R v El Rifai

The appeal in *R v El Rifai* concerned a conviction for rape. The appellant, Ammar Abdul Aziz El Rifai, was convicted by a majority verdict of the jury and appealed against this conviction. The appeal raised several grounds, including the admissibility of complaint evidence, the trial judge's directions regarding the complainant's distress, a prosecutor's comment on the appellant's failure to give evidence, the reasonableness of the verdict, and allegations of undue pressure placed on the jury.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in admitting the evidence of the complainant's complaint, whether specific directions regarding the complainant's distress were required, whether the prosecutor's comment on the appellant's silence constituted a breach of section 18(1)(b) of the *Evidence Act 1929* (SA), and whether the jury had been subjected to undue pressure to reach a verdict. The court also considered whether the verdict was unreasonable or against the weight of the evidence.

By a majority decision, David and Kelly JJ dismissed the appeal. They found that the complaint evidence was admissible and that the trial judge's directions complied with section 34M of the *Evidence Act*. They also held that no specific direction regarding the complainant's distress was necessary. While acknowledging that the prosecutor's comment on the appellant's failure to give evidence was a breach of section 18(1)(b), they concluded that it was benign and did not occasion a miscarriage of justice. The majority also found the verdict to be reasonable and that the trial judge had not exerted undue pressure on the jury.

In dissent, Gray J would have allowed the appeal and ordered a retrial. His Honour found that the directions given regarding the initial complaint were errors of law, particularly in the absence of independent evidence supporting the complainant's account. Gray J also considered that the inappropriate pressure placed on the jury created a risk of a miscarriage of justice, leading him to conclude that the proviso to section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) could not be applied.