Davis v The King - [2022] SASCA 116

Supreme Court of South Australia
(Court of Appeal: Criminal)
DAVIS v THE KING
[2022] SASCA 116
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
3 November 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Appeal against conviction.
The appellant was charged with two counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The first count alleged that the appellant had penile-vaginal sexual intercourse with the complainant, a person under the age of 17 years. The prosecution case was that this occurred in a spa bath in a motel room at Glenelg. The second count also alleged that the appellant had penile-vaginal sexual intercourse with the complainant. The prosecution case was that this occurred immediately after the sexual intercourse in the spa bath, on a bed in the same motel room.
A jury unanimously found the appellant not guilty of the first count and guilty of the second count.
The issues raised on appeal, broadly described, are:
•whether there was a miscarriage of justice in that the trial judge failed to direct the jury properly as to the permissible and impermissible uses of the appellant’s alleged kissing or attempted kissing of the complainant (Ground 3.2);
•whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to evidence that the complainant was distressed when she made complaints to her teacher and counsellor (Ground 4);
•whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to the evidence of the appellant’s good character (Ground 5);
•whether the verdict of guilty on Count 2 was unreasonable as being inconsistent with the acquittal on Count 1 (Ground 6); and
•whether the verdict of guilty on Count 2 cannot be supported having regard to the evidence (Ground 7).

Held (by the Court), allowing the appeal on Ground 3.2 only, setting aside the conviction and remitting the matter for retrial:
1.Having particular regard to the character the prosecution ascribed to the kiss, the judge erred as a matter of law in at least failing to include the evidence of the kiss in the directions about uncharged acts.
2.The evidence of the kiss was of a different character from that of the other uncharged acts and required a clear direction on the use to be made of it as an uncharged act. The Court cannot be satisfied that the same verdict would have been returned had this error not occurred. This is not a case for application of the proviso under s 185(2) of the Criminal Procedure Act 1921 (SA).
3.The judge’s direction inviting the jury to deploy evidence of the complainant’s distress to assess the complainant’s ‘reliability’ occurred in close proximity to the use of the word ‘credibility’ and in a context such that the judge used that word manifestly in opposition to using the evidence of distress for the truth of the complaint.
4.The jury had been reminded sufficiently of the complainant’s emotional fragility and its potential for impact upon her credibility such that the judge’s directions adequately took account of that possibility.
5.While the judge did not err as a matter of law in framing the direction with respect to the evidence of the appellant’s good character in the manner she did, the language used carries a risk, in context, of misleading a jury about the use it can make of good character evidence. Given the conclusion with respect to Ground 3.2, it is not ultimately necessary to determine whether a miscarriage of justice occurred in this instance.
6.The inconsistencies and other difficulties with the complainant’s evidence on which the appellant relied did not render the verdict on Count 2 unreasonable or insupportable.
7.The conviction on Count 2 was not necessarily inconsistent with the acquittal on Count 1. A verdict of not guilty on one count does not necessarily reflect a view that a complainant was untruthful or so unreliable such that none of their evidence can be accepted. The inconsistencies in the complainant’s evidence, having regard to the evidence of her intellectual disability, were not such as to require that conclusion.

Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) ss 34M(4), 34R, referred to.
JGS v The Queen (No 2) [2022] SASCA 72; Jones v The Queen (1997) 71 ALJR 538; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Melbourne v The Queen (1999) 198 CLR 1; MFA v The Queen (2002) 213 CLR 606; Pell v The Queen (2020) 268 CLR 123; R v Baden-Clay (2016) 258 CLR 308; R v Baker (2000) 78 SASR 103; R v Brady [2014] SASCFC 7; R v Freeman [1980] VR 1; R v Gallagher (1986) 41 SASR 73; R v H, GJ (2008) 102 SASR 82; R v Humble (2009) 193 A Crim R 324; R v P, PD [2007] SASC 127; The Queen v Trimboli (1979) 21 SASR 577; Weiss v The Queen (2005) 224 CLR 300, considered.

DAVIS v THE KING
[2022] SASCA 116
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: The appellant was charged with two counts of unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The first count alleged that the appellant had penile-vaginal sexual intercourse with the complainant, a person under the age of 17 years. The prosecution case was that this occurred in a spa bath in a motel room at Glenelg. The second count also alleged that the appellant had penile-vaginal sexual intercourse with the complainant. The prosecution case was that this occurred immediately after the sexual intercourse in the spa bath, on a bed in the same motel room.
A jury unanimously found the appellant not guilty of the first count and guilty of the second count.
The Amended Notice of Appeal against Conviction filed on 21 April 2022 raised several grounds and sub-grounds. On 26 April 2022, President Livesey granted permission to appeal on Grounds 1 and 4 and referred Grounds 2-5, 6 and 7 to this Court. The appellant then filed a Second Amended Notice of Appeal on 1 September 2022. That Notice of Appeal redesignated Ground 1 as a particular to Ground 6 and provided further particulars to Grounds 6 and 7. Grounds 2 and 3.1 of that Notice are no longer pressed. As a result, the issues now raised on appeal, broadly described, are:
·whether there was a miscarriage of justice in that the trial judge failed to direct the jury properly as to the permissible and impermissible uses of the appellant’s alleged kissing or attempted kissing of the complainant (Ground 3.2);
·whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to evidence that the complainant was distressed when she made complaints to her teacher and counsellor (Ground 4);
·whether there was a miscarriage of justice in that the judge failed to direct the jury properly with respect to the evidence of the appellant’s good character (Ground 5);
·whether the verdict of guilty on Count 2 was unreasonable as being inconsistent with the acquittal on Count 1 (Ground 6); and
·whether the verdict of guilty on Count 2 cannot be supported having regard to the evidence (Ground 7).
The evidence
The complainant’s evidence of unlawful sexual intercourse
On 20 July 2019, the appellant, who was a friend of the complainant’s family, took the complainant to the Glenelg Motel to celebrate her sixteenth birthday. The complainant, who has an intellectual disability, was 16 years old. The appellant was 33 years old. The prosecution case was that whilst staying in a deluxe spa suite at the Glenelg Motel, the appellant had penile-vaginal intercourse with the complainant, twice. The complainant gave evidence in the form of a prescribed interview and by way of a pre-trial special hearing.
The prescribed interview
In the prescribed interview, the complainant said the appellant had come to see her for her birthday. She thought he was taking her to the movies, but they went to a hotel in Glenelg. The appellant took her to a room, which he booked for two people. The complainant noted a double bed there.
The complainant said that she got into the spa. She was wearing bathers she had got from her suitcase. The appellant was also in the spa and kept moving his legs closer to her. She kept moving away. He moved his hands to her legs. He touched her shin. Then he moved his hands to touch her vagina. Then he started to ‘hump’ her, which she described as sex. He touched her vagina with his hands and moved his fingers in there. Then he pushed her down and went on top of her. She was crying because she was scared. She then described him moving up and down with his penis in her vagina. She got out of the spa and put her clothes on and rang her mum to go home.
The complainant was then asked about when the appellant put his penis in her. She said she was on the bed. She said she told him to stop. He did not hear her the first time, but he heard the second time. He said he wanted to keep going but she said no. He kept going, she said no, and he stopped.
The complainant then described that she got her period that night. It was different than before, in that there was ‘heaps of blood’ on her. She noticed this when she was putting her clothes on. She was crying because it was hurting her inside her vagina and she was worried she might get pregnant.
The complainant then described that the appellant had put a ‘dildo’ on top of his penis. He then put it inside her. It went really fast and she told him to stop. After he did stop, the ‘dildo’ had ‘white stuff on it’.
The complainant was then asked about her suitcase. Her mother had helped her pack it. It contained bathers, a drink bottle and spare clothes for the next day.
The interview then moved to the subject of messaging. She said that the appellant had sent her a message on Facebook asking her to be his girlfriend, but she said no. She met the appellant in Mildura when they went there for a holiday. He was her stepfather’s best friend.
The interview then returned to what happened at the hotel room. The complainant said that while they were having sex on the bed, the appellant was hitting her on the face and said lots of swear words.
The complainant said that the first person she told about the rape was her home group teacher. She also told her mum and then she told her school counsellor.
The pre-trial special hearing
At the pre-trial special hearing, the complainant gave evidence that she called the appellant ‘Uncle Reg’, and that she first met him in 2016. The appellant added her as a Facebook friend and they exchanged messages.
The examination-in-chief proceeded with the prosecutor asking the complainant about what she had said in the prescribed interview. When asked about the sexual assaults, the complainant said she was in the spa. She was wearing one-piece bathers. The appellant was wearing shorts and no shirt. She said that the appellant put his hand on her leg. She started to move, he started to try to kiss her, and she moved away from him. He then ‘put his hands in [her] vagina’. When asked to indicate for clarification, she indicated the palm of her hand.
When asked, she said that before the appellant touched her on the vagina, he tried to take her bathers off. He tried to move them away to the side. He also kissed her in the spa. Then he picked her up and threw her on the bed. He took all her clothes off, put a condom on his penis and started having sex with her. He was on top of her.
The complainant here clarified that what she described as a condom was what she had described as a ‘dildo’ in her prescribed interview. She described it as ‘a penis thing, penis the boys have, like a plastic sleeve, a clear sleeve’ and demonstrated how the appellant applied it to his penis. In cross-examination, she said that she first heard the word ‘dildo’ in sex education.
The complainant said that when the appellant was having sex with her on the bed, he used a lot of swear words and slapped her across the face.
The complainant then said that sex also happened in the spa, after the sex on the bed.
She said that after the sex was finished, she saw white stuff in the condom. She pulled her pyjamas back on and started calling and texting her mum. She was then shown a record of text messages sent between her and her mother that night. She then said that after the intercourse, she sent a message to her mother from the motel bathroom saying, ‘Are you going to call me mum? I just miss you heaps. I want to come home tonight’. She said she did this because she was a bit scared of being around ‘with boys by [herself]’.
The complainant then said that the first person she told about what had happened was her teacher, LK, saying ‘I got sexual assault by [the appellant]’. Straight after that, she told the school counsellor, JD, using the same words, and told her more about what had happened.
The complainant was cross-examined about her use of the term ‘sexual assault’. She had heard the word ‘assault’ from her mum when playing a video game. She learned the word ‘sexual’ in year eight at school. She went to sex education classes in year eight, when she was 14. She learned the words ‘dildo’ and ‘condom’ in sex education class. They showed her how to put a condom on a penis in those classes.
The complainant then gave evidence in cross-examination that she had had a birthday party for her sixteenth birthday. The appellant was invited but had been unable to come. There was a plan that he would do something special for her birthday next time he came to Adelaide, about which there were Facebook messages. The plan developed that he would take her to a motel room because there was a spa there, and she wanted the chance to have a turn in the spa. She packed a bag for the motel with the help of her mother and included pyjamas and bathers.
The complainant said that she put on her bathers and got into the spa after watching an AFL game on television. She confirmed her bathers were one-piece bathers, and said that when she entered the spa, she was wearing a rashie and bike shorts over them.
The complainant said that once she was in the spa, the appellant went into the bathroom before emerging in boardshorts. The appellant asked if he could get into the spa with her and she said ‘no’. The cross-examiner asked if she had said ‘okay’, and she confirmed she did. The appellant got into the spa and sat down the other end from the complainant. The appellant turned on the bubbles. The water was not very deep.
The complainant then began to feel homesick, at which point the appellant asked if she wanted a hug. The complainant said ‘okay’, and the appellant moved to her side of the spa. The appellant asked again if it was okay to hug and the complainant nodded. They hugged each other. As the appellant moved back, they touched lips. The complainant agreed that it seemed like an accident. The appellant said, ‘sorry about that’. The complainant did not get out of the spa.
The complainant then denied that they both got out of the spa after the hug. She said that the appellant touched the calf of her leg and then took off her shorts.
The complainant said she did not remember telling the appellant that she wanted to go home, but she did remember speaking to her mother when she was in the motel and the appellant was outside. After she sent the messages to her mother, the appellant told her he was going to get the car ready. The appellant drove her home. When she got home, her mother and stepfather were awake. She went to bed.
The appellant came to the house the next day and greeted the whole family. She did not talk to him, and she said that he did not say hello to her. She did not hear her mother invite him to attend church with them. The complainant said she had not seen the appellant since then.
The complainant was then cross-examined further on the terms she had learned in her sex education class. She had used the word ‘hump’ in her prescribed interview. She had heard that word in her sex education class. She had heard the word ‘rape’ in that class as well and understood it to mean sex.
She was then asked about having said in the prescribed interview that she had had her period that night and confirmed that this was part of the reason she wanted to go home.
In re-examination, the complainant said that the appellant had also tried to kiss her in the spa in addition to the accidental touching of lips. She also said that the first time she was aware the room had a spa was when they arrived at the room.
The complainant’s intellectual disability
The complainant’s mother, MG, described the complainant as having an intellectual disability, which was reflected in the complainant having a younger maturity level compared to that of her peers, by about three to four years. Thus, at the age of 18, when she gave evidence, she had a maturity of about 14 years. MG also explained that the complainant was not good at expressing herself in sentences. In cross-examination, she confirmed that in 2019, when the complainant was 16, she would use the language of a 12 or 13-year-old child.
Although the complainant was in the mainstream education at her school, her disability required her to be in a special education unit for some of her lessons. Her level of disability was such that she received support through the NDIS scheme. The complainant’s stepfather, NG, described the complainant’s disability in substantially the same terms.
MG said that she had spoken to the appellant about her daughter’s disability ‘a few times’ in the past. The appellant’s evidence was that after visiting NG and MG twice, he became aware of the complainant’s intellectual disability when NG told him about it.
The complainant’s homeroom teacher in the disability unit at school, LK, gave evidence that the complainant operated at a year five or six level with her literacy, numeracy, social and emotional needs, and life skills. She said that the complainant’s disability bore on her ability to communicate. She would struggle to process information, become overwhelmed with feelings at times and not be able to express herself. In those situations, she would just shut down. She did not have a lot of resilience and could be very emotional.
The wellbeing coordinator or school counsellor at the complainant’s school, JD, described the complainant’s intellectual disability in similar terms.
The birthday plans
The appellant had known the complainant’s stepfather, NG, from school in Mildura. They became close friends after school. As a result of their friendship, the appellant, who still lived in Mildura, met MG and her children on several occasions. The complainant and appellant first met in 2016.
The complainant invited the appellant to her sixteenth birthday party in February 2019. The appellant was unable to attend the party. MG gave evidence that she and the appellant discussed possible arrangements for the appellant to come to Adelaide and take the complainant out to celebrate, later in the year. The possible arrangements they discussed included taking the complainant out for dinner or bowling but nothing definite was decided on. MG confirmed in cross‑examination that when the appellant took the complainant out, he did so with her permission.

MG confirmed in cross-examination that the appellant’s visits to Adelaide would be discussed in advance, often in the course of them playing online video games, wearing headsets and talking to each other. She, NG and the appellant would all talk in this way.
On 20 July 2019, the appellant travelled from Mildura to celebrate the complainant’s birthday. The appellant went to the shops with the complainant’s parents in the afternoon. MG’s evidence was that they asked him what he planned on doing with the complainant that night. The appellant explained that he had booked a motel room with a spa in it that the complainant could use if she wanted to. MG said that the appellant told them he received a special spa upgrade, after a mix up with the booking. He said that if the complainant wanted, she could stay overnight. NG also said that the hotel had mucked up the booking and the appellant got upgraded to a spa room. He confirmed in cross-examination that it was the appellant who had told him that.
MG confirmed in cross-examination that she had given her permission for the appellant to take the complainant to a motel room for a ‘night away from the boys’, as the complainant often fought with her brothers. She did not recall specifically talking to the complainant about a spa. She did not discuss with the complainant the need to take bathers for a spa.
The appellant gave evidence that before he got to Adelaide on 20 July 2019, no decision had been made about what he would do with the complainant for her birthday. They were talking about the movies and bowling. He said he had booked a motel room with a spa and, if she wanted to, she could come and try it out. MG and NG said that if she wanted to, she could go. He said he had booked the room on the way to Adelaide. He always booked this room when coming to Adelaide, as he did not have a spa at home and therefore it was a bit of a treat. He gave examples of when he had done this. He produced a photograph of him with his son taken in the spa room at the motel in 2017.
The appellant said he had not received a special spa upgrade and denied having told the complainant’s parents that he had.
In cross-examination, the appellant denied that there was any plan for the complainant to stay the night, to have a night away from her brothers. He said that the plan was for her to have a spa and that he would then take her home.
MG said that before going to the motel, she spoke to the complainant about staying overnight because the complainant was not very good at staying at other people’s houses or away from her. The appellant said that he heard MG speak to the complainant and ask if she wanted to go. He said he heard MG say there would be a spa in the room and the complainant say she would love to go. However, he then almost immediately said he did not hear any conversation with the complainant about there being a spa.
The appellant and the complainant left after dinner. MG said she knew they were going to a motel but did not know which one. However, she was always able to locate the complainant through a GPS locator on her phone. MG said that the complainant packed her own bag.
Departure from the motel and arrival at home
MG said that she received a message from the appellant at about 9:30pm, saying that the complainant was missing her. She messaged that she would call the complainant. She received another message from the appellant about 20 minutes later, saying that the complainant was packing her bag. She spoke to the complainant on the phone and understood from that conversation that the appellant would bring her home.
MG said that the complainant and the appellant returned to her house at about 11:30pm that night. MG and NG were both still awake. Before the complainant spoke to MG, the appellant told MG that he needed to talk to her. He said that he was afraid that MG and NG were going to kill him. The complainant went to bed. The appellant appeared worried and stressed to MG.
The appellant told MG that the complainant seemed uncomfortable when they were in the spa, and he asked her if she wanted a cuddle and she said yes. He said that after he gave her a cuddle, she still looked uncomfortable. He asked if she wanted a kiss and she said yes. He went to kiss her, and he accidentally kissed her on the lips. MG understood that the complainant then got out of the spa.
After the appellant said this, NG entered the room. The appellant told NG what he had told MG. MG then left the conversation and went to the complainant’s room.
NG’s evidence was that the appellant told him that when he and the complainant were at the room, they had a spa. The complainant was a bit upset and he offered to give her a kiss on the cheek. He went to do that, and she turned her head and got her lips. NG thought that during this conversation the appellant seemed a bit nervous. NG said words to the effect that ‘accidents can happen like that’.
The appellant left later that night. He came to the house the next day at around 8:30am, when the family was getting ready to go to church, making their way out to the car. MG spoke with the appellant outside the house. The adults were standing on the driver’s side of the car. The complainant came outside, wearing a hoodie with the hood up, went the long way round the back of the car to the passenger side door and got in without looking at anyone. In cross‑examination, MG accepted that the complainant would sometimes wear her hood up around her face.
Complaint
MG gave evidence that about a week after the trip to the hotel, the complainant was with MG at the shops, when they had a conversation. MG asked the complainant if she was uncomfortable and said that if she did not want to talk to her, she could speak to LK, the complainant’s homeroom teacher, or JD, the complainant’s counsellor.
LK gave evidence that on the morning of 6 August 2019, the complainant approached her, obviously distressed, to talk privately. In LK’s office, the complainant said, ‘a family friend tried to rape me a couple of weeks ago’. The complainant covered her face with her hands and started crying. LK thought it would be appropriate for the complainant to be taken to JD.
LK confirmed in cross-examination that she felt that the presentation of the complainant was different than on previous occasions because of what she was saying and doing. She accepted that there were previous occasions at school where the complainant presented as upset and crying.
JD had been seeing the complainant in the role of a counsellor from 2017 to 2019. JD gave evidence that LK brought the complainant to her office at about 9:00am on 6 August 2019. The complainant said to JD, ‘I was raped’. The complainant was distraught and teary. JD and LK comforted the complainant for a couple of minutes, after which LK returned to her teaching.
The complainant said to JD that the appellant had taken her out to a motel room, which she said had a bed, TV, couch and hot tub. She also said that she thought their plan was to go bowling or to the cinema.
The complainant said to JD that while they were in the hot tub, the appellant tried to kiss her and touched her around the waist and her private parts. She said she had her bathers on. The complainant said that he touched her vagina and then he touched inside of her vagina. She asked him to stop but he did not. JD asked what happened next. The complainant said that ‘he did the S-E-X word’. The complainant then told JD that the appellant ‘was on top of her, humping her up and down with his penis out and then she got her period’. She then went to the bathroom; she was very scared and upset and rang her mum and asked her to come and pick her up and take her home. She then said that the appellant spoke to her mum and then took her home.
The complainant was inconsolable after telling this to JD and asked JD to ring her mother to come and get her.
In cross-examination, JD explained that the complainant had previously consulted with her to improve her emotional regulation. She had come to her on account of conflict occurring on the bus or with her brothers, but had not presented in a distressed, tearing state as she had on this occasion.
Sex education classes
In cross-examination, LK said that although she had taught sex education to the complainant, she did not think that the use of a condom was part of the class that she taught. She said that the complainant may have attended a mainstream sex education class which taught the use of condoms.
JD gave evidence that she taught sex education classes. She said that the use of condoms was not normally taught in year nine but noted that it was taught in the mainstream class. She could not confirm whether the complainant was in a class she taught.
MG said that the complainant had sex education classes at a couple of different levels of her schooling, including primary school and later on.
The motel room
The former manager of the Glenelg Motel gave evidence that the room occupied by the appellant on 20 July 2019 had been booked through the Glenelg Motel website on that day at 3:20pm. The booking was for a room with a queen‑sized bed and a spa for one night. The printed booking form was printed at 5:53pm. A handwritten note on the form indicated that the appellant had telephoned to say that he had a car breakdown and would not be there until 8:00pm.
The manager confirmed in cross-examination that when a booking is made over the website, there is a default setting which modifies the data entered so that it reflects that there are two guests, irrespective of what the prospective guest enters into the website. She had said in chief that only the appellant had come into the office that evening but confirmed in cross-examination that the appellant had indicated two guests on the guest registration slip.
The appellant gave evidence that he had stayed with the complainant’s parents on a number of occasions, but it was his usual practice to obtain a motel room. He said that when he attempted to book the motel, he selected one person staying in the room, but the website defaulted to two people. He denied that he had an intention, at the time of booking, to have the complainant stay at the motel. He said it was his usual practice to book along the way. On this occasion, he did so when he stopped at Renmark, at about 11:30am. He disputed that he had booked it at 3:20pm.
The appellant said that when he filled in the paperwork at the motel, he wrote that two people were staying, because that is what he had always done when his partner had come down in the past. When he completed the paperwork, he provided accurate details such as his driver’s licence details and credit card.
The Facebook messages
MG said that prior to the trip to the motel at Glenelg, she had not looked at her daughter’s Facebook messages. About a week after the trip, however, she looked at the complainant’s laptop which was on the kitchen table, charging. She looked at the messages from the appellant. She took screenshots of the messages and later provided them to the police.
The appellant said in evidence that he sent the complainant a Facebook friend request after asking MG for permission to do so. He and the complainant exchanged messages using the Facebook Messenger service. He said he did this because she was like his family. In these messages they would sometimes refer to each other as boyfriend and girlfriend.
The complainant was cross-examined on her use of language in the messages. She said she would not refer to her friends as girlfriends or boyfriends. She did have a boyfriend at one point. She would sometimes joke that the appellant was her boyfriend.
The appellant said in evidence that he referred to all girls who were his friends as girlfriends. He said that he understood the complainant’s reference to him in that way to mean just a good friend. He said that one message, responding to a photograph from the complainant of the view out of a plane window, which read, ‘Oh, wow, how is my beautiful girlfriend’, was a joke. He said that was just how he spoke with everyone, and he referred to all his friends, male and female, as beautiful. He referred to the complainant as his ‘beautiful girlfriend’ because she was family and he would do anything for her.
In cross-examination, the appellant said that he came to refer to the complainant as his girlfriend as a joke, to try and cheer her up when she was going through a rough patch. He said at some stage when they had spoken verbally, he had said, ‘[There’s] nothing by it … [but] will you be my girlfriend?’. She said yes. On another occasion, she said, ‘I’m lucky to have you as a boyfriend’.
Another message from the appellant said, ‘That’s great. I missed you but it was way too hot’. In cross-examination, he said that he was referring to the whole family, in that he meant to say ‘we’, rather than ‘I’. He denied that when he said, ‘I missed you’, he was referring specifically to the complainant.
On another occasion, the appellant wished the complainant happy Valentine’s Day. He denied this was because he was in a relationship with her and said he messaged his female and male friends Happy Valentine’s Day as well.
The appellant denied using Snapchat with the complainant. He said he did use it occasionally with her parents. In cross-examination, he was taken to a message on Facebook Messenger he sent to the complainant saying, ‘Looking good on that Snapchat there’. He was unable to say what he was referring to and said he might have sent that message to the wrong person. He reiterated his denial of ever communicating with her via Snapchat.
The appellant was cross-examined at length on numerous messages in this vein. His explanations were of the same nature. In one message, he said, ‘Good morning my beautiful lady, how are you, I miss you and I love you’. In another message he said, ‘[L] [his fiancée] works midnight shifts at the moment so at least I have you to talk to. I’m so lucky to have you as a girlfriend’. He said at that stage he was a bit depressed and was going through help.
In another message, the appellant said, ‘I can’t wait to make you happy’ and asked the complainant, ‘still want to stay the night with me?’. He denied that this was a reference to the complainant staying overnight at the Glenelg Motel with him. He said he was hopefully going to spend the night at their home. He was then taken to another exchange, where he said, ‘Can’t wait for Sat. What are you doing Sat night?’. The response was, ‘I’ve got a birthday party the next day’. The appellant said, ‘Oh nice’ and ‘I’m going to take you out for the night’. The complainant said, ‘That’s good, birthday party starts at midday’. The appellant responded, ‘We will be home before then’. The appellant denied that he was referring to staying out overnight and getting home the next morning.
The appellant’s evidence about events in the hotel room
The appellant said that when they got into the room, the complainant was excited to see the big spa bath. He said that once he and the complainant finished watching the AFL game, the complainant asked if they could have a spa. As the appellant filled the spa, the complainant changed into her bathers, rashie and bike shorts. The appellant then got changed into his boardshorts and a shirt.
Once the appellant had changed and come out of the bathroom, the appellant asked permission from the complainant to get into the spa, which she gave. They were at opposite ends of the spa. He turned on the bubbles.
The complainant’s initial mood in the spa was happy. However, her smile went away, and she looked like she was becoming depressed. The appellant asked her if she was okay. She shook her head. He asked if she wanted a hug. She said yes, and the appellant gave her a hug. The complainant then ‘moved her head at the wrong time’ and he accidentally kissed her, on the lips, for a split second. They were both embarrassed. The appellant said he was ‘so sorry’ and ‘that wasn’t supposed to happen’. The complainant did not reply. The complainant got out of the spa and went into the bathroom to get changed into her pyjamas. Once she came out, he went into the bathroom to get changed himself. The appellant estimated that they were in the spa for around five minutes. He denied that he otherwise touched the complainant in the spa at all and denied any sexual contact.
When the appellant returned from getting changed, it appeared to him that the complainant was texting someone. The appellant then contacted MG through Facebook Messenger, saying that the complainant felt a bit down, missed her and wanted to come home. He sent this message at around 9:30pm or 9:45pm. MG responded, indicating that she would call the complainant and talk to her. The appellant recalled seeing the complainant on the phone speaking to someone but could not identify who it was. He went outside for a smoke, before returning to the room to load the car up with their suitcases. The appellant then took the complainant home.
In cross-examination, the appellant said he only intended to join the complainant in the spa with her permission. He changed into his bathers to get a bit more comfortable. He denied he had no top on. He denied asking if he could give her a kiss on the cheek.
The appellant said that they arrived at the complainant’s home at about 11:30pm. The complainant went straight to her room. The appellant told MG and NG what had happened in the spa. In cross-examination, he denied telling MG and NG that he had asked the complainant if she wanted a kiss.
The appellant returned to the complainant’s home the next morning at around 8:30am. He observed the family getting ready to go to church. He said there was no plan for him to go to church with them. He could not remember if there was a discussion that morning about whether he would go with them. He was at the house for half an hour, during which he spoke to MG’s sons and the complainant. The complainant did not say a word to him. The appellant said that this was not unusual and something he had previously encountered in the three years of knowing the complainant. The appellant left the house and went to see another friend in Salisbury. He then returned home to Mildura.
Whether the verdict of guilty on Count 2 was unreasonable as being inconsistent with the acquittal on Count 1 (Ground 6) and whether that verdict cannot be supported having regard to the evidence (Ground 7).
The appellant relied on the same matters in support of his complaints in each of Grounds 6 and 7. While the complaints were expressed as two separate grounds, in both cases they relied on inconsistencies in the complainant’s evidence with respect to what she said occurred in the spa. The nub of both complaints was that the two counts stood or fell together; the inconsistencies relied on in support of Ground 7 were, in the main, those relating to the spa incident, the subject of Count 1 of which the appellant was acquitted.
The appellant relied on the following matters in support of these grounds:
·the complainant described the sexual acts the subject of the charges as having occurred in spa and then in the bed in her prescribed interview, but the other way around during the pre-trial special hearing. Not only were these inconsistent accounts, but if the intercourse on the bed took place first, there would have been nothing to manipulate in the spa, as the complainant said the appellant had removed her clothes on the bed;
·the complainant described the appellant placing his whole hand, including an apparently exposed palm (with outstretched fingers) into her vagina;
·the complainant described the manner of intercourse in both cases in the same way. In the case of her account of intercourse in the spa, it is difficult to the point of impossibility to understand how the appellant could be on top of the complainant in the water, manipulating her shorts and bathers, and supporting himself all at once;
·the complainant said she was expecting to go out to the cinema with the appellant but had packed bathers. The appellant submitted that her evidence as to her state of knowledge was entirely implausible. That is in circumstances where MG gave evidence that she asked the complainant about staying overnight because she was not very good at it;
·it was inherently unlikely that the appellant would have been able to set aside the bathers in the manner the complainant described if she had been wearing one-piece bathers and bike shorts;
·the complainant gave evidence of two instances of penile-vaginal intercourse. However, she complained to LK that a family friend tried to rape her;
·there were other inconsistencies in the complainant’s evidence, not all of which related to the count of which the appellant was acquitted.

The appellant ultimately submitted that the damage that the combination of inconsistencies inflicted upon the complainant’s credibility warranted the conclusion that it was not open to find the appellant guilty.
In M v The Queen, the High Court explained the task for this Court on a complaint that a verdict is unreasonable or cannot be supported:[1]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Footnotes omitted)
[1] M v The Queen (1994) 181 CLR 487 at 493.
In Pell v The Queen,[2] the High Court approved of the statement by Hayne J in Libke v The Queen:[3]
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(Emphasis in original; footnote omitted)
[2] (2020) 268 CLR 123 at [45]. See further, R v Baden-Clay (2016) 258 CLR 308 at [65]-[66].
[3] (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing).
Applying the test as required by the Court in M v The Queen, we are not persuaded that the inconsistencies and other difficulties on which the appellant relied rendered the verdict on Count 2 unreasonable or insupportable.
When assessing the inconsistencies in the complainant’s evidence, it is necessary to do so having regard to the evidence of her intellectual disability. The evidence of LK was that the complainant would struggle to process information, become overwhelmed with feelings at times and not be able to express herself. She had difficulties with emotional regulation.
Having regard to that background, while the complainant did say in evidence that the sex on the bed happened first, she also said that the appellant placed the condom on his penis after the sex in the spa. Further, the balance of her evidence, such as putting her pyjamas back on after the sex on the bed and texting her mum, was consistent with sex on the bed being the last sexual assault. It was open to reason that having regard to the complainant’s difficulties with expression, this inconsistency did not fatally compromise her account.
Similarly, it was open to reason that the complainant’s description of the appellant placing his whole hand in her vagina was the product of her limited capacity to express herself in the context of what she saw and felt.
The logistical difficulties of the complainant’s description of sex in the spa may have contributed to the jury’s decision to acquit on Count 1. Again having regard to the complainant’s difficulties of expression, it was open to reason that while this and the various inconsistencies were such as to prevent a conclusion of guilt beyond reasonable doubt on Count 1, they did not prevent a general acceptance of the complainant’s evidence and her much firmer and more consistent account of what occurred on the bed.
With respect to the complainant packing her bathers when she said she thought she was going to the movies, there had been talk earlier in the day that the appellant might take her to the movies or go bowling. MG could not recall whether she spoke to her about there being a spa in the motel. In any event, the complainant’s recollection of an understanding she was going to the movies had a demonstrable basis. The effect of her evidence that she did not know there would be a spa, which is unlikely, is not significant in the circumstances of the surrounding evidence.
The complainant’s statement to LK that ‘a family friend tried to rape me a couple of weeks ago’ is of little significance when viewed in the broader context of the much more comprehensive disclosure that she then immediately made to JD. The evidence was that the complainant was distressed throughout the disclosures.
We have had regard to each of these matters, individually and collectively. On reviewing the totality of the evidence, including evidence of the complainant’s presentation when under stress, we do not accept that the jury, acting rationally, must have had a reasonable doubt, notwithstanding its acceptance of the complainant’s evidence.[4]
[4] Pell v The Queen (2020) 268 CLR 123 at [39].
Neither do we accept that the conviction on Count 2 was necessarily inconsistent with the acquittal on Count 1. As the plurality observed in MFA v The Queen:[5]
The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
[5] (2002) 213 CLR 606 at [34].
The summary of the evidence set out earlier demonstrates that there were difficulties with the complainant’s evidence on Count 1. However, for the reasons given above, these were not such as necessarily to prevent the jury from accepting the complainant’s evidence generally, including that something sexual happened in the spa before the intercourse on the bed. A verdict of not guilty on one count does not necessarily reflect a view that a complainant was untruthful or so unreliable such that none of their evidence can be accepted.[6] The inconsistencies in the complainant’s evidence were not such as to require that conclusion in this case.
[6] R v H, GJ (2008) 102 SASR 82 at [26]; MFA v The Queen (2002) 213 CLR 606 at [35], [89].
We would dismiss Grounds 6 and 7.
The trial judge’s direction as to the permissible and impermissible uses of the evidence of kissing (Ground 3.2)
Ground 3.2 of the Second Amended Notice of Appeal complains that the trial judge failed to direct the jury as to the permissible and impermissible uses of the evidence of kissing. Specifically, the appellant submitted that the judge was required to direct the jury about the kiss as an incident of uncharged conduct. The prosecutor at trial submitted that a direction should be given on the basis that the kissing would effectively be an indecent assault.
In the event, the judge’s direction with respect to uncharged acts did not include the incident of kissing:
You will remember [the complainant] gave evidence of acts she alleged were committed by the accused which are not the subject of formal charges before you. [The complainant] said in her evidence that when she was in the spa with the accused he tried to take off her bathers putting them to one side, he had his hand on her leg and began touching the inside of her vagina with his hand. On the bed he took off her clothing and hit her to the face. You have heard that evidence in order to get a complete picture of the allegations that [the complainant] has made.
In the event that you found any of those uncharged acts proved, you could not convict the accused of either charge on that basis; that is, because they simply are not part of the charge. Further, if you found them proved you could not reason from finding those uncharged acts proved that because he committed those acts he is a bad person or the type of person who must have committed the charged offences and, therefore, must be guilty. Those uncharged acts are before you just so that you get the complete picture of the allegations that has been made by [he complainant].
Other than the failure to include the allegation of kissing, the appellant made no complaint about this direction, which was in orthodox terms. He submitted that the failure to include the kissing in this direction meant that, contrary to the requirements of s 34R of the Evidence Act 1929 (SA), the jury was not told the use they could make of it, nor how they could not use it.
The prosecutor had, in address, characterised the evidence of the kiss as the appellant ‘testing the waters’, that is, as a precursor to sexual activity. He had put to the appellant in cross-examination that the kiss was not accidental, but deliberate, which the appellant denied.
Both the appellant and the complainant gave evidence to the effect that the kiss was innocent. The prosecution cast it squarely as a deliberate act. It was open to the jury to reason that the evidence of the kiss was consistent with the appellant testing the waters. It was not open to reason that because the appellant had kissed the complainant, he was a ‘bad person’ who was more likely to have committed the charged acts. The difference here between ‘bad person’ reasoning and reasoning that the kiss was designed to ‘test the waters’ might not be altogether sharp.
Nevertheless, as the prosecutor observed at trial, the evidence of the kiss was, if accepted not to have been accidental or otherwise innocent as a comforting gesture, evidence of a separate indecent assault. Section 34R is mandatory. Both counsel and the judge agreed that it should be included within the direction.
The respondent on appeal submitted that the orthodox direction in respect of the other uncharged acts was sufficient to prevent the jury from slipping into impermissible reasoning. However, this cannot be assumed, given the nature of the contest at trial about this evidence and the prominence the prosecution sought to attach to it as evidence of the appellant ‘testing the waters’.
In our view, having particular regard to the character the prosecution case ascribed to the kiss, the judge erred as a matter of law in at least failing to include the evidence of the kiss in the directions about uncharged acts.
Whether the judge failed to direct the jury properly with respect to evidence that the complainant was distressed when she made complaints to her teacher and counsellor (Ground 4)
This ground complains that:
·the judge’s direction invited the jury to deploy evidence of the complainant’s distress to assess the complainant’s reliability (Ground 4.1); and
·the judge failed to relate the direction with respect to the purported distress sufficiently to the evidence presented at trial (Ground 4.2).
The judge gave the following directions in relation to evidence of the complainant’s distress:
As I have just said, [LK] and [JD] described [the complainant] as being distressed when she was speaking with them. It is for you to decide as a matter of fact whether you accept that [the complainant] was genuinely distressed and if so, the nature and extent of that distress. If you find that she showed signs of distress then it is important that you understand how evidence of that condition may properly be used in the course of your deliberations. You must appreciate that signs of distress may result from any one of several possible causes. It may, of course, have been caused by the commission of an offence such as [the complainant] has alleged. It may have resulted from some situation in which [the complainant] was involved which was quite unrelated to the offences alleged against the accused. It may be that it was a consequence perhaps of embarrassment on her part for what has been described as the accidental kiss or it may even have been simulated by her. You will have to make your own assessment in that regard. However, if you find that there was genuine distress and that it was consistent only with her allegation that the alleged offending took place, it can be an aid to assessing her credibility. Dependent on the view which you take, it may indicate to you that [the complainant’s] behaviour at the time was consistent with the events now related by her and assist you in assessing the reliability of her evidence. You must, of course, be careful in your assessment because of the potential causes that may give rise to distress. In the final analysis the evidence of distress is simply a tool which may assist you when you decide what weight to attribute to [the complainant’s] evidence.
(Emphasis added)
The first complaint is directed to the sentence highlighted above. The appellant submitted that this statement left to the jury an impermissible line of reasoning, namely that the evidence of distress on the part of the complainant when making the disclosures to LK and JD was capable of assisting in the jury’s assessment of the complainant’s reliability. The appellant submitted that the evidence of distress could not have such a use. While it was relevant to the complainant’s credibility, it could not relate to the reliability of the complainant’s recollection. Indeed, directions as to evidence of distress on complaint ordinarily do not go beyond referring to credibility, because of the risk of breaching the prohibition on using complaint evidence for the truth of the contents of the complaint.[7]
[7] Evidence Act, s 34M(4)(b).
The respondent focused on the context in which this direction was given, and in particular the immediately preceding sentence, where the judge said that the evidence of the complainant’s distress could ‘be an aid to assessing her credibility’. This appropriately distinguished between the use of that evidence being confined to assessing the credibility of the complainant’s evidence and not the truth of the matters alleged in the complaint. Moreover, immediately prior to the paragraph extracted above, the judge gave comprehensive directions on the evidence of complaint in accordance with the requirements of s 34M(4) of the Evidence Act.
Next, the respondent observed that the contest at trial depended entirely on the credibility of the competing accounts. In that context, and given the immediately preceding sentence, the respondent submitted that the word ‘reliability’ could only have been understood as a reference to the complainant’s truthfulness.
The respondent then pointed to instances where use of the word ‘reliability’ in this context has been adopted by the Court of Criminal Appeal. In R v Humble, White J said of an instance of evidence of complaint:[8]
The jury then had to be directed expressly that if they were satisfied that the complainant had complained to her mother on the jetty, that the mother’s evidence concerning the complaint could not be used as evidence of the truth of the matters recounted by the complainant. That is to say, the jury had to be directed that the evidence of the complaint could not be used to establish the facts of the offence, and could be used only in their assessment of the credibility and reliability of the complainant as a witness.[9]
(Footnote in original)
[8] (2009) 193 A Crim R 324 at [9].
[9] R v Gallagher (1986) 41 SASR 73; R v Freeman [1980] VR 1 at 6; Jones v The Queen (1997) 71 ALJR 538 at 538-539.
The context in which his Honour used the word ‘reliability’ in this passage is important. He used it in contradistinction to its use for the truth of the matters complained of. Similarly, in R v P, PD, the Court of Criminal Appeal appeared to refer with approval to a trial judge’s direction on distress to the effect that it could only be used:[10]
… to assist [them] in making an assessment of the reliability and credibility of [the complainant] as a witness and of her evidence generally … [and] in making an assessment of consistency of her conduct and consistency with the evidence given by her in court.
[10] R v P, PD [2007] SASC 127 at [49] (Layton J, Doyle CJ and Debelle J agreeing).
In R v Brady, the Court of Criminal Appeal was faced with a similar complaint to that now made:[11]
Permission has been granted on ground 1 which provides:
The learned trial Judge erred in directing the jury:-
“However, if you find that there was genuine distress and that it was consistent only with the claim by [C] that the alleged offences took place, it can be an aid in assessing the credibility of [C]. Dependent on the view that you take, it may indicate to you that [C’s] behaviour at the time was consistent with the events now related to you by her and thus assist you in assessing the reliability of [C’s] evidence.”
That direction was wrong in law and contrary to section 34M(4) of the Evidence Act 1929.
Mr Henchliffe argues that the trial Judge’s directions about distress were wrong because they conflated the use of the evidence of distress to assess the reliability of C’s evidence when it should have been used to assess the credibility of her evidence.
It is apparent that the trial Judge erroneously used the word “reliability” when referring to distress. Accordingly, there is some merit to Mr Henchliffe’s argument. However, the trial Judge’s erroneous use of the word “reliability” could not have made any material difference to the sense of the direction the trial Judge was giving. The use of the evidence of distress to assess the ‘reliability’ of C’s evidence was never an issue at the trial and the reference to “reliability” clearly would have been taken by the jury to relate only to an assessment of C’s truthfulness.
[11] R v Brady [2014] SASCFC 7 at [50]-[52].
The word ‘reliability’ is well understood by practitioners, in this context, to refer to reliability of recollection as opposed to truthfulness of account, that is, as opposed to the complainant’s credibility. In the context of giving directions as to the use a jury can make of a complainant’s distress on complaint, its deployment is best avoided, as that understanding would tend to suggest condoning a use of the evidence in support of the truth of the complaint.
However, the word ‘reliability’ has also been used, in context, and often in close proximity to the use of the word ‘credibility’ such that it is sufficiently clear that what is meant is simply the credibility of the complainant. That was held to be the case in R v Brady. Its use by the Court of Criminal Appeal in R v Humble and R v P, PD appears to have been to similar effect.
We would not endorse that use of the word. Indeed, we would discourage it, as it risks error. However, for the purpose of assessing whether its use occasioned a miscarriage of justice, the context in which it appears in a summing up to a jury is of utmost importance. The context in which the judge used the word ‘reliability’, which included the sentences immediately before and after the impugned sentence, was manifestly in opposition to the use of this evidence for the truth of the complaint.
We would dismiss Ground 4.1.
The second complaint under this ground is that the judge failed to relate the direction about distress sufficiently to the evidence. Specifically, the appellant submitted that it was necessary to remind the jury that they were considering the evidence of a particularly emotionally labile person, who was such on account of her intellectual disability. The failure to do so constituted a miscarriage of justice.
We do not accept that the judge’s failure to refer specifically to the complainant’s propensity to emotion in this context constituted a miscarriage of justice. The judge had earlier summarised the evidence of LK and JD with respect to the complainant’s emotional fragility as follows:
She would struggle to comprehend things and process information. She would become overwhelmed at times and not be able to express herself well. She could become very emotional and upset when trying to work through things that happened to her. You heard [JD] say that [the complainant’s] information processing could be quite slow. She had trouble with her emotional regulation and with everyday life skills.
Ladies and gentlemen, you must bear all of those matters in mind when you are considering whether [the complainant] is truthful, reliable and accurate. You must scrutinise her evidence with special care before acting upon it.

On the topic of distress, as well as referring to the possibilities of fabrication or embarrassment as being responsible for her apparent distress, the judge also said:
It may have resulted from some situation in which [the complainant] was involved which was quite unrelated to the offences alleged against the accused.
This did not reference the complainant’s emotional fragility expressly. However, we are satisfied that the jury had been reminded sufficiently of that fragility and its potential for impact upon her credibility such that this direction adequately took account of that possibility.
We would dismiss Ground 4.2.
Whether the judge failed to direct the jury properly with respect to the evidence of the accused’s good character (Ground 5)
The judge directed the jury with respect to the evidence of the appellant’s good character as follows:
You will recall the accused gave evidence that he has never been in any kind of trouble with police. This evidence is before you for two purposes. First, it is relevant to the probability that the accused committed the offences. The defence argues that the accused is a person of good character and so is less likely to have committed the offences as it is not in his nature. Second, you can use it when you are assessing the evidence that he gave. The defence say that this evidence shows that the accused is an honest person and you should take that into account when assessing the credibility of his evidence.
Of course, this does not mean that you must find the accused not guilty if you accept that he is a person of good character. Evidence of good character cannot override evidence that you find convincing. It can only help you decide whether you find the prosecution's evidence convincing. Sometimes a person who was previously of good character, of course is found to have committed a crime for the very first time.
(Emphasis added)
Good character evidence adduced by an accused in this kind of situation may be used as evidence relevant to the likelihood that the accused committed the offence charged, and to assess the credibility of any explanation given by the accused and, where relevant, the credibility of an accused as a witness.[12] The first paragraph of the direction extracted above was entirely orthodox.
[12] The Queen v Trimboli (1979) 21 SASR 577 at 578 (King CJ); Melbourne v The Queen (1999) 198 CLR 1; R v Baker (2000) 78 SASR 103 at [59]-[62].
The appellant submitted that in contrast to these permitted uses of character evidence, the highlighted passage in the summing up, above, amounted to a direction reversing the onus of proof. He observed that the direction itself did not reference the criminal standard of proof. Moreover, the word ‘convincing’ tended to undermine the previous directions about the standard of proof that were given. More fundamentally, he submitted that where the central issue turned on a contest of credibility, the direction was not only erroneous but significant, because it occurred at a point in the charge where it was likely to remain with the jury. The appellant’s character being highly relevant to his credibility, he submitted that the highlighted phrase placed a burden on the appellant to reduce the ‘convincing’ nature of the prosecution evidence.
The effect of this complaint is that while it was open to the jury to use evidence of the appellant’s good character to reason that he was less likely to have committed the offence, and indeed that was its purpose, the direction left open the possibility that if the jury did not act on it, this might bolster the prosecution case.
The respondent disputed that there was a reversal of the onus when regard was had to the direction in context. After raising the general topic of the appellant giving evidence, the judge reminded the jury that ‘the burden of proof lies with the prosecution’. On the specific subject of lies, in the context of the appellant giving evidence and immediately before the paragraphs extracted above, the judge said, ‘… even if you reject all the accused’s evidence, you must carefully assess whether the prosecution has proved its case beyond reasonable doubt’.
The highlighted sentence above should be considered together with that which immediately preceded it, the two sentences together reading:
Evidence of good character cannot override evidence that you find convincing. It can only help you decide whether you find the prosecution's evidence convincing.
By way of comparative example, the paragraph in which these two sentences appear is taken from the example direction as to good character in the South Australian Criminal Trials Bench Book. However, in the direction her Honour gave, these two sentences replaced the following suggested sentence in the Bench Book:
You may nevertheless accept other evidence that leads you to conclude beyond reasonable doubt that [accused] is guilty.
This comparison illustrates the potential difficulty with the sentences the judge used. The good character evidence was required to be considered together with all the evidence, when considering whether the charges were proved beyond reasonable doubt. Having said that that, the judge’s words were clearly drawn from the statement of King CJ in R v Trimboli:[13]
The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous good character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
[13] (1979) 21 SASR 577 at 578.
Having regard to this passage, we do not think that it can be said that the judge erred as a matter of law in her choice of words. However, we do think that this choice of words carries a risk of misdirection, depending on the context in which it is used. To say that evidence of good character cannot override evidence the jury finds convincing carries a risk of bifurcating the task impermissibly. This is particularly so in a credibility contest. To posit that the jury may find the prosecution evidence convincing, and then instruct that evidence of good character cannot override that evidence would seem to elide the actual task, which is to consider all the evidence, including that of good character, in considering whether the charges were proved beyond reasonable doubt.
On balance, the context in which the judge gave this direction, and in particular the immediately preceding paragraph, kept the direction within permissible limits on the authority of Trimboli. However, the present discussion highlights the difficulty with the use of the word ‘convincing’ in this context. This being a credibility contest, the jury had to be satisfied beyond reasonable doubt, on the account of the complainant, that the offending on the bed occurred. In effect, the jury had to be satisfied beyond reasonable doubt of the complainant’s account of that offending. Evidence of the appellant’s good character was relevant to that assessment.
The two sentences in the direction must be read together. Each uses the word ‘convincing’ without identifying the burden. The second sentence is structurally correct, and for that reason does not reverse the onus of proof. However, it is not necessarily clear, given the use of the word ‘convincing’ in this direction, how that evidence is said to relate to the jury’s consideration of whether the charge has been proved beyond reasonable doubt.
The model direction in the Bench Book addresses the risk occasioned by the language the judge chose. We acknowledge, with respect, that the judge’s language follows that used by King CJ in Trimboli. However, the language of the model direction is preferable: context has the potential for the judge’s chosen language to misdirect the jury in its task. While we would not say that the judge erred as a matter of law in framing the direction in this manner, this language carries a risk of misleading a jury about the use it can make of good character evidence. It is not ultimately necessary to determine whether a miscarriage of justice occurred in this case, given our conclusion with respect to Ground 3.2. However, as a general proposition, the language of the Bench Book should be preferred.
Application of the proviso
The failure to include the evidence of the kiss in the direction about uncharged acts constituted error. The question that then arises under s 158(2) of the Criminal Procedure Act 1921 (SA) is whether this Court considers that no substantial miscarriage of justice has actually occurred.
This requires consideration of whether the Court can be satisfied that the same verdict would have been returned had the error not occurred. The Court must review the whole of the record of the trial, make its own assessment of the evidence and determine whether, making due allowance for the limitations applying to an appellate court proceeding on the basis of the record, the appellant was proved guilty beyond reasonable doubt.[14]
[14] Weiss v The Queen (2005) 224 CLR 300 at [39], [42]-[45].
Where the contest at trial is dominated by credit, as it was here, it will often be the case that where an error of law is established, it will not be able to be said that no substantial miscarriage of justice occurred.[15] That is because the appeal court is left in a position where it can only speculate as to how the error might have affected that contest of credit.
[15] See for example, JGS v The Queen (No 2) [2022] SASCA 72 at [188]-[191].
The position with respect to the kiss is unusual. Both the complainant and the appellant gave evidence that the kiss was accidental or otherwise innocent. However, the prosecution case was clear that the kiss constituted discreditable conduct. The failure of the otherwise orthodox direction on discreditable conduct to include the kiss might have been an oversight, and the jury were well instructed to the effect that the kiss was not charged.
That being said, the prosecution relied heavily on the kiss and, indeed, gave it prominence as evidence of the appellant ‘testing the waters’. The evidence of the kiss was of a different character from that of the other uncharged acts and required a clear direction on the use to be made of it as an uncharged act. We cannot be satisfied that the same verdict would have been returned had this error not occurred. We would not apply the proviso.
Conclusion
We grant permission to appeal on Grounds 3.2, 5, 6 and 7. We allow the appeal on Ground 3.2, set aside the conviction and remit the matter for retrial.