Castle (a pseudonym) v The King - [2025] SASCA 10

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CASTLE (A PSEUDONYM) v THE KING
[2025] SASCA 10
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson)
5 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
Following a trial without a jury, the appellant was convicted of two counts of unlawful sexual intercourse, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant is the appellant’s niece and god-daughter. At the time of the charged offending, she was 13 years of age.
The prosecution case was that on two separate occasions, in 2011, the appellant had sexual intercourse with the complainant by forcing her to perform an act of fellatio on him. The prosecution also alleged that the appellant sent the complainant messages containing photos of his penis via a Facebook Messenger account in 2013. ('the penis images').
The appellant advanced four grounds of appeal. The first three grounds of appeal relate to the trial Judge’s treatment of the evidence of the penis images and seeks to impugn the adequacy of the trial Judge’s reasons in that regard (ground 1); complains that there was an error of law by reason of a failure to comply with s 34R of the Evidence Act 1929 (SA) (ground 2); and contends that the trial Judge’s reasoning did not, in fact, support her ultimate conclusion (ground 3). The appellant also complains that the prosecutor's comments, that two prosecution witnesses had ‘nothing to gain’, and that the defence witness’s evidence was self-serving, resulted in a miscarriage of justice (ground 4).
HELD, by the Court, granting permission to appeal on grounds 1, 2 and 3, refusing permission to appeal on ground 4, allowing the appeal on ground 2 and ordering a re-trial:
In relation to grounds 1 and 3, the trial Judge provided adequate reasons as to the basis upon which she did not use the evidence of the penis images in the manner sought by the prosecution.
As to ground 2, the trial Judge’s factual finding that the appellant sent the complainant the penis images was a highly prejudicial finding. In the absence of a mandatory direction (pursuant to s 34R) as to the impermissible use of the evidence the Court cannot be satisfied that the trial Judge’s reasoning as to the credibility and reliability of the complainant’s evidence was not influenced by the evidence of discreditable conduct. It is not appropriate to apply the proviso.
As to ground 4, there was an evidentiary basis for the trial Judge to take into account the fact that various witnesses either had an interest in the outcome of proceedings, or a lack, thereof, as a relevant factor when assessing the witness credibility. In doing so, the trial Judge did not undermine the presumption of innocence, nor reverse the onus of proof, and there was no miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Criminal Procedure Act 1921 (SA) s 158(1)(b); Evidence Act 1929 (SA) ss 13D, 34P, 34P(1)(a), 34P(2)(a), 34P(2)(b), 34R, 34R(1), referred to.
Adamson (A Pseudonym) v The King [2024] SASCA 91; Hargraves v The Queen (2011) 245 CLR 257; JGS v The Queen [2020] SASCFC 48; Orreal v The Queen (2021) 274 CLR 630; R v MDP [2023] QCA 134; Ramey v The Queen (1994) 68 ALJR 917; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510, discussed.
Edwards v The Queen (2021) 273 CLR 585; JGS v The Queen (No 2) (2022) 141 SASR 288; Lane v The Queen (2018) 265 CLR 196; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v C, CA [2013] SASCFC 137; Weiss v The Queen (2005) 224 CLR 300, considered.

CASTLE (A PSEUDONYM) v THE KING
[2025] SASCA 10
Court of Appeal – Criminal: Lovell, David JJA, Nicholson AJA

THE COURT: Following a trial without a jury, the appellant was convicted of two counts of unlawful sexual intercourse, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is the appellant’s niece and god‑daughter. At the time of the charged offending, in 2011, she was 13 years of age. The prosecution case was that on two separate occasions the appellant had sexual intercourse with the complainant by forcing her to perform an act of fellatio on him. The prosecution also alleged that in 2013, the appellant sent the complainant messages containing photos of his penis (‘the penis images’) via a Facebook Messenger account that he shared with his partner, SL.
The appellant did not give evidence at trial but adduced evidence from his partner, SL. The defence case was that the alleged offending did not occur, and more particularly, there was no opportunity for it to have occurred. In the alternative, it was contended that the complainant’s evidence could not be relied upon to the requisite standard as it was insufficiently detailed, lacked credibility, and a significant forensic disadvantage arose in relation to both the question of opportunity and the evidence of the messages the appellant was alleged to have sent to the complainant containing the penis images.
The appellant advances four grounds of appeal. The first three grounds of appeal relate to the trial Judge’s treatment of the evidence of the penis images and seeks to: impugn the adequacy of the trial Judge’s reasons in that regard (ground 1); complain that there was an error of law by reason of a failure to comply with s 34R of the Evidence Act 1929 (SA) (‘the Evidence Act’) (ground 2); and contend that the trial Judge’s reasoning process did not, in fact, support her ultimate conclusion (ground 3). The appellant also complains that the prosecutor's comments, in her closing address, that two prosecution witnesses had ‘nothing to gain’, and that the defence witness’s evidence was self-serving, resulted in a miscarriage of justice (ground 4).
For the reasons which follow, we grant permission to appeal on grounds 1, 2 and 3, refuse permission to appeal on ground 4, allow the appeal on ground 2 and remit the matter to the District Court for a re-trial.
The prosecution case
The prosecution case relied primarily on the evidence of the complainant. She was born on 14 April 1998. A recording of her evidence at a previous trial[1] was adduced pursuant to s 13D of the Evidence Act. At the time of giving evidence, she was 24 years old.
[1] Exhibit P1, MFI P6.
In April 2011, the complainant and her mother were living at an address in Elizabeth Grove. The appellant, at this time, was living with his partner and their children in Davoren Park. After moving to Elizabeth Grove, the complainant began to spend time with the appellant and his children at their home.
In relation to count 1, the complainant gave evidence that there was an occasion in mid to late 2011, when her mother and the appellant’s partner, SL, were not at the appellant’s house. They had gone out for the evening. She was alone with the appellant and his children. The complainant gave evidence that the appellant called her into his bathroom, dropped his towel and told her to ‘suck his dick’ adding ‘how else was she supposed to learn how to suck a dick’. He told her to get on her knees, which she did, and open her mouth, whereupon he grabbed her hair before placing his penis inside her mouth. She said that he was thrusting his penis inside and out of her mouth. She was crying and could not breathe. The appellant left. She stayed in the bathroom crying until she went into the living room. After her mother returned, the complainant did not tell her about the incident as she was concerned about her mother’s fragile mental health.
As to count 2, the complainant said that a few weeks later she was visiting the appellant’s home, during the day on a weekend. Her mother and the appellant’s partner had gone out shopping. She came out from the toilet when the appellant blocked her path, dropped his pants and asked her to ‘suck his dick’. She said no and he pushed her to the ground, opening her mouth with his fingers before placing his penis inside her mouth. When she tried pushing him away, he grabbed her head moving it backwards and forwards over his penis. The complainant said that she felt a ‘yucky taste’ of fluid in her mouth which she now recognises as semen. She said that she ran out of the house to a nearby park where she waited until her mother found her. Again, she did not disclose the offending to her mother as she was concerned about her mother’s fragile mental health.
The complainant briefly moved to Melbourne with her father in 2013, before moving to New South Wales with her mother. She moved to Queensland with her mother in 2014, and then back to South Australia in 2015. While she lived interstate, the appellant communicated with her via Facebook Messenger. The complainant said that on one occasion while she was living in Queensland (so at some stage in 2014), the appellant sent her a Facebook message containing images of his penis. She said that the images were of the appellant’s erect penis, and she recognised the image as depicting the appellant’s penis because of a skin condition on his penis that she had observed at the time of the alleged offending. The complainant said that she took screenshots of the images and sent them to her mother, again via Facebook, and her mother called her about two hours later. She said that she deleted the original images because she ‘didn’t want to see it again.’
In cross-examination, the complainant agreed that she spoke with the police: in February 2018 about a domestic situation involving her former partner; and again, in November 2018, about images of her young cousin located on her former partner’s phone. The complainant agreed that she did not disclose the alleged offending, the subject of the charges, to police on either occasion. She accepted that she had the opportunity to disclose the offending but explained that she had ‘blocked it out’.
The complainant also accepted that she asked the appellant to babysit her daughter, and in 2017 and 2018, the appellant looked after her daughter on about five occasions when her child was about two or three years old. She said she did so because she trusted the appellant’s partner, and her cousin was also present at the time. She emphasised that, to her knowledge, the appellant was never alone with her child.
In December 2020, the complainant received a phone call from police asking if she knew the appellant. She responded by reporting the charged offending.
The prosecution case also included evidence from the complainant’s mother, PB, the sister of the appellant’s partner, SS, and SS’s daughter, KM.
Relevantly, the complainant’s mother gave evidence that from 2011 to 2013, she would go shopping weekly with the appellant’s partner whilst the appellant stayed home with the children including the complainant. Further, she said the complainant visited the appellant’s home on the weekends without her, and during the school holidays, and on occasion would stay overnight. She recalled that there was a time when the complainant was 12 or 13 years old when she asked to stop going to the appellant’s home. The complainant’s mother also said that there was an occasion when she returned to the appellant’s home, after having been out with the appellant’s partner, and found the complainant at the nearby park ‘broken down, crying, upset’.
As to the penis images, the complainant’s mother said that she and the complainant were watching a movie when the complainant asked her to look at the phone and she saw the images. She said there were two images, one was an erect penis, and the other depicted a hand wrapped around the penis with a ring she recognised as having been worn by the appellant. She said she threw the phone away and broke it. This account was contrary to the complainant’s evidence that she sent the images as screenshots to her mother. In cross-examination, the complainant’s mother said that she was outraged by the images and told her daughter to go to the police. She acknowledged that while she did not again see the appellant (her brother) she continued to have telephone contact with him until 2017.
The sister of the appellant’s partner, SS, gave evidence, as did her daughter, KM. Their evidence was relevant to the appellant’s opportunity to commit the charged acts, and directly contradicted the evidence of the appellant’s partner, SL, on that topic. SS said that between 2011 and 2013, she saw the complainant at the appellant’s home on many occasions and that the complainant would sometimes stay overnight. She said the appellant was always there. She said that her sister, SL, typically left her children, and other children visiting the home, with the appellant.
KM also gave evidence that she visited the home when she was aged seven to nine, and that she was left in the care of the appellant while her mother and aunt went out.
The appellant did not give evidence at trial. The defence case consisted of evidence from the appellant’s partner, SL. Relevantly, SL gave evidence that while she and the appellant were living at their home in Davoren Park, the complainant stayed overnight at the house on one occasion only. There was a separate occasion when the complainant visited their home, but stayed in the car. She denied that there would have been any occasion, in 2011, when the appellant stayed at the house alone with the complainant. In this way, SL directly contradicted the complainant’s evidence as to the appellant’s opportunity to commit the charged offences.
SL also gave evidence that the appellant was not circumcised, had a prominent skin tag on his penis, had numerous tattoos on his legs, arm and face, and never wore jewellery.
The reasons for verdict
The trial Judge commenced her reasons by providing an overview of the prosecution case as to the charged offences before turning to give herself a series of standard legal directions as to the onus and burden of proof; the requirement to consider each charge separately; and that no adverse inference can be drawn against the appellant by reason of his decision not to give evidence. Her Honour also directed herself as to the fact there was no suggested motive for the complainant to lie, and it was not for the appellant to prove any such motive.
The trial Judge then proceeded to outline the agreed facts and summarise the evidence of the prosecution witnesses, as well as the defence case, and the evidence of the appellant’s partner, SL. Her Honour then outlined the main points of the parties’ closing addresses.
Next, the trial Judge engaged in an analysis of the evidence, and made various factual findings before reaching her ultimate conclusions. As to the complainant, her Honour found that, contrary to defence counsel’s submissions, there was nothing untoward in the complainant’s presentation. She said that the complainant gave a balanced account of her relationship with the appellant ‘describing him as someone who she had enjoyed spending time with. She made no attempt to make the events that she alleged appear more serious or give a more detailed account when she was unable to recall a particular feature of the accused or what had occurred.’ Her Honour formed a favourable assessment of the complainant’s credibility.
As to defence counsel’s criticisms of the complainant’s evidence, the trial Judge made the following findings.
1.In relation to the fact that the complainant left her young child in the appellant’s care, it could not be assumed that childcare was readily available to the complainant; and moreover, it is likely that she would not have drawn a comparison between her child aged two or three and herself at the time of the offending when she was aged 12 or 13.
2.As to the complainant’s failure to report the offending to police in 2018, it was noteworthy that the complainant’s disclosure came when the police made a direct enquiry about the appellant. It was not difficult to accept that the complainant’s focus in 2018, when speaking with the police, was her younger cousin and partner (the subject of her police attendance). Nor was it difficult to accept that she ‘locked away’ the alleged offending given her mother’s struggles with her mental health and the perceived impact of the allegations on her mother.
3.There was nothing surprising about the complainant’s inability to describe the appellant’s penis given her age, and the circumstances in which she allegedly observed it.
The trial Judge then considered the evidence of the other prosecution witnesses. Relevantly, her Honour formed a ‘favourable impression’ of the sister of the appellant’s partner, SS, and her daughter, KM. While noting there was some familial tension between the appellant’s partner, SL on the one hand, and SS on the other, her Honour formed the impression that SS did not hold such ill-feeling towards SL or the appellant, that she would seek to deliberately undermine the appellant.
As to the complainant’s mother, the trial Judge did not accept her as an entirely credible or honest witness, it would seem, due to her poor mental health which was apparent in her presentation. Her Honour accepted her evidence ‘where it accords with that given by other witnesses who I have found credible and reliable.’
The trial Judge formed an unfavourable impression of the appellant’s partner, SL, whom she considered could not be regarded as a credible or reliable witness. Relevantly, her Honour found that:
SL took every opportunity to show that there was simply no opportunity for the accused to have offended as alleged. SL’s evidence that there had been no occasion on which the accused had been at home alone with children was simply implausible, particularly given the evidence of SS, which I accept, that the accused did not like to be out from his home.
Her Honour, after rejecting the evidence of SL on this topic, was satisfied that the other evidence established that the appellant did have the opportunity to commit the offences as alleged by the complainant.
The trial Judge then considered whether the appellant suffered from a significant forensic disadvantage in testing the complainant’s account of two discrete incidents and found any such disadvantage to be minimal.
Relevantly to appeal ground 2, the trial Judge then made the following findings as to the penis images:
With respect to the photos sent to KP from the accused’s Messenger account, I find that KP gave a credible account of the images she said she received and accept that she had forwarded them to her mother. In arriving at that finding, I have taken into account the forensic disadvantage to the accused that has resulted from the images having been deleted when scrutinising KP’s evidence.
Although KP was unable to say when the images had been sent, it was when she was living in Queensland which was said to have been in 2014. KP would have been around 16 years of age at the time. I accept that such images sent to a niece may well be inherently sexual in nature and that in certain circumstances it would be entirely implausible for such images to be sent to KP unless the accused could be confident that KP would not complain about his conduct. While, as I have said, I am satisfied that images of a penis were sent to KP from the accused and SL’s account, the evidence that is before me does not allow me to be satisfied that the images were of the accused’s penis given that the only identifying feature KP could describe was a skin irritation which she recognised, and she made no mention of the ring seen by PB. In the end I have found it difficult to put the evidence to the use argued for by the prosecution without knowing more about the context in which the images were sent and that they were in fact images of the accused’s penis.
While I do not accept all the matters that defence counsel raised warrant a forensic disadvantage direction, deletion of the images KP said she received from the accused has given rise to a significant forensic disadvantage to the accused because they cannot be examined. I have accordingly not used the evidence to show that the accused had a sexual interest in KP or that he was emboldened.

The trial Judge concluded that she was satisfied beyond reasonable doubt that there was opportunity for the appellant to have offended as alleged by the complainant, and that the complainant’s evidence ‘was based on her memory of the actual events’. Her Honour found each offence proved beyond reasonable doubt.
Appeal Grounds
The appellant appealed his convictions on the following grounds:
1.The Judge’s reasons were inadequate. They were inadequate because the Judge:
Particulars
1.1    Found that KP received penis images from a Facebook Messenger account used by AB and LS (penis image(s)), despite:
1.1.1 The inconsistent evidence between KP and PB about the penis images.
1.1.2Finding that PB’s evidence could not be relied upon unless it accorded with other witnesses.
1.2    Concluded that she could not use the penis images as advanced by the prosecution without giving further reasons.
1.3    Did not state if she found the penis images were admissible for any other use.
2.The Judge erred by not identifying the permissible and impermissible uses of the penis image evidence required by s 34R, Evidence Act 1934 [sic].
3.The Judge’s reasoning about the penis images was inadequate and undermines the conclusion that KP was [a] reliable and truthful witness.
4.A miscarriage of justice occurred as a result of the Learned Trial Judge’s assessment of the evidence of the witnesses by having regard to irrelevant matters which undermined the accused’s presumption of innocence:
(a)     with respect to the prosecution witnesses that they were independent and had nothing to gain from giving honest evidence; and
(b)     with respect to the defence witness that her evidence was self-serving and was an effort to distance the accused from the complainant.
It is convenient to deal with the first three grounds of appeal together as they all relate to the trial Judge’s treatment of the penis images.
Grounds 1 and 3 – inadequacy of reasons
The appellant complains that the trial Judge provided inadequate reasons as to the basis upon which she found the appellant sent the penis images to the complainant, as well as the use made of the evidence. The prosecution relied on the evidence of the penis images to establish the appellant’s sexual interest in the complainant, and his willingness to act upon it. The prosecution also sought to use the evidence for a non-propensity use, namely, to show that he was emboldened in his dealings with the complainant. Her Honour explicitly said that she did not use the evidence for either purpose. Notwithstanding that fact, the appellant contends that the evidence of the penis images remained relevant to the broader issue of the complainant’s credibility. That is so, it is submitted, because the complainant’s evidence differed from the evidence of her mother, PB, as to the identifying features of the images. The appellant contends that her Honour’s failure to provide any explicit indication as to whether she took those differences into account when assessing the complainant’s credibility or whether she, in fact, had no regard to the evidence resulted in inadequate reasons in relation to the finding that the appellant sent the penis images, and the use, if any, that was in fact made of those images.
In considering these interlinked grounds of appeal as to the inadequacy of the reasons, it is necessary to have regard to the trial Judge’s reasons as a whole and not just those parts of the reasons dealing specifically with the penis images. That being so, it is to be observed that prior to reaching her impugned findings as to the penis images, her Honour had made the following factual findings.
1.The appellant used a Facebook Messenger account he shared with SL to communicate with SS and KM (supportive of the complainant’s evidence that the appellant sent the penis images via the Facebook Messenger account he shared with SL).
2.That she formed a favourable assessment of the complainant’s credibility.
3.That she rejected defence counsel’s criticisms of the complainant’s evidence including having left her daughter in the care of the appellant and his partner SL, the failure to report the allegations when the opportunity to do so arose, and her failure to recall details about the appellant’s penis.
4.That she rejected the complainant’s mother, PB, as an entirely credible or reliable witness as it was ‘difficult to have confidence in the accuracy of some of her recollections’ and only accepted her evidence where it accorded with evidence given by other witnesses found to be credible and reliable.
5.That the complainant’s account as to opportunity was supported by the evidence of SS and KM.
6.That the appellant’s partner, SL, was neither a credible nor a reliable witness and the defence case as to opportunity was not established (with an express reference at this point of her reasons to the standard and burden of proof).
After making those findings, the trial Judge then turned to specifically assess the evidence of the penis images. Her Honour was satisfied, on the basis of the complainant’s evidence (as supported indirectly by the evidence of SS and KM) that the appellant sent her the penis images via the Facebook Messenger account he shared with SL, and that the complainant then forwarded those images to her mother. In scrutinising the complainant’s evidence, her Honour had regard to the forensic disadvantage to the appellant resulting from the complainant’s deletion of the images from her phone in about 2014. It was by reason of that forensic disadvantage that her Honour was not satisfied that the images were, in fact, of the appellant’s penis, or that the evidence ought to be used in the ways advanced by the prosecution.
Due to the fact that the trial Judge had determined not to make the factual finding sought by the prosecution, nor use the evidence of the penis images as sought by the prosecution, it is to be expected that the focus of the reasons was on her basis for confining her factual finding to her acceptance that the appellant sent the complainant an image of a penis (not his penis) and why she was not prepared to use the evidence as sought by the prosecution rather than an explanation as to the basis upon which she was satisfied that the appellant sent the penis images.
In any event, the trial judge explained that she formed a favourable impression of the complainant’s evidence, and of the witnesses SS and KM. Her Honour correctly noted that the evidence of SS and KM provided support for the complainant’s account, to the extent that their evidence established that the appellant used the relevant Facebook Messenger account. Her Honour observed that there were differences between the evidence of the complainant’s mother, on the one hand, and the complainant on the other, as to the circumstances in which the complainant’s mother observed the penis images. Their evidence also differed as to how they identified the images as being of the appellant’s penis. Her Honour had earlier made a finding that her acceptance of the complainant’s mother’s evidence was confined to where it accorded with other witness’ evidence she found credible and reliable. Her Honour had also earlier found the complainant, and SS and KM, credible and reliable witnesses. It is implicit in her Honour’s reasons that she preferred the complainant’s evidence on this topic to that of her mother.
We do not consider that the trial Judge was required to provide any further reasons for her limited factual finding that the appellant sent the complainant the penis images. Bearing in mind the confined nature of her factual finding, we are satisfied that the reasons of her Honour were not inadequate in regard to the basis she found that the appellant sent the complainant an image of a penis.
We are also satisfied that the trial Judge provided adequate reasons as to the basis upon which she was not satisfied the images were of the appellant’s penis, and why she did not use the evidence in the manner sought by the prosecution. As detailed above, her Honour observed that there were differences between the evidence of the complainant and her mother as to what each witness observed. Her Honour found that the appellant was, in fact, at a significant forensic disadvantage because of the deletion of the images which could not now be examined. It was on that basis that her Honour concluded that she was not satisfied the images depicted the appellant’s penis, and she ought not use the evidence in the way sought by the prosecution. Whilst her Honour’s reasons are brief on this issue, in our view they readily explain the overlapping bases upon which she acceded to defence counsel’s submissions on this topic.
As to the appellant’s aligned contention, that the trial Judge provided inadequate reasons by failing to state whether the penis images were admissible for another purpose (that being, on the defence case, to undermine the complainant’s credibility and reliability), we do not agree. Her Honour’s reasoning in this regard was clear. Once her Honour was satisfied that the evidence of the penis images could not be used in the way advanced by the prosecution, and having rejected the defence case as to opportunity, her Honour was left to assess the complainant’s evidence of the offending itself. The divergence between the evidence of the complainant and her mother in relation to the penis images could have little impact on that question in terms of the complainant’s credibility and reliability. Her Honour formed a favourable impression of the credibility and reliability of the complainant’s evidence, and expressed reservations about the evidence of her mother such that she could only accept it where it accorded with the evidence of other witnesses, she found credible and reliable. Having made those findings, it was implicit in her Honour’s reasons that any conflict between the complainant’s evidence and her mother’s evidence, as to the penis images, did not cause her to doubt the credibility or reliability of the complainant, more generally.
Moreover, at trial, defence counsel did not seek to impugn the complainant’s credibility and reliability on the basis of any conflict between her evidence and her mother’s evidence as to the penis images. Rather, defence counsel submitted that the trial Judge should not rely on the evidence of the complainant’s mother at all; and the penis images either had no probative value or ought not to be used in the manner advanced by the prosecution because of the forensic disadvantage to the appellant. Her Honour’s reasons reflected the focus of those submissions.
Accordingly, the trial Judge’s reasons as to the penis images were not inadequate, and we reject appeal grounds 1 and 3.
Ground 2 – s 34R of the Evidence Act
Under this ground of appeal, the appellant complains that the trial Judge’s failure to ‘identify and explain’ the permissible and impermissible uses of the penis images was contrary to s 34R of the Evidence Act and resulted in a substantial miscarriage of justice.
As outlined earlier, the prosecution relied on the evidence to demonstrate that the appellant had a sexual interest in the complainant and a willingness to act upon it, such that it was more likely that he had committed the charged offences. It was contended that the penis messages, when considered with other evidence, including the charged acts and the evidence of the appellant’s familiarity and use of the Facebook Messenger application, demonstrated a sexual interest in the complainant and the appellant’s willingness to act upon his sexual interest.
The prosecutor, in her closing address, outlined the proposed use of the evidence and urged the trial Judge to use the evidence to make an intermediate finding that the appellant had a sexual interest in the complainant, and a willingness to act upon that sexual interest at the time of the alleged offending. In the alternative, the prosecutor submitted that it was implausible the penis messages were sent ‘out of the blue’, and the brazenness of the appellant sending the complainant inherently sexual images revealed the nature of their relationship and demonstrated his confidence that she would not disclose them. On the other hand, defence counsel contended that given there was no independent support for the existence of the messages (the complainant having admittedly deleted them), her Honour should find they were never sent to the complainant. In making this submission, defence counsel asked her Honour to reject the evidence of the complainant’s mother as to having seen the penis images. Defence counsel also submitted that even if her Honour accepted that the complainant received the penis images, they did not have strong probative value as required under s 34P(2)(b) of the Evidence Act (as they were sent about three years after the alleged offending) and emphasised the significant forensic disadvantage to the appellant in challenging the evidence.
As outlined earlier, the trial Judge found that:
1.the complainant’s evidence about receiving and sending the messages to her mother was credible;
2.there was a lack of context surrounding the messages and inconsistencies between the complainant’s evidence on the one hand, and the evidence of her mother on the other, on this topic; and
3.the forensic disadvantage in relation to the messages was sufficient to mean that they should not be used to make the intermediate findings sought by the prosecution.
At the hearing of the appeal, the respondent submitted that the evidence of the penis images was admitted de benne esse, and the trial Judge in her reasons for verdict ultimately held that the evidence did not meet the threshold requirements for admissibility under s 34P. However, subsequent to the appeal hearing, in written correspondence to the Court, the respondent conceded that the evidence was admitted by her Honour pursuant to s 34P, and the parties’ submissions at trial were, in fact, directed to the uses to which the evidence should be put, rather than the admissibility of the evidence. It follows that the respondent now accepts, for the purposes of this appeal, that s 34R was engaged.
Notwithstanding that concession, the respondent contends that any failure by the trial Judge to comply with s 34P was not sufficiently material to engage the terms of s 158(1)(b) of the Criminal Procedure Act1921 (SA) (‘the Criminal Procedure Act’); or in the alternative, this is an appropriate matter in which to apply the proviso.
Before turning to directly consider this ground of appeal, we would emphasise the undesirability of leaving the determination of questions of admissibility of evidence until the close of evidence, or indeed after final addresses. It is to be accepted that in trials proceeding before a judge sitting alone, there may be some merit in taking a witness’s evidence in its entirety, including those aspects of the evidence the subject of objection, so that the trial judge can properly understand the relevance and probative value of the impugned evidence in its complete context, and to avoid a witness having to give evidence twice. However, even so, questions of admissibility should be determined, at the very latest, before the close of the prosecution case. That is so, because an accused person is entitled to know the case he or she must meet before being required to make an election as to whether to give evidence. Moreover, it is desirable that the parties are informed as to the precise nature, and the permissible use for which the evidence is admitted, before they are called upon to elect or address, and before the trial judge reserves to deliver verdict(s) so as to avoid the confusion which occurred in this case.
Turning now to consider the impugned evidence of the penis images and the trial Judge’s directions as to the use of that evidence.
Sections 34P and 34R relevantly provide:
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—
(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.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
Where evidence of discreditable conduct is admitted, a trial judge is obliged pursuant to s 34R to give directions which ‘identify and explain’ the purpose for which the evidence may, and may not, be used. The permissible uses are those which satisfy the requirements of s 34P(2). The impermissible uses include the use identified in s 34P(1)(a) of the Evidence Act, namely that the evidence of discreditable conduct cannot be used to suggest that the defendant is more likely to have committed the charged offence because he or she has engaged in discreditable conduct often referred to as ‘bad person reasoning’.
It is well established that a determination of whether there has been compliance with s 34R(1) requires a consideration of the issues and forensic contest in any given case.[2] As explained by Lovell J (as his Honour then was) in JGS v The Queen:[3]
… Ultimately, when considering the adequacy of the 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.
[2] Perara-Cathcart v The Queen (2017) 260 CLR 595 at 51-56 (Kiefel, Bell and Keane JJ); R v C, CA [2013] SASCFC 137 at [96]; JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Peek and Bampton JJ agreeing).
[3] JGS v The Queen [2020] SASCFC 48 at [97].
In the present case, the trial Judge made no direct reference in her reasons to s 34R of the Evidence Act and the mandatory obligation to identify and explain the permissible and impermissible uses of the evidence of discreditable conduct. However, her Honour did outline the basis upon which she ultimately admitted the evidence of the penis images, and the proposed uses of the evidence advanced by the prosecution. Her Honour expressly referred to the prosecution’s reliance on the evidence for two purposes: first, for a propensity purpose pursuant to s 34P(2)(b) to establish the appellant’s sexual interest in the complainant and willingness to act upon that sexual interest; and secondly, for a non-propensity purpose pursuant to s 34P(2)(a) to demonstrate the nature of the appellant’s relationship with the complainant. Whilst the terms of those directions did not conform with the wording of s 34R, this was not necessary so long as the directions adequately identified and explained the permissible use of the evidence, as they did in this case.

It is, however, conceded by the respondent that the trial Judge gave no direction at all as to the impermissible use of the evidence; and more particularly, that her Honour did not give herself a direction not to engage in the impermissible ‘bad person reasoning’ prohibited in s 34P(1). Notwithstanding that conceded omission, the respondent submits that s 158(1)(b) of the Criminal Procedure Act carries with it a threshold requirement of materiality or, in other words, that only errors of law capable of affecting the outcome of a trial justify the appellate court’s intervention.[4] It is the respondent’s contention that the trial Judge’s non‑compliance with s 34R, in the circumstances of this case, was not of sufficient materiality to engage the terms of s 158(1)(b) of the Criminal Procedure Act.
[4] Edwards v The Queen (2021) 273 CLR 585 at [74] (Edelman and Steward JJ); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [162] (Edelman J in dissent); Weiss v The Queen (2005) 224 CLR 300 at [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
The question of whether a ‘wrong decision on any question of law’ under s 158(1)(b) includes a threshold requirement of materiality was the subject of limited argument on this appeal. The issue was, however, recently considered in some detail by this Court in Adamson (A Pseudonym) v The King (‘Adamson’).[5] In Adamson, after reviewing the relevant High Court authorities, this Court noted that the High Court is yet to reach a settled position in relation to whether there exists any threshold requirement of materiality in relation to the second and third limbs of the common form appeal provisions; and that the issue may be addressed in the near future by the High Court, as currently reserved in an appeal from the Queensland Court of Appeal’s decision in R v MDP.[6]
[5]     Adamson (A Pseudonym) v The King [2024] SASCA 91 at [81]-[92].
[6]     R v MDP [2023] QCA 134.
In the present case, we are satisfied that should there exist any threshold requirement of materiality in relation to s 158(1)(b) and the notion of an error of law, we would in any event be satisfied that it was met in the circumstances of this case.
As outlined earlier, the trial Judge made an adverse factual finding that the appellant sent the complainant Facebook messages containing an image of a penis. As conceded by the respondent, the evidence which underpinned that factual finding constituted evidence of discreditable conduct. Accordingly, s 34R was engaged. It was common ground on appeal that her Honour gave no direction, at all, as to the impermissible use of the evidence of discreditable conduct.
The evidence and adverse factual finding made by the trial Judge, that the appellant sent the complainant images of a penis, was clearly prejudicial in a case involving two disputed unlawful sexual acts of fellatio. Whilst it is true her Honour did not expressly use the evidence to reason to guilt, or expressly use the evidence to reason impermissibly in the manner prohibited by s 34P(1), we are satisfied that the failure by her Honour to give herself a direction mandated by s 34R was material, and capable of affecting the outcome of the trial. In the absence of the mandatory direction not to use the evidence to reason impermissibly, there was a capacity for the evidence to influence her Honour’s consideration and assessment of the prosecution case. For that reason, should s 158(1)(b) carry a materiality threshold, we are satisfied that it would be met in the circumstances of this case.
In the alternative, the respondent contends that this is an appropriate case to apply the proviso. For this Court to apply the proviso, the respondent is required to establish that there has been ‘no substantial miscarriage of justice’. The question of whether no substantial miscarriage of justice has actually occurred requires this Court to consider whether it can be satisfied that notwithstanding the identified error, the same verdict would have been returned in any event.[7] It follows that it is a necessary, but not sufficient, condition of the application of the proviso that an appellate court be satisfied, on the whole of the record, that the defendant was guilty of the charged offences.[8] In making such a determination, this Court is required to undertake its own assessment of the evidence and determine, whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly on the record (including the guilty verdicts), the appellant was proved beyond reasonable doubt to be guilty of the charged offences of which he was found guilty.[9]
[7]     JGS v The Queen (No 2) (2022) 141 SASR 288 at [188].
[8]     Weiss v The Queen (2005) 224 CLR 300 at [44] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[9]     Weiss v The Queen (2005) 224 CLR 300 at [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
The nature and effect of some errors of law will preclude an appellate court from being able to determine whether an appellant’s guilt was proved beyond reasonable doubt. For example, a misdirection which prevents the performance by a jury of its function, without more, will result in a substantial miscarriage of justice.[10] As explained in Orreal v The Queen:[11]
An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case. As explained in Kalbasi v Western Australia, this is because some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. The examples there given include cases which turn on issues of contested credibility or cases where there has been a wrong direction on an element of liability in issue. What they have in common is that the appellate court cannot be satisfied that guilt has been proved.
(Citations omitted.)
[10] Lane v The Queen (2018) 265 CLR 196 at [48] (Kiefel CJ, Bell, Keane and Edelman JJ).
[11] Orreal v The Queen (2021) 274 CLR 630 at [20] (Kiefel CJ and Keane J).
Central to the respondent’s contention that this is an appropriate case to apply the proviso, is the trial Judge’s positive acceptance of defence counsel’s submissions as to the forensic disadvantage attached to the use of the evidence of discreditable conduct, and the fact her Honour’s reasons for verdict revealed that she did not use the evidence to reason to guilt, nor explicitly engage in impermissible bad person reasoning.
Notwithstanding those matters, and for the following reasons, we are not satisfied that the respondent has established that the trial Judge’s failure to comply with s 34R and ‘identify and explain’ the impermissible uses of the evidence of the discreditable conduct did not result in a substantial miscarriage of justice.
First, the prosecution case hinged on the trial Judge’s acceptance, beyond reasonable doubt, of the complainant’s credibility and reliability as to the charged offences. This was the central matter in dispute at trial and the subject of contest between the parties. There was no admissible evidence adduced, independent of the complainant, in support of the charged offences.
The trial Judge’s factual finding that the appellant sent the complainant images of a penis (in the context of a trial where the charged offences involved unlawful sexual acts of fellatio) was a highly prejudicial finding. The evidence by its very nature, and close factual connection with the charged offences of unlawful fellatio, had the capacity to give rise to the real risk of the impermissible bad person reasoning prohibited by s 34P(1).
In those circumstances, and notwithstanding the absence of any express reference in the reasons to her Honour using the evidence of discreditable conduct to reason to guilt, or indeed to reason impermissibly, we do not think it is possible to exclude that her Honour’s assessment of the credibility and reliability of the complainant, and her consideration of the prosecution case, was influenced, even subtly, by the absence of the mandatory direction that she not engage in bad person reasoning.
Secondly, while it is true that an experienced criminal judge, such as the trial Judge in this case, is less likely than a jury to engage in impermissible bad person reasoning, the fact remains that s 34R(1) expressly extends the application of the mandatory directions to trial judges sitting without a jury. We consider this to be an indication that Parliament envisaged that a judicial officer may also be at risk of reasoning impermissibly in the way proscribed by s 34P(1). It follows that limited weight can be attached to the fact the trier of fact was an experienced judge sitting without a jury.
It might also be said that the trial Judge, having not used the evidence for the permissible uses advanced by the prosecution, is hardly likely to have used the evidence for impermissible bad person reasoning. Whilst this is undoubtedly a persuasive submission, the highly prejudicial nature of the evidence needs to be borne in mind. In those circumstances, and in the absence of the direction mandated by s 34R, we cannot be satisfied that her Honour’s reasoning as to the credibility and reliability of the complainant’s evidence was not influenced by the evidence of his discreditable conduct. Given the challenges to both the credibility and reliability of the complainant’s evidence, and the failure of her Honour to direct herself in accordance with s 34R(1), we are not satisfied on the whole of the record that the appellant’s guilt was established to the requisite standard. Accordingly, we are not satisfied that a substantial miscarriage of justice has not occurred, and we would not apply the proviso.
It follows that we uphold ground 2 and allow the appeal.
Ground 4
Given that this ground of appeal was fully argued at the appeal hearing and this matter is to proceed to a re-trial, we have proceeded to consider the ground of appeal, although it is not strictly speaking necessary to do so. Under this ground of appeal, the appellant complains that the trial Judge had regard to irrelevant matters when assessing the evidence of the prosecution witnesses which undermined the presumption of innocence resulting in a miscarriage of justice. This complaint has two limbs: first, that her Honour had regard to the prosecutor’s submission that the witnesses SS and KM (who gave evidence as to the appellant’s opportunity to commit the offences) were independent and had ‘nothing to gain’ from giving honest evidence; and secondly, that her Honour took into account the prosecutor’s submission that the evidence of the defence witness (the appellant’s partner, SL) was self-serving and was, in effect, an attempt to place distance between the appellant and the complainant.
During her closing address, the prosecutor submitted that the prosecution witness, SS, had nothing to gain from giving evidence against her own family and was a completely independent witness. The prosecutor also submitted that the evidence of the appellant’s partner, SL, was self-serving, implausible and that she was someone willing to say whatever possible to distance herself and the appellant from the complainant. In her reasons for verdict, the trial Judge repeated these submissions. Her Honour ultimately ‘formed a favourable impression of both KM and SS’ and said that:
[W]hile clearly there appeared to be some level of disharmony between SS and SL over the contribution that SS had made towards their father’s care, I did not get the impression that SS held such ill-feeling towards either SL or the accused to have sought to deliberately undermine the accused and give false evidence.
The trial Judge also formed ‘an unfavourable impression of SL’ and rejected her evidence. Her Honour did so on the bases that: she gave a confused and ‘internally inconsistent account’ of when it was that the complainant had been present at the house and why, which was unexplained except as to place distance between the accused on the one hand and the complainant and her mother on the other; and that her evidence as to a lack of opportunity was implausible given the evidence of SS that the appellant did not like to leave his home.
After rejecting the evidence of SL as to opportunity, the trial Judge stated ‘it is not for defence to prove anything. I must be satisfied beyond reasonable doubt that KP has been truthful and accurate.’
The trial Judge had also given herself directions that whilst defence counsel had not suggested the complainant had any motive to lie, the appellant bore no onus to prove a motive for her to lie; the absence of an identified motive to lie did not strengthen the prosecution case; and as to the onus and standard of proof.
The appellant relies on the authorities of Robinson v The Queen (‘Robinson’),[12] Stafford v The Queen[13] and Hargraves v The Queen (‘Hargraves’)[14] in support of the proposition that ‘no witness may be assessed having regard to their apparent or alleged interest in the outcome of the case, or lack thereof’. The appellant contends that to do so is to deprive an accused person of the presumption of innocence. In relation to the prosecution witnesses SS and KM, the appellant submits that the trial Judge implicitly adopted the prosecution submission that SS and KM had ‘nothing to gain’ in giving their evidence and thereby reversed the onus of proof as this process of reasoning suggests an accused person should be convicted unless he can show a motive to lie.
[12] Robinson v The Queen (No 2) (1991) 180 CLR 531.
[13] Stafford v The Queen (1993) 67 ALJR 510.
[14] Hargraves v The Queen (2011) 245 CLR 257.
The appellant also submits that the trial Judge implicitly accepted the prosecutor’s submission that SL’s credibility was undermined by the fact she wished to ‘protect’ the appellant as he was her partner; and contends that to reason in this way her Honour first assumed that the appellant was guilty which effectively undermined the presumption of innocence.
In the case of Robinson, the appellant was charged with the offence of rape. The issue at trial was consent, and the accused gave evidence that it was his belief that the complainant’s consent was freely given. When directing the jury about their assessment of witnesses, the trial Judge said that they should take into account the interest a witness might have in the outcome of the case and that the defendant ‘had the greatest interest of all the witnesses … and that, therefore, you should scrutinise his evidence closely’.
On appeal from the Supreme Court of Queensland (Court of Criminal Appeal) the question for the High Court was whether the trial Judge erred in directing the jury that in considering the credibility of a witness, one of the tests to be applied is the interest which the witness had in the outcome of the case and that the greater the interest the more carefully the witness’s evidence should be scrutinised. The High Court, allowing the appeal, held that the direction would have been understood by the jury as meaning that the evidence of the accused had to be scrutinised more carefully than that of any other witness and was a serious misdirection which went to the fairness of the trial and undermined the presumption of innocence. The High Court explained:[15]
… To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.
Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial – including the evidence of the accused – the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence of the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour’s directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence.
[15] Robinson v The Queen (No 2) (1991) 180 CLR 531 at 536.
In the subsequent decisions of Stafford v The Queen[16] and RameyvThe Queen,[17] the High Court reiterated that trial judges should not give juries a direction to evaluate the evidence of an accused on the basis of the accused’s interest in the outcome of the proceedings.
[16] Stafford v The Queen (1993) 67 ALJR 510.
[17] Ramey v The Queen (1994) 68 ALJR 917.
In Hargraves, the accused were each charged with one count of conspiracy to defraud the Commonwealth and one count of conspiracy to dishonestly cause a loss to the Commonwealth. After a trial by jury, during which each accused gave evidence in his own defence, each accused was convicted of the second count but acquitted of the first count.
The trial Judge in giving directions as to the jury’s assessment of the credibility of witnesses said: ‘Does the witness have any interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness’s own ego. There are a number of personal interests which people have and which they sometimes try to protect in giving evidence.’ Both accused appealed against their convictions on the ground that the trial Judge had misdirected the jury about how to assess their evidence contending that the directions were contrary to the decision in Robinson.
The Court of Appeal (Queensland) in dismissing the appeals held that the trial Judge had misdirected the jury about how to assess the defendants’ evidence but applied the proviso on the basis that there had been no substantial miscarriage of justice.
The High Court in dismissing the appeal held that the Court of Appeal was wrong to hold that the trial Judge had misdirected the jury. The High Court explained that the case of Robinson was a particular application of the general principle that it is a fundamental feature of a criminal trial that it is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt. While a judge may suggest how the jury might evaluate the credibility of evidence, the judge’s directions to the jury, whether by way of legal direction or judicial comment on the facts, must not deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.
The High Court said:[18]
As has been repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law or statute may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge's instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury's attention from the need to be persuaded beyond reasonable doubt of the accused's guilt before returning a verdict of guilty.
…
Robinson, too, is to be seen as a particular application of this more general principle. Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.
The principle that is identified is expressed at a high level of abstraction: did the judge's instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task.
[18] Hargraves v The Queen (2011) 245 CLR 257 at [42], [45]-[46] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Applying the general principles enunciated in Robinson as explained in Hargraves, the relevant question is whether the trial Judge was deflected from her ultimate task of deciding whether the prosecution had proved its case beyond reasonable doubt.
Generally speaking, and where there is an evidentiary basis to do so, it is open to a trial judge or jury to take into account a witness’s interest in the outcome of proceedings, or lack thereof, or his or her potential motivation for giving evidence, as a relevant factor, when assessing the credibility of the evidence of the witness. This does not, of itself, necessarily undermine the presumption of innocence or reverse the onus of proof. A witness’s independence (that is, the fact he or she is not aligned with either the prosecution case or the defence case) is a relevant factor when assessing the credibility of the witness. The weight to be given to this factor will inevitably vary from case to case. Similarly, the fact that a witness (other than the accused) may have a particular motivation or interest in the outcome of proceedings may also be a relevant factor in assessing the credibility of the witness’s evidence. Again, whether this is so, and the weight to be afforded to this matter, will vary from case to case.
A trial judge’s instructions, however, must not undermine the presumption of innocence or deflect a jury from its proper task, namely to determine whether the prosecution has proved the case beyond reasonable doubt, for example, as occurred in Robinson by ‘[i]nviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses’.
In the present case, the appellant did not give evidence. There was nothing in the trial Judge’s reasons for verdict which suggested that her Honour reversed the onus of proof in her assessment of the prosecution case. The prosecutor’s submission that KM and SS were ‘independent’ was available on the evidence, as was her Honour’s impression that SS did not have such ill-feeling towards either SL or the appellant to have sought to deliberately undermine them or give false evidence. KM and SS were not aligned with the complainant and her immediate family. There was limited evidence of any hostility between the witnesses and the appellant or SL. The fact of their impartiality as witnesses was a relevant factor (in addition to other matters) when considering the credibility of their evidence as to the appellant’s opportunity to commit the charged offences. In reasoning in this way, there was no risk that her Honour reversed the onus or standard of proof in her assessment of their evidence.
Similarly, it was open to the prosecutor to challenge the credibility of the appellant’s partner, SL, on the basis that she was embellishing her evidence by reason of her relationship with the appellant. Even so, this was not the basis upon which the trial Judge rejected her evidence. Rather, SL’s evidence was rejected as being internally inconsistent, implausible and at odds with the evidence of SS and KM, which her Honour explicitly accepted as cogent. Moreover, immediately after rejecting the evidence of SL, her Honour proceeded to instruct herself that it was not for defence to prove anything and that she must be satisfied beyond reasonable doubt that the complainant had been truthful and accurate. In other words, her Honour reiterated her earlier directions as to the onus and standard of proof.
In those circumstances, we are satisfied that the trial Judge has not been deflected by the prosecutor’s submissions about the witnesses’ independence or interest in the outcome of the proceedings from her task of deciding whether the prosecution had proved its case beyond reasonable doubt. There was no perceptible risk of a miscarriage of justice, and we refuse permission to appeal on this ground.
Conclusion
We grant permission to appeal on grounds 1, 2 and 3; refuse permission on ground 4; allow the appeal on ground 2; remit the matter to the District Court and order a re-trial.