Potter (a pseudonym) v The King

[2024] SASCA 108

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

POTTER (A PSEUDONYM) v THE KING

[2024] SASCA 108

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)

5 September 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - SEXUAL INTERCOURSE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

The appellant was charged with four counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial before a judge and jury, the appellant was convicted of Counts 2 and 4. The jury were unable to reach a verdict in relation to Counts 1 and 3.

The complainant in each count was his wife.  On the prosecution case, each of the alleged offences occurred while the complainant was asleep in her bed.  On each occasion, she awoke to find the appellant having penile-vaginal sexual intercourse with her.

The appellant was sentenced to 12 years imprisonment, with a non-parole period of six years and six months. The judge had identified notional sentences of seven years imprisonment and eight years imprisonment respectively for the two offences and allowed for partial concurrency.

The appellant appeals against both his convictions and his sentence.

The appeal against conviction relies upon six grounds. Grounds 1, 2 and 3 relate to the prosecution evidence of suspicions, allegations and admissions of the various charged and uncharged occasions upon which the appellant had engaged in sexual intercourse with the complainant while she was asleep. The appellant’s complaints relate to the admissibility of this evidence for a propensity use and the trial judge’s directions in relation to this evidence.

Ground 4 involves a complaint regarding the admissibility of a covert recording made by the complainant of a conversation she had with the appellant. Ground 5 involves a complaint of a miscarriage of justice by reason of the failure of the judge to adequately direct the jury in relation to their use of the evidence of the complainant’s health and medication. Ground 6 involves a complaint of a miscarriage of justice by reason of a submission by the prosecutor to the effect that the appellant had invented a version of events to fit the evidence.

The appeal against sentence is confined to a complaint of manifest excess in the sentence imposed.

Held, per Doyle and David JJA (Kourakis CJ agreeing), granting permission to appeal against conviction but dismissing the appeal on all grounds:

1.The evidence of the appellant’s charged and uncharged occasions of engaging in sexual intercourse with the complainant while she was asleep was admissible for a propensity use under s 34P of the Evidence Act 1929 (SA);

2.The trial judge did not err in her directions to the jury in relation to the evidence of the charged and uncharged occasions upon which the appellant had engaged in sexual intercourse with the complainant while she was asleep;

3.The covert recording was admissible:

i. per Doyle and David JJA, although the recording was unlawful under s 4(1) of the Surveillance Devices Act 2016 (SA), after weighing the competing public policy interests, it cannot be said that the recording should have been excluded under the public policy discretion; and

ii. per Kourakis CJ, the recording was reasonably necessary for the protection of the complainant’s lawful interest such that it was not unlawfully made under s 4 of the Surveillance Devices Act 2016 (SA);

4.The trial judge’s directions in relation to the complainant’s health and medication were adequate, such that no miscarriage of justice has been established; and

5.The submission made by the prosecutor in his closing address does not give rise to a miscarriage of justice.

Held, per Doyle and David JJA (Kourakis CJ agreeing), granting permission to appeal against sentence, allowing the appeal and resentencing the appellant:

1.The overall head sentence of 12 years imprisonment imposed by the sentencing judge was manifestly excessive;

2.In resentencing the appellant, the appropriate notional sentences are six years imprisonment for the first offence, and seven years imprisonment for the second offence; and

3.Utilising s 26 of the Sentencing Act 2017 (SA) and allowing for 50 per cent concurrency in respect of the sentence for the second offence, the appellant is resentenced to nine years and six months imprisonment for the two offences, with a non-parole period of five years, backdated to commence from 8 August 2023.

Criminal Law Consolidation Act 1935 (SA) s 48(1); Criminal Procedure Act 1921 (SA) ss 158(1)(b), 158(1)(c); Evidence Act 1929 (SA) ss 34P(2), 34P(2)(a), 34P(2)(b); Jury Directions Act 2015 (Vic) s 27(3)(a); Sentencing Act 2017 (SA) s 26; Surveillance Devices Act 2016 (SA) ss 4, 4(1), 4(1)(b), 4(2), 4(2)(a)(ii), referred to.
AW v Rayney [2010] WASCA 161; Bromley v The Queen (1986) 161 CLR 315; Bunning v Cross (1978) 141 CLR 54; Davies v The Queen (2021) 289 A Crim R 156; DPP v Roder (a pseudonym) (2024) 98 ALJR 644; DW v The Queen (2014) 239 A Crim R 192; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Groom v Police (SA) (2015) 252 A Crim R 332; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; JS v The Queen [2022] NSWCCA 145; Phillips v The Queen (2006) 225 CLR 303; Pihema v Western Australia [2017] WASC 282; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465; McPhillamy v The Queen (2018) 92 ALJR 1045; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; Ridgeway v The Queen (1995) 184 CLR 19; RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v C, CA [2013] SASCFC 137; R v D, RHC [2011] SASCFC 31; R v DRF (2015) 263 A Crim R 573; R v Ford (2009) 201 A Crim R 451; R v Knight [2016] SASCFC 40; R v Lindsay (2016) 126 SASR 362; R v Ross (2018) 132 SASR 31; R v Swaffield (1998) 192 CLR 159; R v Tran (2009) 198 A Crim R 23; R v W, PL [2017] SASCFC 119; Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218; Sepulveda v The Queen (2006) 167 A Crim R 108; Thomas v Nash (2010) 107 SASR 309; TL v The King (2022) 275 CLR 83; Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; Warner v The King (2022) 142 SASR 275; White (a pseudonym) v The Queen (2022) 141 SASR 398; Young v The King [2024] SASCA 47, considered.

POTTER (A PSEUDONYM) v THE KING
[2024] SASCA 108

Court of Appeal – Criminal:    Kourakis CJ, Doyle and David JJA

1. KOURAKIS CJ:     I agree with the orders proposed by Doyle and David JJA, and, save in respect of the following issues, with their Honours’ reasons.

2. First, it was not disputed that the appellant was sexually attracted to the complainant but that she did not wish to engage in sexual intercourse with him, or, at least, was very reluctant to do so.  For those reasons, the appellant had a strong motive to attempt sexual intercourse with the complainant whilst she slept.  The evidence of the appellant’s motive to attempt intercourse with the complainant when she was asleep was strongly probative of the existence of a propensity to do so.  His motive supported a finding, based on the observations of the complainant and his admissions, that he had a propensity to do so.  The probative value of the evidence of propensity, on the critical issue of whether he engaged in sexual intercourse on the charged occasions, was strengthened by the evidence of that motive.  It should also be noted that the evidence that the appellant had engaged in sexual intercourse whilst the complainant slept on another occasion was also strongly probative, in a negative sense, in that it explained what might otherwise be thought to be unusual, and, therefore, unlikely, behaviour by a romantic partner.

3. Secondly, I would hold that the complainant’s use of her phone to record the conversation was a use that was reasonably necessary for the protection of her lawful interests. On a proper construction of s 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA) (the Act), the standard to be applied is objective.[1] The statutory justification is satisfied if a reasonable person in the circumstances of the person recording the information would conclude that it was reasonably necessary, in the sense of being reasonably appropriate or adapted to the situation at hand,[2] to do so to protect their lawful interests. Even if the subjective reasons for a particular victim recording a conversation with the offender is the criterion, or an element of the test, those reasons should not be too closely forensically and clinically dissected.

   [1]     Cf Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465, [14] (Levine J); Sepulveda v The Queen (2006) 167 A Crim R 108, 132 [116]-[118] (Johnson J, McClellan CJ at CL and Hislop J agreeing); AW v Rayney [2010] WASCA 161, [257] (Buss JA, McLure P agreeing); Pihema v Western Australia [2017] WASC 282, [21] (Jenkins J).

   [2]     Cf AW v Rayney [2010] WASCA 161, [257] (Buss JA, McLure P).

4. In the absence of a statutory definition of ‘lawful interests’, it is necessary to consider the statutory context, the purpose of the prohibition in s 4(1)(b) to record a private conversation to which the recorder is a party, and its associated, exemption, and the interests recognised, and given some level of protection, by other statutes or the common law.

5. It follows from s 9(1)(c) and (d) of the Act that a lawful interest can consist of the investigation and prosecution of an offence, at least in cases in which the person making the recordings believes that he or she  is a victim of the offending.

6. The interest of all human beings in their bodily autonomy and integrity is recognised by statutory and common law offences such as the very offences with which the appellant was charged and of which he was convicted.  It is an interest of the highest order recognised by the common law. As McHugh J observed, in an admittedly different context, in Secretary, Department of Health and Community Services v JWB:[3]

   It is a central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others … may think is in the best interests of that particular person … the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person’s body.

   [3] (1992) 175 CLR 218, 309-10.

7. More broadly, it is a well-accepted human rights value, in liberal democracies, that all persons are entitled to autonomy and self-determination over their bodies.  That entitlement includes the right to give, or withhold, consent, and equal respect for physical and mental integrity. That entitlement necessarily recognises and effectuates agency, choice, and dignity.[4]

   [4]     See, eg, Australian Human Rights Commission, Ensuring Health and Bodily Integrity: Towards a Human Rights Approach for People Born with Variations in Sex Characteristics (Chapter, October 2021) 27-8; Natalia Kanem, ‘Bodily Autonomy: A Fundamental Right’ (Speech, United Nations Population Fund, 16 March 2022).

8. Speaking generally, victims of sexual, or other violent, offending have an interest in the protection of their wellbeing, peace of mind, human dignity, and vindication.  It is an understandable human response to trauma to seek to understand the what, how, and why of the wrong suffered.  Informed and sound choices on how they will exercise their human right to bodily autonomy and integrity, including how to best protect or vindicate their right to be kept safe from harm, are best made when the answers to those questions are known.

9. A balancing of the interests in bodily integrity and autonomy of those persons who genuinely believe they are the victims of crime, and the interest of those they suspect of committing the crime, must undoubtedly be struck.  In the privacy of conversations about their conduct, that balance should favour the putative victim.  The interest of the accused person in confidentiality is sufficiently protected by s 9 of the Act, the rules of the criminal law which are calculated to ensure a fair trial, and, in the civil context, by the law of tort and by the equitable obligation of confidence .     

10. DOYLE AND DAVID JJA: The appellant was charged with four counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant in each count was his wife. On the prosecution case, each of the alleged offences occurred while the complainant was asleep in her bed. On each occasion, she awoke to find the appellant having penile-vaginal sexual intercourse with her.

11. Following a trial before a judge and jury, the appellant was convicted of Counts 2 and 4.  The jury were unable to reach a verdict in relation to Counts 1 and 3.

12. In sentencing the appellant, the judge identified notional sentences of seven years imprisonment and eight years imprisonment respectively for the two offences.  After making some allowance for partial concurrency, her Honour imposed a single penalty of 12 years imprisonment.  Her Honour fixed a non-parole period of six years and six months.

13. The appellant appeals against both his convictions and his sentence.

14. The appeal against conviction relies upon six grounds.  Grounds 1, 2 and 3 relate to the prosecution evidence of suspicions, allegations and admissions of the various charged and uncharged occasions upon which the appellant had engaged in sexual intercourse with the complainant while she was asleep.  Ground 1 involves a complaint about the admissibility of this evidence for a propensity purpose.  Grounds 2 and 3 involve a complaint about the trial judge’s directions in relation to this evidence.

15. Ground 4 involves a complaint in relation to the admissibility of a covert recording made by the complainant of a conversation she had with the appellant.  Ground 5 involves a complaint of a miscarriage of justice by reason of the failure of the judge to adequately direct the jury in relation to their use of the evidence of the complainant’s health and medication, including her history of hallucinations.  Ground 6 involves a complaint of a miscarriage of justice by reason of a submission by the prosecutor to the effect that the appellant had invented a version of events to fit the evidence.

16. The appeal against sentence is confined to a complaint of manifest excess in the sentence imposed.

17. For the reasons which follow, none of the grounds in the appeal against conviction have been made out.  However, the sentence imposed upon the appellant was manifestly excessive.  The appeal against sentence should be allowed, and the appellant resentenced as set out at the conclusion of these reasons. 

    Background

18. By way of overview, the appellant and complainant met in 2012, while they were at high school.  They commenced living together in 2014 and married in November 2015.  The have two daughters.  The first (I) was born on 12 July 2015, and the second (M) was born on 18 March 2017.

19. The family moved to a house in Christies Beach in early 2017, before the birth of M.  The complainant suffered from ill health following the birth of M.  On 26 June 2017, she was diagnosed with postpartum thyroiditis and thyrotoxicosis.  She continued to feel very unwell.  This included an occasion when she made a call to a telehealth service late in the evening on 11 July 2017, complaining of feeling anxious and dizzy.  She was told to rest.

20. The family moved to a house in Middleton in early 2018, and stayed there until they moved to Lightsview in early 2019.  The appellant and complainant separated in August 2019, but continued to live together in their Lightsview home.

21. On the prosecution case, the first count of rape occurred in the weeks after M’s birth, in March or April 2017, while they were living at Christies Beach.  The second count occurred on 11 July 2017, being the occasion of the complainant’s telehealth call.  The third count occurred some time later, but while the appellant and complainant were still living at their Christies Beach address.  The fourth count occurred on 26 January 2020, after they had separated but were still living together at their Lightsview address.

22. As mentioned at the outset of these reasons, each allegation of rape involved the appellant engaging in penile-vaginal intercourse with the complainant, commencing while she was asleep.  The prosecution case also included evidence from the complainant of suspicions and allegations of other similar instances of the appellant engaging in sexual intercourse with the complainant while she was asleep, and evidence from the complainant and others of admissions by the appellant that he had engaged in such conduct.

23. The appellant gave evidence in the defence case.  He denied that Counts 1, 2 and 3 occurred.  In the case of Count 4, he admitted that he engaged in sexual intercourse with the complainant, but said it occurred while she was awake and was consensual. 

    The prosecution case

24. Central to the prosecution case was, of course, the evidence of the complainant. However, the prosecution also called evidence from the complainant’s general practitioner, her father and three of her friends.  It is convenient to commence by summarising the complainant’s evidence, before addressing the evidence of these other prosecution witnesses.

    The complainant’s evidence

25. The complainant gave evidence that she suffered from significant health difficulties following the birth of their second child, M.  This included a postpartum infection requiring a hospital admission and ongoing antibiotics.  During this period she suffered symptoms including blurry vision, a rapid heart-rate, high blood pressure, fatigue, nausea and weakness.  Her sleep was sporadic and deep, and she sometimes had difficulty waking.  She was prescribed a number of medications.

26. In relation to the first incident of non-consensual sexual intercourse (Count 1), which occurred about three weeks after the birth of their second daughter, the complainant woke one night at about 2.00 am or 3.00 am.  She was positioned on her stomach, slightly to the side.  The appellant was on top of her, engaging in penile-vaginal sexual intercourse with her.  The complainant told the appellant to get off her, which he did.  She told him that he was not to have sex with her whilst she was sleeping and was healing from giving birth to M. The appellant was apologetic.

27. The complainant gave evidence of what she suspected were further incidents of non-consensual sexual intercourse that occurred between Counts 1 and 2.  She said that between the occasion of Count 1, and her diagnosis on 26 June 2017, there were times when she would wake up with pain in her vagina, or with bleeding from her vagina, which indicated to her that the accused had had sex with her.  She also said that there were times when the appellant would say to her during the day ‘Was it good?’, and a time when he mentioned the morning after pill.  This led her to suspect that there were occasions when the appellant had had sexual intercourse with her while she was asleep and had not woken up.  She said that between the occasion of Count 1 and her diagnosis, she and the appellant had discussions about not having sex with her while she was asleep; and that the appellant agreed not to, and was apologetic for having done so. 

1. The complainant’s symptoms in the period following the birth of their second child included auditory hallucinations.  In the week leading up to her 26 June 2017 diagnosis, she also experienced a visual hallucination in which she saw a red demon.  She reported the hallucinations to her doctor, Dr Altree.  She presented at a hospital on 26 June 2017, and was diagnosed with postpartum thyroiditis and thyrotoxicosis. 

2. The complainant also gave evidence that there was an occasion at Christies Beach, separate from Counts 1 and 2, when she awoke startled in the night, told the appellant not to touch her, and sat in the corner of the bedroom.  When the appellant followed her to the corner of the room, the complainant told him not to hurt her.

3. Count 2 occurred on 11 July 2017, which was the evening that the complainant contacted the telehealth service.  She had been feeling quite anxious and dizzy, and was having difficulty standing.  She was on beta-blockers at the time.  When she made the telehealth call, she was advised to rest.  Eventually she felt that her heart rate was coming down.  She took some Olanzapine and Metoprolol.  She put M in her basket next to their bed, and went to sleep.  She woke to find that the appellant was holding her down, with her hands pinned alongside her head.  The appellant was having penetrative penile-vaginal intercourse with her as she lay on her back.  She yelled at him to ‘get off’ and he did.  She crawled over and sat in a corner of the bedroom, and held her arm out to block him coming closer.  She was very distressed, and he was saying that he was sorry.  She cried as he sat by the base of their bed.  The complainant eventually took M downstairs and slept on the couch.

4. The complainant said that the following day she had a conversation with the appellant at the kitchen table about consent, and the impact on her health of what the appellant had been doing.  She told the appellant that what had happened was unfair and had left her in pain, and that she needed to heal.  She told him that she did not consent to him having sex with her while she was asleep, and that she would not get better, or heal, if he kept doing it to her.  He was apologetic, and understood that she was unwell and that his behaviour was not okay.  At some point he sought to explain his behaviour, saying that he would black out, see red and then not remember what he was doing.  They decided that the appellant would start sleeping in a room they called the office, which the appellant did for a couple of weeks.

5. From this point, the complainant said she was just doing her best to get by, given her health problems and the need to look after their two children.  She loved her husband, but things were no longer the same.  She said that she was not in a position to leave her husband given how unwell she was, and that she did not have support structures in place.  Her parents were not in a position to provide much assistance.  She came from a religious family and believed in the sanctity of marriage.  She also partly blamed herself and the fact that she was unwell.   

6. Count 3 also occurred while the appellant and complainant were still living at Christies Beach.  While this incident occurred after both her diagnosis and Count 2, the complainant could not say how long after Count 2 it occurred.  It occurred after she was starting to feel a bit stronger, and the appellant had resumed sleeping in the same bed as her.  She recalled going to sleep wearing a nightgown which was a long T-shirt.  She could not recall whether she had underwear on.  When she awoke, she was on her back, and the appellant was holding her arms by her side and having sexual intercourse with her.  Her nightgown had been hoisted up.  She was angry and told him to ‘get off’.  He did not do so straightaway; he continued having intercourse with her for what felt like a minute or two.  She was still waking up and coming to, and froze.  When she woke up properly, she was angry and pushed him off.

7. They had an argument at the time, and he left the room.  However, the next day they had a more significant argument over the incident, and the appellant ended up going to his friend’s place.  As the complainant described the argument, she was crying and angry, and asking why he kept hurting her.  The appellant was apologetic, but at the same time dismissive, and insinuated that what had occurred was not as significant or bad as she was suggesting.

8. Despite all of this, the complainant still wanted to try and make their marriage work.  While things were different, they continued to discuss what had happened as time passed.  But their relationship deteriorated further when the complainant decided to go to university, and start working.  The appellant told her that this was taking her away from her responsibilities as a wife and mother.

9. There was a further incident in August 2019, by which time the appellant and complainant were living together at Lightsview.  The complainant awoke one morning with the same pain in her vagina and some bleeding.  She confronted the appellant about what had happened, resulting in an exchange via Facebook Messenger which became Exhibit P1. The exchange commenced with the complainant asking ‘What did you do’, ‘it still hurts’.  In the lengthy exchange that followed, the appellant described having sexual intercourse with her during the night, and the complainant made it clear that she had no recollection of what had occurred and suggested she was asleep.  At times the appellant appeared to acknowledge as much, referring at one point to the complainant appearing to wake up, and saying that ‘Well apparently you were asleep but it definitely didn’t seem that way.’

10. Following this incident the appellant and complainant separated, although they continued living under the same roof, with the appellant sleeping in the office.

11. There was an occasion in December 2019 when the complainant and the appellant had consensual sexual intercourse, after spending the day together in Hahndorf.  But the complainant made it clear to the appellant at the time that it was not going to happen again, and the appellant said he understood.

12. The complainant covertly recorded a conversation she had with the appellant on 14 December 2019.  The recording was received as Exhibit P2, and included, in the course of a general argument about the state of their relationship, the admissions in the following passage:

    CWhat did you do to me in Christies Beach?  I just want to know that you know.  Can you please tell me you know? 

    AI sexually assaulted you.

    C     Do you just assault me?  What did you do in Christies Beach?  What did you do to me when I was really sick? I just need to know why I’m like the way I am.

    AI know why you are the way you are.

    C     Can you please tell me what you did?

    AI moved on top of you when you were asleep.

    C     No you just straight out that you raped me.

    ALet me finish, I’m sorry I can just walk upstairs right now, I’m sorry did you ask me a question?

    C     Yeah I did.

    AAre you going to wait for my answer?

    C     Yeah.

    AThat’s called patience.

    C     Ok.

    AI started having sex with you when you were asleep and then I stopped.

    C     Did you use protection?

    ANo.

    C     Was it once? Did you make me do this once or did you push me to have sex? Ok was     I completely out of it?

    AYou were very …

    C     Was I responsive at all.

    ANot really, no.

    CDid I tell you very clearly when I started getting sick that I didn’t want any form of sexual encounters until I was a bit better.  Did I tell you very clearly that after we got out of hospital the first time? Say it.

    AWhat do you want me to say?

    C     I just want you to say it.

    AWhere’s your phone.

    C     Ah it’s just here.  I just want you to say it.

    ACan I see it?

    C     No.

13. As mentioned, the admissibility of the recording of this exchange is the subject of Ground 4.

14. Turning to the circumstances of Count 4, on the evening of 25 January 2020, M was unwell with a respiratory virus.  The complainant and appellant had been sitting on the couch together during the evening, watching television.  Their conversation was casual and friendly.  The complainant decided to go to bed.  The appellant asked for a hug good night, which she declined.  The complainant was in her bedroom, attempting to settle her daughter.  The appellant offered to keep her company, saying that he would leave his underwear on.  The complainant agreed.  They were lying on the bed with their daughter between them, and with the appellant lying on top of the blankets.  At some point the complainant fell asleep. 

15. The complainant woke at about 5.00 am.  Their daughter was no longer in the bed, and the appellant was on top of her having penile-vaginal sexual intercourse with her.  The appellant appeared startled, as was the complainant.  The complainant said words to the effect of ‘you might as fucking well’, and about a minute later whilst the appellant continued to have sex with her, she said ‘please don’t ejaculate in me’.  The appellant pulled out and ejaculated onto the sheets.  The complainant left the room, and the appellant followed, saying that he was sorry, that he was seeing red again, and that he didn’t know why it was happening.  He was pleading with her not to tell anyone.

16. The complainant gave evidence that the first person she told about this incident was her friend, Mr C.  She rang him the following morning.  She said that she was hysterical, and that she told him that the appellant had done it again, referring to him having non-consensual sex with her while she was asleep, and saying that he did not use protection. 

17. A few days later, arrangements were made for the appellant to move out of the family home, and they ceased living together.

18. On 8 February 2020, the complainant and appellant had a text message exchange in relation to the incident on 26 January 2020 (Exhibit P3).  It included admissions by the appellant.  For example, in response to the complainant’s description of what occurred (including that the appellant was ‘balls deep’ when she woke up and said that he ‘may as well fucking continue’, and that she had previously told him to leave her alone while she healed), the appellant responded:

    Appellant:Wow that’s most certainly not what happened.  I had just put the tip in as you ‘woke up’ and then you looked at me funny and said ‘OK go on’.

    You said you wanted to the night before but we both decided it would be better if we didn’t.

    And yes you literally said ‘OK go on’ after you opened your eyes.

    …

    Appellant:   Which you did give me consent by saying OK go on.  That’s consent …

    …

    Appellant:I put the tip in then you ‘woke up’ so I pulled out.  Then you said go on.  Then I continued.

19. During cross-examination, the complainant generally maintained her evidence.  She acknowledged that on occasions they had had consensual sex following the birth of their second child.  She agreed that in around June 2017 she was suffering from hallucinations.  She sometimes heard voices, and there were occasions when she sat on the floor and cried.

    Other prosecution witnesses

20. Dr Altree is a general practitioner, who the complainant first consulted on 29 March 2017.  The complainant attended several medical appointments with her during 2017 and 2018, and was prescribed several medications during that period.  On 29 March 2017, the complainant was suffering from an infection following the birth of her second child, and on 28 April 2017 the complainant attended hospital and was diagnosed as experiencing a panic attack. On 26 June 2017, the complainant was diagnosed with postpartum thyroiditis. This caused thyrotoxicosis, which is an elevation in the level of thyroid hormone.  This is likely to have caused the hallucinations which were reported on 26 June 2017.  At the time, the complainant was prescribed anti-anxiety, anti-psychotic and sleep medication.

21. Ms P is a friend of the complainant.  She lived with the complainant and the appellant in their Christies Beach house for a month in 2017.  She gave evidence that she overheard a conversation during which the complainant said that the appellant was ‘inside of her’ while she was asleep, and the appellant said that he did not know that it was wrong.  The conversation ended with the appellant agreeing that he had done something wrong.  Under cross-examination, Ms P agreed that she could not remember the conversation verbatim, but disputed the cross-examiner’s assertion that the conversation never occurred.

22. Mr C is a friend of the complainant.  He gave evidence that he had a telephone conversation with the complainant on the morning of 27 January 2020.  He said that she told him that on 26 January 2020, the appellant had had sex with her while she was asleep and that she had woken to find him about to ejaculate.

23. Mr S is the complainant’s father. In his evidence, he said that on 24 December 2019, the appellant told him that he had sexual intercourse with the complainant while she was asleep.  He also gave evidence that in January 2020, he confronted the appellant during a telephone conversation with what his daughter had told him.  He asked the appellant ‘what the fuck’ he had done to his daughter, or words to that effect.  The appellant said that he had made her a cup of tea, and that she had then been tired and fallen asleep upstairs.  The appellant said that they had sex, saying that they were both consenting adults.  Mr S said that when he interjected that ‘she was asleep’, the appellant said that when she woke up and screamed, he immediately stopped.

24. Mr R is a friend of the complainant and appellant.  He had text message exchanges with the appellant in January 2020 and February 2020, during which the appellant made various admissions.  On 11 January 2020, Mr R messaged the appellant, resulting in an exchange that included the following:[5]

    [5]     Exhibit P6.

    Mr R:        I want you to tell me straight 

    what the fuck did you do?

    no fluffing around

    no sugar coating

    put it on the table

    Appellant:   I’m sorry I’ve caused you distress bud

    [the complainant] and I had an incident in the bedroom, where consent was not adhered to. There was no malicious intent on my behalf but [the complainant] became quite uncomfortable with me after that
    It’s something we weren’t able to work past – there is a bit more background story to it but yeah that’s the primary issue we had
    It’s something I’m seeing a psych about but ya

    Mr R:Thank you, I know it’s a hard thing to talk about.  I’m glad you are going to see someone about it.  I’m sorry to hear this, for both of you

    Appellant:   Yeah I am sorry – Its not something I am proud of at all

25. On 26 February 2020 the appellant and Mr R had a further text message exchange which included further admissions by the appellant:[6]

    Appellant:Telling my part of it will do nothing but make people dislike [the complainant] and I will look like a bad guy – it brings nobody happiness it only brings difficulties.  And what [the complainant] told you is not how it played out.  I had verbal consent from [the complainant] prior to us engaging in acts that day.  I’m sure she conveniently didn’t tell you that

    Mr R:        What about when she was knocked out with meds?

    Appellant:That was rape – well the brief 60s that it lasted comes under that category anyway.

    And that’s something I spent almost 3 years trying to fix

    [6]     Exhibit P6.

    The defence case

26. As mentioned, the defence case in relation to Counts 1, 2 and 3 was that there was no sexual intercourse on the described occasions.  In relation to Count 4, the defence case was that sexual intercourse occurred, but not in the circumstances the complainant described.

27. The appellant gave evidence.  By way of general overview, the effect of his evidence was that he never had sexual intercourse with his wife while she was asleep.  It did not happen on the charged occasions, and nor did it ever happen on any of the uncharged occasions referred to in the evidence.

28. The appellant’s evidence was that the complainant never recovered from her mistaken belief that he had had sex with her on the occasion, while they were living at Christies Beach, when she had a panic attack.  In describing that event, he explained that, earlier that evening, they had both been sitting in bed on their phones.  She told him that her heart was racing, or beating heavily, and had asked him to sit up with her for comfort and in case she had a panic attack.  She fell asleep, but then sat upright from her sleep in a very quick manner, and in a way that she had not done previously.  He went to touch her to ask her if she was okay, and to hold her arm to comfort her.  But she pulled away and kept saying ‘Don’t touch me’.  He moved away to try and make her feel more comfortable, but she got out of bed and went to the bottom of their bed.  She kept telling him not to touch her, and to keep away.  He kept his distance.  She was shouting. Her arms were flailing about, and she sat down in the corner of the room, screaming hysterically, and telling him not to touch her, to stay away from her and not to hurt her.

29. The appellant said that he could hear their daughters crying from the other room, and so he went to attend to them, and to help them get back to sleep.  When he returned to their bedroom, the complainant was asleep, in the foetal position on the ground.  He picked her up, put her back in bed and placed the blanket over her. 

30. The next morning she confronted him in the kitchen, asking ‘What did you do to me last night’.  She accused him of raping her and hurting her.  The accusations continued from that day onwards.

31. The appellant said that they had consensual sex twice after their late 2019 separation, referring to an occasion in December 2019 and a further occasion on 26 January 2020.

32. In relation to the latter, being the occasion of Count 4, the appellant said that he arrived home that evening to find the appellant crying.  He asked her whether she wanted company, and she said yes.  He joined her in bed, in his underwear, and she kissed him.  They continued to kiss until he said ‘I think we probably shouldn’t do this’, and the complainant agreed.  However, when they woke the following morning, the complainant opened her nightgown and kissed the appellant.  He returned the intimacy.  When he was on top of the complainant engaging in sexual intercourse, the complainant made an unusual facial expression involving closing her eyes, which caused him to stop and ask the complainant if she was okay.  The complainant said words to the effect of ‘okay, go on’, and they continued to have penile-vaginal intercourse.

33. In relation to the conversation that Ms P said she overheard, and the conversations that Mr S said he had with the appellant, the appellant denied that these occurred.

34. In relation to the messages between the appellant and the complainant in August 2019, the appellant said that these related to sexual activity that they would normally engage in.  He knew the complainant was not asleep because she was touching him.  The intercourse happened in the morning.  At times her eyes may have been closed, but that was not unusual when they were having sexual intercourse in the morning.

35. Addressing the messages exchanged with the complainant in relation to the incident on 26 January 2020, he said he sent those messages to the complainant because he had learnt that she was telling people that what had occurred was not consensual.  Despite saying in the message that he had ‘just put the tip in’ before she woke and said that it was ‘okay’ for him to continue, he was actually referring to placing his penis at the entrance of her vagina.

36. The appellant said that his communications with Mr R reminded him of arguments with the complainant.  He responded the way he did so he could ‘keep the door somewhat open’ if Mr R was interested in hearing his side.  But Mr R’s language (such as the reference to ‘knocked out with meds’) reminded him of how the complainant spoke to him.  He formed the impression that Mr R did not want to hear his side of the story, so he told Mr R what he believed he wanted to hear.

1. The appellant gave evidence that he had no prior convictions.

   The trial judge’s summing up

2. As several of the appellant’s grounds of appeal involve complaints about the directions given by the trial judge, it is convenient to provide an overview of the critical aspects of her summing up.

3. After setting out various of the standard general directions, the trial judge set out the elements of the charge of rape.  The judge also provided the jury with an aide memoire setting out the elements of that offence.  The judge explained that the prosecution case in relation to all four counts was that the complainant was asleep at the time that the appellant initially penetrated her vagina with his penis; and that the appellant must have known she was asleep and not consenting, or at the very least was recklessly indifferent to the fact that she was asleep and not consenting.

4. The trial judge provided an essentially chronological summary of the prosecution evidence, including not only the complainant’s evidence of the various charged and charged acts, but also the evidence from the other prosecution witnesses outlined above.

5. The trial judge reminded the jury that the defence case was that the first three charged incidents did not occur, and that the sexual intercourse the subject of the fourth count was consensual.  Her Honour also summarised the appellant’s evidence in terms similar to the summary set out above.

6. The trial judge then gave a number of directions intended to assist the jury in their consideration of the evidence.  Her Honour gave the following directions in relation to the complainant’s evidence as to her suspicions that there had been other (uncharged) occasions when the appellant had sexual intercourse with her while she was asleep:[7]

   [1]Can I then turn to give you a direction about how you may use the evidence about the complainant’s suspicion that there were other acts that were committed when she was asleep but did not wake up and how you must not use that evidence.

   [2]I reminded you about her evidence that she believes that there were occasions when the accused had sex with her when she was asleep based on the symptoms that she had when she woke up.  Her evidence was essentially that those occasions were between count 1 and count 2 as well as leading up to August 2019 which led to the text messages in P1.

   [3]That evidence about her suspicions is only before you to give context for conversations that she says that she had with the accused between counts 1 and 2 and in August 2019 including the text messages that are in P1.  If you did not have her evidence about that then those conversations might not make sense, and indeed the text messages in P1 might not make sense.  So it was important that you know what prompted her to write those text messages to the accused which you can see in Exhibit P1.

   [4]On the prosecution case her evidence about those suspicions gives that context of their ongoing conversations about consent and explains the basis for what they are talking about in P1.

   [5]I direct you that you must not reason from her evidence of her suspicion that he had sex with her on other occasions when she was asleep and did not wake up that the accused is more likely to be guilty of one or more of the charged occasions.  That evidence about her suspicions is not given to simply blacken his character so as to make you think that he is a bad person and therefore the sort of person who is more likely to have committed one or more of the charged offences.

   [6]It is before you for a limited purpose as I have described and you can only use that evidence for that limited purpose.

   [7]     Numbering inserted for ease of later cross-reference.

7. The trial judge gave an orthodox ‘separate consideration’ direction, emphasising that the jury should consider their verdict in relation to each count separately.  Her Honour then addressed the scope for the jury to engage in a form of propensity reasoning.  After mentioning the prosecutor’s reference to this evidence, her Honour directed the jury as follows:

   [7]The prosecution submits to you that the evidence of [the complainant] as a whole, if you accept it, shows that the accused had a propensity to commence vaginal-penile sexual intercourse with her when she was asleep.  So I need to direct you about that.

   [8]If you are satisfied from the evidence that the accused had such a propensity then you must not reason simplistically that well he has got that propensity, he is a bad person and more likely to have committed these crimes.

   [9]The process of reasoning cannot be that he has raped his wife once when she was asleep and that is enough to prove that he is more likely to have committed the other rapes.  You must not reason that he has a propensity for this and so is more likely to have committed all of these offences.

   [10]You may only use evidence of such a propensity, if you find that he had one, as one piece of evidence when you come to consider a particular count.  Let me try and explain what I mean with an example.

   [11]When you come to consider count 4 you will of course consider the evidence of what [the complainant] said about that occasion, relevant text messages, the evidence from the complainant’s father as to whether the accused made an admission and the accused’s evidence as well.

   [12]If you had also found that the accused has a propensity to commence sexual intercourse with his wife when she was asleep, when considering count 4 you may only use that evidence of propensity as one piece of evidence in conjunction with all the other evidence and circumstances relating to that count.

   [13]Evidence of propensity could not and does not prove count 4 on its own.

   [14]Ultimately, as [the prosecutor] said, you do not have to make any findings about propensity in order to convict the accused.  If you are not satisfied that the accused had a propensity then you would consider the evidence relating to each count in any event and consider each count separately as you need to anyway.

   [15]The prosecution says to you that you do not have to be satisfied about propensity in order to be satisfied that the accused committed the offence under your consideration.

8. The trial judge gave standard directions in relation to the assessment of witnesses.  Her Honour then addressed the complaint evidence given by Mr C, and the use that might be made of that evidence in assessing the complainant’s credibility in relation to Count 4.  No challenge is made to these directions.

9. The trial judge next gave some relatively detailed directions in relation to the evidence of admissions said to have been made by the appellant in conversations, text messages and, in one case, a voice recording.  The judge summarised the key aspects of the evidence in relation to each, and the defence response to each.  Her Honour identified the counts or occasions to which each of the alleged admissions related, and the matters the jury might consider in weighing that evidence.  Again, no complaint is made about these directions.

10. The trial judge emphasised that there was no need for the defence to identify any motive for the complainant to lie, or to demonstrate that she had lied.  Rather, it was for the prosecution to prove its case, and thus for the prosecution to satisfy the jury that the complainant was a credible and reliable witness.

11. The trial judge concluded with summaries of the addresses of both the prosecutor and defence counsel.  This included reference to the prosecutor’s submission to the effect that the evidence showed that the appellant ‘had a modus operandi of engaging in sexual intercourse with the complainant when she was asleep’, and to her earlier legal directions about propensity reasoning.

12. Neither counsel made any complaints about the directions given.  The jury ultimately returned verdicts of guilty on Counts 2 and 4, but were unable to reach verdicts on Counts 1 and 3.

    Ground 1: admissibility of the evidence of discreditable conduct

13. As summarised above, the prosecution case included evidence of not only the four charged acts, but also other uncharged instances of the appellant engaging in sexual intercourse with the complainant while she was asleep. This included evidence from the complainant, as well as evidence of various admissions by the appellant. There is no dispute that this was evidence of discreditable conduct for the purposes of s 34P of the Evidence Act 1929 (SA).

14. The prosecution filed a notice of its intention to adduce this evidence, and to rely upon it for two ‘specific propensity’ uses under s 34P(2)(b) of the Evidence Act, namely as probative of:

    1.a modus operandi of committing rape in a particular way (namely, while the complainant was asleep, and not consenting, with the appellant knowing (or being recklessly indifferent) of this lack of consent); and/or

    2.the appellant having a sexual interest in the complainant and a preparedness to act upon it while the complainant was asleep.

15. Each of these was said, in relation to each charged count, to be a piece of circumstantial evidence which made it more likely that the appellant engaged in the charged conduct.

16. Consistently with this, the prosecutor submitted, in both his opening and closing address, that the evidence established that the appellant had a propensity to commence penile-vaginal intercourse with the complainant while she was asleep, and that this propensity was probative of whether (or made it more likely that) the appellant engaged in each of the charged acts.  As set out earlier, the trial judge directed the jury in similar terms.

17. At trial, the appellant did not object to the admission of this evidence, or to the submissions and directions in relation to this evidence.

18. In Ground 1, the appellant now contends that the evidence of the charged and uncharged instances of the appellant engaging in sexual intercourse with the complainant while she was asleep was not admissible for a propensity purpose.  As no objection was taken to this evidence at trial, it cannot be said that that there was a wrong decision on any question of law.[8]  However, the appellant contends that the admission of this evidence nevertheless resulted in a miscarriage of justice.[9]

    [8] For the purposes of s 158(1)(b) of the Criminal Procedure Act 1921 (SA).

    [9]     Criminal Procedure Act, s 158(1)(c).

19. In order to be admissible for a propensity use under s 34P(2) of the Evidence Act, it was necessary that the impugned evidence not only have a probative value that outweighed any prejudicial effect it may have on the defendant (s 34P(2)(a)), but also that it had a ‘strong probative value’ having regard to the issues arising at trial (s 34P(2)(b)).

20. The respondent contends that the evidence of the appellant’s propensity to engage in penile-vaginal intercourse with his wife while she was asleep was admissible as a piece of circumstantial evidence that was not only more probative than prejudicial, but also had strong probative value in the proof of each of the charged acts.  The appellant, on the other hand, disputes that the evidence revealed any propensity with the requisite strong probative value.

21. In Hughes v The Queen,[10] when considering the admissibility of tendency evidence under the uniform evidence legislation, the plurality described the probative value of such evidence in the following terms:[11]

    The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.  Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.  The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.  The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings.  The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.  The facts in issue in a criminal proceeding are those which establish the elements of the offence.

    [10]   Hughes v The Queen (2017) 263 CLR 338.

    [11]   Hughes v The Queen (2017) 263 CLR 338 at [16] (Kiefel CJ, Bell, Keane and Edelman JJ) (omitting citations).

22. In applying this passage in TL v The King,[12] the High Court emphasised that the probative value of the evidence said to establish a propensity on the part of the accused must be considered both having regard to the evidence taken at its highest, and having regard to the other evidence in the case.  Their Honours said:[13]

    For evidence to have ‘significant probative value’, it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged’; in other words, the evidence must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue.  It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

    [12]   TL v The King (2022) 275 CLR 83.

    [13]   TL v The King (2022) 275 CLR 83 at [28] (the Court) (omitting citations).

23. In determining whether evidence of a propensity to have a particular state of mind, or to act in a particular way, has the requisite probative value, it is necessary to consider two interrelated matters.  First, the capacity for the evidence to support or establish the propensity relied upon.  And secondly, the capacity for that propensity to be probative of (or make more likely) the charged conduct or a fact in issue.[14]

    [14]   Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ), [89]-[94] Gageler J); McPhillamy v The Queen (2018) 92 ALJR 1045 at [26] (Kiefel CJ, Bell, Keane and Nettle JJ); TL v The King (2022) 275 CLR 83 at [31] (the Court).

24. As a general proposition, it may be said that, while a propensity expressed at a high level of generality might be more easily established, a propensity expressed at a level of particularity or specificity is more likely to have the requisite significant probative value.[15]

    [15]   Hughes v The Queen (2017) 263 CLR 338 at [64] (Kiefel CJ, Bell, Keane and Edelman JJ), [93]-[94] (Gageler J); TL v The King (2022) 275 CLR 83 at [29] (the Court).

25. However, the probative value of propensity evidence will depend to some extent upon the issue it is adduced to prove.  Where a propensity to act in a particular way is adduced to prove the identity of the offender for a known offence, the probative value of the propensity will generally depend upon a close similarity between the conduct evidencing the propensity and the offence.  However, different considerations may inform the probative value of the propensity where the fact in issue is the occurrence of the offence.[16]  In particular, there need not be any striking pattern of similarity, or commonality of modus operandi, between the incidents for the evidence to have the requisite probative value.[17] An inclination and preparedness to act in a manner which is unusual as a matter of human experience may suffice to establish the requisite significant probative value.[18]  It may suffice to make a complainant’s evidence as to the accused’s conduct, which might otherwise appear improbable having regard to ordinary human experience, significantly more likely to be truthful and reliable.[19]

    [16]   Hughes v The Queen (2017) 263 CLR 338 at [39] (Kiefel CJ, Bell, Keane and Edelman JJ).

    [17]   Hughes v The Queen (2017) 263 CLR 338 at [34], [37], [57] (Kiefel CJ, Bell, Keane and Edelman JJ), [103]-[104] (Gageler J); as mentioned below, that is particularly so in the case of evidence of a sexual interest or attraction, with a preparedness to act on it, in a single complainant case (R v Bauer (a pseudonym) (2018) 266 CLR 56 at [48]-[51], [60], [62] (the Court)).

    [18]   Hughes v The Queen (2017) 263 CLR 338 at [57] (Kiefel CJ, Bell, Keane and Edelman JJ).

    [19]   Hughes v The Queen (2017) 263 CLR 338 at [60] (Kiefel CJ, Bell, Keane and Edelman JJ).

26. For example, in R v Ford,[20] the accused was charged with sexual intercourse without consent. At trial the prosecution sought to lead evidence of indecent assaults committed by the accused against two other complainants, as evidence of the accused’s tendency to sexually assault women who had fallen asleep at his home after drinking. While the defence pointed to differences in the nature of the sexual conduct on each occasion, it was held on appeal that this did not deprive the evidence of the requisite significant probative value. Campbell JA, giving the leading judgment in the New South Wales Court of Criminal Appeal, rejected the suggested need to establish a tendency to commit acts closely similar to the acts constituting the charged offence. Evidence that, on three occasions, the accused had sexually assaulted an intoxicated woman who had fallen asleep at his home demonstrated a tendency to act in a particular way which was ‘fairly unusual’,[21] and had significant probative value in the context of the issues in the trial (namely, the credibility and reliability of the complainant’s evidence to the effect that the accused had sexual intercourse with her without her consent). It was not necessary that there be a striking pattern of similarity between the incidents; or that there be a tendency to act in a compellingly rare or exceptional manner.[22] 

    [20]   R v Ford (2009) 201 A Crim R 451.

    [21]   R v Ford (2009) 201 A Crim R 451 at [44] (Campbell JA).

    [22]   R v Ford (2009) 201 A Crim R 451 at [125]-[127] (Campbell JA).

27. The plurality of the High Court in Hughes v The Queen expressly approved this aspect of Campbell JA’s reasoning in R v Ford.[23] 

    [23]   Hughes v The Queen (2017) 263 CLR 338 at [25]-[26] (Kiefel CJ, Bell, Keane and Edelman JJ), [176] (Nettle J).

28. Here, the trial judge articulated the propensity relied upon by the prosecution as a propensity on the part of the appellant to commence penile-vaginal sexual intercourse with the complainant, his wife, while she was asleep.  The propensity or disposition might equally have been described as a sexual interest in the complainant, which he was prepared to act upon while she was asleep.[24] 

    [24]   Or, indeed, an interest in having sexual intercourse with the complainant while she was asleep, and a preparedness to act on that interest.

29. Starting with the existence of the contended propensity, there was relatively strong evidence in support of the alleged propensity.  Not only did the complainant give evidence of the four charged instances of the appellant commencing penile-vaginal intercourse with her while she was asleep, she also gave evidence of at least a couple of uncharged instances of such conduct.  In addition to this evidence, there was also evidence (oral and written, and from the complainant and others) of various admissions by the appellant that he had engaged in such conduct.  In summary, there was a significant volume of evidence suggesting a number of occasions, over a relatively lengthy period of time, of the appellant acting in accordance with the contended propensity. 

30. As to the capacity for the contended propensity to be probative of a fact in issue, it has been held that, in a single complainant case, evidence of a sexual interest and preparedness to act upon it, will generally have significant probative value, at least where the alleged incidents are close in time and involve sexual offences which are generally similar in nature and gravity.[25]

    [25]   R v Bauer (a pseudonym) (2018) 266 CLR 56 at [48]-[51], [60], [62] (the Court); HML v The Queen (2008) 235 CLR 334 at [109] (Hayne J, Gummow and Kirby JJ agreeing), [272] (Heydon J).

1. However, these observations must be approached with caution in a case, such as the present, where there is nothing unusual, let alone inappropriate, about the accused having a sexual attraction to, or interest in, the complainant.  Far from being unusual, such attraction or interest, and a preparedness to act upon it, is entirely to be expected in the case of an accused who is married to the complainant.

2. The critical aspect of the propensity relied upon in the present case was the appellant’s preparedness to act upon his sexual interest in the complainant whilst she was asleep.  It would seem that the explanation for the appellant commencing intercourse with the complainant while she was asleep was the likelihood that she would refuse if he attempted while she was awake, particularly in the period when the complainant was experiencing vaginal pain and bleeding, and difficulty healing, following the birth of her second child.  However, it is not necessary to examine in any detail the reason for the accused acting in the manner alleged.  It is sufficient and appropriate to consider the propensity in the terms the trial judge described it; namely, as a propensity to commence penile-vaginal sexual intercourse with the complainant while she was asleep.

3. As described, this involves a propensity to act in a way which was not only inappropriate, but also, as a matter of human experience, unusual.  Regardless of the explanation, it may be accepted that it is unusual for a person to engage in sexual activity with their partner while that person is asleep.  And in this case, the evidence was to the effect that the appellant did so on a number of occasions, in each case involving generally similar sexual acts (that is, penile-vaginal intercourse). 

4. In our view, the evidence of the appellant’s propensity had the requisite strong probative value in respect of each of the charged acts of sexual intercourse.  In the case of each count, the evidence of the appellant’s propensity to engage in penile-vaginal intercourse with the complainant while she was asleep made it significantly more likely that the complainant’s evidence to the effect that this occurred on each charged occasion was accurate.  Indeed, in the course of his submissions on appeal, the appellant effectively conceded that this was so in relation to Counts 1, 2 and 3, but maintained that the requisite probative value did not exist in relation to Count 4.  The appellant focussed on Count 4 for two reasons; because it was temporally removed from the earlier counts, and because the issue in relation to that count was one of consent rather than whether the sexual intercourse occurred at all.

5. As to the first of these reasons for focussing on Count 4, the earlier counts each occurred in around mid 2017, whereas Count 4 did not occur until about two and a half years later, in January 2020.  While this gap in the timing is relevant to the probative value of the propensity in respect of Count 4, we do not think it is sufficient to deny it the requisite strong probative value.  That is particularly so in circumstances where the evidence in support of the propensity included evidence of at least some instances of the appellant acting in the relevant way in the intervening period (including the evidence of admissions made by the appellant in August 2019 and December 2019).  Even though the complainant’s particular difficulties with engaging in sexual intercourse following the birth of M had presumably subsided, and there was evidence of at least two occasions of consensual intercourse between the complainant and appellant in the intervening period, it would seem that the complainant remained generally opposed to engaging in sexual intercourse with the appellant. In our view, although the appellant’s propensity to engage in sexual intercourse with the complainant while she was asleep was most clearly demonstrated through the evidence of events that occurred in mid 2017, its nature was such that it was still strongly probative of what occurred in early 2020.

6. As to the second of the reasons for focussing on Count 4, Phillips v The Queen[26] is authority for the proposition that evidence of an accused’s propensity to have a particular state of mind, or to act in a particular way, is most naturally probative of an issue relating to the accused’s state of mind or behaviour on a particular occasion.  For that reason, in a multiple complainant sex case, when the issue is whether one complainant consented to a sexual act, evidence that other complainants did not consent on other occasions may not have the requisite probative value.

   [26]   Phillips v The Queen (2006) 225 CLR 303 at [46]-[50] (the Court).

7. It is true that in the present case, the defence case in relation to Count 4 was confined to the issue of consent.  The defence case accepted that the appellant engaged in sexual intercourse with the complainant on the occasion described by the complainant, but was to the effect that the prosecution had not proved that he did so without the complainant’s consent.  On the appellant’s evidence, the complainant was awake, and consented to the sexual intercourse from its commencement.  However, properly understood, the issue in relation to Count 4 was not simply one turning exclusively upon an examination of consent, in the sense of the complainant’s state of mind.  The issue included – and, practically speaking, turned upon – consideration of whether the complainant was awake at the time the sexual intercourse commenced; and in circumstances where, even on the appellant’s evidence, the complainant had been asleep immediately prior to the sexual intercourse commencing.  In other words, it can fairly be said that the issue on Count 4 turned upon whether or not the prosecution had proved beyond reasonable doubt that the complainant, as she alleged, was asleep at the time the appellant commenced having sexual intercourse with her.  The issue of whether the complainant was asleep or awake was, in effect, a proxy for the issue of consent.  In these circumstances, the alleged propensity was probative of the fact in issue in relation to Count 4.  The evidence that the appellant had a propensity to commence sexual intercourse with the complainant while she was asleep was probative of, and in our view strongly probative of, whether the complainant was asleep at the commencement of the sexual intercourse the subject of Count 4.

8. The appellant also argues that because the evidence of the appellant’s propensity was grounded in evidence given by the complainant, there was a circularity in then relying upon this propensity as a circumstantial fact in support of the complainant’s evidence in respect of the individual counts.  The first point to make in response to this argument is that the evidence of the propensity did not emanate entirely from the complainant.  Whilst it all related to incidents alleged by the complainant, some of the evidence relied upon in support of the propensity was in the form of admissions made by the appellant, both in writing and to witnesses other than the complainant.  Secondly, and in any event, whilst it is relevant, when assessing the probative value of the evidence in support of a propensity, that it is grounded largely in evidence emanating from the complainant, this does not involve any impermissible circularity, or necessarily deprive the evidence of the requisite probative value.  Relying upon passages from their earlier decision in HML v The Queen,[27] the High Court confirmed as much in the following passage from their reasons in R v Bauer (a pseudonym):[28] 

   And the fact of itself that the evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value.  Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant’s account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt[29] and so, therefore, may be seen as significantly probative of the accused’s guilt of the charged offences.

   [27]   HML v The Queen (2008) 235 CLR 334.

   [28]   R v Bauer (a pseudonym) (2018) 266 CLR 56 at [51] (the Court).

   [29]   HML v The Queen (2008) 235 CLR 334 at 427 [280] (Heydon J). See also at 402 [182]-[184] per Hayne J (Gummow J agreeing at 362 [41]). And necessarily implicit in reasons of Gleeson CJ, Kirby J and Kiefel J.

9. For the reasons set out, the evidence of the appellant’s propensity to commence penile-vaginal sexual intercourse with the complainant while she was asleep had strong probative value in respect of each of the charged counts.

10. As for the prejudice potentially associated with the admission of the evidence of the appellant’s propensity, the plurality in Hughes v The Queen summarised the potential sources of prejudice arising from such evidence as follows:[30]

    The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways.  The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue.  Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way.  In either case the tendency evidence may be given disproportionate weight.  In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence.  And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

    [30]   Hughes v The Queen (2017) 263 CLR 338 at [17] (Kiefel CJ, Bell, Keane and Edelman JJ) (omitting citations).

11. The appellant did not challenge the capacity for the trial judge in the present case to adequately address the potential prejudice through appropriate directions to the jury.  In our view, it was capable of being addressed in this way.  Assuming proper directions, the probative value of the evidence outweighed its potential prejudice.

12. The evidence of the appellant’s discreditable propensity was admissible.  Ground 1 has not been made out.

    Grounds 2 & 3:  directions in relation to the evidence of discreditable conduct

13. Under Grounds 2 and 3 the appellant makes various challenges to the directions given by the trial judge in relation to the evidence of the appellant’s discreditable conduct.

14. It is appropriate to address each in turn, however, before doing so, it is useful to refer back to the directions given by the trial judge.  It will be recalled that in paragraphs [1]-[6] of the directions extracted earlier, the trial judge made it plain that the complainant’s evidence of her suspicions that the appellant had been engaging in sexual intercourse with her while she was asleep was only to be used for a limited purpose, namely in contextualising her conversations with the appellant in mid 2017, in August 2019, and the exchange of messages in Exhibit P1.  This evidence was not to be used as directly probative of the charged acts. 

15. Turning to the trial judge’s directions in paragraphs [7]-[15] as to the evidence of the appellant’s propensity to commence penile-vaginal sexual intercourse with the complainant while she was asleep, her Honour explained that the prosecution relied upon the complainant’s evidence ‘as a whole’ in support of this propensity (paragraph [7]).  The trial judge warned against engaging in bad person reasoning, or any other impermissibly simplistic propensity reasoning, in respect of this evidence (paragraphs [8]-[9]).  In paragraph [10], the trial judge described the permissible form of propensity reasoning, explaining that the propensity, if found, may be used as ‘one piece of evidence’ in support of a particular count.  In paragraphs [11]-[12], her Honour illustrated this permissible reasoning process by reference to Count 4, explaining that if the jury found that the appellant had the propensity, they could use it as one piece of evidence in conjunction with all of the other evidence in relation to that count.  The judge told the jury that the evidence of the propensity could not prove a count on its own (paragraph [13]).  On the other hand, the existence of the propensity was not necessary for the prosecution case to succeed (paragraphs [14]-[15]).

16. Speaking generally, the trial judge’s explanation of the permissible use to be made of the evidence of the appellant’s propensity was consistent with the approach to propensity evidence recently explained by the High Court in DPP v Roder (a pseudonym).[31]  In that case, the Court emphasised that propensity evidence is a form of circumstantial evidence.[32]  The propensity itself is an intermediate fact that the prosecution seeks to establish and rely on as circumstantial proof of the elements of the relevant offence.  Referring to the reasons of the plurality in Hughes v The Queen,[33] the High Court explained that the trier of fact reasons from satisfaction that a person has a propensity to have a particular state of mind, or to act in a particular way, to then determining the likelihood that the accused had the particular state of mind, or acted in the particular way, on the occasion in issue.

    [31]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644.

    [32]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644 at [23]-[24] (the Court).

    [33]   Hughes v The Queen (2017) 263 CLR 338 at [16] (Kiefel CJ, Bell, Keane and Edelman JJ).

17. The Court later summarised the directions that should be given to a jury:[34]

    … in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given.  Such a direction should not direct or invite the jury to make findings in respect of the charged conduct, but instead should indicate the evidence relied on to support the alleged tendency,[35] direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged.

    [34]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644 at [37] (the Court).

    [35]   JS v The Queen [2022] NSWCCA 145 at [43]; see also Jury Directions Act 2015 (Vic), s 27(3)(a).

18. The appellant complains that in directing the jury as to the evidence relevant to establishing the appellant’s propensity, the trial judge directed them to have regard to the evidence of the complainant ‘as a whole’.  This was said to be problematic for several reasons. 

19. The first was because this included reference to the complainant’s evidence in relation to her suspicions and in relation to her complaint to Mr C; and did not provide any guidance in relation to the jury’s use of the complainant’s evidence in relation to admissions (such as the count or counts to which each such admission related).  This concern is misplaced.  The jury would have understood that in considering the complainant’s evidence for the purpose of considering whether the alleged propensity had been established, they should do so in accordance with the balance of the judge’s directions.  They would have understood that this included the judge’s directions in relation to the limited use to which the complainant’s evidence of her suspicions, and of her complaint to Mr C, could be used, and the judge’s detailed directions in relation to each of the alleged admissions and the counts or conduct to which they each related.

20. The second was a submission that, by the trial judge referring to the complainant’s evidence, the jury may have understood that they should ignore the appellant’s evidence in deciding whether the propensity was established.  In our view, this involves an artificial approach to the judge’s directions.  While the prosecution relied (primarily) upon the complainant’s evidence to establish the propensity, the jury would have understood that in assessing whether that evidence established the propensity, they should assess it in the context of the evidence in the case as a whole, including not only the defence challenges to that evidence but also the evidence of the appellant.

21. The third was that the judge erred in giving directions that encouraged, or at least permitted, the jury, when considering each particular charge, to include the evidence of that charge within the evidence said to support the existence of the propensity relied upon in proof of that charge.  However, directing the jury in this way did not involve any error.  To the contrary, it was consistent with the approach required by the High Court in DPP v Roder (a pseudonym).[36]  In rejecting an equivalent submission in that case, the High Court said that in considering the significance of a propensity to a particular charged act, the jury should be told they may have regard to all of the evidence in support of that propensity, including the evidence of that charged act.

    [36]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644 at [32]-[35] (the Court).

22. The fourth was a submission that, at least when relying upon the other charged acts in support of the alleged propensity, the jury should have been directed that they needed to be satisfied not only that those acts occurred, but also satisfied beyond reasonable doubt that they occurred.  However, the answer to these submissions may again be found in the reasons of the High Court in DPP v Roder (a pseudonym).[37] As the High Court explained in that case, the circumstantial fact relied upon by the prosecution in a case such as the present is the propensity itself, and not any particular charged or uncharged act upon which it is based.  It follows that the jury need not – indeed should not – be told that they must be satisfied of the commission of any particular act, let alone satisfied beyond reasonable doubt of the commission of any such act, before they may rely upon the propensity as an item of circumstantial evidence in support of the charged conduct.  To the extent that there is any tension between this approach, and what fell from Kourakis CJ in R v C,CA,[38] the more recent observations of the High Court must be followed.

    [37]   DPP v Roder (a pseudonym) (2024) 98 ALJR 644 at [1]-[2], [24]-[28], [37] (the Court).

    [38]   R v C, CA [2013] SASCFC 137 at [68]-[69] (Kourakis CJ).

23. The fifth involved a complaint that the trial judge failed to identify the nature of the issues in respect of each charge to which the propensity was relevant, and in particular failed to explain the significance of the difference between the issue that arose in respect of Counts 1, 2 and 3 (whether the charged conduct occurred at all), and Count 4 (whether the complainant consented to the sexual intercourse).  We do not accept that there is merit in this complaint.  The judge elsewhere explained the different nature of the issues that arose in relation to each of the charges.  We do not think this required repetition or elaboration in the context of explaining the jury’s use of the evidence of the alleged propensity.  As the alleged propensity was described in terms of the appellant’s propensity to commence penile-vaginal sexual intercourse while the complainant was asleep, the jury would have understood that, in relation to each count, the propensity was relevant to the jury’s consideration of whether the appellant commenced the sexual intercourse described by the complainant while she was asleep. 

24. Finally, the appellant complained that the trial judge failed to give any separate directions in relation to the use to be made of the uncharged acts.  We do not accept this complaint.  The directions in paragraphs [7]-[15] were plainly intended to address all of the evidence relied upon in support of the alleged propensity; that is, the evidence of both the charged and uncharged acts relied upon in support of that propensity.

1. The offending alleged in the present case was undoubtedly serious, being four counts of rape.  The recording was deliberate, and undertaken covertly, albeit that the evidence does not reveal whether the complainant knew it was unlawful for her to record the conversation.  On the other hand, the complainant made the recording for her own purposes, not intending or contemplating at the time that it might be deployed in legal proceedings against the appellant. While the complainant directed the conversation towards the allegations of rape with a view to having the appellant make admissions, this was a natural part of their conversation about the difficulties in their relationship.  More importantly, there does not seem to be anything about the nature or content of the conversation that tended to undermine the cogency of the statements made by the appellant, including the admissions made.  The probative value of the recording was high, involving relatively clear admissions by the appellant of his conduct in sexually assaulting the complainant while she was asleep.

2. It is to be acknowledged that the recording was made in circumstances that were contrary to the legislative protection intended for private conversations under s 4(1) of the Surveillance Devices Act. On the other hand, when considering the Court’s discretion to exclude the evidence, it is significant that the recording was made by an individual believing it was in her own interests to do so, rather than by (or at the instigation of) some law enforcement authority for the purposes of gathering evidence for use in criminal proceedings.  Admission of the evidence would assist in ensuring that the trial encompassed all relevant evidence, without incentivising any misconduct by law enforcement authorities.

3. In our view, the balance fell in favour of receiving the evidence of the admissions covertly recorded by the complainant.  We would thus reject the challenge to the admissibility of this evidence.[57]

   [57]   See, for example, the similar reasoning and conclusions in Sepulveda v The Queen (2006) 167 A Crim R 108 at [149] (Johnson J, McClellan CJ at CL and Hislop J agreeing), and DW v The Queen (2014) 239 A Crim R 192 at [62]-[67] (Ward JA, Harrison and RA Hulme JJ agreeing).

4. It follows that the recording of the 14 December 2019 conversation between the complainant and appellant, and in particular the admissions contained in that conversation, was admissible.  The error contended in Ground 4 has not been made out.

   Ground 5:  directions in relation to the complainant’s health and medication

5. It will be recalled from the earlier summary of the prosecution evidence that both the complainant, and her general practitioner (Dr Altree), gave evidence about the difficulties the complainant experienced, and the medication she was prescribed, in the period following the birth of her second daughter.  As the complainant explained, in the period from around March to June 2017, she was experiencing symptoms including not only vaginal pain and bleeding, but also blurry vision, a rapid heart-rate, high blood pressure, fatigue, nausea and weakness.  Her symptoms also included episodes of auditory hallucinations, and one occasion when she experienced a visual hallucination (in which she saw a red demon).  She consulted Dr Altree, and attended hospital on two occasions, reporting the symptoms just described, and was diagnosed as suffering from postpartum thyroiditis and thyrotoxicosis.  The latter involves an elevation in the level of thyroid hormone, and according to Dr Altree was possibly the cause of the visual hallucination reported on 26 June 2017.  The complainant was prescribed anti-anxiety, anti-psychotic and sleep medication.

6. Related to this evidence, the complainant acknowledged that there was an occasion between Counts 1 and 2 when she awoke startled in the night.  She was apparently having some kind of panic attack, went and sat in the corner of the bedroom, and told the appellant not to touch her, and to get away from her.  On her evidence, this panic attack had nothing to do with the occasions when she was raped.  On the appellant’s evidence, the complainant had panic attacks on more than one occasion, and she had falsely accused him of raping her on one of these occasions.

7. In Ground 5, the appellant complains that the trial judge failed to adequately direct the jury in relation to the evidence as to the complainant’s physical and mental health, and medication, including her history of hallucinations; and, in particular, failed to direct the jury as to the significance of this evidence in their assessment of the complainant’s evidence to the effect that the appellant engaged in sexual intercourse with her while she was asleep.  Relying upon Bromley v The Queen,[58] the appellant argues that the trial judge ought to have given the jury some kind of warning as to the potential unreliability of the complainant’s evidence.

   [58]   Bromley v The Queen (1986) 161 CLR 315.

8. In Bromley v The Queen, a critical witness was schizophrenic and was shown to have had, on the night in question, an episode of the illness that required admission to a mental hospital.  In those circumstances, the Court held that the jury should have been given a clear warning of the possible danger of basing a conviction on the witness’ unconfirmed evidence.  Gibbs CJ explained:[59]

   What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. …

   If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence.  The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.  There is no particular formula that must be used; the words used must depend on the circumstances of the case.

   [59]   Bromley v The Queen (1986) 161 CLR 315 at 319 (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing).

9. In his separate reasons, Brennan J emphasised that a specific warning will not usually be required if the danger is one equally obvious to the lay mind, and not one in respect of which the Court has some special knowledge.  Similarly, in cases where the severity and significance of the witness’ disorder is apparent from the evidence given by the witness (and a person qualified to explain the disorder), then this may be sufficient to explain the danger to the jury.  There is no fixed or universal rule as to what, if anything, must be said to explain any danger of unreliability in the witness’ evidence.  The possibility of a miscarriage of justice is both the occasion for giving a warning, and the determinant of its content.[60]

   [60]   Bromley v The Queen (1986) 161 CLR 315 at 324-325 (Brennan J).

10. In some cases, a warning about the danger of unreliability in a witness’ evidence should be given in terms that the impugned evidence should be scrutinised with care, and should be given judicial imprimatur.  In other case, it will be sufficient that the jury is reminded of the potential for unreliability by reference to the evidence and submissions at trial.[61]

    [61]   See, for example, R v Tran (2009) 198 A Crim R 23 at [23]-[26] (Bleby J, Anderson J agreeing), [102] (White J); and R v Lindsay (2016) 126 SASR 362 at [21]-[30] (Vanstone J, Kelly and Blue JJ agreeing).

11. In the present case, both the complainant and Dr Altree gave clear and consistent evidence about the health difficulties experienced, and medication taken, by the complainant.  The trial judge referred to that evidence in her summing up.  Her Honour also referred to the submissions made by the prosecutor and defence counsel in relation to that evidence.  The latter included a reminder of defence counsel’s submissions to the effect that the jury must consider the complainant’s credibility and reliability; that she might have looked like she was trying to tell the truth, but that an important issue was whether she was reliable; that there was evidence she was quite unwell in 2017 and had experienced hallucinations; that she might have convinced herself that something happened when in fact it did not; and that they should be careful about putting too much weight on her demeanour.

12. In our view, the directions given were adequate to ensure that the jury considered the complainant’s health and medication when assessing the credibility and reliability of her evidence, and that the jury properly understood the significance of this evidence. In circumstances where the complainant demonstrated through her evidence an awareness of the symptoms she was experiencing, and was able to separate the one episode of visual hallucinations which she did experience, from the occasions on which she says she was raped, the issue was one best left for the jury’s own consideration.  The danger of unreliability relied upon by defence counsel was obvious, and able to be assessed by the jury.  We do not think that any separate or more specific direction carrying the imprimatur of the trial judge was required, or indeed appropriate. 

13. We are satisfied that no miscarriage of justice has been established.  We are reinforced in this view by the fact that trial counsel did not seek any redirection, or additional directions, in relation to the significance of the complainant’s health and medication to the jury’s assessment of her evidence.  Ground 5 has not been made out.

    Ground 6:  prosecution submission of recent invention

14. In his closing address, the prosecutor challenged the credibility of the appellant’s version of events.  His submissions included:

    Obviously I’ve suggested a number of times that you should reject certain pieces of his evidence.  Now, no doubt there will be some things that he said that you accept, some of the background, some of the various topics of things that happened over the years that simply weren’t in dispute, but I suggest that the accused has come up with a version of events on all of the key points to fit the evidence to make it look like the complainant is just completely unreliable and that his denials are simply untrue, his denials of the charged acts.

15. In Ground 6, the appellant complains that it was unfair and impermissible for the prosecutor to suggest that the appellant had ‘come up with a version of events … to fit the evidence’.  The appellant contends that this was an allegation of recent invention by the prosecutor, which had not been put to the appellant during cross-examination, and which was therefore unfair and impermissible, and occasioned a miscarriage of justice.

16. In our view, there is no merit in this complaint.  The submission made, when read in context, was no more than an aspect of the prosecutor’s general attack upon the appellant’s credibility.  An adequate foundation for that attack had been laid through the prosecutor’s cross-examination of the appellant.  There was nothing in the nature or terms of the impugned submission which required any greater or more specific foundation.  The submission did not occasion any miscarriage of justice. 

17. This ground of appeal has not been made out.

    Conclusion on appeal against conviction

18. We grant permission to appeal against conviction, but for the reasons set out, dismiss the appeal.

    Appeal against sentence

19. The appellant was convicted of two counts of rape, being Counts 2 and 4 on the Information.  The maximum penalty for each was life imprisonment.

20. Consistently with the jury’s inability to reach verdicts on Counts 1 and 3, the judge sentenced the appellant on the basis that there were no other charged or uncharged occasions of sexual offending by the appellant. Having identified notional head sentences of seven years imprisonment and eight years imprisonment for the two offences, the judge imposed a single penalty under s 26 of the Sentencing Act 2017 (SA) of 12 years imprisonment. Her Honour fixed a non-parole period of six years and six months.

21. As mentioned at the outset of these reasons, the appellant seeks permission to appeal against sentence on the sole ground that the sentence imposed was manifestly excessive.

22. The principles governing an appeal on this ground are well known and do not need repeating.  It is enough to observe that the appellant must establish that the sentence was unreasonable or plainly unjust, in the sense that it was outside the range of sentences that might reasonably have been imposed having regard to all of the circumstances relevant to the offender and his offending.

    Circumstances of the offending

23. Although it involves some repetition of matters already addressed in these reasons, it is convenient to commence consideration of the appeal against sentence by addressing the judge’s account of the factual basis upon which the appellant was sentenced.

24. By way of background and context, the appellant and complainant had met at school, and married in 2015.  They had a child that year, and then had their second child in March 2017.  Following the birth of that child, the complainant became unwell with a postpartum infection.  She attended hospital twice, and was treated with antibiotics, as well as medication to help her sleep.  She was told not to have sexual intercourse for about two months to allow her body to heal.  She continued to feel unwell, and was ultimately diagnosed with thyrotoxicosis.

25. Turning to the first instance of offending, the judge explained that on 11 July 2017, the complainant called a telehealth service.  She was feeling anxious, dizzy and could not stand up.  She was advised to rest.  She took some Olanzapine and Metoprolol.  She put the baby in the basket next to the bed and went to sleep. 

26. The complainant woke to find the appellant holding her down with her hands pinned alongside her head.  The appellant was engaging in penile-vaginal sexual intercourse with her.  She yelled and told him to get off, which he did.  The complainant got out of bed, and moved to the corner of the bedroom, very distressed.  The appellant was apologetic, saying he was sorry.  The complainant cried in the corner while the appellant sat on the bed.  The complainant grabbed her daughter, went downstairs and slept on the couch.

27. As the judge explained, the complainant spoke with the appellant the following day about consent, and the impact of his behaviour on her health.  The appellant was again apologetic, and said that he understood she was not well and that his behaviour was not okay.  He sought to explain his behaviour by saying that he would black out, see red and then not remember what he was doing. The complainant said that she did not consent to him having sex with her while she was asleep.  For a couple of weeks following that, the complainant and appellant slept in separate rooms of the house.

28. In about August 2019, the complainant and appellant separated, but continued to live in the same house.  There was an occasion in December 2019 when they had consensual sexual intercourse; however, they also had an argument on 14 December 2019 in which they discussed (and the appellant admitted) his 2017 offending against the complainant.

29. The second offence occurred on 26 January 2020.  The couple’s second child was unwell, and was with the complainant in her bed.  The appellant offered to keep the complainant company, and she agreed on the basis that the appellant would lie on top of the blankets with their daughter between them. The complainant fell asleep, but then woke up at about 5.00 am.  Her child was no longer in the bed, and the appellant was having penile-vaginal intercourse with her.  She froze for a second, was in shock, and said something like ‘you might as fucking well’.  The appellant continued, and when the complainant asked him not to ejaculate, he pulled out and ejaculated on the sheets. The complainant ran downstairs.  The appellant followed her downstairs, saying that he was sorry and that he was seeing red again and did not know why it was happening.  He was pleading with her not to tell anyone, however she told her friend the following day.

30. The judge mentioned the complainant’s evidence to the effect that there were other occasions when the appellant had had sexual intercourse with her while she was asleep, or that she suspected from her vaginal pain and bleeding that this had occurred.  However, because the jury had not been able to reach any verdict on Counts 1 and 3, the judge decided not to sentence the appellant on the basis that there were any other charged or uncharged occasions of non-consensual sexual intercourse.  Her Honour sentenced on the basis that the complainant believed that there were other occasions, but that the only relevance of this was that it supported and explained her evidence that she had made it very clear to the appellant prior to 26 January 2020 that she did not consent to the appellant having sexual intercourse with her while she was asleep.

31. The judge mentioned the victim impact statements provided by the complainant and her parents.  The complainant described the profound impact the offending had had on her, and her parents.  Not only was she deeply disappointed in the appellant, but also his conduct had prevented her fully recovering and had put her at risk of further infection or pregnancy.  It had resulted in her developing a distrust and fear of men more generally, and to her not wanting to have men around her when she was unwell.  It had caused her to hate herself, and to question her self-worth.  It had caused her to struggle in her work and studies.

    The appellant’s personal circumstances

32. The appellant was 27 years of age at the time of sentencing, and 21 and 23 years of age at the time of the two offences.  He had no previous convictions.

33. The appellant considered that he had had an unstable childhood because of his parents’ lower socioeconomic status and impoverished living conditions.  His parents separated when he was about 12 or 13 years of age.  His mother later remarried, and his mother and stepfather have been an important source of emotional and practical support for him.  His father had longstanding mental health issues, and spent some time in prison.  The appellant had only had sporadic contact with his father, and he unfortunately committed suicide in 2023.

34. The appellant attended various schools, and completed Year 12.  In 2014 he commenced a computer science degree, but withdrew after two years and the birth of his first child in order to start working full time.  He subsequently worked in several jobs in the IT industry.  After the birth of his second child, he worked as a casual tiler with his wife’s father.  He took this job because it enabled him to spend more time at home to care for the complainant and their children.  He supplemented his income with additional casual jobs in the IT industry.

35. The judge was assisted by a psychological report from Dr Lim dated 8 October 2023, which was the source of much of the personal background set out above.  The appellant told Dr Lim that his mental health had deteriorated after the birth of his second child and his wife became unwell.  He felt financial pressure, and stress associated with working multiple jobs to supplement his income.  He said that he put a lot of effort into his family but felt that he did not receive the same care in return.  He started to consult a psychologist to assist him with his mental health difficulties in around 2018, after receiving a mental health plan from a general practitioner.  He had multiple appointments to address his stress and anxiety, with those appointments continuing up to just prior to his trial.  He described his mental health to Dr Lim as ‘good enough to get by’.

1. The appellant told Dr Lim that he had been in a stable and supportive relationship since mid-2021.

2. Dr Lim expressed the view that the appellant had been suffering from an adjustment disorder with anxiety from early 2017 to early 2020 because of a range of stressors, including marital problems, financial stress, extensive work hours and limited access to his children.  However, she did not consider that the appellant was suffering from any diagnosable mental health condition as at the date of her report.  In her view, the appellant had adjusted relatively well to the prison environment and his personal circumstances more generally – which, she observed, was unusual given that the appellant had no criminal history, and so had not previously spent any time in prison.

3. Dr Lim also expressed the view that the appellant had displayed minimal compassion and empathy for his wife.  She did not observe any insight or appreciation by the appellant into how difficult and challenging the situation must have been for his wife after the birth of their second child.  Rather, the appellant’s responses were largely ego driven, primarily focussed on his own stress levels, his positive family values, and what a kind, responsible, caring spouse and father he considered that he had been.  In Dr Lim’s opinion, the appellant was yet to engage in any form of deep and meaningful reflection on how his actions had affected his marriage, or the underlying reasons for his wife’s emotional distress or maladaptive coping and/or compensatory behaviours, irrespective of whether these allegations are true or false.  The appellant appeared to have formed a firmly established opinion of himself as a victim.  Dr Lim considered that the appellant’s tendency to minimise or deflect personal responsibility represented his main coping and problem-solving strategy in response to strong negative emotions.  Because of his poor capacity to tolerate intense distress, he either detached emotionally or avoided engaging in deep and meaningful introspective reflection of his own emotional states in a way which would help him to understand their genesis and how they drive his behaviours.

4. Dr Lim made various recommendations for treatment.  She noted that the appellant continued to deny his offending, but said that this was a treatment issue rather than a criminogenic risk factor.  In Dr Lim’s view, the appellant’s risk of reoffending was in the low category.

5. The judge accepted Dr Lim’s opinions.

6. The appellant relied upon a number of letters of support from his family, friends and work colleagues.  They spoke of the appellant’s generally good character, dedication as a father and willingness to help others.

   The sentence imposed

7. The judge described the crime of rape as involving the physical and emotional violation of another person, adding that it is often about power, control and domination.  It is a serious criminal offence, which is evident from the maximum penalty of life imprisonment.

8. In explaining the sentence to be imposed, the judge commenced by observing that the most important factor was the need to protect the safety of the community.  But general deterrence was also an important factor for this type of offending.  Her Honour referred to the work being done in the community to send and reinforce the message that there is no tolerance for sexual violence against women, and the need for the courts to reflect this message.

9. The judge described the appellant’s offending as involving a gross breach of trust; that the appellant had violated his wife while she was asleep in her own bed.  On the first occasion, she was physically unwell and medicated.  He repeated his offending even after she had confronted him about his earlier offending.

10. The judge considered that personal deterrence was also an important factor.  In her Honour’s view, the appellant remained in denial about his offending.  She accepted what she described as Dr Lim’s opinions about the appellant’s egocentricity and the operation of this trait in deflecting any meaningful introspective reflection.  Her Honour said this was consistent with how the appellant had presented in the witness box.

11. As the judge explained, the appropriate sentence must seek to promote the appellant’s rehabilitation.  Her Honour accepted Dr Lim’s opinions as to the appellant’s low risk of reoffending, and treatment recommendations.

12. In imposing sentence, the judge utilised s 26 of the Sentencing Act to fix one sentence for both offences.  Her Honour identified notional sentences of seven years imprisonment for the first offence, and eight years imprisonment for the second offence.  The judge emphasised that the first offence was committed while the appellant’s wife was very unwell, and that the second offence was committed after he had apologised for raping her on the first occasion.  Her Honour said that she would make the sentences partially concurrent to ensure a proportionate sentence or, as her Honour described it, ‘to give effect to the principle of totality’.  She imposed a sentence of 12 years imprisonment.

13. The judge fixed a non-parole period of six years and six months, describing it as intended to promote the appellant’s rehabilitation in the community while under supervision.  The sentence was backdated to commence from 8 August 2023, being the date the appellant’s bail was revoked.

    Analysis

14. In contending that the sentence imposed was manifestly excessive, the appellant emphasises that, on the judge’s findings, which were consistent with the jury’s verdicts, he fell to be sentenced on the basis that he committed two acts of rape, and not any of the other charged or uncharged conduct which was the subject of evidence at trial.  While acknowledging the seriousness of his offending, and that it was appropriate for some accumulation of the individual sentences for the two offences, the appellant contends that, in light of his lack of previous offending and prospects for rehabilitation, the judge imposed an overall sentence which was disproportionately high.

15. We have had regard to a number of authorities in this Court considering sentences imposed for the offence of rape, including White (a pseudonym) v The Queen,[62] R v Ross,[63] R v D, RHC[64] and R v Knight.[65]  Although the offence is always a serious one, as reflected by the maximum penalty of life imprisonment, the wide ranging circumstances in which it may be committed mean that there is no tariff.  Other cases are of limited assistance.

    [62]   White (a pseudonym) v The Queen (2022) 141 SASR 398.

    [63]   R v Ross (2018) 132 SASR 31.

    [64]   R v D, RHC [2011] SASCFC 31.

    [65]   R v Knight [2016] SASCFC 40.

16. In the present case there were undoubtedly features of both offences which made them serious instances of the offence.  As the judge described, they both involved gross breaches of trust, with the appellant violating his wife while she was asleep in her own bed.  In the case of the first offence, it occurred while his wife was unwell and medicated.  In the case of the second offence, it occurred after the appellant had been confronted about his previous offence, had acknowledged the wrongfulness of his conduct and had been told in clear terms that his wife did not consent to sexual intercourse while she was asleep.  Despite having had time to reflect, he chose to offend again.  While there had been intervening instances of consensual sexual intercourse between them, the complainant had made it plain that their relationship was over.  Certainly the appellant understood that his wife did not consent to sexual intercourse while she was asleep.

17. Unsurprisingly, the offending has had a deep and continuing impact upon the complainant, across various aspects of her life.

18. Protection of the safety of the community and general deterrence were significant considerations.  The latter in particular required significant attention.  Men need to be deterred from sexual violence against women, and it needs to be made clear that that includes sexual violence against women with whom they are, or were, in relationships.

19. There were some concerning features of the appellant’s personal circumstances, in particular his lack of compassion and empathy for his wife, and corresponding lack of insight into her perspective and the impact of his offending upon her.  On the other hand, the appellant was relatively young, had not previously offended, and fell to be sentenced on a factual basis that did not include any other charged or uncharged offending.  Further, despite his lack of emotional resilience and maturity in dealing with the stressors in his life, the judge accepted Dr Lim’s opinion that there was a low risk of the appellant reoffending. 

20. In our view, the notional starting points identified by the judge of seven years imprisonment and eight years imprisonment respectively for the two offences were both high. Further, in our view, there was room for a significant level of concurrency in arriving at a sentence which was proportionate to the overall criminality of the offending and circumstances of the offender.

21. The two offences did not form part of a course of conduct.  The separation in the time and circumstances between the two offences means that it was appropriate that there be some degree of cumulation between the sentences identified for each offence.  On the other hand, the overlap or connection between the offences in terms of their similar nature, context and motivation, and between the criminogenic factors contributing to their commission, meant that there was room for a significant degree of partial concurrency.  The imposition of a significant sentence of imprisonment for one of the offences had a potential to assist in achieving the sentencing objectives sought to be achieved by the sentence to be imposed for the other.[66]

    [66]   See, for example, the discussion of the breadth of the scope for partial concurrency – even in cases, which unlike the present case, involve multiple victims - in authorities such as Warner v The King (2022) 142 SASR 275 at [21]-[29] (Kourakis CJ), [90]-[98] (Livesey P), [128] (Doyle JA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11 at [62]-[69] (Livesey P, Doyle and David JJA); R v W, PL [2017] SASCFC 119 at [66]-[67] (Doyle J, Bampton and Lovell JJ agreeing); White (a pseudonym) v The Queen (2022) 141 SASR 398 at [45]-[47] (Lovell, Bleby and David JJA) (single victim).

22. In all the circumstances, we are satisfied that the overall sentence imposed by the sentencing judge was too high; that an overall head sentence of 12 years imprisonment for the two offences was manifestly excessive.  We would therefore allow the appeal against sentence, and resentence the appellant.

    Resentencing

23. In resentencing the appellant, we bear in mind the various matters identified by the judge and in our analysis above.  We would approach the sentencing task in a similar manner, but with lower starting points for the two offences and a greater level of concurrency. 

24. We would start with notional sentences of six years imprisonment for the first offence, and seven years imprisonment for the second offence. For the reasons explained, we consider that the need to ensure a proportionate sentence permits, indeed requires, a significant measure of concurrency on the basis that, whilst the two offences were separated in time and circumstances, the imposition of a significant sentence of imprisonment for the one has the capacity to assist in achieving the sentencing objectives required to be achieved by the other. Utilising s 26 of the Sentencing Act, and allowing for 50 per cent concurrency in respect of the sentence for the second offence, we would impose an overall sentence of nine years and six months imprisonment for the two offences. 

25. Like the sentencing judge, we consider that a relatively lenient non-parole period is appropriate, given the appellant’s good record and scope for rehabilitation with appropriate supervision.  We would fix a non-parole period of 5 years.

26. We would backdate the appellant’s sentence to commence from 8 August 2023, the date his bail was revoked.

    Conclusion and orders

27. In relation to the appeal against conviction, we grant permission to appeal but dismiss the appeal.

28. In relation to the appeal against sentence, we grant permission to appeal and allow the appeal.  We set aside the sentence imposed below and resentence the appellant to a sentence of nine years and six months imprisonment, with a non-parole period of five years and backdated to commence from 8 August 2023.  We make an intervention order in the same terms as below.