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;