not occurred. She could not recall how many occasions he referred to having put money in the jar. She said that he would also give her money on other occasions, including birthdays. On these occasions the appellant would hand it to her with a smile or a -- 27 of 39 -- [2024] SASCA 121 The Court 26 wink and pull her aside and say ‘there is something extra in there’. She was not sure if he ever said what the money was for.58 83 In cross-examination, it was put to JM that she had not told the police that the appellant had told her it was a secret the first time he retrieved the keys from his underpants. She was then asked about the promise of money and accepted that she could not pinpoint in time when such an offer had first been made. She could not recall any specific conversation about money being put into the jar.59 JM was then asked:60 Q. I think it's clear that in relation to the money jar, you can't recall ever being given any money from it. A. I recall being given money from [the appellant] for the reasons of the sexual incidents, however, I cannot, under good nature, in terms of giving evidence, that I can say it came directly from the jar but there was money given for the sexual incidents. Q. How much money are we talking. A. It could be anywhere between 5 or approximately $100. Normally the money was either slipped to me in a birthday card or just given random. That was mentioned in my affidavit. Q. Sorry, I missed the last half of your answer, I apologise, do you mind repeating that. A. So, anywhere from $5 up to a hundred. It was given to me via birthday cards or just in general. That was mentioned in my affidavit, that he would give me money. Q. What would you buy or do with the money. A. I often bought lollies or something that I wanted. Q. You didn't refer to buying lollies with the money in any of your police affidavits, did you. A. Not lollies specifically, no, not that I remember. Particular 1.2 – the submissions on appeal 84 The appellant submits that JM’s evidence, that the appellant told her that the abuse was a secret and that she spent the money she was given on lollies, was not contained in her police statements. The appellant also submits that JM’s evidence that the jar contained $5 notes was not consistent with the prosecutor’s opening address that it contained other denominations. The appellant submits that the trial Judge was obliged to consider the combined effect of these inconsistencies, but that his approach was to analyse each issue in isolation.61 In oral submissions, 58 Trial ts 196-197. 59 Trial ts 271-274. 60 Trial ts 275. 61 Appellant’s written submissions, filed 23 August 2024, 16. -- 28 of 39 -- [2024] SASCA 121 The Court 27 counsel accepted that this was not the appellant’s strongest point and could not stand alone.62 85 The respondent submits that the trial Judge gave detailed consideration to the appellant’s contentions regarding JM being told to keep the abuse secret and being given money. Further, the respondent submits that the emphasis placed on JM’s account does not engage with the well-known manner in which trauma impacts on memory, particularly that minor details in cases involving traumatic events such as intrafamilial child sexual abuse may often be of only peripheral significance. His Honour’s reasoning reflects that position, rather than reflecting a logical or material flaw in the reasoning process.63 Particular 1.2 – the merits 86 The trial Judge identified and dealt with the issues raised in this particular at [52]-[58] of the reasons. His Honour considered the omissions from the police statements as inconsequential and readily understandable. The difference between the prosecution opening and JM’s evidence regarding the denominations of notes in the jar was “a minor inconsistency”. These were conclusions that were plainly open to his Honour, and the appellant does not suggest to the contrary. 87 The appellant’s argument rests upon the narrow contention that the trial Judge did not consider the cumulative effect of the inconsistencies. At various points in the reasons, his Honour notes that he has considered an inconsistency in combination with other matters raised by the defence as going to JM’s credibility (see, for example, [138]). There is no reason to think that his Honour overlooked that possibility in respect of these alleged inconsistencies. Furthermore, at [158], his Honour expressly stated that he had considered the various criticisms of JM’s account individually and collectively, and that they had not caused him to have doubts about JM’s evidence. Particular 1.3 – the pornography – relevant evidence 88 JM gave evidence-in-chief that on the relevant occasion she was on a couch in the lounge room when the appellant walked away in the direction of his bedroom. She said:64 A. We ended up in the lounge room marked on P10 with the star on the lounge. At that time that's where I was. [The appellant] had walked away in the direction of his bedroom, I'm not sure how long he was in there for but when he came - when he came back he had magazines and DVDs. I thought at the time they were innocent until he brought them closer. They were pornography magazines and pornography DVDs. 62 Appeal ts 42-43. 63 Respondent’s written submissions, filed 6 September 2024, 8-9. 64 Trial ts 206-207. -- 29 of 39 -- [2024] SASCA 121 The Court 28 Q. I'm just going to stop you there if I can [JM]. I just want to take you back and ask you some questions what you were doing before [the appellant] walked away into his bedroom and retrieved the pornography. A. I was in the lounge room. I'm not a hundred-per-cent sure what I was doing. I remember waiting for [the appellant] to come back. I knew we were going to watch a movie because we put the blinds down for the night. ……. Q. When [the appellant] walked away from the lounge room, did you go with him or did you stay in the lounge room area. A. I'm not a hundred-per-cent sure. Q. In any event, did you make an observation that he went into his bedroom. A. Yes. Q. If you can recall, what did you see, if anything, of [the appellant] going into his bedroom. A. I'm not a hundred-per-cent sure if it was before or after this particular incident but I know that he went to his desk - that draw on the left-hand side of his bed. In the top drawer is where he kept the pornography. …… Q. And in terms of when you saw [the appellant] retrieving the pornography from that bedside table, do you have a memory of whether that observation was made during the sleepover that we're now talking about or is that on another occasion. A. It's during the sleepover. Q. Did you also go into [the appellant’s] room that night during the sleepover when he went to retrieve the pornography. A. I did go into his bedroom. Q. After the pornography had been retrieved from [the appellant’s] bedroom, where did you then go. A. The lounge room. We were in the lounge room. 89 In cross-examination, JM was questioned as to where she was sitting when she made the observations regarding where the appellant had retrieved the pornography:65 Q. You accept this, don't you, that if you were sitting in the lounge room of [the appellant’s] house at Renmark, on the couch, for example, you wouldn't be able to see someone going to [the appellant’s] bedroom. 65 Trial ts 238. -- 30 of 39 -- [2024] SASCA 121 The Court 29 A. No, if I was on the couch I would not be able to see [the appellant’s] room. Q. And so if you remained - I'm just asking you to assume this - if you had remained on the couch in the lounge room on the night of the sleepover, as you told the police in your first and second statements, you wouldn't have known where those DVDs and magazines had been retrieved by [the appellant] from, would you. A. No. If I was sitting on the couch I wouldn't know where they were. Q. And short of him producing the DVDs and the magazines and telling you where he got them from, they could realistically have been retrieved from anywhere in the house other than the lounge room, if you'd been sitting there that whole time. A. Hypothetically, yes. ….. Q. Have you ever been given any information by anyone to the effect that [the appellant] had pornographic magazines and DVDs in his bedroom at the Renmark house. A. No. Q. No-one has ever told you about that. A. No. 90 Later in cross-examination, it was put to JM that she had changed her position in her evidence as to whether she had remained on the couch or whether she had gone with the appellant to his room. She was then asked:66 Q. What led to the change in your recollection or your position about whether you went in there or not. A. At the recollection of where the pornography was located, without going into his bedroom, without following him, I would have no way of knowing where the pornography is. I observed that he grabbed those pornography and DVDs from out of his drawer where they were located. Q. Well, you might, for example, know if there were those types of thing in his bedroom if you'd looked around in his bedroom when you were house-sitting, for example. A. No, I did not snoop, as referred to as snooping, in his room. I had no way of knowing where the magazines or the DVDs were at the time, and if I had found any of them, there would be no way of knowing, again, where they were. 91 It was then put to JM that she had not told the police that she knew the location from which the appellant had retrieved the magazines and DVDs. JM said that she believed that she had told the police. Counsel then said that he did not challenge that JM had told the police ‘in a certain way about the location of the 66 Trial ts 300. -- 31 of 39 -- [2024] SASCA 121 The Court 30 pornography’ but suggested that this information had not found its way into any of her affidavits.67 The matter was left unresolved. Particular 1.3 – the submissions on appeal 92 The appellant submits that JM was inconsistent in her evidence as to whether she had remained on the couch in the lounge room or had followed the appellant to his bedroom. The appellant says that the trial Judge failed to make any finding or engage in any transparent reasoning process that demonstrated how the inconsistency was evaluated or resolved.68 In oral submissions counsel accepted that this point could also not stand alone.69 93 The respondent submits that the trial Judge set out how he dealt with the location of the pornography and his acceptance of JM’s evidence that she had not inadvertently discovered it on another occasion. His Honour also noted that the location of pornography later found by the police was consistent with JM’s account.70 Particular 1.3 – the merits 94 The trial Judge dealt with the issue of the location of the pornography at [69]-[84]. His Honour referred in detail to the submissions made by the defence as to the existence of inconsistency and the possibility that JM’s evidence was contaminated by being told where the police had located the pornography. He also referred to a prosecution submission that he should accept JM’s explanation for not including detail about going into the bedroom in her statement to the police because she was very emotional when she gave her statement and simply missed that detail. When she later reviewed her evidence, she recalled that she did go to the bedroom, because without doing so she would not have known where the pornographic magazines and videos were. 95 The trial Judge concluded this section by stating that he accepted JM’s evidence that she did not stumble across the pornography at some other time and that she was not told where the police later located it. He then stated that the location where the police located the pornography is consistent with JM’s account of where she saw the appellant get it from. 96 Although not stated in express terms, the necessary implication is that the trial Judge accepted that JM did follow the appellant to his room and saw where the appellant retrieved the pornography from. The fact that that location was where police later found the pornography was relevant because it was consistent with JM’s evidence. These findings overcome the effect of any inconsistencies. Plainly, his Honour did not overlook the inconsistencies or fail to deal with them. Rather, the findings he made meant that those apparent inconsistencies did not 67 Trial ts 300-301. 68 Appellant’s written submissions, filed 23 August 2024, 17. 69 Trial ts 42-43. 70 Respondent’s written submissions, filed 6 September 2024, 9. -- 32 of 39 -- [2024] SASCA 121 The Court 31 detract from the credibility of JM because her evidence in this respect was accepted. Particular 1.4 97 This particular was abandoned. Particular 1.5 – the inheritance and the penis photograph – relevant evidence 98 In evidence-in-chief, JM said that when she received the photograph of the appellant’s penis, she felt embarrassed and wanted to get it off her phone as soon as possible. She said that she was scared that if someone found out that she had something of this nature on her telephone, she would lose her spot at university. She said that she deleted the photograph and the message soon after she received them.71 99 In cross-examination, JM agreed that she was aware that her sister, SRM, had alleged that she (SRM) had seen a picture of the appellant’s penis on his phone at some stage. JM was unsure as to whether she had that information prior to providing her first statement to the police. She accepted in cross-examination that her mobile telephone was password protected at the time she received the photograph.72 100 In her evidence, JM said that after sending her the photograph the appellant sent her a text requesting that she send a return photograph of herself. She was asked in cross-examination if she had previously said this to the police:73 Q. Do you accept that you've never, in any of your police statements, ever suggested that [the appellant] requested you to send a photograph of yourself. A. I don't remember saying whether or not I did or I didn't. Q. Is that something you clearly remember; him asking you to send something of yourself. A. It's something that I do remember. Q. And that, you accept, would have been an important detail to include in any one of your six affidavits that you gave to the police. A. Yes. Q. Can you just tell us about, as best you can remember, the sequence of any photos or messages you received and anything you sent back to [the appellant] on the occasion in question that we're talking about. A. Are you referring to the whole conversation? 71 Trial ts 224-225. 72 Trial ts 258, 282. 73 Trial ts 279-280. -- 33 of 39 -- [2024] SASCA 121 The Court 32 Q. From the moment you get what you say was a picture of a penis on your phone, tell us what happened back and forth in that message exchange. A. My recollection of the incidents that I remember is asking whether or not I wanted to see it. I don't remember exactly what I said afterwards. I wasn't sure he was going to send a picture of his penis or anything. I believe I agreed. I'm not sure what I said exactly. He sent the photo. My recollection is that he then asked whether or not I would send anything. I believe I said 'No' and then I asked him to delete it. That's my recollection. Q. The first time that you mentioned, in any of your statements, a suggestion that you asked [the appellant] to delete the item at his end was in a statement that you signed on 14 March this year. A. Yes. Q. You accept that. Out of fairness to you, you mentioned that - I suggest, that bit of information, on 9 February this year, the suggestion that you had asked [the appellant] to delete the photograph. A. Sorry? Q. Do you accept that the first time you mentioned any suggestion of you asking [the appellant] to delete the message or the photograph was on 9 February this year. A. I'm not sure. Q. And what do you say you asked him to delete; the photograph, the text message, both, or something different. A. I'm not sure exactly what I asked him to delete but I know he deleted what I asked him to delete. 101 As regards to the inheritance conversation, the defence tendered text messages between the appellant and JM that were exchanged in December 2020 and January 202174 as well as Facebook messages in March 2021.75 These messages consisted of innocuous pleasantries or emojis. Particular 1.5 – submissions 102 The appellant submits that the defence criticisms of this evidence were treated in a piecemeal fashion. Further, the appellant contends that the trial Judge did not deal with the fact that JM had never mentioned in her affidavits that the appellant had asked her to send a photograph of herself, the risk involved in the appellant’s alleged behaviour, the unlikelihood that a stranger could view JM’s telephone given that it was password protected and the significance of amicable text messages and Facebook interactions between the appellant and JM.76 74 Exhibit D13. 75 Exhibit D14. 76 Appellant’s written submissions, filed 23 August 2024, 19. -- 34 of 39 -- [2024] SASCA 121 The Court 33 103 The respondent submits that the trial Judge adequately dealt with each of the matters raised by the appellant.77 Particular 1.5 – the merits 104 The trial Judge dealt with the sexual attraction or uncharged acts evidence at [95]-[112]. His Honour made express reference to each of the matters referred to by the appellant. He rejected the contention that it was unlikely that the appellant would have sent the penis photograph, noting that it was not uncommon for this type of brazen conduct to occur in connection with offending of this nature. He accepted JM’s evidence that she felt compromised by receipt of the photograph, notwithstanding that her telephone was password protected. He did not accept the defence submissions regarding the text and Facebook messages, noting that JM had conflicting feelings about the appellant. 105 As to the suggestion that the trial Judge failed to deal with the fact that JM had not referred in her police statement to some aspects of the interaction with the appellant regarding the penis photograph, in particular whether she would send a photograph in return, this issue was expressly referred to at [96] of the reasons. His Honour noted that JM had agreed in cross-examination that she had not referred to these details in her police statements. Later (at [101]), his Honour noted that the defence submitted that the inheritance proposition and the penis photograph had relevance because they adversely affected JM’s credibility. It is apparent from this that his Honour did not overlook the suggested significance of this evidence. 106 Whilst the trial Judge expressly rejected some of the other defence arguments, he did not state in terms that the fact that JM had not referred to some details in her police statements was inconsequential. That, however, is the necessary implication that is to be drawn from his reference to that contention and his conclusion that JM’s evidence should be accepted. Sometimes a critical argument will need to be dealt with in detail in reasons. However, a trial judge is not required to engage in a formulaic process of ticking off each and every sub-argument raised by a party. A minute explanation of every step in the reasoning process is not required. The reasoning process was readily apparent here – the trial Judge did not accept that the alleged inconsistencies detracted from JM’s evidence and her explanation for those inconsistencies was credible. Ground 1 – conclusion 107 As has been previously noted, it is not necessary for a trial judge to deal with every aspect of the disputed facts. What is required depends on the circumstances of the particular case. 108 The trial Judge in this case approached his task in a systematic and careful manner. He considered and dealt with each of the contentions raised by the 77 Respondent’s written submissions, filed 6 September 2024, 9. -- 35 of 39 -- [2024] SASCA 121 The Court 34 appellant as to why he should not accept the evidence of JM. It is inaccurate to suggest that the trial Judge’s reasons were flawed because he dealt with each alleged inconsistency individually. He did, quite properly, do that, but he also did more. He repeatedly stated that he had considered the combined effect of the alleged inconsistencies in coming to a conclusion regarding the credibility and reliability of JM – see [33], [58], [63], [93], [111], [138] and [158]. 109 The reasons in this case were much more than a bare statement of the principles of law applied and the findings of fact made. There was an exposition of the reasoning process linking the findings to the legal principles and justifying the verdict that was reached. The reasons identified the relevant principles of law, referred to relevant evidence, stated the Judge’s findings upon material questions of fact and provided an explanation for those findings and the ultimate conclusions reached by the Judge. When the reasons are considered as a whole, and having regard to the forensic issues at the trial, the contention that they were inadequate must fail. Ground 2 – relevant legal principles 110 Evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, may be admitted for a permissible use pursuant to s 34P of the Evidence Act. Permissible uses may include proof that the defendant has a particular propensity or disposition as circumstantial evidence of a fact in issue. 111 Where discreditable conduct evidence is admitted pursuant to s 34P the trial judge must identify and explain the purpose for which the evidence may, and may not, be used: s 34R. The direction is required both in a jury trial and in a trial by judge alone. Such a direction is required to identify the relevant evidence and explain the permissible and impermissible uses.78 112 The nature and extent of directions will depend on the circumstances of the case and, in particular, the real issues in the trial. A trial judge is obliged to decide what the real issues in the case are and to direct a jury on only so much of the law as they need to know to guide them to a decision on those issues.79 This applies by analogy to directions that a trial judge is required to give in a trial by judge alone. The identification of the real issues will be informed by the conduct of the trial and the addresses of counsel, particularly the closing addresses.80 113 The purpose of the direction is to guard against an impermissible use of the evidence. That risk will only arise where the evidence is admitted for a permissible use. If the evidence is not admitted for any purpose, it is axiomatic that no occasion 78 Perara-Cathcart v The Queen [2017] HCA 9; 260 CLR 595. 79 Alford v Magee (1952) 85 CLR 437, 466. 80 JGS v The Queen [2020] SASFC 48, [97] (Lovell J). -- 36 of 39 -- [2024] SASCA 121 The Court 35 for the giving of a s 34R direction arises. If no permissible use of the evidence is ultimately relied on, then it would be inappropriate to suggest that such a use exists. Ground 2 – submissions 114 The appellant accepts that the trial Judge adequately identified and explained the impermissible use of the sexual attraction evidence, proscribed by s 34P(1). However, the appellant submits that his Honour at no stage directed himself as to the permissible use or uses of the inheritance proposition and the penis photograph evidence. His Honour’s failure to comply with the requirements of s 34R, is said to constitute an error of law.81 115 The appellant contends that to the extent the respondent suggests that the evidence was of limited significance and did not feature in any express way in the operative section of the trial Judge’s reasons, that this is no answer to the complaint that his Honour failed to comply with his obligations. The appellant accepts that the trial Judge said that he had not used the penis photograph or inheritance proposition evidence in any way to support JM’s account. However, the appellant submits that his Honour used his satisfaction as to that uncharged act evidence as a factor relevant to any inconsistency between JM and JLM on the topic of the shower incident. It is submitted that his Honour used the evidence to minimise or neutralise the challenge to JM’s credibility and reliability in a case that depended on satisfaction of both matters beyond reasonable doubt.82 116 The respondent submits that the trial Judge’s reasons reveal that he did not admit the sexual attraction evidence pursuant to s 34P. His Honour was not satisfied that the sexual attraction evidence met the test for admissibility under that section. The effect of that finding was that while the evidence was adduced it was not admitted in the prosecution case pursuant to s 34P, and 34R was therefore not engaged.83 117 At the appeal hearing the appellant advanced a different argument. That argument principally relied on something that the prosecutor had said in opening address at the trial. In opening the prosecutor had referred to the uncharged acts being used as relationship evidence or evidence to put into context the nature of the relationship between the appellant and JM. The prosecutor said that the evidence would be led for the purpose of ‘completing the picture of the alleged offending’ and, thereby, giving ‘the entire context of the charged offending’.84 It was submitted that this permissible use of the evidence was not mentioned by the trial Judge in his reasons. His conclusion that the evidence could not be used for a propensity purpose did not deal with this other permissible use.85 81 Appellant’s written submissions, filed 23 August 2024, 21. 82 Appellant’s written submissions, filed 23 August 2024, 21-22. 83 Respondent’s written submissions, filed 6 September 2024, 16-17. 84 Trial ts 59 85 Reasons at [25]. -- 37 of 39 -- [2024] SASCA 121 The Court 36 Ground 2 – the merits 118 The trial Judge summarised the parties’ positions and the uses for which both the prosecution and defence contended that the sexual attraction evidence could be used at [98]-[100]. It is apparent from this that the trial Judge understood the only permissible use of the sexual attraction evidence that was ultimately contended for by the prosecution was that the evidence established a relevant propensity, namely that the appellant was sexually attracted to JM. His Honour accepted that the evidence could be capable of establishing that the appellant was sexually attracted to JM when she was an adult. However, he said that this had very little probative value as to whether the appellant had been attracted to JM as a child. He concluded that the evidence was incapable of demonstrating a sexual attraction towards JM in the charged period. His Honour said in conclusion that he had “not used the evidence in any way to support JM’s evidence about the charged offending” (emphasis added). 119 The trial Judge then considered whether the evidence had relevance to an assessment of the credibility of the complainant, as had been suggested by defence counsel. The contention was that the evidence was inherently implausible and reflected on the complainant’s credibility more generally. This has been dealt with earlier in respect of ground 1 particular 1.5. To use the evidence in this way did not involve a permissible use of evidence admitted under s 34P. 120 Whilst the sexual attraction evidence was adduced at the trial as discreditable conduct evidence, the ultimate conclusion of the trial Judge was that it was not admissible under s 34P, and he expressly did not rely on it. If his Honour did not use this evidence in any way that was adverse to the appellant then there was no necessity to give a s 34R direction. That evidence was not admitted under s 34P. Having heard the evidence, it was appropriate that his Honour gave himself a direction, as he did at [100], not to engage in bare propensity reasoning, or bad person reasoning, however, there was no need to give any direction as to any permissible use under s 34P. 121 As to the suggestion that the trial Judge did not deal with the permissible use of the evidence as relationship evidence, this contention needs to be understood in the context of the trial. Beside brief mentions in the prosecutor’s opening and closing addresses, no express reference was made to reliance being placed on this evidence as relationship evidence. In the closing address, the prosecutor said that she did not intend to take his Honour through the uncharged acts evidence and that she had addressed that evidence and what use could be made of it at the start of the prosecution case. The possibility that the evidence could be used for any other purpose was not an issue that was afforded any attention by the parties in the course of the trial. Indeed, it is telling that the reference in the prosecutor’s opening address was entirely overlooked by counsel for the appellant (who was also trial counsel) until shortly before the appeal hearing, when it was pointed out by counsel for the respondent. In these circumstances it is unsurprising that it was not expressly referred to by his Honour. His Honour was entitled to take the view that -- 38 of 39 -- [2024] SASCA 121 The Court 37 the only basis on which the prosecution ultimately sought to rely on the sexual attraction evidence was as propensity evidence. 122 In any event, the statement by the trial Judge that he had not taken the evidence into account in any way adverse to the appellant must be taken at face value as meaning that the evidence was not admitted under s 34P for any purpose. Certainly, there is nothing in the reasons to indicate that the evidence was used by the trial Judge in any other way adverse to the appellant. The appellant sought to suggest that the evidence could have been used by his Honour as relationship evidence when he was considering what weight to give to the inconsistencies – but there is nothing in the reasons to support this suggestion. 123 The trial Judge only went on to consider whether the evidence was relevant to the credibility of the complainant, because he had been invited by the defence to do so. It may well be said that, absent an admissible basis under s 34P, it was not open to use the evidence in this way as there was no other proper basis for admission of the evidence. However, if this was an error it was one that only favoured the appellant. His Honour’s consideration of whether the evidence was inconsistent with the evidence given by the complainant (and for no other purpose), was an exercise that he was invited to undertake by the defence and one that could only assist the defence. It was not suggested by anyone that this evidence could support the credibility of the complainant and it was not used in that way. 124 Whilst we would grant permission to appeal on this ground (given the statements in the prosecution opening and closing addresses), on consideration of all of the circumstances of the trial it must fail. Conclusion 125 The trial Judge’s reasons were not inadequate and ground 1 fails. There was no necessity to give a s 34R direction in the circumstances of this case and ground 2 must also fail. We make the following orders: 1. Permission to appeal in respect of ground 2 is granted. 2. The appeal is dismissed. -- 39 of 39 --