DL v The Queen

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia concerning the adequacy of a judge’s reasons for convicting the accused of the offence of persistent sexual exploitation of a child. The complainant alleged that the accused, his uncle, abused him between the ages of 5 and 15, including showing him pornographic videos at the age of around 7, masturbation while the complainant used a computer in a bedroom, an oral sex at various locations (a shed and a property where he grew cannabis, a house owned by a woman the accused was having an affair with, and before the complainant rode the accused’s motorbike.) The uncle denied all the claims of sexual abuse and disputed some other details of the accused’s claims, including the location of the computer and when the complainant visited the shed and other locations. The accused was charged with the following offence:

An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty: Imprisonment for life.

The trial was before a judge without a jury. The judge said the complainant presented as ‘a man endeavouring to tell the truth’ and ‘described real events’, while he was ‘unimpressed with the [accused’s] presentation.’ He wrote:

I also accept [the complainant] as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being ‘stoned’), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years.

After further discussion, he concluded:

I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the [appellant] on substantive issues where he denied the alleged sexual conduct. I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.

As Nettle J put it (at [115]), ‘That was it.’ The accused lost his appeal to the Court of Criminal Appeal, but made a new argument in the High Court of Australia that the trial judge’s reasons were inadequate in light of the requirement that the court find at least two acts of sexual abuse by the accused proved beyond reasonable doubt.

A 3-2 majority of the High Court (Kiefel CJ, Keane and Edelman JJ, with Bell J and Nettle J dissenting) held that the trial judge’s reasons were adequate. The majority addressed the general law on adequacy of reasons at [32]-[34], concluding that ‘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’. Bell J reached a similar conclusion at [80]-[82]. Applying these tests to the judge’s acceptance of the complainant’s ‘core allegations’, the majority (at [36]) held:

The trial judge did not, and perhaps could not, reach any conclusion about (i) the complainant’s age when various types of offending commenced, or (ii) the likely number of occasions of indecent assaults or mutual fellatio before the assaults ended on 28 August 1994. Nevertheless, his conclusion meant that the elements of the s 50 offence had been proved. The “simple and obvious logic” of this conclusion was that over a period of not less than three days, the appellant had committed more than one act of sexual exploitation of the complainant.

By contrast, Bell J held (at [85]) that ‘It remains that the omnibus finding… does not identify two or more acts of sexual exploitation over an interval of not less than three days, the commission of which was proved beyond reasonable doubt.’

After reviewing the history of the law on reasons for judgment at [130]-[131], Nettle J stated the obligation to give reasons as follows:

The trial of an indictable offence… by judge alone is an extraordinary procedure fundamentally at odds with the deep seated conviction of Anglo-Australian criminal justice that a man or woman accused of a serious offence should be tried by a jury of peers. Due as much, therefore, to the extraordinary nature of the procedure as, in some States, to specific legislative requirements, a judge who tries an indictable offence without a jury is bound to produce reasons for judgment of at least the quality expected of his or her civil brethren. It is, however, even more important in criminal proceedings than in civil that a trial judge’s reasons meet the standard required.

He concluded (at [138]) that the trial judge’s reasons were ‘deficient’ in two respects: they didn’t ‘identify the acts of sexual exploitation which the judge found to be proved beyond reasonable doubt and properly to explain the reasoning which led him to those conclusions.’ He held (at [140]) that the judge’s acceptance of the ‘core contentions’ was inadequate because the judge did not say that he accepted every allegation of sexual misconduct made by the complainant; ‘One is left to wonder what was meant by the “core allegations” and, since this is a criminal matter, one should not be left to wonder.’ As well (at [141]), ‘ the judge’s reasons do not explain how, given the extent of the inconsistencies and implausibilities as to times and dates, he could legitimately have reached that standard of satisfaction.’ He concluded (at [143]) that:

where, as here, there are distinct groups of underlying acts of sexual exploitation which are alleged to have occurred at different times and in different circumstances, and the evidence as to the likelihood of each group of acts having occurred as alleged is distinct, different and attended by disparate inconsistencies and implausibilities, each group requires separate analysis.

In particular, ‘it is mandatory for the judge to direct himself or herself of the need to be satisfied beyond reasonable doubt of the commission of two or more of the acts of sexual offending alleged and to explain in reasons for judgment how he or she has reasoned to the conclusion of guilt beyond reasonable doubt in respect of each such act.’

All three judgments addressed the accused’s argument that the trial judge failed to adequately address a number of factual issues raised by the evidence, including two issues that were given detailed consideration. First, although the complainant testified that he first engaged in oral sex with the accused in a shed containing a slot car track when he was 12, the accused presented a calendar showing that the slot car track was installed when the complainant was 14. The majority (at [42ff]) adopted Blue J’s analysis in the court below that there was little inconsistency between the complainant and the accused, given that the shed was built when the complainant was 12, while the contents of the she were less significant. By contrast, Bell J (at [86ff]) concluded that ‘[t]he difference between MGF’s account of acts of mutual oral sexual intercourse taking place over a span of years and acceptance of the reasonable possibility that any such conduct must have occurred over a notably shorter interval was material to the determination of whether the acts were proved to the criminal standard’ and Nettle J, while conceding (at [148]) that the trial judge may have found that the relevant acts occurred over that shorter interval, held that ‘it is no answer that an appellate court may be able to reverse engineer a logical path of reasoning capable of sustaining a trial judge’s conclusion.’

The second major factual issue was that, while the complainant’s evidence of masturbation while he used a computer concerned (and drew on details about) the accused’s master bedroom, the accused and his ex-wife testified that the computer was in a different bedroom. The majority acknowledged that the trial judge did not refer to this issue (which may not have been argued by counsel at trial), but again (at [49ff]) adopted Blue J’s analysis that the ‘conflict was subsumed into the conflict about whether the sexual assaults had occurred whilst the complainant was playing on the computer’. By contrast, Bell J (at [93]) held that the trial judge’s failure to discuss this issue meant that it was unclear whether or not the ‘omnibus finding’ included the acts of masturbation, while Nettle J (at [150]) held that ‘the judge did not say so or explain why, notwithstanding the doubt about reliability that the discrepancy was bound to engender, he was able to exclude the reasonable possibility that the alleged acts of masturbation did not occur.’

The majority, after similarly dismissing further factual issues, concluded (at [52]) that ‘[t]he trial judge’s reasons were sufficient to identify, and to disclose the process of reasoning leading to his finding of, the two or more acts of sexual exploitation upon which the conviction was based. ‘ By contrast, Bell J, after noting (at [94]) that another unresolved controversy about whether showing the complainant pornography was capable of  being an ‘act of sexual exploitation’ ‘s apt to highlight the inadequacy of reasons stated with the generality of acceptance of “core allegations”‘, held (at [96[) that the trial judge’s acceptance that the complainant was truthful and reliable was not sufficient ‘to identify the acts of sexual exploitation constituting the actus reus of the offence which he found proved’. Nettle J held (at [150]) that the combination of the two problems in the complainant’s evidence ‘is of potentially greater forensic significance in the assessment of which of the allegations are established beyond reasonable doubt’ and then addressed further, similar issues in relation to other factual matters at [151]-[155], concluding (at [156]) that ‘The trial judge’s reasons did not meet the standard required in the case of a trial by judge alone of a serious indictable offence.’

Accordingly, the majority dismissed the accused’s appeal, while Bell J and Nettle J would each have allowed the appeal and ordered a new trial.

High Court Judgment [2018] HCA 26
Result Appeal dismissed
High Court Documents DL
Full Court Hearing [2018] HCATrans 22
Special Leave Hearing [2017] HCATrans 215
Appeal from CA [2015] SASCFC 24
Trial Judgment
[2014] SADC 96 (Rice DCJ)
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

2 thoughts on “DL v The Queen

  1. Hi Jeremey, great article and great commentary as always. I think there is a typo in the last sentence of the first paragraph, where it is written ‘at’ rather than ‘at least’.

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