R v W, L - [2025] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, L
Criminal Trial by Judge Alone
[2025] SADC 85
Judgment of her Honour Judge Fuller
10 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with one count of rape upon the complainant on 5 June 2022 - accused married to complainant and they had two young children. Complainant alleged that after attending a birthday party together and then spending until the early hours of the morning in the city where they both continued drinking and consuming cocaine, the accused had sexual intercourse with her without her consent when they returned home. Complainant alleged she told the accused she was tired and did not want to have sexual intercourse with him, but he ignored her - immediately after sexual intercourse ended, the complainant used her mobile telephone to covertly record a series of conversations with the accused - prosecution case was that in those conversation the accused admitted to raping the complainant. Accused then fell asleep and complainant left the house and went to her mother’s house. A friend of the complainant received a Snapchat message from her between 6.30am and 7.30am on 5 June 2022 asserting that the accused had raped her - complainant did not recall sending that message.
Accused stayed in family home until end of October 2022 - accused alleged to have made implied admissions to complainant in a series of text messages, to her mother in a phone call, to her friend at his father’s wake and in a recorded conversation between the complainant and the accused on 30 October 2022.
Accused participated in record of interview and admitted having sexual intercourse with the complainant but said it was consensual. He denied the allegations that the complainant had told him she did not want to have sex with him but said she told him she was tired and to make it quick - accused said he did not think he needed to specifically discuss consent with complainant on this occasion because there was a mutual understanding between them as a married couple.
Held: Complainant’s credibility undermined significantly by prior inconsistent statements on material matters - complainant denied having sexual intercourse with the accused after 5 June 2022 - text messages from the complainant to the accused between June and October 2022 in which she invited him to have sexual intercourse with her were tendered - complainant admitted sending the messages but denied that sexual intercourse occurred. Denials were not credible. Complainant gave evidence that there had been prior occasions when accused had sexual intercourse with her without her consent but told police in 2023 that non-consensual sexual intercourse had never occurred before. Explanation for inconsistency not credible. Photographs and messages tendered in cross-examination established that complainant and accused had ‘rough’ sex and bondage in which she played a submissive role - complainant said she would have sexual intercourse with the accused on occasion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v W, L

Details

AGLC: R v W, L [2025] SADC 85
Case: [2025] SADC 85
Decision Date: 10 July 2025

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia in which W and L, the respondents, were appealing against their convictions for rape and sexual assault. The case involved a sexual encounter between the respondents and a woman, the complainant, who was intoxicated and unconscious at the time. The respondents were found guilty of the offences and sentenced to imprisonment. They appealed their convictions, arguing that the jury was misled by the trial judge's directions regarding the definition of consent and the complainant's state of intoxication. The High Court was required to determine whether the trial judge's directions to the jury were correct and whether they led to a miscarriage of justice.

The court found that the trial judge's directions to the jury regarding the definition of consent were not erroneous. The judge had correctly instructed the jury that consent must be active and informed, and that the complainant's state of intoxication did not negate her capacity to give consent. The court held that the trial judge's directions were consistent with the law and did not lead to a miscarriage of justice. The court also found that the evidence was sufficient to support the jury's verdict that the respondents had committed the offences of rape and sexual assault. The court rejected the respondents' argument that the complainant's state of intoxication was a significant factor in the jury's decision.

The appeal was dismissed by the court. The convictions of the respondents for the offences of rape and sexual assault were upheld. The court found that the trial judge's directions to the jury were correct and did not lead to a miscarriage of justice. The evidence was sufficient to support the jury's verdict. The respondents' argument that the complainant's state of intoxication was a significant factor in the jury's decision was rejected. The sentences imposed on the respondents were also upheld.

Orders