McClelland v The King - [2025] SASCA 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MCCLELLAND v THE KING
[2025] SASCA 87
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stanley)
14 August 2025
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
Appeal against conviction.

The appellant was found guilty of one count of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant had engaged in penile vaginal intercourse with the complainant while she was asleep. The prosecution led evidence of several other uncharged acts by the appellant against the complainant.
The appellant raised several issues on appeal, including whether:
1.the admission of evidence of a conversation between the complainant and a third party, MI, caused a miscarriage of justice; alternatively, whether the judge’s directions regarding the conversation resulted in a miscarriage of justice (Grounds 6.1 and 7.1);
2.the admission of evidence of post-offence conduct of the appellant caused a miscarriage of justice; alternatively, whether the judge’s directions in respect of this conduct caused a miscarriage of justice (Grounds 6.2 and 7.2);
3.the admission of opinion evidence of a police officer, in consequence of questions asked by the defence caused a miscarriage of justice (Ground 6.3);
4.the judge’s directions concerning the reliability of evidence of the complainant, in particular in relation to her intoxication and mental health issues, were erroneous (Grounds 7.3 – 7.6);
5.aspects of the prosecution’s cross-examination of the appellant caused a miscarriage of justice (Ground 6.4); and
6.the judge erred in not giving a lies direction (Ground 7.8).
Held (by the Court) granting permission to appeal and allowing the appeal:
1.In circumstances where the complainant gave evidence of her state of mind at the time of the uncharged acts, the evidence of her conversation with MI served only to bolster her credibility. The evidence was not admissible. Even if the evidence had been admissible, the judge gave no assistance to the jury on the relevance and the permissible and impermissible uses of the evidence.
2.The evidence of the appellant’s post-offence conduct had low probative value. Nonetheless, in light of defence counsel’s rational decision to rely on directions to cure any prejudice, the admission of the evidence did not cause a miscarriage of justice. The judge should have directed the jury on the relevance of the evidence and against consciousness of guilt reasoning.
3.The evidence that the appellant shoved the complainant and drove while intoxicated is potentially discreditable conduct evidence. Detective Hall’s opinion evidence was adduced, albeit during cross-examination, without established qualification and had the potential to damage the defence case.

Criminal Law Consolidation Act 1935 (SA) (SA) s 48; Evidence Act 1929 (SA) ss 34M, 34R, referred to.
Nominal Defendant v Clements (1960) 104 CLR 476; Boyle v The Queen (2022) 299 A Crim R 92; Mundy v The King [2023] SASCA 59; R v Connolly (No 2) [1991] 2 Qd R 171; Brawn v The King [2025] HCA 20; R v Christie (1914) AC 545; Hamilton v The Queen (2021) 274 CLR 531; R v Nguyen (2001) 118 A Crim R 479; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

MCCLELLAND v THE KING
[2025] SASCA 87
Court of Appeal – Criminal: Bleby, David and Stanley JJA

THE COURT: On 20 June 2024, a jury found the appellant guilty of one count of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The information alleged that on 28 December 2019, in Leigh Creek, the appellant had engaged in penile/vaginal intercourse with the complainant, while she was asleep, knowing or being recklessly indifferent as to whether she was consenting to sexual intercourse.
The issues raised on the revised Notice of Appeal are, broadly, as follows:
·whether the admission of evidence of a conversation between the complainant and a third party, MI, caused a miscarriage of justice; alternatively, whether the trial judge’s directions in respect of this conversation resulted in a miscarriage of justice (Grounds 6.1 and 7.1);
·whether the admission of evidence of post-offence conduct of the appellant caused a miscarriage of justice; alternatively whether the trial judge’s directions in respect of this conduct caused a miscarriage of justice (Grounds 6.2 and 7.2);
·whether the admission of opinion evidence of a police officer, in consequence of questions asked by the defence caused a miscarriage of justice (Ground 6.3);
·whether the trial judge’s directions concerning the reliability of evidence of the complainant, in particular in relation to her intoxication and mental health issues, were erroneous (Grounds 7.3 – 7.6);
·whether aspects of the prosecution’s cross-examination of the appellant caused a miscarriage of justice (Ground 6.4);
·whether the trial judge erred in not giving a lies direction (Ground 7.8).
The unorthodox numbering of the appeal grounds is a consequence of the appellant recasting his grounds of appeal and abandoning several grounds as originally drafted.
For the following reasons, we allow the appeal, quash the conviction and remit the matter for retrial. It is not necessary to address every ground of appeal.
Background
The prosecution case, based primarily on the evidence of the complainant, was as follows. In December 2019, the appellant and complainant had been in a relationship for about six months. They had first met in mid-2019 at the Copley Hotel, where the complainant worked as a chef and the appellant as a bar tender. They began a consensual sexual relationship with one another on 9 June 2019.
The complainant drank alcohol on an almost daily basis during the relationship. Her drinking sessions ranged from six to twelve drinks, which she considered a ‘light’ session, to twenty drinks, which she considered a ‘heavy’ session.
The complainant gave evidence that, on five or six occasions following the commencement of their relationship, she had woken to the appellant penetrating her with his penis. The prosecution particularised three occasions which were led as uncharged acts at trial:
·the first took place in Hawker, while she was heavily intoxicated. She woke up to the appellant having sexual intercourse with her. She jumped up and locked herself in the bathroom. The appellant tried to convince her that she was having a nightmare. He said, ‘I’m sorry’, a couple of times;
·the second occurred in the appellant’s bathroom. The complainant had been out drinking heavily. She returned to the appellant’s house and smoked cannabis. She was heavily intoxicated and vomiting. The appellant laid her on the bathroom floor, pulled up her skirt and pulled off her underwear, removed his shorts and engaged in sexual intercourse with her.
·the third occurred in the lounge room of the appellant’s residence in December 2019. The complainant woke up to the appellant engaging in sexual intercourse with her. The appellant, when confronted, said that the complainant was having a nightmare.
The complainant gave evidence that on at least 15 other occasions, she had woken up to the appellant’s hand on her vagina or her hand on the appellant’s penis. On another occasion, she woke up to the appellant pulling his fingers out of her mouth.
The complainant said she confronted the appellant about his conduct. She said, ‘I know that this is happening’ and asked him if he understood ‘that’s not okay and that I don’t want this to continue happening’. In cross-examination, she said that they had conversations in which the appellant said he understood that what he did was wrong, apologised and said he would not do it again.
On 18 October 2019, the complainant was hospitalised following a suicide attempt. She was discharged from hospital on 1 November 2019 and stayed with a relative in Adelaide.
On about 22 November 2019, the complainant moved into the appellant’s home in Leigh Creek.
The prosecution case with respect to the charged act was as follows. On 27 December 2019, at about 3:00 pm, the complainant and appellant began drinking. The appellant’s brothers and a friend joined them later. The appellant went to bed first. The complainant joined him at approximately 2:00 am or 3:00 am. The complainant described herself as ‘tipsy’ but aware of her surroundings and in control of her faculties. She told the appellant that she did not want to engage in sexual intercourse with him that night. While she consented to a goodnight kiss, she recalled saying ‘that’s it, though, nothing else, don’t push it’. They went to sleep.
During the early hours of 28 December 2019, the complainant was woken by the appellant inserting his penis into her vagina. She pretended to be asleep while the appellant continued to engage in sexual intercourse with her for the next few minutes, so that she could be sure of the appellant’s conduct.
The complainant flinched, at which point the appellant withdrew and moved round to the complainant’s side of the bed. He put her leg back onto the bed and returned to his side. The complainant’s head was facing the appellant. The appellant then placed his fingers inside the complainant’s mouth, as if trying to pry it open.
The complainant confronted the appellant and began hitting him. The appellant told her that he was only checking on her. The complainant said she knew what he had done as she was pretending to be asleep. During the argument, the appellant shoved the complainant a couple of times and said, ‘I’m sorry’, a number of times.
The appellant said he was going to kill himself. He drove off in his car. He returned only a few minutes later and said, ‘I have crashed my car. I hope you are happy’. The complainant then walked to the home of her friend, BM. She told BM she had woken up to the appellant having sex with her. Shortly after that, she contacted the police.
Other prosecution witnesses
BM gave evidence that at 5:00 am on 28 December 2019, the complainant arrived at her residence and told her the appellant had been trying to rape her. The complainant then used her phone to contact the police. This evidence was admitted without objection, pursuant to s 34M of the Evidence Act 1929 (SA).
Dr Nisar Saifuddin Contractor was the complainant’s treating psychiatrist following the complainant’s suicide attempt in October 2019. Dr Contractor gave evidence that the complainant presented with persistent depressive disorder, borderline personality disorder, childhood trauma, alcohol use disorder and difficulties with sleep. The complainant did not suffer from alcohol withdrawal symptoms during her hospitalisation. Dr Contractor said that the complainant exhibited no sign of hallucinations and had no difficulty distinguishing reality from dreams. She reported no flashbacks. Dr Contractor did not diagnose any issues with dissociation.
MI was the complainant’s cousin. She gave evidence that in mid‑November 2019, after the complainant was discharged from hospital and about six weeks before the events the subject of the charge, the complainant asked her a hypothetical question, being, ‘If I was asleep and I had woken up to my partner having sex with me, would I classify that as rape?’. MI said she responded by saying that it would depend on the circumstances, whether you were coherent enough or whether you were giving consent. She said that in her opinion, if you were not, then she would classify that as rape.
The complainant gave evidence of her reason for having this conversation:
I guess it was my way of starting to bring up the conversation with somebody and as well I wanted to hear from someone else that it actually isn’t okay. I just wanted that confirmation from somebody.
Detective Hall gave evidence about photographs of skid marks leading to the pole at the crash site where the appellant had crashed his car after being confronted by the complainant and damage of the appellant’s vehicle. The elicitation of certain opinion evidence from Detective Hall during cross-examination is the subject of Ground 6.3.
The prosecution played a record of interview with the appellant, in which the appellant gave an exculpatory account of both the charged and uncharged conduct.
The defence case
The appellant gave evidence. He said that there was no occasion when he had engaged in sexual intercourse with the complainant while she was asleep. He denied ever using her hand to masturbate while she was asleep. He said that there was one occasion when he had accidentally placed his hand on her vagina. He apologised and said he did not even know it had happened. He said this was the only conversation that had had about him engaging sexually with the complainant while she was asleep. He gave evidence of a trip to Hawker with the complainant and denied having sexual intercourse with her on that trip. He said there was an occasion where he had dragged the complainant from the toilet to the bathroom. He said that the complainant was passed out, so he covered her in a towel and later helped her into bed. He denied having sexual intercourse with her that night.
As to the charged occasion, the appellant said he accepted that the complainant did not want to engage in sexual intercourse that night. He gave evidence that he was drunk but still knew what he was doing. However, the complainant was ‘smashed’. The complainant was tossing and turning in her sleep. The appellant tried to move her over to her side of the bed. He failed to do that, so he got out of the bed and tried to move her by her shoulder. At this point, the complainant woke up and began attacking him, calling him a rapist. He said that he was only trying to help her.
The appellant said he pushed the complainant away and walked off. He locked himself in the bathroom. The complainant followed him, yelling at him and kicking the door. She then walked off. He went to the bedroom and grabbed his cigarettes. She walked out the front door and he slammed and locked it and then punched it. At one stage he broke down and said that all he was doing was trying to help her and that he was better of being dead. He said he felt worn out, he had saved her life when she tried to kill herself and he had just had enough and did not want to be around anymore.
In cross-examination, the accused said that he then grabbed his keys and drove off. His plan was to kill himself. When asked why, his evidence was as follows:
A.Because I’ve just spent the last however long being with this person that I absolutely adored, saved her life twice. Been with her the whole time. And then she comes out with this and I was just – just had enough.
Q.Would it be fair to say that your state of mind at the time was a bit reckless.
A.Reckless in what way?
Q.You weren’t really thinking about consequences in the future.
A.About?
Q. Anything.
A.Well consequences would have been me dead.
The defence case was that the complainant’s evidence was unreliable and lacked credibility on account of her mental health conditions and alcohol consumption issues. In submitting that the jury should be left with a reasonable doubt about the complainant’s evidence, the defence relied heavily on the evidence of Dr Contractor about the effects of untreated alcohol use disorder and borderline personality disorder, as well as the complainant’s other diagnosed conditions and the evidence of her behaviour.
The appeal
The conversation between the complainant and MI (Grounds 6.1 and 7.1)
The conversation between the complainant and MI occurred after the complainant had been released from hospital but before the events the subject of the charged act. Defence counsel objected to admission of the evidence of the conversation at a voir dire hearing prior to trial. At that hearing, the prosecution disavowed the use of the evidence of the conversation as complaint evidence. Rather, the prosecutor submitted, it was:
… relevant to the state of mind of the complainant, particularly her understanding of the moral wrongness and what was happening, because it goes to explaining, one, why she didn’t complain to police earlier and two, why she’s stayed in that relationship against the background of these repeated uncharged acts.
Having heard that explanation, defence counsel accepted that the evidence of the conversation would be relevant and potentially admissible. The judge immediately indicated his agreement with that assessment. Defence counsel then maintained an objection to its admissibility on the basis that it was more prejudicial than probative. She indicated that this was on the basis of a ‘lack of clarity about the timeliness of that conversation’. However, the objection seemed to then peter out on the basis that the conversation occurred in mid-November. The voir dire judge ruled that the conversation was relevant and admissible:
… on the understanding that the [conversation] with the complainant … is being used by the prosecution just to establish the complainant’s state of mind to give an insight into her behaviour during the alleged events, that there is no objection to that evidence being led for that specific and limited purpose. I agree with that joint position and accordingly the evidence will be admitted.
The prosecution opened on this evidence at the trial, saying:
Then we will hear briefly from a [MI] about a conversation she had with [the complainant] just after she got out the hospital. This will be short evidence, but it’s relevant for [the complainant’s] state of mind at the time.
The prosecutor did not here explain to the jury the relevance of the complainant’s state of mind. He did not refer to the evidence of the conversation in his closing address. The prosecutor’s only reference to the evidence of MI in closing was in respect of MI’s evidence that supported the complainant’s evidence that she was not having much contact with her family back home.
Defence counsel referred to the evidence of the conversation in closing, suggesting that the conversation was consistent with the evidence of Dr Contractor regarding the complainant’s diagnosis of borderline personality disorder and the complainant’s (on the defence case, erroneous) perception that the appellant had touched her inappropriately. Counsel submitted that the conversation was consistent with the complainant being:
… confused, unsure, seeking confirmation from someone else, trying not to think badly of [the appellant] but then ultimately concluding – and the defence say ‘wrongly concluding’ – that he was doing something wrong by her.
As the prosecution recognised, the evidence of the conversation could not be led as recent complaint evidence pursuant to s 34M of the Evidence Act 1929 (SA), as it was not a complaint of the alleged sexual offence the subject of the trial. The state of mind on which the prosecution relied was not the state of mind of the complainant in not consenting to the acts, but rather her understanding of the moral wrongness of what had been happening, why she did not complain earlier about the uncharged acts and why she stayed with the appellant.

The forensic contest at trial was whether the charged and uncharged acts had taken place at all. Had defence challenged the complainant to the effect that she had recently invented her account of her state of mind to explain why she did not leave the appellant, evidence of the fact of the conversation would have been relevant and admissible to rebut that suggestion.[1] However, evidence of the conversation was led in chief. This was in addition to the complainant’s evidence about her state of mind at the time, which was as follows:
Q.Early on when the first acts were happening, did you know they weren’t okay.
A.At first, it’s really hard because in the beginning when it kept happening, mostly just the touching, he was so quick to tell me that I was wrong and I was having nightmares. So, it took me some time to realise that this wasn’t okay and that it is actually quite serious.
[1] Nominal Defendant v Clements (1960) 104 CLR 476 at 479 (Dixon CJ).
The complainant’s evidence about her state of mind with respect to the wrongness of what had happened provided a reason why the complainant did not act sooner during the course of the uncharged acts. The appellant did not suggest that this evidence was inadmissible.
The complainant gave evidence of the conversation with MI immediately following this evidence. The appellant’s complaint was that this constituted an impermissible bolstering of the complainant’s evidence. In Boyle v The Queen,[2] this Court explained the essential prohibition the appellant here relied on:[3]
In general terms, a party may not call evidence supporting the credibility of a witness called by that party. To put that another way, a witness may not be asked in evidence in chief whether he or she has made a statement, outside of the court hearing, consistent with their present testimony. It is sometimes called the ‘rule against narrative’ or ‘the rule against self-corroboration’. The witness cannot narrate such a statement if it was oral or refer to it if it was in writing and other witnesses may not be called to prove it. This rule exists independently of the rule against hearsay.
[2] (2022) 299 A Crim R 92.
[3] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [27].
The appellant submitted that the evidence of the conversation conveyed to the jury that, prior to the charged incident, the complainant had already formed a belief that the conduct was potentially non-consensual or wrongful and was seeking validation of her view that what had happened was sexual assault. He complained that the effect of this was to bolster her credibility by implying a consistent and developing concern about the appellant’s conduct.
The respondent accepted that there were permissible and impermissible uses of the evidence. In the first instance, it is helpful to consider the complaint of bolstering by reference to what the prosecution contended was a permissible use, namely, that the evidence was relevant to the complainant’s state of mind during the period of the uncharged acts.
As already noted, the complainant’s own evidence of her state of mind at this time potentially explained why she had not done anything in response to the uncharged acts. It was a relevant aspect of the matrix of evidence about the uncharged acts.
The conversation with MI was an out of court statement. It was not led for the truth of the implied assertion that the appellant was raping or otherwise sexually assaulting the complainant. However, the complainant had already given evidence of her state of mind. Subject to whether the complainant was challenged to the effect that her evidence was a recent invention, we find it difficult to see that the forensic utility of the evidence of the conversation amounted to anything more than bolstering the complainant’s own evidence about her state of mind.
We do not think that this conclusion is affected by the observation that the conversation did not occur in a narrative form. As this Court noted in Boyle, the bolster rule operates independently of the rule against hearsay. In Mundy v The King, this Court explained:[4]
Out-of-court narrative statements have an alluring and beguiling quality while possessing no logical relevance. The effect this type of evidence may have on a jury should not be underestimated. The statement made by Butler shows a consistency of thought, but the difficulty is that the statement comes from the same source as the relevant evidence, namely himself. As Thomas J observed in R v Connolly (No 2),[5] “[A] witness may not lift himself by his own bootstraps to enhance his credit”. Having, in some form, said the same thing does not generally carry a witness’s credibility any further. A jury however may consider that it does so.
(Emphasis added; footnote in original)
[4] Mundy v The King [2023] SASCA 59 at [55] (Lovell and David JJA).
[5] [1991] 2 Qd R 171, 173.
In the present case, the out of court statement that the complainant made to MI showed a consistency of thought on the complainant’s part. However, the statement came from the same source as the admissible evidence, namely, the complainant.
We do not think it could be said, and the prosecution did not suggest, that the evidence was admissible to rebut any allegation of recent invention. Defence counsel put to the complainant in cross-examination that she was able to stay elsewhere at any point in time during her relationship with the appellant, at the Copley hotel or with siblings in Adelaide. The complainant agreed with this. The complainant accepted that ‘looking at the situation now’, she would have been able to seek help from friends in Copley or Leigh Creek. She further agreed that she never told the appellant that she had any thought of not continuing with the relationship and that she never asked the nurses or doctors to stop the appellant from coming to the hospital. Later, defence counsel asked why, if the appellant had been touching the complainant in the way she alleged, she chose to go back and live with him after the suicide attempt.
The complainant answered these questions. Her answers were relevant and admissible, as they answered an attack based on an asserted improbability of her staying with the appellant notwithstanding her evidence about the uncharged acts.
However, the cross-examination did not extend to suggesting that the complainant had recently invented her evidence that she was unsure about the wrongness of the uncharged acts at the time she alleged they were occurring.
While we are satisfied that the complainant’s evidence of her state of mind at the time of the uncharged acts was relevant to explain why she stayed with the appellant at the time, we do not think that the evidence of the conversation with MI was admissible. The complainant had given evidence of her state of mind. In the absence of a challenge based on recent invention of that evidence, the evidence of the conversation only served to bolster the credibility of her evidence.
The respondent submitted that the withdrawal of the objection by defence counsel at the voir dire hearing illustrated that a deliberate forensic decision was made not to object to the receipt of the evidence. We have identified the circumstances of that withdrawal, earlier. We do not think that it can be said that this amounted to a forensic decision. It was nothing more than a misconceived concession in response to the prosecutor’s answer.
The respondent also submitted that if the evidence was admitted in error, that error did not meet the threshold requirement of materiality. Counsel submitted that the evidence was not significant in the trial, there was no risk of the jury engaging in impermissible tendency reasoning, and there was no request for a direction.
In Brawn v The King,[6] the High Court held that in order to constitute a miscarriage of justice, errors or irregularities that were not ‘fundamental’:[7]
must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.
[6] [2025] HCA 20; (2025) 99 ALJR 872.
[7] Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 at [10].
Whether the error was material in this case invites consideration of any direction given. As noted earlier, the prosecutor merely said to the jury in Opening that the evidence of the conversation was relevant to the complainant’s state of mind at the time. He did not explain the forensic significance of that state of mind. The trial judge did not give any direction about the conversation. As noted earlier, defence counsel referred to the conversation by seeking to explain it as an exigency of the complainant’s borderline personality disorder.
The jury were given no assistance with respect to the conversation. Insofar as they were told that it was relevant to the complainant’s state of mind, this opened the door to boosting the credibility of the complainant’s account, in evidence, of her state of mind at the time of the uncharged acts. However, the mischief did not end there. A necessary premise of any inference about the complainant’s state of mind from the conversation was the complainant’s belief that the appellant had been having sex with her while she was asleep. Even if it could be said that the bolstering effect described above was of little moment (and we are not persuaded that this is the case), there remained obvious risks that the jury would misuse the conversation.
First, the trial judge directed the jury carefully on BM’s evidence of initial complaint. In the absence of any direction about the earlier conversation with MI, there was a real risk that the jury would use that evidence as complaint evidence relating to the uncharged acts, in the manner they were instructed with respect to BM’s evidence.
Secondly, there was an obvious risk, absent any direction to the contrary, that the jury would infer that because the complainant had the conversation with MI, it was more likely that the uncharged acts had occurred. There was a risk that the jury would misuse the conversation as evidence of the truth of the statement embedded in the question, that is, that she woke to her partner having sex with her.
For there to be any prospect that the erroneous admission of the evidence of the conversation could be said not to be material, it would have been necessary to direct the jury carefully against these two modes of reasoning.
Even if, contrary to our earlier conclusion, the evidence of the conversation with MI was admissible on the basis propounded by the prosecution, it would nonetheless still have been necessary for the trial judge to direct the jury carefully about the relevance, and the impermissible uses, of the evidence. On either view of the admissibility of the evidence, the fact that the jury was given no assistance with respect to this evidence requires the conclusion that there was a miscarriage of justice.
Given the importance of the contest of credibility in this case, this is not a case that warrants application of the proviso. It not possible for this Court to assess whether guilt was proved to the criminal standard notwithstanding the admission of the evidence of the conversation with MI.[8]
[8] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [145].
We allow the appeal on Grounds 6.1 and 7.1. The conviction must be quashed and the matter remitted for retrial.
Admission of and directions given about the post-offence conduct of the appellant (Grounds 6.2, 7.2 and 6.3)
Ground 6.2 complained of the admission of evidence of the appellant’s post‑offence conduct. It is appropriate to address that ground as well. That ground cannot be considered separately from Ground 7.2, which complained about the directions given in respect of that evidence.
The prosecution led evidence from the complainant about several aspects of the appellant’s conduct after the complainant confronted him. This evidence was to the effect that:
·the appellant kept saying sorry, said a couple of times that he was going to kill himself and shoved the complainant a couple of times;
·the appellant then left the house in the car;
·the appellant then returned a few minutes later and said, I have crashed my car. I hope you’re happy’.
In his Opening at trial, the prosecutor referred to the appellant leaving the property, driving off, crashing into a Stobie pole and then returning. He did not identify the relevance of this evidence. His cross-examination of the appellant to the effect that the appellant’s ‘state of mind at the time was a bit reckless’ is set out earlier.
The prosecutor addressed the jury, in closing, on part of this post-offence conduct:
Can I just say something about the accused driving into the pole and how I suggest you can use that evidence, because I want to make this clear, I'm not saying you should reason that 'Well, he wanted to kill himself, so he is guilty', that's not fair, and that's not right. The only use of this evidence that I suggest is that it tells you something about his state of mind at the time, about how uninhibited he was, and you can use that when you are assessing the probability of some of the other odd things he did that morning. So, don't think he wanted to kill himself because he was guilty, do however, if you think it will be helpful, and if you accept it, use to assess his state of mind at the time, because that can help you with assessing some of the other things the prosecution suggest he did, and in particular the disinhibited way he was acting.
(Emphasis added)
The asserted use of the evidence of the appellant driving into a Stobie pole was, therefore, that it showed the appellant to be acting in a disinhibited way, which made it more likely that he had done other ‘odd things’ alleged. The quoted extract followed the prosecutor’s address on the appellant putting his fingers in the complainant’s mouth. It might be inferred that this was primarily what the prosecutor meant by ‘odd things’. However, the prosecutor did not elaborate on what the ‘odd things’ were, how the post-offence conduct demonstrated disinhibition or how that conduct made it more probable that the appellant committed other, unspecified acts.
The prosecutor did not refer in closing to the evidence of the appellant apologising or shoving the complainant.
No party sought any direction or redirection with respect to any of the post offence conduct. The trial judge summarised the prosecution case with respect to the post-offence conduct, including the allegation that the appellant apologised, although this did not include the allegation that the appellant had shoved the complainant when they were arguing. He directed as follows:
Mr Dudzinski, correctly as a matter of law, said you should not use the evidence of his running his car into a pole as evidence of his guilt. It just shows the state of mind that he was in, including being disinhibited.
The highly abstract level at which the prosecutor cast the relevance of the post-offence conduct was problematic. First, we are prepared to accept that the evidence of driving into the Stobie pole might support an inference, at a generalised level, that the appellant was in some state of disinhibition at the time the complainant confronted him. However, the probative value of that exhibited post-offence ‘disinhibition’, in affecting the probability of the alleged conduct occurring, does not appear to be strong. This is illustrated by the failure of the prosecutor to explain the posited link between that exhibited ‘disinhibition’ and the appellant’s earlier ‘odd’ behaviour.
Secondly, the prosecutor did not make it clear what he meant by ‘some of the other odd things [the appellant] did that morning’. Contextually, that statement appears to include the appellant putting his fingers in the complainant’s mouth. That was one odd thing. The prosecutor’s language suggested that this was not the only ‘odd thing’ but did not elaborate. Left unexplained, it may be taken to have included the charged act itself. How it might have done this is not clear.
Thirdly, and as already noted, the prosecutor only addressed on part of the post-offence conduct, namely leaving the house and crashing into the Stobie pole. He did not address the relevance of the appellant apologising or shoving the complainant. While he addressed consciousness of guilt reasoning with respect to driving into the Stobie pole, the evidence of the apology, in particular, was left hanging.
In summary, the probative value of the evidence was low. The prosecutor explained it to the jury at a level of abstraction that did not incorporate any argument as to why it was probative of the appellant’s earlier conduct or, for that matter, what conduct it was actually probative of, other than ‘odd things’. Against that, the evidence of the conduct as a whole, and in particular the appellant’s apologies and actions in crashing the car, carried the substantial risk that it would be treated as evidence of consciousness of guilt.
Defence counsel initially objected to the admission of this evidence. At the voir dire hearing, the prosecutor said that there was ‘no suggestion of consciousness of guilt’ in relation to this evidence. He explained:
It’s primarily and solely relevant because it relates to the state of mind of the accused at the pertinent time and that’s particularly the case given some of the strange occurrences in the allegations. In particular part of the allegations of the complainant is that after the rape occurred the accused then stuck his hand into her mouth, rubbed her cheek, the inside of her cheek and tried to open her jaw with his fingers. It’s some odd behaviour and the reason we say his state of mind is relevant later is because he engages in further odd behaviour saying ‘That’s good. I should be dead. I’ll kill myself’ and then he drives his vehicle into a stobie pole and then returns to the home.
This explanation did not extend to the evidence of the appellant apologising, shoving the complainant or leaving the house. In any event, following this explanation, defence counsel initially conceded the potential relevance of the evidence but maintained her objection to its admissibility.
In the course of the argument that then followed, defence counsel articulated inferences that could be drawn from this evidence that were consistent with innocence. The judge indicated that he could not help counsel with that assessment, saying:
And you need to come to a view yourself as to whether you think it’s better to have that in or out from your own tactical point of view and then the quite separate issue as to whether you want to say it’s inadmissible.
Counsel then raised whether the judge could give a direction to avoid impermissible consciousness of guilt reasoning. The judge again expressed reluctance in advising counsel ‘from a tactical point of view what you should do’. Following further discussion, including about the available inferences consistent with innocence, defence counsel indicated that she would be ‘content’ if the Court were to consider a direction to ensure that the evidence did not reflect badly on the appellant’s character or invite consciousness of guilt reasoning. Counsel eventually accepted the evidence was admissible and that any prejudice was curable.
These exchanges on the voir dire show that defence counsel actively considered the advantages to the defence of the evidence being led. In this case, it is sufficiently clear that the defence ultimately made a forensic decision to withdraw the objection. Then when the appellant gave evidence, he gave a comprehensive account of the reasons for his behaviour, as set out earlier.

Having regard to the low probative value of the forensic purpose as articulated by the prosecution, we consider that the appellant has made a strong argument that, at the very least, the evidence was more prejudicial than probative and should have been excluded in the exercise of the Christie discretion.[9] We take that view in light of the abstract way in which the prosecution articulated the relevance of the evidence, which appears only to have been to cast a fairly dull backward light on the state of mind of the appellant.
[9] R v Christie (1914) AC 545.
However, it is also apparent that defence counsel made a rational decision, that can be seen as a legitimate forensic choice, to withdraw the objection and rely on directions given at trial to cure the apparent prejudice.[10] The appellant’s explanation for his conduct was not only consistent with innocence, but positively supportive of it. We are not persuaded, in these circumstances, that the admission of the evidence caused a miscarriage of justice.
[10] Hamilton v The Queen (2021) 274 CLR 531 at [49]; [54].
The issue of directions is a different matter. In R v Nguyen, Winneke P said:[11]
It has often been recognised that, while evidence of post-offence conduct is capable of being used by the jury as evidence of guilt, it is also capable of being misused. The Supreme Court of Canada in the recent case of White[12] put it in these terms:
“It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt, it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.”
The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without “covering lies”, will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities[13]. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards[14].
(Footnotes in original)
[11] (2001) 118 A Crim R 479 at [20].
[12] (1998) 125 CCC (3d) 385 at 398; see also Edwards at 211; 362-363.
[13] cf Broadhurst v. The Queen [1964] AC 441 at 451.
[14] See also Faure [1999] 2 VR 537 at 546 [28] per Brooking JA; White at 404; Renzella [1997] 2 VR 88 at 92.
For the reasons given above, the post-offence conduct was left at trial in a state of uncertainty, not least as to the probative value of the various elements of that conduct. It also carried a risk, which the parties recognised at the voir dire hearing, that the jury would apply consciousness of guilt-type reasoning. The prosecution did not invite such reasoning. The trial judge directed the jury that they should not use the evidence of the appellant crashing the car into the Stobie pole as ‘evidence of guilt’. However, in our view, it was necessary to go further.
First, it was necessary to direct the jury about how the evidence of the appellant’s post-offence ‘disinhibition’, if that is what it was, contributed to an assessment of his state of mind earlier in the morning, and how it affected the probability of him having acted in the way that was alleged. In this regard, it was necessary to address each element of the post-offence conduct, not just the crashing of the car (if that was the purpose of the entirety of that evidence). The prosecutor did not grapple with this and neither did the trial judge. For example, it is not clear how the evidence of the appellant apologising supported an inference of ‘disinhibition’.
The only assistance the jury received as to the probative value of the evidence on the prosecution case was the prosecutor’s statement in his closing address, set out earlier. That was inadequately abstract.
Next, it was necessary to identify evidence that carried a risk of consciousness of guilt reasoning. Again, this was not just the evidence of crashing the car. Once that evidence was identified, it was necessary to direct the jury against reasoning from any of this evidence to a consciousness of guilt, this forming no part of the prosecution case. It was also necessary to direct that the conduct may be consistent with innocent explanations. The appellant had given an explanation for his conduct. It was necessary, at the very least, to refer to this explanation in giving a direction to this effect.
When summarising the defence case, the trial judge briefly mentioned the appellant’s evidence about his feelings in the morning when he was accused, and his evidence that he briefly contemplated suicide. However, we do not think that this ameliorated the need for a comprehensive direction of the kind discussed above.
The respondent submitted that the jury would have taken the judge’s reference to driving into the pole to include all the post-offence conduct. We are not persuaded that this can be safely inferred, especially given that this evidence included that the appellant was apologising during the ensuing confrontation.
In circumstances where we would allow the appeal in any event, these observations are sufficient to identify the difficulties that were caused by the evidence of the appellant’s post-offence conduct being left in the way it was. That is in circumstances where we have concluded that having regard to the approach of the defence on the voir dire, we would reject the submission that the admission of the evidence caused a miscarriage of justice. Ultimately, if this evidence is led at a future trial, the appropriate directions will be a matter for the trial judge on that occasion.
We make a few further observations about the balance of the complaints raised under these grounds. The evidence of the appellant shoving the complainant during argument and then driving, apparently while intoxicated, was potentially evidence of discreditable conduct. To the extent that it was, it required a direction pursuant to s 34R of the Evidence Act 1929 (SA). No direction was given with respect to this evidence and none was sought. The judge gave an orthodox direction pursuant to s 34R with respect to the uncharged acts. It may have been faintly arguable that this was sufficient in the context of the issues raised to ensure compliance with s 34R,[15] but that is not necessary to decide. Again, appropriate attention should be given to this matter at any retrial.
[15] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [61].
Ground 6.3 concerns certain opinion evidence elicited from Detective Hall in the course of cross-examination. As noted earlier, Detective Hall gave evidence about skid marks leading to the Stobie pole into which the appellant had crashed. During cross examination, defence counsel asked Detective Hall whether he could infer from the skid marks shown in the photographs if the brakes were applied. The prosecutor objected to the question. The judge did not determine the objection but instead asked Detective Hall whether he could tell if the skid marks came from acceleration or deceleration or if he could not tell. Detective Hall said that in his opinion, the vehicle was driven towards the pole, reversed for a short period and then driven towards the pole again, where it stopped. He said the car was not driven with significant force but with sufficient force to cause the damage visible in the photograph.
No party had established Detective Hall’s qualification to give this opinion. The matter is complicated by the fact that it was defence counsel who first sought to elicit opinion evidence from Detective Hall without qualifying him. The opinion evidence that the judge then elicited had the potential to damage the defence as it suggested, contrary to the appellant’s evidence, a cynical staging of the crash.
For the reasons discussed above, it is not necessary to determine this ground either. This unfortunate deviation in the evidence can also be avoided at any retrial.
Conclusion
It is not necessary to address the remaining grounds of appeal. We grant permission to appeal. We allow the appeal on Grounds 6.1 and 7.1. We quash the conviction and remit the matter for retrial.