KILROY v THE QUEEN [2016] NZHC 2115

KILROY v THE QUEEN [2016] NZHC 2115 [7 September 2016]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000056[2016] NZHC 2115BETWEEN PHILIP ROLAND KILROYAppellantAND THE QUEENRespondentHearing: 22 August 2016Appearances: Peter Tomlinson for the AppellantNick Webby for the RespondentJudgment: 7 September 2016JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 7 September 2016 at 11:00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Philip Roland Kilroy appeals his conviction on five counts of a sexual nature in relation to two complainants.[2] The convictions were entered following a Judge-alone trial in the District Court.[3] The resolution of the case depended on the Judge's findings of credibility andreliability in relation to the complainants. The defence was a bald denial. Mr Kilroy said the alleged offending never took place and the complainants were not telling the truth.[4] Mr Kilroy now appeals his convictions. He says the Judge failed to give any or sufficient reasons for rejecting his evidence and that he failed to analyse the evidence in any detail, thereby erring to the extent a miscarriage of justice occurred.Background[5] The charges faced by Mr Kilroy were:(a) indecency with a girl aged between 12 and 16 years;(b) sexual violation by unlawful sexual connection; digital penetration (representative);(c) sexual violation by unlawful sexual connection; mouth to genitalia;(d) indecent assault on a girl under 12 years (representative); and(e) attempted sexual violation; mouth to penis.[6] The trial occupied three days commencing on 18 November 2015. Verdicts were delivered on 23 November 2015.[7] The offending against the two complainants covered a period from the late 1970s (in relation to Count 1) to the turn of the new millennium (in relation to Counts 2 to 5). At trial the complainants' pre-recorded evidential DVDs were played. This was supplemented by their oral testimony. The Crown called five other witnesses, four of whom were family members; either close relatives or relations by marriage. The officer-in-charge gave evidence of her dealings with Mr Kilroy, including playing his exculpatory interview recorded on DVD.[8] Mr Kilroy was the only defence witness.[9] The offending in relation to the first complainant was alleged to have taken place when she was about 12 years old. Her evidence was that she would occasionally stay at the appellant's home. She described a single incident when heplaced his hand down the back of her skirt and penetrated her vagina with his finger.[10] The remaining charges related to the younger complainant and were later in time. These involved allegations the appellant rubbed her genitalia, inserted his finger or thumb into her vagina, connected his mouth with her genitalia, and attempted to force her to connect her mouth to his genitalia.Judge Down's decision[11] In an oral judgment, Judge Down described each of the charges and the relevant legal elements. He then turned to the supporting evidence and, in somedetail, set out the Crown's case by reference to the evidence adduced by it. In relation to the defence case, he described it in this way:1"[14] What about the defence case? The defendant says that none of these allegations are true, they are all lies, and there is no room for error. The defendant does not have to identify a motive for these false allegations and is completely at a loss to understand why they have been made. There are, in this case, no issues as to identity or consent. So, although I have set out what the consent requirements are under the sexual violation charges, in factthose are not in issue in this case."1 R v Kilroy [2015] NZDC 25880.[12] He went on to focus on the matters of fact he was required to decide. He said:"[15] The issues to be decided on each of these charges is did it happen, or on the representative charges, did it happen on at least one occasion? The credibility of the two complainants is therefore absolutely central to this case"[13] The Judge then directed himself on the need to be uninfluenced by prejudice or sympathy. He emphasised the presumption of innocence and the onus and standard of proof and in that context said:"[17] On the other hand, it is virtually impossible to prove anything toan absolute certainty when dealing with a reconstruction of past events. And that is very stark, of course, in this case because they are old or historic allegations and the Crown does not have to prove the charges to an absolutecertainty."[14] In noting that the defendant carried no onus of proof, his Honour observed that the defendant had given evidence but, despite this, the onus remained on the Crown.[15] Then he returned to the defence case, and in the context of discussing the onus of proof he gave himself the so-called tripartite direction in these terms:"[19] In this case the defendant has explained that each allegation is untrue and that he has never touched either complainant in a sexual or even inappropriate way. If I accept what he says then obviously the proper verdicts are not guilty, because he will not have done what the Crown says he did. If what he said leaves me unsure, then again the proper verdicts are not guilty, because I will have been left with a reasonable doubt. If what the defendant says seems a reasonable possibility, the Crown will not have discharged its task and I must acquit.[20] If I disbelieve the defendant's evidence, I must not leap from thatassessment to guilt, because to do that would be to forget who has to prove the case. Rather, I must assess all of the evidence that I accept is reliable and ask myself does that evidence satisfy me of the defendant's guilt to therequired standard?[21] As I have said, the evidence in this case comes down to the credibility or reliability of the two complainants; the two primary witnesses in this trial. There is no particular formula for assessing a witness' evidence.We all assess things we are told every day. We look, we think, our minds work, we weigh things up, we make a decision. We can be influenced notonly by what was said but how it was said. What was the witness' manner when she testified?"[16] Then, in some detail, the Judge directed himself on the limitations ofdemeanour in assessing credit and reliability emphasising that each witness' evidence should be tested against "the yardstick of human nature or common sense".He referred to consistency, independent support, and the making of concessions when they were clearly called for. In that context he referred to the independent evidential support provided by the grandmother of the second complainant also witnessed inappropriate sexual behaviour, which was not the subject of a separate charge, towards the second complainant. He also gave himself a propensity direction listing the similarities.[17] He then turned to his findings of fact, introducing this part of his decision in the following way:"[33] Now, I turn to my findings of fact. I am satisfied beyond reasonable doubt that the allegations made by both complainants are truthful and reliable. I do not find it reasonably possible that the account given by the defendant in his police interview or in evidence in Court is true.[34] Why have I come to those findings of fact? Firstly, I find that the two complainants were compelling and believable witnesses. Their evidence was consistent, both externally and internally. They made appropriate concessions. They were unmoved by cross-examination and there was no embellishment apparent. Secondly, the only real challenge to their evidence, such as delay in reporting, failing to alert others at the time, continued contact, and apparent affection for and reliance upon the defendant were explained appropriately by the complainants, in my view."[18] He set out his other reasons for believing each complainant was credible and reliable. These included his own knowledge, as an experienced criminal Judge, counter-intuition, noting that the behaviours described by the complainants and others were not inconsistent with their accounts being truthful. He referred to the independent evidence of the second complainant's grandmother who described theinappropriate sexual behaviour by the appellant as previously described. He discussed the value of the propensity evidence which he accepted was relevant and admissible and the absence of any discernible motive for fabrication.[19] The Judge expressly dealt with a number of consistencies relied on by thedefence. In particular he regarded the inconsistencies in the complainants' accounts,such as they were, as explicable and inconsequential, noting his surprise at just how accurate and consistent were their accounts and memories.[20] Finally, after stating he was satisfied each allegation was true and the details surrounding each act described with such depth and clarity he was sure the events described by the complainants were real and not concocted, his Honour said this:"[41] So it follows in reason that I reject the accounts given by the defendant as untrue. However, I do not jump from that conclusion to a finding of guilt. I am sure based on the evidence led by the Crown that these events occurred as described. On each of the counts 1 to 5, I find the caseproven to the necessary standard and I enter guilty verdicts."Principles governing appeals against conviction[21] I may only allow Mr Kilroy's appeal if I conclude Judge Down erred in hisassessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.2 A miscarriage of justice is defined as any error, irregularity or occurrence in relation to or affecting a trial that has created a real risk that the outcome was affected or has resulted in an unfair trial or a trial that was a nullity.3[22] The meaning of "real risk" was discussed in Sungsuwan v R.4 This formulation was recently approved in the context of the Criminal Procedure Act 2011 ("the CPA") in the Court of Appeal decision in Wiley v R.5 The real risk the outcome of the trial was affected arises when:" there is a reasonable possibility that a not guilty (or more favourable)verdict might have been delivered if nothing had gone wrong."[23] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that "it is not every departure from good practice which renders a trial unfair".6 There must a2 Criminal Procedure Act 2011, s 232(2)(b)-(c).3 Section 232(4)4 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110], per Tipping J.5 Wylie v R [2016] NZCA 28.6 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].departure from good practice in a manner that is "so gross, or so persistent, or so prejudicial, or so irremedial" that the Court must quash the decision.7Grounds of appeal[24] The grounds of appeal are:(a) whether the Judge erred in failing to give reasons for rejecting theappellant's evidence; and(b) whether the Judge failed to analyse the evidence appropriately.[25] Although the resolution of these separate questions requires a similar analysis, I shall deal with each in turn.Did the Judge give sufficient reasons for his findings of credibility?Appellant's submissions[26] Mr Tomlinson, for the appellant, submits that it is a well established principle, now supported by s 106(2) of the CPA, that the Court must give reasons for its decision.[27] He submits that where, as is the case in the present, findings of credibility areto be made, the Judge is required to give reasons as to why the witness' evidence iseither accepted or rejected. It is not a sufficient or acceptable approach for a Judge to determine that a Crown witness' evidence is to be preferred by reason of theirconsistency or compellability without undertaking the same exercise in assessing defence witnesses. He thus submits that Judge Down fell into reversible error when he concluded that simply because he believed the complainants' evidence, itnecessarily followed he rejected the accounts given by the defendant.[28] Mr Tomlinson described paragraph [41] of the decision as representing "the nub of the appeal" because there the Judge expressly recorded that having been7 At [38].satisfied that each allegation was true, it followed in reason he rejected the account given by the appellant as untrue.[29] Instead, Mr Tomlinson submits it was necessary to apply the same analyticalprocess to Mr Kilroy's evidence. If he proposed to reject the appellant's explanation,it was incumbent on him to give reasons as to why. The mere conclusory statement that his evidence was rejected was insufficient and, in effect, ignored the tripartite direction.[30] In support of this proposition, Mr Tomlinson refers to the judgment of Mander J in Boulton v New Zealand Police.8 This was an appeal against conviction arising out of a conviction for the theft of shrubs. There was no dispute as to the circumstances of the theft. The stolen shrubs were located behind a shed at the rearof the appellant's property. A dirt and debris trail could be followed leading fromwhere the shrubs had been removed from the ground to where they were found. The appellant was interviewed by the police. She denied responsibility claiming she had no knowledge of the plants and proffering the explanation that someone must have just left them there. The prosecution relied on the doctrine of recent possession which permits a reasonable inference to be drawn, in the absence of an adequate explanation, that the person in possession of the recently stolen items was either the thief or the receiver.[31] While accepting there was a sufficient evidential basis upon which the appellant could have been found to be the thief, Mander J observed that before reaching such a conclusion it was necessary for the Judge to address the appellant'sexplanation and denial of knowledge. He said that while it cannot be suggested that a Judge sitting alone is required to direct themselves to the same extent a Judge sitting with a jury would, where an explanation has been offered and put in evidence, it is incumbent on the Judge to expressly address that explanation before accepting as proved the circumstances which establish the charge beyond reasonable doubt. He noted that this requirement is particularly acute where the prosecution relies on a collection of circumstances to draw a reasonable inference of knowledge because the inference essential to the doctrine of recent possession will only have application if8 Boulton v New Zealand Police [2016] NZHC 1474.the defendant's explanation is rejected. His Honour concluded that the fact-finder is required to focus on the explanation proffered by the defendant in order to make a valid assessment of the circumstantial case and on the material before him, Mander J concluded the Judge had erred by not addressing the appellant's explanation and thathad the Judge done so there was a reasonable possibility that some doubt might have arisen as to whether the prosecution had proved the element of knowledge. As a consequence, he determined the conviction was unsafe and allowed the appeal.[32] Mr Tomlinson submits the present case is analogous. Judge Down gave noreasons why he rejected the appellant's explanation other than his acceptance of the complainants'. He submits that a Judge may well believe a complainant's evidence but a defendant's explanation may be such as to leave him or her in a state short ofbeing sure.Legal principles[33] Section 106 of the Act provides as follows:"106 Decision of court(1) The court, having heard what each party has to say and the evidence adduced by each, must consider the matter and may find the defendant guilty or not guilty.(2) The court must give reasons for its decision under subsection (1).(7) The reasons for the court's decision may accompany the court's decision, or be given later."[34] The giving of reasons is good judicial practice,9 and is ordinarily necessary to establish a sufficient factual basis for the decision and to allow a meaningful appellate process.10 The extent of reasoning when rejecting the evidence of a witness whose evidence is material to the outcome will vary from case to case butthe reasons given should be "adequate to the occasion".119 R v Awatere [1982] 1 NZLR 644 (CA) at 649.10 At 649.11 At 649.[35] However, full reasons are not routinely required. The leading New Zealand judgment on the point is R v Connell.12 There the Court of Appeal approved "short form" decisions which simply state the essential elements of the Judge's reasoning.Cooke J, delivering the judgment of the Court, said:13"Further, what the judge sitting alone delivers is intended to be a verdict. Itneed not be supported by elaborate reasons. To require the judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There arecases where a point or argument is of such importance that judge's failure todeal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is anelementary need, but not long exposition."[36] On the issue of credibility, Cooke J said:14" When the credibility of witnesses is involved and key evidence isdefinitively accepted or definitively rejected, it will almost always beadvisable to say so explicitly."[37] What Connell says in the context of a Judge-alone trial is that what is required is a clear statement of the law, an analysis and listing of the essential elements of each charge, a concise account of the facts and a plain statement of the essential reasons for the decision.15 There is no need for the judgment to be extensive or exhaustive.[38] The Court of Appeal in R v Slavich16 observed that Connell remains the definitive judgment, citing with approval the passage discussed above.[39] The Court of Appeal in R v Eide arguably widened the trial Judge's obligationso far as giving reasons for verdicts is concerned.17 But more recently the same12 R v Connell [1985] 2 NZLR 233 (CA) at 237.13 R v Awatere, above n 9, at 649.14 R v Connell, above 12, at 238.15 At 237–238.16 R v Slavich [2009] NZCA 188.17 R v Eide [2005] 2 NZLR 504 (CA) at [26]–[27].Court in Din v R usefully defined the scope of Eide's true effect vis-à-visConnellwhere it stated: 18"[60] Criticism as to the judge's reasoning is to be viewed against thenature of the verdicts given by a judge alone; in R v Connell this Court heldthat careful consideration is an elementary need, but not long exposition: [61] In the context of fraud cases, however, it is now clear from the decisions in Eide v R and Wenzel v R that the features of a particular scheme also need to be explained and the critical factual and legal elements of eachcount of the indictment separately considered and conclusions reached."[40] More recently, the Court of Appeal has dismissed appeals where there has been an absence of an express credibility finding but where the basis for a credibility determination was plainly apparent from the Judge's reasoning. For example in R v Scutts, the trial Judge gave clear and concise reasons for reaching a credibility finding but omitted to explicity state why she rejected a witness' evidence. TheCourt said:19"[39] We are satisfied that the judge must have disbelieved Mr Finlay'sevidence on this issue. In terms of the requirements cited by Mr Billington from E (CA 799/2012) v R, the Judge had a proper foundation for concludingthat Mr Finlay's account of the date of the letter was inconsistent withobjective facts. It was also highly implausible.[40] It is unfortunate that the Judge did not articulate an express credibility finding. But we have no difficulty inferring that she disbelieved Mr Finlay. In this respect we acknowledge also her undoubted benefits inassessing the evidence enjoyed by her as trial judge."[41] In the context of credibility findings the advantage a first instance Judge has in seeing and hearing the witnesses should not be overlooked although there are well understood limitations to that principle as the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar observed:20"The appeal court must be persuaded that the decision is wrong, but inreaching that view no "deference" is required beyond the "customary"caution appropriate when seeing the witnesses provides an advantagebecause credibility is important."18 Din v R [2014] NZCA 316.19 R v Scutts [2015] NZCA 599; see too He v Chen [2016] NZCA 340.20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].Analysis[42] There is no blanket principle or bright line which defines whether in a particular case a Judge's reasoning is sufficient or not. Such a determination is oneof fact and degree which must be measured against what is at issue in the trial. In determining whether Judge Down gave sufficient reasons for his findings of credibility, it is necessary to consider the factual context and issues confronting him and which he was required to determine.[43] This was a single issue at trial which the Judge correctly identified when he said the question to be decided on each charge was whether it happened, adding that the credibility of the two complainants was therefore absolutely central to the case.21This observation was complemented by the Judge's description of the appellant'scase which the Judge summarised as being that each allegation was untrue and that the appellant never touched either complainant in a sexual or even inappropriate way.[44] His Honour then gave himself the standard tripartite direction, stating that ifhe accepted the appellant's account, the proper verdicts would be not guilty; if the appellant left him feeling unsure the proper verdicts would be not guilty and even if what the appellant said seemed reasonably possible, the Judge was obliged to acquit.[45] But he went further. As is standard, he directed himself that even if hedisbelieved the defendant's evidence, he must not leap to a finding of guilt becauseto do so would be to ignore the onus of proof. He expressly recognised that his task was to assess all of the evidence he accepted as reliable and ask himself whether thatsatisfied him of the appellant's guilt to the required standard.2221 R v Kilroy, above n 1, at [15].22 At [19] and [20].[46] I agree with Mr Webby for the Crown that Judge Down gave himself clear directions as to credibility and the need to consider rival contentions against all thefacts; that is to consider the complainants' evidence and the defendant's evidence forboth internal and external consistency. That was the context within which this exercise was required to be undertaken and it was in that context the Judge reached a clear finding of credibility.[47] Mr Webby properly accepts it would have been desirable for the Judge tohave given reasons for rejecting the appellant's account but submits the failure to doso does not equate to reversible appellate error. I agree.[48] Mr Tomlinson's criticism of Judge Down would have a good deal more forcehad the Judge not undertaken the careful analysis he did when listing the various reasons he found the complainants to be credible and reliable. In that sense he followed the recommendation of Cooke J in Connell.23[49] The two versions of events were irreconcilable. If one was true, the other,necessarily, was not. This is reflected in the Judge's comment that having accepted the complainants' accounts beyond reasonable doubt he necessarily rejected the appellant's account as untrue.[50] I do not accept that Mander J's observations in Boulton v Police assist the appellant. That case is distinguishable on its facts. The defendant had offered an explanation for the property being at her address. In order to convict, the Judge atfirst instance was required to critically examine the defendant's explanation for beingin possession of the property as part of the process of drawing the necessary inference.[51] Mr Tomlinson also refers me to Wilkie v Police,24 where Ronald Young J observed that in a case where only two witnesses to the relevant events gave quite different accounts on the essential issue it is part of the Judge's obligations to record why he or she rejected a defendant's evidence as untrue. However, in Wilkie the23 R v Connell, above n 12, at 238.24 Wilkie v Police HC Wellington CRI-2011-485-19, 14 June 2011.issue was whether the appellant was acting in self-defence. Unsurprisingly, RonaldYoung J found the Judge's failure to give reasons for rejecting the defendant'saccount amounted to appellate error because, in the context of resolving the central issue of self-defence an assessment of both the subjective and objective elements ofknowledge and belief was required. Reasons for rejecting the defendant's accountwere plainly necessary in that context.[52] A similar observation may be made in relation to Taiatini v Police,25 which Mr Tomlinson also refers me to. There the question was whether the appellant, charged with driving with excess breath alcohol, was driving on a road or was still on private property. The appellant called two witnesses in support of his account which was in direct conflict with the evidence of the Police witness. Again, this situation was quite different from the present because the first instance Judge inTaiatini was faced with two conflicting eye-witness accounts which required resolution underpinned by reasons.[53] I agree with Mr Webby that Brewer J's judgment in Biddle v R is more helpful in the present factual context.26 The issues at play in that case are much more comparable to the present. Biddle was an appeal from a District Court conviction for sexual violation. The sole issue in the Judge-alone trial was credibility; whether the complainant's account was to be preferred over the defendant's denial. The appellant gave evidence but the Judge failed to expressly remind himself of the tripartite direction.[54] Mr Tomlinson submits Biddle is distinguishable on its facts because theJudge at first instance did turn his mind to the defendant's evidence observing it wasnot supported by any other evidence the Judge concluded was reliable. However, in my view, Biddle has direct relevance and application to the present. I agree withBrewer J's analysis where he said:"[47] I note that in a case where a defendant has given or called evidence and the fact-finder is a judge alone, a tripartite direction is not necessary. This principle was recently summarised in Te Kira v Police [2014] NZHC 700 at [23]:25 Taiatini v Police HC Rotorua CIV 2005-463-000059, 7 October 2005.26 Biddle v R [2015] NZHC 2763.'This Court has recognised that the absence of reasons for rejecting an appellant's evidence will not mean appellate intervention is required. Likewise, a tripartite direction is not always necessary in a jury trial and its absence will only lead to a miscarriage of justice where there is a real risk of the jury misunderstanding the onus on the prosecution and the need to prove the charges beyond a reasonable doubt. Where the fact-finder is a judge alone, moreover, it is not necessary for the fact-finder to remind themself about the criminal onus. Where a judge has clearly recognised this it will not be an error to fail to adopt a tripartite process ofreasoning.'[48] I do not accept this ground of appeal. This very experienced District Court Judge had to make credibility decisions. The Judge accepted the evidence of the complainant and that means he must have rejected the evidence of the defendant. He says so. It is not necessary in these circumstances for him to create a record of hisreasoning."[55] In the present case, unlike the Judge in Biddle, Judge Down properly reminded himself of the tripartite direction. Furthermore, he expressly applied the principle which is implicit in the tripartite direction. He did not move inexorablyfrom a finding in favour of the complainants' credibility to an automaticdetermination of guilt. He went back to the evidence and examined the issues and elements the Crown was required to prove. He independently satisfied himself on the whole of the evidence the Crown had discharged its duty.[56] In summary therefore, I conclude the Judge's decision provides a well reasoned explanation for his findings on the credibility and reliability of the complainants. He provided a careful and thorough analysis of the factors he took into account in concluding the complainants were credible and reliable. And while this Court on appeal is not required to defer to the first instance Court's assessments,it cannot be overlooked these were findings made by a Court which had seen and heard the witnesses over the course of several days of evidence. Judge Down explained his reasons for reaching the conclusions he did. He necessarily rejectedthe appellant's account. He said so. In the context of this case such a course was allthat was required of him. There is nothing to support the claim he erred in that assessment having regard to the nature of the issue he was required to resolve. In myview the reasons he gave were "adequate to the occasion".Did the Judge appropriately analyse the evidence?Appellant's submissions[57] Mr Tomlinson submits the Judge took a global approach and simply acceptedthe complainants' allegations. He gave no consideration to the evidence on a chargeby charge basis nor did he consider, in any detail, how the propensity evidence supported the other complaints.[58] He submits that while the Judge described the evidence as compelling, he failed to explain why; what the inconsistencies in the defence evidence were andwhat was so unbelievable about the appellant's evidence that his testimony wasrejected.[59] He submits the only place in the judgment where there is any discussion of the evidence is where the Judge set out the Crown's case. He says it is not ananalysis or description of the evidence. He says that had the Judge undertaken a proper analysis, he may well have been left in a state of doubt. Furthermore, Mr Tomlinson submits the general failure to analyse the evidence in any detail also led to the risk of a wrong verdict because there is no logical or detailed reasoning or justification.Analysis[60] I agree with Mr Webby that there was no error in the Judge's assessment anddiscussion of the evidence.[61] Although Judge Down introduced his discussion of the complainants' evidence by describing it as "the Crown's case", it is plain his description of the factswas drawn from the evidence of the complainants. He went through each charge separately describing the supporting evidence of the relevant complainant.[62] While the Judge's treatment of the complainants' evidence might bedescribed as economical, there was no need for him to descend into greater detail. He set out the essential elements of each charge. Then, charge by charge, heanalysed the evidence relevant to each element. This approach was all that was necessary to establish the evidential basis to support each of the five charges.[63] This approach is consistent with the practice recommended in Connell,namely that all which is required is a "concise account of the facts".[64] In my view the judgment reflects a careful, logical and considered approach to the discussion of the relevant facts. The judgment began with the conventional directions. The elements of the charges were correctly set out. Identity was singled out as the principal fact in issue and the Judge set out, in sufficient detail, the reasons for preferring the evidence of the complainants.[65] I do not accept the appellant's criticism that the Judge failed to give reasons for his conclusion that the complainants' evidence was compelling. He listed, by mycalculation, at least five separate reasons for his findings on credibility. He referred to their evidence as being consistent, both externally and internally. He spoke of them making appropriate concessions and that they were unmoved by cross- examination and there was no apparent embellishment.[66] The Judge confronted the inconsistencies in the complainants' evidence. Hereferred to the armchair description and the paddling pool. He also noted that when compared with other cases of historic abuse the consistency and detail of thecomplainants' accounts was remarkable.[67] The Judge also made express reference to the defendant not being obliged to proffer an explanation as to why allegations might be made against him if they were untrue.[68] Accordingly, it follows I do not accept the Judge failed to analyse the evidence in the fashion complained of.Conclusion[69] For these reasons, I am not satisfied a miscarriage of justice has occurred. I do not find that there was any error, irregularity or occurrence in relation to oraffecting the trial that has created a real risk that the outcome of the trial was effected or has resulted in an unfair trial or a trial that was a nullity.[70] There was no departure from good practice in a manner which was "so gross, or so persistent or so prejudicial, or so irremedial" that the Court must quash thedecision.27Result[71] The appeal is dismissed.Moore JSolicitors/Counsel:Mr Tomlinson, AucklandMeredith Connell, Auckland27 Condon v R, above n 6.