R v Wait

The Crown sought permission to appeal against a directed acquittal in the Supreme Court of South Australia. The respondent, R, had been acquitted of rape by the trial judge, who directed the jury to find him not guilty. It was not disputed that sexual intercourse had occurred between the respondent and the complainant. The central dispute at trial concerned whether the complainant had consented to the intercourse and, if not, whether the respondent knew she was not consenting or was recklessly indifferent to her consent. The complainant's ability to recall the events was significantly impaired due to her consumption of alcohol and drugs, meaning there was no direct evidence of her consent or the respondent's state of mind. The appeal therefore turned on whether the available circumstantial evidence was sufficient to establish a prima facie case requiring determination by the jury.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in withdrawing the case from the jury and whether there was a sufficient body of circumstantial evidence to allow the matter to proceed to a verdict. Specifically, the court had to consider if the circumstantial evidence was capable of proving the elements of rape in issue, namely consent and the respondent's knowledge or recklessness regarding consent, to a standard that satisfied the test for a case to answer.

The Full Court, comprising Nyland, Anderson and David JJ, allowed the Crown's appeal. The court reasoned that the trial judge had erred in directing an acquittal. It found that there was a sufficient body of circumstantial evidence that went to the proof of the disputed elements of the charge, satisfying the test established in cases such as *R v Bilick and Starke*. While acknowledging the respondent's argument that certain inferences, such as the deliberate drugging of the complainant, might be considered a "long bow," the court concluded that other circumstantial evidence, when considered collectively, clearly established a case to answer. Consequently, permission to appeal was granted, the acquittal was quashed, and a retrial was ordered.