JOEL MARC MILLER v THE KING [2024] SASCA 152

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) [2023] SADC 159 Appellant: JOEL MARC MILLER Counsel: MR D O’LEARY SC WITH MR B LODGE - Solicitor: OLIVIA FANTIS LEGAL Respondent: THE KING Counsel: MS T COSTI WITH MS A O’SULLIVAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/09/2024 File No/s: SCCRM-24-000061 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. MILLER v THE KING [2024] SASCA 152 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice McDonald and the Honourable Auxiliary Justice Hall) 20 December 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED 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 Appeal against conviction. On 22 November 2023, a judge sitting alone found the appellant guilty 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 prosecution case was that the appellant had engaged in various unlawful sexual acts with or towards the complainant between January 2000 and January 2006. At the start of the alleged offending, the complainant was 12 or 13 years old, and the appellant was around 28. The appellant raised six grounds of appeal to this Court: 1. whether the trial judge gave adequate reasons for verdict (Ground 1); 2. whether the trial judge’s reasoning to acceptance of the complainant’s evidence resulted in a miscarriage of justice (Ground 2); 3. whether the trial judge’s reasoning to rejection of the appellant’s evidence resulted in a miscarriage of justice (Ground 3); -- 1 of 13 -- 4. whether the trial judge failed to direct himself adequately with respect to the forensic disadvantage suffered by the appellant due to the passage of time between the alleged offending and the trial (Ground 4); 5. whether the trial judge failed to direct himself adequately in accordance with his obligations under s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 5); and 6. whether the trial judge should have disqualified himself because of a reasonable apprehension of bias (Ground 6). The prosecution led evidence of the complainant’s mother encountering the appellant with the complainant in a campervan while they were all on a holiday together in Queensland. The complainant said that when her mother discovered them, the appellant had his hands down her pants and moved them away. The mother’s evidence was that they were lying on two mattresses with their hands touching and that they jumped apart when she walked in. She did not see the appellant’s hands down the complainant’s pants. The judge said that he was ‘satisfied that that incident occurred as the complainant and her mother say’, notwithstanding the difference in accounts. The prosecution led various pieces of discreditable conduct evidence relevant to showing that the appellant had a sexual interest in the complainant. Held (by the Court), allowing the appeal on Grounds 1 and 5, setting aside the conviction and remitting the matter for retrial: 1. The trial judge erred by purporting to accept both the complainant’s and her mother’s accounts of the mother encountering in the campervan without differentiation and further explanation. The appellant was deprived of adequate reasons going to the resolution of a significant discrepancy in the evidence. Resolution of that discrepancy had potentially important consequences for the judge’s assessment of the credibility of the appellant. 2. The trial judge failed to identify and explain the impermissible purpose of discreditable conduct evidence led to show the appellant’s sexual interest in the complainant. In that regard he failed to comply with his with obligation under s 34R(1) of the Evidence Act, which constituted an error of law. 3. This is not a case for application of the proviso. Criminal Law Consolidation Act 1935 (SA) ss 50(1); Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 34P, 34R, referred to. DL v The Queen (2018) 266 CLR 1; Perara-Cathcart v The Queen (2017) 260 CLR 595; JGS v The Queen [2020] SASCFC 48; JGS v The Queen (No 2) (2022) 141 SASR 288; Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92 ; Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; GBF v The Queen (2020) 271 CLR 537; Kalbasi v Western Australia (2018) 264 CLR 62; Orreal v The Queen (2021) 274 CLR 630, considered. -- 2 of 13 -- MILLER v THE KING [2024] SASCA 152 Court of Appeal – Criminal: Bleby JA, McDonald and Hall AJJA 1 THE COURT: On 22 November 2023, a judge sitting alone found the appellant guilty 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 prosecution case was that the appellant engaged in various unlawful sexual acts with or towards the complainant, at various locations over a period of years, from when the complainant was 12 or 13 years old. The appellant was around 28 at the commencement of the alleged offending. 2 The appellant has sought leave to appeal on numerous grounds. Broadly, the issues arising on the appeal are: • whether the trial judge gave adequate reasons for verdict (Ground 1); • whether the trial judge’s reasoning to acceptance of the complainant’s evidence resulted in a miscarriage of justice (Ground 2); • whether the trial judge’s reasoning to rejection of the appellant’s evidence resulted in a miscarriage of justice (Ground 3); • whether the trial judge failed to direct himself adequately with respect to the forensic disadvantage suffered by the appellant due to the passage of time between the alleged offending and the trial (Ground 4); • whether the trial judge failed to direct himself adequately in accordance with his obligations under s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’) (Ground 5); and • whether the trial judge should have disqualified himself because of a reasonable apprehension of bias (Ground 6). 3 It is not necessary to address every ground of appeal. For the following reasons, the appellant has established error as particularised in parts of Grounds 1 and 5. This is not a case for application of the proviso. The appeal must be allowed, the conviction set aside, and the matter remitted for retrial. Background 4 When the complainant was around three years old, her parents separated. At about that time, the complainant’s mother became a member of the Woodside congregation of the Jehovah’s Witnesses. The complainant and her brother were later baptised into that faith. 5 The appellant was brought up as a member of the Jehovah’s Witnesses. It was in that community that he became associated with the complainant and her -- 3 of 13 -- [2024] SASCA 152 The Court 2 family. He became close friends with the complainant’s mother. He began to spend more time with the complainant’s family after the complainant’s father passed away, when the complainant was about ten. 6 The prosecution case, relying primarily on the complainant’s evidence, was that when the complainant was around 12 or 13 years old and going through puberty, her relationship with the appellant became sexual. The change in that relationship began with inappropriate flirtatious remarks and escalated to inappropriate touching and a series of sexual acts including penile/vaginal sexual intercourse. The offending occurred in several locations, including the complainant’s bedroom, in respect of which the appellant would call at the complainant’s bedroom window at night. The prosecution alleged that the offending did not stop until the occasion of a confrontation at the complainant’s family home, when the complainant was 16. The prosecution also alleged that the appellant made partial, implied admissions to the Elders of the church. 7 The appellant gave evidence denying the offending. It is not necessary, other than in the context of consideration of the grounds of appeal, to traverse where issue was joined. The appellant admitted to going to the complainant’s bedroom window on three occasions but gave evidence that this was for the purposes of counselling the complainant. Whether the trial judge gave adequate reasons for verdict (Ground 1) 8 This ground was particularised by several complaints of deficiency in the trial judge’s reasons. It is convenient to start with the complaints that the trial judge did not give adequate reasons for accepting the complainant as a credible and reliable witness (Particulars 1.1, 1.2 and 1.4). 9 The judge expressly found the complainant to be a credible and reliable witness. The overarching complaint is that he failed to explain why and how he reached this conclusion. The appellant focused on what he described as the only apparent expressed reason for this finding, being that the account was detailed. The judge said:1 Despite legitimate criticisms of her evidence, I found the complainant’s account of material facts credible and reliable. At 34 she was giving evidence of events when she was aged between 13 and 16, although she had given a detailed statement of her allegations in 2016 when she was 27. … The strength of the complainant’s evidence on material matters lies in its detail, often evidence of the surrounding circumstances. 10 The judge went on to indicate aspects of detail in the complainant’s evidence that he considered supported her credibility and reliability. The appellant’s essential complaint is premised on the proposition that it is unlikely that the judge would have accepted the complainant’s account simply on account of it being 1 R v Miller [2023] SADC 159 at [182]-[184]. -- 4 of 13 -- [2024] SASCA 152 The Court 3 detailed. That is particularly the case in circumstances where a number of aspects of detail in the complainant’s evidence were shown to be wrong. Given that the complainant’s credibility and reliability were the central forensic contest at trial, the appellant submitted that the trial judge was required, but failed, to explain why and how he concluded that she was credible and reliable. 11 It is helpful to consider that complaint in the context of specific aspects of the evidence that the appellant submitted damaged the complainant’s credibility. The appellant identified, in particulars 1.2 and 1.4 of this ground, several obstacles to accepting the credibility and reliability of the complainant that, in his submission, the trial judge did not address adequately or at all. 12 Briefly put, the asserted obstacles to accepting the complainant’s credibility and reliability were as follows: • there was an inconsistency in the complainant’s evidence about when she first performed fellatio on the appellant. In evidence in chief she said that it occurred in the breezeway outside her brother’s bedroom. She said in chief that the incident ended because she was uncomfortable and that her mother was inside, asleep. In cross examination, she said that she was worried that her mother might see what was happening. However, in 2016, she had said in a statement to police that her mother was not home when this incident occurred. The judge noted the inconsistency2 but did not, in the appellant’s submission, grapple with it in considering the complainant’s evidence about this event. The appellant submitted that this was an important surrounding circumstance of the alleged incident, as it concerned her state of mind at the time; • the complainant made an admittedly false allegation to her mother and the appellant’s sister-in-law that the appellant had burnt her genitals with hot coals. The judge said that this false allegation ‘cause[d] disquiet’ but concluded that the terms of the allegation were so extreme that they could only be the result of ‘crude attention seeking’. 3 The judge distinguished that extreme allegation from ‘the nuanced account of a long course of gradually escalating sexual conduct’.4 He expressed that he had regard to the effect of the evidence of the false allegation but said that he was not persuaded that it materially damaged the complainant’s credit overall. The appellant submitted that there were several aspects to the complainant’s explanation for making the false allegation that went beyond ‘attention seeking’. He complained that the reasons did not engage with the many-faceted explanation that the complainant gave. He also complained 2 [2023] SADC 159 at [164]. 3 [2023] SADC 159 at [239]. 4 [2023] SADC 159 at [239]. -- 5 of 13 -- [2024] SASCA 152 The Court 4 that the judge did not explain why it was not a reasonable possibility that the rest of the allegations were the result of attention seeking; • the appellant submitted that the evidence showed that the complainant had lied to Royal Adelaide Hospital staff about being sexually abused by her mother’s boyfriend. The hospital records recorded that the complainant had made a statement to this effect. However, on the evidence, neither the appellant nor anyone else could have been described as the complainant’s mother’s boyfriend. The appellant complained that the trial judge did not explain whether he accepted his case that the complainant had lied to hospital staff; • the complainant did not complain to her mother and brother about the offending when she said she did. The complainant’s mother did not say the complainant had told her on the night she said she did. The complainant’s brother directly contradicted the complainant’s account of telling him. The trial judge said it was ‘perfectly legitimate’ to put against the complainant’s credit that she was wrong about telling her mother and brother. However, he held that ‘it seems’ that the complainant made a disclosure the following day.5 This was an inference from the appellant having found out about the allegation from his own mother the following day. The appellant’s mother had visited the complainant’s mother that day. The judge also noted the complainant’s qualified answer to the challenge about having told her brother (‘I think I told him…’).6 As to the brother’s evidence, the judge said:7 I do not overlook what could be described as a somewhat detailed account, in her own examination-in-chief, of the conversation she said she had with her brother that night, but there is no doubt that something she said in his presence made him think that he was witnessing a lover’s squabble. I do not think that the accused’s wrongful account of complaint to her family on the confrontation night substantially damages her credit. The appellant complained that this did not amount to an explanation of why the judge was able to reject the reasonable possibility that the complainant had lied about complaining to her brother and why, if she had done so, he was able to accept the balance of her account; • there was an inconsistency in the complainant’s account about what she was wearing on an occasion when she went to Maslins Beach with the appellant. She said in chief that she was wearing black board shorts. In her statement to police, she said that the appellant had bought her ‘tiny red swimming shorts’ and that he liked her wearing that because her ‘bum looked cheeky’. The judge said that the complainant’s credit was ‘not substantially damaged’ by this inconsistency.8 The appellant complained that the judge failed to 5 [2023] SADC 159 at [203]. 6 [2023] SADC 159 at [203]. 7 [2023] SADC 159 at [205]. 8 [2023] SADC 159 at [193]. -- 6 of 13 -- [2024] SASCA 152 The Court 5 consider the possibility that the evidence of going to Maslins Beach was a fabrication, given the inconsistency; • the complainant and her mother gave inconsistent evidence about an occasion when the appellant and the complaint’s family travelled together on a trip to Queensland. The complainant’s evidence, given in cross-examination, was that she was in the campervan with the appellant, having a ‘daytime sleep’. The appellant had his hands down the front of her pants. Her mum walked in and said, ‘what’s going on?’. The appellant moved his hands from her mother’s sight. The complainant’s mother’s evidence was that during the trip, she went into the campervan and saw the complainant and the appellant lying on two mattresses, touching hands. She said she did not see the appellant’s hands down the complainant’s pants. She said that the complainant and the appellant ‘jumped apart’ when she walked in. The trial judge said about the different accounts:9 In my view, the slightly different accounts by the complainant and her mother about what happened in the campervan do not damage the credit of either. The alleged incident is an uncharged act which occurred out of the jurisdiction, but in my view it is admissible as evidence of a sexual attraction the accused had towards the complainant. To be used for such a purpose, it must be proved beyond reasonable doubt. The accused denied the allegation. I bear in mind that the prosecution evidence on this topic must comply with s 34P. I find that it does. I am satisfied that that incident occurred as the complainant and her mother say. The appellant’s complaint here was relatively straightforward. He submitted that the last statement by the judge, above, demonstrated a failure to resolve the difference between the accounts. It was not possible to have accepted both. The judge did not resolve whether the appellant’s hands were down the complainant’s pants. Given the use to which the evidence was put, it was necessary to do so and, if the mother’s evidence was to be preferred, to then explain the effect of that on the complainant’s credibility. 13 It is not necessary to address all these complaints about the judge’s treatment of asserted obstacles to accepting the complainant’s credibility and reliability. It is sufficient, for present purposes, to address the last of those listed above, being the competing accounts of what occurred in the campervan. 14 The respondent submitted that the relevance of the campervan evidence lay not in the proof of precisely what happened but in what the conduct said about the nature of the relationship between the appellant and the complainant. Specifically, the evidence was led, and accepted, as evidence of the appellant’s sexual attraction to the complainant, and his willingness to act upon it. The respondent submitted 9 [2023] SADC 159 at [217]-[218]. -- 7 of 13 -- [2024] SASCA 152 The Court 6 that the ‘salient’ feature of the evidence was the mother’s observation of an act of touching and the subsequent conduct, upon discovery, consistent with the furtive nature of what was occurring. The precise nature of the touching was not, in the respondent’s submission, relevant or determinative of the episode being used permissibly. 15 We disagree. While we accept that either act of touching would be probative of the appellant’s sexual interest in the complainant, a finding that the appellant’s hands were down the complainant’s pants is qualitatively probative of not only a sexual interest, but also a preparedness to act on it, in a way that merely touching hands is not. The difference in accounts was not, on its face, slight. 16 Further, we accept the appellant’s complaint that the judge, by failing to determine which of the accounts he accepted by reference to that difference, and by purporting to accept both, failed to resolve a matter that was highly relevant to the complainant’s credibility and reliability. If the judge accepted the mother’s account, it was necessary to explain the consequence of that to the complainant’s account and bring to bear that consequence to his assessment of the complainant’s credibility. 17 In DL v The Queen, the plurality observed:10 The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal. (Footnotes omitted) 18 In the same case, Nettle J (in dissent as to the result) emphasised the importance of a trial judge exposing the reasoning on points that are critical to matters in dispute:11 Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing 10 DL v The Queen (2018) 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ). 11 (2018) 266 CLR 1 at [131]. -- 8 of 13 -- [2024] SASCA 152 The Court 7 reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law. (Footnotes omitted) 19 In the present case, the appellant denied that any incident in the campervan occurred. However, the relevant contest was not merely about whether an incident did or did not occur. The complainant’s account, if accepted, was particularly probative of the appellant’s willingness to act on a sexual attraction towards the complainant. A rejection of that account had potential consequences for the inference to be drawn to that end, but also for findings about the complainant’s credibility. It was insufficient for the judge to express acceptance of both the complainant’s and the mother’s evidence without further explanation of what he meant by that, and a consequential explanation of the effect of accepting the mother’s evidence on the complainant’s credibility. 20 By purporting simply to accept both accounts without differentiation, the judge erred. The consequence is that the appellant was deprived of adequate reasons on the resolution of a significant discrepancy in the evidence. Resolution of that discrepancy had potentially important consequences for the judge’s assessment of the credibility of the appellant. Whether the trial judge failed to direct himself adequately in accordance with his obligations under s 34R of the Evidence Act (Ground 5) 21 It is convenient next to consider Ground 5, as this ground is connected to Ground 1.6, considered immediately above. The appellant complained that the trial judge failed, in several instances, to comply with the requirement in s 34R(1) of the Evidence Act that he explain and identify the purpose for which certain pieces of discreditable conduct evidence may and may not be used. 22 Sections 34P and 34R respectively provide, relevantly: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— -- 9 of 13 -- [2024] SASCA 152 The Court 8 (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. … 34R—Trial directions (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. 23 The appellant submitted that in a number of instances, the trial judge failed to give himself a direction in accordance with s 34R(1) as to the impermissible use of evidence of the appellant having a sexual interest in the complainant. The first of these concerned the evidence of the campervan incident in Queensland. 24 The trial judge had, as identified above, expressly identified the relevance of this evidence, being to show that the appellant had a sexual attraction to the complainant. Relevant to his obligation under s 34R(1), he then said only this:12 To be used for such a purpose, it must be proved beyond reasonable doubt. The accused denied the allegation. I bear in mind that the prosecution evidence on this topic must comply with s 34P. I find that it does. 25 Next, there was evidence that the appellant had admitted to Church Elders that he had touched the complainant’s breasts. This was in the context of the Elders determining whether to reinstate him to the church, in 2006. Relevantly, in respect of this evidence, the judge said:13 It is true, as the defence submits, that the touching of the breasts is not a charged act. However, the evidence is capable of demonstrating a sexual interest the accused had for the complainant. I find that this evidence complies with s 34P of the Evidence Act. 26 Third, the complainant gave evidence of a trip to Maslins Beach. She said that the appellant had ‘bathing G-strings’ for her and asked her to shave her pubic hair in preparation. The judge said in respect of that evidence:14 That visit to Maslins Beach is uncharged, but it is evidence capable of showing a sexual interest in the complainant. To be admissible it would have to be proved beyond reasonable doubt. I bear in mind the impermissible uses of uncharged acts. I am satisfied of the truth of the complainant’s evidence on this topic. 12 [2023] SADC 159 at [217]. 13 [2023] SADC 159 at [256]. 14 [2023] SADC 159 at [192]. -- 10 of 13 -- [2024] SASCA 152 The Court 9 27 The appellant submitted that the judge did not, in any of these treatments of the various pieces of discreditable conduct evidence, identify or explain the purpose for which the evidence may not be used. That constituted a failure to comply with s 34R(1), which was an error of law. 28 The respondent approached this complaint by observing that the evidence in each of these instances was relevant and admissible to establish the appellant’s sexual attraction and his willingness to act on that attraction, which was the basis on which the judge admitted each piece of evidence. The only identifiable impermissible use was ‘bad person’ reasoning prohibited by s 34P(1)(a). The respondent submitted that the judge specifically referred to that impermissible use either directly, in the case of the Maslins Beach trip, or ‘by reference to s 34P’ in the case of the other incidents. 29 In Perara-Cathcart v The Queen, The High Court said:15 A sufficient direction under s 34R(1) must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Compliance with s 34R is mandatory. Whether there has been compliance with s 34R(1) will depend on the circumstances of the case. (Footnotes omitted) 30 The obligation under s 34R(1) is framed by the real issues at trial. In JGS v The Queen, Lovell J said:16 As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use. (Footnote omitted) 31 The real issue at trial was whether the offending had occurred at all. The contest was one of credit. Compliance with s 34R(1) required the judge to ‘identify and explain’ the impermissible use of evidence led to show that the appellant had a sexual interest in the complainant and was prepared to act on it. As the respondent pointed out, the only impermissible use requiring identification was simple ‘bad person’ reasoning. 32 The judge’s allusion to the impermissible use in the case of the Maslins Beach incident did not actually constitute an identification or explanation of that use. It simply identified that there was an impermissible use. Given that there was 15 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [51]. 16 [2020] SASCFC 48 at [97]. -- 11 of 13 -- [2024] SASCA 152 The Court 10 only one conceivable impermissible use of the evidence, the respondent’s submission that the judge said enough in respect of that evidence has some force. It might be inferred on this account that there can be no real concern that the judge did not understand the use to which the evidence could not be put. However, s 34R(1) is mandatory. The observation of Lovell J in JGS v The Queen,17 above, is still premised on the judge having said something that can be taken, contextually, to have met that requirement. On that premise, it is difficult to accept that what the judge said in the case of the Maslins Beach incident was sufficient to comply with the section. 33 In any event, the judge’s treatment of the other two pieces of discreditable conduct evidence did not, on any view, comply with s 34R(1). In each case, the judge relevantly said words to the effect that the evidence ‘complies’ with s 34P of the Evidence Act. That does not constitute an identification or explanation of the impermissible use of that evidence. On its face, it appears to announce only that there is a permissible use for which the evidence may, as discreditable conduct evidence, be admitted. 34 Section 34R(1) does not necessarily require much by way of exposition on the part of a trial judge, sitting alone, to explain the permissible and impermissible uses of discreditable conduct evidence. However, it does nonetheless impose a requirement, the failure to comply with which is an error of law. While full credit should be given to a judge’s approach to framing a direction in accordance with s 34R(1), the impermissible purpose must still be identified and explained. Here, it was not. In our view, the judge failed in this regard to comply with his obligations under s 34R(1). That failure constituted an error of law. Application of the proviso 35 It follows from the above that we accept the appellant’s complaint about the inadequacy of reasons in the judge’s treatment of the campervan evidence in Ground 1 and the failure to comply with s 34R(1) in Ground 5. While there are several other complaints raised on appeal, these conclusions are sufficient to dispose of the appeal as, for the following reasons, application of the proviso is not warranted. 36 The question of whether no substantial miscarriage of justice has actually occurred18 requires the Court to consider whether it can be satisfied that notwithstanding the identified error, the same verdict would have been returned in any event.19 This case turned significantly on the contested credibility and reliability of the complainant. In Boyle (a pseudonym) v The Queen, this Court said:20 17 [2020] SASCFC 48 at [97]. 18 Criminal Procedure Act 1921 (SA) s 158(2). 19 JGS v The Queen (No 2) (2022) 141 SASR 288 at [188]. 20 Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92 at [145]. -- 12 of 13 -- [2024] SASCA 152 The Court 11 The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.21 In Kalbasi v Western Australia,22 Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.23 (Footnotes in original) 37 Application of the proviso requires the appellate court to consider the whole of the record of the trial and be persuaded that the evidence properly admitted at trial establishes guilt to the requisite standard. It must consider the nature and effect of the error giving rise to the miscarriage of justice in the particular case. Some errors will prevent the Court from being able to assess whether guilt was so proved.24 In particular:25 Where proof of guilt is wholly dependent on acceptance of the complainant’s evidence, and a misdirection may have affected that acceptance, the appellate court cannot accord the weight to the verdict of guilty which it otherwise might. (Footnote omitted) 38 In the present case, the failure of the judge to direct himself in accordance with s 34R(1) leaves this Court in a position of not knowing whether he used that evidence impermissibly. In addition, the judge’s failure to explain his treatment of the campervan evidence adequately meant, first of all, that the appellant could not know how the judge resolved a significant discrepancy in the evidence. That discrepancy was itself important to the assessment of the complainant’s credibility. In those circumstances, this Court cannot place weight on the verdicts. Having regard to the contest of credibility at the heart of the trial, the Court is not in a position to conclude that the appellant’s guilt was established beyond reasonable doubt. Conclusion 39 We allow the appeal, quash the conviction and remit the matter for retrial. 21 Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]-[37]; GBF v The Queen (2020) 271 CLR 537. 22 (2018) 264 CLR 62. 23 Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. 24 Orreal v The Queen (2021) 274 CLR 630 at [20]; [41]. 25 Orreal v The Queen (2021) 274 CLR 630 at [42]. -- 13 of 13 --