Kane (a pseudonym) v The King - [2024] SASCA 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KANE (A PSEUDONYM) v THE KING
[2024] SASCA 70
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice David)
30 May 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
The appellant was tried by jury and convicted of three counts of rape (Counts 2-4) and one count of aggravated assault (Count 6), contrary to ss 48(1) and 20(3) of the Criminal Law Consolidation Act 1935 (SA) respectively. The complainant in respect of each count was the appellant’s wife. The three counts of rape related to a single episode during which it was alleged that the appellant, without the complainant’s consent, inserted a sex toy into her vagina (Count 2), his penis into her anus (Count 3) and his penis into her vagina (Count 4).
During cross-examination, the complainant alleged that the appellant had distributed, or threatened to distribute, videos or photographs of her naked, having sex with him or otherwise in states of undress (‘the invasive images allegation’). When the complainant volunteered this evidence, defence counsel continued with the line of questioning and did not object to the evidence or ask that the trial judge direct the jury to ignore the evidence. The evidence was not subsequently addressed in the trial and was not the subject of a specific direction by the trial judge.
On Ground 1, the appellant contends that the evidence of the invasive images allegation was not admissible under s 34P(2)(a) of the Evidence Act 1929 (SA) (because its probative value did not outweigh its prejudicial effect), and the trial judge’s failure to direct the jury to disregard it occasioned a miscarriage of justice. On Ground 2, the appellant contends that the trial judge erred in law by failing to give directions as to the permissible and impermissible use of this evidence of discreditable conduct required by s 34R(1) of the Evidence Act 1929 (SA).
The appellant also contends that the conviction on Count 4 (the allegation of penile-vaginal rape) is unreasonable or cannot be supported having regard to the evidence (Ground 3).
Held (per Doyle JA, Kourakis CJ and David JA agreeing), granting permission to appeal on Ground 3, allowing the appeal on Ground 3, but otherwise dismissing the appeal:
1.The evidence of the invasive images allegation was evidence of discreditable conduct under s 34P of the Evidence Act 1929 (SA), however, in circumstances where defence counsel’s failure to object to the evidence (or to ask for a direction that the jury ignore the evidence) reflected a forensic decision, it cannot be said that the admission of the evidence (or the failure of the trial judge to direct that it be ignored) involved an error or gave rise to a miscarriage of justice;
2.The trial judge’s directions were adequate for the purposes of s 34R(1) of the Evidence Act 1929 (SA) and sufficient to avoid any miscarriage of justice; and
3.In relation to Count 4, the complainant’s evidence of her lack of consent to the penile-vaginal intercourse was lacking in sufficiency and quality such that the verdict of guilt in relation to Count 4 is unreasonable. The verdict of guilt on Count 4 should be set aside and replaced with a verdict of acquittal.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 20(4), 20A, 48(1); Criminal Procedure Act 1921 (SA) s 158(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Dansie v The Queen (2022) 274 CLR 651; Hammer v The Queen [2022] SASCA 75; Hofer v The Queen (2021) 274 CLR 351; JGS v The Queen [2020] SASCFC 48; Johnson v The Queen (2018) 266 CLR 106; Libke v The Queen (2007) 230 CLR 559; Magro v The King [2022] SASCA 100; M v The Queen (1994) 181 CLR 487; Orreal v The Queen (2021) 274 CLR 630; Pell v The Queen (2020) 268 CLR 123; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v C, G (2013) 117 SASR 162; R v Forrest (2016) 125 SASR 319; R v Golubovic [2016] SASCFC 144; R v Jones (2018) 131 SASR 532; R v Singh [2019] SASCFC 51; R v Soma (2003) 212 CLR 299; Sadler v The King [2023] SASCA 63, considered.

KANE (A PSEUDONYM) v THE KING
[2024] SASCA 70
Court of Appeal – Criminal: Kourakis CJ, Doyle and David JJA

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Doyle JA.
I wish to elaborate on my agreement with his Honour’s reasons on why s 34R of the Evidence Act 1929 (SA) (the Evidence Act) was complied with. The complainant’s evidence on the invasive images allegation was given in response to an attempt to impeach her credit, in respect of her testimony that she left the appellant to escape his violent behaviour, by putting to her that she did so to pursue her romantic interest in, and to marry, Mr H. Both the complainant’s admission that she subsequently married Mr H, and her explanation that she did so because the appellant disseminated the invasive images, bore only on the collateral question of her credit. The evidence was not relevant to a fact in issue. In the context of the trial, a direction pursuant to s 34R of the Evidence Act was not required on that collateral question.
Accordingly, the disposition of the appeal does not require a consideration of the question whether s 34P of the Evidence Act was engaged by the complainant’s evidence. However, I observe that because the evidence is not probative of a fact in issue, it is not obvious to me that s 34P of the Evidence Act was engaged. Section 34P(2)(b) is expressly limited to the probative value of evidence to a ‘fact in issue’. So much is also arguably implicit in respect of any other permissible use – that is, that the permissible use contemplated is in proving a fact in issue and not in impeaching the credit of a witness. I note in that respect that the position of an accused remains protected by s 18(1)(d) of the Evidence Act. Equally importantly s 34P of the Evidence Act should not be construed such that it is engaged by cross-examination as to credit pursuant to s 18(1)(d) of the Evidence Act when it is based on discreditable conduct.
If it be correct that s 34P of the Evidence Act was not engaged, then nor was s 34R of the Evidence Act.
DOYLE JA: The appellant was charged on Information with the following offences:
·aggravated assault causing harm (Count 1);[1]
·three counts of rape (Counts 2-4);[2]
·unlawfully choking, suffocating or strangling another in a domestic setting (Count 5);[3] and
·in the alternative to Count 5, aggravated assault (Count 6).[4]
[1] Contrary to s 20(4) of the Criminal Law Consolidation Act1935 (SA) (‘the CLCA’).
[2] Contrary to s 48(1) of the CLCA.
[3] Contrary to s 20A of the CLCA.
[4] Contrary to s 20(3) of the CLCA.
The complainant in respect of each count was the appellant’s wife. By way of overview of the circumstances in which the offending was alleged to have occurred, Count 1 related to an allegation that, in around 2017, the appellant punched the complainant to her lip, causing it to become cut and swollen. The remaining counts were alleged to have occurred on two separate occasions, both in early 2021. The three counts of rape related to a single episode during which it was alleged that the appellant, without the complainant’s consent, inserted a sex toy into her vagina (Count 2), his penis into her anus (Count 3) and his penis into her vagina (Count 4). The strangulation offence (Count 5), and the alternative charge of aggravated assault (Count 6), related to a separate occasion, in March 2021, when it was alleged that the appellant grabbed the complainant around the throat and squeezed her neck tightly such that she was unable to breathe.
Following a trial before judge and jury, the jury returned majority not guilty verdicts to Counts 1 and 5, majority guilty verdicts to Counts 2, 3 and 4, and a unanimous guilty verdict to Count 6.
The appellant appeals his convictions on three grounds. Grounds 1 and 2 relate to an allegation, volunteered by the complainant during her cross-examination, that the appellant had distributed, or threatened to distribute, videos or photographs of her naked, having sex with him or otherwise in states of undress (‘the invasive images allegation’). The appellant contends that the invasive images allegation was evidence of discreditable conduct for the purposes of s 34P of the Evidence Act 1929 (SA), and that:
·the evidence was not admissible under s 34P(2)(a) of the Evidence Act (because its probative value did not outweigh its prejudicial effect), and the trial judge’s failure to direct the jury to disregard it occasioned a miscarriage of justice (Ground 1); and
·the trial judge erred in law by failing to give the directions as to the permissible and impermissible use of this evidence of discreditable conduct required by s 34R(1) of the Evidence Act (Ground 2).
In Ground 3, the appellant contends that the conviction on Count 4 (the allegation of penile-vaginal rape) is unreasonable or cannot be supported having regard to the evidence (Ground 3).
A judge of this Court granted the appellant permission to appeal on Ground 1. Permission is not necessary in relation to Ground 2 because it involves a complaint of an error of law. The question of permission to appeal on Ground 3 was referred for hearing as on appeal.
The trial
The prosecution case at trial relied primarily upon the evidence of the complainant. Her evidence was given through an interpreter, and may be summarised as follows.
The complainant and the appellant were both born in Myanmar (formerly, Burma), in 1990 and 1985 respectively. They are both Muslims and members of the Rohingya community. When the complainant was about 15 years of age, and still living in Myanmar, her father arranged for her to marry the appellant. They married on 26 May 2005, and ultimately had four children together.
Upon marrying, the complainant moved into the home of the appellant’s parents. She was unhappy from the outset. She was responsible for doing all of the household chores, and in particular cooking. She was cooking not only for her husband’s family, but also other people living in their house. The cooking and other chores would take her the entire day.
From the outset, the appellant would become upset with her, even over small things. He was moody and angry about many things. She often did not know what he was angry about. Sometimes she would fall asleep before he came to bed, and he would want to have sex. When she did not want to have sex because she had fallen asleep, he would get angry and upset.
He soon became physical. He would hit her and verbally abuse her. He would slap and kick her, and even hit her with a stick that was meant for hitting the cattle. When asked how often he was violent with her, the complainant said that it was whenever he was angry or upset, “maybe every second day, sometimes every second … week … sometimes once a month. It’s different with his mood”.
The physical and verbal abuse made her very upset, but she felt that she had no choice because of their situation; that she just needed to put up with it. Not only was she married, but she had also fallen pregnant. And her father had died, so she did not have the option of returning to live with him.
In about December 2007, the complainant and the appellant left Myanmar and moved to Kuala Lumpar in Malaysia. While it was the appellant’s idea to move, she was happy to move – both to escape her life in Myanmar and because she had siblings in Malaysia. But their marriage did not improve. The appellant continued to swear at her and hit her. There were countless occasions on which this occurred.
They lived in Malaysia for a few years before temporarily moving to Indonesia, and then travelling by boat to Australia. Again, the move was the appellant’s idea but she agreed. They had the second and third of their four children while living in Malaysia, and their fourth child soon after their arrival in Australia.
In May 2013, the complainant, the appellant, and their then three children arrived in Darwin as illegal immigrants and were transferred to an immigration detention facility. They stayed there for about two months before being sent to Adelaide. They rented numerous homes whilst living together in Adelaide. This included living in a rental property in Smithfield from August 2016, and a rental property in Davoren Park from July 2018. They remained living in the Davoren Park premises until the complainant left the appellant, and ended their relationship, in March 2021.
Throughout the time they lived together in Australia, the complainant spent her time at home, doing the household chores and looking after their children. The appellant worked full-time, with his first job being at a halal abattoir. The complainant was receiving Centrelink payments but they went into a joint account. She was not permitted by the appellant to withdraw any money herself. He would give her some money to spend on the children.
On the complainant’s evidence, the appellant continued to be physically and verbally violent towards her throughout their time in Australia.
The appellant would regularly watch pornography. He would sometimes watch pornography while with her, but she would leave because she did not like it.
On one occasion, in mid-2017, while they were living in their Smithfield home, the appellant accused the complainant of being in a pornographic video which he had seen on the internet, and showed her. The woman in the video was wearing a shirt similar to one she owned.[5] She tried to explain to the appellant that it was not her; that the dress the woman was wearing was longer than her dress. But he was angry and kept trying to force her to admit it was her, swearing at her and pulling her by the shoulder to try to get her to watch the video. She refused to accept that it was her, and offered to swear on the Quran. But the appellant would not let it go. Having first accused her of being in the video on a Friday, he continued to accuse her every night until the following Friday.
[5] During cross-examination, the complainant accepted that the appellant had also said that the woman in the video had a scar on her leg like the scar the complainant had on her leg.
On that following Friday, during the day and while the children were at school, they argued again about the video and the appellant ended up punching her. He used his right fist, hitting her in the mouth and causing her bottom lip to bleed and become swollen. This was the conduct the subject of Count 1.
The following day, the complainant went to stay with her friend. But she was unable to stay the night with her friend because the appellant “came and took [her] from that place”. He forcefully dragged her to his car. She was screaming, but he pushed her inside the car and took her back to their home.
At some point in 2019, while they were living in the Davoren Park rental property, the appellant and the complainant had an argument. He was very angry, and she pretended to have fallen asleep to avoid arguing further. But he poured a bucket of water over her body. It was winter, and she was very cold and shivering. She was not able to sleep, and spent the night crying.
The next day, she took the four children and drove to her (male) cousin’s house in Geelong. But the appellant had been able to track where she was through her iPhone and he turned up in Geelong only a few hours after she had arrived. He said he would take them home. He was feeling guilty, crying, asking for forgiveness and saying he would not hit her again. He had also brought two of his friends, and she was embarrassed in front of them. She agreed to return to Adelaide with him.
Upon returning to their Davoren Park home, nothing changed. Within two or three days they were arguing and fighting again.
The complainant gave evidence that the appellant used to buy sex toys. She told him many times that she did not want him using sex toys. She threw them out from time to time, but he would just buy more. The complainant described an incident which occurred about two months before she left him in March 2021 in which he used a sex toy to penetrate her vagina without her consent (Count 2), as well as inserting his penis into her anus (Count 3) and vagina (Count 4) without her consent. The detail of her evidence in relation to these counts is addressed below in the context of Ground 3, which involves a challenge to the sufficiency and quality of the complainant’s evidence in support of Count 4.
The complainant described an incident that occurred the day before she finally left the appellant in March 2021. It started as an argument about her not having access to her Centrelink payments, or otherwise having enough money to buy things for her children. She suggested that they move to Melbourne where there would be good job opportunities for him, and a good Islamic school for the children. When he suggested that she only wanted to go to Melbourne to marry her cousin, she told him that if “you talk dirty like this I don’t want to live with you anymore”. She said that given the way he treated her, she did not want to live with him any more, and suggested that he give her a divorce. The appellant reacted by saying “How dare you? … How can you ask like that? I am the one who brought you to Australia. How dare you?” He said “If you separate with me where you gonna go … After … three to six months, you will be homeless so you’ll be on the street … and then when I see you there I will kill you.”
The appellant was angry, and his eyes were red. The complainant was sitting on the sofa, and he put his hand around her neck, pushing her so hard that the sofa moved back to the wall. After saying “where you gonna go”, he put his right hand to her neck – which she demonstrated by putting her thumb to one side of her neck, and four fingers to the other side of her neck, just below her jaw. He pushed or pressed her neck very hard. For 30 to 40 seconds she was not able to breathe. Tears were coming from her eyes, and she felt like she was going to die until he then released her. This conduct is the subject of Counts 5 and 6.
The following day she left the appellant, and took her children with her. She ultimately moved to Melbourne.
The complainant was cross-examined at length. She was challenged on some of the detail of her relationship with the appellant, and in relation to her failure to make earlier complaints about her allegations of abuse by the appellant and to include some matters of detail in her statements to the police. The opportunity for the alleged abuse to have occurred was challenged, with the complainant accepting that they generally shared their houses with multiple people, and that while living in their Smithfield and Davoren Park homes they shared their bedroom with at least two of their young children.
There was no cross-examination as to the detail or mechanics of the charged incidents. Rather, the defence case, as put to the complainant, was simply that none of the alleged abuse or offending occurred. It was suggested that she made the allegations up so as to increase her chances of obtaining permanent residency in Australia. It was also suggested to her that she had been having an affair with a man (referred to in these reasons as Mr H), and indeed that Mr H had been in the pornographic video which the appellant had found on the internet and had accused the complainant of being in. It was suggested that she wanted to leave the appellant not because she had been subjected to any physical or sexual abuse, but so that she could be with Mr H; and that she made up the allegations of abuse so that she would not be shunned by her community for leaving the appellant. The complainant denied all of these suggestions, and maintained the effect of her evidence in chief.

The oldest son of the complainant and appellant, EM, gave evidence. Focussing upon when they lived at the Smithfield and Davoren Park rental properties, he said that his parents argued on an essentially daily basis. This included the appellant making threats to the complainant, such as that he was going to “smack” her, or “smack [her] face”. While the complainant was often crying, he did not ever witness any physical violence by the appellant towards the complainant. Nor did he ever notice any physical injuries on the complainant. He could not recall her ever having an injured lip.
During cross-examination, EM agreed that two of his younger siblings slept in his parents’ bedroom while they were living in Smithfield and Davoren Park. He also said that he did not know anything about the complainant marrying Mr H.
Finally, the prosecution called Brevet Sergeant Heidi Molloy, who was the investigating officer in the matter. She gave evidence about various aspects of the investigation.
The defence did not call any evidence. The defence case, as put through cross-examination and addresses, has been outlined above.
Grounds 1 & 2: the invasive images allegation
Grounds 1 and 2 both relate to the evidence volunteered by the complainant during cross-examination, referred to earlier in these reasons as the ‘invasive images allegation’. It is appropriate to explain the context and content of this evidence, before addressing the complaints made on appeal in relation to its admissibility and the directions it required.
The evidence
The evidence in question was given late in the lengthy cross-examination of the complainant. Defence counsel put to the complainant that the “real reason” she left the appellant and moved to Melbourne was not any physical or sexual violence by the appellant, but because she wanted “to be with” Mr H. When the complainant denied this, defence counsel asked her whether she had later married Mr H. In the exchange that followed, she denied any earlier relationship with Mr H and made the invasive images allegation:
QDid you later marry [Mr H].
AYeah, before, before I moved to Melbourne I have been told before that and then after that I have been told by my kids volka that he has been dragged to the court and that he is still saying the same thing. So, before I move out from Adelaide when I was under his marriage or wedding law konekta I never have any relationship with anyone Iqubal or figbal or anyone I don’t have but after that he cannot say any, after I separate with him he cannot say if I have anything with someone else. I have my own life.
QDid you later marry [Mr H].
AI did get married after one year because this is to show I’m angry with him. What he has done, he has spread – he has spread the photos of me being naked, the photos of me just with towels, the photos of me just wearing my sarung. The photos of me having sex with him, my private part, his private part. He has spread these photos to so many different people I was so embarrassed. So, as anger for that what he has done after one year I married him.
Upon further questioning by defence counsel, the complainant said that she had told the police about the appellant spreading these images; that she told the police they should check his emails as he had sent them to his friend, Mr A. When pressed as to whether she had in fact given the police this information, she responded:
AI – I don’t know if I have told them at the time I was providing the statement, but before I leave Adelaide I told them he has blackmailed me that he will spread the video, our most dirty videos he has taken while we were sleeping together and he blackmailed that if I leave him he will spread that. I told him – I told them that one.
Defence counsel put to the complainant that none of this appeared in the affidavits she provided to the police, but she maintained that she had told them about what he had threatened to do. Defence counsel then returned to his cross-examination suggesting that the reason for making the allegations of physical and sexual abuse by the appellant was to create an explanation for leaving her husband that would be acceptable in her community:
Q… I want to be very clear about this to you: the reason you went to the two police stations on March 25 was because you were laying the groundwork to leave [the appellant] for [Mr H], what do you say to that.
ANo, if I was making a path away, I would have told that time already.
QOkay. And the reason I suggest you only told the police about marital breakup is this: so that you could say to your community that you left or you had a good proper reason to leave your husband.
ANo.
…
QAnd to be very clear, it wasn’t until 4 February this year, 2023, that you even chose to mention to the police that you had a new husband, is that correct. Is that right.
AAre you talking about [Mr H] also with his arrangement –
QYes. Yes, I was.
A– with his arrangement, he arranged people from the country people and then he also broken my relationship with [Mr H].
QAs I said to you earlier, and I’m suggesting to you this again, the truth is you were having sexual relations with [Mr H] in Adelaide while your kids were at school and your husband was at work.
AEven if I die I will not accept that, I didn’t do that.
It is fair to say that the complainant volunteered her allegation that the appellant had spread, or threatened to spread, the invasive images of the complainant. She was not asked about the invasive images allegation, and, indeed, it may be accepted that this evidence came as a surprise to defence counsel.
However, it cannot be said that the evidence was entirely gratuitous or unresponsive to the question(s) she was asked. When first given, the evidence was not directly responsive to the precise question asked (“Did you later marry [Mr H]?”). However, it was responsive in at least a general way, in the sense that it was a response to the general gravamen of the line of questioning. Her evidence was responsive to the suggestion that the reason she left the appellant was not to escape physical and sexual abuse, but rather to pursue a relationship with Mr H; and that the allegations of physical and sexual abuse were being made to create a reason for leaving the appellant that would be acceptable in her community. It was plain that defence counsel intended to suggest that her subsequent marriage to Mr H supported this aspect of the suggested motive for the complainant to lie; and it was equally plain that the complainant was attempting to meet this suggestion by explaining that the reason for her subsequent marriage to Mr H was to show her anger with the appellant for his conduct in spreading, or threatening to spread, the invasive images.
Further, and in any event, upon the complainant volunteering the invasive images allegation, defence counsel did not object, or ask that the trial judge direct the jury to ignore the evidence that had been given. He did not do so at the time the evidence was given. Nor did he do so at any later point in the trial. Indeed, defence counsel made a forensic decision to continue with the line of questioning, eliciting and then challenging the complainant’s evidence to the effect that she had informed the police of the invasive images allegation.
It was not entirely clear from the complainant’s evidence when the appellant was said to have spread, or to have threatened to spread, the invasive images. However, it would seem that the allegation related to conduct that occurred after the complainant had left the appellant, and perhaps around the time the appellant was arrested and the complainant was planning to move to Melbourne.
The invasive images allegations were not subsequently addressed in the trial. As explained, it was reasonably obvious at the time the evidence emerged that its only potential relevance was in relation to one of the motives to lie suggested by the defence. The evidence was an answer given by the complainant to the suggested significance in this context of her subsequent marriage to Mr H. Defence counsel made submissions in his closing address in support of the suggested motive for the complainant to lie, but did not mention the invasive images allegation. Nor did the prosecutor seek to make any use of the invasive images allegation in his closing address. The trial judge did not make any direct or specific reference to the invasive images allegation, although he did – as explained below – give the jury directions in relation to the suggested motive for the complainant to lie, and by way of warning against so-called ‘bad person’ reasoning.
Ground 1 – no error or miscarriage in admitting the evidence
At the time the complainant gave her evidence to the effect that the appellant had spread, or threatened to spread the invasive images, there was no discussion of its admissibility. This was understandable given the way in which the evidence emerged.
Section 34P of the Evidence Act prescribes the preconditions to the admissibility of evidence tending to suggest that a defendant has engaged in discreditable conduct:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).
The Evidence Act does not contain any definition of discreditable conduct. However, it is not confined to conduct which constitutes a criminal offence. It connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant, and is 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.[6]
[6] Sadler v The King [2023] SASCA 63 at [27] (Doyle JA); see also R v Golubovic [2016] SASCFC 144 at [73] (Blue J, Nicholson and Doyle JJ agreeing).
It was accepted by the parties on appeal that the complainant’s evidence that the appellant spread, or threatened to spread, the invasive images was evidence tending to suggest that the appellant had engaged in discreditable conduct. I agree. The alleged conduct was potentially criminal, but was certainly wrongful and morally repugnant in the requisite sense.
In Ground 1, the appellant complains that the evidence was not admissible by reason that the probative value of its permissible use did not outweigh the prejudicial effect it may have upon the appellant (s 34P(2)(a)).
The prosecution case involved other evidence that the appellant had engaged in discreditable conduct. As summarised earlier, this included evidence of his history of violent and abusive behaviour, his controlling behaviour (particularly in relation to their money), and his conduct in making the complainant watch pornographic videos when she did not wish to do so. This evidence was relevant for several permissible purposes, being essentially to put the complainant’s evidence of the charged conduct in its proper context within their relationship by explaining, for example, why she was not able to recall some matters of detail, why she reacted the way she did to the charged conduct, why she did not leave their relationship or go to the police earlier than she did, and why the appellant might have been emboldened by a belief that there would be no consequences for his conduct.
However, the complainant’s evidence that the appellant spread, or threatened to spread, the invasive images was of a different nature. It does not seem that it was relevant or admissible for any analogous contextual purpose, not least because it appears to have post-dated the alleged offending. Rather, as mentioned, the relevance of the invasive images allegation lay in its capacity to assist in meeting the defence case as to the complainant’s motive to lie; and, in particular, to assist in explaining why the complainant later married Mr H.
Accepting this relevance, it is not necessary on this appeal to express a concluded view as to whether, for the purposes of its admissibility under s 34P(2)(a) of the Evidence Act, the probative value of the evidence in support of this permissible use outweighed its potential prejudice to the appellant (through the jury using it to reason that, because he engaged in this discreditable conduct, he is more likely to have committed the alleged offending (sometimes referred to, in its crudest form, as ‘bad person’ reasoning)). It is not necessary to do so because there was no objection to the evidence. Indeed, as explained, defence counsel adduced the evidence.
The absence of any objection to this evidence means that, even if inadmissible, it cannot be said to have been admitted in error. Its admission did not involve a “wrong decision on any question of law”,[7] to use the language of the common form appeal provision in s 158(1) of the Criminal Procedure Act 1921 (SA).
[7] Hofer v The Queen (2021) 274 CLR 351 at [119] (Gageler J); R v Soma (2003) 212 CLR 299 at [11] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Johnson v The Queen (2018) 266 CLR 106 at [52] (the Court).
Further, in circumstances where the failure to object (or to ask for a direction that the jury ignore the evidence) reflected a forensic decision by defence counsel, it also cannot be said that the admission of the evidence (or the failure of the trial judge to direct that it be ignored) gave rise to any miscarriage of justice.[8] Indeed, it is difficult to see how the defence counsel could have sought, or the trial judge have given, a direction to ignore the invasive images allegation when the defence maintained its reliance upon the complainant’s subsequent marriage to Mr H as probative of its suggested motive to lie, and the invasive images allegation was part of the complainant’s (and hence prosecution’s) response to that reliance and suggestion.
[8] Orreal v The Queen (2021) 274 CLR 630 at [15]-[16] (Kiefel CJ and Keane J).
This is sufficient to dismiss Ground 1. No error or miscarriage has been established in the admission of the evidence, or in the failure of the trial judge to direct the jury to ignore it.
However, the evidence having properly been before the jury, it remains to consider whether there was any miscarriage of justice by reason of the trial judge failing to give directions that adequately addressed the potential prejudice from any impermissible use of the evidence. In the context of discreditable conduct evidence this involves, and is ordinarily subsumed by, consideration of whether the trial judge complied with his obligation under s 34R(1) of the Evidence Act to give directions as to the permissible and impermissible uses of the evidence. The appellant’s complaint that the trial judge failed to comply with this obligation is the subject of Ground 2.
Ground 2 – no failure to give adequate directions
Under Ground 2, the appellant complains that the trial judge failed to give the directions he was required to give as to the permissible and impermissible uses of the invasive images allegation under s 34R(1) of the Evidence Act:
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
It might be said that because the evidence came in by consent, and in the course of the cross-examination of the complainant by defence counsel, it was not “admitted under section 34P” so as to trigger the obligation under s 34R(1). However, this would be to take too literal an approach to the introductory words to s 34R(1). When read in the context of s 34P and the other provisions of the Evidence Act governing the admissibility and treatment of evidence of discreditable conduct, the introductory words of s 34R(1) should be construed as meaning that, whenever evidence of discreditable conduct is admitted, the requirements of that section are engaged. That is so even if the evidence is admitted by consent, including in circumstances where there is no express reference by the parties or the trial judge to s 34P as the basis for admitting the evidence.
If objection had been taken, the admission of the evidence would have to have been justified under s 34P(2), and the requirements of s 34R complied with. It is difficult to see why the legislature would not have intended that the requirements of s 34R be complied with even if the evidence is received by consent, or defence counsel otherwise waives any right to insist upon satisfaction of the preconditions to the admissibility of the evidence under s 34P(2). Read together, ss 34P and 34R assume that discreditable conduct evidence has the capacity to prejudice a defendant, and the requirements of s 34R are intended to ensure that directions are given to assuage that prejudice. Consenting to the admission of evidence of discreditable conduct does not mean that there is not the same risk of prejudice, and hence the same imperative to ensure that appropriate directions are given.
Support for this view may be found in the reasons of Nicholson J, with which Kourakis CJ and Hinton J agreed, in R v Jones:[9]
The judge would only have been required to consider the question of admissibility in the event that an objection was taken.[10] However, even where such evidence is unobjected to, its proper use and the directions required by s 34R must still be attended to.
[9] R v Jones (2018) 131 SASR 532 at [28].
[10] R v C, G (2013) 117 SASR 162 at [43]-[53].
Accepting that s 34R(1) applied to the complainant’s evidence that the appellant had spread, or threatened to spread, the invasive images, the issue becomes whether the judge complied with his obligation under that section.

Determining the content of the trial judge’s obligation under s 34R(1) to give directions as to the permissible and impermissible use of evidence of discreditable conduct requires consideration of the forensic context of the particular trial. This is the effect of the High Court’s reasons in Perara-Cathcart v The Queen,[11] as summarised and elaborated upon in the following passage from my reasons in R v Tran:[12]
I thus agree with Vanstone J that it was not necessary in the circumstances of this case for the trial judge to go further than he did, and expressly warn himself against the bare or general propensity reasoning proscribed by s 34P(1) (that is, using the wording of the “impermissible use” identified in that subsection). While the trial judge was obliged under s 34R(1) to identify and explain the uses that “may, and may not” be made of the evidence of discreditable conduct, the extent of this obligation is not to be determined in the abstract, and does not extend to identifying or explaining every conceivable or theoretical line of impermissible reasoning. The nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial.[13] What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence.[14] The issue is ultimately whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.[15]
While a direction that reflects the wording of the impermissible use identified in s 34P(1) will often be required, that will not always be so.[16] In R v Forrest,[17] the absence of such a warning bespoke inadequacy and error because the prosecutor’s address had left open, if not encouraged, bare or general propensity reasoning of the proscribed type, and the trial judge’s directions did not clearly identify the quite limited and particular permissible use of that evidence. Similarly, in R v Golubovic,[18] it was significant that the trial judge did not ever properly identify the permissible use of the evidence of discreditable conduct. By way of contrast, in the present case, the trial judge clearly and accurately described the permissible use that might be made of the evidence of discreditable conduct. The line of reasoning that this permissible use engaged was quite distinct from the general or bare propensity line of reasoning that s 34P(1) proscribes. The former turned upon an overall consideration of the evidence of the charged and uncharged conduct so as to deduce a pattern or system that might assist in characterising individual transactions. It did not employ the sequential reasoning from particular discreditable acts that is the hallmark of the impermissible bare or general propensity reasoning.
[11] Perara-Cathcart v The Queen (2017) 260 CLR 595.
[12] R v Tran [2017] SASCFC 99 at [163]-[164]; subsequently applied in R v Singh [2019] SASCFC 51 at [53] (Doyle J, Peek and Parker JJ agreeing); JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Peek and Bampton JJ agreeing); Hammer v The Queen [2022] SASCA 75 at [59] (Livesey P, Bleby and David JJA); Magro v The King [2022] SASCA 100 at [95] (Lovell, Bleby and David JJA).
[13] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53], [62], [66]; R v Taheri [2017] SASCFC 92 at [37].
[14] R v Golubovic [2016] SASCFC 144 at [80].
[15] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [57]-[58], [66].
[16] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [52].
[17] R v Forrest (2016) 125 SASR 319 at [44]-[47].
[18] R v Golubovic [2016] SASCFC 144 at [69], [70], [80], [86]-[87].
In the present case, the trial judge did not explicitly address the invasive images allegation in his summing up. This is understandable given that the allegation did not receive any further attention after the passage of cross-examination summarised above, and was not mentioned by either counsel in their closing addresses; and that neither counsel suggested or requested any direction in relation to this evidence either prior to, or after, the judge gave his summing up. It would seem that counsel, and the judge, treated the invasive images allegation, like several strands of the evidence that emerged during the cross-examination, as having disappeared into the background as passing detail in the context of a forensic contest focussed on other issues.
To the extent that the jury nevertheless considered this evidence, it is not as though they were left without any guidance. Given the context in which the impugned evidence emerged, it was plain that its potential relevance lay in the jury’s assessment of the defence case that the complainant had a motive to lie, and the judge gave careful directions as to how to approach that aspect of the defence case. His Honour summarised the defence case in relation to the complainant’s alleged affair with Mr H and the suggested motive the complainant had for fabricating a reason for leaving the appellant that would be acceptable in her community. His Honour also summarised the prosecution response to this aspect of the defence case, including a challenge to its plausibility as a motive for making up the detail and extent of the alleged physical and sexual abuse that she endured, and explained the proper approach to analysing an allegation that a complainant has a motive to lie. While the judge did not make explicit reference to the invasive images allegation in this context, it would have been clear to the jury that this was the context in which, and legal framework by reference to which, this evidence fell to be considered.
Importantly, there was no prosecution submission, or anything else in the evidence or addresses, that invited the jury to entertain any impermissible use of the invasive images allegation. To the extent that there might otherwise have been any real risk of the jury entertaining ‘bad person’ reasoning, it is significant that the trial judge gave strong and clear directions warning against any such reasoning. It is true that the directions were focussed upon the contextual or relationship evidence summarised earlier in these reasons. However, they were expressed in sufficiently general terms, but nevertheless strong and clear terms, that they adequately addressed any risk of the jury slipping into ‘bad person’ reasoning in respect of the invasive images allegation.
To explain, the trial judge commenced his directions in relation to the evidence of discreditable conduct in general terms, pointing out that there were “strict rules” about the use of such evidence (that is, evidence of “uncharged criminal conduct”, “poor behaviour” or conduct which might otherwise “reflect badly on him”):
Sometimes in a trial, evidence is led which suggests that an accused has committed more than one criminal act, or that the accused has committed some uncharged criminal act, or that the accused has behaved in a manner which may reflect badly on him. When that occurs, there are very strict rules as to how the evidence can be used and how it cannot be used. It is very important that you not misuse the evidence or reason improperly.
So the directions I am about to give you relate to how you can use the evidence of uncharged criminal conduct and evidence of poor behaviour and how you can use the evidence you heard as to one charge when you are considering the other charges.
The trial judge proceeded to identify various aspects of the evidence of discreditable conduct that had been adduced at trial, being the evidence of the contextual or relationship matters summarised earlier. His Honour next explained in some detail the permissible uses of this evidence, as also summarised earlier in these reasons. His Honour followed this with a reference to the defence case to the effect that the complainant had lied about the discreditable conduct, and a reminder of the defence submission that the complainant had a motive to lie that extended to lying about the discreditable conduct. This included a reminder of the defence submission that the complainant had left the appellant to continue her (alleged) relationship with Mr H, and that she therefore had a motive to fabricate a reason for leaving the appellant that would not result in her being shunned by her community.
The trial judge then concluded his directions in relation to the evidence of discreditable conduct with what I have described as a general, but nevertheless clear and strong, direction not to engage in ‘bad person’ reasoning:
Now, I am just going to give you some directions as to how you must not use any of that evidence. Even if you accept that the accused has acted in any of the ways that I have outlined, it is very important that you not reason in any of the following ways.
One, you cannot reason that because he has engaged in criminal activity or poor behaviour on some other occasion, that he is a bad person or a person of bad character, and that he is therefore more likely to commit a crime, or that he is the sort of person who commits crime and is therefore more likely to have committed the charged offences. To reason in either of those ways would be, in effect, to condemn a person on their record. It would mean that anyone who had ever done anything wrong is more likely to have committed a crime. It would be improper to reason in those ways, and you must not do so.
Secondly, nor can you reason, 'Well, he has done something violent or aggressive in the past, therefore he is a violent man and therefore he is more likely to have acted violently again'. Nor can you reason, 'Well, he has done something similar to the offence I am considering, therefore he must have done it again'. The prosecution did not lead the evidence for you to reason in those ways, and you must not do so.
And lastly, you must not allow the evidence of this other behaviour to distract you from the need to consider whether the prosecution has proved the charge beyond reasonable doubt. You certainly cannot reason 'Well, I am satisfied the accused has done something bad or committed some criminal act, so that is enough to prove that he committed the offence I am considering'.
It would have been preferable had the trial judge made explicit reference to the invasive images allegation in his summing up, directly linking it to the permissible and impermissible uses otherwise identified in the summing up. In my view, this is so even though the contemplated directions may, somewhat paradoxically, have served to highlight evidence which was unlikely to have loomed large in the jurors’ minds but which had the potential, if accepted, to reflect poorly on the accused. The terms of s 34R(1) support an approach which emphasises the need for directions to assist the jury in their consideration of such evidence.
However, I am not satisfied, in the circumstances of the present case, that the failure to make explicit reference in the summing up to the invasive images allegation involved a failure to comply with s 34R(1) or otherwise occasioned a miscarriage of justice. As I have explained, the evidence emerged in the context of a line of cross-examination that was directed to an aspect of the defence case that the complainant had a motive to lie. It was plain that the only potential relevance of this evidence was as a response to the suggestion that the complainant’s subsequent marriage to Mr H supported the defence allegation that she had been having an affair with him.
The evidence was not directly mentioned at all in the balance of the trial. To the extent that the jury gave it any attention in their deliberations, they would have understood its potential relevance to the issue of a motive to lie, and have considered it through the prism of the directions the trial judge gave on this topic.
In circumstances where there was no submission by either party that might have encouraged the jury to engage in any form of propensity reasoning in relation to the invasive images allegation, I do not think there was any significant risk that the jury would have engaged in such reasoning, let alone simplistic ‘bad person’ reasoning. But importantly, to the extent that any juror might otherwise have been inclined to entertain such reasoning, the trial judge’s directions instructing the jury not to engage in such reasoning would have been sufficient to prevent that occurring. As mentioned, whilst general in their terms, those directions were clear and strong, and extended to the potential prejudice relied upon by the appellant on appeal.
This was not a case where directing against ‘bad person’ or other propensity reasoning in respect of some specific items of evidence might have encouraged the jury to think, from the judge’s silence in respect of other items of evidence, that such reasoning was permissible in respect of those other items of evidence. To the contrary, the judge’s directions made it clear that such reasoning was impermissible generally, and in respect of all evidence of discreditable conduct.
In the circumstances described, the trial judge’s directions were adequate for the purposes of s 34R(1), and sufficient to avoid any miscarriage of justice. Ground 2 has not been made out.
Ground 3: unreasonable verdict on Count 4
In Ground 3, the appellant contends that the appellant’s conviction on Count 4 (the allegation of penile-vaginal rape) is unreasonable or cannot be supported having regard to the evidence. In particular, the appellant challenges the sufficiency and quality of the complainant’s evidence in relation to this count. Whilst the complainant gave relatively clear evidence that the alleged act of intercourse occurred, the challenge focussed upon the sufficiency of her evidence as a basis for concluding, beyond reasonable doubt, that she did not consent to this act, and that the appellant knew (or was reckless as to whether) she was not consenting.
The principles governing consideration of this ground are not in dispute. As confirmed by the High Court in Pell v The Queen[19] and Dansie v The Queen,[20] the principles remain as set out in the Court’s earlier decision in M v The Queen.[21]
[19] Pell v The Queen (2020) 268 CLR 123.
[20] Dansie v The Queen (2022) 274 CLR 651.
[21] M v The Queen (1994) 181 CLR 487.
The question is one of fact which this Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand; that is, whether there is a significant possibility that an innocent person has been convicted.[22]
[22] Pell v The Queen (2020) 268 CLR 123 at [119] (the Court).
In accordance with the reasons of the plurality in M v The Queen,[23] the Court must ask itself whether it thinks that, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[24] Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[25]
[23] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).
[24] Dansie v The Queen (2022) 274 CLR 651 at [8] (the Court); Pell v The Queen (2020) 268 CLR 123 at [43], [45] (the Court).
[25] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J); Pell v The Queen (2020) 268 CLR 123 at [44]-[45] (the Court).
In M v The Queen, the plurality said the following by way of elaboration upon the appellate court’s task:[26]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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.
[26] M v The Queen (1994) 181 CLR 487 at 494-495 (Mason CJ, Deane, Dawson and Toohey JJ).
In Dansie v The Queen,[27] the High Court emphasised the need for the appellate court to undertake an independent assessment of the evidence, both as to its sufficiency and its quality. Further, in considering the challenges to the sufficiency and quality of the evidence, it is important not to lose sight of the fact that the ultimate question is not whether it was nonetheless possible that the alleged offending did occur as alleged by the complainant. Rather, the focus must be upon whether it was reasonably possible that the conduct alleged by the complainant did not occur, such that there was a reasonable doubt as to the defendant’s guilt.[28]
[27] Dansie v The Queen (2022) 274 CLR 651 at [8] (the Court).
[28] Pell v The Queen (2020) 268 CLR 123 at [46] (the Court).
For completeness, I add that, as the High Court said in Pell v The Queen,[29] the appellate court ordinarily proceeds upon an assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. In the present case, while a consideration of the verdicts suggests that the jury considered the complainant’s evidence to be generally credible and reliable (and to be sufficient to sustain Count 4), it would seem from the acquittals on Counts 1 and 5 that the jury had at least some reservations about aspects of her evidence.
[29] Pell v The Queen (2020) 268 CLR 123 at [39] (the Court).
Turning to the circumstances relevant to the contended unreasonableness of the verdict on Count 4, the prosecution opened its case on the basis that the three counts of rape (which may conveniently be referred to as the sex toy (Count 2), anal (Count 3) and vaginal (Count 4) allegations of rape) occurred on the same occasion, and in the order just mentioned.
Consistently with this, when the complainant came to give evidence of the alleged rapes, she commenced by describing the sex toy allegation. That said, this starting point was most likely a consequence of the way in which the evidence was adduced by the prosecutor.
After giving evidence that the appellant would buy sex toys, which she did not like and used to throw away, the complainant was asked whether there was an incident, while they were living at Davoren Park, “where he did something with a sex toy that you didn’t want to happen”. She responded that there was an incident, and that it occurred in their bedroom, about two months before she left the appellant in March 2021.
The complainant then gave evidence in support of the sex toy allegation of rape:
Q.     Tell us what happened in that room with [the appellant].
A.Yeah, you know, normally we are husband, wife so you know - you know, normally husband and wife we sleep together, you know, when at night he will take out that dirty stuff first, so he will take that dirty stuff and then he will try to put at the back of me.
Q.     The - you were - you and [the appellant] were in the bedroom that night.
A.      Yes.
Q.     Were you in the bed or out of the bed.
INTERPRETER:     I think I heard she said 'bed'
Q.     Did you have - did [the appellant] have his clothes on.
A.     No, no clothes.
Q.     What about you.
A.     No, no clothes.
Q.    Whilst you were there, did [the appellant] produce one of the sex toys.
A.    Yes.
…
Q.    Can you describe it.
A.You know, normally, normally he - what he would do, he would try to put at the back of me, you know, at the back of me mean my back passage, you know, the back passage of the female. So he tried to use that to do things from my back.

After a break in the evidence, the complainant continued:
Q.     Did you want him to use the sex toy on that occasion.
A.     Never, I never want to.
Q.     On this particular time you didn't want to.
A.     Yeah, I don't want.
Q.     Did you tell him you didn't want.
A.     I did.
Q.     Did he put the toy inside you.
A.     Yes.
Q.     Which part of your body.
A.     In front.
Q.     Did you try and stop him.
A.     I did stop him.
Q.     How did you stop him.
A.I tried to tell him openly but he wouldn't listen so I used my hand. I push with my hand.
Q.     Did he continue after you were pushing with your hand.
A.     Yes.
Q.     When you were pushing with your hand, were you saying anything.
A.      I did.
Q.     What did you say.
A.I cry. I cry. I told him 'Please don't use these sort of things. This is sinful and I also don't like it'.
Q.     Did he stop.
A.     When I cried a lot, yeah, he stop it.
Q.     After how long was it that he stopped.
A.     Two or three minutes.
Q.     Did it hurt you at all.
A.     Yeah, it's hurt me.
Q.     The toy he used, can you describe it.
A.Yeah, its like his one. You know, it's like his one. You know, the one he used for his wife. It is like rubbery. I don't know the name.
Q.     When you say 'his one', do you mean his penis.
A.    Yes.
Q.    The toy looked like that.
A.    Yes.
When the complainant was asked whether the appellant did anything else to her on that occasion, she then gave reasonably detailed evidence in support of the Count 3 allegation of anal rape:
Q.     Apart from using the toy, did he do anything else with you on this occasion.
A.You know, you watched that dirty videos and the dirty things he watched. It looked like that sort of stuff. The one people do from the back. He attempted to do it many times with me from the back.
Q.     Is doing it from the back something you wanted to do.
A.     No, I don't want.
Q.     Had you told him before that that's not something you want.
A.     I did.
Q.     On this occasion is that something that he tried to do.
A.     Yes.
Q.     When he tried that, were you on the bed still.
A.     Yes.
…
Q.     When he tried to put it in the back, how were you positioned.
A.     Yeah, he turned me like, you know, lying down and then he'd turn me.
Q.     After he would turn you were you on your stomach or your back or some other part.
A.Its laying back. Sorry, no not lying back. My stomach was lying on the bed and my back was on the top.
Q.Before he turned you, were you the other way, so your back was down and your stomach was up.
A.     Yes.
Q.     Was that the position you were in when he used the toy.
A.     No.
Q.     What was your position when he used the toy.
A.Yeah, I was lying like lying with my back on the back and my face facing up, yeah facing up. My face facing up.
Q.     After that he's turned you over.
A.     Yes.
Q.     How has he turned you over. What's he done to do that.
A.    Yeah, he used the hand and then he turned me using the hand.
Q.     You mentioned that he tried to put something in your back passage.
A.Yeah, he tried to insert the one he had on his body, the part of his body. I mean the penis.
Q.     Did it go inside your body.
A.     Yeah, it went inside forcefully.
Q.     Did you want him to do that.
A.     No.
Q.     Did you tell him you didn't want him to do that.
A.     Yes.
Q.     Did you tell him that before or after he did it.
A.     Before he was doing that I say that, also when he was doing it I say that.
Q.     When he was doing it and you were saying that, did he stop.
A.     Didn't stop.
Q.     Apart from saying something to him, did you do anything to try and stop him.
A.     When I was crying he did stop once.
Q.     Then what happened.
A.     Stopped and after I cry I went to the bathroom.
Q.Before you went to the bathroom, while it was still happening in your back passage, how long for.
A.     I can't remember exactly the time. It is two or two to three minutes.
Q.     Was that painful.
A.     Too much.
Q.     Were you injured at all.
A.     Yes, I was injured.
Q.     Before you went to the bathroom, was there anything else that he did with you.
A.     No, I didn't.
Q.     You went to the bathroom. How long were you in the bathroom for.
A.     Yeah. For half an hours I was sitting down in the bathroom and I was crying.
Q.     Was that the end of the sexual acts that night.
A.     Yes.
In the concluding answers in this passage from her evidence in support of the allegation of anal rape, the complainant had made it clear that that was the end of the sexual activity between them that night. However, upon further questioning, the complainant made reference to an act of penile-vaginal intercourse:
Q.On the occasion we have been talking about, so not a different time, this time - can you translate that bit please - you have told us he put the sex toy in your front passage.
A.     Yes.
Q.     Was anything else put inside your front passage.
A.     No. First he did it and after he did it he changed to this one.
Q.     You mean he did it with the toy first.
A.      No, his own.
Q.     Do you mean his own penis.
A.     Yes.
Q.     Did he use his penis before or after the toy.
A.     First he did it himself and then after why he did it secretly he took up the toys.
Q.     So it was while he was using his penis he took out the toy.
A.     Yes.
Q.When he was using his penis before the toy did you want that to happen. I will start that again. Before he brought out the toy when he was using his penis, were you consenting to that act.
A.     No.
Q.     Had you told him that you were not consenting.
A.     I did.
Q.     What did you say to him.
A.Yeah, I told him 'Look, what you are doing is very dirty. What you are watching is very dirty. The other ladies who was doing it in there they are making money. They are making it because they are making money. Don't make me to do that' and 'I'm your wife', apology.
The complainant did not give any further evidence in relation to the occasion on which Counts 2, 3 and 4 were alleged to have occurred. Defence counsel did not cross-examine the complainant in any detail about her evidence on these counts, apparently relying instead upon the appellant’s general denial of all of the alleged physical and sexual abuse.
Focussing on Count 4, the complainant gave clear evidence that an act of penile-vaginal intercourse occurred. Further, and despite the sequence of events given by the prosecutor in his opening address, the complainant was reasonably clear that this was the first of the three charged acts. This was apparent both from her description of the anal intercourse as ending the sexual activity, and from her statements in her evidence as to the penile-vaginal intercourse that “first he did it” himself or with his penis, and that it was while this was occurring that he “secretly … took up” the sex toy.
However, the concern as to the complainant’s evidence in relation to Count 4 relates to the sufficiency and quality of her evidence as to her lack of consent, and the appellant’s knowledge or recklessness as to that lack of consent. When asked whether, “before he brought out the toy when he was using his penis”, she was consenting “to that act”, she said “no”. And when asked whether she told him she was not consenting she said “I did”.
Whilst taken literally this was evidence of an express lack of consent to the act of penile-vaginal intercourse, the difficulty arises not only from the brevity of the evidence, but the apparent confusion that is inherent in the commencing question and concluding answer – both of which left open the possibility that her lack of consent related to the sex toy allegation rather than the penile-vaginal intercourse allegation. In particular, the question intended to address the complainant’s consent to the penile-vaginal intercourse was confusingly worded, and included reference to both acts. Perhaps more importantly, after saying that she told the appellant she was not consenting, and when asked what she said, the complainant gave an answer which made reference to the act being “very dirty” and something that other women did for money but that she should not be made to do as the appellant’s wife.
In my view, it is reasonably apparent from this last answer that the complainant’s evidence as to her express lack of consent related to the appellant’s use of the sex toy, rather than his penis, to penetrate her vagina. On previous occasions in her evidence – including in the passages extracted above – the complainant made clear her dislike of sex toys, and indeed described them as “dirty”. On the other hand, there was nothing in her evidence to suggest that she considered penile-vaginal intercourse inherently “dirty” or something that she should not have to do with her husband. Seemingly to the contrary, she made reference at the commencement of her evidence extracted above to it being normal for them, as “husband and wife”, to “sleep together”.
If her evidence is understood in the way I have suggested, then the prosecution was left without any evidence of a lack of consent to the act constituting Count 4, and a corresponding lack of any evidential basis for inferring the appellant’s knowledge of, or recklessness as to, the lack of consent.
On one view of what the complainant described, it might be that they were engaging in consensual penile-vaginal intercourse, but that she withdrew her consent at the point he introduced the sex toy. But this would have been a more subtle prosecution case which was never clearly advanced.
It is apparent that the trial judge was alive to the difficulty with the complainant’s evidence in relation to Count 4. After raising the issue with counsel, he gave the jury the following directions in relation to the appellant’s knowledge or recklessness as to the complainant’s consent to the act of penile-vaginal intercourse:
I will not repeat everything that I have said but the matters for you to consider would be that there is no evidence as to what act she was referring to when she spoke about the act the ladies were doing and her saying 'Don't make me do it'. There is no evidence that the act in the video was an act of penile-vaginal intercourse. This may, therefore, be relevant to whether you can infer beyond reasonable doubt that the accused knew or was reckless that she was not consenting to such an act. Similarly, there is no evidence as to whether [the complainant] was crying at the time of count 4. There is no evidence as to the precise words she used to convey that she was not consenting. There is no evidence as to how loudly she said them, what was occurring when she said them, whether the accused reacted to the words or what the accused said or did after the words were spoken.
So the absence of evidence on those topics may therefore be relevant to you when you are considering whether you can infer beyond reasonable doubt that this element has been proved as regards count 4.
While the jury were undoubtedly properly instructed in relation to Count 4, that of course does not answer the complaint that the verdict on this count was nevertheless unreasonable. Having undertaken the appellate task of assessing the complainant’s evidence in relation to Count 4, in the context of her evidence as a whole, I have significant reservations as to the sufficiency and quality of her evidence in relation to her lack of consent, and the appellant’s knowledge or recklessness as to her lack of consent. As I read her evidence, it does not address her consent to the act the subject of this count clearly, and on one view does not do so at all.
As an appellate judge, not only am I left with a doubt as to the appellant’s guilt of Count 4, but I am also not satisfied that this doubt could have been resolved by the advantage that the jury enjoyed in having seen and heard the complainant give evidence. In circumstances where my concern is that the relevant passage of evidence was at best not clear, and at worst addressing the complainant’s consent to a different act, I do not see how the jury’s advantage could reasonably have assisted them to resolve this doubt about the complainant’s consent in relation to Count 4, and hence the appellant’s knowledge or recklessness as to the same.
On reading the complainant’s evidence as a whole, there were several instances where it was, at least to some extent, confusing in the way it was expressed. This is, of course, a feature of the evidence which is to be expected when it is given by a witness whose first language is not English, and it is given through an interpreter. It may be accepted in these circumstances that the jury may have had an advantage in being able to assess the nature and extent of that confusion. However, I do not regard this advantage as capable of resolving the doubt in relation to the sufficiency and quality of the complainant’s evidence that she did not consent to the act the subject of Count 4. On my reading of her evidence, it was either insufficient, or at least confusing, even in the terms it was transcribed. It seems to me that to the extent that the complainant demonstrated any general confusion or difficulties in expression in her evidence more generally, this can only have enhanced, rather than resolved, the doubt that I have identified.
For the reasons given, Ground 3 has been made out. The verdict of guilt in relation to Count 4 is unreasonable, and should be set aside and replaced with a verdict of acquittal.
Conclusion and orders
Permission to appeal having already been granted on Ground 1 and being unnecessary on Ground 2, I would grant permission to appeal on Ground 3.
I would allow the appeal on Ground 3, set aside the conviction on Count 4 and substitute an acquittal on that count. I would otherwise dismiss the appeal.
DAVID JA: I would grant permission to appeal on Ground 3.
I would allow the appeal on Ground 3, set aside the conviction on Count 4 and substitute an acquittal on that count.
I would otherwise dismiss the appeal.
I agree with the reasons of Doyle JA.