R v Moores - [2017] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOORES
[2017] SASCFC 95
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Doyle)
11 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - OBJECTIONS AND POINTS NOT TAKEN AT TRIAL - WHEN NOT ALLOWED TO BE RAISED - FAILURE TO TAKE OBJECTION - ADMISSIBILITY OF EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - DIRECTIONS TO JURY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Appeal against conviction of one count of rape and one count of causing harm with intent to cause harm.
On the night of 27/28 March 2015 the complainant visited the appellant’s house and they engaged in consensual vaginal intercourse and intercourse which the appellant testified was not with her consent but was not the subject of a charge. The appellant then engaged in oral and anal intercourse which the complainant testified was without her consent and was the subject of counts 1 and 2 of which the jury ultimately found the appellant not guilty.
The complainant testified that in the morning the appellant engaged in vaginal intercourse without her consent, in the course of which he choked her four times, on the third of which she lost consciousness. The vaginal intercourse was the subject of count 3 and the choking was the subject of count 4, of which the jury ultimately found the appellant guilty.
Later that morning, the complainant spoke to R, saying that the night had started off well, they had sex, it got rough and she asked the appellant to stop but he kept going. The appellant then spoke to D and told him that the evening went weird, the appellant was a freak and the appellant was choking her when they were having sex.
Between 28 March and 1 April 2015 there were a series of Facebook text messages exchanged between the appellant and the complainant. In the course of those messages the complainant complained about the appellant’s conduct. The appellant responded that he was sorry if he was too rough, said he should not have drunk so much and he got carried away and said that he felt really bad, he was not a bad guy and he wanted to make it up to her.
At trial, there was no objection to the evidence about the complainant’s conversations with R and D or the evidence of the Facebook text messages. There were no relevant requests for special directions to the jury or complaints about the Judge’s summing up to the jury.
The appellant appeals and seeks permission to appeal on eight grounds:
1. the trial miscarried due to the admission of evidence of complaints to R and D when the complaints did not amount to “initial complaint” within the meaning of section 34M of the Evidence Act 1929 (SA);
2. the Judge failed to direct the jury adequately and erroneously directed the jury in relation to the complaint evidence;
3. the Judge failed to direct the jury adequately in relation to subsequent Facebook text messages between the complainant and appellant;
4. the Judge erred in directing the jury in relation to discreditable conduct evidence;
5. the Judge erred in failing to direct the jury in relation to the effect of intoxication on the complainant’s evidence and proof of the mental element of each count;
6. the Judge failed to direct the jury adequately as to the meaning of harm and intent to cause harm for the purpose of count 4;
7. the Judge erred in failing to adequately direct the jury as to the potential use of acquittals on the first two counts in relation to proof of the second two counts;
8. the verdicts are unreasonable and incapable of being supported having regard to the evidence.
Held per Blue J (Vanstone and Doyle JJ agreeing):
1. The evidence concerning the conversation between the complainant and D was admissible on count 3 because it related to a “complaint in relation to a sexual offence” within the meaning of sub-section 34M(6) of the Evidence Act 1929 (SA) (at [38]).
2. The Judge’s directions concerning the complaint evidence were not inadequate or erroneous (at [56], [65], [72] and [81]).
3. The Judge’s directions concerning the Facebook text messages were not inadequate (at [93] and [98]).
4. The Judge’s directions concerning the uncharged acts were not inadequate (at [106] and [115]).
5. Under s 268 of the Criminal Law Consolidation Act 1935 (SA), an accused’s intoxication is not to be taken into account on a charge of rape in relation to the elements of voluntariness or knowledge or recklessness as to the complainant’s lack of consent (at [140]).
6. Under s 269 of the Criminal Law Consolidation Act, absent a request from counsel at trial, the Judge was precluded from putting to the jury that the appellant’s intoxication may have impaired his consciousness in relation to the voluntariness or mental element of the offence of causing harm with intent to cause harm (at [147]).
7. The Judge’s directions concerning intoxication were not inadequate (at [142] and [150]).
8. The Judge’s directions concerning “harm” and “intent to cause harm” in respect of count 4 were not inadequate (at [158], [161], [162] and [170]).
9. The Judge did not fail to adequately direct the jury as to the use that it could make of findings of not guilty on counts 1 and 2 in relation to proof of counts 3 and 4 (at [189]).
10. The verdicts of guilty on counts 3 and 4 were not inconsistent with the verdicts of not guilty on counts 1 and 2 (at [196]).
11. Permission to appeal on grounds 1A.1, 3.2, 3.3, 4.1, 5 and 7 refused. Permission to appeal on other grounds granted. Appeal dismissed (at [198]).
Acts Interpretation Act 1915 (SA) 19(1)(c); Criminal Law Consolidation Act 1935 (SA) 21, 24(1), 48(1)(a), 267A, 268, 269 and 353; Evidence Act 1929 (SA) 34M and 34R, referred to.
Lefroy v The Queen (2004) 150 A Crim R 82; R v ARD [2000] NSWCCA 443; R v B, P (2007) 99 SASR 384.; R v B, P [2006] SASC 229; R v El Rifai [2012] SASCFC 98; R v Ford [2006] QCA 142 ; R v GAR [2003] NSWCCA 224; R v Hare [2007] SASC 427; R v KWG [2000] SASC 398; R v Landmeter (2015) 121 SASR 522; R v Liddy [2002] SASC 19; R v LR [2005] QCA 368; R v Markuleski (2001) 52 NSWLR 82; R v PMT (2003) 8 VR 50; R v S, DD (2010) 109 SASR 46; R v Usher (2014) 119 SASR 2, discussed.
R v Childs (2007) 98 SASR 111; R v Quist [2017] SASCFC 37; R v Lowe [2016] SASCFC 118; R v O’Connor (1980) 146 CLR 64; R v T, S [2017] SASCFC 67; R v Tucker (1984) 36 SASR 135, considered.

R v MOORES
[2017] SASCFC 95
Court of Criminal Appeal: Vanstone, Blue and Doyle JJ
VANSTONE J:

I would dismiss the appeal. I agree with the orders proposed by Blue J.
In relation to the ground complaining that the Judge did not direct the jury on the possible effect of intoxication upon proof of voluntariness or the mental element of rape, I would say this.
The present form of s 268 of the Criminal Law Consolidation Act 1935 (SA) has been in force since 23 November 2008, when the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (No 10 of 2008) came into force. By s 268(3)(b), offences of rape are excluded from the exceptions to s 268(2) given in s 268(3). Accordingly, an offence of rape may be proved even where, because of the accused’s intoxication, the prosecution cannot prove one or more of voluntariness, knowledge of lack of consent, or recklessness.
In the face of this clear provision it would have been wrong for the Judge to direct the jury that the appellant’s intoxication could stand in the way of proof of voluntariness or the mental element of rape.
Section 269(1) of the Criminal Law Consolidation Act can have no application in relation to a charge of rape where intoxication is self-induced. That is because, as already set out, s 268(2) applies to charges of rape, and any impairment to the accused’s consciousness due to self-induced intoxication cannot prevent his being found guilty. There is no room for s 269(1) to operate.
For these reason, I consider this ground to be unarguable.
In respect of the balance of the grounds of appeal, I agree in general terms with the reasons written by Blue J.
BLUE J:
This is an appeal and application for permission to appeal against conviction.
The appellant, Scott Stuart Moores, was tried in the District Court before a Judge and jury for three counts of rape[1] and one count of causing harm with intent to cause harm[2] committed on 28 March 2015. He was acquitted of the first two counts and convicted of the second two counts.
[1] Criminal Law Consolidation Act 1935 (SA) section 48(1)(a).
[2] Criminal Law Consolidation Act 1935 (SA) section 24(1).
The appellant appeals and seeks permission to appeal against the convictions on grounds that:
1.the trial miscarried due to the admission of evidence of conversations between the complainant and R and D when what was said by the complainant did not amount to a “complaint” within the meaning of section 34M of the Evidence Act 1929 (SA);[3]
2.the Judge failed to direct the jury adequately and erroneously directed the jury in relation to the complaint evidence;[4]
3.the Judge failed to direct the jury adequately in relation to subsequent Facebook text messages between the complainant and appellant;[5]
4.the Judge erred in directing the jury in relation to discreditable conduct evidence;[6]
5.the Judge failed to direct the jury adequately in relation to the effect of intoxication on the complainant’s evidence and proof of the mental element of each count;[7]
6.the Judge failed to direct the jury adequately as to the meaning of harm and intent to cause harm for the purpose of count 4;[8]
7.the Judge failed to adequately direct the jury as to the potential use of findings of not guilty on the first two counts in relation to proof of the second two counts;[9]
8.the verdicts are unreasonable and incapable of being supported having regard to the evidence.[10]
[3]    Ground 1. Permission to appeal referred to Full Court.
[4]    Ground 1A.4 permission to appeal granted. Grounds 1A.1-1A.3 permission to appeal referred to Full Court.
[5]    Ground 2 permission to appeal granted.
[6]    Ground 4.2 permission to appeal granted. Ground 4.1 permission to appeal referred to Full Court.
[7]    Grounds 6.2 and 6.3 permission to appeal granted. Ground 6.1 permission to appeal referred to Full Court.
[8]    Ground 3.1 permission to appeal granted. Grounds 3.2-3.4 permission to appeal referred to Full Court.
[9]    Ground 5 permission to appeal referred to Full Court.
[10] Ground 7 permission to appeal referred to Full Court.
Background
The appellant and complainant were both 36 years old as at March 2015. They were acquaintances who had met up from time to time when they were around 14 and again when they were around 20, after which they lost contact. In their early thirties they became Facebook friends for two or three years, after which they again lost contact when the appellant deleted his Facebook account.
In March 2015 the appellant and complainant again became Facebook friends when the appellant created a new Facebook account. They exchanged messages and arranged to meet on 22 March in Freeling where the appellant lived. The appellant drove to the appellant’s house and stayed there between about 2 pm and 11 pm. There was no romantic contact on the complainant’s account. In due course they arranged for the complainant to visit the appellant on the following Friday evening.
On 27 March 2015 at about 8 pm the complainant arrived at the appellant’s house. They sat around drinking, listening to music and talking. In the early hours of the morning (between 1.30 and 3 am) they engaged in consensual vaginal intercourse.
The appellant and complainant also engaged in anal intercourse. There was a difference between their evidence as to whether the complainant consented to the anal intercourse. The complainant’s evidence was that she did not in fact consent and she prevented the appellant from continuing four times by making her body rigid. No charges were laid in respect of this conduct.
The complainant gave evidence that, after the appellant left the bedroom and she had gone to the bathroom, they returned to the bedroom, where the appellant inserted his penis into her mouth. She initially placed her hand on the base of his penis and tried to push him away. He pulled her hand away and said “You can gag on it and stop using your fucking teeth” and continued the oral intercourse. She then rolled out from underneath him. This was the subject of count 1. The appellant admitted that he had oral sexual intercourse with the complainant but said that the complainant had been the instigator of it and he believed that she consented to it.
The complainant gave evidence that, after the oral intercourse ceased, the appellant inserted his penis into her anus. She straightened her body, causing his penis to go into her vagina instead, to which he responded “Don’t try and fucking trick me”. He entered her anus again, to which she responded “Stop being a cunt”. She tried to straighten her body and push herself up on her elbow, and he pushed her back down. She said “Stop being a fucking cunt”, to which he responded “Lay the fuck down because this is how it works under my roof”. A short time later he got off her and lay on his back. These acts of anal intercourse were the subject of count 2. The appellant admitted that he had anal sexual intercourse with the complainant but said that he believed that she consented to it.
Eventually both the complainant and the appellant fell asleep.
The complainant gave evidence that the next morning she was woken by the appellant who said “Roll over, I want a cuddle”, to which she replied “Fuck off, you’ve actually torn me”. The appellant then inserted his penis into her vagina and engaged in very forceful vaginal intercourse. She straightened her legs in an attempt to stop him, to which he responded “Lift your fucking legs up”. He used his arms to force her legs up. She forced her legs down and tried to push him off with her knees on his chest. He rammed his finger into her anus. He held her wrists and said “You're in the middle of fucking nowhere, what are you going to do?” He put his hands around her throat and pressed his thumbs on her windpipe. She could not breathe and almost lost consciousness. He did this a total of four times, on the third of which she lost consciousness. The complainant thought that she was going to die. After the fourth occasion, she got up and left the room. The vaginal intercourse was the subject of count 3 and the choking was the subject of count 4. The appellant gave evidence denying that there was any intercourse at all in the morning and denying that there was any choking at any time.
The appellant had a shower and cooked breakfast. He gave breakfast to the complainant, who did not eat it. She smoked a cigarette, gathered her belongings and left.
At about 10.30 am the complainant telephoned her friend R and asked to come over. R gave evidence that the complainant appeared quiet and told her that it had been the best and worst night of her life, it had started off well, they had sex, it got rough and she asked the appellant to stop but he kept going.
At about 11.30 am D, another friend of the complainant, sent to her a text message asking how the evening had gone. The complainant replied that it went weird and the appellant was a freak. D went to the complainant’s house, arriving at about 1 pm. D gave evidence that the complainant told him that the appellant was choking her when they were having sex. D observed red marks on the complainant’s neck and she appeared upset.
On that evening the appellant sent a Facebook text message to the complainant asking if her house was still standing. The complainant replied the following day saying that she had been having fun but it was not fun when she got hurt and even after she told him to settle down he did not care. The appellant said that he was sorry if he was too rough and he should not have drunk so much. He said that he got carried away and asked if they could just forget the last quarter of his performance.
On 1 April the complainant consulted her gynaecologist Dr E. He undertook an examination and tests. He observed a small rectal tear.
On 1 April the appellant sent a Facebook text message to the complainant saying that she had had to go to doctor for internal trauma and had been bleeding and doubled over in pain all week. She said that she had tried to conceal the bruising from his choking her out. She asked what part of stop he did not get. The appellant replied that he felt really bad now, he was not a bad guy and he wanted to make it up to her.
The trial
The complainant gave evidence as summarised above. There was no objection to her evidence about the anal intercourse that occurred before the conduct the subject of the charges. There was no objection to her evidence about her conversations with R and D on 28 March 2015.[11] There was no objection to the tender of the Facebook text messages between the complainant and the appellant.
[11] Defence counsel at the outset of the trial raised a query whether the complaint to D was an "elaboration" but did not object to admission of the evidence or advance any submissions in opposition to its admission.
R and D gave evidence as summarised above. There was no objection to this evidence. Dr E gave evidence of his observations and tests on 1 April 2015.
The appellant gave evidence as summarised above.
Admissibility of evidence of initial complaint
The appellant seeks permission to appeal on the ground that a fair trial miscarried as a result of the admission of the evidence of initial complaint from the complainant, R and D where such evidence did not comply with section 34M of the Evidence Act 1929 (SA).[12]
[12] Ground 1.
“Complaint” to D
The appellant contends that the evidence of the discussion between the complainant and D did not on its face amount to evidence of a “complaint of an alleged sexual offence” as required by subsection 34M(3).
Section 34M relevantly provides:
34M—Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•       when the complaint was made and to whom;
•       the content of the complaint;
•       how the complaint was solicited;
•       why the complaint was made to a particular person at a particular time;
•       why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the degree of consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)     there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
…
(6)    In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).

It is common ground that to be admissible under subsection 34M(3) a complaint must be a complaint of a sexual offence.[13] The evidence is admitted for the purposes of identifying how the allegation first came to light and as evidence of the degree of consistency of conduct of the alleged victim (the permissible purposes) but not as evidence of the truth of what was alleged (the impermissible purpose).
[13] This appears from the requirement in subsection (3) that the complaint be “of an alleged sexual offence” and the definition of “complaint” in sub-section (6). See R v Usher [2014] SASCFC 32, (2014) 119 SASR 22 at [49] per Kourakis CJ (with whom Peek J agreed).
The appellant contends that the evidence established no more than a statement by the complainant to D that he choked her while having sexual intercourse without an allegation of lack of consent to the intercourse (or for that matter to the choking) and hence it was not admissible under subsection 34M(3).
No objection was made at trial to the admission of the evidence of what the complainant told D on this ground. Counsel for the appellant queried at the outset of the trial whether the complaint to D was an “elaboration” of the complaint to R (without actually objecting to its admission on that ground) but there was no contention that the complaint was not of a “sexual offence”. It is likely that a forensic decision was made not to object because what the complainant did not say to D might advantage the defence. The appellant is usually bound by the case he ran at trial when forensic decisions of this nature are made.[14]
[14] R v T, S [2017] SASCFC 67 at [145] per Hinton J (with whom Kelly and Nicholson JJ agreed).
The lack of objection at trial explains the formulation of the ground of appeal as a miscarriage of a fair trial rather than an error of law. The absence of objection at trial is a factor to be taken into account in assessing whether there was a miscarriage.[15]
[15] R v Lowe [2016] SASCFC 118 at [12]-[14] per Peek and Doyle JJ (with whom Nicholson J agreed).
D gave evidence that the complainant appeared upset, down, slouching and not herself. The conversation was preceded by text messages in which the complainant said that the evening went weird and the appellant was a freak. D gave evidence that she told him that the appellant “was choking her when they were having sex”. D went into shock himself when he heard this and did not know what to say to her. There was no further conversation on the topic because the complainant’s daughter arrived home.
In context, it is clear that the complainant conveyed to D that she was choked while having sex and this was against her will and without her consent. The lack of consent applied to the appellant choking her and having sex with her which was a compound act. The complainant conveyed that the appellant committed a sexual offence on her being sexual intercourse without her consent (rape). The appellant’s contention that the evidence was inadmissible must be rejected.
For the sake of completeness, I note that the appellant does not contend that, if what the complainant said to D was a “complaint”, it was not an “initial complaint” within the meaning of subsection 34M(6).
I would grant permission to appeal on this ground but reject this ground of appeal.
“Complaint” to R
The appellant contends that the evidence of the discussion between the complainant and R did not on its face amount to evidence of a “complaint of an alleged sexual offence” as required by subsection 34M(3). The appellant eschews a contention that the admission of evidence of the complaint to R caused his trial to miscarry because he contends that the complaint relates only to counts 1 and 2 of which he was acquitted. However, because the Director takes issue with both contentions and it is relevant to a complaint made about the Judge’s directions addressed below, it is desirable to a deal with the appellant’s submission at this point.
R gave evidence that that the complainant told her that “it was the best and worst night of her life” and that “it started off good and during the night it got - not what she wanted”. R’s evidence then proceeded as follows:
Q.    Do you recall the actual words that she used to you.
A.She said that she wasn't feeling safe and things got a little bit rough and she asked to stop and he kept going.
Q.    What was she doing when she asked him to stop.
A.    Intercourse.
Q.    She told you that she had intercourse with him.
A.    Yes.
Q.    She told you it was rough.
A.    Yes.
Q.    She told you that she asked him to stop.
A.    Yes.
R gave evidence that her cousin was present and this inhibited the conversation.
In context, it is clear that the complainant conveyed to R that the appellant had rough sexual intercourse with her and continued to do so after she asked him to stop. The complainant conveyed that the appellant had sexual intercourse with her without her consent (rape). The appellant’s first contention that the evidence was inadmissible must be rejected.
The appellant’s second contention is that the evidence of R was referable only to the first and second counts and not to the third count and hence could not be used for the permissible purposes in respect of the third count.
It is now clearly established that, to be admissible, a complaint must be referable to the offence charged but, where evidence of a general complaint of sexual abuse is led under section 34M, the complaint does not need to refer to the details of the particular count and it is sufficient that conduct the subject of the count is encompassed within the general complaint.
Thus, in R v S, DD,[16] Duggan J (with whom Anderson J agreed) said:
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.[17]
Peek J said:
As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity.[18]
[16] [2010] SASCFC 80, (2010) 109 SASR 46.
[17] At [4].
[18] At [101].
In R v El Rifai,[19] in a passage subsequently cited with approval by Kourakis CJ (with whom Peek J agreed) in R v Usher,[20] Kelly J said:
I do not consider the fact that the complainant declined to reveal all of the details of what occurred during the incident which led to the charge of rape deprives the complaint of sufficient relevance to make it admissible under s 34M of the Act. I do not consider that the wording in s 34M(3) requires that there be precise coincidence between the details of a particular complaint and the particular act charged. Here, the complaint made was a generic complaint of sexual abuse by the appellant. The fact she chose to reveal one aspect only of the appellant’s conduct during the relevant episode which, on any view of the matter, took place in a discrete period of time on the afternoon of 11 September 2010 at the appellant’s home at Glenelg, is not unusual in a matter involving allegations of a sexual nature.
To require precise coincidence between the act complained of and the act charged, would, in my view, be to adopt an unnecessarily technical and artificial approach to the words of s 34M(3). As Peek J pointed out in S, DD it is quite unrealistic to expect complainants in sexual offences to make complaints with a high degree of specificity. I would add, it is also quite unrealistic to expect that a complainant might reveal details of an episode of sexual offending with an eye to ensuring technical coincidence with the act of which she complains and the act which might later be selected by the prosecution authorities as the subject matter of the charge.[21]
[19] [2012] SASCFC 98.
[20] (2014) 119 SASR 22.
[21] At [132]-[133]. (Citations omitted)
In R v Landmeter,[22] Vanstone and Bampton JJ said:
We reiterate the view expressed in R v A, GP by Vanstone J that evidence of the fact of a complaint about an alleged sexual offence answers the description of an initial complaint and is admissible, even where it is not accompanied by a description of the offending conduct. That is so, provided the evidence is capable of being probative in terms of the purposes set out in s 34M(4)(a)(i) or (a)(ii), that is, to inform the jury as to how the allegation first came to light or as evidence of the consistency of conduct of the alleged victim.[23]
[22] [2015] SASCFC 3, (2015) 121 SASR 522.
[23] At [12].
The complaint made by the complainant to R was relatively general and did not descend into the detail narrated by the complainant during her evidence. The complaint was as referable to the sexual intercourse the subject of count 3 as it was to the sexual intercourse the subject of counts 1 and 2. Thus, on the complainant’s evidence at trial, the sexual intercourse the subject of count 3 was very rough, the complainant told the appellant to stop by her conduct in straightening her legs and also attempting to push him off with her knees, and the appellant did not do so. In this respect, the fact that the complainant conveyed her attitude by conduct rather than words is not significant because she equally conveyed her attitude in respect of count 1 by conduct rather than words. While R gave evidence that complainant told her that it started off good and during the night it became not what she wanted, a reference to it turning bad during the night is consistent with a reference by the complainant to the conduct the subject of all three counts.
The appellant’s second contention that the evidence was not referable to count 3 must be rejected.
Directions concerning complaint evidence
The appellant makes four complaints concerning the Judge’s directions to the jury concerning the complaint evidence.[24]
[24] Ground 1A.4 permission to appeal granted. Grounds 1A.1-1A.3 permission to appeal referred to Full Court.
Direction concerning need to find complaint of sexual offence
The appellant seeks permission to appeal on the ground that the Judge failed to direct the jury adequately as to the need to find whether the complaint to D related to a sexual offence.[25]
[25] Ground 1A.1.
There was no challenge by the defence in cross-examination or closing address to the evidence given by D. Nor was there any suggestion by the defence that the complaint of which D gave evidence did not relate to a sexual offence. The appellant in his evidence denied that he choked the complainant at all and the defence case was necessarily that the complainant lied to D in her account to him.
No request was made by defence counsel for a direction on this topic, no complaint was made after the Judge gave directions on this topic and no request was made for any further direction or redirection. This does not necessarily prohibit the point being taken on appeal, but the absence of objection at trial is a factor to be taken into account in assessing whether there was a miscarriage.[26]
[26] R v Lowe [2016] SASCFC 118 at [12]-[14] per Peek and Doyle JJ (with whom Nicholson J agreed).
The Judge in summing up the case directed the jury:
It will be a matter for you to determine whether that is what [the complainant] said to [R] and later to [D], and whether what she said to them was genuine and related to her being sexually assaulted by [the appellant]
and a short time later repeated this direction:
Once again, I stress before you can use the evidence of complaint and of her observed state of upset, in the limited ways I have directed you, you must first be satisfied that they directly relate to her claim of having been sexually and physically assaulted by [the appellant] as she described to you…
The Judge also referred during his summing up to the addresses of counsel including the address by counsel for the defence that the complainant did not tell her friends that she was raped.
There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
Direction concerning counts to which complaint to R referred
The appellant seeks permission to appeal on the ground that the Judge failed to direct the jury as to which counts the complaint to R referred.[27]
[27] There is no ground of appeal which raises this contention but it was argued on appeal in lieu of ground 1A.2 which was not pursued and which had complained that the Judge failed to direct the jury adequately as to the correct approach to the conflict in the evidence of the complainant and the complaint witnesses.
The appellant contends that the complaint to R could relate only to counts 1 and 2 and the jury should have been directed that they could not take it into account in assessing the credibility of the complainant in respect of count 3.
In R v S, DD,[28] the accused was charged with one count of indecent assault of his daughter occurring at the family home at Eden Street after the complainant turned 12 particularised as occurring between 10 July 1986 (when the complainant turned 12) and 31 July 1987 (when the family left Eden Street) and one count of unlawful sexual intercourse occurring in the family home at Charlton Gully before the complainant turned 17 particularised as occurring between 31 July 1987 (when the family moved to Charlton Gully) and 10 July 1991 (when the complainant turned 17). The conduct in each case was alleged to be digital penetration of the vagina. The complainant gave evidence of extensive uncharged conduct occurring on an approximately fortnightly basis over a lengthy period in each case involving digital penetration of the vagina without significant distinction between occasions and little distinction between the occasions the subject of counts 1 and 2 and the uncharged conduct. The accused was also charged with a third count of unlawful sexual intercourse involving penile penetration over the same date range as count 2.
[28] (2010) 109 SASR 46.
Evidence was led of three complaints by the complainant in June 1988. Evidence was led from S of a complaint of sexual abuse. Evidence was led from a police officer of a complaint of numerous occasions involving penetration of the vagina with the finger. Evidence was led from the complainant of an intermediate complaint to a school counsellor, but the counsellor did not give evidence and it was an agreed fact that the counsellor did not recall a complaint.
This Court held that evidence of each of the three complaints was admissible under section 34M. However, the trial judge directed the jury only in abstract terms referring generically to the complaints and their potentially showing how the allegations came to light and whether they demonstrated consistency of conduct without referring to counts 1 or 2 or any specific conduct. Taking into account the date range of the alleged offence the subject of count 2, there was no basis on which it could be found with confidence that the June 1988 complaints post-dated that alleged offence. In these circumstances it was necessary for the trial judge to direct the jury of the need for a link to be established between the complaints and each of count 1 and count 2.
Duggan J (with whom Anderson J agreed) said:
If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts.
It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.
Furthermore, the jury should have been told that the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency. The summing up did not include such a direction.[29]
Peek J said:
His Honour directed that the jury might use the evidence of complaint if they considered that it demonstrated consistency of conduct. He did not relate the complaint evidence to the different counts and I have no doubt that the jury would have interpreted the directions to relate to J’s general claim of sexual interference.
Directions to the jury as to the ways that the complaint evidence could, or could not, be used in relation to the particular counts, together with the reasons for a difference as between the counts, were required. Such directions were required to focus the jury’s attention on the fundamental distinction, referred to above, between the jury considering whether one or more of the particular offences counts 1, 2 or 3 were proven as distinct from considering whether the appellant committed a series of offending of the same type as the charged counts.[30]
[29] At [7]-[9].
[30] At [126]-[127].
The question what directions are required to be given to a jury depends on the facts and circumstances of each individual case including the manner in which the case is conducted by the parties and the identity of the issues. It does not follow from this Court’s decision in R v S, DD that in every case in which there are multiple counts alleging sexual offences, regardless of the circumstances, directions of the type required in that case will be required.
In the present case, the conduct the subject of all three sexual offence counts occurred over a few hours and the complaint to R was made within a further few hours. The complaint was expressed in short and relatively general terms and was capable of applying to all three sexual offences charged. The case was straightforward and the issues were clear and confined. The Judge gave a standard separate consideration direction. The Judge directed the jury that it was a matter for the jury to assess whether the complainant’s complaint was consistent or inconsistent with her evidence and whether it enhanced or undermined her credibility. No request for any further direction was made by defence counsel at trial. In the circumstances, the Judge’s directions were adequate.
I would grant permission to appeal on this ground but reject this ground of appeal.
Direction concerning distinction between permissible and impermissible uses
The appellant seeks permission to appeal on the ground that the Judge erred in directing the jury that it was illogical for the complaint evidence to bolster credibility unless it was true.[31]
[31] Ground 1A.3.
The Judge directed the jury concerning the permissible purposes and the impermissible purpose of the complaint evidence. In so doing, the Judge drew the distinction required by section 34M to be drawn between the complainant’s credibility or truthfulness on the one hand and whether her evidence as to the sexual acts was true on the other hand. The Judge emphasised to the jury that it could not use the complaint evidence as evidence of the truth of what the complainant told R and D. The Judge said:
Importantly, if you do accept that her complaints to her friends were indeed genuinely related to having been sexually assaulted by Mr Moores, then what she said to each of them about that does not amount to the truth of what she told them; that is you cannot use what she told either [R] or [D], if you accept that they were genuine complaints, as some form of independent evidence which supports the fact that she was raped and assaulted in the way she said in evidence. Although when assessing her credibility or truthfulness about those matters, you may take into consideration that she complained about them, as demonstrating consistency of conduct or behaviour on her part.
If this direction sounds a little contradictory, it is not intended to be so, although I can well understand the apparently illogicality of using something to support a witness’ credibility based on something that you cannot ever use as the truth. How else can something strengthen or bolster a person’s credibility unless it is true? But that is how the law permits you to use that evidence and you may only use that evidence in the two ways I have directed you.
I repeat: it is very important that this evidence is only used by you in the very limited ways I have outlined, and not as some additional or independent evidence of proof of the offences charged.

The appellant contends that the direction in the middle paragraph extracted above had the potential to confuse the jury as to the proper use of complaint evidence and invited the jury to assess the truth of the complaint and cause a real risk that the jury would use the evidence of the complaint for its truth rather than for the permissible use of assessing consistency of the complainant’s conduct.
Again, no complaint was made a trial about the Judge’s direction and no request for a redirection was made.
Although the observation in the middle paragraph extracted above is understandable – on the facts of this particular case, the issue of the complainant’s credibility and the issue whether she was telling the truth about the sexual acts the subject of the charges were in a practical sense essentially the same – it was ill-advised and the Judge should have confined the directions to the permissible uses and the impermissible use. However, the Judge did not say that the directions as to permissible and impermissible uses were illogical. The Judge referred merely to an “apparent” illogicality and went on to say that his directions were not meant to be contradictory. The impugned passage was merely a prelude to explaining to the jury the importance of following the Judge’s directions as to the permissible and impermissible uses of the complaint evidence. The Judge clearly and repeatedly directed the jury that it could not use the evidence of what the complainant told R and D as evidence of the truth of that account and that direction was embodied in the impugned passage in the middle paragraph extracted above as well as being reiterated immediately afterwards in the following paragraph.
Given the Judge’s directions about the impermissible use of the complaint evidence and considering the Judge’s directions as a whole, there is no appreciable risk that the jury used the complaint evidence for the impermissible purpose and no appreciable risk of a miscarriage of justice.
I would grant permission to appeal on this ground but reject this ground of appeal.
Direction concerning distinction between counts 3 and 4
The appellant appeals on the ground that the Judge erred in failing to direct the jury adequately as to the permissible and impermissible use of the complaint evidence specifically in relation to counts 3 and 4.[32]
[32] Ground 1A.4.
The appellant contends that, because count 4 was not a sexual offence within the meaning of section 34M, evidence of complaint to D of being choked was inadmissible evidence from D as hearsay and inadmissible evidence from the complainant as a prior consistent statement.
The appellant contends that the Judge’s directions as to the complaint evidence had the effect of inviting the jury to use the evidence of the complaint to D to support the complainant’s credibility in respect of count 4. The complainant contends that the jury ought to have been instructed to ignore the complaint evidence entirely when considering its verdict in respect of count 4.
Again, no complaint was made at trial about the Judge’s directions about the complaint evidence and no request for a redirection was made.
The Judge made it clear to the jury that the complaint evidence could only be used in relation to the sexual offence charges. In the course of giving directions to the jury about complaint evidence during the complainant’s evidence in chief before the complainant gave evidence about the complaints, the Judge gave a legal direction to the jury which included the following passages:
Ordinarily what a witness tells someone else about what happened to them is not permitted to be given in evidence… Similarly, when the person to whom the account is made usually cannot give evidence of what they were told as that would be hearsay. However, there is an exception to the rules of evidence which only applies in sexual assault cases.
…
The evidence is permitted to be given for two purposes only. The first is that it informs you when it was that [the complainant] first raised her allegations of being sexually assaulted …. The second use of this evidence is to enable you to determine whether what she has said by way of complaint has the capacity to demonstrate what the law terms consistency of conduct on her part, and whether any such consistency has the capacity to enhance her credibility in the sense that what she complained about is what you would have expected her to have said if she had, in fact, been sexually assaulted in the way she has told you in her evidence.
The rationale behind this rule of evidence is that ordinary human experience suggests that you would expect someone who was sexually assaulted to complain about what happened to them, hence the legal expression consistency of conduct, which simply means conduct which you would expect of someone in the circumstances.
(Emphasis added)
The fact that the exception applied only in relation to sexual assaults was reiterated by the Judge during his Honour’s summing up to the jury, which included the following passages:
The evidence relating to each of these two conversations was admitted for two specific and limited purposes. The first was to inform you of when each of those particular allegations of sexual misconduct first came to light…
The second use of this evidence is that it is considered by the law that the making of a complaint of a sexual assault is evidence of what the law terms the ‘consistency of conduct’ of an alleged victim of a sexual assault…
Ordinarily the rules of evidence would prevent you from hearing what a witness has told someone else about the commission of an alleged crime because it is considered to be a self-serving statement… However, an exception to this general rule applies in cases involving allegations of sexual assault. This is because the law says that you would expect someone who was sexually assaulted to complain about what happened to them. In other words what [the complainant] first told [R], and later expanded on when she spoke to [D], is evidence which you may use when assessing her credibility or truthfulness concerning her allegations of having been raped, and I include here of having been choked as that was, on her evidence, all part of the sexual violence that was taking place at the time.
(Emphasis added)
It is clear, and the trial was conducted on the basis, that the alleged choking of the complainant was an integral part of the alleged rape. It did not merely happen to occur at the same time but was part of the rape itself. The jury was entitled to use the complainant’s complaint to D about being choked during sex as complaint evidence in respect of count 3. The jury would have understood from the Judge’s reference to the choking being part of the sexual violence taking place at the time that this was the permissible use to which the Judge was referring in his Honour’s directions about the exception to the self-serving statement and hearsay rules which applied only in the case of sexual offences.
Given the repeated directions about use only in respect of sexual offences, the jury would have understood that the exception did not apply to count 4, being an offence of causing harm with intent to cause harm. While an express direction to this effect may have been desirable, in the circumstances there was no appreciable risk of a miscarriage of justice.
I would reject this ground of appeal.
Directions concerning post-offence Facebook text messages
The appellant makes two complaints concerning the Judge’s directions in relation to the Facebook text messages that passed between the appellant and complainant between 28 March and 2 April 2015.[33]
[33] Grounds 2.1 and 2.3. No submissions were made on appeal in support of ground 2.2.
Directions concerning complainant’s messages
The appellant appeals on the ground that the Judge failed to direct the jury adequately as to the proper use that could be made of his responses in the Crown case.[34]
[34] Ground 2.1. The ground as drafted refers also to use of the complainant’s text messages in the defence case but no submissions were made on appeal in support of this part of the ground.
The appellant contends that, while the Facebook text messages sent by the appellant to the complainant may have been admissible as admissions (as to which the appellant takes no point), the text messages sent by the complainant to the appellant were inadmissible prior consistent statements. The appellant contends that the Judge ought to have directed the jury to that effect.
In R v Usher,[35] the prosecution tendered messages passing between the accused and complainant via Facebook. Unlike the present case, the accused did not make any admissions in his messages and the complainant’s messages were tendered by the prosecution to explain how the complainant was prompted to report the alleged offending to the police and as being relevant to his credibility. Unlike the present case, the defence objected to the admissibility of the messages and the Judge overruled that objection, permitting use of the complainant’s messages for the first purpose advanced by the prosecution. Kourakis CJ (with whom Peek J agreed) held that the complainant’s messages were not admissible, saying:
The prosecution contend that the exchange was relevant and admissible to explain how and when the complainant had first been prompted by the appellant’s actions in contacting him to approach the police. That contention must be rejected…
The Facebook exchange between the appellant and the complainant must be analysed in its component parts. The appellant’s Facebook message was, in my view, admissible because it was open to the jury to find that it contained implied admissions of an improper association with the complainant. ... However, the prosecution did not rely on that use.
Turning to the complainant’s response, it was a non-testimonial statement which contained an implicit assertion of improper conduct by the appellant. In Nominal Defendant v Clements, … the modern rule of exclusion of prior consistent statements was stated by Menzies J in these terms:
… it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence for witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence.
The prosecution submission that the complainant’s response was relevant because it showed that the complainant was reticent to speak to the appellant must also be rejected…
The evidence of the complainant’s Facebook response was therefore wrongly received.[36]
[35] (2014) 119 SASR 22.
[36] At [64]-[68]. (Citations omitted)
The texts exchanged between the appellant and complainant between 28 March and 2 April 2015 were as follows:
A.    House stil standin
A.      standing*?
C.Wtf happened? I thought we just clicked. Was actually really having fun. Not so fun though when I’m the one getting hurt. Even after telling you to settle down, you couldn’t of given a fuck. I’m fucken black and blue! That’s not cool. Spose I just figured you thought a bit more of me than that.
A.    sorry if i was too rough I shouldnt have drunk so much.
i did recall u enjoying it fot the most part
we do click ur a really cool chick i was just too drunk ..sorry
do you hate me now ??
C.I don’t hate you. Ur a cool guy. I like being around u. Feel like I met my twin. Just confused me
A.    good
its been a long time between ..just got abit carried away if its any cosolation my knob is red
i didn’t mean any disrespect or anything ..dont think that
can we just forget like the last quarter of my performance
C.So how the fuk am I meant to know if I’m dealing with jeckle or hyde?
I thought it was just a pretty straight forward easy thing. Felt safe with you.
A.sorry been leaving early n getn hm late. I dont know what to say i think ive put u off now..maybe were more compatible as friends than in bed, its up to u if u want to see me again or not
C.Not compatible? Ur really not getting this hey. I’ve had to go to doctors for “internal trauma”, I’ve bled all fuken week doubled over in pain, not to mention tryin to conceal the bruising from u choking me out. What part of stop didn’t u get? No disrespect u reckon?
A.i feel really bad now ..im not a bad guy i think u know that .. i wanna make it up to u somehow . i will u call you tonight if thats ok
No objection was made by defence counsel to tender of the Facebook text exchanges or to the admissibility of the complainant’s text messages as part of that exchange. Defence counsel evidently made a forensic decision that the complainant’s text messages advantaged the defence case. The prosecutor in her address to the jury relied only on the Facebook text exchange for admissions that she said were made by the appellant and did not rely on the complainant’s texts other than to understand the appellant’s asserted admissions.
Defence counsel in his address to the jury suggested that the complainant’s texts revealed increasing anger by the complainant because the appellant only wanted to be friends with her and she was “a woman scorned”, suggesting that this was a motive for the rape allegations. Defence counsel heavily relied on the positive aspects of the complainant’s text messages such as the message that she did not hate the appellant, he is a cool guy and she likes being around him as contra-indicative of her having been the victim of violent acts of rape.
No request was made by defence counsel for a special direction in relation to the Facebook text messages and no request was made for any further directions after the Judge summed up to the jury in relation to them.
There is no ground of appeal that the complainant’s text messages were not admissible for the purpose of understanding the appellant’s text messages which in turn were admissible as admissions relied on by the prosecution. In the appellant’s summary of argument, there is a submission that the complainant’s text messages “ought not to have been received” because they were highly prejudicial prior consistent statements but this submission was not developed and was not advanced during hearing of the appeal. It appears to have been intended to support the ground of appeal that the Judge should have directed the jury not to use them as evidence of the truth of their contents. In any event, the complainant’s text messages were clearly admissible for the purpose of understanding the appellant’s text messages as asserted admissions relied on by the prosecution.
The Judge directed the jury that, before it could use the Facebook exchanges as admissions by the appellant of sexual violence towards the complainant, it must be satisfied beyond reasonable doubt that was the only explanation open from those messages. The Judge went on to remind the jury in some detail of defence counsel’s submissions that the complainant’s text messages suggested a motive for the rape allegations and were also contra-indicative of the complainant having been raped.
Given the manner in which the trial was conducted by defence counsel, the manner in which both counsel addressed the jury concerning the Facebook text exchanges and the directions the Judge gave to the jury about the permissible use of the Facebook exchanges, there is no appreciable risk that the jury used the complainant’s text messages against the appellant as evidence of the truth of their content or to bolster the complainant’s credit.
I would reject this ground of appeal.
Use of appellant’s Facebook text messages
The appellant appeals on the ground that the Judge erred in failing to direct the jury adequately as to the permissible use of the Facebook text messages if the jury was not satisfied that the text messages constituted admissions.[37]
[37] Ground 2.3.
The appellant contends that the effect of the Judge’s direction to the jury about the need to be satisfied beyond reasonable doubt that his text messages comprised an admission of sexual violence left it open to the jury to use them to reason to guilt without having been satisfied beyond reasonable doubt that they constituted admissions. The appellant relies on the italicised portion of the Judge’s direction to the jury reproduced below:
[The prosecutor submitted] that a fair consideration of the Facebook messages between [the appellant] and [the complainant] that followed from 28 March 2015 … support what [the complainant] told you happened between them was the truth.
I direct you, members of the jury, given the importance placed by the prosecutor upon the interpretation of those Facebook messages, that before you can reason as [the prosecutor] contended you should, namely that [the appellant] has effectively accepted what [the complainant] was asserting as an admission of sexual violence towards her, you must be satisfied beyond reasonable doubt that is the only explanation open from those messages. If there is another reasonable explanation for the meaning behind those messages, such as [the appellant] explain them to you, then you must not use them in the manner submitted by [the prosecutor] as statements admitting to sexual violence.
(Emphasis added)
No request was made by defence counsel for any redirection.
When the italicised passage relied on by the appellant is considered in context, it is quite clear that the Judge was directing the jury that the only use of the appellant’s text messages was as admissions, and the jury could only use them as admissions if it was first satisfied beyond reasonable doubt that this was the only explanation for them. The Judge did not leave open any other use of them and this would have been illogical on the Judge’s directions.
I would reject this ground of appeal.
Discreditable conduct evidence: uncharged acts
The appellant makes two complaints concerning the Judge’s directions concerning the uncharged acts evidence.[38]
[38] Ground 4.
Directions assumed truth of allegations
The appellant seeks permission to appeal on the ground that the Judge erred in directing the jury that the uncharged acts were “unwanted” and “whilst it does paint him in a particularly bad light” where such directions presumed guilt or otherwise assumed they were illegal or improper.[39]
[39] Ground 4.1.
When the impugned statements by the Judge are considered in context, it is clear that the Judge was referring to the complainant’s evidence, which was obviously in dispute and which the jury was called on to resolve and not expressing a personal view that the jury should accept the complainant’s evidence.
The Judge drew a distinction between the charged acts and the earlier uncharged acts of anal intercourse. The Judge summarised the complainant’s evidence concerning the uncharged and charged acts in chronological order and pointed out to the jury that the appellant’s account was quite different. The Judge summarised the appellant’s account of the sexual acts in chronological order. The Judge then said:
And so members of the jury, as you can quite obviously see, the two accounts given are indeed irreconcilable. As you have been told by counsel, someone has lied to you, as this is not a case of mistaken perceptions of what happened.
The Judge identified the four uncharged acts of anal intercourse and said:
What is the relevance of these other uncharged and unwanted acts of sexual intercourse to this case? All of that evidence is called discreditable conduct evidence in our courts. You have heard it in detail from [the complainant] and so it is extremely important that you follow my directions on how you can use this evidence, but, just as importantly, how you must not misuse this evidence.
[The appellant] is not on trial charged with any criminal offences other than those charged in the Information. This evidence has not been presented to you by the prosecution to paint him as a bad person and from which you can infer he must therefore have committed the charged offences…
…
As I have said, this evidence was permitted to be given for very specific purposes. If you are satisfied of the truth of that evidence given by [the complainant] then it may be used by you in a number of permissible ways. Crucially, if you do accept her evidence about those other instances of non-consensual sexual activity it must not be used by you to reason that because [the appellant] has engaged in non-consensual sexual activity before then he must have or he is more likely to have committed the offences charged. That was not the reason this evidence was presented to. As I said, whilst it does paint him in a particularly bad light you must not reason that he is therefore the sort of man who committed the offences charged.

No request was made by defence counsel for any redirection.
It is quite clear when considered in context that the Judge’s references to the complainant’s evidence of the uncharged acts “painting the appellant in a bad light” were only on the premise that the jury accepted that evidence and that evidence was very much in dispute. Equally, the Judge’s reference to the uncharged acts being “unwanted” was clearly premised on that assumption.
There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
Compliance with section 34R
The appellant appeals on the ground that the Judge’s directions failed to comply with section 34R of the Evidence Act 1929 (SA).[40]
[40] Ground 4.2.
Section 34R requires a trial judge to explain to the jury the purpose for which evidence of discreditable conduct may be used (as well as the impermissible purpose).
The Judge identified four permissible purposes of the evidence. These were that it placed the charged offences into their proper context; it might explain why the complainant remained in the appellant’s house, being out of fear; it was relevant to whether the complainant was consenting to the charged acts; and it was relevant to whether the appellant knew that the complainant was not consenting to the charged acts.
The appellant did not at trial object to the admissibility of the uncharged acts. The appellant did not request a special direction in relation to discreditable conduct and did not request any redirection after the Judge had given directions in relation to it.
The appellant contends on appeal that, while the first (contextual) purpose was apposite to counts 1 and 2, the evidence of the uncharged acts was of little, if any, probative value in respect of counts 3 and 4 because the context had been overtaken by events: hence the jury should have been directed to ignore the evidence of the uncharged acts when considering counts 3 and 4. There is no merit in this submission: all of the uncharged and charged acts occurred over a period of hours and the entire events of that night were clearly relevant to provide a context for what followed up to the point when the complainant left the house.
The appellant contends that the uncharged acts were in any event irrelevant to providing context for count 4. However, the choking the subject of count 4 was, on the prosecution case, an integral part of the rape the subject of count 3 and there is no merit in this submission.
The appellant contends that the third and fourth purposes invited the jury to engage in circular reasoning: if the complainant was not consenting to the uncharged acts, it must automatically follow that she was not consenting to the charged acts. The Judge directed the jury that it could not use the evidence to reason that, because the appellant acted in the way the complainant described in respect of the uncharged acts, the appellant was therefore likely to have committed the charged acts. The jury was clearly directed that it was required to consider separately whether the complainant consented, and whether the appellant knew that the complainant was not consenting, to each of the three acts of intercourse the subject of the charges. There was no invitation to the jury to engage in circular reasoning.
The appellant submits that evidence of the uncharged acts was not even admissible in respect of counts 3 and 4 and the jury ought to have been directed to ignore that evidence when considering their verdicts on those counts. There is no ground of appeal that the evidence was not admissible on counts 3 and 4 but in any event this submission is without merit for the reasons given above.
I would reject this ground of appeal.
Directions concerning intoxication
The appellant makes two complaints concerning the Judge’s directions concerning the intoxication.[41]
[41] Grounds 6.2 and 6.3. No submissions were made on appeal in support of ground 6.1 which is without merit in any event because the Judge gave directions about the effect of alcohol on recollections and directed the jury to consider the effects of alcohol on the reliability of the complainant's evidence of what happened.
Directions concerning effects of intoxication on knowledge of lack of consent
The appellant appeals on the ground that the Judge erred in failing to direct the jury concerning the effect of intoxication on proof of his mental state as to whether the complainant was not consenting to the sexual intercourse relevantly in respect of count 3.[42]
[42] Ground 6.2.
The appellant gave evidence that, over the course of the evening, he drank approximately two thirds of a bottle of Drambuie mixed with Coke. He said that during the evening up to about 3 am when he went to bed he felt mildly drunk. There was no suggestion in his evidence that he was mildly drunk or appreciably affected by alcohol after he awoke in the morning when the offences the subject of counts 3 and 4 were allegedly committed.
The Judge did not give an explicit direction that the jury should take into account the potential effects of alcohol on the appellant’s perceptions whether the complainant was consenting to sexual intercourse the subject of the first three counts. However, the Judge did give to the jury a general direction on the potential effects of alcohol which included the following:
You will know from your own experiences and common knowledge that drinking alcohol can affect people in many different ways… Drinking too much can obviously cloud a person’s thought processes. It can impair a person’s judgment and the choices or decisions they make.
In light of this direction, and the fact that the jury was not directed that it was not to take into account the effects of alcohol on the appellant’s perceptions as to the complainant’s consent, it is likely that the jury would have done so.
Before the Judge summed up to the jury, the following exchange took place between the Judge and defence counsel:
HIS HONOUR:      Mr Caldicott, the intoxication on the part of Mr Moores has no part to play … in a case of rape.
…
MR CALDICOTT:    I accept that.
HIS HONOUR: On the part of Mr Moores [it] has no part to play in a case of rape. It is specifically excluded by s.268 of the Act.
MR CALDICOTT:    I was thinking about in terms of intoxication the assessment of witnesses, not as to the question of specific intention.
No request was made by defence counsel that the Judge address the jury on the question whether the appellant’s consciousness was or may have been impaired by intoxication to the point of criminal irresponsibility. On the contrary, defence counsel at trial accepted that intoxication was irrelevant to the question whether the appellant knew that the complainant was not consenting to the sexual intercourse.
The appellant takes a different position on appeal. The appellant acknowledges that there are two potential obstacles to his contention that he needs to overcome. The first potential obstacle is that section 268 of the Criminal Law Consolidation Act 1935 (SA) provides that, in a case of rape, subsections (2) and (3) operating in conjunction provide that, if “the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence”, intoxication is irrelevant to the question whether the appellant knew that the complainant was not consenting to the sexual intercourse or was reckless as to such lack of consent. The appellant seeks to overcome this obstacle by contending that there is a precondition in subsection (2) that was not satisfied in the present case. The appellant contends that on its proper construction subsection (2) creates a precondition for its operation which only exists when the defendant is incapable as a result of intoxication of knowing whether the complainant was consenting to sexual intercourse and not merely if the appellant did not know that the complainant was not consenting to the sexual intercourse as a result of intoxication.
The second potential obstacle is that section 269 provides that, on the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility is not to be put to the jury by the Judge unless the defendant or the prosecutor specifically asks the Judge to address the jury on that question. The appellant acknowledges that no such request to the Judge was made, but contends that there is a residual discretion at common law for the Judge to address the jury on that question in exceptional circumstances and in certain circumstances there will be a miscarriage of justice if the Judge does not do so.
Sections 268 and 269 need to be understood against the background of the common law, which they modify in respect of the impact of intoxication on the mental element of crime and jury directions in relation thereto.[43]
[43] R v Childs [2007] SASC 195, (2007) 98 SASR 111 at [80] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
At common law, it is an element of every common law offence and, absent clear statutory exclusion, every statutory offence that the act or omission comprising the physical element (or actus reus) of the offence was voluntary, ie a conscious and deliberate act (or omission[44]) by the exercise of will. This element is generally called “voluntariness” or “basic intent”.[45] This rule is so basic that it is sometimes said that voluntariness is part of the physical element, as opposed to the mental element, of an offence.[46]
[44] Because the alleged offences in the present case involved acts rather than omissions, I refer henceforth only to acts on the understanding that they generally encompass omissions as well.
[45] R v Tucker (1984) 36 SASR 135 at 138-139 per King CJ (with whom Mohr and Bollen JJ agreed); R v Childs (2007) 98 SASR 111 at [71]-[72] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
[46] See for example R v O’Connor (1980) 146 CLR 64 at 97 per Stephen J, 108 per Mason J and 125 per Aicken J. This is the approach taken by the Commonwealth Criminal Code: see section 4.2.
At common law, it is an element of every common law offence and of most statutory offences that (depending on the offence) the defendant intended the consequences or certain consequences of his or her act and/or was reckless as to such consequences and/or knew the matters comprising the objective elements and/or had some other specific state of mind in relation thereto. This mental element (or mens rea) is often called “specific intent” (or “actual intent”) even though in the strict sense of the word “intent” it encompasses states of mind other than intention.[47]
[47] R v O’Connor (1980) 146 CLR 64 at 87-88 per Barwick CJ, 89 per Gibbs J, 95 per Stephen J, 106 per Mason J, 112 per Murphy J, 120 per Aickin J and 127 per Wilson J; R v Tucker (1984) 36 SASR 135 at 139 per King CJ (with whom Mohr and Bollen JJ agreed); R v Childs (2007) 98 SASR 111 at [71]-[72] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
At common law, by the end of the twentieth century it had become established that there was no reason to distinguish between the effect of voluntary intoxication on voluntariness and specific intent. Accordingly, in some cases, depending on the risk of a miscarriage of justice, it was necessary for a trial judge to direct the jury to this effect.[48]
[48] R v Tucker (1984) 36 SASR 135 at 138-140 per King CJ (with whom Mohr and Bollen JJ agreed; R v Childs (2007) 98 SASR 111 at [71]-[76] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
Section 267A defines the following expressions used in section 268 relevant to the issues raised by this ground of appeal:
consciousness includes—
(a)     volition;
(b)     intention;
(c)     knowledge;
(d)     any other mental state or function relevant to criminal liability;
objective element of an offence means an element of the offence that is not a subjective element;
subjective element of an offence means a mental element of the offence and includes voluntariness;
Subsection 268(6) defines the expression “defendant's consciousness… impaired by self-induced intoxication to the point of criminal irresponsibility” for the purposes of section 268 as follows:
A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
Subsections 268(1) to (3) provide:
268—Mental element of offence to be presumed in certain cases
(1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)     consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)     However, subsection (2) does not extend to—
(a)     a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b)     except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
Subsection 269(2) defines the expression “defendant's consciousness impaired by self-induced intoxication to the point of criminal irresponsibility” in different terms for the purposes of section 269 as follows:
A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.
Subsection 269(1) deals with directions to the jury (and consequentially addresses by the prosecutor and defence) in relation to the effect of intoxication on the mental element of an offence. It obviously only applies when section 268 does not operate to render intoxication irrelevant to the mental element of the offence, such as when the rape exclusion operates under section 268. Subsection 269(1) provides:
269—Question of intoxication must be specifically raised
(1)On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility—
(a) is not to be put to the jury by the judge, the prosecutor or the defendant; and
(b) if raised by the jury itself, is to be withdrawn from the jury's consideration,
unless the defendant or the prosecutor specifically asks the judge to address the jury on that question.
The appellant accepts that, when the offence charged is rape, the effect of subsections (2) and (3) operating in conjunction is that, if the precondition contained in subsection (2) is satisfied, self-induced intoxication is to be ignored in determining both voluntariness and the mental element (“the defendant knows or is recklessly indifferent to the fact that the other person does not so consent to the sexual intercourse”). Before addressing the appellant’s contention that one of the preconditions is not satisfied, it is useful to examine how subsections (2) and (3) operate in conjunction to achieve this result.
The structure of section 268 is that first subsection (2) creates a general rule that, for all offences, if the precondition contained in subsection (2) is satisfied, self-induced intoxication is to be ignored in determining both voluntariness and the mental element. Subsection (2) uses the term “voluntary” to designate the voluntariness (or “basic intent”) element of an offence. It uses the term “intended” to designate the “specific intent” (or mental element) of the offence. This is plain from the contra-distinction between the reference in subsection (2) to “voluntary” and the reference to “intended” coupled with the fact that subsection (3) operates to exclude the mental element from the operation of subsection (2): there would be nothing to exclude if subsection (2) did not apply to the mental element in the first place.
Secondly, subsection (3) creates an exception to that general rule in respect of the mental element.[49] Although read literally subsection (3) might be thought to be confined to mental elements comprising recklessness and knowledge without encompassing intention, such a reading would be inconsistent with the example (which forms part of the Act[50]), which illustrates that intoxication is relevant to a mental element of intention to cause death or grievous bodily harm. It would also be incongruous with section 269, which proceeds on the basis that directions can be given to the jury concerning the relevance of intoxication to all forms of mental element (except in the case of the rape exclusion). Accordingly, subsection (3) has been treated as applying to all forms of the mental element of an offence (as opposed to voluntariness), including intention to cause a consequence.[51]
[49] R v Childs (2007) 98 SASR 111 at [80] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
[50] Acts Interpretation Act 1915 (SA) section 19(1)(c).
[51] R v Childs (2007) 98 SASR 111 at [80] per Doyle CJ and Vanstone J (with whom Kelly J agreed).
Thirdly, subsection (3)(b) excludes from the operation of the subsection (3) exception the offence of rape, with the effect that intoxication is to be ignored in determining the mental element of rape.
Fourthly, although not relevant to the present appeal, subsection (1) overrides the combined effect of subsections (2) and (3) in a case in which the defendant forms an intention to commit the offence before becoming intoxicated and consumes intoxicants to strengthen his or her resolve to do so.
The appellant contends that subsection 268(2) creates a precondition to its operation that “the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility” and this precondition is ambiguous. It is contended that it might mean that the mental element of the offence cannot be established because the defendant was incapable of forming the requisite mental state because of impairment of consciousness by intoxication; or it might mean that the mental element of the offence is not in fact established because the defendant did not in fact form the requisite mental state (even if not incapable of doing so) and impairment of consciousness by intoxication played a part therein. The appellant contends that the ambiguity should be resolved in favour of the first alternative.
This submission is misconceived. Subsection 268(2) does not create a precondition to its operation in this manner. Rather it operates whenever an issue would otherwise arise (but for the operation of section 268) whether the defendant would be entitled at common law to an acquittal because of a lack of voluntariness or a lack of the requisite mental element. This is clear from the definition in subsection (6) of impairment of consciousness to the point of criminal irresponsibility; from the operation in conjunction of subsections (2) and (3); from the use in subsection (1) of the same expression; and from the use in subsection 269(1) of the same expression. The reference to “(or may have been)” in the phrase “was (or may have been) impaired” shows that the subsection operates whenever the issue arises.

It is not necessary to address the second obstacle in respect of count 3 because the appellant cannot overcome the first obstacle. Indeed, the appellant was advantaged by the fact that the Judge did not positively direct the jury to ignore any intoxication of the appellant on the issue of knowledge that the complainant was not consenting to intercourse or recklessness as to such consent because, as observed above, the jury was likely to assume that it could take intoxication into account.
I would reject this ground of appeal.
Directions concerning effect of intoxication on intent to cause harm
The appellant appeals on the ground that the Judge erred in failing to direct the jury concerning the effect of intoxication on proof of the appellant’s intention to cause harm in respect of count 4.[52]
[52] Ground 6.3.
No request was made by defence counsel to the Judge to give a direction in respect of count 4. In the exchange between the Judge and defence counsel extracted at [121] above, there was no suggestion by the Judge that intoxication was not relevant to specific intent in respect of count 4 and on the contrary the Judge’s reference to rape as an exception suggested the opposite. Defence counsel did not request a direction in respect of count 4 and it is likely that this was a decision made for forensic reasons. There can be no suggestion that defence counsel’s conduct was a result of the observation made by the Judge. There is no issue of competence of counsel raised on appeal.
Subsection 269(1) read literally positively precludes a trial judge from raising with the jury the question whether the defendant's consciousness was or may have been impaired by intoxication to the point of criminal irresponsibility unless specifically requested to do so.
In R v B, MA,[53] Gray and Sulan JJ considered whether the discretion, and in some cases duty, of a judge at common law to direct a jury concerning the effect of intoxication on the mental element of an offence in the absence of a request by the defence is consistent with the operation of subsection 269(1). Their Honours had already concluded at [9] that no direction as to the effect of intoxication on basic intent or specific intent would have been required at common law in the facts and circumstances of the case. Their Honours went on at [54] to express the view obiter that subsection 269(1) does not on its proper construction preclude a trial judge from raising with the jury the question whether the defendant's consciousness may have been impaired by intoxication to the point of criminal irresponsibility without being specifically requested to do so in a case in which the judge is required at common law to do so to ensure a fair trial. By contrast, David J at [76] construed section 269 to the contrary effect.
[53] [2007] SASC 207, (2007) 99 SASR 384.
The reasoning and conclusion of David J is to be preferred over the obiter view expressed by Gray and Sulan JJ given the express words and evident purpose of section 269 and the fact that the construction adopted by Gray and Sulan JJ would deprive section 269 of its operation in the very case in which it would otherwise operate to modify the common law. As David J observed at [76], this does not preclude a ground of appeal that there was a miscarriage of justice due to incompetence of counsel in not requesting a direction, but no issue of competence of defence counsel is raised on appeal.
Finally, given the absence of any evidence from the appellant that he was intoxicated at the time of the alleged commission of the offence the subject of count 4 and the fact that the real issue for the jury in relation to count 4 was the existence of any choking at all, no direction by the Judge concerning the effect of intoxication would have been required at common law.
Given the absence of a request for a direction, the Judge was precluded by section 269 from giving a direction.
I would reject this ground of appeal.
Directions concerning harm and intent to cause harm
The appellant makes two complaints concerning the Judge’s directions concerning the elements of causing harm and intent to cause harm comprised in count 4.[54]
[54] Grounds 3.1 and 3.2 were argued in conjunction as a single complaint and relate to the element of harm. Ground 3.3 insofar as it relates to the element of harm was not advanced on appeal. Ground 3.3 insofar as it relates to the element of intention to cause harm was argued separately. Ground 3.4 as argued was limited to a contention that, if the impugned directions resulted in a miscarriage of justice in respect of count 4, that necessarily infects the conviction on count 3.
Directions concerning harm
The appellant appeals on the ground that the Judge erred in failing to adequately identify the Crown case in relation to the meaning of “harm” and apply it to proof of count 4[55] and seeks permission to appeal on the grounds that the Crown case was confusing as to the alleged harm caused[56] and the Judge erred in failing to adequately present the defence case in relation to count 4 and proof of harm.[57]
[55] Ground 3.1.
[56] Ground 3.2.
[57] Ground 3.3.
Section 21 of the Criminal Law Consolidation Act 1935 (SA) defines “harm” to mean “physical or mental harm (whether temporary or permanent)” and defines “physical harm” non-exhaustively to include unconsciousness, pain, disfigurement and infection with a disease.
The prosecutor opened the Crown case on the basis that the choking caused harm by way of pain and/or unconsciousness. However, in her evidence, the complainant did not say that the pressure of the appellant’s thumb hurt and said that rather it prevented her from breathing. The complainant did give evidence that she almost lost consciousness on three of the four occasions and did lose consciousness on the third occasion.
In closing address, defence counsel treated the only live issue in respect of count 4 as being whether the appellant choked the complainant at all and did not raise any issue that, if the jury accepted beyond reasonable doubt that this occurred, the complainant did not suffer harm as a result.
The Judge directed the jury that it was an element of count 4 which the Crown was required to prove beyond reasonable doubt that the choking caused harm. The Judge directed the jury that the law defines harm as any physical harm, which includes pain as well as unconsciousness. The Judge reminded the jury of the complainant’s evidence that she thought that she was going to lose consciousness and she in fact did so on one occasion.
No request was made by defence counsel for a specific direction on this element or for any redirection.
The appellant’s first complaint is that there was confusion on the Crown case as to the alleged harm caused. There was no confusion in the Crown case. The opening as to pain was superseded by the complainant’s evidence that the choking did not hurt and thereafter the Crown case relied on unconsciousness as to the harm caused. There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
The appellant’s second complaint is as to the Judge’s directions. The Judge’s directions were perfectly adequate in the circumstances. The jury would have clearly understood from the Judge’s directions that this element was met if the jury was satisfied beyond reasonable doubt that the choking caused the complainant to lose consciousness.
It is to be observed that the Crown did not need to confine its case as to harm to a dichotomy of pain or unconsciousness. Even without suffering pain, to be forcibly choked to the point of being unable to breathe involves such a high degree of physical unpleasantness that it amounts to “physical harm” within the ordinary meaning of those words.
I would reject this ground of appeal.
The appellant’s third complaint that the Judge erred in failing to adequately present the defence case in relation to count 4 insofar as it involved proof of harm was not argued on appeal. In any event, there was no defence case on this element: the only issue raised by the defence was the existence of the choking. There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
Directions concerning intent to cause harm
The appellant appeals on the ground that the Judge erred in failing to adequately present the defence case in relation to count 4 and proof of specific intent.[58]
[58] Ground 3.3.
The Judge directed the jury on the four elements of count 4, the second of which was that the appellant caused the harm deliberately or intentionally as opposed to accidentally and the fourth of which was intent to cause harm. The Judge said:
Finally, it must be proved that when [the appellant] intentionally caused [the complainant] harm, he did so with the specific intention of causing her harm. Here the prosecution must prove his state of mind, which you can determine from his actions in choking [the complainant] with sufficient pressure over a period of time to the point where she actually passed out and left markings on her throat.
No request was made by defence counsel for a specific direction on this element or for any redirection.
The appellant’s first complaint is that the jury had to be directed that the appellant “actually intended to cause the complainant’s unconsciousness or to cause her pain”. The appellant accepts that it is sufficient in law that the defendant intended to cause any type of harm, not necessarily the specific type of harm that was in fact suffered.
The Judge directed the jury that it must be satisfied that the appellant specifically intended to cause harm to the complainant. Adding the adjective “actually” would have been otiose and meaningless. Although the Judge did not mention unconsciousness in the first sentence of the passage extracted above, the Judge had done so when directing the jury as to the element of causing harm as summarised above and this was apparent in any event from the second sentence in the passage extracted above.
The appellant’s second complaint is that the reference by the Judge to determining the appellant’s intent from his actions was at least equally consistent with recklessness. However, the appellant’s intent could only be inferred from his actions and this was what the Judge was conveying in the second sentence of the passage extracted above. The jury could have been in no doubt from the first sentence that intention to cause harm was required and there was no suggestion that mere recklessness would suffice.
The appellant’s third complaint is that the Judge had himself speculated as to the conduct of the appellant amounting to “erotic asphyxiation” and, if that was what occurred, pain or unconsciousness was highly unlikely to have been intended. However, the appellant denied choking the complainant at all and it was common ground at trial that there was no erotic asphyxiation at all. There was no suggestion that the complainant consented to being choked, whether for erotic, masochistic or any other purpose. This matter simply did not arise.
I would reject this ground of appeal.
Consequential effect on count 3
The appellant contends that, if there is a miscarriage of justice in respect of count 4, that necessarily infects the conviction on count 3 because the two counts are inextricably linked. It is not necessary to consider this contention because there is no miscarriage of justice in respect of count 4.
Directions concerning impact of doubt on one count on another count
The appellant seeks permission to appeal on the ground that the Judge erred in failing to adequately direct the jury as to the use that it could make of findings of not guilty on counts 1 and 2 in relation to proof of counts 3 and 4.[59]
[59] Ground 5.
The appellant contends that the Judge should have directed the jury that, if it found the complainant’s evidence to be unsatisfactory or reliable in relation to a particular count, that might be utilised by the jury in relation to another count (a so-called Markuleski direction).
In R v ARD,[60] Spigelman CJ in the New South Wales Court of Criminal Appeal said:
[The High Court in Jones v The Queen] was indicating that where the evidence of a witness in one respect is not accepted on a beyond reasonable doubt standard, there must be a question whether other evidence by that witness should be accepted on the same standard. This is and remains a jury question and nothing the High Court said in Jones suggests otherwise.
As with many aspects of the process of weighing evidence, a judge may be able to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. The proposition that a reasonable doubt about one aspect of a person's evidence may, or in some cases should, affect the assessment of the reliability of that person's other evidence, is in this category.[61]
[60] [2000] NSWCCA 443.
[61] At [7]-[8].
In R v KWG,[62] Martin J (with whom Lander and Wicks JJ agreed) agreed with these observations.[63]
[62] [2000] SASC 398.
[63] At [73]. Lander J went further and expressed the opinion that, “where the complainant's evidence is uncorroborated on the counts before the jury, the jury should be instructed that if they are not satisfied with the complainant's evidence on any one count and are not prepared to convict on that count they should bear that in mind in considering the other counts, which also rely on the uncorroborated evidence of the complainant”.
In R v Markuleski,[64] Spigelman CJ (with whom Carruthers AJ agreed) said:
In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.
Some form of direction assisting the jury in this respect should be given, to employ the terminology found in Kilby and R v Davies “as a general rule”. Its absence is not necessarily fatal (as it was not in R v Davies itself). Furthermore, as the joint judgment in Crofts affirmed, the “general rule” does not apply “where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness”.
It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.
On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.
Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.
The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.[65]
Wood CJ at CL said:
… there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.[66]
[64] [2001] NSWCCA 290, (2001) 52 NSWLR 82.
[65] At [186]-[191]. (Citations omitted)
[66] At [257].
In R v Liddy,[67] Mullighan J (with whom Williams J agreed) said:
As these decisions demonstrate, there may be cases when one of the possible directions suggested by Spigelman CJ in Markuleski or by Lander J or Martin J in KWG could be required in order to ensure that the accused has a fair trial and that the jury are given the assistance to which they are entitled in order to use evidence properly and to reason in a permissible way. An obvious case would be where the same alibi defence related to all charges, but there is no rule of law or practice that requires such a direction to be given in all cases with multiple counts involving the same complainant. Furthermore, there is no special rule in such cases involving sexual offending. I reject the contention that the law has developed to the stage that a direction for which the appellant contends must be given in all cases where there is one alleged victim and multiple charges or that the law should now be taken to that stage.
Where there is evidence capable of supporting a conviction, it is for the jury to evaluate that evidence and decide if it establishes proof of the charge beyond reasonable doubt. To direct the jury that in such circumstances they cannot reach a verdict of guilty would be to usurp the function of the jury and, in effect, to direct an acquittal, which would not be a proper course. All directions must, of course, be fashioned to meet the circumstances of the case. It is not easy to envisage a situation where a strong direction as suggested in some of the cases may be required. It is to be expected that the jury will follow the usual directions to consider each charge separately upon the evidence relevant to that charge and not to reach a verdict of guilty unless satisfied that the evidence is reliable and accurate and that the charge has been proved beyond reasonable doubt. It is for the jury to decide what facts are proved and there should not be any interference with that function.
In an appropriate case, it may be in conformity with the responsibility of the trial judge to assist the jury by directing that if they are not satisfied as to the credibility and reliability of the alleged victim when considering one charge and other charges depend upon the uncorroborated evidence of that witness, that lack of satisfaction may carry over to the consideration of another charge. However, such cases would not occur frequently and I respectfully agree with Wood CJ at CL in Markuleski that there is a danger of the jury being encouraged to a process of reasoning which is the obverse to propensity reasoning and is equally impermissible.[68]
[67] [2002] SASC 19.
[68] At [190]-[192].
In R v PMT,[69] Buchanan JA (with whom Charles JA agreed) in the Victorian Court of Appeal said:
The direction given in the New South Wales cases may be thought to undermine the separate consideration direction and swing a delicate balance towards propensity reasoning. ..
I think it unlikely that a jury given a separate consideration direction will be entirely uninfluenced by the impressions they derive from the evidence of a witness taken as a whole; I doubt that such a natural tendency needs judicial encouragement in the form of a Markuleski direction.[70]
Charles JA added:
If a jury has been left with a reasonable doubt as to one count, either on the ground that the complainant may be lying or has exaggerated, I doubt very much that they would, as Buchanan, J.A. has put it, need judicial encouragement to bear that factor in mind in considering a second count. ...
With great respect to those of a different view, I share the doubts expressed by Buchanan, J.A. as to the desirability of giving a Markuleski direction.[71]
[69] [2003] VSCA 200, (2003) 8 VR 50.
[70] At [31], [32].
[71] At [5], [6].

In R v GAR,[72] Miles AJ (with whom Spigelman CJ and Bell J agreed) said:
The need to give such a direction does not arise simply because the complainant’s evidence is relied on to support more than one count. Further, if such a direction is required, there is no specific formula as to its content…
Far from being required in all cases, the direction required in Markuleski may be quite inappropriate where it is open to the jury to convict on one count and to acquit on another, as was the case in the present matter.[73]
[72] [2003] NSWCCA 224.
[73] At [26], [29].
In Lefroy v The Queen,[74] Murray J (with whom Steytler and Miller JJ agreed) in the Western Australian Court of Appeal said:
I am in respectful agreement with that point of view and would not be prepared to follow Markuleski on this point. It seems to me that the jury do not need help to understand that their decisions about the credibility and reliability of the complainant generally will have an overall impact upon their assessment of the extent to which, if at all, they are prepared to rely upon the evidence of the complainant in considering whether or not the evidence as a whole persuades them of the accused person's guilt beyond reasonable doubt in respect of all or any of the offences charged. I see no reason to give a direction which assumes that the jury will react adversely to a challenge to the credibility of the complainant.[75]
[74] [2004] WASCA 266, (2004) 150 A Crim R 82.
[75] At [32].
In R v LR,[76] Keane JA (with whom McPherson JA and Douglas J agreed) and in R v Ford,[77] Keane JA (with whom Jerrard JA and Douglas J agreed) in the Queensland Court of Appeal took a middle course, holding that a direction about the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count is necessary or desirable in some cases but not in others.
[76] [2005] QCA 368 at [64].
[77] [2006] QCA 142 at [126].
In R v B, P,[78] Vanstone J (with whom Doyle CJ agreed) agreed with the observations by Mulligan J in R v Liddy and Buchanan JA in R v PMT.
[78] [2006] SASC 229 at [26]-[27].
In R v Hare,[79] Vanstone J (with whom Bleby and Nyland JJ agreed) said:
… there is no obligation upon a trial judge dealing with sexual charges resting on the evidence of a single complainant to direct the jury that any doubt which it entertains in relation to proof of one count must be carried into its consideration of other counts. Although Mullighan J referred in the passages cited to KWG and Markuleski and to the statements within those cases suggesting that such a direction was obligatory, or at least prudent, I do not read his reasons as agreeing that such a direction was necessary in the usual case. On the contrary, his Honour expressed the view that any obligation would arise from the particular circumstances of the case. The same view was taken in this court in R v B, P.
In a particular case such a warning might be necessary to avoid a perceptible risk of miscarriage of justice. Juries are perfectly capable in the great majority of cases, where the significance of any infirmity in a complainant’s evidence is obvious, to bring that infirmity to account, in relation to other charges, to the extent that it is necessary or appropriate, and to do so without need of any specific direction. That is part and parcel of the task which juries constantly undertake in evaluating the evidence of witnesses.
It is undesirable to burden juries with unnecessary directions. That is particularly so where such a direction may introduce an imbalance which would need to be redressed. Because just as an infirmity could adversely affect judgement of credibility as a whole, so an acceptance of a complainant’s account of a disputed event (and a rejection of the version of an accused person) could flow through to other counts in a way which assisted the prosecution case. If a direction as sought upon this appeal is to be given, then it raises the question of whether a counterbalancing direction would also be required.[80]
[79] [2007] SASC 427.
[80] At [20]-[22]. (Citations omitted)
In South Australia, a judge is not required to direct a jury that, if it entertains a reasonable doubt about one count, it must carry that doubt into its consideration of the other counts where multiple counts of sexual charges rest of the evidence of a single complainant. Ordinarily there is no need for a judge to direct a jury that it may carry such a doubt about one count into its consideration of the other counts. In exceptional circumstances it may be desirable or even necessary for a direction of the latter kind to be given.
In the present case, defence counsel did not request a Markuleski direction. However, the Judge did give a direction of the latter kind referred in the previous paragraph. After giving a standard separate consideration direction, the Judge said:
Having said that, there is obviously much in common in respect of the four counts charged depending, as they do, entirely on you accepting beyond a reasonable doubt that [the complainant] has given a truthful and reliable account of what happened before you may return any verdicts of guilty against [the appellant]. If you were to find her evidence to be unsatisfactory or unreliable, then given the importance of her evidence to proof of the counts charged, you might find that would flow across each count, such that in that instance your verdicts would be not guilty of all of the counts charged.
Defence counsel did not seek any further direction or redirection after the Judge volunteered the above direction.
The appellant complains that this direction was inadequate because the Judge did not add words to the effect “in respect of any one count” after the words in the second sentence “if you were to find her evidence to be unsatisfactory or unreliable”. There is no merit in that complaint: this was clearly conveyed.
This case was a simple one in terms of multiple counts of sexual offences as all counts extended over a period of only a few hours. The jury would clearly have understood that, if it entertained a doubt about the complainant’s truthfulness in respect of one count, this would impact on its assessment of her truthfulness in respect of another count. No direction, even of the type actually given by the Judge, was required.
There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
Verdicts unreasonable and cannot be supported having regard to the evidence
The appellant seeks permission to appeal on the ground that the verdicts are unsafe, unreasonable and against the weight of the evidence.[81]
[81] Ground 7. This wording does not accord with the wording of section 353 of the Criminal Law Consolidation Act 1935 (SA): see R v Quist [2017] SASCFC 37 at [11] per Peek J.
The appellant contends that, given the jury’s findings on counts 1 and 2, it was not open to the jury to find the appellant guilty of counts 3 and 4. The appellant contends that the verdicts of guilty on counts 3 and 4 are inconsistent with the verdicts of not guilty on counts 1 and 2.
The appellant contends that there was no material distinction between the evidence on counts 1 and 2 and the evidence on counts 3 and 4. The appellant concedes that there was a difference in his own evidence, because he denied that the events giving rise to counts 3 and 4 occurred at all whereas he gave evidence that the events giving rise to counts 1 and 2 were consensual, but contends that this cannot explain the difference in the verdicts and the jury must have decided that there was a reasonable possibility that he was telling the truth.
The last mentioned contention is fallacious. The critical issues in respect of counts 1 and 2 were whether the jury was satisfied beyond reasonable doubt that the complainant consented to the acts of anal and oral intercourse and that a lack of consent was communicated to and understood by the appellant.
Taking into account the fact that it was common ground that the complainant had already consented to vaginal sexual intercourse and by and large she did not communicate any lack of consent to the acts of anal and oral intercourse the subject of counts 1 and 2 verbally but only by bodily movements, it was readily open to the jury to accept the honesty, and for that matter the reliability, of her evidence about the conduct the subject of counts 1 and 2 but entertain a reasonable doubt whether the appellant knew that she was not consenting or was reckless as to such consent. By contrast, in respect of counts 3 and 4 there was a direct clash of evidence because the complainant asserted that the appellant had vaginal intercourse with her and choked her and the appellant denied that this occurred at all. It was open to the jury to be satisfied beyond reasonable doubt that the complainant was telling the truth and the appellant was lying about these events.
There is no inconsistency between the verdicts of guilty on counts 3 and 4 and the verdicts of not guilty on counts 1 and 2.
The appellant does not put any broader submission that, leaving aside the inconsistent verdicts contention, having regard to the whole of the evidence, it was not open to the jury to find him guilty of counts 3 and 4. Having reviewed the evidence, this was plainly open to the jury.
There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.
Conclusion
I would grant permission to appeal on grounds 1, 1A.2 and 1A.3. I would refuse permission to appeal on grounds 1A.1, 3.2, 3.3, 4.1, 5 and 7. I would dismiss the appeal.
DOYLE J:
I agree with the reasons of Blue J and the orders he has proposed