Nelson (a pseudonym) v The King - [2025] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NELSON (A PSEUDONYM) v THE KING
[2025] SASCA 79
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)
17 July 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS
Appeal against conviction.

Following a trial by judge alone, the appellant was convicted of two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of aggravated assault contrary to s 20(1) of the CLCA. The complainants were the appellant’s twin stepdaughters.
The appellant appealed his conviction on grounds alleging that the judge:
•erred in his use of the evidence of distress of the complainants (ground 1);
•failed to properly direct himself in relation to the evidence of the appellant’s good character (ground 4);
•failed to provide adequate reasons (ground 5);
•failed to properly direct himself in relation to the permissible and impermissible uses of the evidence of discreditable conduct (ground 6); and
•erred in his use of the similarities and dissimilarities in the complainants’ evidence (grounds 5.8 and 7).
Held, per the Court (Kourakis CJ, S Doyle and David JJA agreeing), dismissing grounds 4, 5, 6 and 7:
1.There was no error in the judge directing himself that the evidence of good character ‘may’ (as opposed to ‘does’) (i) make it more likely that the appellant committed the offences charged, and (ii) assist in assessing the appellant’s credibility.
2.The challenges to the judge’s reasoning, including in respect of the similarities and dissimilarities in the complainants’ accounts, have not been made out.
3.The judge gave himself the directions in relation to discreditable conduct required by s 34R of the Evidence Act 1929 (SA).
Held, per S Doyle and David JJA, upholding ground 1 and allowing the appeal:
4.The judge erred in using evidence of the complainants’ distress as circumstantially probative of the appellant’s guilt of the alleged offending.
5.As the evidence of the complainants’ distress was part and parcel of their initial complaints its only permissible use was for consistency or credibility, and not circumstantial proof of the alleged offending.
6.Alternatively, and in any event, because (i) the prosecutor did not contend for, or the judge otherwise foreshadow, this circumstantial use, and (ii) the judge used it without addressing the matters which might have explained or affected the weight of the evidence, there was a miscarriage of justice.
Held, per Kourakis CJ (dissenting), dismissing ground 1:
7.The evidence of the complainants’ distress was relevant and admissible for a circumstantial use.
8.It was not argued, and not a ground of appeal, that the judge’s use of this evidence involved a miscarriage of justice.
9.In any event, the use of the evidence of distress in a circumstantial manner was conventional and did not occasion any miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) ss 20(1), 50(1); Evidence Act 1929 (SA) ss 34L(5), 34M, 34M(3), 34M(4), 34M(4)(a), 34M(4)(b), 34R(1), 34S; Evidence Act 2008 (Vic) ss 59, 66, 135, 136 or 137; Legislative Interpretation Act 2021 (SA) s 20, referred to.
Azarian v Western Australia [2007] WASCA 249; Brawn v The King [2025] HCA 20; C v Waye (1984) 14 A Crim R 391; Davis v The King [2022] SASCA 116; Fergusson v The King [2024] SASCA 63; Flora v The Queen (2013) 233 A Crim R 320; IMM v The Queen (2016) 257 CLR 300; Kirkland v The Queen [2021] SASCA 14; Papakosmas v The Queen (1999) 196 CLR 297; R v Baltsenberger (2004) 90 SASR 129; R v Churchill (a psuedonym) (2025) 99 ALJR 719; R v Dhir (2019) 133 SASR 452; R v El Rifai [2012] SASCFC 98; R v Flannery [1969] VR 586; R v Grattan [2005] NSWCCA 306; R v Green [2001] SASC 25; R v Kooyman (1979) 22 SASR 376; R v Lian [2023] SASCA 122; R v Redpath (1962) 46 Cr App R 319; R v Sailor [1994] 2 Qd R 342; R v Schlaefer (1984) 37 SASR 207; R v Williams [2008] QCA 411; The Queen v Byczko [No 2] (1977) 17 SASR 460; The Queen v Palazoff (1986) 43 SASR 99; The Queen v Redpath (1962) 46 Cr. App. R. 319; The Queen v Schlaefer (1984) 37 SASR 207; The Queen v Sutton [No 2] (1983) 32 SASR 553; The Queen v Yates [1970] SASR 302; Walton v The Queen (1989) 166 CLR 283; Warren v The King [2025] SASCA 65, considered.

NELSON (A PSEUDONYM) v THE KING
[2025] SASCA 79
Court of Appeal – Criminal: Kourakis CJ, S Doyle and David JJA
KOURAKIS CJ:
Introduction

The appellant was convicted by a Judge sitting alone on two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The children were twin sisters and the appellant’s stepchildren. MK is the victim alleged in count 1. AK is the victim alleged in count 3. The appellant was also convicted of one count of aggravated assault contrary to s 20(1) of the Criminal Law Consolidation Act against MK (count 2).
The appellant appeals against his convictions on the following grounds:
Amended Appeal Grounds
1.The trial judge erred at law by misusing the distress of the complainants MK and AK.
Particulars
1.1    The trial judge erred by using the distress of each complainant as evidence of consistency of conduct bolstering that complainant’s credibility.
1.2    The trial judge erred by using the distress of each complainant as a piece of circumstantial evidence independently supporting proof of the charged offence with respect to that complainant.
1.3    The trial judge erred by using the distress of AK as evidence tending to disprove collusion and contamination between the complainants.
...
4.A miscarriage of justice resulted from the trial judge’s failure to properly direct himself with respect to, and bring to bear, unchallenged evidence of the appellant’s good character.
Particulars
4.1    The trial judge erred by directing himself that “evidence of good character may make it less likely that an accused has committed the alleged crimes and it may enhance his credit” (TJ [204], [134]) and failing to direct himself that such evidence does make it less likely that the accused committed the charged offences and does support the accused’s credibility as a witness.
5.The trial judge failed to give adequate reasons.
Particulars
The trial judge did not give adequate reasons.
…
5.3   for rejecting the appellant’s evidence as a reasonable possibility.
…
5.6    for why His Honour accepted beyond reasonable doubt the evidence of MK and AK that MK was assaulted by the appellant in the presence of her mother DS (count 2), in circumstances where DS did not purport to witness the assault.
5.7    regarding which “material respects” of the complainants’ evidence he accepted beyond a reasonable doubt, and which other aspects of that evidence he did not.
The trial judge engaged in inadequate reasoning by:
5.8     using discreditable conduct evidence, admitted on a similarity of account basis, to find that the prosecution had disproved collusion and contamination beyond a reasonable doubt.
6.The trial judge erred at law by failing to direct himself, in accordance with s 34R(1) of the Evidence Act 1929 (SA), as to the permissible and impermissible uses of evidence of discreditable conduct.
I would dismiss the appeal on ground 1. The Judge properly used the evidence of the distressed appearance of MK and AK when they made their respective complaints, both as evidence of consistency of conduct, and as an item of circumstantial evidence from which an inference of guilt of the offences charged in counts 1 and 3 might be drawn. The Judge’s use of the evidence in that way was sound, even though that distress was exhibited, and observed, some seven to 10 years after the offending, by their then partners. The evidence was admissible and probative of the commission of the offences because it is now well understood, as a matter ordinary human experience, that victims of persistent sexual abuse may experience distress when their recollection of the abuse is triggered. Although admissible, the evidence is not corroborative, because its source is not independent of each of the complainants.
I would dismiss ground 4. The Judge was not bound to direct himself that evidence of good character does make it less likely that the accused committed the charged offence. The direction which is properly, and ordinarily, given is that evidence of good character bears on the credibility of the accused’s explanations and is a factor affecting the likelihood that the accused committed the offence. The Judge did so direct himself.
I would dismiss ground 5.3. The Judge was not impressed by the appellant’s demeanour. Reasons for forming an unfavourable impression are not susceptible of a precise explanation but were nonetheless adequately explained by the Judge. More importantly, the Judge’s reason for rejecting the appellant’s evidence were not confined to the assessment of his evidence in isolation. The Judge’s reasons explain that the appellant’s denials were rejected because the evidence as a whole proved his guilt beyond reasonable doubt.
The Judge’s reasons for finding beyond reasonable doubt that the appellant assaulted MK and AK comprise a number of strands. The Judge found that they were impressive witnesses and that their accounts were largely consistent and credible. His Honour observed that both were frank in owning up to their own misbehaviour and that their testimonial accounts were consistent with the complaints they made and were supported by the evidence of their distressed states when they made their complaints. The Judge found the evidence of the complainants’ distress to be strongly probative. Importantly, the judge was struck by the coincidence that both MK and AK testified that in the course of the appellant’s sexual conduct, he referred to his ejaculate as he did when engaging in sexual activity with their mother. I would dismiss ground 5.6.
The complaint in ground 5.7 is a reference to the sentence in which the Judge expressed his ultimate finding of fact:
I am satisfied beyond reasonable doubt of the evidence of each of the complainants in material respects.
The complaint that the Judge did not identify the material respects in which he accepted the complainant’s evidence, and in which respects he did not, is without any merit. The Judge’s reasons are replete with references to the material aspects of their evidence which he accepted and those which he did not.
I would dismiss ground 5.8. The Judge did not reason from the appellant’s engagement in discreditable conduct to disprove collusion and contamination. Such reasoning would have been impermissibly circular, an error of logic which his Honour expressly eschewed in another part of his reasons. Rather the Judge reasoned that a comparison of their evidence showed that it contained a degree of both similarity and dissimilarity which would be expected of independent accounts of events. That reasoning is abductive, not deductive. The Judge was impressed by their testimony and was persuaded by the whole of the evidence that they were speaking the truth from their independent experiences and recollection.
I would dismiss ground 6. The Judge gave himself the directions required by s 34R(1) of the Evidence 1929 (SA), except in two immaterial respects.
Summary of Evidence
The prosecution case was that the appellant maintained an unlawful sexual relationship with MK and AK, between 2003 and 2009 when the girls were aged about 6 to 12 years old. MK and AK gave evidence of frequent unlawful sexual conduct including touching and sexual penetration.
MK gave an account of a particular occasion which occurred just before friends of the appellant arrived for a poker night. The appellant was drunk and went upstairs to the master bedroom. When MK went upstairs to go to bed, the appellant confronted her aggressively and told her to undress. She escaped through the ensuite which opened on to a hallway. MK testified that she then went downstairs and told her mother, DS, about that incident. MK testified that DS brushed the accusation off but the next morning made MK apologise to the appellant for making the allegation.
In her evidence, DS recalled MK coming down from her room on the occasion of the poker night. She appeared really distressed. According to DS, MK said that the accused had pushed her and held her down on the bed of her bedroom but no sexual offending was alleged. DS tried to calm MK down suggesting that the appellant had gone into the wrong bedroom because he was drunk. DS testified that she did not discuss the matter with the appellant.
MK gave evidence that she first complained of the appellant’s sexual offending to her partner NS when she was 19 years old, approximately seven years after the sexual offending had ceased. MK and NS were drinking at a hotel when she sighted the appellant. Mk described the “appellant sitting in the shadows” seemingly looking at her. She was unsettled leading to her drinking too much. When MK became visibly upset she and NS left the hotel. MK’s evidence was that on their arrival home, NS asked her if the appellant had ever touched her, and she replied ‘yes’. She was crying at the time and vomited. In cross examination she testified that her nausea was not only caused by the alcohol she had drunk. MS’s testimony is inconsistent with the possibility that her distress was caused by her intoxication alone.
MS testified that she gave NS a ‘brief overview’ of the appellant’s conduct but did not disclose that there had been penetration. MK testified that she later sent AK a text about the matter and that later again they both reported the appellant’s abuse to Bravehearts and then the police. The text was sent on 18 June 2019 and the report to Braveheart was made on 27 January 2021. MK’s chronology of those events was inconsistent in some respects with the dates of the text message and the report to Bravehearts.
NS gave a similar account of the nature and circumstances of the complaint made to him on that night. However, he testified that MK only recounted details of the offending in a conversation several months later. In that subsequent conversation, MK told him about an occasion in the car coming back from the appellant’s shack and about his conduct on the poker night. She also confided that the appellant had ejaculated onto her. NS testified that MK told him that the appellant had used some ‘immature’ or ‘childish’ terminology when referring to his ejaculate. NS also testified that MK told him that there had not been any penetration. In her evidence, MK described penetration of the vulva only.
AK did not describe any aggression during sexual abuse and said that she was never told to take off her clothes.
AK gave evidence that she first complained of the abuse to her then partner RM sometime in 2020 or 2021. This complaint was prompted by her receipt of MK’s text message about the appellant’s abuse. RM gave unchallenged evidence that AK complained to him at the end of 2019 or the start of 2020. AK was tending to the fireplace when he heard her sobbing. As she cried, she told RM that the appellant had molested her and MK when they were in primary school. AK disclosed that the appellant would rub his penis on their bodies and ejaculate on them.
MK testified that on a single occasion in 2012, after the sexual abuse had stopped, the appellant assaulted her by grabbing her throat and pushing her against a wall in an argument over the volume of a video which the appellant was watching on his computer. AK gave a broadly similar account of that incident. DS was asked if she had witnessed the appellant engage in any aggressive conduct or violence against the twins. She answered ‘not as such – not that I can recall’. The detail of MK’s account was not put to her.
AK gave an account of another occasion when the appellant threatened her with violence. She stood up at the dinner table saying either that she had finished or she did not want to eat the rest of her meal. The appellant pushed the table against her and threatened to throw her through the window. The detail of that account was not put to DS.
AK also recalled an occasion when the appellant locked her out of the house because she had used the wrong bucket to collect kindling. When DS returned, she tried to have the appellant agree to AK coming back inside but he refused. AK stayed outside until about 9.00 pm when the appellant went to bed.
MK testified that there was a discussion about removing the door to the twin’s bedroom prompted by a story that the parents of a teenage boy living in the town had discussed removing their son’s door to discourage him from having sex in his room. MK thought the idea came from the appellant. AK testified that there was an argument when the appellant suggested removing the door to their room. DS testified it was the appellant’s suggestion to remove the door because they were being loud and obnoxious by slamming the door on his night shift roster. The door was never removed.
The appellant gave evidence denying any sexual impropriety towards his stepdaughters. He denied the aggressive confrontation with MK on the poker night and denied ever drinking to excess on poker nights. The appellant denied raising the removal of the door and said that he had never discussed it with the twins. He testified DS suggested removing the door to stop the twins slamming it. When again asked if it was DS’s idea, the appellant responded that there was no mention of anyone removing it. Later he repeated that it was DS’s idea. It was not put to DS that it was her idea.
The appellant gave evidence that he had no criminal convictions of any sort, had never been charged with any criminal offence, was a police officer with South Australia Police for forty-three years and that he had received various commendations in that role. He was also a member of a police social organisation which undertook charitable endeavours in Mount Gambier. A character witness, Mark Roberts (also a retired police officer), gave evidence and was not cross-examined. He testified that he had known the appellant for forty years and that he was a very honest, hardworking and loyal person who was respected by the general public in Mount Gambier.
Ground 5 – Inadequate reasons and reasoning
It is convenient to commence with this ground because in order to address it, it is necessary to canvass the evidence in a little more detail.
The criticisms made by the appellant on this ground focus on the Judge’s treatment of discrete items of evidence in isolation. The criticisms disregard the processes of abductive and inductive reasoning from all of the evidence which led the Judge to his conclusion. The Judge’s reasons, when read as a whole, explain why he was satisfied that the evidence proved the offences beyond reasonable doubt and necessarily, therefore, why he rejected the appellant’s denials, given on oath, as reasonably possible.

The Judge, insightfully, considered the sometimes contradictory significance of similarities and dissimilarities in the accounts of alleged victims of the sexual offending of the same accused. The Judge observed that sufficient similarities of a particular kind may support the credibility and reliability of both victims. On the other hand, identical, or close to identical, accounts may suggest collusion or contamination. I would add that once collusion or contamination are excluded, close similarity on a peculiar aspect of the offending may exclude any possibility that the accounts were independently fabricated or imagined. Equally, accounts which contain a peculiar detail concerning the accused’s appearance or sexual habits, which could not be known unless the offending occurred, are strong evidence excluding fantasization.
The Judge correctly directed himself that the prosecution bears the ultimate burden of proving beyond reasonable doubt that there has not been collusion or contamination.
The Judge referred to the following similarities between the evidence of MK and AK:
·the abuse commenced when they were six and came to an end when they started high school;
·their accounts of the manner of the offending;
·the locations in which the abuse occurred;
·their evidence that the accused would use comforting language whilst abusing them, even though their accounts differed as to the actual words used;
·their evidence that the appellant ejaculated on them and that he described his ejaculate as ‘juices’.
On the other hand, the Judge noted the following differences:
·MK said that the abuse commenced with digital touching before escalating to the appellant using his penis, whereas AK said that the appellant touched her with his penis on the very first occasion;
·MK testified that the abuse in the house occurred in both her bedroom and the main bedroom, whereas AK testified that it happened only in the main bedroom;
·both said that the accused would abuse them in the swimming pool but only AK said that he would sometimes remove her bather bottoms.
On the different accounts of the nature of the first touching and sexual offending, the Judge observed that the offending against MK may have started before the offending against AK which led the appellant to have sexually assault AK in the same way he was, by then, assaulting MK. Alternatively, AK may have forgotten some earlier sexual behaviour which did not involve the appellant’s penis.
After surveying the similarities and dissimilarities in the accounts of AK and MK, the Judge concluded:
In my view the combination of similarity and dissimilarity in the accounts of the two complainants tells against collusion and contamination. I am satisfied that despite the closeness of the two complainants, and despite their speaking together on the occasions already referred to, they have not put their heads together to tell false stories. If they had done so there might be expected to be greater similarity.
The Judge then ruled that the evidence of each complainant was cross-admissible. It is not obvious to me why the Judge appears to have thought that the cross-admissibility was dependant on a finding that there was no collusion or contamination because s 34S of the Evidence Act expressly precludes the risk of collusion or concoction as a ground for excluding the evidence. Nonetheless, the Judge’s assessment is best viewed as a preliminary view affecting the weight the Judge was prepared to give their evidence. The Judge’s reasoning for coming to the view that on the face of their accounts, AK and MK had neither colluded nor influenced the account of the other, is persuasive.
The Judge’s view that MK and AK had not colluded must also have been influenced by His Honour’s assessment of AK and MK as witnesses. Albeit at a later point in his reasons, the Judge found them to be impressive witnesses. He found that they gave their evidence in a straight‑forward way and without any apparent evasiveness or exaggeration. The Judge was particularly struck that their accounts did not include any gratuitous detail putting the appellant in a bad light. For example, the only evidence of aggression, in their accounts of the sexual assaults, was MK’s evidence of what transpired on the poker night.
The Judge also observed that both MK and AK were frank about their dislike for the accused. The Judge was also impressed by the inclusion within the accounts, particularly of MK, of peripheral detail which had the ring of truth.
On the other hand, the Judge found that the accused was not an impressive witness. The Judge’s reasons for forming that unfavourable impression included the appellant’s evasiveness in answering questions about the discussion concerning removal of the door of the twins’ bedroom and his defensiveness in cross-examination about the poker night.
As to the former, the appellant’s testimony moved between there being no discussion about the door being removed to it being DS’s idea. As to the latter, the denial of never drinking to excess does appear to be a surprisingly absolute denial for a social game of poker. These were largely matters of impression and are insusceptible of the analysis to which the appellant’s counsel subjected them.
The Judge’s reasons so far disclose why he commenced his consideration with a preference for the evidence of MK and AK over the testimony of the accused, and why he tended to the view that they had not colluded. The reasoning manifested in those reasons is sound, indeed persuasive.
The Judge’s assessment that their accounts did not appear to be the product of any deliberate collusion, or more subtle contamination, is important. If collusion and contamination are ultimately excluded, the remaining possibility, consistent with innocence, is that AK and MK, independently of each other, fantasised that their stepfather abused them in substantially similar ways. That is most improbable. However, the Judge’s reasons for finding the offences proved beyond reasonable doubt also relied on the following evidence.
The Judge carefully considered the differences in the testimony concerning the complaint given by NS and MK. The Judge found that the accounts of NS and MK were consistent, although “as might be expected, the rigour of the Court process sees a more complete account”. There was one important difference in their accounts. In cross‑examination, NS gave some evidence to the effect that MK had told him that there was an occasion or occasions when one or other of them was abused or the appellant was about to abuse the other. Neither MK nor AK gave any such evidence. The Judge found that NS had misunderstood what MK said.
As to the complaint made by AK to her partner RM, the Judge found that “despite some small inconsistencies between his account and AK’s in court, his evidence is generally consistent with hers”.
Accordingly, the Judge’s assessment of the complaint evidence was that it supported the credibility of AK and MK.
The Judge recorded that he was impressed with MK’s evidence that, in the morning, DS made her apologise to the appellant for accusing him of misconduct on the night of the poker game. The Judge found that DS might have been mistaken about what MK told her, or that MK may have wanted protection from her mother at that moment rather than wanting to disclose the appellant’s sexual behaviour.
The Judge did not treat MK’s statement to her mother on the night of the poker game as a complaint because his Honour was uncertain as to what exactly MK said. However, the Judge found the evidence of MK’s distressed state when she complained to NS, and when she spoke to her mother DS, about the poker game incident, to be strongly probative:
[187] There is another piece of evidence where distress is spoken of. MK was plainly distressed when she went to her mother on the poker night. I have not treated the evidence of the conversation with the mother as complaint evidence because of the uncertainty of exactly what MK told her mother. Complaint has to be referable to a charged act. I am, however, not uncertain about it being the accused’s behaviour in the bedroom which distressed MK and caused her to run to her mother. I find compelling her evidence that the accused told her to take her clothes off and get into the bed, something that he had not ever done before. I find he was intoxicated at the time and, ignoring the risks he ran, he behaved aggressively in a context he had formerly not done. However aggressive he might be towards the complainants in the house generally, he had not been aggressive in the sexual context. DS might have been mistaken about what MK told her, or it may be that MK wanted protection from her mother at that moment rather than wanting to disclose the accused’s sexual behaviour. I also found compelling MK’s account of being made by her mother to apologise to the accused the next morning. That is despite DS having no recollection of speaking to the accused about the matter. The accused was not asked by anyone whether MK apologised. DS herself was not asked directly whether MK apologised.
The Judge explained his use of the evidence of distress in the following passage:
[186]I think it unlikely on the facts of this case, that each complainant would exhibit the distress she did to her partner if she were making up a false story or imagining something that did not happen or, in the case of AK, adopting what her sister told her. I regard the evidence of the complainants’ distress as a piece of circumstantial evidence supporting the prosecution case.
For reasons which I develop below, the Judge was correct to use the evidence of distress as an item of circumstantial evidence. However, it is convenient to deal now with particular 1.3 of ground 1 which complains of the use peculiar to AK. That finding of the Judge is a particularisation of the finding in the first part of the sentence, based on the circumstantial use of the evidence of distress, to the defence theory that AK merely adopted her sister’s story. I observe that it has an additional relevance in that given AK’s distress so soon after receiving her sister’s text, it is improbable that she consciously or unconsciously adopted, as a false memory, MK’s experience, before then becoming distressed by it.
The Judge noted that MK and AK gave evidence which was broadly consistent in respect of the occasion on which MK was grabbed by the throat when she was in year 9 or 10. The Judge also found that the accounts of threatening and violent behaviour given by MK and AK seemed credible even though DS testified that she had no recollection that the appellant had engaged in violent behaviour ‘as such’. In so evaluating the evidence of AK and MK, the Judge expressly took into account the absence of any confirmation by DS who, on AK’s and MK’s account, was present. Again, it is necessary to emphasise that it was not necessary for the Judge to confine his reasons for his finding what happened on that occasion from the direct evidence given in respect of the incident alone. The Judge’s reasons as a whole explain why he found beyond reasonable doubt that the appellant assaulted MK.
I now return to the significant item of evidence concerning the appellant’s use of the word ‘juices’. DS testified that in her sexual relationship with the appellant he referred to his ejaculate as ‘juice’ or ‘love juice’. DS was not cross‑examined to suggest otherwise. In his evidence the appellant denied referring to his ejaculate as juices, either to the complainants or to his wife. Indeed, he claimed that it was an expression that his wife used but he did not. The Judge found that the appellant’s denial that he used the word ‘juices’ to refer to his ejaculate was not credible.
The Judge described the evidence of MK and AK on this topic as “potentially disclosing esoteric knowledge”. The Judge’s classification of the evidence as disclosing esoteric knowledge may not strictly be apt, but the Judge correctly appreciated the great probative force of that evidence. It is most improbable that MK and AK imagined or concocted the appellant’s use of the word ‘juices’ when that was the very description he used when engaging in sexual activity with DS. It was not put to DS that her evidence on that matter was a lie or mistaken and that it was she who used the term. Nor was there any evidence, or even a suggestion, that MK and AK may have come to know of the appellant’s use of the term other than because he used it when sexually offending against them. Alternatively, it is even more improbable that MK and AK should have fabricated or imagined their account that the appellant used that term when, unbeknown to them, DS was using that term. There can be little doubt that MK and AK would not have known of their mother’s use of the term because it is impossible to think of a reason why she would have mentioned it to her daughters. The possibility that MK, AK and DS all colluded is far-fetched, was never put and can be dismissed as fanciful. Applying inductive and abductive reasoning and an understanding of human behaviour, to the conflicting accounts of the appellant on the one hand, and MK, AK and DS on the other, it is overwhelmingly probable that the accounts of MK and AK are true.
The significance placed by the Judge on this item of strongly probative circumstantial evidence in itself explains, in good measure, why he rejected the appellant’s evidence and found the offences proved beyond reasonable doubt.
Distress
In The Queen v Byczko (No 2),[1] Bray CJ commented on the vicissitudes of the status of distress on the part of a complainant as potentially corroborative of her account of an alleged sexual offence committed upon her. He described it as an example of a doctrine comparatively recently introduced, but speedily qualified, which would make an instructive footnote to legal history.
[1] (1977) 17 SASR 460 at 462.
Since that observation was made, many myths and prejudices about the motives of complainants in sexual cases, and the veracity of their complaints, have been dispelled. As a result, common law rules requiring corroboration in sexual cases have been largely abrogated by statutory provisions. Other statutory provisions have been enacted reflecting greater community awareness in recent decades of the nature of sexual assault and its consequences on victims.
With the abrogation of the rules requiring corroboration, the focus on the evidential status of distress has become its admissibility and the directions which should be given about its evidential use. That discussion too may yet warrant another instructive footnote.
The particular question arising on this appeal is whether the distress of a complainant many years after suffering persistent sexual abuse, and triggered by a reminder of the abuse, is admissible as circumstantial evidence probative of the fact of the abuse. For the reasons which follow I would answer that question in the affirmative.
The starting point must be the passage of Wells J in The Queen v Sutton (No 2)[2] of which the Court was reminded by the written submissions of Mr Foundas who appeared for the Director:
The truth is that the probative force of any item of evidence received in a court of law is derived from life itself -the experience, the observation, and the understanding, of mankind. Fundamentally, there is only one legal principle of evidence, and it is this: every item of evidence that is relevant to the issue-that is, that tends, of itself or in conjunction with other evidence, to prove or disprove a fact in issue-should be received and, quantum valeat, used for the purpose of that proof or disproof, unless some positive rule of law, based on judicially formulated policy, or on statute, prohibits that use.
[2] (1983) 32 SASR 553 at 554.
The identification of relevance as the organising principle of the law of evidence was a common theme of the judgments of Wells J and in his Honour’s extra curial writing. Unfortunately, the law of evidence has, from time to time, for reasons of policy, departed from that organising principle.
It is undoubtedly true that what is relevant, and what is thought to prove or disprove a fact in issue, is deeply rooted in the experience of life and the behaviour of people individually, and organised within communities and societies. At times, the rules of evidence have failed to reflect human experience for reasons which include a concern for the fair trial of those who might falsely have been accused of sexual crimes. However, those departures have now been shown to have no support in the lived experience of victims of sexual offences, their family and friends and the health professionals who have treated them.
Over time the common law’s departures from the fundamental inclusionary rule of relevance have been corrected by Parliaments to accord with common experience of the world and the inductive and abductive reasoning which is applied in all fields of scientific endeavour, in business, in community affairs and in personal lives.
The dishevelled appearance of, or bruising on, a complainant soon after the occasion of an alleged sexual assault has long been accepted as probative of the truth of the complaint and, when observed by another, as corroborative. Emotional and psychological responses to sexual assault were not so readily accepted as corroboration. There may be several reasons for that reluctance. The understanding of psychological and emotional responses to sexual assault, and in particular to persistent sexual abuse of children, is relatively recent. Additionally, the early focus on distress was on its use as corroboration, because it was thought to be dangerous to convict in sexual assault cases without it. Plainly, it was necessary for a third person to give a testimonial account of a complainant’s distress for it to be corroborative. But that was not thought to be sufficient because it was feared that distress might be feigned.
In The Queen v Schlaefer,[3] King CJ explained why it was problematic to treat evidence of distress as corroboration in this way:
The essence of the notion of corroboration is confirmation from an independent source of the story of the person to be corroborated. There is an incongruity with this essential notion in regarding actions or emotional manifestations emanating from the person to be corroborated as capable of corroborating him. Such actions and manifestations may be contrived or simulated. The considerations which have led to the rule requiring a warning as to the need for corroboration of a complainant’s story apply equally to the complainant’s actions and emotional manifestations. If a sexual allegation may be fabricated out of hidden motives, so may actions and emotional manifestations which are consistent with it. If a sexual allegation is the result of a disordered imagination, the accompanying actions and appearances are likely to be consistent with the event having occurred as imagined. Evidence of appearances of distress and the complainant’s actions may have importance as being consistent or inconsistent with the allegations, just as before the intervention of the legislature the words of complaint were admissible on that basis. But a complaint was never capable of amounting to corroboration, however spontaneous it might appear, precisely because it emanated from the complainant. For the same reason I think that the courts must exercise particular caution as to the circumstances in which evidence of apparent distress and accompanying actions may be treated as corroborative. I suppose that most false complaints of sexual assault, whether fabricated or imagined, would be accompanied by some manifestations of distress. To allow such manifestations to be treated as corroborative, other than in exceptional and compelling circumstances, must have the effect of eroding seriously the rule as to corroboration in sexual cases.
[3] (1984) 37 SASR 207 at 215-218.

In C v Waye,[4] King CJ again explained why it was difficult to treat distress as coming from an independent source and, therefore, corroborative:
[4] (1984) 14 A Crim R 391 at 393.
But as was pointed out in Schlaefer’s case, it is important to bear in mind that what is sought is evidence from an independent source tending to confirm the evidence of the complainant. Manifestations of distress of their nature emanate from the complainant himself or herself.
In order to treat such manifestations as capable in law of amounting to corroboration, it is necessary to be able to exclude, on any reasonable view of the evidence, the possibility that they are concomitants of the relation of a fabricated story or of an account which has its only basis in a disordered imagination.

62 - co_footnote_5098561~FULLTEXT~FTNT.!13In Schlaefer, King CJ emphasised that evidence of distress could only be corroborative if the surrounding circumstances, like its immediacy, left no reasonable explanation other than that the complainant was sexually assaulted:
This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with the sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred. In Yates the Full Court adopted a passage from Flannery:
…
Clearly, when the Full Court, following Flannery, referred to an inference which the jury could reasonably draw of a causal connection between the alleged assault and the distressed condition, it meant an inference that, having regard to the factors enunciated in the passage cited from Flannery and any other relevant factors, the distressed condition, as a matter of reason and common sense, could only have been caused by a sexual incident of the kind alleged and could not have been simulated, caused by an imagined sexual incident or caused by events which might reasonably have occurred other than the alleged sexual assault.
The role of the trial judge is to determine whether the evidence is capable in law of amounting to corroboration. He must rule whether it is reasonably open to the jury to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault and are not consistent also with having been caused by other events which may reasonably have occurred or by an imagined sexual assault or by simulation. If it is reasonably open to the jury to draw that inference, the evidence should be left as capable of amounting to corroboration. If not, to so leave it to the jury would be appealable error.

It is convenient now to return to the genesis of the use of evidence of distress as corroboration. In The Queen v Redpath,[5] it was contended that the distressed condition of a young girl observed by an independent witness was no more corroborative than the making of a complaint and showed no more than consistency. Lord Chief Justice Parker, speaking for the English Court of Appeal, rejected that contention. His Lordship held that distress is capable of amounting to corroboration even though in some circumstances it may have no, or little weight, ‘as corroboration’. Lord Chief Justice Parker explained that juries should be directed that they should attach little, if any, weight to evidence of distress exhibited by a girl making a complaint to her mother. On the other hand, Parker LCJ explained that the stressed state of ‘a little girl emerging from the moor in a matter of seconds after the accused has left, not about to make a complaint at a particular moment and with no idea that she is being observed … was very strong evidence, if accepted by the jury, of a little girl’s story’. Those remarks must be understood in the context of the appeal ground on which Redpath challenged his conviction, which was that the evidence of the complainant should not have been left as corroboration. The appeal was dismissed. By describing the distress as ‘very strong evidence’ of the offence, and dismissing the appeal, Parker LCJ accepted that in the circumstances of that particular case the complainant’s observed distress was corroborative.
[5] (1962) Cr App R 319.
For many decades thereafter, it was commonly accepted that for evidence of distress to be corroborative, a level of immediacy, and an absence of any connection to the making of a complaint, was necessary.
In The Queen v Yates,[6] Bray CJ explained:
There is no doubt of two things: first, that a complaint by the prosecutrix after the event cannot be corroboration of her story, though it may be admissible as showing consistency (Eade v The King; Holman v The Queen; second, that evidence of the distressed condition of the prosecutrix after the event may in some cases, though not in all, be corroborative (R v Redpath; R v Richards; R v Flannery). In the last– mentioned case the learned Judges of the Full Court of Victoria said, at p. 591:
“In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath’s Case, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.”
In that passage no doubt the expression “the reasonable inference” is equivalent to “an inference which the jury could reasonably draw”.
We would, with respect, adopt that passage; but we would add that one very important factor in deciding whether a state of distress can be corroborative is whether such a state is equally consistent with the case for the prosecution and the case for the defence. If it is, we do not think it is capable of constituting corroboration. Here, however, on the case for the accused that the girl was not only a willing party, but the initiating party, there was no reason for her to be in any subsequent distress at all and the condition deposed to by the mother followed so hard upon the act of intercourse that we think a reasonable jury could, if it saw fit, infer that there was a causal connection.
(Footnotes omitted)
[6] [1970] SASR 302.
The use of evidence of distress as corroboration was again considered by Bray CJ in The Queen v Byczko (No 2).[7] Bray CJ emphasised that the warning emanating from the reasons of Parker LCJ in Redpath to the jury to give evidence of distress little weight other than in exceptional circumstances, applied to its use as corroboration:
Despite this warning [in Redpath] it apparently became common in England, and has been not unknown here, for prosecutors to urge, and sometimes for Judges to direct, that distress after the act is potentially corroborative. Courts of appeal in England and in Australia have become disturbed by this and it has been frequently said that the jury should be warned that except in special circumstances little weight should be given to such evidence: Reg v Knight; Reg v Flannery; Reg v Wilson; Reg v Gillard. In Wilson’s case Edmund Davies L.J. said:
“We regard it of considerable importance that the type of warning adverted to by Lord Parker C.J. in Knight is constantly borne in mind when such cases as the present are before the Courts and that a trial judge cannot be too zealous in heeding that warning.”
However, those four cases were cases where distress was left to the jury as potential corroboration. It is in those circumstances, in my view, that the warning is necessary and that failure to give it may lead to the conviction being quashed. Here the alleged distressed condition of the girl was not so left and, as I have said, was impliedly excluded from the potentially corroborative category. It was merely mentioned as one of a number of factual matters for the jury to consider. When dealing with such matters the trial Judge has a wide discretion. Broadly speaking it has never been the practice for appellate courts to intervene simply because the judge has not specifically directed the jury that they should give as much or as little weight to any particular factual matter as the appellate court thinks appropriate. Nor do I think it is desirable that appellate courts, extreme cases apart, should change their practice in this regard.
(Underlining added, footnotes omitted)
[7] [1977] 17 SASR 460.
The above cited passages in Byczko (No 2) deny any attempt to revise the common law rules by eliding the distinction between admissibility of distress as an item of circumstantial evidence and its use as corroboration. They expressly advert to the admission of evidence of distress as “one of a number of factual matters for the jury to consider”, that is as an item of circumstantial evidence, even if it does not qualify as corroboration.
This Court discussed the admissibility, and use, of evidence of distress in Fergusson in these terms:[8]
[30]Following the enactment of s 34L(5) of the Evidence Act 1929 (SA) (‘the Evidence Act’) which abolished the common law requirement that the jury must be warned that it is unsafe to convict on a complainant’s uncorroborated evidence, observations of a complainant’s distress has been characterised as a species of circumstantial evidence that may independently support the commission of an alleged sexual offence.[9] Evidence of the distressed condition of a complainant may be admissible as evidence supportive of the commission of the offence if it is reasonably open to infer that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence. Such evidence has, however, always been received with some caution.
[31]Evidence of observations made of a complainant’s distress shortly after an alleged offence has also been equated to post-offence conduct (albeit, on the part of the victim) which is to be governed by the same rules that apply to post-offence conduct of the accused. Accordingly, to be admissible as circumstantial evidence, there must be a causal connection between the distressed condition of the complainant and the alleged sexual offence; and the evidence of distress can only be used for that purpose if the trier of fact is satisfied that all other competing explanations for the distress have been excluded. In addition, the force of that piece of evidence needs to be considered against the totality of the evidence as a whole. Thus, the trier of fact must not consider the circumstantial evidence of distress in isolation, but against the evidence as a whole in determining whether it is explicable only by reason of the alleged offence having occurred.
[8] [2024] SASCA 63 at [30]-[31].
[9] Flora v The Queen (2013) 233 A Crim R 320.
I interpolate here that I respectfully agree with the propositions stated in paragraph [30] on the understanding that the phrase “if it is reasonably open to infer a causal connection” means that a reasonable jury might accept that a victim of the sexual abuse alleged could be expected to be distressed by the event or circumstances which precipitated that distress. However, I respectfully cannot accept the limitations on the use of that evidence prescribed by paragraph [31]. They appear to me to apply the conditions necessary to qualify evidence as corroboration to the use of distress as an item of circumstantial evidence. The only condition for the admission and use of an item of circumstantial evidence is the capacity of the evidence to affect the probability of a fact in issue as a matter of human experience.
The Court in Fergusson then referred to the decisions of the Full Court of this Court in R v Green[10] and R v Baltensberger.[11] The admissibility of evidence of distress was not an issue in either of those cases. Moreover, the passage cited from the judgment of Gray J in R v Baltensberger was obiter, and with respect, elided the distinctions between admissibility, circumstantial use and corroboration.
[10] (2001) 78 SASR 463.
[11] (2004) 90 SASR 129.
The judgment in Fergusson continued:
[38]The appeal was allowed inter alia on the basis that the trial Judge did not correctly address the issue of intoxication in the context of his directions on distress. It is clear from the authorities of Green and Baltensberger that for the evidence of a complainant’s distressed condition to be admissible for the purpose of showing consistency of conduct, the observations of the complainant’s distressed appearance must occur shortly after the alleged sexual offence. Logically that must be so as the force of such evidence lies in the general expectation that sexual offending will ordinarily result in a complainant suffering from, and exhibiting, signs of distress. Thus, for the evidence to have any probative force there must be a temporal and causal connection between the alleged sexual offence and the evidence of distress.
[39]The question of whether there is such a causal connection will depend on several factors including, but not limited to, the age of the complainant, the relationship between the offender and the complainant, whether the complainant would be expected to exhibit signs of distress in the circumstances of the alleged offending, the elapse of time between the alleged offending and the observations made of the complainant’s distress, and the nature or extent of that distress. The admissibility of the evidence, and the ultimate use which can be made of it by a trier of fact, will obviously be fact sensitive and vary from case to case.
[40]It is also important to acknowledge that the law relating to distress has not developed in the same way as the law concerning evidence of complaint, bearing in mind that the common law concerning recent complaint has been abrogated by s 34M, which abolished the need for recency or spontaneity in the complaint.
The above cited passages from the judgment in Fergusson have, with respect, conflated the rules of admissibility with the necessary preconditions to the use of evidence of distress as corroboration. In so doing the passage departs from the fundamental rule of relevance.
The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse included a discussion on the time which may pass between the sexual abuse of a child and the onset of psychological and emotional distress. Parts of the Final Report were attached as an appendix to the judgment of this Court in R v Lian.[12]Paragraph [2.3.1] Triggering events of Volume 3 of the Final Report states:
[12] [2023] SASCA 122
Some victims do not experience psychological problems until an event later in their life triggers them. ‘Triggers’ refer to objects, experiences or events that cause a victim to recall, often in a sensory manner, a previous traumatic memory. When asked about the short- and long-term effects of child sexual abuse during the case study on Catholic Church authorities in Ballarat, Dr Quadrio gave evidence that:
about 20 to 40 per cent of children who have been abused won’t show any symptoms at all, and that’s because some of them are what we describe as ‘resilient’: children who somehow survive trauma … But some of those apparently non-symptomatic children become symptomatic later on. That’s called the sleeper effect: that they look fine at the time and then some years later something else triggers it.
Delayed symptoms can persist into adulthood. While some survivors appear to be functioning well in some or most aspects of life, they may still be deeply affected by the abuse, and may experience an acute episode following a specific event or trigger, including an encounter with the perpetrator. As one survivor told us:
I was at … the Dawn Service … with some of my friends and I saw him and I collapsed on the ground and I was dry-retching and stuff like that … and then I had to grab [my friend] to stop [my friend] going and smacking his head in. And then I just … freaked out.
These triggers vary between victims because the context of the abuse, and the way that victims experience trauma, differ. In private sessions and public hearings survivors spoke of triggers that included: certain smells, objects or locations associated with the perpetrator or the abuse; other family members disclosing sexual abuse; media reports about child sexual abuse or the perpetrator; and invasive or intrusive medical procedures. …
Other triggers relate to stressful life events, such as job loss, assault, relationship issues, major financial problems and serious illness or injury. The Royal Commission itself has acted as a trigger for some of the victims who came forward. Similarly, investigations into abuse can trigger further trauma for victims, as well as potentially assisting with recovery.
(underlining added)
In my respectful opinion, the better view is that expressed by McClellan AJA in the Court of Criminal Appeal of New South Wales in R v Grattan:[13]
The fact that the recounting of a stressful event can be accompanied by outward indications of distress is a common human experience and can be corroborative of the happening of the events complained of. To my mind, the passing of two months since the happening of a potential traumatic event is an insignificant time. Distress could accompany the retelling of events months or even years after they occurred depending on the nature of the events and their impact on the victim.
[13] [2005] NSWCCA 306 at 123 (McClelland AJA), later McClelland AJA presided over the Royal Commission investigating Institutional Responses to Child Sexual Abuse; R v Grattan has been cited with approval in Azarian v Western Australia [2007] WASCA 249 at 46, and R v Williams [2008] QCA 411 at [42].
In R v Warren,[14] this Court confirmed that there must be some basis for an inference of a causal connection between the complainant’s distressed condition and the alleged offending, but that it is not necessary that all other explanations be excluded. I understand that observation to be consistent with the view expressed in R v Grattan.[15]Once that is accepted, the matter of drawing inferences as to the complainant’s credibility and in support of the commission of the offence should, as a general rule, be left to the jury without any judicial attempt to restrict, or caution against, its use. I do not exclude, of course, the prospect that, in the circumstances of a particular case, it may be necessary to fashion directions to guard against a miscarriage of justice.
[14] [2005] SASCA 65.
[15] [2005] NSWCCA 306.

The essential holding of the decision of the High Court in R v Churchill[16] must be confined to the statutory position pertaining in Victoria. Importantly there was no issue in Churchill as to the admissibility and use of evidence of distress as an item of circumstantial evidence. The decision deals only with the issue of directions on the weight to be given to evidence of distress and deprecates the perpetuation of the warnings, the legal bases for which have been abrogated, and the baseless assumptions on which they were premised debunked. The general observations in [53] of the Court’s judgment supports the approach I would take of strictly limiting the line of authorities on the necessary conditions for evidence of distress to qualify as corroboration, and the directions on the weight of that evidence as corroboration, to the occasions on when it is so used. Those strictures should not now, in the face of contemporary understanding, be extended to the use of distress as an item of circumstantial evidence.
[16] [2025] HCA 11.
After the preparation of my reasons I have had an opportunity to consider the draft reasons of S Doyle and David JJA in which they hold that evidence of distress which would otherwise be admissible as circumstantial evidence cannot be used for that purpose if the distress is exhibited in connection with the making of a complaint which is admitted into evidence pursuant to s 34M(3) of the Evidence Act. If that construction is correct, it would have the paradoxical effect that strongly probative evidence of distress which provokes for the first time a complaint of offending long suppressed, could not be used as an item of circumstantial evidence that the offence was committed. It would also lead to much artificiality in the presentation of evidence which is illustrated by the scenarios (c) and (d) presented in the judgment of S Doyle and Davids JJA. If a complainant who happens upon her abuser, A, whether two or four years after the event, becomes very distressed and informs a companion that she must leave because she is upset by A’s presence, and no more, the evidence of distress would be admissible as circumstantial evidence. However, if the distress continues until five minutes or five hours later when she finally makes a disclosure to that companion, the entirety of the evidence of distress cannot be used circumstantially. On the other hand, if she explains to her concerned companion why she is distressed, the evidence is not admissible for that purpose unless, of course, the prosecutor does not lead evidence of the complaint itself. To these peculiarities might be added the jury’s and public’s bemusement at the resulting directions that distress witnessed by companion B, to whom no disclosure was made, when confronted by the abuser’s presence, might be used circumstantially, but that the distress witnessed by C to whom the disclosure is made a little later must not be so used. The explanation to the jury, which it would then be necessary to give, could only be that although the evidence of distress on both occasions was potentially probative as items of circumstantial evidence, the legislature had abrogated the fundamental rule that all relevant evidence was admissible in respect of distress exhibited at the time a complaint is made for fear that it might be feigned. I find it difficult to imagine a greater set back to the decades of reform of the rules of evidence governing the admissibility and use of the manifestations of sexual assaults on victims.
Fortunately, for the reasons which follow, such a construction which struggles against the tide of reforms of the law of evidence and contemporary understandings of the manifestations of the long-term trauma of victims, is neither necessary nor preferable.
First, I observe that the construction of s 34(M) on which the judgment of S Doyle and David JJA is founded was not the subject of any argument on the appeal. Indeed, the written submissions of the Director proceeded on the basis that evidence of distress accompanying a complaint could serve both purposes. Nor did the contention that s 34M of the Evidence Act precluded the circumstantial use of distress exhibited at the time of making a complaint arise in Fergusson.[17]
[17] [2024] SASCA 63.
Secondly, at the core of the construction given to s 34M(3) by S Doyle and David JJA is that the phrase “evidence relating to the making of a complaint” includes evidence of distress which is otherwise admissible as circumstantial evidence. A complaint is defined to mean the disclosure of the offending.
The manifest intention of s 34M of the Evidence Act is to expand the admissibility of complaint evidence beyond that allowed by the common law. That naturally leads to a reading down of the expression “evidence relating to the making of a complaint” and of the words “evidence referred to in subsection (3)” in s 34M(4) of the Evidence Act, to mean evidence admitted only for the purpose of putting the content of the disclosure before the Court. However, evidence of distress, otherwise admissible as circumstantial evidence, is put before the Court for that additional reason, and therefore is not evidence only admitted for the purposes of s 34M.
I cannot accept that a provision which was intended to expand the admissibility and use of complaint evidence, and prohibit adverse comment about a delay in making a complaint, could intentionally have rendered evidence of distress which has always been admissible as an item of circumstantial evidence, inadmissible. It is neither necessary nor preferable to give s 34M of the Evidence Act a construction that has that unjustifiable collateral consequence. In all cases in which evidence of distress is adduced, whether accompanying a complaint or not, it can safely be left to the jury to consider whether the distress appears to be the manifestation of the trauma of the offending or is fraught with the risk of concoction.
I would therefore hold that the Judge did not misuse the evidence of distress. The Judge’s assessment of that evidence accorded with ordinary human experience. In that respect the following features of that evidence should be noted. First, the triggering events were calculated to strongly revive recollections of the abuse if it occurred. Secondly, the distress of MK and AK occurred when making their complaints to their respective boyfriends. The disclosures to them were likely to be deeply embarrassing and were not made for the purpose of persuading them to do anything. Thirdly the emotional reactions they described, and confirmed by their boyfriends, were sorrow and dejection with no hint of anger. Fourthly having experienced the traumatic memory, they first sought support from Bravehearts. There was no apparent purpose to initiate police action or to ‘win over’ any one when the distress was exhibited. As the Judge observed when the immediate complaint was made by MK to DS on the occasion of the poker game, MK’s purpose was more likely to have been to gain protection than to make a complaint.
Finally, it is necessary to deal with the issue on which S Doyle and David JJA would allow the appeal. That issue is not a distinct ground of appeal and does not arise out of ground 1 of the appellant’s notice of appeal. As can be seen from the extracts of the appeal transcript which are an appendix to my judgment it is an issue on which the Director did not make any submission. Indeed, nor did the appellant.
Paragraph 4.1 of the appellant’s written submissions summarised ground 1 as follows:
Proposed ground 1 complains that the trial judge erred by using the distress of the complainants in three ways reflected in particulars 1.1 to 1.3. Each error has root in the fact that the distress was not exhibited by each complainant until many years after the alleged offending, and therefore a sufficiently close temporal sexual offending did not exist.4 As such the distress had no probative force…
It can be seen from line 26 of page 4 of the appeal transcript that the contention put by the appellant’s counsel on ground 1 was that it was not open to use the evidence of distress for consistency of conduct or circumstantially because it was only exhibited “a decade after the end of the alleged offending”. Only in response to questions from the bench designed to obtain a better understanding of the evidence and submissions made at trial, was the Court informed that neither the prosecutor nor defence counsel had made any submissions on the use of the evidence of distress. The appellant’s counsel made no complaint that there was, for that reason, a miscarriage of justice. The appellant’s counsel did no more than continue with submissions on the contention he had been addressing before the questions.
From page 34 to page 39 of the appeal transcript, counsel for the Director was pressed on the circumstances and context in which the distress was exhibited for the purposes of testing whether it was open to be satisfied that there was a connection to the offending. So much is clear from the questions put to counsel at line 29 of page 36 and line 10 of page 38 of the appeal transcript. It was only in the context of that exchange that counsel for the Director mentioned that no submission had been made on the context in which the distress was exhibited and in particular on whether MK was likely to have come across the appellant frequently before the occasion on which she made the complaint. It is plain beyond argument that Counsel for the Director was not put on notice that the appeal might be allowed because the appellant’s trial counsel might not have anticipated the use of the evidence of distress as an item of circumstantial evidence.
Finally, in reply, the appellant’s counsel took up the exchange with counsel for the Director to which I have just referred for the purpose of giving transcript references to those “other explanations for the distress short of guilt of the charged conduct” to which the Court had referred. Those explanations were MK’s intoxication and the hostility of both MK and AK to the appellant. In contrast to ground 5 the appellant’s counsel never submitted on appeal that the Judge’s reasons on the use of the distress evidence were inadequate or that the Judge’s reasoning in respect thereto was inadequate. Nor did he complain that the Judge had failed to give the appellant procedural fairness by not warning him that he may use the evidence of distress circumstantially. It was not suggested on appeal that the prosecutor or the Judge had indicated that it would not be used in that way. No evidence was put before the Court to establish that the appellant’s trial counsel laboured under a mistake as to the law and the source of that mistake or on the other hand whether he simply overlooked that possible use, or indeed was hoping that the judges would overlook it. The basis on which S Doyle and David JJA would allow the appeal appears to be an admixture of those possible grounds.
I would not allow the appeal on that basis because it would deny the Director procedural fairness to do so. The happenstance that there is some overlap between the circumstances and considerations relevant to issue A, which falls within the ambit of the controversy before a court, and issue B, is not sufficient to accord the parties procedural fairness on issue B, if the parties had no reason to think it was before the Court at all. Like the trial Judge in respect of the use of the evidence of distress circumstantially, this Court has not given the parties any notice that it might decide the appeal on the basis proposed by S Doyle and David JJA. However, in a trial it is the responsibility of counsel to address on any limits for which they contend on the proper uses of evidence admitted by consent whereas on an appeal it is the responsibility of counsel to address, and only address, the grounds of appeal.
I would also not allow the appeal on the basis proposed by S Doyle and David JJA for the following substantive reasons.
The use of the evidence of distress as circumstantial evidence that the offences were committed was open as a matter of law in accordance with the long line of authority in this State and elsewhere to which I have referred, and the recent decision of McClellan J in Grattan.[18] It is long established, as the observation of Bray CJ in Byczko (No 2) to which I drew attention above shows, that evidence of distress may be used circumstantially, even when it is not sufficiently independent of the complainant to be corroborative. The fact specific decisions on which the appellant has relied in this appeal could not reasonably have been understood as tacitly overruling them, notwithstanding some conflation of the conditions for admissibility on the one hand and use as corroboration on the other. As I earlier observed, the decision of the High Court in Churchill[19] did not effect any change to the rules for the admissibility of evidence of distress as an item of circumstantial evidence. It has been well and widely known for decades, through the experiences of victims, their counsellors and families, and from the experience of the courts of this State, that the trauma of sexual abuse may be suppressed for years before it manifests in an outward exhibition of distress and the making of a complaint. Indeed, it was for that reason that s 34(M) of the Evidence Act was enacted long ago to remove any temporal limit on the admissibility of evidence of the making of a disclosure and the distress which accompanies it.
[18] [2005] NSWCCA 306.
[19] [2025] HCA 11.
I would therefore not allow this appeal on the basis that the use of evidence of distress circumstantially was so unconventional that it could not be assumed that trial counsel did not anticipate it unless the notice of appeal expressly so pleaded and the contention was supported by evidence that trial counsel was surprised by that use.
The Judge did not say anything to suggest that he would not use the evidence circumstantially. It was therefore a matter for the parties to determine whether they would address that potential use or not. The appellant, having failed to complain of a failure to accord procedural fairness and in the absence of evidence from his trial counsel, this Court cannot find that there has been an error of law or a miscarriage of justice because “it could not be assumed that the parties would have contemplated the use of the evidence of distress” as an item of circumstantial evidence. It is for the appellant to establish that there has been a miscarriage of justice by reason of a procedural mishap. The appellant having failed to discharge that onus the appeal cannot be allowed. The appellant cannot now complain that the Judge did not expressly advert to arguments he might have made but chose not to make.
In any event, when viewed against the strong probative force of the evidence of distress in this case which I have described above, those possible arguments are relatively insignificant. MK’s alcohol consumption is more likely to have been caused by, and to have sensitised her to, the triggering effect of sighting the appellant than to have been an independent unrelated cause of it. Hostility to the appellant on the part of MK and AK is an unconvincing explanation. If their evidence and that of their respective boyfriends were accepted their distress was emotionally draining without a scintilla of evidence that it was fuelled by anger. Finally, the alternative explanations are plainly as relevant on an assessment of the weight to give to the complaint as they are to the weight of the evidence of distress as an item of circumstantial evidence, but no such submissions were made.
The appellant has not discharged his onus to persuade this court that there is any reason to apprehend a miscarriage of justice.
Ground 4 – Character Evidence Directions
4.A miscarriage of justice resulted from the trial judge’s failure to properly direct himself with respect to, and bring to bear, unchallenged evidence of the appellant’s good character.
Particulars
4.1 The trial judge erred by directing himself that “evidence of good character may make it less likely that an accused has committed the alleged crimes and it may enhance his credit” (TJ [204], [134]) and failing to direct himself that such evidence does make it less likely that the accused committed the charged offences and does support the accused’s credibility as a witness.
The Judge gave himself the following directions on the use of the character evidence:
[134]The accused gave and called evidence as to his good character. That evidence was not challenged. That factor may be used in two ways, first to affect the likelihood of the accused having committed the crimes and second, to assist in assessing his credibility as a witness.
[135]That said, people do commit crimes for the first time and evidence of good character cannot prevails against convicting evidence of guilt.
The appellant’s complaint is that the Judge directed himself that the good character evidence may make it less likely that the appellant committed the offences charged and may enhance his credibility. The appellant’s counsel contends that the Judge should have directed himself that it does make it less likely that the appellant committed the offences charged.
The direction which should be given to the jury is that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence a conclusion of the accused’s guilt and that a judge may add, if it is thought appropriate in the particular case, that the jury should bear it in mind as a factor affecting the likelihood of the accused committing the crime. That direction is not a direction that the good character evidence does make it less likely that the appellant committed the offence charged. If a direction was given in the terms contended for by the appellant’s counsel, the obvious question would be ‘less likely than what’. A direction in those terms is unlikely to be helpful because it is for the jury to determine in what way, and to what degree, the character evidence affects the likelihood of the accused committing the crime.
A judge may add, if it is thought appropriate in the particular case, that the jury should consider the appellant’s good character in assessing the credibility of the accused’s explanations.
Good character evidence can only be considered in the context of the evidence as a whole and may, or may not, ultimately weigh significantly in favour of the accused’s innocence.
Indeed, a judge has a discretion to balance those directions by a direction that the jury should also bear in mind that people do commit crimes for the first time. There is some tension between that direction and the direction contended for by the appellant that the jury should be told character evidence does make it less likely that the appellant committed the offence.
Given the complex and subtle process involved in weighing evidence and, in particular, weighing evidence which directly implicates or exculpates an accused against the indirect effect of good character evidence, the Judge was not required to give himself any other direction. Nor was the Judge required to attempt to elucidate why and how those complex and subtle processes shaped his finding that the offences were proved beyond reasonable doubt despite the appellant’s denials and good character evidence.
There is no risk that there was a miscarriage of justice. The Judge was well‑equipped to properly bear the accused’s good character in mind and to give it its proper weight.
The reliance by the appellant’s counsel on The Queen v Palazoff[20] is misplaced. The appeal in that case was allowed because of the inadequacy of the good character direction in the context of the onus of proof and because of the particular factual circumstances of the case. Zelling ACJ described the circumstances of Palazoff as one of the cases in which ‘specific directions on this point called for and were essential in enabling the jury to relate the evidence of good character to the factual issues which they had to decide’. This was not such a case and the trial was by judge alone.
[20] The Queen v Palazoff (1986) 43 SASR 99 at 103.

Assuming the complaint to the friend is not an elaboration of the complaint to the mother, it is not an initial complaint for the purposes of s 34M. It is therefore not admissible at all under that section. Whilst it does not say so in terms, the positive provision in s 34M for the admissibility and limited use of an initial complaint by implication precludes the admissibility of any subsequent complaints for either a credibility or circumstantial use. Accepting this to be so, then by analogy with the reasoning above in relation to the evidence in paragraph (b), s 34M would also operate to preclude the admissibility of evidence of any distress that is part and parcel of the subsequent complaint.
On this reasoning, the evidence of distress in paragraph (c) would not be admissible for a credibility use or circumstantial use. Even if this were not a direct consequence of the terms of s 34M, or an implication to be drawn from the terms of that section, the same outcome might be achieved by excluding the evidence of distress on the basis that it is more prejudicial than probative. The prejudice would come from the risk that use of the evidence of distress for either a credibility or circumstantial use might undermine the prohibition against reliance upon complaint evidence for either of these uses. Even if evidence of the accompanying complaint was only led so as to contextualise the distress, and to assist in making out the requisite causal link with the alleged offending, there would be a risk that the trier of fact could not realistically rely upon the evidence of distress without being impermissibly influenced by the complaint. Further, and in any event, to the extent that the evidence of distress conveyed a non-verbal assertion of offending by reason of its connection with a complaint, its use as circumstantial evidence of the offending might infringe the common law rule against hearsay.
Finally, there is paragraph (d), being evidence that four years after the alleged offending, the complainant, when at a social event with her boyfriend, encountered her uncle and became distressed. This involves evidence of temporally remote distress which is not connected to any complaint. In order to establish relevance, there must be a basis from which it could reasonably be inferred that the distress was caused by the alleged offending. This may be possible if, for example, it was apparent on the evidence that the complainant had not seen her uncle since the offending allegedly occurred. As mentioned earlier in these reasons, a modern understanding of the way in which trauma is experienced and manifested by victims of sexual offending is consistent with a distressed reaction to encountering the perpetrator some years after the offending.
In other circumstances, a basis for the causal connection may be more difficult to establish. It may be that it would require evidence from the complainant to the effect that the offending was the reason for the distressed reaction. Whilst the complainant’s evidence may not have sufficed to give the evidence of distress a corroborative quality (had that still been a relevant consideration),[74] it may nevertheless be available for use in support of the causal connection necessary to establish the relevance of the evidence of distress for both a credibility and circumstantial use.
[74] On the basis that its reliance upon the oral evidence of the complainant to make out a causal connection would prevent it having the requisite independence.
Assuming this dual relevance of the evidence of distress in paragraph (d), we do not think there is any barrier to its admissibility. As the evidence relates to distress that was not accompanied by any complaint, there does not seem to be any occasion for the operation of s 34M to preclude or limit its admissibility or use. Similarly, as the evidence of distress was not accompanied by any verbal assertion or narrative from the complainant, we do not see any scope for the rule against hearsay to limit its admissibility or use. The evidence in paragraph (d) may therefore be admissible for both a credibility use and circumstantial use. The use and weight ultimately attached to the evidence would, of course, be a separate issue, and for the trier of fact.
For completeness, we would add that it is possible to imagine variants of paragraphs (b) and (c) of our hypothetical which would bring the evidence closer to the evidence contemplated by paragraph (d), and justify a different approach to that which we have suggested above in relation to paragraphs (b) and (c).
To explain, in treating the distress as ‘part and parcel’ of the complaint, we have assumed circumstances in which the distress is fairly to be described as accompanying the complaint, in the sense of being ancillary to the complaint, and difficult to separate from the decision to complain. One can contemplate variants of these circumstances in which the focus of the evidence is more upon the distressed condition of the complainant, with the complaint being ancillary to the distress rather than the other way around. It will be a matter of fact and degree, but it is possible to contemplate situations in which the distress may overwhelm the complaint, or at least have a clear existence separate from the complaint, and the decision to complain. This may be so, for example, where there is evidence of significant distress preceding any complaint, with the complaint in effect extracted from the complainant as an explanation for the distress. In those circumstances, it may be appropriate to treat the evidence of distress as separate from the complaint, rather than as part and parcel of the complaint. As a consequence, s 34M may not operate to circumscribe the admissibility and use of the evidence of distress in the ways we have described. There may also be no non-verbal assertion inherent in the distress, and so no concern with the common law rule against hearsay.
In these circumstances, analogously with the circumstances in paragraph (d), the evidence of distress might be given both a credibility and circumstantial use, albeit that the complaint itself could not be used for the latter purpose (if an initial complaint) or for either purpose (if a subsequent complaint).
Application to the present case
In applying the above observations about the admissibility and use of distress evidence in South Australia to the case at hand, it is convenient to commence with the evidence of AK’s distress when making her initial complaint to her boyfriend, RM.
As set out earlier in these reasons, AK gave evidence that she complained to RM in about 2020 or 2021, but did not expand upon the circumstances or content of her complaint. RM gave unchallenged evidence of a complaint in late 2019 or early 2020. He explained that AK commenced sobbing while he was watching TV, and that in the conversation which this prompted, she revealed some detail about the sexual offending by the appellant. During this conversation, AK ‘was not in a good state’, and took a long time ‘to get her words out’. RM had not seen her this emotional before.
We do not accept the appellant’s argument that the temporal gap between the alleged offending and AK’s distress deprived the evidence of its relevance. Whilst the temporal gap was significant (about 10 years), and important in determining its ultimate use and weight, it did not, for the reasons explained earlier, deprive the evidence of distress of its relevance. There was a proper basis from which to infer a causal link between the distress and the alleged offending.
However, we consider that this evidence of distress is similar to the evidence of distress in paragraph (b) of the hypothetical set out above. It was evidence of distress in the course of an initial complaint for the purposes of s 34M, which was in substance part and parcel of that complaint. There was no evidence of any triggering event, or indeed any significant distress prior to the complaint being made. Whilst it may be accepted, on RM’s evidence, that AK commenced sobbing shortly before she made a complaint, and that the sobbing led to the conversation which followed, we are not persuaded that this was a situation in which it could fairly be said that the complaint was merely ancillary to the distress, or that the distress was separate from the complaint in any meaningful way. That is particularly so where, on the boyfriend’s evidence, the complaint included some significant narrative of the alleged offending. On this analysis, we consider that the evidence of AK’s distress was only permitted to be used for a credibility use, and not a circumstantial use. It would follow that the judge erred in giving the evidence of AK’s distress ‘when speaking to her partner’ a circumstantial use.
Turning to the evidence of MK’s distress, the evidence of MK and her boyfriend, NS, has been set out earlier in these reasons. The distress commenced with MK appearing uncomfortable or anxious upon seeing the appellant at the pub, but progressed to sobbing and crying, and indeed ‘throwing up’, during the discussion that occurred after MK and NS had returned to the house they were housesitting. It was during that discussion that MK made her initial complaint of the appellant’s sexual offending against her to NS.
Again, there was a proper basis for inferring the requisite causal connection between the alleged offending and the observed distress. Whether that connection was ultimately established, and the weight to be attached to the evidence of distress, were matters for later determination (see below), but we accept that the evidence was capable of establishing the requisite causal connection. The significant temporal gap between the alleged offending and the distress was not fatal to the relevance of the evidence of distress.
However, again, we consider that this evidence of distress was similar to the evidence of distress in paragraph (b) of the hypothetical set out above. It was evidence of distress accompanying an initial complaint for the purposes of s 34M, which was in substance part and parcel of that complaint. We accept that, once again, the distress commenced before, and probably precipitated, the complaint. We accept that it is a matter of fact and degree, and that the evidence of MK’s distress is perhaps closer to having a separate existence from her complaint than did the evidence of AK’s distress. MK’s distress commenced while she was at the pub, and hence prior to her making the complaint to her boyfriend. However, her reaction at the pub was relatively mild (referred to merely as feeling or appearing uncomfortable or anxious), and her tears and vomit did not occur until later in the evening when she was in the process of making the assertions in the narrative of her complaint. Indeed, the judge referred only to MK’s distress ‘at the time of complaint’ and ‘when speaking to her partner’.[75] In the circumstances, we are not persuaded that it was appropriate to treat the evidence of distress as separate from the complaint. We thus consider that the evidence of MK’s distress, like the evidence of AK’s distress, was only permitted to be used for a credibility use, and not a circumstantial use, and that the judge erred in giving it a circumstantial use.
[75] Reasons at [184].
In summary, we consider that the judge erred in making a circumstantial use of the evidence of AK’s and MK’s distress. The essential reason for this is that, in our view, their distress was part and parcel of their initial complaints to their respective boyfriends, and hence was not admissible for use in a manner inconsistent with s 34M(4). We accept that, in so concluding, we have taken a relatively broad view of when distress is properly to be treated as part and parcel of the accompanying complaint (as described in the context of paragraphs (b) and (c) of our hypothetical), and a correspondingly narrow view of when distress might be said to have a separate existence from an accompanying complaint (as described in what we have referred to as the variants to paragraphs (b) and (c)). Whilst we consider it reasonably clear that AK’s distress was part and parcel of her complaint, we accept that MK’s distress is closer to the line.
The Chief Justice’s concerns about our construction of s 34M, and the line we have drawn, have caused us to pause for reflection. However, in our view, the criticisms he advances go more to the appropriate breadth of the notion of distress as part and parcel of a complaint, rather than the existence of this category of case. We do not think the existence of this category of case can be doubted; indeed, as we have explained, its existence was acknowledged not only in the seminal decision of Redpath, but also by the High Court in Churchill.
Bearing in mind that our approach allows for the circumstantial use of distress where it has an existence separate from the complaint, and is not part and parcel of the complaint, we are not sure that it will produce anomalous outcomes. However, to the extent that our approach may produce some apparently anomalous results, in our view, that is a product of the legislature’s decision to intervene so as to provide for the admissibility of only initial and not subsequent complaints, and to do so in a way that confines the use of that evidence to a credibility use and not a circumstantial use. To ignore the ramifications of this for evidence of distress which is part and parcel of a complaint would, to our minds, risk practical difficulties for fact-finders (particularly juries) and incoherent results. Whilst the approach adopted by the High Court in Churchill of admitting all evidence of causally related distress and complaint for both a credibility use and circumstantial use might better reflect the modern understanding of the manner in which victims of sexual offending may experience and manifest their distress, for the reasons explained, we do not think such an approach is available in this State given the legislative intervention through s 34M of the Evidence Act and the continuing operation of the common law rule against hearsay.
We accept that insofar as we have relied upon s 34M in circumscribing the permissible use of evidence of distress, this was not a matter directly relied upon by the appellant, or addressed in argument. Whilst ordinarily this might have justified, or required, hearing further from the parties, we do not think that is necessary in the present case. We do not think it is necessary because, for the reasons which we are about to explain, it is our view that, even if s 34M(4) did not operate to preclude the judge making circumstantial use of the evidence of AK’s and/or MK’s distress, his decision to use the evidence in this way nevertheless resulted in a miscarriage of justice requiring this Court’s intervention. Our observations in relation to the impact of s 34M upon evidence of distress which is part and parcel of a complaint are thus not decisive of the outcome of this appeal.
As just foreshadowed, even if we are wrong in concluding that the evidence of the complainants’ distress was not admissible for a circumstantial use, we consider that the judge’s use of the evidence in this way nevertheless occasioned a miscarriage of justice. This arises from the fact that this use of the evidence of distress was never foreshadowed by the prosecution or judge, or the subject of any submissions. Neither the prosecutor nor the judge said anything at all about the evidence of distress, let alone anything to suggest that it had an existence or status separate from the evidence of complaint which permitted it to be used in a manner which was inconsistent with the legislative limits upon the permissible use of the evidence of complaint.
Particularly bearing in mind that the trial occurred before the High Court’s decision in Churchill, it could not be assumed that the parties must have contemplated that the evidence of distress might be used in this way. Nor can it be said that defence counsel made a forensic decision not to challenge, or not to seek to address through cross-examination or submissions, the circumstantial use of the evidence of distress. In the absence of any submission or other indication that the judge might use the evidence of distress in a circumstantial way, we do not think it was appropriate for the judge to do so.[76]
[76] Kirkland v The Queen [2021] SASCA 14 at [157]-[160], [166]-[171] (Lovell JA, Bleby JA agreeing).
It is to be acknowledged that, generally speaking, when evidence is admitted without objection, it is available for all legally permissible uses. However, there are well-recognised limits to this general proposition given the adversarial overlay of a criminal trial. Whilst the prosecutor or judge need not foreshadow a conventional use of evidence admitted without objection, we do not think that is a fair description of what occurred here. Given the strong historical emphasis upon temporal proximity in making circumstantial use of distress, both in this jurisdiction and elsewhere,[77] we do not think it can be said that defence counsel at trial ought to have assumed, or even contemplated, that the evidence of distress in the present case, which occurred up to a decade after the alleged offending, might have been used circumstantially. We have earlier expressed our view that the judge erred in using the evidence of distress in this way. But certainly it was not a conventional use, or one contended for by the prosecution.
[77] As discussed in the subsequent decision of this Court in Fergusson at [26]-[42], including the Victorian Court of Appeal cases routinely applied in this State but criticised in Churchill.
A useful analogy may be drawn with evidence of a lie told by a defendant. Defence counsel might not object to that evidence on the basis that it is relevant and admissible for a credibility use. However, before it is deployed in a circumstantial way as probative of a consciousness of guilt, it would ordinarily be expected that the prosecutor or judge would foreshadow this intended use. And that is so even though the circumstantial use of a lie in this way is not so much unconventional as not to be assumed in the ordinary course.
Further, in the circumstances of this case, the judge’s decision to proceed to use the evidence of distress in a circumstantial way was potentially of some practical or real significance. It is plain from the judge’s reasons that he attached some material weight to the circumstantial relevance of this evidence. However, had this use been foreshadowed by the prosecution or judge, there were several matters that could have been raised through cross-examination of the complainants, or in submissions. They are matters which had the potential to bear on the use to be made of, and weight to be attached to, the evidence of distress.
By way of example, both AK and MK gave some evidence about their hatred of the appellant, and their feelings of resentment by reason of his poor treatment of them, and what they perceived to be the preferential treatment of his biological children. These are matters that might have explained, or at least contributed to, their distress. That is particularly so in the case of MK, given the evidence suggesting she became uncomfortable and anxious upon seeing the appellant at the pub. In circumstances where it was not anticipated that this would be relied upon as circumstantial evidence probative of the alleged offending, it is perhaps unsurprising that defence counsel did not embark upon any cross-examination as to the potential explanations for MK becoming distressed, and proceeding to make the allegations she did. It was also unsurprising that there was no cross-examination to elucidate upon, for example, the occasions or circumstances in which MK might have seen the appellant in the intervening period between the alleged offending and the distress; or the potential for the alcohol that MK had consumed to have contributed to her distress, including her ‘throwing up’. Different forensic decisions may well have been made had the circumstantial use of the evidence of distress been foreshadowed by the prosecution or the judge.

Further, and in any event, the judge made circumstantial use of the evidence of distress without any express consideration of the potential explanations for, or contributions to, the complainants’ distress apart from the alleged sexual offending. Whilst the potential for alternative explanations or contributions to the distress did not operate as a barrier to the relevance and admissibility of the evidence of that distress, it was significant to the use and weight afforded to that evidence by the judge. It is therefore problematic that the judge did not make any reference to the potential for the complainants’ more general antipathy, indeed hatred, towards the appellant to have had significance in this regard. Nor did the judge give any consideration to the possibility that MK’s consumption of ‘a lot’ of alcohol might have caused or contributed to her distress, particularly her need to vomit. The judge ought to have considered, or directed himself as to, the potential significance of the alternative explanations for the complainants’ distress.
In summary, we consider that the judge’s treatment of the evidence of distress has resulted in a miscarriage of justice. Whether this was because the evidence was not permitted to be used circumstantially, or because the judge should not have used it in this way without that being foreshadowed by the prosecution or judge, or because the judge should not have relied upon the evidence in this way without considering, or directing himself as to, the potential significance of alternative explanations for the distress, does not matter much. One way or another, there has been a miscarriage which was material in the sense that it had the potential to influence the judge’s reasoning in support of his verdicts of guilty.[78]
[78] Brawn v The King [2025] HCA 20 at [3], [10] (the Court).
Ground 1 of the appellant’s notice of appeal was expressed in terms that the judge ‘erred by using the distress of each complainant as a piece of circumstantial evidence’ (particular 1.2). It is true that the chapeau to this ground referred to the judge having ‘erred at law’ in misusing the evidence of distress. It is also true that the focus of the appellant’s submissions was his primary submission that the evidence of distress was not permitted to be used circumstantially as a matter of law. However, we consider that this ground was fairly to be understood as encompassing a submission to the effect that the judge erred in using the evidence of distress circumstantially given the way the trial was conducted and/or without having regard to the potential alternative explanations for the distress. This is consistent with how the grounds were originally drafted.[79] But more importantly, it is consistent with the way in which oral argument unfolded. Whilst prompted by questions from the bench, counsel for the appellant put submissions which we construed as challenges to the judge’s circumstantial use of the evidence of distress in circumstances where it was not sought to be deployed by the prosecution in this way,[80] and where the judge had not addressed the alternative explanations for the distress.[81] Although the respondent only dealt briefly with these matters (by acknowledging that counsel at trial had not made any submissions about the use of the distress evidence, and referring to the judge’s references, in other contexts, to some of the evidence relevant to alternative explanations for the distress),[82] we do not consider that there is any unfairness to the respondent in deciding the appeal on the basis we have articulated.
[79] Prior to the consolidation of grounds 1 to 3 into a single ground, ground 1 complained of a miscarriage of justice resulting from the judge’s use of the evidence of distress as evidence independently supporting proof of the offences.
[80] T4-6, including referring to defence counsel’s decision not to object being ‘entirely to be expected’ given its permissible credibility use in connection with the accompanying complaints.
[81] T6, and in reply at T56-57.
[82] T37-39.
We conclude by noting that in addition to the evidence of the complainants’ distress in the context of their initial complaints to their respective boyfriends, there was also evidence of MK’s distress on another occasion. This related to an occasion referred to as ‘the poker night incident’, and mentioned by the Chief Justice in his reasons. MK’s mother gave evidence of observing MK in a distressed state immediately following that incident. Because of the immediacy of that observed distress to the alleged instance of offending, and the fact that no complaint or narrative from MK was required to establish the requisite causal connection, we see no difficulty with the judge’s reliance upon this evidence of distress for both a credibility use and circumstantial use. The evidence of this distress was similar to the evidence of distress in paragraph (a) of our hypothetical. In any event, as the judge’s use of this evidence has not been challenged on appeal, there is no need for us to address it further.
Conclusion
Having concluded that there was a miscarriage of justice, we observe that this is not an appropriate case in which to apply the proviso. Given the centrality of the complainants’ credit to proof of the alleged offending, this Court is not in a position to satisfy itself that the three charges were proved beyond a reasonable doubt.
For these reasons, we would allow the appeal on ground 1, set aside the verdicts of guilty, and order that there be a retrial.