KEENAN (A PSEUDONYM) v THE KING [2023] SASCA 141

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) [2023] SADC 82 Applicant: KEENAN (A PSEUDONYM) Counsel: MR S HENCHLIFFE KC - Solicitor: CRAIG CALDICOTT LAWYERS Respondent: THE KING Counsel: MS K INGLETON WITH MR M DE LORME - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 13/12/2023 File No/s: SCCRM-23-027620 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. KEENAN (A PSEUDONYM) v THE KING [2023] SASCA 141 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David) 21 December 2023 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - IN GENERAL CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES This is an appeal against conviction. Following a trial by judge alone, the applicant, was convicted of one count of unlawful (digital) sexual intercourse with a person under 17 years, and two counts of indecent assault contrary to ss 49(3) and 56(1) of the Criminal Law Consolidation Act 1935 (SA). The alleged offending took place on 2 April 2021, on a farming property in the Adelaide Hills. The property hosted a restaurant and several hundred sheep which the applicant agisted. The applicant was the manager of the restaurant, where the complainant also worked. On that day, the complainant -- 1 of 13 -- attended the farm with the applicant along with the owner of the restaurant and various members of their families to pick grapes for wine. The complainant was 15 years of age at the time of the alleged offending. At trial, she testified that following the grape picking, the applicant requested they go for a drive together to pick up his motorbike. He drove her from the restaurant to a nearby water tank located on the property. He then parked at a water trough a short distance from the tank and sexually assaulted her. The applicant’s testimony at trial was different to that of the complainant. He testified that she volunteered to accompany him to the water trough in order for him to fix it and provide the sheep with water. Upon arriving at the tank, he asked the complainant to climb onto the top of it to hold a hose to enable him to siphon water from the tank to the nearby trough. He denied any sexual contact between himself and the complainant. The complainant denied any conversation with the applicant about providing the sheep with water or about any siphoning from the water tank to the trough. She alleged that when at the water tank, the applicant remained in the car while she climbed the tank to better view the sunset, and that the applicant exited the vehicle for the first time while at the trough after the offending had occurred. The applicant’s appeal submits a miscarriage of justice arising from inadequate, unsound or unfair reasoning by the Judge in reaching her verdict. In particular that the Judge erred in resolving the issues of why the complainant climbed to the top of the water tank, and what the appellant did whist he was at the water trough. Held per Kourakis CJ (Bleby and David JJA agreeing), granting permission to appeal, allowing the appeal, setting aside the conviction and ordering a new trial: 1. Whether the applicant went to the trough for the purpose of repairing it or to siphon water from the tank, affected the credibility, and inherent probability of the account of the applicant and the complainant as to what occurred there. 2. The Judge’s finding as to the improbability of a person having the requisite lung capacity to draw water through a 40-50 metre hose from a tank was not based on any evidence adduced at trial and was not a fact on which judicial notice should be taken. 3. The Judge’s finding that it was unlikely that the applicant could have siphoned water from the tank necessarily required the rejection of, or at least substantially undermined, the applicant’s testimony resulting in her making an adverse credibility finding against him. 4. There has therefore been a miscarriage of justice. 5. This court cannot rely on the trial Judge’s rejection of the applicant's testimony, nor can it be satisfied on a bare reading of the transcript that the offences have been proved beyond reasonable doubt for the purposes of applying the proviso. Accordingly, the proviso cannot be applied. Criminal Law Consolidation Act 1935 (SA) ss 49(3), 56(1), referred to. R v K [2023] SADC 28; Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92, considered. -- 2 of 13 -- KEENAN (A PSEUDONYM) v THE KING [2023] SASCA 141 Court of Appeal: Kourakis CJ, Bleby and David JJA 1 KOURAKIS CJ: The applicant, was convicted in the District Court after a trial by judge alone that on 2 April 2021 he had unlawful (digital) sexual intercourse with C1 and on two counts of indecently assaulting C by kissing her and squeezing her left breast.2 The applicant was the manager of a restaurant on a farming property in the Adelaide Hills. The owner, PS, also worked in the restaurant as did C, who was then aged 15 years. 2 On Good Friday, 2 April 2021, C, C’s family, the applicant, the applicant’s family, PS, and others who were connected to the restaurant spent the day picking grapes so that the applicant could make some wine. At the end of the day, the applicant and C drove in the applicant’s ute to a paddock on the farm where the applicant agisted several hundred sheep. There was a water trough in the paddock which was fed from a nearby concrete water tank. C testified that it was at the water trough that the offences were committed. The applicant denied that he had any sexual contact with C. 3 The prosecution case rested primarily on C’s testimony. C testified that the applicant asked her to accompany him to the trough on which he intended to carry out some repairs. The applicant testified that he intended to, and did, fill the trough by siphoning water from the tank. C denied that the applicant siphoned water from the tank. The prosecution case included circumstantial evidence which tended to show that the applicant had a sexual interest in C, including occasions on which he touched her suggestively at work, and exchanges of text and Snapchat messages between them. 4 The prosecution led evidence too that on 4 April 2021, the applicant sent C a Snapchat message which asked, ‘have you told anyone’, and that a week or two after Good Friday, the applicant told C that he was sorry for what had happened. The prosecution also called evidence of a complaint made by C to her friend, AB, on 3 April 2021. 5 The applicant appeals on the ground that there has been a miscarriage of justice occasioned by three instances of inadequate, unsound or unfair reasoning employed by the Judge in reaching her verdict: 1. A miscarriage of justice resulted from inadequate, unsound, and unfair reasoning processes employed by the learned trial Judge in resolving disputed factual issues in the trial. Particulars 1 Contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). 2 Contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA). -- 3 of 13 -- [2023] SASCA 141 Kourakis CJ 2 1.1 The learned trial Judge erred in resolving the issues of why the complainant climbed up to the top of the water tank and what the appellant did whilst he was at the water trough (at [88] to [102]). 1.1.1 By drawing an inference at [97] that it was physically unlikely that the appellant could have syphoned water through a hose from the water tank to the water trough, as he said in his evidence. The appellant’s evidence that he did this was not challenged in cross-examination, or closing addresses, by the prosecutor or the Judge. By drawing the inference the Judge did, she denied the appellant procedural fairness. Furthermore, the inference she drew was unsound and could not reasonably be drawn on the evidence at the trial. 1.1.2 By wrongly reasoning at [98] that if the appellant required assistance to commence the water syphoning process, that was inconsistent with his evidence he did not ask the complainant to accompany him. In fact, it was not inconsistent with the appellant’s evidence (see T158-159, 161, 172). 1.2 The learned trial Judge erred in her consideration of the complainant’s inconsistent versions of where and when the appellant asked her if she was ticklish, which was alleged to have occurred immediately before the offending conduct. 1.2.1 The complainant’s versions of where and when the “ticklish” conversation occurred were irreconcilable. The first version was made in her first statement to police, over 2 months after the alleged events. The second, inconsistent, version was given by her in evidence almost 2 years later. 1.2.2 The complainant’s explanation why she told the police an incorrect version, and why what she said now was correct, was illogical and unconvincing. The Judge’s acceptance of the explanation at [102] was unreasonable. 1.2.3 The Judge erred at [102] in her assessment of the significance of the inconsistency, in finding that it was not of great moment and by accepting the version described by the complainant in her evidence. 1.3 The learned trial Judge erred in her consideration at [111] – [114] of the evidence given by the complainant and the witness AB, concerning initial complaint. 1.3.1 The Judge’s reasons for discounting the inconsistencies in the terms of the initial complaint, between what the complainant said she told AB, and what AB said she was told by complainant, were unsound, unconvincing, not based on evidence and involved speculation. 1.3.2 The Judge erred by failing to provide any reasons why she could dismiss the inconsistency between AB’s evidence, that the complainant told her she was kissed by the appellant before he placed his hands down her pants, and the complainant’s evidence that those events occurred in reverse order, and that she had told AB this. -- 4 of 13 -- [2023] SASCA 141 Kourakis CJ 3 6 I would allow the appeal on Ground 1.1 of the particularised grounds. Whether the applicant went to the trough for the purpose of repairing it or to siphon water from the tank, affected the credibility, and inherent probability, of the accounts of the applicant and C as to what occurred there. The Judge’s finding that it was unlikely that the applicant could have siphoned water from the tank necessarily required the rejection of, or at least substantially undermined, the applicant’s testimony. However, the finding was not supported by any evidence and was not a fact of which judicial notice could be taken. 7 I would find that there was no miscarriage of justice occasioned by Ground 1.2 and 1.3 of the particulars. The inconsistencies of which the applicant complains, are commonly encountered in sexual assault trials and are often the result of a witness’s imperfect perception of events, memory of the events, or both. It was open to the Judge in the circumstances of this case to find that the inconsistencies were not material and did not detract from C’s credibility or reliability. 8 The respondent contends that the proviso should be applied. However, the factual error particularised in Ground 1.1 ground necessarily affects the assessment of the applicant’s credibility. It follows that this Court cannot rely on the trial Judge’s rejection of the applicant’s testimony for the purposes of applying the proviso. This Court cannot be satisfied on a bare reading of the transcript of C’s evidence that the offences have been proved beyond reasonable doubt notwithstanding the applicant’s denials. Accordingly, the proviso cannot be applied. 9 I would grant permission to appeal, allow the appeal, set aside the convictions and order a new trial. The evidence 10 I confine my narrative to the accounts of the applicant and C concerning their visit to the tank and trough. 11 The applicant gave evidence that at about 4:30pm after completing the picking and crushing of the grapes, he sat around the pizza ovens with other grape pickers. Some of them left, leaving him there with PS, C, and C’s father. The applicant went to the supermarket to make some purchases and returned to the restaurant at about 6:10pm. 12 C testified that after the picking of the grapes, she slept for a short time. Shortly after she woke up, she was sitting down at the restaurant with the owner. The applicant pulled up in his car and asked her if she wanted to come for a drive to pick up his motorbike. C testified that she agreed. 13 The applicant on the other hand, testified that when he returned from the supermarket, he told PS that he was driving to the paddock in which the sheep were kept to fill up the water trough. According to the applicant, C was in the -- 5 of 13 -- [2023] SASCA 141 Kourakis CJ 4 presence of PS at that moment and volunteered to accompany him. When C got into the car, he asked her if she would mind driving the ute if he were to ride his motorbike back from the vineyard where he had left it. C declined, explaining that she could not drive a manual. As a result, the applicant never retrieved his motorbike. 14 C denied volunteering to go for a drive with the applicant and denied any conversation about providing water to the sheep, but accepted that she had declined his’s invitation to drive the ute so that he could pick up his motorbike. C’s testimony as to the reason for going to the tank was:3 Q. Do you remember him, I suggest, saying something to [PS] along the lines that he was going to give the sheep water. A. No. Q. That he needed to give the sheep some water. A. No, he didn’t say that. Q. Do you remember that there was a conversation about the sheep needing water at least a bit later. A. No. Q. Do you say that didn’t happen. A. I’m pretty certain, yes. … Q. In any event, you say you don’t remember any discussion at all about the sheep and water or anything of that nature. A. No, I don’t recall. Q. Didn’t happen. A. No. Q. Anyway, I’m suggesting to you that whilst he was telling - that is, he, that is [the applicant] - was telling [PS] that he was going to give the sheep water, you then offered to come for a drive. A. No. Q. And it was, in fact, you that asked him whether you could come with him. A. That’s not true. 3 Trial transcript 51-52. -- 6 of 13 -- [2023] SASCA 141 Kourakis CJ 5 Q. And he said to you, didn’t he, at one stage, I suggest, that he wanted you to drive the car back so that he could pick up his motorbike. A. Yeah. … Q. And on that occasion he asked you if you could drive the car back so he could pick up his motorbike, but you said you couldn’t drive that car. A. Yeah. Q. Why did you say that. A. Because it was a manual. 15 C testified that when they arrived at the concrete tank on the hill, the applicant asked her how ticklish she was. C said she laughed the conversation off. She said she then got out of the car and climbed onto the tank to watch the sunset. 16 C’s testimony in relation to the applicant’s account that he asked her to help siphon water was as follows:4 Q. In any event, you then go with him to this tank area. A. Yeah. Q. Now, I need to ask you a bit more detail about this occasion where he stopped. You’ve told us that you end up on top of the tank. A. Yeah. Q. Can I suggest you’re on top of the tank because he asked for your help. A. No. Q. There was a pipe, wasn’t there, that was running from the top of the tank all the way down to the sheep trough. A. No. Q. And what he asked you to do was to hold that particular pipe so that he could engage at the other end, about 20 or 30 m away, to fill the trough. A. No, that’s not correct. Q. You saw him working in connection with the trough though, didn’t you. A. No. Q. What was he doing in relation to the trough. 4 Trial transcript 52-53. -- 7 of 13 -- [2023] SASCA 141 Kourakis CJ 6 A. When I was on the tank, he was still in the car. Q. What, you’re saying you were sitting on the tank and he just remained in the car. A. Yeah. Q. What was he doing. A. I don’t know. Q. Didn’t he go to the tank and the trough for a particular reason. A. No. Q. What was the reason you were at that location. A. I wouldn’t know. Q. Did you see him go near the trough. A. After he pulled up next to it. Q. Why did he go to the trough. A. To fix the trough. Q. To fill the trough. A. Fill the trough. Q. And he needed a pipe, didn’t he, to fill the trough. A. I wouldn’t know. Q. I’m suggesting to you that you didn’t go on top of this tank to watch the sunset. You attended on top of the tank to help him and at his request. A. No. Q. And what he did was he basically sucked on the other end of the hose in order to fill the trough. A. No. Q. And you were helping him, making sure that the other end was in the water, so to speak. A. No. Q. You deny that, do you. A. Yeah. Q. Do you say you didn’t do any of those things. A. No. -- 8 of 13 -- [2023] SASCA 141 Kourakis CJ 7 17 C testified that when she came down from the tank she returned to the ute before the applicant drove it to the trough to fix it. C testified that it was whilst sitting in the passenger seat of the ute when it was parked near the trough that the offending occurred. Only then did the applicant get out of the car to fix the trough. C testified that while he was fixing the trough, she remained in the ute on her phone because she did not know what else to do. When the applicant returned to the ute they drove back to the restaurant where they ate dinner. 18 The applicant’s evidence was that they drove to the tank and trough because the trough needed to be filled. He explained that a garden hose some 40 to 50 metres in length was left laying on the ground between them so that he could siphon water directly from the tank, because the pipe connecting the tank to the trough had rusted through. His testimony was:5 A. So we drove through the winery and up the raceway to the header tank and trough that needed to be filled. Q. So you refer to two separate locations, if I can put it that way, or two separate, the trough on the one hand and the tank on the other. A. Yes, that’s correct. Q. Why were you going there. A. The trough in question, the trough in what I call the lucerne paddock, there were sheep in the lucerne paddock and for a number of weeks, possibly a couple of months earlier, the trough, I hadn’t been able to get it to work. I tried with [PS] on a couple of occasions to unblock it. It was a rusty metal pipe and it worked for a short period and then stopped working. So, I had a garden hose up there and it was syphoning directly from the tank into the trough. 19 The applicant testified that he asked C to climb onto the top of the tank to hold the hose so that it would sit in the water properly and not come out whilst he siphoned it. He then reversed back to the raceway and parked his car opposite the gates to the lucerne paddock, approximately 20 metres away from the trough. He picked up the hose and walked to the trough where he started the siphoning process. He then told C that she could come down and she returned to the car. He cleaned the trough and remained there whilst it was filling. The whole process took about 35 to 40 minutes. He yanked the hose out of the tank to stop the water flowing. When he returned to the car C was in the passenger seat and might have been on her phone. He denied any sexual contact between himself and C. The Primary Judge’s reasons 20 The Judge acknowledged that the prosecution case rested primarily on C’s evidence. She correctly identified the question to be whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, ‘one or more 5 Trial transcript 159-160. -- 9 of 13 -- [2023] SASCA 141 Kourakis CJ 8 of the charges has been proved to the standard of beyond reasonable doubt’.6 Curiously, after accepting that the prosecution case rested primarily on C’s evidence, the Judge recorded that she had ‘not placed much weight on the demeanour of the witnesses’.7 Her Honour observed that there was nothing of concern about the complainant’s demeanour to cause her to consider her evidence adversely, explaining that her observation noted ‘an absence of a negative rather than a significant positive’. The Judge then moved to consider and address the defence submission that C’s account of getting out of the car to climb onto the tank to watch the sunset ‘made no sense’ and that the applicant’s account was ‘more plausible’.8 21 The Judge explained why she did not find C’s evidence to be implausible:9 I do not find the complainant’s evidence about climbing up on to the tank to be implausible. On her evidence, the accused stopped the car at the tank and asked her whether she was ticklish. After she said no, he said, ‘I bet I can make you squirm’ and she just laughed it off. On her version, I do not consider it is implausible that she might get out of the car and climb up onto the tank in those circumstances. I note, however, that the complainant did not give evidence of a conscious link in her mind between the conversation about tickling/squirming and her action of getting out of the car and climbing up on the tank for a few minutes. [Footnotes omitted] 22 It is not obvious to me how her Honour could find C’s evidence was plausible merely because the conversation about how ticklish she was immediately preceded her climbing onto the tank when, as the Judge noted, C did not attribute her decision to climb onto the tank to that conversation. A fallacious conflation of temporal sequence with causation is not uncommon, but in this case causation was expressly excluded by C’s testimony that she climbed on top of the tank in order to better see the sunset.10 However, for present purposes, what is important is that on the face of the Judge’s reasons, her Honour treated the issue of whether C had climbed onto the tank to assist with siphoning, or for some other reason, as having some importance in evaluating the credibility and reliability of the testimony given by C and the applicant. Indeed, the Judge went to on to provide further reasons for accepting C’s account that the applicant had gone to the tank to ‘fix the trough’ and therefore her denial of the applicant’s account that she was on top of the tank to help with the siphoning:11 Even if there was no link, I found the complainant’s denials of the accused’s version of events at the tank to be genuine. During cross-examination, she was adamant that the accused had not asked her to climb up on the tank and do anything with the hose. She gave evidence that she knew that the accused had to fix the trough, but said she had no idea why he needed to be by the tank to do that. The complainant was consistent when describing 6 R v K [2023] SADC 82, [83]. 7 R v K [2023] SADC 82, [86]. 8 R v K [2023] SADC 82, [88]. 9 R v K [2023] SADC 82, [92]. 10 Trial transcript 55. 11 R v K [2023] SADC 82, [93]. -- 10 of 13 -- [2023] SASCA 141 Kourakis CJ 9 her belief that the accused had to fix the trough. At one stage in cross-examination, she was asked why the accused went to the trough. She answered, ‘To fix the trough’. The next question was ‘To fill the trough’. She responded ‘Fill the trough’ but, in my view, she never adopted that concept of filling the trough rather than fixing it. On her evidence, the accused had to fix the trough and she had no idea what he needed to do in that regard. [Footnotes omitted] 23 I pause here to make three observations. First, the acceptance of C’s credibility appears to be founded on her demeanour, in that C was adamant, and consistent in her answers. Secondly, it appears to me that C may have accepted that the applicant’s purpose was to fill the tank albeit by fixing the plumbing and not by siphoning. Thirdly, the effect of C’s evidence was not only that she had no idea how the applicant intended to fix the trough, but that she did not see him doing anything which looked like he was fixing the trough.12 24 The Judge then stated her conclusion that the applicant’s account on the topic lacked credibility and gave her reasons for so concluding:13 In my view, it is the accused’s evidence on this topic which lacks credibility. The accused gave evidence that on an earlier occasion he had cut down a 50 m garden hose to syphon diesel from a tractor. The distance from the tank to the trough (and therefore the remaining length of the garden hose used to fill the trough) was between 40 and 50 m. He gave evidence that the garden hose was in position from the last occasion, ‘it was syphoning directly from the tank into the trough’. He ‘had the hose going over the top of the tank into the tank into the water, it then went along the ground through the fence on both sides of the raceway and across to the trough’. In cross-examination, the accused gave the following evidence about the hose on the afternoon/evening of 2 April: Q. Where was the hose. A. Over the top of the tank, like the top of the lid of the tank, the tank doesn’t have a lid. Q. Is the hose already there or is it something you have to put in the tank, how does that work. A. On this occasion she had to put it into the tank, it could have stayed there but it just laid alongside the tank. On the accused’s evidence, however, it was not simply a matter of asking the complainant to put the hose into the tank with nothing more required from her. Rather, according to the accused, he needed the complainant to stay on the tank and hold on to the hose whilst he conducted the syphoning process; he told her to ‘get up onto the tank to hold the hose so that it would sit in the water properly and not come out whilst I had to syphon the hose’. The accused gave no evidence about what his syphoning process involved. During cross-examination of the complainant, it was suggested that the accused ‘basically sucked 12 R v K [2023] SADC 82, [94]-[97], Trial transcript 53, 70. 13 R v K [2023] SADC 82, [94]. -- 11 of 13 -- [2023] SASCA 141 Kourakis CJ 10 on the other end of the hose in order to fill the trough’. The complainant denied that proposition and so the proposition is not evidence. In any event, it would be quite a feat for any person to have sufficient lung capacity to draw water through a 40–50 m hose from a tank in that way. [Footnotes omitted] 25 It is not obvious to me why the Judge attached significance to the failure, whether of the applicant or his experienced senior counsel, to adduce evidence explaining the siphoning process. Unfortunately, the gulf that exists between regional and city residents’ understanding of one another’s respective day to day lives and activities has widened greatly in recent years. However, the ordinary meaning of siphoning explains what a siphoning process involves:14 noun 1. an enclosed tube or conduit through which a liquid is conveyed from a reservoir at one elevation to a lower elevation, the liquid being initially forced into the tube by suction or immersion and then, once the tube is raised with a short section to the higher end and a long section to the lower end, falling from the lower end in response to gravity, thus creating suction at the higher end which draws liquid through the tube. 26 It was hardly necessary in the absence of the challenge to the applicant’s account, for him to explain what is involved in a siphoning process. The need to do so did not occur to the applicant’s experienced senior counsel. 27 The applicant’s failure to elaborate on what would be well known and familiar to many people working on a farm, was not in itself a reason to doubt the credibility or reliability of his evidence. Indeed, doing so, in the absence of any challenge to his account, would reverse both the persuasive and evidentiary onus. 28 By introducing the last sentence of paragraph [97] of the judgment with the words ‘in any event’ the Judge appears to indicate that the finding that the applicant’s evidence lacked credibility was based not only on his failure to explain how he accomplished the siphoning event, but also on her Honour’s finding that most people would not have sufficient lung capacity to accomplish the feat of siphoning or drawing water through a 40 to 50 metre hose. 29 Counsel for the respondent accepted on this appeal that there was no evidence on which that finding could be made and that it was not a matter of which judicial notice could be taken. 30 The Judge continued at paragraph [98]: In the defence closing address, it was submitted that the accused’s account about what happened at the tank and trough was ‘far more plausible…because he had a method, a procedure in place, which required her assistance and it required her assistance initially to hold the hose below the water line so that he could then move to the other end of the hose and ultimately set about forcing the water to down flow and into the trough. That is why the vehicle was moved from the tank down to a position proximate and close to where the trough was’. The difficulty with that submission is that if the accused did in fact require 14 Macquarie Dictionary (9th ed, 2023) ‘siphon’ (def 1). -- 12 of 13 -- [2023] SASCA 141 Kourakis CJ 11 such assistance (which was correctly identified by defence counsel as the effect of his evidence), then the accused’s evidence that he did not ask the complainant to accompany him does not fit. 31 It is clear therefore that the Judge placed importance on the issue of whether the applicant had gone to the trough to fix it or to fill it by siphoning water, and that the improbability of being able to draw water over that distance was a significant reason for making an adverse credibility finding against him. It is also plain that the defence submission that the applicant’s account was more plausible because he had the siphoning procedure and hose in place was rejected by the Judge on the basis of that reasoning. 32 Moreover, the Judge also rejected the defence submission that on the applicant’s evidence he did not ask for C to accompany him, because she volunteered. However as counsel for the applicant submitted on the appeal, it was precisely because he already had a volunteer in C that it was unnecessary for him then to ask C or anybody else to accompany him. Conclusion 33 The Judge has rejected the applicant’s account on the basis of a fact which was neither proved in the evidence nor of which judicial notice could be taken. There has therefore been a miscarriage of justice. I would grant permission to appeal and allow the appeal. I would set aside the conviction and order a new trial. 34 BLEBY JA: I agree, for the reasons given by the Chief Justice, that there was no evidential basis for the judge’s finding as to the improbability of a person having sufficient lung capacity to draw water through a 40-50 metre hose from a tank. That is not a matter of which judicial notice could be taken. Moreover, there was no evidence, for example, as to the state of preparedness of the siphon and whether the judge’s description of the task is what would have been required in this case. I also agree that this finding directly informed her Honour’s adverse assessment of the appellant’s credibility. That has resulted in a miscarriage of justice. This is not a case where the proviso can be applied.15 I would allow the appeal, set aside the conviction and remit the matter for retrial. 35 DAVID JA: I agree with the reasons and orders proposed by the Chief Justice. 15 Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92; [2022] SASCA 50 at [145]. -- 13 of 13 --