(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
21 August 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
Appeal against conviction.
The appellant was found guilty of two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant committed the three offences against the complainant in following her 18th birthday party at her unit in Elizabeth North. Count 1 alleged that the appellant inserted an anal plug into the complainant’s anus while she was asleep. Count 2 alleged the appellant commenced penile vaginal intercourse with the complainant while she was asleep. Count 3 alleged that he continued to engage in sexual intercourse with the complainant after she had woken up and said ‘no’. The appellant was found not guilty of Count 1 but guilty of Counts 2 and 3.
The appellant raised several grounds of appeal, including whether:
1. the judge erred in his directions about the evidence of the complainant’s distress;
3.the judge erred in his directions about the possible effect of the complainant’s intoxication on her credibility and reliability;
4.Counts 2 and 3 of the information together alleged only a single offence, and his conviction on both constituted a miscarriage of justice;
5.the judge’s direction that the jury could find the second element of Counts 1 and 2 proved on the basis that the complainant did not consent to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice;
6.the judge’s direction that the jury could find the third element of Counts 1 and 2 proved on the basis that the appellant knew the complainant was not consenting to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice;
7.the judge’s directions about proof of the third element of Counts 1 and 2, with respect to whether the appellant knew the complainant was not consenting because of her intoxication, were unclear and caused a miscarriage of justice; and
8.the judge’s failure to direct the jury that before the appellant could be convicted of any of the counts, the prosecution must prove not only that the appellant had committed the acts of sexual intercourse but that he had done so consciously and voluntarily and not whilst he was asleep, or otherwise unconscious, caused a miscarriage of justice.
The appellant abandoned Ground 2 at the hearing. It is not necessary to address each…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hilliard v The King [2025] SASCA 91
Case
[2025] SASCA 91
Decision Date
CaseChat Overview and Summary
The appeal concerned the convictions of the appellant, Ethan Sean Hilliard, for offences including rape. The prosecution's case was that the appellant sexually assaulted the complainant, who was 18 years old, at her unit in Elizabeth North on 16 July 2020, following an 18th birthday party. The complainant and other attendees had consumed significant amounts of alcohol during the evening. The complainant alleged that she woke to find the appellant having sexual intercourse with her without her consent, and that she repeatedly said "no" while he continued. The appellant was convicted on two counts, but the appeal court allowed the appeal and ordered a new trial on one count.
The legal issues before the court included whether the directions given to the jury regarding the elements of the offence and the complainant's consent amounted to a miscarriage of justice. The court also considered the power to amend the information and order a new trial. The appeal was allowed, and the convictions on Counts 2 and 3 were quashed. The information was amended to reflect a single count of rape, with specific particulars relating to the alleged sexual intercourse without consent, and the appellant was to face a new trial on this amended count.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons that follow, we allow the appeal and remit the matter for retrial. It is not necessary to address all grounds of appeal. Background The prosecution case was that the appellant raped the complainant after the complainant’s 18th birthday party, at her unit in Elizabeth North, on 16 July 2020. The appellant was 20 years old, and the complainant was 18. Four people attended the party: the appellant, the complainant, Zara Dowsett and Shayne Phelan (‘the group of four’). They all consumed alcohol. The complainant, Ms Dowsett and Mr Phelan gave evidence at the trial. The prosecution also tendered evidence of the appellant’s interview with police on 17 July 2020. The complainant and Ms Dowsett became drunk. Mr Phelan also became intoxicated but to a lesser degree than the complainant and Ms Dowsett. The appellant consumed some alcohol, but there was little evidence as to his state of intoxication. During the night, the four walked to a nearby park and then returned to the unit. They eventually went to bed and to sleep. Evidence of Mr Phelan At the time of the party, Mr Phelan was in a relationship with Ms Dowsett. The group of four started drinking at the complainant’s unit. By about 9:30pm, Ms Dowsett and the complainant had about seven drinks each. Mr Phelan, the complainant and Ms Dowsett were drunk when they all went for a walk to the park. Mr Phelan said he stopped drinking at about 9:30pm. Mr Phelan gave evidence that there were a few ‘sexual innuendoes’ as they walked to the park. He said that there were ‘quite a couple of sexually charged comments’ throughout the night. The complainant asked how big their penises were. She also grabbed at their penises at the park. There was a kissing game on the walk to and from the park. When they saw a car, they would kiss the person next to them. Mr Phelan was next to Ms Dowsett. The appellant was next to the complainant. Mr Phelan saw the complainant kiss the appellant twice during the walk. He described this as a ‘peck on the cheek’. Mr Phelan said the complainant ‘basically almost passed out’ at the park. He described the complainant and Ms Dowsett as being ‘sprawled out on the ground’ for the majority of the time they were at the park. On the way back to the unit, Mr Phelan said the complainant made some comments about a threesome or foursome. Everyone was tired when they returned to the unit. Ms Dowsett and the complainant had a shower together. One of them opened the shower curtain and they flashed Mr Phelan and the appellant. They exited the shower and dressed. Soon after this, Ms Dowsett started to throw up in the toilet. The appellant got a bucket for the complainant. The group of four sat in the bathroom and toilet for about 10 to 15 minutes. About two hours after everyone was in bed, Ms Dowsett and the complainant tried to sleep in the same bed. Mr Phelan said they ‘bash[ed] into a wall and knock[ed] out a power point socket’. He asked Ms Dowsett to come out because they could not take care of each other given their level of intoxication. Ms Dowsett went into the loungeroom. Mr Phelan stayed up for another hour or two to ensure Ms Dowsett did not throw up in her sleep.
Evidence
Evidence Before The Court
Mr Phelan awoke at about 9:50am the next morning. Everyone was chatting and ‘feeling sorry’ for themselves. Mr Phelan gave evidence that everyone was ‘very seedy’. Mr Phelan left the unit shortly after.Evidence of the complainant The complainant first met the appellant at high school. He had been in a higher year. She reconnected with him in 2020. The complainant said she held the party as she wanted to try alcohol for the first time. On 16 July 2020, the complainant went with Ms Dowsett to get dinner at KFC. The appellant picked the two of them up and drove them to Dan Murphys to buy drinks. Mr Phelan was with them. The complainant said that after she had been to KFC with Ms Dowsett, but before the appellant picked them up, they went across the road from KFC to BWS and purchased a pack of Somersby apple cider. After leaving Dan Murphy’s, they went back to the complainant’s unit. At the unit, the complainant drank different alcoholic drinks. When asked in examination if she had ever tried alcohol previously, she initially said she didn’t remember. After the prosecutor rephrased the question, the complainant said that she had consumed alcohol before that night. The group of four walked to the park. The complainant’s legs were wobbly, and she was struggling to stand. She was not able to walk by herself at that time. They played on the swings at the park. The complainant said she and Ms Dowsett slid down a hill on their bums. When the group returned from the park, the complainant and Ms Dowsett had a shower together as they were dirty from the mud. She said that her nightie and knickers were handed to her, and she put them on. The complainant was then sitting on the floor in the bathroom with a bucket in case she threw up. She could not remember how long she was there or whether she threw up. The next thing the complainant remembered was waking up in bed, on a mattress in her room. She said she woke, on her back, with the appellant on top of her. The appellant was having sex with her. His penis was in her vagina. She said she had no clothes on, and her bottom was in pain. A butt plug was in her anus. The appellant continued to have sex with her as he pulled the butt plug out. She gave evidence that she said the word ‘no’ more than once because she wanted him to stop. She didn’t know if that was before or after the butt plug was removed. After she said no, the appellant continued to have sex with her. She said ‘no’ four times. The appellant shushed her and didn’t stop. She could not remember how long sex continued after that or when it stopped. The next thing the complainant remembered was waking up in her bed. She described that she felt gross. The appellant was next to her. She got up and had a shower. She messaged Ms Dowsett on Snapchat and then went back to bed. The appellant was still on the bed. She fell asleep again. The complainant woke up in the early morning and had another shower. She then woke Ms Dowsett, who was asleep next to Mr Phelan on a mattress in the loungeroom. She asked Ms Dowsett to check her messages. She told Ms Dowsett, ‘[the appellant] had sex with me while I was drunk’. Ms Dowsett said that was rape.
Decision
Reasons for decision
It is not necessary to determine the remaining grounds of appeal. However, it should not be thought that this Court is thereby endorsing the directions that were challenged on the appeal.Conclusion We order as follows:1.The appeal is allowed.2.The convictions on Counts 2 and 3 are quashed.3.Pursuant to s 181(2) of the CPA, the information is amended by deleting Count 3, and amending Count 2 such that it reads:Second CountStatement of OffenceRape. (Section 48 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceEthan Sean Hilliard on the 17th day of July 2020 at Elizabeth North, engaged or continued to engage in sexual intercourse with [the complainant] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact [the complainant] was not so consenting.4.There is to be a new trial on the Second Count on the information as amended. For the sake of clarity, we reiterate that the information as amended is capable of incorporating all allegations of fact that the prosecution indicated were incorporated in the former Counts 2 and 3.