Davis v The King

The appeal concerned a conviction for unlawful sexual intercourse. The appellant, Davis, was accused of having penile-vaginal intercourse with the complainant, a 16-year-old with an intellectual disability, at a motel. The complainant's evidence described the appellant touching her in the spa, engaging in sexual intercourse, and her distress during the events. The prosecution's case included evidence of the appellant's alleged kissing of the complainant, which was presented as an indication of his intent.

The legal issues before the court were whether the trial judge had failed to properly direct the jury on the permissible and impermissible uses of the appellant's alleged kissing of the complainant, and whether the judge had adequately addressed the complainant's distress when making complaints. Further issues included whether the judge had properly directed the jury regarding evidence of the appellant's good character, and whether the verdict of guilty on one count was unreasonable or unsupported by the evidence, particularly in light of an acquittal on another count.

The Court of Appeal found that the trial judge had erred in failing to provide a clear direction to the jury regarding the use of the alleged kissing as an uncharged act, especially given its prominence in the prosecution's case as evidence of the appellant "testing the waters." The court was not satisfied that the same verdict would have been reached had this misdirection not occurred, and therefore declined to apply the proviso. The appeal was allowed on this ground, the conviction was set aside, and the matter was remitted for retrial. Permission to appeal was also granted on grounds relating to the complainant's distress, good character evidence, and the reasonableness of the verdict.