Rezaei v The King - [2024] SASCA 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
REZAEI v THE KING
[2024] SASCA 150
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Justice B Doyle)
19 December 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and application for permission to appeal against sentence.
On 3 November 2023, a jury found the appellant guilty, by majority, of five counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (counts 1, 3, 4, 5 and 6), one count of aggravated threatening to cause harm contrary to s 19(2) of the CLCA (count 7) and one count of threatening to distribute an invasive image contrary to s 26DA(1) of the Summary Offences Act 1953 (SA) (count 2). The jury unanimously found the appellant guilty of one count of threatening a person involved in a criminal investigation, contrary to s 248(1) of the CLCA (count 8).
On 20 May 2024, the trial judge sentenced the appellant to a head sentence of 24 years and six months imprisonment, with a non-parole period of 19 years, seven months and seven days imprisonment. This was reduced to a final head sentence of 21 years and 10 months, with a non-parole period of 16 years, 11 months and seven days given time served in custody and on home detention.
On the application for permission to appeal against sentence, the appellant raised one issue, being that the sentences imposed were manifestly excessive.
On the appeal against conviction, the appellant raised four grounds concerning the adequacy of the trial judge’s directions to the jury:
1.whether the judge erred in law or caused a miscarriage of justice by failing to direct the jury as to the use they could make of evidence relating to each charged allegation in respect of each other charge (Ground 1);
2.whether the judge failed to give adequate directions relating to the evidence of the accused so as to cause a miscarriage of justice (Ground 2);
3.whether the judge erred in law in failing to give a forensic disadvantage direction in accordance with s 34CB of the Evidence Act 1929 (SA) (‘Evidence Act’) on account of the imprecision of the timing and circumstances of the allegations comprising counts 3 to 6 inclusive (Ground 3); and
4.whether the judge gave inadequate directions on a motive to lie such as to cause a miscarriage of justice (Ground 4).

In respect of Ground 1, the appellant’s complaint was that while the trial judge’s directions correctly and adequately warned the jury against impermissible reasoning in respect of uncharged discreditable conduct, they did not warn against similar reasoning based on the evidence supporting the charged conduct. In relation to Ground 2, the appellant complained that the judge did not give a direction to the effect that even if they did not accept his evidence, they must nonetheless consider the prosecution case and be satisfied beyond reasonable doubt of the appellant’s guilt before they could convict. In relation to Ground 3, the appellant complained the timing of the alleged rapes the subject of the subject of counts 3 to 6 was so vague as to create a forensic disadvantage to him and that a direction pursuant to s 34CB of the Evidence Act was required. Finally, regarding Ground 4, the appellant submitted that while the judge’s directions did incorporate the correct direction, there was a risk that this would be lost in what he characterised as surrounding, incorrect directions.
Held (by the Court), in relation to appeal against conviction, granting permission to appeal but dismissing the appeal:
1.It was not realistic to think that the jury would not have understood the impermissible reasoning directions as extending to the evidence of charged acts; and there was not sufficient reason for thinking that the jury would not have understood the direction against impermissible reasoning from the evidence of threats as extending to the evidence supporting count 8.
2.The judge did communicate in strong terms the onus on the prosecution to prove the case ‘notwithstanding’ the appellant’s evidence. In circumstances where defence counsel did not seek a redirection, the departure from the ordinary form of a Liberato direction did not give rise to a perceptible risk of a miscarriage of justice.
3.Having regard to the issues in dispute at trial and the nature of the disadvantage articulated to the trial judge when the appellant applied for the direction, it cannot be said that the judge’s failure to give a direction pursuant to s 34CB resulted in a miscarriage of justice.
4.The correct direction was not lost or erroneously diminished by the other passages. The jury was adequately directed.

Held (by the Court), in relation to sentence, granting permission to appeal but dismissing the appeal, the sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) ss 19(2), 48(1), 248(1); Summary Offences Act 1953 (SA) s 26DA(1); Evidence Act 1929 (SA) ss 13D, 34CB, 34P, 34R, referred to.
Collins v The Queen [2020] SASCFC 96; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v C, CA [2013] SASCFC 137; Alford v Magee (1952) 85 CLR 437; JGS v The Queen [2020] SASCFC 48; R v Dhir (2019) 133 SASR 452; KRM v The Queen (2001) 206 CLR 221; R v W, P R [2005] SASC 463; Liberato v The Queen (1985) 159 CLR 507; R v Phillips [2015] SASCFC 67; De Silva v The Queen (2019) 268 CLR 57; R v Anderson (2001) 127 A Crim R 116; R v Cassebohm (2011) 109 SASR 465; R v S [2015] SASCFC 179; Palmer v The Queen (1998) 193 CLR 1; Baptiste v The King [2023] SASCA 70; R v D (1997) 69 SASR 413; R v F, AD [2015] SASCFC 130; R v Cashion [2014] SASCFC 138, considered.

REZAEI v THE KING
[2024] SASCA 150
Court of Appeal – Criminal: Bleby JA, Stanley and B Doyle AJJA

THE COURT: On 3 November 2023, a jury found the appellant guilty, by majority, of five counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (counts 1, 3, 4, 5 and 6), one count of aggravated threatening to cause harm contrary to s 19(2) of the CLCA (count 7) and one count of threatening to distribute an invasive image contrary to s 26DA(1) of the Summary Offences Act 1953 (SA) (count 2). They unanimously found the appellant guilty of one further count of threatening a person involved in a criminal investigation, contrary to s 248(1) of the CLCA (count 8).
On 20 May 2024, the trial judge sentenced the appellant to a head sentence of 24 years and six months’ imprisonment. She fixed a non-parole period of 19 years, seven months and seven days imprisonment on the basis that the appellant was, by reason of the offending, a serious repeat offender. The judge reduced the sentence by two years and eight months for time spent in custody and on home detention. The final head sentence imposed was 21 years and 10 months, with a non-parole period of 16 years, 11 months and seven days.
The appellant filed Notices of Appeal against both conviction and sentence. On 4 March 2024 this Court granted permission to appeal on Ground 1 of the appeal against conviction and referred the question of permission to appeal on the balance of the grounds for argument as on appeal. The application for permission to appeal against sentence has been referred to this Court. The sole ground of appeal against sentence is that the sentences imposed were manifestly excessive.
The appeal against conviction
The appeal against conviction raises four issues concerning the adequacy of the trial judge’s directions to the jury:
·whether the judge erred in law or caused a miscarriage of justice by failing to direct the jury as to the use they could make of evidence relating to each charged allegation in respect of each other charge (Ground 1);
·whether the judge failed to give adequate directions relating to the evidence of the accused so as to cause a miscarriage of justice (Ground 2);
·whether the judge erred in law in failing to give a forensic disadvantage direction in accordance with s 34CB of the Evidence Act 1929 (SA) (‘Evidence Act’) on account of the imprecision of the timing and circumstances of the allegations comprising counts 3 to 6 inclusive (Ground 3); and
·whether the judge gave inadequate directions on a motive to lie such as to cause a miscarriage of justice (Ground 4).
Procedural History
This was the third trial of these charges. The first trial commenced on 11 July 2023 and was aborted due to jury misconduct on 26 July 2023. The second trial commenced on 4 October 2023. After the complainant had given evidence in chief, a mistrial was declared. The third trial commenced on 11 October 2023.
At the first trial, the complainant gave evidence in full. At the second trial, she gave evidence in chief in full, again. That evidence was recorded. At the third trial, the recording was played pursuant to s 13D of the Evidence Act. The complainant gave further evidence in chief, was cross-examined and re‑examined.
The prosecution called various other witnesses, as set out below. The appellant gave evidence.
The prosecution case
The prosecution case was, broadly, as follows. The complainant, her former husband (IS) and the appellant were known to each other. They formed a friendship after having met at a gathering arranged by an older couple in the Iranian community.
The first charged rape occurred after the appellant drove IS to the airport on 15 April 2017. IS gave evidence that at this time, and while the complainant was pregnant with their youngest child, he went to Sydney for four to five days.
The complainant’s evidence was that after dropping IS at the airport, the appellant returned to her house under the pretence of retrieving his key. The complainant was at home with her daughter. The appellant pushed the daughter into her bedroom and told her to play with her toys. He took the complainant into the bathroom and anally raped her (count 1).
The complainant’s daughter gave evidence that while they lived at this property, there was an occasion when the appellant had knocked at the door and said he had left his keys there. She said the appellant told her to go to her room and play with her toys. A little while later she heard her mother scream from the bathroom. She was about to open the bathroom door when the appellant came out. She saw her mother come out of the bathroom. Her mother looked pale and had tears on her cheeks.
The complainant experienced subsequent abdominal pain and anal bleeding. She attended at the Women’s and Children’s Hospital (WCH). Dr Holly Franklin gave evidence that the complainant had attended at WCH, without an appointment, on 26 April 2017. The complainant had reported an onset of lower abdominal pain and pain on urination. Dr Franklin examined the complainant and identified tenderness to the lower abdomen. She diagnosed thrush, which did not explain the abdominal pain. The complainant had not reported bleeding on that occasion.
The appellant denied having returned to the complainant’s house that day and, therefore, the occurrence of any sexual intercourse.
The appellant called the complainant shortly after he left the house and told her that he was in possession of videos and photos of her, which she interpreted to be of the rape. He threatened to distribute them in Iran if she told anyone of the events comprising count 1 (count 2).
Sometime between 4 March and 24 May 2019, after the complainant and IS had separated and the complainant had gone to stay at Scotty’s Motel, the appellant came to Scotty’s Motel at around midnight, uninvited. He threatened to call the police to accuse her of stealing his car if she did not let him in. He entered the motel room and threatened to stay until the children woke up if the complainant did not have sex with him. He then vaginally raped the complainant (count 3). He told her that he would visit her again at the motel and that she was to leave her door unlocked.
A week later, the appellant returned to the motel, having told the complainant he would be coming round. The complainant told him she did not want to have sex with him. She asked why he was doing this to her. He proceeded to rape her vaginally (count 4).
The complainant’s evidence was that the rapes the subject of counts 3 and 4 occurred in the second room she stayed in at Scotty’s Motel.
Following the rape the subject of count 4, a blood test on 13 May 2019 indicated that the complainant was two to three weeks pregnant. The appellant told her to have an abortion. She terminated the pregnancy on 4 June 2019. She said in evidence that it could not have been anyone else’s child.
The appellant gave evidence that he attended Scotty’s Motel to visit the complainant but denied that any intercourse occurred there.
The complainant moved from Scotty’s Motel to a residence in Pooraka with her two children. Her evidence was that following this move, the appellant raped her repeatedly at the Ingle Farm Shopping Centre. She remembered the occasions constituting counts 5 and 6 ‘very vividly’. Her evidence as to these occasions was as follows.
The appellant told the complainant he was looking for a place to have sex with her. Two days later, he went to her house and told her to follow him. The complainant followed him to the Ingle Farm Shopping Centre with her youngest child in the car. They parked next to each other in the shopping centre car park. The complainant told the appellant she did not want to have sex with him there with her child in the car, asleep. They got in the back of his car. The appellant performed oral sex on the complainant and then forced her to perform oral sex on him. The complainant then had vaginal intercourse with the complainant and ejaculated on her thigh (count 5).
On another occasion, the appellant called the complainant and told her to go to Ingle Farm. The appellant removed his and the complainant’s clothes and had vaginal intercourse with the complainant. The complainant’s youngest child was present and woke up. The complainant covered her child’s eyes, but the child kept pulling her head away and crying (count 6).
The complainant said that while she agreed to meet the appellant at the car park against the background of his previous threats, she also always told the appellant that she did not want to have sex. She said she always wanted to run away. On one occasion, she refused to meet the appellant at Ingle Farm. Her youngest child was awake. The appellant threatened to kill the complainant’s daughter. He said, ‘It’s so easy, I just run her over with the car and I say it was an accident’ (count 7). The complainant hung up the phone and went to the police.
The final count concerned two WhatsApp phone calls to IS. IS gave evidence that he and the complainant had separated in 2019. He said that he and the complainant had not had sex since the complainant was pregnant in 2017. The complainant had said she was not feeling well. On 18 July 2020, IS received two WhatsApp phone calls from Iran, at 10:15pm and 10:18pm respectively. He did not recognise the voice of the male caller. During the first call, the caller spoke Farsi. He told IS he was calling for a friend of IS and they were going to call about the complainant. He then hung up.
During the second call, the appellant came on the phone. He said he was not so stupid as to call IS directly. The quality of the call was poor, as if two phones were being held together. The appellant told IS that it was in his best interests for the complainant to withdraw the complaint. He said he was capable of doing anything and had killed someone in Iran. He said he had photos and videos of the complainant and would pass them on to his family. He also said he could harm IS’s child, saying, ‘I can hit your child with a car and it’s call accident’ (count 8).
The prosecution led DNA evidence in respect of the counts occurring at the Ingle Farm Shopping Centre. A DNA expert, Dr Pinyon, did not detect semen or DNA matching the appellant on swabs taken from the Nissan X-trail driven by the complainant. There was no reaction to a presumptive test for semen and no samples were submitted for analysis in relation to four tissues seized from a Prado driven by the appellant, which the complainant said was the first vehicle in which the appellant had raped her. Dr Pinyon said that if DNA was deposited in a relevant area, it could have been removed by cleaning the seats. DNA sources could also be eroded by people getting in and out of the car and things moving round in the car.
The prosecution tendered agreed facts during the trial. These included the following:
·the appellant travelled to Iran on 7 March 2019 and returned on 6 April 2019;
·the complainant and her two children stayed in room 13 at Scotty’s Motel from 4 March 2019 to 10 April 2019. They stayed in room 15 from 10 April 2019 until 24 May 2019;
·on 13 May 2019 the complainant attended the Modbury North Medical Centre. A blood test indicated she was two to three weeks’ pregnant;
·on 4 June 2019, the complainant underwent a termination of pregnancy and had a contraceptive device implanted.
The defence case
Cross-examination of the prosecution witnesses
Defence counsel cross-examined the complainant closely on asserted omissions and inconsistencies in the account she had given to the police. The complainant explained that when she first spoke to police she was stressed and feeling unwell, given the threat to her daughter. She said that the process was often frustrated, as an interpreter was only available over the phone. In re‑examination she said she thought she would be given the opportunity to give details at a later stage, and that she had been confused on that first occasion. She said that when she went to the police station to sign her statement, she was able to go through everything in detail with an interpreter, that she had more peace of mind and was able to explain things much better.
The complainant was cross-examined to the effect that she and the appellant were engaged in a consensual affair. It was put to her that she continued to see the appellant in social settings in the Iranian community while the offending occurred. The complainant denied the existence of a consensual affair. As to continuing to see the appellant in social settings, she said that she could not say anything in social situations, as the appellant had threatened her, and she was afraid of him.
The appellant’s daughter was cross-examined about her evidence relating to the first count. She denied that her mother had told her what to say to the police.
IS was cross-examined to the effect that in relation to the call on 18 July 2020, he told friends that he had just had a call from one of his family members, and that was the truth. He said that he could not tell his friends the story and he did not know what to do.
The defence evidence
The appellant gave evidence to the effect that he had had a consensual affair with the complainant. He confirmed that he had on one occasion taken IS to the airport and that he had visited the complainant at Scotty’s Motel on a number of occasions. He gave her financial assistance and the use of his car. He said that while the complainant was staying at Scotty’s Motel, she would go out with him, leaving the children at the motel.

The appellant said he would meet the complainant for her to give him money to transfer to her mother in Iran. He recalled two or three occasions when they met at a shopping centre near Ingle Farm for this purpose.
The appellant gave evidence that after an accident at work on 10 August 2017, he had separated from his partner. He said that at the beginning of 2018, there was a physical element to his relationship with the complainant. This was mainly limited to kissing, touching and hugging at her house and in the car. In 2019 this included at Ingle Farm shopping centre. Following the accident, he suffered from erectile dysfunction. He told the complainant this in late 2017 and early 2018. Their relationship drifted apart after he saw her kissing another man. On a fishing trip, he told IS and some other friends that he was going to marry someone in Iran. After that, the complainant phoned him repeatedly. They eventually spoke on 18 July 2020. The complainant asked him why he was going to marry in Iran. Later that night, he was arrested.
The appellant said that on 18 July 2020, he was on the phone to people in Iran via WhatsApp ‘nonstop’.
The appellant denied raping the complainant, filming himself doing so and threatening to distribute any image.
The defence called a friend of the appellant, SK, who gave evidence of observations of the complainant dancing and point to the appellant during a song ‘Gentleman’. The appellant’s daughter gave evidence of seeing messages on the complainant’s phone that suggested a relationship between the appellant and the complainant. She confronted the complainant who told her to keep quiet and that it was none of her business.
The appeal
Whether the judge erred in law or caused a miscarriage of justice by failing to direct the jury as to the use they could make of evidence relating to each charged allegation in respect of each other charge (Ground 1)
The appellant’s starting point with respect to this ground was that the evidence of each count was clearly admissible in respect of the other counts. For example, the evidence relating to count 1 was admissible in relation to count 2 for the purpose of establishing the occasion on which the images the subject of count 2 were created. Then, the evidence of each of counts 1 and 3-6 was cross‑admissible as to each other of those counts on a propensity basis. The appellant also submitted that the evidence relating to count 8 ‘could arguably have been admissible’ on counts 1-7, as post-offence conduct demonstrating a consciousness of guilt. These examples do not exhaust the possible bases of cross‑admissibility that the appellant identified.
As the evidence relating to each count constituted discreditable conduct, the appellant submitted that its use was subject to ss 34P and 34R of the Evidence Act. Relevantly, these sections provide, in part:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed       the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
…
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
This Court addressed the applicability of ss 34P and 34R to discreditable conduct the subject of separate charges on the Information, where evidence of one count is cross-admissible on another, in Collins v The Queen:[1]
Sections 34P and 34R apply, not only to discreditable conduct evidence extraneous to the charges, but also when evidence of conduct the subject of one count is admitted as relevant to another conduct (often called “cross-admissible evidence”). In that case, the evidence directly relevant to the first count can obviously be used in relation to that count and such primary use is not addressed or governed by sections 34P and 34R. However, such evidence will also have a secondary use in relation to the second count and in practice it will be necessary for directions under section 34R to distinguish the primary use from the secondary use.
[1] [2020] SASCFC 96 at [144] (Blue J; Peek and Stanley JJ agreeing).
The appellant submitted that in this case, it was necessary for the trial judge to isolate carefully and precisely the evidence that could be used in respect of each count, how it could be used and how it could not be used. Counsel set out a lengthy model direction that would, in his submission, have met these requirements. He then took to task the directions given, identifying how they did not meet the requirements of s 34R.
Relevantly, the judge summarised the evidence directly relevant to each count, in turn. She then gave a comprehensive direction as to the requirement of separate consideration of each count:
I need to direct you that you must consider each count separately.
If you find the accused guilty of one count it does not automatically follow from that that he is guilty or more likely to be guilty of one or more of the other counts.
You cannot reason that they must rise or fall together.
You may end up finding him guilty of all counts. You may end up finding him not guilty of all counts. You may end up finding him guilty of some counts and not guilty of other counts. It is entirely a matter for you. I have only given you those examples to emphasise that each verdict must be arrived at after giving each count your separate consideration.
We will refer to this direction as the ‘separate consideration direction’.
The judge then turned to the use that the jury could make of evidence of discreditable conduct not the subject of charges:
Can I turn then to some evidence that was given about other offences committed by the accused which are not the subject of charges. So, on the prosecution case there are other occasions when the accused committed criminal offences but they have not been charged as counts on the information and so they do not need your formal verdict.
I am required to direct you on how you may use that evidence of those uncharged occasions if you accept that evidence and how you must not use that evidence.
On the prosecution case, counts, 1, 3, 4, 5 and 6 are not the only occasions on which [the complainant] was raped by the accused.
You might recall that [the complainant] gave evidence that the accused would contact her via telegram or no caller ID and tell her to go to Ingle Farm car park. She gave evidence that happened multiple times around midday every time. The sex would happen in her car and [the complainant’s daughter] was at school.
If you accept her evidence about those other occasions, then you may use that evidence to understand that counts 5 and 6 were not isolated occasions. Rather, on the prosecution case, the accused’s conduct was ongoing. On the prosecution case, [the complainant] continued to submit to the acts of intercourse because of the threat made and repeated. That threat originally being count 2.
You may use the evidence that there were ongoing rapes if you accept that evidence to put count 7 in context. That threat the subject of count 7 did not come out of the blue, on the prosecution case. Rather, on the prosecution case, the accused had raped the complainant on multiple occasions and used the threat, the subject of count 2, to repeatedly get her to comply. On the prosecution case, he escalated the threat to harm her child, which is the subject of count 7, when she indicated that she was not going to comply with his demands for her to meet him at the car park more.
The evidence of those other uncharged occasions of rape must not be used to reason simplistically that because the accused has committed those extra rapes that he is the sort of person who will commit or is likely to commit these crimes with which he is charged. You must not reason simplistically that he has committed many more crimes than charged and therefore he must be guilty of the charged crimes or is more likely to be guilty of them.
You might also recall that [the complainant] gave accounts of oral intercourse on some of the occasions when the vaginal rapes occurred. On her evidence that oral intercourse was rape as well. The accused has not been charged with any acts of oral rape. You may nevertheless use that evidence if you accept her evidence as part of the circumstances in which the charged vaginal rapes occurred. Again the same direction applies as to how you must not use that evidence.
In addition, the prosecution case is that count 2 is not the only occasion when the accused threatened to distribute invasive images. [The complainant] gave evidence that he repeated that threat on many occasions, including the time that he grabbed her on the wrist just before he left Iran.
The accused has not been charged with an offence for every occasion on which the prosecution says he made that threat to [the complainant]. If you find that threat was repeated on multiple occasions then you may use that evidence as being relevant to explain [the complainant’s] ongoing fear and compliance with the accused’s demands for sexual intercourse.
You must not use that evidence to reason simplistically that he is a bad person who makes threats and is therefore more likely to have committed the charged offences.
Finally, there is also that evidence from [the complainant] that he threatened her on the first occasion at Scotty’s Motel. He threatened to call the police if she did not let him in and have her arrested for stealing his car. He threatened that the police would take her kids away and go to prison. Again, members of the jury, if you find that threat was made it is not a charged threat but you may use it as part of the circumstances relating to count 3. Of course, you must not use that threat to reason simplistically that the accused is a bad person who makes threats and is, therefore, more likely to have committed the charged offences.
The foundation of the appellant’s complaint was that while these directions correctly and adequately warned the jury against impermissible reasoning in respect of uncharged discreditable conduct, they did not warn against similar reasoning based on the evidence supporting the charged conduct. It was necessary, in the appellant’s submission, to direct the jury as to how the evidence in respect of each count was cross-admissible and give it the benefit of an explanation of the proper processes of reasoning. Absent that, it would have been necessary to direct the jury to treat each charge entirely separately and ignore the evidence relating to other charges when considering each one. Put another way, it was an error, or productive of a miscarriage of justice, to confine the directions required by s 34R to the use to be made of the uncharged acts.
The appellant identified general and specific problems arising from this failure. The general problem he asserted was that the jury needed to be instructed that they could not let the fact that there were a number of separate allegations lead them to ‘bad person reasoning’.
More specifically, the appellant submitted that the evidence supporting counts 1 and 3-6 (the rapes) were cross-admissible on a propensity basis. It was necessary to direct the jury that it could not reason that simply because there were several allegations, they were more likely to be true. In making that submission, the appellant accepted that the prosecution had not sought to advance a propensity use of the evidence supporting the charged acts. He submitted, however, that that was beside the point, in that it would ‘doubtless’ have been on the mind of the jury that there were five separate, but similar charges of rape made by the same complainant against the same accused. The appellant contended that there was a need for direction to guard against the antipathy to the accused which multiple allegations engender.[2]
[2] Referring, in this regard, to R v C, CA [2013] SASCFC 137 at [61].
The second specific problem concerned the evidence supporting count 8. The appellant identified that evidence of an attempt to dissuade a witness from giving evidence might be deployed by the jury as evidencing a consciousness of guilt with respect to counts 1 to 7. That required, in his submission, a direction warning against reasoning directly from acceptance of count 8 to acceptance of counts 1-7.
In Perara-Cathcart v The Queen, the High Court said of the content of a direction required by s 34R(1):[3]
A sufficient direction under s 34R(1) must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Compliance with s 34R is mandatory. Whether there has been compliance with s 34R(1) will depend on the circumstances of the case.
(Footnotes omitted)
[3] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [51].
In this regard, the High Court located what was required by the circumstances of the case in the identification of the ‘real issues’ in the case, referring to the responsibility of the trial judge to direct the jury as articulated in Alford v Magee:[4]
And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in light of the law, what those issues are.
[4] (1952) 85 CLR 437 at 466.
The obligation under s 34R(1) to direct as to the permissible and impermissible uses of discreditable conduct evidence is, therefore, framed by the real issues at trial. As Lovell J explained in JGS v The Queen:[5]
As discussed, the nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial. What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence. Ultimately, when considering the adequacy of directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.
(Footnote omitted)
[5] [2020] SASCFC 48 at [97].
In R v Dhir,[6] the appellant was charged with one count of digital rape, two counts of aggravated assault causing harm and two counts of aggravated assault. The complainant was the appellant’s wife. There was evidence of other acts of violence on the part of the appellant towards his wife. The judge gave comprehensive directions on the permissible and impermissible uses of the evidence of uncharged acts. Specifically, he directed against ‘bad person’ reasoning on account of that uncharged conduct.
[6] (2019) 133 SASR 452.
One of the appellant’s complaints in Dhir was that the directions made in conformity is s 34R were limited to the uncharged acts and did not incorporate the evidence of the charged acts. The Chief Justice, with whom Stanley and Doyle JJ agreed, said:[7]
In the circumstances of this case, there is no reason to think that the jury would not have understood the equivalence between the charged acts and the uncharged acts. In particular, the warning against bad person reasoning, on its face, would readily have been understood as applying to both charged and uncharged acts.
[7] R v Dhir (2019) 133 SASR 452 at [54].
A helpful starting point for consideration of what s 34R(1) required in the context of the issues in this case, and whether the obligation was sufficiently discharged, is the multiplicity of counts charged as representative of an alleged broader course of rapes and threats made by the appellant to the complainant. First, as set out above, following a discussion of the direct evidence in relation to each count, the judge gave a separate consideration direction in respect of all counts. In this regard, McHugh J observed in KRM v The Queen:[8]
It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a “separate consideration warning”). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present.
[8] (2001) 206 CLR 221 at [36] (McHugh J); see also at [133] (Hayne J).
KRM v The Queen did not concern a mandatory requirement under s 34R(1) or any such equivalent. The Court was only concerned with whether a miscarriage of justice had occurred.
The appellant’s ‘general’ complaint was that a warning was required simply by reason of the multiplicity of counts. However, s 34R(1) is concerned with evidence, not charges. In our view, the separate consideration direction was sufficient to address the ‘general’ problem that the appellant asserted.
Moving to the first of the specific problems the appellant identified relating to the evidence, McHugh J continued in KRM v The Queen:[9]
Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.
[9] KRM v The Queen (2001) 206 CLR 221 at [37] (McHugh J).
Again, while not concerned with a mandatory requirement such as is prescribed by s 34R(1), this passage nonetheless has relevance as a statement of caution against loading the jury with warnings and directions that are superfluous to the issues. Ultimately, the question is whether sufficient directions, compliant with s 34R(1), have been given such that there is ‘no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use’.[10]
[10] JGS v The Queen [2020] SASCFC 48 at [97].

The prosecutor made no invitation to the jury to engage in propensity or dispositional reasoning. He expressly said in opening that the charges had to be considered separately.
The judge’s directions, expressed to be concerned with uncharged rapes and threats, were nonetheless strongly couched in terms of warning the jury against impermissible reasoning. When read in conjunction with the separate consideration direction, it is difficult to conceive that the jury was at risk of not understanding the equivalence between the charged acts and uncharged acts to this end. As set out above, the judge said:
The evidence of those other uncharged occasions of rape must not be used to reason simplistically that because the accused has committed those extra rapes that he is the sort of person who will commit or is likely to commit these crimes with which he is charged. You must not reason simplistically that he has committed many more crimes than charged and therefore he must be guilty of the charged crimes or is more likely to be guilty of them.
This direction was concerned expressly with reasoning from evidence of uncharged occasions. However, the charged occasions were representative charges of what was said to be a course of conduct. The ‘real issue’ was whether the entire course of conduct against the complainant (rapes and threats), of which the charged occasions were specific instances, had occurred at all. The prosecutor had not made any invitation to propensity reasoning as between the evidence of the charged rapes and threats.
We are not persuaded that it is realistic, in that context, to think that the jury would not have understood the impermissible reasoning directions as extending to the evidence of the charged acts. We also observe that the reference in R v C, CA[11] to the antipathy engendered by multiple allegations was in the context of not only multiple alleged acts, but multiple complainants.
[11] [2013] SASCFC 137 at [61].
Turning to the second specific problem asserted, the evidence of the threat the subject of count 8 is different from the other threats, in that it was made to IS rather than to the complainant. It stands outside the course of conduct alleged by the complainant. The risk of the jury reasoning directly to guilt of the other counts on account of this evidence might be said to be greater in this regard. However, that risk must also be assessed in the context of the real issue at trial. In that regard, the judge gave two warnings, in context, that they were not to use the evidence of uncharged threats to reason that the appellant was a bad person who makes threats and is therefore more likely to have committed the charged offences.
The appellant relied heavily on the decision of this Court in R v W, P R.[12] The appellant in that case was charged with four counts of offending against his stepdaughter. These comprised counts 1-4. He was also charged with four counts of attempting to persuade another stepdaughter from giving evidence. These comprised counts 5-8.
[12] [2005] SASC 463.
The trial judge in that case exercised his discretion against ordering a separate trial of counts 5 to 8. The Court of Criminal Appeal considered that it was open for the judge to have done so. In the forensic context of the case, separate trials would likely have required both stepdaughters to give evidence twice. In addition, it was ‘of particular significance’ that evidence of the conduct the subject of counts 5-8 was admissible on the trial of counts 1-4 as evidence of conduct of the appellant indicating a consciousness of guilt. It was for that reason that the judge refused separate trials.[13] The jury convicted the appellant of counts 2 and 3, as well as counts 5-8.
[13] R v W, PR [2005] SASC 463 at [38].
The Court held that there was an ‘obvious need’ to direct the jury, when considering the evidence of the threats, that a possible explanation for the appellant’s conduct, if it occurred, was that he was innocent and had unwisely tried to dissuade the second stepdaughter from giving evidence because he feared he would be convicted. Otherwise, there was a danger the jury would assume that if the second stepdaughter’s evidence was true, the only explanation for the appellant’s conduct was that he was guilty of counts 1-4.[14] Doyle CJ, with whom Sulan and White JJ agreed, said:[15]
The Judge specifically directed the jury not to reason that because they were satisfied that one or more of the uncharged incidents occurred, they could conclude that Mr W was guilty of one or more of the charged acts. The Judge should also have directed the jury that they should not reason that because they were satisfied that Mr W attempted to dissuade Ms L C from giving evidence, that that of itself was evidence of his guilt on the charges relating to Ms P A.
[14] R v W, PR [2005] SASC 463 at [40].
[15] R v W, PR [2005] SASC 463 at [41].
Doyle CJ was not persuaded that the directions given were sufficient to communicate to the jury what was required. He held that the risk of the jury misusing the evidence the subject of counts 5-8 was such that the appellant was entitled, as part of a fair trial, to a direction warning against misuse of the evidence. He held that the failure of either counsel to raise the matter with the judge was regrettable, but not a reason to decline to act on the flaw in the directions.[16] Consequently, the Court set aside the convictions on counts 2 and 3.
[16] R v W, PR [2005] SASC 463 at [44]-[45].
In the present case, the appellant submitted that the danger identified in R v W, P R[17] was very much alive. The judge gave no direction that a possible reason for the conduct the subject of count 8, if the jury accepted that it happened, was that the appellant feared he would be convicted even though he was innocent.
[17] [2005] SASC 463.
In R v W, P R,[18] the prosecutor in opening invited the jury to infer that the explanation for counts 5-8 was the defendant’s guilt on counts 1-4. He did not repeat the invitation in closing. However, this forensic significance of the evidence supporting counts 5-8 was the very reason for refusing separate trials. The necessity of a warning in that case was stark, as the prosecutor had put consciousness of guilt reasoning in issue.
[18] [2005] SASC 463.
Unlike in W, P R,[19] the prosecutor in the present case made no invitation to the jury to engage in consciousness of guilt reasoning. No party requested the judge to direct on this at trial and there was no suggestion at trial that there was any risk of impermissible reasoning. Moreover, when addressing count 8, the prosecutor appears to have been careful not to have made any suggestion that the evidence supporting this count was in any way relevant to the complainant’s credibility and reliability. More generally, the prosecutor was careful to emphasise the need for separate consideration of the charges.
[19] [2005] SASC 463.
Identifying the risk of consciousness of guilt reasoning by reference to count 8 would have introduced the concept for the first time when it had not featured at trial. That would have risked highlighting potential motivations of the appellant in making the threats and diverting the jury from the real issue.
Ultimately, we are not persuaded that there is sufficient reason for thinking that the jury would not have understood the direction against impermissible reasoning from the evidence of threats as extending to the evidence supporting count 8. The application of s 34R(1) in the context of the real issue in the case did not require a further direction.
In reaching these conclusions on both of the ‘specific problems’ identified by the appellant, we have brought to account the force of the impermissible reasoning directions that the judge did give, including with respect to the evidence of threats made by the appellant, together with the separate consideration direction. We have also placed weight on the prosecutor’s careful invitation to the jury to consider whether each offence had been proved separately.
The real issue at trial was whether the complainant’s evidence of the appellant’s course of conduct, and specifically the charged offences, was to be accepted beyond reasonable doubt. In that context, we consider it unlikely that the jury would not have understood the judge’s impermissible reasoning directions as extending to evidence of the charged acts, including count 8. Had the prosecutor sought, in any way, to invite any kind of propensity or consciousness of guilt reasoning from the evidence supporting the charged conduct, our answer would likely have been different.
We dismiss Ground 1 of the appeal.
Whether the judge failed to give adequate directions relating to the evidence of the accused (Ground 2)
The appellant’s complaint on this ground was that the judge did not give a direction to the effect that even if they did not accept his evidence, they must nonetheless consider the prosecution case and be satisfied beyond reasonable doubt of the appellant’s guilt before they could convict. The basis for this direction was articulated by Brennan J in Liberato v The Queen (‘Liberato’):[20]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
[20] (1985) 159 CLR 507 at 515.
In R v Phillips (‘Phillips’), this Court said: [21]
In a case of this nature where, essentially, the case depends upon the evidence of a complainant and where the defendant has given evidence on oath and denied the offending, it is incumbent on the trial Judge to give a clear direction that, even if they do not accept the defendant’s evidence, they must then consider the prosecution case and be satisfied beyond reasonable doubt of the guilt of the accused before they can convict. General directions about the onus of proof are not sufficient.
[21] R v Phillips [2015] SASCFC 67 at [36].
In De Silva v The Queen (‘De Silva’),[22] which concerned evidence of answers given by the accused to police in an interview, the High Court explained the rationale for such a direction:[23]
When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths and weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.
[22] (2019) 268 CLR 57.
[23] Da Silva v The Queen (2019) 268 CLR 57 at [11].
The Court in De Silva went on to approve a form of Liberato direction, taken from the wording offered by Kirby J in R v Anderson,[24] which it extended to treatment of an accused’s account in a police interview:[25]
(i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
[24] (2001) 127 A Crim R 116 at [26].
[25] De Silva v The Queen (2019) 268 CLR 57 at [12].
The Court went on to observe, however, that whether a Liberato direction is required will depend on the issues and the conduct of the trial. Thus, where there is no suggestion that the verdict turns on which of the prosecution and defence witnesses is to be believed, there may be no need to go beyond conventional directions on onus and standard of proof.[26]
[26] De Silva v The Queen (2019) 268 CLR 57 at [13].
In the present case, the jury were required to consider which of the complainant’s and the appellant’s accounts they believed. The trial judge’s direction, which the appellant complained was insufficient to discharge the obligation to give a Liberato direction, was as follows:
You should assess the evidence of all the witnesses in this trial in the same way but with one important caveat. The accused was not obliged to give evidence or to call witnesses. He had the legal right to remain silent. By electing to give evidence and call other witnesses he takes on no onus of proof what so ever. He is not required to prove his evidence. He is not required to prove his innocence. The prosecution in this case must do the proving and the disproving.
The question for your decision is whether on the whole of the evidence, and notwithstanding the evidence given by the defence and arguments made by the defence, the prosecution has proved the charge under your consideration and done so to the standard of beyond reasonable doubt.
The accused having elected to give evidence and call evidence means, however, you assess his evidence and the defence witnesses in the same way as the evidence called by the prosecution, as I said subject to that caveat.
Clearly enough, the judge did not employ the preferred formulation that the High Court endorsed in De Silva.[27] The question is whether what the judge described as the ‘caveat’ to the jury’s assessment of the evidence of the appellant was sufficient, in substance, to discharge the judge’s obligation. In terms, the judge did not say explicitly what the jury was to do if it rejected the appellant’s account as a reasonable possibility.
[27] De Silva v The Queen (2019) 268 CLR 57 at [12].
Having said that, the direction did go beyond what the Court in Phillips deprecated as ‘general directions about the onus of proof’.[28] The judge did address the appellant’s giving of evidence and specified that the appellant was not required to prove that evidence. She directed that the prosecution was required to ‘do the proving and the disproving’. She also directed that the prosecution was required to provide the charge beyond reasonable doubt ‘notwithstanding the evidence given by the defence’.
[28] R v Phillips [2015] SASCFC 67 at [36].
These directions communicated that it was for the prosecution to prove the case. They correctly explained that the defendant assumed no onus of proof in giving evidence. In addition, the judge later gave a further direction:
If, after considering all of the evidence in accordance with my directions you think he possibly or probab[ly] committed the offence under your consideration or do not know where the truth lies about that charge, then your verdict would be not guilty because you would not be satisfied beyond reasonable doubt.
It is fair to say, with respect to the judge, that it followed logically from the combination of these directions that the jury was not to engage in choice reasoning. However, the directions did not explain that with the clarity that the High Court has indicated should be deployed.
Having said that, defence counsel did not seek a redirection of any kind. It is well understood that such a failure is not determinative where a direction is required to avoid a risk of miscarriage of justice. However, the absence of any application for a redirection can tend against a finding that the risk was present.[29]
[29] De Silva v The Queen (2019) 268 CLR 57 at [35].
Ultimately, the question is whether the judge clearly communicated to the jury that if they did not believe the accused’s evidence, they were required to put that evidence to one side and consider whether the prosecution, on the basis of evidence that the jury accepted, had proved the guilt of the accused beyond reasonable doubt.
The jury were told that the onus lay with the prosecution at all times, ‘notwithstanding the evidence given by the defence’. They were also told that the appellant was not required to prove his evidence. These directions, in combination, communicated the principle that a Liberato direction is designed to support.
The direction constituted an obvious departure from the approved form of Liberato direction. We respectfully do not think that its form is to be recommended. However, ultimately, the judge did communicate in strong terms the onus on the prosecution to prove the case ‘notwithstanding’ the appellant’s evidence. In circumstances where defence counsel did not seek a redirection, we are satisfied, just, that the departure from the ordinary form of a Liberato direction did not give rise to a perceptible risk of a miscarriage of justice.
We grant permission to appeal on Ground 2 but dismiss the ground.
Whether the judge erred in law in failing to give a forensic disadvantage direction in accordance with s 34CB of the Evidence Act
Section 34CB of the Evidence Act provides:
34CB—Direction relating to delay where defendant forensically disadvantaged
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a)     explain to the jury the nature of the forensic disadvantage; and
(b)     direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a)     must be specific to the circumstances of the particular case; and
(b)     must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
The appellant complained that the timing of the alleged rapes the subject of counts 3 to 6 was so vague as to create a forensic disadvantage to him.
Counts 3 and 4, the rapes at Scotty’s Motel, were charged as occurring between 21 March 2019 and 25 May 2019, that is, in a two-month window. The complainant’s evidence was that they occurred in the second of the two rooms she stayed in.
As indicated above, it was an agreed fact that the appellant travelled to Iran on 7 March 2019 and returned on 6 April 2019. The complainant had moved in to Scotty’s Motel on 4 March 2019. The appellant complained that particularisation of the dates of counts 3 and 4 would have given him the opportunity to consider whether there was any evidence he could adduce going to opportunity. That is, if dates had been particularised, he may have had an alibi.
That complaint is significantly weakened by the complainant’s evidence that the rapes the subject of counts 3 and 4 occurred in the second room at Scotty’s Motel. It was an agreed fact that the complainant and her two children stayed in room 13 at Scotty’s Motel from 4 March 2019 to 10 April 2019, and in room 15 from 10 April 2019 until 24 May 2019. That is to say, the appellant had returned from Iran by the time they moved to the second room.
Count 5 was charged as having occurred in the second half of 2019. The complainant’s evidence was that count 5 occurred after she had moved out of Scotty’s Motel. The appellant travelled to Iran again between 25 November 2019 and 26 January 2020. The appellant submitted, again, that particularisation of the dates would have allowed him to consider whether there was evidence that could have been advanced as to opportunity. Count 6 was particularised as having occurred during a period of 18 days prior to the appellant’s arrest on 18 June 2020.

The delay in this case was relatively short (compared with many cases) but that is not determinative. As this Court said in R v S:[30]
While there is no lower limit on the elapsed time and the focus of the section is on the degree of forensic disadvantage suffered by the defendant as a result of the elapsed time and not on the length of that elapsed time as such, in general terms it may be expected that the forensic disadvantage would be greater where the delay is in the order of one or two decades than in the order of one or three years.
[30] [2015] SASCFC 179 at [70] (Blue J; Kelly and Stanley JJ agreeing).
In R v Cassebohm, Doyle CJ said:[31]
It will not be sufficient for the trial judge to identify a theoretical or hypothetical or assumed disadvantage to the accused. On the other hand, if it were necessary for the accused to satisfy the judge of an actual and specific disadvantage, the provision would offer little protection to a defendant. One can rarely be sure what a deceased witness might have said, one can rarely know what a person might have remembered 20 years ago but no longer remembers, one can never know what is in a document now lost. I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so. …
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
[31] R v Cassebohm (2011) 109 SASR 465 at [30]-[31].
In this case, the course of offending was alleged to have occurred between 2017 and 2020. The complainant went to the police on 18 June 2020. Three years passed between the complainant reporting the offending and the first trial.
Defence counsel at trial requested a direction pursuant to s 34CB. The basis for the request was expressed to be the loss of forensic evidence going to whether sexual intercourse took place and DNA testing of the aborted foetus from June 2019. Counsel relied upon the delay between the allegations and the reporting to the police.
As already noted, the rape the subject of count 6 was alleged to have occurred within an 18-day window prior to the police report. Defence counsel made the request at large and did not specify any considerations specifically related to counts 3-6, such as the loss of opportunity to consider whether he had an alibi. The focus of the application was the lost opportunity for a medical examination.
The judge did not give the direction. Defence counsel did not reference delay or forensic disadvantage in his subsequent address. His address focused on the credibility of the complainant’s accounts.
As discussed above, the ‘real issue’ in the case was whether the acts of rape and the threats had occurred at all. The appellant did not dispute that he had attended at the house, at Scotty’s Motel or at Ingle Farm Shopping Centre. Neither the terms of the application for a direction at trial nor the appellant’s address supports the proposition that there was a real issue as to whether he had an opportunity to commit the offences by reason of his trips to Iran.
Having regard to the issues in dispute at trial and the nature of the disadvantage articulated to the trial judge when the appellant applied for the direction, it cannot be said that the judge’s failure to give a direction pursuant to s 34CB resulted in a miscarriage of justice.
We refuse permission to appeal on Ground 3.
Whether the judge gave inadequate directions on a motive to lie (Ground 4).
It was a plank of the defence case that the complainant had made false allegations as she was upset that the appellant had announced his engagement to another woman. That is, the defence suggested that the complainant had a motive to lie. It was necessary for the judge to direct the jury as to the effect of their rejecting that the complainant had a motive to lie. The absence of a motive to lie is neutral and does not strengthen the prosecution case.[32] It follows that where it is necessary to give a direction about the absence of motive to lie, it is necessary to direct the jury that they should not reason that this makes it more likely that the accused is guilty.[33]
[32] Palmer v The Queen (1998) 193 CLR 1 at [9].
[33] Baptiste v The King [2023] SASCA 70 at [31].
The appellant submitted that while the judge’s directions did incorporate the correct direction, there was a risk that this would be lost in what he characterised as surrounding, incorrect directions.
The judge’s entire direction on motive to lie was as follows:
I am now going to give you a direction about what is briefly described as a direction on motive to lie.
The law is that you must not approach this case by asking yourself the question well why would [the complainant] lie? That is the law in regard to any case of allegations of sexual assault. A jury must not approach the case by asking themselves well why would the complainant lie.
The law is clear on this, that is the wrong approach. It is the wrong question to be asked. There are two reasons why that is the wrong approach.
First, underlying the question why would the complainant lie is a suggestion that an accused person needs to come up with a reason for a person to lie. It is not, of course, for an accused person to provide or come up with a motive for someone to lie, or indeed to show that a person is lying. As I said, an accused person never has an onus of proof.
Second, the question well why would the complainant lie has built in it a dangerous line of reasoning which is if there is no motive to lie then the person must be telling the truth.
There may be various reasons why any person might lie and there may be only a reason known to that person. Even if there is no apparent motive to lie it does not follow that someone is telling the truth. The absence of a motive to lie does not strengthen a prosecution case, rather it is entirely neutral.
Now, the defence in this case suggested to [the complainant] that she was in love with the accused and that she threatened to make trouble for the accused when she found out that he was going to marry a woman in Iran. The defence have essentially suggested that is her motive to lie. She denied that.
She denied having an affair with the accused and she denied being in love with the accused or ever wanting to have intercourse with him.
As the motive was raised, however, you will need to consider it, bearing in mind that an accused person does not have to prove a motive. If you reject the motive raised it does not follow therefore that the complainant must be telling the truth.
So, members of the jury, in giving you that direction I am not suggesting to you that [the complainant] is lying or not lying but it is a direction of law that I need to give you about how you must not approach the case and how the law says it is wrong to approach the case in that particular way.
In relation to counts 1-7, the prosecution must satisfy you beyond reasonable doubt that [the complainant] is a truthful, credible and reliable witness in relation to the count under your consideration.
In relation to count 8, the prosecution must satisfy you beyond reasonable doubt that [IS] is a truthful, credible and reliable witness about that occasion.
(Emphasis added)
The highlighted passage in this direction, together with the unequivocal direction that the burden remained with the prosecution, met the obligations of the judge with respect to directing the jury on motive to lie. The appellant’s complaint is that this passage was surrounded by phrasings cautioning against reasoning that if there is no motive to lie then the person must be telling the truth, and that ‘it does not follow’ that the person is telling the truth.
Those phrasings would arguably have been insufficient in only cautioning against reasoning to certainty, as opposed to cautioning against any strengthening of the prosecution case. However, they did not exhaust the direction. The highlighted passage completed the correct direction. We do not accept that the correct direction was lost or erroneously diminished by the other passages. The jury was adequately directed.
We refuse permission to appeal on Ground 4.
Conclusion on the appeal against conviction
Permission to appeal on Ground 1 already having been granted, we dismiss the appeal on that ground. We grant permission to appeal on Ground 2 but dismiss the appeal on that ground. We refuse permission to appeal on Grounds 3 and 4. We dismiss the appeal against conviction.
The appeal against sentence
The sole ground of appeal against sentence is that the sentences imposed were manifestly excessive.
The judge imposed the following sentences:
·count 1: 10 years’ imprisonment;
·count 2: four months’ imprisonment;
·counts 3 and 4: 10 years’ imprisonment for each offence, partially concurrent to the extent of eight years, resulting in an effective sentence of 12 years’ imprisonment. That sentence was made concurrent with the sentences imposed for counts 1 and 2, to the extent of three years, resulting in a sentence of 19 years and four months.
·counts 5 and 6: 10 years’ imprisonment for each offence, partially concurrent to the extent of eight years, resulting in an effective sentence of 12 years’ imprisonment. That sentence was made concurrent with the effective sentence for counts 3 and 4 to the extent of eight years, resulting in a sentence of 23 years and four months;
·count 7: six months’ imprisonment, cumulative upon the other sentences;
·count 8: eight months’ imprisonment, cumulative on the other sentences.
The total effective head sentence was therefore 24 years and six months’ imprisonment. The judge considered that there was no basis to further reduce that period for totality.
The appellant was, by reason of the multiple offences, a serious repeat offender. The judge accordingly fixed a non-parole period of 19 years, seven months and seven days.
The judge reduced the sentence by two years and eight months for time spent in custody and on home detention. The final head sentence imposed was 21 years and 10 months, with a non-parole period of 16 years, 11 months and seven days.
It is not necessary to rehearse the principles relating to a complaint of manifest excess. The appellant accepted that a long period of punishment was called for. He submitted, however, that the gravamen of the offending was the rapes. He accepted that the threats merited their own punishment but submitted that they were closely connected with the rapes. He did not submit that there was anything special about his personal circumstances that warranted extraordinary leniency; neither did he have a criminal history that would have denied him any leniency available to a first-time offender. Having said that, the rapes occurred over a considerable period of time, against a background of a course of offending conduct.
The appellant observed that the final sentence was more than double the sentence indicated in R v D.[34] While he accepted that there was no standard to be applied, he submitted that the sentence was ‘out of step’ with cases of ongoing child abuse. In this regard he referred to R v F, AD[35] and R v Cashion.[36]
[34] (1997) 69 SASR 413.
[35] [2015] SASCFC 130.
[36] [2014] SASCFC 138.
R v F, AD[37] was a Director’s appeal against sentence for offending against two complainants, the defendant’s sons. In respect of one son the defendant was convicted of one count of persistent sexual exploitation of a child and two counts of rape, which were said to have occurred when the complainant was an adult. In respect of the other, he was convicted of one count of unlawful sexual intercourse with a person under 12 and one count each of aggravated serious criminal trespass and rape that were said to have occurred when that complainant was an adult.
[37] [2015] SASCFC 130.
The Court of Criminal Appeal set aside the total sentence of 13 years with a non-parole period of eight years as being manifestly inadequate and resentenced him to a term of imprisonment of 20 years with a non-parole period of 12 years. The Court observed that it was not appropriate to have ordered concurrency in respect of the offences against the second complainant as an adult with the offences against him as a child.[38]
[38] R v F, AD [2015] SASCFC 130 at [58].
In R v Cashion,[39] the appellant was sentenced in respect of two counts of anal and vaginal rape, and five counts of unlawful sexual intercourse with a 13‑year‑old female over a period of about one year and eight months. The sentencing judge sentenced him to 12 years’ imprisonment with a non-parole period of six years, having mistaken the maximum penalty for unlawful sexual intercourse as 10 years, when it was seven years.
[39] [2014] SASCFC 138.
The Court dismissed the appeal, as it was satisfied that no lesser sentence was warranted in any event. The appellant was 18 years old when he commenced the course of offending. The Court accepted that there was a relationship of trust between the appellant and the victim. It also accepted that the appellant’s relatively young age and the lower age differential between him and the victim had the capacity to ameliorate the standard in R v D,[40] but concluded that in the circumstances, there was insufficient reason for it to do so.
[40] (1997) 69 SASR 413.
There is limited guidance that can be gained from these cases. In Cashion, the Court was only satisfied that no lesser sentence should have been imposed. In R v F, AD, the sentence of 20 years concerned offending against two complainants.
In the present case, the offending occurred between 2017 and 2020, against a background of a course of similar conduct. The rapes were facilitated by the appellant’s ongoing threats to the complainant to release footage of the first rape. The first rape occurred while the complainant was pregnant. The last act occurred in the presence of the complainant’s distressed daughter. The rape the subject of count 4 resulted in a pregnancy which the complainant terminated. The threats against the complainant’s daughter were designed to prevent reporting of the rapes. The effect of the course of offending was devastating to the complainant and her husband.
At the date of sentencing, the appellant was 46 years old. He had taken responsibility for his family at the age of 18 in Iran after his father died. He married in his early 20s and had two children. He separated from his wife after 20 years. In 2011, he fled Iran by reason of his being persecuted for his political stance. He became an Australian citizen in 2013. His two adult children came to Australia in 2017. They have become Australian citizens and are supportive of him.
The appellant formed a relationship and had a child in 2018. He was employed in Australia. He suffered an injury at work and made a workers compensation claim. He continues to suffer severe back pain. His relationship broke down after that. He is isolated in prison on account of being in protection, having no-one who speaks his language and not having access to regular, specialist physiotherapy.
There is no doubt that the final sentence was substantial. The offending was, for the complainant, isolating, degrading and terrifying over a considerable period of time. The question is not whether this Court would have imposed a different sentence. Having regard to all the matters that the judge, appropriately, took into account, we cannot say that the final sentence was manifestly excessive.
We grant permission to appeal against sentence but dismiss the appeal.