Heng v The King - [2025] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HENG v THE KING
[2025] SASCA 57
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Stanley)
29 May 2025
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Appeal against conviction.

Following a trial by judge alone, the appellant was convicted of two counts of communicating with the intention of procuring a child for sexual activity contrary to section 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
The complainant was 14 years of age at the time of the offending. The prosecution case was that the appellant engaged the complainant in sexualised conversation whilst playing a game of basketball at her parents’ house with the intention of procuring her for sexual activity.
The appellant’s grounds relate to the treatment of the permissible and impermissible uses of the discreditable conduct evidence (Grounds 1, 2 and 5), the evidence of the complaint (Ground 6) and the evidence of the complainant’s behaviour after the offending (Ground 7).
Held, by the Court, granting permission to appeal, but dismissing the appeal:
1.Much of the evidence of uncharged discreditable conduct was sufficiently connected to the charged acts to comprise conduct constituting the offence and not attract the operation of s 34P of the Evidence Act 1929 (SA).
2.In any event, the judge adequately identified and explained the permissible and impermissible uses of the charged and uncharged discreditable conduct.
3.The judge adequately addressed the evidence of the complainant’s conduct immediately following the offending, including her complaint to her mother.

Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) ss 34M(4), 34M(4)(a)(i), 34M(4)(a)(ii), 34M(4)(b), 34M(4)(c), 34P, 34P(2)(a), 34P(2)(b), 34Q, 34R, referred to.
Adam v The Queen (1999) A Crim R 510; Adamson (a pseudonym) v The King [2024] SASCA 91; Alford v Magee (1952) 85 CLR 437; Carr (a pseudonym) v The King [2024] SASCA 69; Castle v The Queen (2016) 259 CLR 449; DL v The Queen (2018) 266 CLR 1; Fergusson v the King [2024] SASCA 63; Harriman v The Queen (1989) 167 CLR 590; HML v The Queen (2008) 235 CLR 334; Kane (a pseudonym) v The King [2024] SASCA 70; Liberato v The Queen (1985) 159 CLR 507; Miller v The King [2024] SASCA 152; O’Leary v The Queen (1946) 73 CLR 566; Perara-Cathcart v The Queen (2017) 260 CLR 595; Police v Rosales [2017] SASC 118; Rezaei v The King [2024] SASCA 150; R v Calides (1983) 34 SASR 355; R v Dhir (2019) 133 SASR 452; R v Fleming (2017) 129 SASR 27; R v Heng [2024] SADC 89; R v Lavery (2013) 116 SASR 242; R v Mostyn [2004] NSWCCA 97; R v Nieterink (1999) 76 SASR 56; R v Pali (2018) 132 SASR 201; R v Soteriou (2013) 118 SASR 119; Sadler v The King [2023] SASCA 63; Sidhu (a pseudonym) v The King [2025] SASCA 26; Weragoda v The Queen [2021] SASCA 123, considered.

HENG v THE KING
[2025] SASCA 57
Court of Appeal – Criminal: Livesey P, S Doyle and Stanley JJA

THE COURT: Following a trial by judge alone, the appellant was convicted of two offences of communicating with the intention of procuring a child for sexual activity, in contravention of s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
The judge found beyond reasonable doubt that the appellant committed the charged offences through his communications with the complainant, who was 14 years of age, while at her parents’ house on the evening of 9 June 2023. The prosecution case, accepted by the judge, was that the appellant engaged in sexualised conversation with the complainant whilst playing a game of basketball. This included the appellant repeatedly asking the complainant whether she would have sex with him, and culminated in a suggestion ‘let’s have it in your room’ (Count 1). Shortly after that suggestion, he approached the complainant in her bedroom, shut the door, partially undid the zip on his pants, and again suggested ‘let’s have it’ (Count 2).
The appellant seeks permission to appeal against his conviction on various grounds. In essence, he contends that the judge:
·failed to identify the permissible and impermissible uses of the evidence of discreditable conduct for the purposes of complying with ss 34P, 34Q and 34R of the Evidence Act 1929 (SA) (Grounds 1 and 2);
·failed to provide adequate reasons for his treatment of the evidence of discreditable conduct (Ground 5);
·failed to adequately identify and address the evidence of complaint (Ground 6); and
·erred in his treatment of the evidence of the complainant’s behaviour after the offending (Ground 7).
A judge of this Court referred the appellant’s proposed grounds of appeal for hearing as if on appeal. In his written submissions, the appellant abandoned Ground 4 and some of the sub-grounds of his other grounds of appeal.
For the reasons which follow we grant permission to appeal but dismiss the appeal.
Overview
The judge’s summary of the background, facts and evidence is not challenged.[1] The overview which follows largely reflects that summary.
[1] R v Heng [2024] SADC 89 (Reasons) at [3]-[8].
The complainant was 14 years of age when the offending occurred. The appellant was 37 years of age.
The appellant was one of seven men who were drinking together at a tavern in the early evening of Friday, 9 June 2023. One of these men was the complainant’s father, and most of the others were his work colleagues and friends. The appellant had not previously met the complainant’s father, but they had a mutual friend who was present that evening. At the father’s invitation, six of these men, including the appellant, went to his house to continue drinking, watch football and play pool. The group arrived at the house at around 7.30 pm. The complainant was present, having just finished working a shift at Hungry Jacks.
The men gathered in an under-cover paved patio at the back of the house where there was a TV and pool table. Adjacent to the patio, but uncovered, was another paved area where there was a basketball hoop. A CCTV camera captured the covered area, but only the edge of the uncovered area. An edited copy of the CCTV footage from the evening was Exhibit P5.
During the evening, several people, including the appellant, the complainant and her then 11 year old sister were playing basketball, or at least a goal-shooting game. The appellant and the complainant were a team. While the area near the basketball hoop was not captured by the CCTV camera, people waiting for their turn to shoot were captured.
The complainant’s mother was inside the house watching TV in the family room adjacent to the patio.
The prosecution case was that, while playing basketball, the appellant engaged in conversations with the complainant with the intention of procuring her for sexual activity. The appellant asked the complainant whether she had ever had a boyfriend; whether she had had sex with her boyfriend; and whether her boyfriend had licked her ‘thing’. This progressed to the appellant repeatedly (seven or eight times) asking the complainant whether she would have sex with him; and asking where her bedroom was. The sexualised conversations culminated in the appellant saying or suggesting ‘let’s have it in your room’ (Count 1).
Prior to these conversations, the appellant had offered the complainant a taste of his scotch and coke, pouring a small amount into a cup for her. The complainant did not have any of this drink.
The CCTV footage showed the appellant and complainant having close physical contact while playing basketball and conversing. This included ‘high-fives’ and ‘fist-bumps’, and the appellant touching the complainant on the back, hugging her, putting his hand on her face and holding her hand against his face. It showed them standing shoulder to shoulder engaging in close conversations. It also showed the appellant offering her a drink.
At one point, the appellant went inside the house to use the toilet. He did so not long after suggesting that they have sex in her bedroom, with the CCTV footage showing the appellant looking back at the complainant and raising his eyebrow suggestively as he went inside the house. The complainant went to her bedroom. After going to the toilet, the appellant went into the complainant’s bedroom, shut the door and locked it. He pulled the zip on his fly part way down and said ‘let’s have it’ (Count 2). The complainant told the appellant that she was uncomfortable, and that they should go back to the basketball game. The CCTV footage showed them both returning to the basketball game a bit over two minutes after they had gone inside.
Later in the evening, the complainant told her mother what the appellant had done.
The prosecution case was based upon the complainant’s evidence, which was to the above effect. The complainant’s evidence was supported in some respects by aspects of the CCTV footage, as described above.
Others present that night also gave evidence, although none of them noticed anything untoward in the interactions between the appellant and complainant. As elaborated upon below, the complainant’s mother gave evidence that later in the evening the complainant told her about the appellant’s conduct.
The appellant gave evidence in the defence case. His evidence was to the effect that no inappropriate conversations or behaviour occurred.
The appellant said that he had two drinks of scotch and coke at the tavern, and another couple back at the house. He acknowledged offering the complainant a taste of his drink, but said that she was the one who initiated the conversation about trying alcohol.
The appellant said that, whilst playing basketball, he had conversations with the complainant about innocuous matters. He said that he had touched her on the back only to indicate it was her turn to shoot, and had hugged her only to celebrate a successful shot. They had touched each other’s cheeks merely to demonstrate how cold their hands were. He said the conversation that occurred shortly prior to him going inside to the toilet involved him telling her to take his shot while he was inside, and that he raised his eyebrow to encourage her to take a good shot.
The appellant explained that after he had gone to the toilet he noticed a light had been turned on in a room across the hallway. When he went to have a look in that room out of curiosity, he ended up at the door to the complainant’s bedroom. He stood at the door, but did not go inside her room, and merely commented to her about the neatness of her room. They both returned to the basketball game.
The trial judge’s reasons for judgment
After summarising the background and the parties’ cases in terms similar to the above, the judge provided a relatively detailed summary of the evidence, and the prosecution and defence addresses.
The judge mentioned the admissibility of the charged and uncharged acts:
Cross admissibility
[85]It is not disputed that there is cross admissibility between the two counts. It is in my view permissible to reason that the allegations in one count make the other less unlikely. The allegations in respect of count 1 make it less improbable that the allegation in count 2 is isolated and has happened out of the blue. Likewise, vice versa. Each is brazen, if in slightly different ways. The probative weight of each outweighs the impermissible ‘bad person’ reasoning. The two can be kept sufficiently separate and distinct. The requirements of section 39P[2] of the Evidence Act have been met.
[2] In context, this was plainly intended to be a reference to s 34P of the Evidence Act.
Uncharged acts
[86]It is not entirely clear what acts alleged to have been committed by the accused attract the description of uncharged discreditable conduct but I identify the following:-
·    The offer of alcohol
·    Questions about the complainant’s boyfriend and the whereabouts of the bedroom
·    Entering the complainant’s bedroom and locking the door
·    Touching the complainant while playing basketball
[87]I have borne in mind the requirements of s 34P in relation to these allegations. I find that they meet the requirements of the section.
The judge next considered the submission that the complainant might have had a motive to lie or exaggerate because she felt uncomfortable in the accused’s company.[3]
[3] Reasons at [88].
His Honour then turned to the topic of the initial complaint by the complainant to her mother.[4] Having earlier addressed the content of that evidence (see below), he noted that it was only admissible for the purposes set out in s 34M of the Evidence Act, and summarised the effect of s 34M(4).
[4] Reasons at [89]-[92].
The judge also addressed some issues which had arisen in relation to prior inconsistent statements[5] and good character.[6]
[5] Reasons at [93]-[94].
[6] Reasons at [95]-[101].
The judge commenced the operative section of his reasons by addressing the elements of the charges. He noted that each offence required both a communication with the complainant, and an intention to make her amenable to sexual activity. He reasoned that if the complainant’s evidence were accepted beyond reasonable doubt, then the elements of both charges would have been proved.[7]
[7] Reasons at [102]-[104].
In the judge’s view, the complainant was an impressive witness. He explained that she gave her evidence in a straightforward manner. She had described a credible escalation in the appellant’s behaviour, commencing with innocuous conversation, before moving to personal questions about her boyfriend and then asking her to have sex with him in her bedroom. This then escalated to him pulling down the zip on his fly while repeating his suggestion of sexual activity.[8]
[8] Reasons at [105]-[106].
The judge considered that the complainant’s credit was ‘enhanced by her prompt and consistent complaint to her mother’,[9] and was not adversely affected by a minor inconsistency about merely touching, rather than pulling down, the zip on his fly.[10] The complainant had answered questions directly in cross-examination,[11] and her evidence was supported in several respects by the CCTV footage.[12]
[9] Reasons at [107].
[10] Reasons at [108].
[11] Reasons at [109].
[12] Reasons at [110].
After addressing some aspects of the evidence of other witnesses (from which the judge gained limited assistance),[13] the judge said that he bore in mind that the complainant’s allegations involved very brazen conduct by the appellant. He observed that to have had such suggestive conversations with the complainant when so many people were in the vicinity involved a significant risk of detection. However, against this, the judge regarded the appellant’s admitted conduct in offering the complainant alcohol as also involving a risk that the complainant’s father might notice or be told.[14]
[13] Reasons at [111]-[113].
[14] Reasons at [114]-[118].
The judge concluded that the appellant’s evidence was ‘not satisfactory or credible in material respects’. He found the appellant’s explanations for the close conversations he had with the complainant, and for going to her bedroom, unconvincing. It was unlikely that curiosity led him to her room, as opposed to him erroneously thinking that her going to her room meant she might be amenable to what he had suggested.[15]
[15] Reasons at [119]-[121].
The judge addressed some further discrete matters, including rejecting the suggested motive for the complainant to lie or exaggerate.[16] None of these matters were of great significance to the judge’s reasoning.
[16] Reasons at [122]-[131].
The judge concluded by stating that he had borne firmly in mind that the appellant’s guilt was not proved by the complainant’s account being more likely than his, or being preferred over his. Even if he rejected the appellant’s evidence, his guilt was only proved if he was satisfied beyond reasonable doubt of the complainant’s account of the two allegations (separately considered).[17]
[17] Reasons at [132], referring to Liberato v The Queen (1985) 159 CLR 507, R v Calides (1983) 34 SASR 355 and R v Lavery (2013) 116 SASR 242.
The judge ultimately did reject the appellant’s evidence about each of the allegations, and was satisfied beyond reasonable doubt of the complainant’s account of both charges. He found the appellant guilty of both counts.[18]
[18] Reasons at [133].
Discreditable conduct: grounds 1, 2 and 5
The focus of the appellant’s submissions on appeal was the trial judge’s treatment of the evidence of discreditable conduct. In particular, the appellant argued that his Honour failed to adequately identify and explain the permissible and impermissible uses of that evidence, and thereby failed to comply with his obligations under s 34R of the Evidence Act, and his obligation to provide adequate reasons for his verdict.
The trial was conducted without any express reference to the concept of ‘discreditable conduct’. There was no challenge to the admissibility of any evidence on account of it being evidence of discreditable conduct. And there were no submissions suggesting the need for directions in relation to evidence of discreditable conduct. There were some submissions as to the use to be made of the evidence which the judge ultimately treated as evidence of discreditable conduct, but without any reference to its status as evidence of discreditable conduct.
Despite this, the trial judge quite properly addressed the issue of discreditable conduct in his reasons. As set out earlier, in paragraphs [85]-[87] of his reasons, he addressed both charged and uncharged discreditable conduct.
As to the charged discreditable conduct, the judge noted that it was not disputed that ‘there is cross admissibility between the two counts’; that is, that the evidence of each count was admissible as probative of the other.[19]
[19] Reasons at [85].
As to uncharged discreditable conduct, after observing that it was not entirely clear which conduct would attract that description, the judge identified four instances of discreditable conduct by the appellant:[20]
(i)offering the complainant alcohol;
(ii)questioning the complainant about her boyfriend and the location of her bedroom;
(iii)entering the complainant’s bedroom and locking the door; and
(iv)touching the complainant while playing basketball.
[20] Reasons at [86].
There was and is no dispute that the evidence of this charged and uncharged conduct was relevant and admissible in relation to both counts.
Accepting that the focus of both counts was the appellant’s suggestions that they have sex, the evidence of the appellant’s surrounding conduct was nevertheless relevant in a contextual way.[21] In addition to forming part of the relevant narrative, and describing the lead up to the charged communications, it was probative of a course of increasingly inappropriate, sexualised and brazen behaviour and communications. In the absence of this context, the complainant’s evidence of the suggestions by the appellant that they have sex might have appeared to have come out of the blue, and might have seemed inherently implausible or unlikely. However, viewed in the context of this evidence of escalating behaviour, including close physical contact and sexualised conversations, the complainant’s evidence of the suggestions by the appellant that they have sex was more plausible. Indeed, these suggestions might have been seen as a quite natural culmination of the behaviour preceding them. At the very least, the earlier conduct, which had occurred without complaint, and had gone undetected by others present, might explain the appellant’s confidence and preparedness to engage in the quite direct and brazen communications with which he was charged. It might also explain the apparent lack of surprise, or other significant reaction, on the part of the complainant, to the appellant’s suggestions that they have sex.
[21] R v Nieterink (1999) 76 SASR 56 at [42]-[44], [76] (Doyle CJ); HML v The Queen (2008) 235 CLR 334.

In this way, the contextual evidence was relevant to an assessment of the credibility and reliability of the complainant’s evidence of the charged conduct. It was correspondingly relevant to an assessment of the credibility and reliability of the appellant’s evidence as to his interactions with the complainant. The contextual evidence was relevant in the way described to whether the charged communications occurred, which was the real issue in the case. It was also relevant to whether the appellant intended by his communications to make the complainant amenable to sexual activity.
When addressing the cross-admissibility of the charged conduct in paragraph [85] of his reasons, the judge addressed the relevance of the evidence of each count to the other. His Honour said that ‘the allegations in one count make the other less unlikely’ or less ‘improbable’; that the evidence in support of each count tended to show that the other count was not ‘isolated’ and did not occur ‘out of the blue’. He added that each count involved conduct which was ‘brazen, if in slightly different ways’. Whilst described in relatively general terms, this was an adequate description of the contextual relevance of the evidence described in more detail above.
However, as the appellant emphasises, the judge did not expressly identify the relevance of the uncharged conduct in paragraph [86] of the judge’s reasons, as set out in paragraphs (i) to (iv) above. In addressing the significance of this omission, as well as the other criticisms of the judge’s treatment of this evidence, it is first necessary to determine whether the items of conduct identified by the judge were in fact instances of discreditable conduct for the purposes of s 34P of the Evidence Act.
Was the uncharged conduct discreditable?
Determining whether evidence in a given case is evidence of discreditable conduct for the purposes of s 34P is a question of fact and degree. As Doyle JA observed in Sadler v The King:[22]
The Evidence Act does not define “discreditable conduct”, although the terms of s 34P(1) make it clear that it is not confined to conduct which constitutes a criminal offence. Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible “bad person” reasoning.
[22] Sadler v The King [2023] SASCA 63 at [27] (Doyle JA, Bleby JA agreeing); applied, for example, in Fergusson v the King [2024] SASCA 63 at [73] (Livesey P, Doyle and David JJA) and in Sidhu (a pseudonym) v The King [2025] SASCA 26 at [41] (Livesey P and Bleby JA, S Doyle JA agreeing).
In assessing whether particular conduct is discreditable, it may be relevant to consider the context in which that conduct occurred. For example, in Castle v The Queen[23] it was the association with ‘the illegal drug milieu’ which permitted an inference that the possession of three handguns was unlawful and discreditable. Similarly, in both Fergusson v The King[24] (an older sibling sleeping in the same bed as a younger sibling in circumstances where it was frequent and unnecessary) and Sidhu (a pseudonym) v The King[25] (aggressive behaviour in circumstances involving an abuse of power), it was the context which made the conduct discreditable in the relevant sense.
[23] Castle v The Queen (2016) 259 CLR 449 at [77] (Kiefel, Bell, Keane and Nettle JJ).
[24] Fergusson v The King [2024] SASCA 63 at [74] (Livesey P, Doyle and David JJA)
[25] Sidhu (a pseudonym) v The King [2025] SASCA 26 at [46] (Livesey P and Bleby JA, S Doyle JA agreeing).
Returning to the present case, the judge was right to say that it was not entirely clear whether the uncharged conduct was discreditable. Focussing upon the conduct referred to above in paragraphs (i) to (iv), several observations may be made as to its potentially discreditable nature.
As to paragraph (i), there will be circumstances in which offering a teenage child alcohol would not be discreditable. For example, it would not be discreditable for a parent to offer their teenage child a taste of an alcoholic drink during a dinner at their home. But the context matters. Here, the context was a 37 year old man offering a scotch and coke to a 14 year old girl whom he had only just met, and doing so without the permission or knowledge of her parents. Even though the complainant may have initiated the discussion about alcohol, and the cup may have contained only a mouthful of drink, the conduct was, in context, discreditable.
As to paragraph (ii), the sexualised questions by the appellant were also discreditable. An isolated question about the location of the complainant’s bedroom, or whether she had a boyfriend, in the context of an otherwise innocuous conversation, may not have been discreditable. However, the complainant’s evidence suggested a different context. In the context of a conversation between a 37 year old man, and a 14 year old girl whom he barely knew, the questions asked by the appellant (even putting to one side the ultimate suggestion that they have sex) had a discreditable aspect to them.
As to paragraph (iii), entering the complainant’s bedroom may not, of itself, have been discreditable, even having regard to the fact that the appellant was an adult who barely knew the complainant. However, in a context where, on the complainant’s evidence, it was preceded by sexualised conversation, and involved the appellant locking the door behind him and, indeed, partially lowering the zip of his pants, the appellant’s conduct in the complainant’s bedroom again had a discreditable aspect to it.
As to paragraph (iv), the touching referred to in the evidence occurred while playing basketball and was largely connected with, and an ordinary incident of, this game. Certainly the high-fives and fist-bumps, and perhaps also the celebratory hugs, might be characterised in this way. Touching the complainant on the back, particularly insofar as it was to prompt her that it was her turn to shoot, might also be characterised in this way. The touching was not so obvious or out-of-place as to have attracted the attention of others present at the time. However, the issue is whether the touching was discreditable in a context where it was by a 37 year old man who barely knew the 14 year old girl he was touching, and where it was said to have occurred with an unnecessary frequency, and to have been accompanied by periods of the appellant standing close to the complainant and engaging in increasingly sexualised conversations. Given this context, we consider it appropriate to proceed on the basis that the touching also had a discreditable aspect to it.
Did the discreditable conduct attract the operation of s 34P?
Even accepting, as the judge did, that each of paragraphs (i) to (iv) included at least some discreditable conduct, it is significant that s 34P of the Evidence Act only applies to evidence tending to suggest that a defendant has engaged in discreditable conduct ‘other than conduct constituting the offence’. In our view, it is doubtful whether much of the conduct relied upon as uncharged discreditable conduct can be meaningfully separated from the charged conduct so as to attract the operation of s 34P of the Evidence Act, and the consequential obligation to give directions under s 34R of that Act.
The reasons of Peek J in Police v Rosales[26] contain an instructive consideration of this issue. The appellant in that case was charged with the indecent assault of a female workmate on the particularised basis that, on an occasion at their place of employment, he ‘grabbed [her] from behind … around her shoulders and slid his arms down and then caressed her breasts with his hands and said ‘they are firm’.’
[26] Police v Rosales [2017] SASC 118.
The complainant’s evidence in support of this charge included reference to the appellant, in the moments leading up to the charged act: entering a kitchenette where he and the complainant were alone and engaging her in conversation; demonstrating fascination with her hair, including by encouraging her to let down her hair and then stroking her hair; taking the complainant’s face in his hands and planting kisses (described as ‘pecks’) on her cheeks and forehead; and attempting to kiss the complainant on her lips.
This evidence was led without objection at trial. However, on appeal the appellant argued that it should have been treated separately (or ‘hived off’) from the particulars of the charge itself and viewed as ‘discreditable conduct’ under s 34P of the Evidence Act, thereby attracting the obligation to give directions under s 34R of that Act. In rejecting this contention, Peek J reasoned:[27]
… I consider that the “hived off evidence” is simply part and parcel of the relevant evidence led to directly prove the charge before the Court. The effect of the provision by the prosecution of the further particulars was to confirm that the prosecution undertook to prove the matters stated therein, but that does not affect the relevance or admissibility of the evidence of the immediately prior conduct by the appellant; the fundamental distinction between “particulars” and the evidence to be led to establish those particulars should not be forgotten.
… [The complainant’s] evidence was that she wanted to show the appellant that she was “not interested” and it would seem that if the appellant had done nothing further, no charge would have eventuated. Be that as it may, on the evidence of [the complainant], the further particularised acts and words by the appellant did occur. To have led in evidence just those further acts and words, but not the appellant’s immediately prior acts and words upon entering the kitchenette, would have been artificial in the extreme. Wrenched from their immediate context, the evidence of the later acts and words taken alone would have been disjointed, and misleading. In that sense, the immediately preceding acts and words were in fact part of the res gestae, imprecise and overworked as that label may be on some other occasions.
[27] Police v Rosales [2017] SASC 118 at [22]-[24] (Peek J).
His Honour drew support for his approach from several authorities suggesting that evidence which may be characterised as part of the ‘transaction’ charged, or res gestae, does not attract the operation of the legislation governing the admissibility of discreditable conduct or its equivalents.[28] His Honour added:[29]
But really, no such authority was here required. In the course of argument, counsel accepted that if his contention were correct, it would mean that on a charge of vaginal rape, all evidence of touching and various indecent assaults by the defendant immediately leading up to, but prior to, penetration of the vagina would be evidence of discreditable conduct which could only be admitted pursuant to s 34P, because such conduct did not come within the particulars of the charge of vaginal rape.
With respect, that is a misconceived interpretation of this legislation. This provision was always intended to address the admission of conduct by a defendant on a previous occasion. While it may be possible to imagine a set of facts in a particular case that might give rise to a question of whether a previous occasion is involved, the facts postulated in the vaginal rape example, and indeed the facts of the present case itself, most certainly do not give rise to that question.
[28] Police v Rosales [2017] SASC 118 at [25]-[28], referring to R v Soteriou (2013) 118 SASR 119 at [13]-[14] (Vanstone J); Harriman v The Queen (1989) 167 CLR 590 at 633 (McHugh J); HML v The Queen (2008) 235 CLR 334 at [495] (Kiefel J); and several authorities from New South Wales applying the principle established in O’Leary v The Queen (1946) 73 CLR 566 at 577-578 (Dixon J), including Adam v The Queen (1999) A Crim R 510 at [30] (Spigelman CJ, James and Bell JJ) and R v Mostyn [2004] NSWCCA 97 at [114]-[137] (McColl JA, Studdert and Howie JJ agreeing).
[29] Police v Rosales [2017] SASC 118 at [29]-[30] (omitting footnotes).
These passages from Peek J’s reasons in Police v Rosales were subsequently relied upon by his Honour when sitting in the Court of Criminal Appeal in both R v Fleming[30] and R v Pali.[31] In the latter, they were directly applied in holding that possession of a larger quantity of cannabis was not discreditable conduct which engaged the application of ss 34P and 34R of the Evidence Act, even though the charge was confined to a smaller exemplar tranche of cannabis, in circumstances where all of the cannabis was the product of the one cultivation process.
[30] R v Fleming (2017) 129 SASR 27 at [56]-[59] (Peek J, Nicholson J agreeing).
[31] R v Pali (2018) 132 SASR 201 at [75]-[80] (Peek J, Kelly and Hinton JJ agreeing).
Returning to the terms of s 34P of the Evidence Act, the exclusion or carve out from its operation applies to evidence tending to suggest that a defendant engaged in discreditable conduct ‘other than conduct constituting the offence’. Construed literally, this might be understood as requiring a focus upon the elements and particulars of the charged offence, with the carve out confined to evidence of those very elements or particulars. In the circumstances of the present case, that would confine the carve out to the complainant’s evidence that the appellant suggested that they have sex on the two occasions the subject of Counts 1 and 2.
We would not construe the carve out from s 34P in this narrow way. Consistently with the approach taken by Peek J in Police v Rosales, it should be construed more broadly as extending to all conduct which was so connected to the elements or particulars of the charged offence as to be properly regarded as part of it. In favouring this broad view, we bear in mind that the narrow or literal approach contended for by the appellant would risk introducing a significant level of detail, complexity and artificiality into the directions required to be given by s 34R. There would need to be directions given as to the permissible and impermissible use of each item of evidence which tended to suggest the defendant acted in a discreditable way, regardless of how closely connected the relevant conduct was to the elements or particulars of the charged offence. This would be contrary to the authorities which are generally to the effect that trial judges should keep directions as simple as possible, and confined insofar as possible to the real issues in the case.[32] It is unlikely that the legislature intended ss 34P and 34R of the Evidence Act to operate in a way which would tend to require this detail, complexity and artificiality.
[32] Alford v Magee (1952) 85 CLR 437 at 466; and in the context of s 34R of the Evidence Act, see Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53], [66] (Kiefel, Bell and Keane JJ) and Rezaei v The King [2024] SASCA 150 at [57] (Bleby JA, Stanley and B Doyle AJJA).
Whether a sufficient connection exists between the discreditable conduct and the charged offence to enliven the carve out to the operation of s 34P will be a matter of fact and degree which will turn on the facts and circumstances of the individual case. While recourse to language such as a single transaction, the res gestae, or events which are inextricably linked or intertwined with the charged offence, may be convenient, these phrases are more in the nature of conclusory labels than guiding principles.
Whether a sufficient connection exists will require consideration of the nature and extent of the connection between the discreditable conduct and the elements and particulars of the charged offence in time, place and circumstance, while having regard to the nature and articulation of the charged offence and the forensic context more generally. In some cases (for example, where there are multiple charges arising out of the one incident) a gap of a few seconds may warrant the separate identification and treatment of discreditable conduct under ss 34P and 34R. In other cases, conduct spanning some hours may properly be regarded as part of the conduct constituting the charged offence, and not require separate identification and treatment in this way.
In the present case, the two charges were both particularised in terms which invited a focus upon the two statements by the appellant to the complainant suggesting that they have sex. However, in our view, at least some of the contextual evidence relied upon by the prosecution was properly to be regarded as part of the conduct constituting the charged offences for the purposes of the carve out to the operation of s 34P. It was evidence led in direct proof of the charged offences rather than in support of, or otherwise inviting, some inferential or circumstantial line of reasoning depending upon evidence of some earlier or separate conduct or incident.
For example, in the context of Count 1, the other aspects of the sexualised conversations between the appellant and complainant were sufficiently connected to be characterised as part of the charged conduct for the purposes of s 34P. That conduct was similar in nature, close in time, and circumstantially connected to the particularised statements. Even though there were gaps between the conversations, we would regard this conduct as constituting part of the charged offence, rather than separate discreditable conduct requiring separate consideration of its admissibility under s 34P, and directions under s 34R.
Similarly, we would be inclined to treat any discreditable aspect of the touching that occurred while the appellant and complainant were playing basketball in the same way. Whilst different in nature, this conduct occurred contemporaneously with the increasingly sexualised conversations, and insofar as it was discreditable, might be seen as an integral part of the lead up to the suggestion by the appellant that they have sex.
Similar observations might also be made in relation to any discreditable aspect of the circumstances of Count 2 beyond the charged suggestion that they have sex. This would include the appellant’s conduct in entering the complainant’s bedroom, closing and locking the door, and partially lowering the zip on his pants. Whilst different in nature from the charged communication, these aspects of the appellant’s conduct were not only essentially contemporaneous, but also an integral part of the appellant’s suggestion that they have sex.
Putting the appellant’s conduct in offering the complainant alcohol to one side for the moment, we are not satisfied that the other conduct in paragraphs (ii), (iii) and (iv) above was discreditable conduct requiring separate treatment under ss 34P and 34R of the Evidence Act. The evidence of the conduct in paragraphs (ii) and (iv) was evidence of conduct constituting Count 1, and the evidence of the conduct in paragraph (iii) was evidence of conduct constituting Count 2.
Compliance with ss 34P and 34R: charged conduct
Even accepting the above analysis, however, the evidence of the conduct constituting Count 1, and the evidence of the conduct constituting Count 2, nevertheless required separate consideration and treatment.
Given the way the offences were charged, and the case was run, it was appropriate to treat each offence as involving separate conduct, with the evidence led directly in support of each being cross admissible evidence of (charged) discreditable conduct in respect of the other. This required that the cross-admissibility of the evidence of these counts be considered through the prism of s 34P, and enlivened a corresponding obligation to give directions under s 34R.

However, as already mentioned, the judge complied with this obligation in paragraph [85] of his reasons. He identified the permissible use of the body of evidence as to Count 1 in respect of Count 2, and vice versa. He also identified the impermissible use of these bodies of evidence, described in shorthand terms as ‘bad person’ reasoning.
Compliance with ss 34P and 34R: uncharged conduct
On the analysis set out above, no difficulty with ss 34P and 34R of the Evidence Act arises in relation to the evidence of the uncharged conduct in paragraphs (ii), (iii) and (iv). The evidence of the uncharged conduct in these paragraphs did not attract the operation of those sections.
However, the evidence that the appellant offered the complainant an alcoholic drink (paragraph (i)) is potentially more problematic.
On one view, it could be considered part of the conduct constituting the Count 1 offence. It was close in time, and circumstantially connected, to the touching and increasingly sexualised conversations that led to the charged suggestion by the appellant that they have sex. It might be seen as an integral part of the appellant’s attempts to endear himself to the complainant with a view to making her amenable to sexual activity. If the offer of alcohol was properly to be regarded as part of the conduct constituting Count 1, then our earlier analysis would apply to the evidence of this conduct. There would be no need to consider the operation of s 34R.
However, treating the offer of alcohol as part of the conduct constituting the Count 1 offence involves something of a stretch. Even if sharing a related motivation, this conduct was quite different in nature from the charged communication the subject of Count 1, and may well have involved a separate criminal offence. It also occurred prior to the commencement of the sexualised conversations, unlike the physical touching (which continued during, or was interspersed throughout, the sexualised conversations).
Accepting that the evidence that the appellant offered the complainant an alcoholic drink required separate treatment as (uncharged) discreditable conduct under s 34P, it is necessary to consider whether the judge complied with his obligation under s 34R to direct himself as to the permissible and impermissible uses of that evidence.
Whilst the occasion for addressing the operation of s 34R is our conclusion that the evidence of the paragraph (i) offering of alcohol attracted the operation of s 34P and hence required directions under s 34R, what follows would be equally applicable to the evidence of the uncharged conduct in paragraphs (ii), (iii) and (iv) if, contrary to our reasoning above, that conduct also attracted the operation of s 34P, and hence required directions under s 34R. Indeed, we propose to address the issue of compliance with s 34R in terms which apply to all of the uncharged conduct in paragraphs (i) to (iv) in case we are wrong in our conclusion that most of it does not attract the operation of ss 34P and 34R.
Merely stating that the requirements of s 34P had been met in relation to this evidence, as the judge did in paragraph [87] of his reasons, was not enough to comply with the judge’s obligation to identify and explain the permissible and impermissible uses of the evidence in s 34R. This Court recently said as much in Miller v The King.[33]
[33] Miller v The King [2024] SASCA 152 at [33]-[34] (Bleby JA, McDonald and Hall AJJA).
The judge did not expressly identify the relevance or use of the evidence of the uncharged discreditable conduct (including the offer of alcohol) when identifying that conduct in paragraph [86] of his reasons. However, when read in conjunction with paragraph [85] of his Honour’s reasons, it can be inferred that the judge regarded this evidence as having the contextual relevance or use identified in that paragraph. Indeed, we consider that his Honour’s references to the allegations ‘in respect of’ Counts 1 and 2 in paragraph [85] should be understood as encompassing the circumstances immediately surrounding the two suggestions that they have sex. This understanding is consistent with his Honour’s later descriptions of the evidence.[34] But even if that were not so, the close connection between the charged and uncharged conduct meant it was obvious that their contextual relevance was the same, and the judge must be taken to have proceeded on this basis. Bearing in mind the appropriately flexible approach to the directions required by s 34R in the case of a trial by judge alone, we are thus satisfied that the judge adequately identified and explained the permissible use of the evidence of the uncharged discreditable conduct for the purposes of s 34R.
[34] For example, in paragraphs [105]-[106] when he described the conduct for each of the two counts in a way which included the contextually relevant discreditable conduct.
In our view, equivalent reasoning is apposite in relation to the requirement under s 34R that the trial judge identify and explain the impermissible use of the evidence of that discreditable conduct. The judge addressed the impermissible ‘bad person’ use of the allegations in respect of Counts 1 and 2 in paragraph [85], and for the reasons set out above, this was an adequate identification and explanation of the impermissible use of all of the discreditable conduct.
Approached in this way, there is some analogy with the reasoning applied by this Court in Kane (a pseudonym) v The King.[35] In that case the judge did not make any explicit reference to the permissible and impermissible uses of evidence of certain discreditable conduct (involving the spreading, or threat to spread, invasive images of the complainant). However, it was sufficient for compliance with s 34R that the jury would have understood that that evidence should, and should only, have been used in accordance with the s 34R directions given earlier in relation to other discreditable conduct. Similar reasoning was adopted by this Court in R v Dhir.[36] In our view, an equivalent approach is appropriate in the present case, particularly bearing in mind that it involved the judge giving directions to himself rather than a jury.
[35] Kane (a pseudonym) v The King [2024] SASCA 70 at [66]-[77] (Doyle JA, David JA agreeing).
[36] R v Dhir (2019) 133 SASR 452 at [54] (Kourakis CJ, Stanley and Doyle JJ agreeing). See also Rezaei v The King [2024] SASCA 150 at [59]-[61] (Bleby JA, Stanley and B Doyle AJJA).
The present case is distinguishable from cases where there was evidence of discreditable conduct which was not able to be treated as covered by earlier directions under s 34R in the manner just described,[37] or indeed where there were simply no directions at all addressing the permissible and impermissible uses of discreditable conduct for the purposes of s 34R.[38]
[37] For example, Adamson (a pseudonym) v The King [2024] SASCA 91 at [64] (Lovell, Doyle and Bleby JJA).
[38] Carr (a pseudonym) v The King [2024] SASCA 69 at [15] (Kourakis CJ, Lovell and Doyle JJA).
For these reasons, the appellant’s complaint that the trial judge failed to comply with his obligations under s 34R of the Evidence Act has not been made out.
However, for completeness, it is appropriate to directly address some related contentions made by the appellant.
Some related contentions by the appellant
The appellant contends that the judge failed to give himself any directions in relation to the prosecutor’s submission to the effect that the discreditable conduct was evidence that the appellant had a ‘sexual interest’ in the complainant.
In our view, the use of this label by the prosecutor, while perhaps ill-advised, does not alter the analysis set out above. It is to be acknowledged that the labels ‘sexual interest’ and ‘sexual attraction’ are often used to describe evidence intended to be used in support of an inference that a defendant had a motive to act in some sexual manner towards the complainant, or even that the defendant had such a motive and was prepared to act upon it in the manner charged. When the sexual interest or attraction relates to a child complainant, it would involve discreditable conduct. Further, when the evidence of a sexual interest or attraction relates to some separate incident or circumstance, its relevance may involve reasoning which relies upon some inferential or circumstantial use which triggers the operation of s 34P, and hence the admissibility requirements under ss 34P(2)(a) and (b),[39] and the obligation to give directions under s 34R.
[39] It would trigger s 34P(2)(b) if the reasoning involved a propensity to act on the sexual interest or attraction.
However, that is not the sense in which the label ‘sexual interest’ was used by the prosecutor in the present case. Nor was there any evidence which would permit its use in that sense. In the present case, the sexual interest was not said to arise from some separate conduct or incident, or otherwise give rise to any inferential or circumstantial reasoning along the lines described above. Rather, it was used merely as a description of the discreditable quality or character of the uncharged conduct referred to above, being conduct which suggested a sexual interest in the complainant at the very time of the alleged offending.
Understood in this way, the reference to a sexual interest was not a reference to some separate line of circumstantial reasoning that arose from earlier conduct and required separate treatment from what has been addressed above. Just as the contextual evidence in Police v Rosales (stroking the complainant’s hair and kissing her face) was directly probative of a sexual interest in the complainant at the time of the alleged indecent assault, so too the uncharged discreditable conduct in the present case was directly probative of a sexual interest in the complainant at the time of the charged communications.
Nor, contrary to the appellant’s submissions, did the judge engage in, or otherwise need to warn himself against, any ‘similarity of account’ reasoning. As set out earlier, when addressing the cross-admissibility of the evidence of the two counts, his Honour said that each was ‘brazen, if in slightly different ways’.[40] Whilst noting a similarity in the conduct surrounding each count, this was merely an aspect of the contextual relevance described earlier. It was not a reference to any similarity of account reasoning. The prosecutor did not suggest, and the evidence did not call for, reasoning of this kind. There was no need for the judge to warn against it.
[40] Reasons at [85].
It follows from what we have already explained that we reject the appellant’s contention that the judge failed to apply the correct test for admissibility in relation to the evidence of discreditable conduct. First, the admissibility of this evidence was not, and is not, challenged and so this point goes nowhere. Secondly, and in any event, to the extent that the admissibility of the evidence fell to be addressed through the prism of s 34P, it was not required to have the ‘strong probative value’ required by s 34P(2)(b). As the prosecution did not rely upon any propensity use, it was sufficient that the probative value of the evidence outweigh any unfair prejudice to the appellant under s 34P(2)(a). For the reasons earlier explained, this test was satisfied.
The appellant’s contention that the judge failed to address s 34Q should also be rejected. That section provides that discreditable conduct evidence admitted for a permissible purpose must not be used for any impermissible purpose. To the extent that there was evidence of discreditable conduct admitted under s 34P, we are satisfied it was only used for its permissible use and not any impermissible use. As already explained, his Honour’s directions to himself were to this effect. And as explained below, the balance of the judge’s reasons do not suggest any impermissible use of the evidence of discreditable conduct.
Having rejected the complaint of inadequacy in the judge’s directions by reason of a failure to comply with s 34R of the Evidence Act, we also reject the balance of the appellant’s contentions in relation to the judge’s treatment of the evidence of discreditable conduct. For the reasons given, we consider that his Honour adequately identified this evidence, its relevance and its permissible and impermissible uses.
The judge’s use of the evidence of discreditable conduct
In summarising the prosecutor’s address, his Honour mentioned the prosecutor’s use of the evidence of discreditable conduct as supportive of the appellant ‘opportunistically and inappropriately being affectionate’ towards the complainant, with the intention of making her amenable to sexual activity.[41]
[41] Reasons at [61].
Then, in setting out what we have described as his operative reasoning, the judge indicated his use of this evidence in a manner consistent with this permissible use. In the context of describing the complainant as an impressive witness, whom he found to be credible and reliable, his Honour summarised the discreditable conduct in connection with both counts, describing it as involving a ‘credible escalation of behaviours’, and hence in a way that neatly encapsulated the contextual relevance we described earlier.[42]
[42] Reasons at [105]-[106].
In addition to this, when addressing the defence submission that relied upon the brazenness of the alleged suggestions by the appellant to the complainant that they have sex, the judge noted the equivalent brazenness of the appellant’s (undisputed) conduct in offering the complainant alcohol.[43]
[43] Reasons at [114].
Having identified and relied upon these permissible contextual uses of the evidence of discreditable conduct, the judge’s reasons provide no indication of any impermissible use of that evidence. Having earlier warned himself against bad person reasoning, there is no reason to think that there was any risk the judge might have slipped into such reasoning.
Conclusion
We dismiss grounds 1, 2 and 5. No inadequacy has been established in the judge’s directions in relation to, or treatment of, the evidence of discreditable conduct. No error of law or miscarriage of justice has been established.
The complainant’s complaint and post offence conduct: grounds 6 and 7
In Grounds 6 and 7 the appellant challenges the judge’s treatment of the evidence of the complainant’s conduct after the alleged offending, including her complaint to her mother. In order to address these challenges it is first necessary to outline the judge’s treatment of these issues.
When addressing the complainant’s evidence and the CCTV footage, the judge explained that, after leaving the house following their interaction in the complainant’s bedroom, the appellant and complainant returned to the basketball game for close to ten minutes. The complainant then went inside the house and did not emerge again. At some point in the 40 minutes which followed her returning inside, the complainant told her mother about the appellant’s behaviour. Her father was then told, and when he confronted the appellant, the appellant left the premises.[44]
[44] Reasons at [37].
Turning to the mother’s evidence, as the judge explained, she had been watching TV in the family room. She said that the complainant told her that she wanted to speak to her. They went into the main bedroom. The complainant then told her about the appellant talking to her about sexual matters and offering her some of his drink. The complainant then told her that the appellant had come into her room, locked the door, and asked her if she ‘wanted to have it’.[45]
[45] Reasons at [43].
In summarising the parties’ addresses, the judge noted the prosecutor’s submission that the complainant’s credit was enhanced by her prompt complaint to her mother.[46] His Honour also noted defence counsel’s submission that whilst the complainant told her about the appellant trying to get her to have some of his drink, she did not mention that she had started the conversation about alcohol.[47] Defence counsel did not otherwise address the complaint evidence.
[46] Reasons at [67].
[47] Reasons at [82].
As mentioned earlier, the judge summarised the principles governing the use of complaint evidence under s 34M of the Evidence Act.[48]His Honour noted that the evidence could be used both to demonstrate how the allegations first came to light (s 34M(4)(a)(i)) and to demonstrate consistency of conduct on the part of the complainant (s 34M(4)(a)(ii)). After then noting that the evidence could not be used as evidence of the truth of the allegations (s 34M(4)(b)), his Honour also noted that there may be varied reasons why the victim of a sexual offence might make a complaint at a particular time to a particular person (s 34M(4)(c)). Having accurately summarised the use of complaint evidence under s 34M(4), his Honour added that it was ‘not unusual or unreasonable that the complainant in this case might complain on the night to her mother rather than at another time to another person’.
[48] Reasons at [89]-[92].
The judge returned to the complaint evidence in the operative section of his reasons. In the course of explaining his reasons for accepting the complainant’s evidence, the judge said that the complainant’s credit was ‘enhanced by her prompt and consistent complaint to her mother’.[49]
[49] Reasons at [107].
The judge also addressed the complainant’s conduct in returning to the basketball game after the incident in her bedroom:[50]
I address the submission [defence counsel] made about the significance of the complainant returning from her bedroom to continue the game of basketball with the accused. I acknowledge that there is some force in [defence counsel’s] submissions. At first blush it is a little surprising that the complainant resumed playing basketball with the accused if he had been behaving as she says he did.
On the other hand, both the accused and she left the basketball game before it was finished. No winner had yet been determined. If the complainant were to unilaterally absent herself from the game she might have had to come up with some explanation. She might well have thought it was better to finish the game and then make her exit. I do not regard the complainant’s return to the game as negating the truth of what she alleges.
[50] Reasons at [129]-[130].
The first challenge made by the appellant to the judge’s treatment of the evidence of the complainant’s conduct following the offences is that his Honour failed to address the terms or content of her initial complaint, and in particular her reference to having been ‘molested’.
In advancing this challenge, the appellant emphasised that when asked in her evidence-in-chief what she told her mother, the transcript records that the complainant first said that she told her mother that ‘one of the guys outside tried to have sex with me, molested me but he was unzipping his pants’. However, this reference to ‘molested’ needs to be understood in context. Presumably because it was difficult to hear precisely what the complainant had just said in her evidence-in-chief, the prosecutor (at the request of defence counsel) asked the complainant to repeat what she had just said. The complainant then said that she had told her mother that ‘one of the guys outside were trying to have sex with me and he wanted me to drink scotch because he pulled out his cup and asked me to drink it and he didn’t let me say ‘no’ but I said ‘no’ anyway and then he gave up. And then the next minute we were in my room and he’s trying to have it with me but I made an excuse to get out.’
When the complainant’s mother gave evidence, she described the complaint in similar but more detailed terms. She said that the complainant’s description of what had occurred included reference to not only being offered alcohol, but also the questions by the appellant, and that the appellant had gone into the complainant’s bedroom, shut and locked the door, unzipped his fly and ‘asked if she wanted to have it’.

Obviously any suggestion by the complainant that the appellant had in fact ‘molested’ her would have been inconsistent with the evidence the complainant gave as to what the appellant in fact did. But literal reliance upon this word in the trial transcript is problematic for several reasons.
First, it appears from the transcript that the complainant’s precise words in evidence may have been difficult to hear. She may have said, or intended to convey, that she had complained merely that the appellant ‘tried to’ have sex with her or molest her; not that he had in fact molested her. In any event, when asked to repeat her evidence, the complainant omitted any reference to the word ‘molested’ in making her complaint. And her mother did not suggest that she used this word when making her complaint.
In our view, it is unrealistic to contend that the complainant suggested to her mother that she had been molested. It seems obvious that the complaint was confined to an allegation that the appellant had tried to have sex with her; and that any reference to ‘molested’ in context (either at the time, or in the witness box) was merely a reference to the appellant trying to engage in some form of inappropriate sexual activity with her.
Understood in this way, the complainant’s version of the terms of her complaint was less detailed than, but nevertheless consistent with, that given by her mother, and with her evidence of what the appellant had in fact done.
This understanding would explain why defence counsel never sought to make anything of the complainant’s use of the word ‘molested’ in her closing address. In the circumstances, there was no occasion or need for the judge to address the use of this word in his reasons. It was not a real issue at trial.
We also do not think it was necessary for the judge to address the fact that the complainant, when making her complaint, did not tell her mother that she had initiated the conversation about alcohol with the appellant. In our view, this was a matter of detail that the judge was not required to address, consistent with the acknowledgment by the High Court in DL v The Queen[51] that it is not necessary for a judge to resolve every issue, or to address every submission or matter of detail. The gravamen of the complaint evidence was the allegation of a statement by the appellant to the complainant suggesting that she have sex with him. As to this aspect of the complaint, the terms of the complaint as recounted by the complainant and her mother in evidence were consistent with each other, and with the complainant’s evidence of what occurred.
[51] DL v The Queen (2018) 266 CLR 1 at [32]-[33] (Kiefel CJ, Keane and Edelman JJ).
It may be observed that the trial judge expressly relied only upon consistency of conduct in the sense that the complainant made her complaint to a person and in circumstances one might expect. His Honour did not expressly rely upon consistency in the sense of consistency in the terms or content of the complainant’s complaint and evidence.[52] However, this is hardly a matter that can assist the appellant when, as we have explained, there was consistency between the terms of the complainant’s complaint and evidence. In other words, reliance upon this could only have further enhanced the complainant’s credit.
[52] Weragoda v The Queen [2021] SASCA 123 at [57]-[59] (Doyle JA, David JA and Stanley AJA).
The appellant also challenges the judge’s failure to address the up to 40 minute ‘delay’ in the complainant making her complaint. There is nothing in this point. We do not regard this as involving any meaningful delay at all. It is not a sound basis to undermine the judge’s conclusion that the complaint was prompt and consistent with what one might expect in terms of its timing (and the person to whom it was made). It was not necessary for the judge to address the consistency of the complainant’s conduct in making her complaint in any more detail than the judge did.
The appellant makes a related challenge to the adequacy of the judge’s treatment of the complainant’s conduct, immediately following the incident in her bedroom, in returning to the basketball game.
As set out above, the judge addressed the significance of this issue in paragraphs [129] and [130] of his reasons. He acknowledged that there was ‘some force’ in the submission that this was ‘at first blush … a little surprising’ given what she alleged had occurred. However, the judge did not ultimately regard this conduct as undermining the complainant’s credit (or ‘negating the truth of what she alleges’). In so reasoning, his Honour suggested that her behaviour might be explained by, in effect, a desire not to behave in a way that might require explanation.
The appellant complains that this reasoning by the judge was contrary to the evidence given by the complainant and involved impermissible speculation. The complainant had said in her evidence that the reason she returned to the basketball game (rather than, for example, going straight to her mother) was that ‘I didn’t know what else to do so I took my last few shots then I left to tell mum … cos he wanted me to go with him and I was just scared, I guess. I wasn’t really thinking straight.’
We do not regard the complainant’s reasons for returning to the basketball game as a significant matter. On the one hand, it is not clear to us why the judge did not simply accept the complainant’s evidence on this issue. On the other hand, the judge’s reasoning is not that different from the complainant’s evidence. But more importantly, the precise explanation for the complainant’s decision to return to the basketball game for a short while is not really to the point. The real point is that, even if perhaps surprising ‘at first blush’, there is nothing particularly remarkable about the complainant returning to the basketball game. It is trite to observe that different people respond in different ways to moments of stress, including being confronted by an inappropriate sexual proposition. Whilst some teenage girls confronted in this way might run straight to a parent, others might – for whatever reason, including embarrassment – never say anything to anyone. Between these extremes there might be any number of other ways a teenager might reasonably react. In the present case, the very fact that the appellant’s suggestions that they have sex were preceded by a gradual escalation of sexually inappropriate behaviour might have lessened the shock that might otherwise be expected to be associated with such confronting behaviour. Whatever the explanation, we see no difficulty with accepting that it took the complainant some minutes to process what had happened and to decide to go inside and tell her mother. We see no basis for suggesting that this ought to have adversely affected her credit in the absence of some clear explanation.
In circumstances where the complainant did, within less than 40 minutes, make a complaint to her mother, a consideration of the complainant’s conduct in the period following the incident in the bedroom tended to support, rather than undermine, her credibility.
Grounds 6 and 7 have not been made out.
Conclusion
For the reasons set out, we grant permission to appeal but dismiss the appeal.