Slape v The Queen - [2022] SASCA 91

Supreme Court of South Australia
(Court of Appeal: Criminal)
SLAPE v THE QUEEN
[2022] SASCA 91
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
8 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
The appellant was convicted following a trial by judge alone of three counts of rape, one count of attempted rape and two counts of indecent assault.
Although the charges were joined in the same information, the offences were alleged to have been committed against two different complainants on separate occasions. Counts 1–3 involved allegations of indecent assault and rape against a 43 year old female at a horseriding event in June 2017, while Counts 4–6 concerned allegations of rape, attempted rape and indecent assault against a 23 year old female at a rodeo in January 2018.
Prior to the commencement of the trial, the appellant applied for separate trials of the charges concerning each complainant. The trial judge refused the application on the basis that the evidence of the complainants was cross-admissible on ‘similarity of account’ improbability reasoning.
The appellant appeals against his convictions and complains, inter alia, that the trial judge’s finding of cross-admissibility, and misunderstanding of the effect of the DNA evidence, occasioned a miscarriage of justice.
Held, per the Court, granting permission to appeal, allowing the appeal, setting aside the convictions on all counts, and ordering that there be a retrial:
1.The trial judge erred in holding that the complainants’ evidence was cross-admissible and refusing the application for separate trials, as well as deploying ‘similarity of account’ improbability reasoning in reaching his verdicts of guilty on each count. A miscarriage of justice has been occasioned.
2.The trial judge misunderstood the effect of the DNA evidence which was used in support of the credibility and reliability of each complainants’ account of the alleged offending. A miscarriage of justice has been occasioned.

3. This is not an appropriate case in which to invoke the proviso.
Criminal Law Consolidation Act 1935 (SA) ss 48, 56, 270A; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34P, 34R, 34S, referred to.
DES v The Queen [2020] SASCFC 32; Hoch v The Queen (1988) 165 CLR 292; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; Phillips v The Queen (2006) 225 CLR 303; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137; R v M, BJ (2001) 110 SASR 1; R v Slape [2022] SADC 8; Sexton v The Queen [2022] SASCA 73, considered.

SLAPE v THE QUEEN
[2022] SASCA 91
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: Following a trial by judge alone, the appellant was convicted of three counts of rape,[1] one count of attempted rape[2] and two counts of indecent assault. [3]
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA), s 48.
[2] CLCA, s 270A.
[3] CLCA, s 56.
The offences were alleged to have been committed against two adult females, both of whom were known to the appellant.
Counts 1–3 alleged indecent assault and two counts of rape against KP, a 43 year old female who was a friend of the appellant’s mother and the ex-partner of his half-brother. The offences against KP were alleged to have been committed on the night of 10 June 2017 at an annual horseriding event held at the appellant’s family farm. The appellant was 19 years of age at the time.
Counts 4–6 alleged rape, attempted rape and indecent assault against AF, a 23 year old female who knew the appellant through work and social circles. The offences against AF were alleged to have been committed approximately six months later, on the night of 7 January 2018, at the Kongorong Rodeo.
Prior to the commencement of the trial, the appellant applied for separate trials of the charges concerning each complainant. The trial judge refused the application, holding that the evidence of the complainants was cross-admissible.
The appellant appeals his convictions on numerous grounds, conveniently grouped as relating to the following issues:
·the cross-admissibility of the complainants’ evidence;
·the trial judge’s directions under s 34R of the Evidence Act 1929 (SA) in relation to the use of each complainant’s evidence in respect of the charges relating to the other complainant;
·the trial judge’s treatment of the DNA evidence;
·the trial judge’s treatment of the evidence in relation to the complainants’ intoxication; and
·the adequacy of the trial judge’s reasons for rejecting the evidence of the appellant’s mother.
It is appropriate to commence by summarising the prosecution and defence cases in respect of the three counts relating to KP and then the three counts relating to AF.
Counts 1–3: complainant KP
At the time of the alleged offending, KP was 43 years of age. The appellant was 19 years of age. KP was a friend of the appellant’s parents, TS and JM. KP had met the appellant in about June 2014, when he was approximately 16 years of age. She had a relationship with a man named DM, who was the appellant’s half-brother.
In 2017, KP would catch up with the appellant’s family every couple of weeks or so. They would occasionally go camping together. KP regarded the appellant’s mother, TS, as a good friend.
Over the June 2017 long weekend, KP attended the appellant’s family farm at Glenburnie for an annual horseriding event. She was accompanied by two of her three children. Her former partner, DM, was also in attendance. The appellant was present and competed in the horseriding activities.
After the riding activities concluded on the Saturday, the group of 15–20 attendees returned to the “camp area” to socialise. KP, who did not participate in the horseriding activities because of back problems (for which she was taking prescription medication) drank about 12 beers over an eight hour period before retiring to her horse float around midnight.
In cross-examination, KP denied that she was heavily intoxicated when she went to bed, and that the appellant had assisted her to return to her float. DM gave evidence that KP was not noticeably affected by alcohol, but that she was tipsy.
The prosecution tendered a report from Professor Jason White, in which he expressed the opinion that, based on KP’s evidence as to her consumption of alcohol, her blood alcohol concentration might have been in the order of 0.16 per cent; that she would have been significantly affected by alcohol at the time of the incident; and that there was the potential for this to have been magnified by her medication.
The prosecution case was that, shortly after KP retired to bed and by prior arrangement, she was joined in her float by her ex-partner, DM. They engaged in consensual sexual intercourse in KP’s swag. DM then returned to where he was sleeping via the bonfire. He noticed that the appellant was still in the vicinity of the bonfire at this time.
KP’s evidence was that, soon after this, and as KP was attempting to go to sleep, the appellant entered her float. He began kissing KP. She pulled away from him, but he grabbed her head and continued to kiss her. He placed her hand on his exposed penis and caused her to masturbate him (Count 1). KP told the appellant “you shouldn’t be doing this, I don’t want to do this”, but the appellant did not respond. When KP attempted to remove her hand, the appellant grabbed her hand more tightly and held it on his penis.
After a few minutes, the appellant then forced her to perform an act of fellatio on him (Count 2). At this point, KP described withdrawing her resistance. The appellant rolled over and KP told him “no, no, can’t do this”. The appellant replied “what are you just going to leave me with blue balls”. The appellant entered KP’s swag, pulled down her track pants, and engaged in penile/vaginal intercourse with her (Count 3). He ejaculated inside her vagina and thereafter left the float. She then pulled up the track pants she had been wearing.
The following morning, KP left the appellant’s family farm at around 10.00 am. She rejected the suggestion that, prior to doing so, she approached the appellant and gave him a hug and a kiss.
The DNA evidence adduced by the prosecution provided extremely strong support for the hypothesis that the appellant was a contributor to DNA profiles obtained from a blanket in KP’s swag and the inner crotch of her tracksuit pants.
The prosecution also led evidence of a complaint made by KP to a friend during the day following the alleged offending.
The defence case with respect to Counts 1–3 was that KP performed a consensual act of oral sex upon the appellant. The appellant gave evidence that when KP retired for bed, she was quite drunk. She was stumbling, so the appellant assisted her to return to her float. After removing her clothing, KP lowered the appellant’s pants and performed an act of fellatio. His evidence was equivocal as to whether he ejaculated. The appellant denied that he coerced KP to masturbate him or that he engaged in penile/vaginal intercourse with her.
The appellant also gave evidence that the morning after the consensual encounter, KP gave him a hug and kiss before leaving the property.
The appellant’s mother, TS, also gave evidence. She said that towards the end of the evening, KP was “fairly well” affected by alcohol; that she was “not that steady on her feet and … just needed a bit of help”. The appellant led her to her float and was away from the bonfire for about 10 minutes. The following morning, the appellant’s mother observed the appellant give KP a hug and kiss.
Counts 4-6: complainant AF
AF was 23 years of age at the time of the alleged offending. She had known the appellant through horseriding events and had worked with him at the Mount Gambier Saleyards during their teenage years.
The offences involving AF were alleged to have occurred at the Kongorong Rodeo in January 2018. AF attended the rodeo with her housemate (CC) and her housemate’s stepsister (AK). She consumed alcohol throughout the day and, when she retired with others to a friend’s horse float to play a drinking game, was fairly intoxicated.
When the night came to an end, AF prepared her swag. Her evidence was that, by this stage, she was “quite affected by alcohol … feeling nauseous, dizzy, probably stumbling around a bit”. AF gave evidence that the appellant approached her and lay down next to her after she got into her swag. A few minutes later, AF needed to vomit and retreated to some nearby bushes. The appellant accompanied her, and then followed her back to her swag.
In cross-examination, AF denied that she had been flirting with the appellant throughout the day, but did acknowledge at one point sitting and having a conversation with the appellant. CC gave evidence that she saw AF and the appellant sitting next to each other talking whilst seated on a futon in her horse float.
When AF returned to her swag after vomiting, she felt “very intoxicated, dizzy and nauseous”. In cross examination, AF accepted that she was “very drunk” at the time of the alleged offending.
The appellant got into AF’s swag with her and began touching her bottom and breasts. He attempted to lift her shirt and lower her pants. AF resisted physically, “throwing his hand off and pushing him away”. She told him “it’s not going to happen and to stop”. The appellant persisted.
The appellant digitally penetrated AF (Count 4) and attempted unsuccessfully to engage in penile/vaginal intercourse with AF (Count 5). AF could feel the appellant’s penis on the skin of her back (Count 6). AF told the appellant to “fuck off”. The appellant left and returned to his vehicle. He left the rodeo about 10 to 15 minutes later.
A friend of AF’s, who was sleeping near the complainant, gave evidence that he heard the complainant say numerous times, “no, Josh, get out of my swag” in a quiet but angry tone.
Evidence was led of a complaint made by AF, about 30 minutes after the appellant left, through a text message to a friend.
The DNA evidence adduced by the prosecution linked the appellant to multi-contributor DNA profiles extracted from the outer and inner waistband of AF’s underpants, and there was also strong support for the hypothesis that the appellant was a contributor to a DNA sample from a tape lift taken from the inner crotch of the complainant’s underpants.
The defence case as to Counts 4–6 was that no sexual activity occurred between AF and the appellant. The appellant gave evidence that AF had been flirting with him throughout the day (which AF denied), and had her arm around him at one point. Later in the evening, he sat with AF in CC’s float. He had his arm around AF and she was again resting her head on his shoulder.
According to the appellant, when AF retreated to some bushes to vomit, he assisted her by holding her hair back, but nothing further occurred. He left the rodeo at night because he had arranged to cover a friend’s work shift commencing at about 5.30 am the following morning.
The trial judge’s reasons
The trial judge dealt with the cases involving KP and AF separately, except insofar as his Honour deployed the similarity of the complainants’ accounts to conclude that it was improbable that either account was falsified or imagined.
The trial judge found both KP and AF to be “impressive” witnesses, whose credibility was enhanced by their prompt complaints.
As to KP, the trial judge found that her evidence was supported to some extent by the DNA evidence, which he considered sat more comfortably with her explanation of events than the appellant’s explanation of events. His Honour rejected the appellant’s evidence, and found the defence hypothesis “unlikely”. He found the appellant to be an “unimpressive witness”, whose explanation that KP quickly undressed him and performed an act of fellatio was inconsistent with what he described as her level of intoxication. The trial judge was also critical of what he described as the appellant’s unconvincing uncertainty as to whether he ejaculated.
The trial judge also rejected the evidence of the appellant’s mother.
The trial judge found AF to be an impressive witness whose version of events was supported by the DNA evidence. His Honour noted that whilst AF acknowledged her intoxication at the rodeo, she gave a “clear account of what she says happened”. He rejected as implausible the defence hypothesis that AF had manufactured the allegations to account for her flirting with the appellant throughout the evening and so as to preserve her position with a romantic interest. The trial judge was critical of the appellant’s failure to mention AF flirting with him when interviewed, describing it as a “belated emphasis, not mentioned in his record of interview … designed to bolster the suggested motive for the complainant to lie about him …”
The trial judge again rejected the appellant’s evidence, finding him to be “unimpressive”. The basis for this conclusion appears to have been the appellant’s vagueness about whether he helped AF to bed, and the emphasis he sought to place on the close contact he had with AF throughout the evening (which was not mentioned in his first interview with police).
Cross-admissibility and separate trials
Section 102 of the Criminal Procedure Act 1921 (SA) governs the joinder and separation of charges.
Under s 102(1), charges for two or more offences may be joined in the same information if those charges are founded on the same facts or form, or are part of, a series of offences of the same or a similar character. There was no dispute that the charges in the present case were appropriately joined in the one information.
However, prior to the commencement of the trial, the appellant sought an order that there be separate trials of the charges relating to each of the two complainants.
Under s 102(5)(a), a court may direct that charges contained in a single information be dealt with in separate proceedings. However, under s 102(6), as the charges in the present case related to sexual offences involving two victims joined in the same information, the counts were to be tried together, with the only qualification being that the judge “may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.”
As the Court recently explained in Sexton v The Queen:[4]
The power to order separate trials in relation to an Information charging more than one sexual offence against more than one complainant depends upon the court being satisfied that the evidence of each complainant is not cross-admissible. The absence of cross-admissibility will, in many cases, be decisive, but that will not always be the case.
[4] Sexton v The Queen [2022] SASCA 73 at [114] (Livesey P, David JA and Stanley AJA).
In the present case, it is agreed that the cross-admissibility of the evidence of each complainant in the trial of the charges relating to the other complainant was decisive; that in the absence of cross-admissibility, there ought to have been separate trials.
The evidence of the offending against each complainant was, in the trial of the offending against the other complainant, evidence of discreditable conduct. As such, the cross-admissibility of the evidence of one complainant in the trial of the charges relating to the other was governed by s 34P of the Evidence Act. In particular, because the reasoning sought to be invoked by the prosecution through the admission of that evidence was so-called ‘similarity of account’ improbability reasoning,[5] admissibility required satisfaction of the requirements of s 34P(2)(a):
the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant …
[5] This not being a form of propensity reasoning, which also requires satisfaction of s 34P(2)(b).
Section 34P(3) further requires that, in determining the question in s 34P(2)(a), the trial judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
Having earlier refused the application for separate trials, the trial judge gave his reasons for this conclusion at the commencement of his reasons for verdict. His Honour explained:[6]
I found that the evidence of the two complainants was cross admissible and that the charges should not be severed. The basis for my doing so is that the accounts of the two women are, in relevant respects, similar; so similar in my view that it is less probable that the two accounts have been falsified or imagined. That is not to make a finding on the facts but to determine the cross admissibility of the two accounts. The allegations are by two women who knew the accused, but they were not known to each other. On their accounts, the accused has opportunistically committed sexual acts on them when they are bedded down for the night on comparable rural events. While the sexual acts alleged are somewhat different, the accused approach is similar. He has committed the acts in a non-violent but coercive manner, in brazen circumstances. Other people were bedded down in the vicinity. The accused knew that both women had been drinking alcohol.
I find that the evidence of the two women is cross admissible for a non-propensity purpose, that is, that there is a similarity of account between them which is of significant probative value. The probative value outweighs the inevitable prejudicial effect. The permissible use of that evidence can be kept sufficiently separate and distinct form the impermissible use, namely, ‘bad person’ reasoning.
I do not find that the evidence of the two complainants is cross admissible for propensity purposes.
[6] R v Slape [2022] SADC 8 at [49]-[51].

In the second paragraph of this passage from the trial judge’s reasons, his Honour expressed his reasoning in terms that the probative value “outweighs” the inevitable prejudicial effect, whereas s 34P(2)(a) requires that the probative value “substantially outweighs” any prejudicial effect. While the applicant contends that the trial judge erred by misstating the test in s 34P(2)(a),[7] the respondent contends that this was not indicative of error because his Honour had earlier (in reciting the prosecution argument) correctly stated the test.
[7] Being the error made at first instance in MDM v The Queen (2020) 136 SASR 360 at [124]-[125] (Peek J, Kourakis CJ and Kelly J agreeing on this point).
It is not necessary to reach a concluded view as to whether the trial judge did in fact apply the wrong test. Whilst the admissibility of the evidence involved an evaluative judgment under s 34P(2)(a), it did not involve a discretion. The question of admissibility admitted of only one correct answer, which this Court must therefore determine having regard to the capacity of the evidence adduced at trial, regardless of the reasons that informed the trial judge’s decision to admit the evidence.[8]
[8] McPhillamy v The Queen (2018) 92 ALJR 1045 at [11] (Kiefel CJ, Bell, Keane and Nettle JJ); R v Bauer (a pseudonym) (2018) 266 CLR 56 at [61] (the Court); Sexton v The Queen [2022] SASCA 73 at [116] (Livesey P, David JA and Stanley AJA).
In R v Bonython-Wright,[9] Kourakis CJ explained the rationale for, and approach to, the admissibility of similarity of account evidence under s 34P(2)(a) of the Evidence Act:[10]
Similarities in the testimonial descriptions of events or conduct given by different witnesses can, speaking generally and leaving aside the issue of collusion, strengthen the weight of their evidence. The degree to which the evidence of one witness is enhanced by the similar testimony of another witness will depend on the degree of detail, and the peculiarity of the conduct described. The more detailed and peculiar the conduct, the less likely it is that the witnesses concocted the evidence independently of each other, because so great is the range of human behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities. I will refer to evidence used for this purpose as similarity in account evidence.
The common law accepted that detailed descriptions of peculiar criminal or other discreditable conduct given by different witnesses carried sufficient probative weight to be admissible, notwithstanding the prejudicial effect of their testimonies. The common law conditioned the admissibility of similarity of account evidence on the trial judge’s satisfaction that the complainants had not colluded to concoct the evidence.[11] The rationale for the rule is plain enough. The probative force of similarity in account evidence is undermined if the similarities are due to collusion. However, s 34S of the Evidence Act has removed that common law condition to the admissibility of similarity in account evidence. The policy reasons for the abrogation of the rule are also plain: it is that questions of concoction are questions of fact for the jury.
Moreover, an accused’s suggestion that a complainant’s account may be the product of collusion with other alleged victims can only properly be evaluated if the jury hears the testimony of all of the complainants who may have colluded.[12] The question of admissibility which must now be decided by the judge under the provisions of Part 3 Division 3 of the Evidence Act is whether, assuming that there has been no collusion, the level of peculiarity and detail in the witnesses’ similar accounts renders the hypothesis that they independently imagined or concocted the conduct so improbable that the probative force of their similar testimonial accounts substantially outweighs their prejudicial effect. The use of similarity in account evidence in that way does not involve propensity reasoning even though, if the degree of similarity leads to a conclusion that the events described were not imagined but did in fact occur, a propensity of the defendant will have been revealed.
[9] R v Bonython-Wright (2013) 117 SASR 410.
[10] R v Bonython-Wright (2013) 117 SASR 410 at [48]-[50] (Kourakis CJ, Blue and Stanley JJ agreeing).
[11] Hoch v The Queen (1988) 165 CLR 292.
[12] R v M, BJ (2001) 110 SASR 1 at [39]-[40] (Vanstone J).
His Honour made similar observations in R v C, CA.[13] He explained that the probative force of similarity of account evidence lay in the improbability that several complaints, independently made, would share the substantial similarities in the accounts of the complainants, given the great diversity in human behaviours and imaginations.[14] His Honour summarised the approach to the issue of admissibility of similarity of account evidence in the following terms:[15]
The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.
[13] R v C, CA [2013] SASCFC 137.
[14] R v C, CA [2013] SASCFC 137 at [57]-[58] (Kourakis CJ, Anderson and Nicholson JJ agreeing).
[15] R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ, Anderson and Nicholson JJ agreeing).
His Honour later added:[16]
The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.
[16] R v C, CA [2013] SASCFC 137 at [65] (Kourakis CJ, Anderson and Nicholson JJ agreeing).
Subsequently, in MDM v The Queen,[17] Kourakis CJ returned to the topic of the admissibility of similarity of account evidence:[18]
In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen,[19] which had required the trial judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi.[20] It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.
[17] MDM v The Queen (2020) 136 SASR 360.
[18] MDM v The Queen (2020) 136 SASR 360 at [14] (Kourakis CJ, Kelly J agreeing).
[19] Hoch v The Queen(1988) 165 CLR 292.
[20] R v C, CA [2013] SASCFC 137 at [65]; R v Bonython-Wright (2013) 117 SASR 410 at [48]-[51].
As Kourakis CJ emphasised in R v C, CA, an assessment of the probative force of similarity of account evidence requires a focus upon those similarities and dissimilarities that bear upon the improbability of independent concoction, fabrication or imagination. In the circumstances of that case, for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities for this purpose.[21]
[21] R v C, CA [2013] SASCFC 137 at [93] (Kourakis CJ, Anderson and Nicholson JJ agreeing).
This emphasis was repeated in DES v The Queen[22] and MDM v The Queen.[23] In the latter, Peek J explained the need to focus upon similarities in the narrative of the allegations made by the complainants, not upon personal characteristics of the complainants, or the accused for that matter.
[22] DES v The Queen [2020] SASCFC 32 at [70] (Doyle J, Kourakis CJ and Livesey J agreeing).
[23] MDM v The Queen (2020) 136 SASR 360 at [14]-[16] (Kourakis CJ, Kelly J agreeing), [128]-[135] (Peek J).
The narrative accounts need not be strikingly similar to attain the requisite probative force.[24] But in considering similarities in the narratives of the allegations made, the focus must be on the “peculiarity and detail” of those narrative accounts,[25] rather than features that are commonplace and unremarkable.[26] As the High Court said in Phillips v The Queen:[27]
The similarities relied on were not merely not “striking”, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with his conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.
[24] Phillips v The Queen (2006) 225 CLR 303 at [58] (the Court).
[25] R v Bonython-Wright (2013) 117 SASR 410 at [50] (Kourakis CJ, Blue and Stanley JJ agreeing).
[26] Sexton v The Queen [2022] SASCA 73 at [121] (Livesey P, David JA and Stanley AJA), and the authorities referred to therein.
[27] Phillips v The Queen (2006) 225 CLR 303 at [56] (the Court).
Turning to the similarities between the complainants’ accounts in the present case, the respondent relies upon an equivalent, but slightly expanded, list of considerations to those relied upon by the trial judge:
(a)the two women, KP and AF, each knew the accused but did not know one another and had not spoken to each other about the offending;
(b)there was little or no social interaction between the appellant and the complainants in the hours before the offending;
(c)the offending occurred in circumstances where the appellant knew that the complainants had consumed alcohol;
(d)the appellant opportunistically committed sexual acts on the complainants when they were bedded down for the night, in their swags, at comparable outdoor rural events;
(e)the circumstances of the offending were risky and brazen in that there were other people in the vicinity;
(f)while the sexual acts were somewhat different, there was a similarity in the appellant’s approach in that he attempted to verbally and physically coerce the complainants into engaging in sexual acts, and when they did not consent, he persisted with his sexual advances and offended without being overly physically aggressive; and
(g)after offending, the appellant immediately left the vicinity without saying anything, putting distance between himself and where the offending against each complainant had taken place.
Based on the authorities reviewed above, consideration (a) is of no moment. The fact that both complainants were known to the appellant did not bear upon the improbability of them having independently fabricated their accounts. The fact that the complainants did not know each other and had not spoken with each other about the offending was relevant only to the possibility of collusion. But, by reason of s 34S of the Evidence Act, this was not an issue that bore upon the admissibility of the evidence.
The balance of the considerations were relevant, but ultimately had only limited probative force. Considered in the general terms in which they were expressed, several were relatively unremarkable features of a narrative account of sexual offending; and when examined in more detail, the similarities tended to dissipate.
As to (b), it is true that the evidence revealed very limited social interaction in the lead up to the alleged offending against KP. Certainly, there was no prolonged or significant attempt to seduce or flirt with either of the complainants prior to the alleged offending. However, there was evidence that the appellant had had at least some social interaction with AF in the lead up to the alleged offending against her. He was seen sitting with her earlier in the evening. He had also assisted her when she was feeling unwell from the alcohol she had consumed, albeit that this was only shortly before, and on one view a prelude to, the alleged offending.
As to (c), both complainants were, on their evidence, intoxicated. That said, it would seem that this was to quite differing degrees. On KP’s account, she was only affected by alcohol to a limited extent, whereas on AF’s account she was heavily intoxicated, to the point where she was physically ill.
As to (d) and (e), there was a degree of similarity. The events in question were comparable in the general sense that they involved people staying outdoors at overnight events involving horse-related activities. But in other respects, they were quite different. The event attended by KP was an annual gathering of about 15-20 close friends and family at the appellant’s family farm. The event attended by AF was a public rodeo at which the appellant was competing. More fundamentally, there was a degree of similarity in the relatively opportunistic and brazen nature of the appellant’s alleged conduct in attempting to engage in sexual activity with the complainants (and then coercing and forcing them to do so) whilst they were bedding down, with other people in the general vicinity. That said, whilst the alleged offending against AF occurred in circumstances where her swag was only a few metres from others, the alleged offending against KP occurred inside a horse float with others in the general, but not immediate, vicinity.
Turning to (f), there was a degree of similarity in the way in which the sexual encounters unfolded, but once again, those similarities become elusive once one descends to the detail. The sequence and nature of the sexual acts were different. In the case of KP, the allegation was of kissing, followed by forced masturbation of the appellant, fellatio and then penile/vaginal intercourse. In the case of AF, the allegation was of touching the complainant’s bottom and breasts, digital penetration, attempted penile/vaginal intercourse and then indecent assault involving the appellant’s penis touching the complainant’s back. The incidents did both progress from attempts to engage in consensual sexual activity through to coerced or forced sexual encounters. But this is true of much sexual offending. Further, the circumstances of this progression, and the nature and degree of the coercion or force used, were quite different.
Similarly, in relation to (g), the fact that both allegations involved the appellant leaving the vicinity of his offending immediately after it concluded is again unremarkable at a general level. And, when considered in more detail, differences emerge. According to KP, she ultimately ceased to resist at a certain point, and the appellant simply left after they had engaged in penile/vaginal intercourse. According to AF, she resisted throughout, both physically and verbally, and the appellant left following her telling him to “fuck off”. In the case of KP, the appellant remained at the event until the following morning, whereas in the case of AF he left almost immediately.
It should not be thought from the above consideration of the suggested similarities and dissimilarities in the complainants’ respective accounts of the offending against them that the Court’s task is one naturally amenable to an analytical approach. While a close examination and comparison of the respective accounts is appropriate, the Court is ultimately required to stand back and make an evaluative judgment as to the overall probative value of the similarities in the complainants’ accounts, and as to whether that probative value substantially outweighs the prejudicial effect of the evidence. As mentioned earlier, the prejudicial effect lies primarily in the antipathy to the accused that the multiple allegations may engender, and the potential for the finder of fact to be distracted from any defects and frailties in the evidence bearing directly upon the individual charges.[28]
[28] R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ, Anderson and Nicholson JJ agreeing).
Here, particularly bearing in mind the passage from Phillips v The Queen[29] extracted earlier in these reasons, the similarities were of a relatively general and unremarkable nature. They involved little more than two allegations of attempted consensual sexual activity, followed by coerced or forced sexual activity, with adult women who were intoxicated and preparing to go to bed outdoors at overnight events. While the similarities were of some probative value, they were not of sufficient probative value to “substantially outweigh” the prejudicial effect of both allegations being made and considered in the same trial.
[29] Phillips v The Queen (2006) 225 CLR 303 at [56] (the Court).
In our view, the trial judge therefore erred in holding that the complainants’ evidence was cross-admissible, and in refusing the application for separate trials. In circumstances where the trial judge expressly deployed ‘similarity of account’ improbability reasoning in reaching his verdicts of guilty for each of Counts 1–6, the trial judge’s error has occasioned a miscarriage of justice. The appeal must be allowed and the matter remitted for retrial.

We conclude our consideration of this ground by observing that there was a further potential difficulty with the cross-admissibility of the complainants’ evidence. It arises from the fact that, at least on the defence case, the issue on Count 2 was one of consent. As the High Court explained in Phillips v The Queen,[30] the issue of consent does not ordinarily permit of ‘similarity of account’ improbability reasoning. At the very least, the significance of this aspect of the defence case in relation to Count 2 required careful directions as to the limits of the use of the cross-admissible evidence. However, as this issue was not the subject of any detailed consideration on the appeal (or below), and the appeal is otherwise to be allowed on the basis that the evidence was not cross-admissible, there is no need for this Court to say anything further on the issue.
[30] Phillips v The Queen (2006) 225 CLR 303 at [47] (the Court).
The DNA evidence
The appellant contends that the trial judge erred in his treatment of the DNA evidence in respect of both the allegations of offending against KP (Counts 1–3) and the allegations of offending against AF (Counts 4–6). In each case, it is contended that the trial judge misunderstood the effect of the DNA evidence, and then deployed that misunderstanding in reaching the conclusions he did. It is convenient to commence with the DNA evidence relating to the alleged offending against AF, before then addressing the allegations relating to KP.
The alleged offending against AF
The appellant contends that the trial judge erred in finding that his DNA was detected in semen staining on the outer upper waistband of AF’s underpants. He contends that the evidence did not establish that there was semen-like staining on the outer upper waistband of the underpants, nor that any mixed DNA profile to which the appellant may have contributed had been extracted from a semen deposit. He further contends that the trial judge’s reasons demonstrate a misunderstanding of the nature and effect of the DNA evidence in relation to the alleged offending against AF, and that his Honour ultimately used that evidence to buttress AF’s account, thereby occasioning a miscarriage of justice.
The context in which the DNA evidence fell to be considered was that AF alleged, as summarised in greater detail earlier in these reasons, that the appellant digitally penetrated her and then attempted to insert his penis into her vagina from behind. The defence case involved a denial that any sexual activity occurred between the appellant and AF.
Upon returning home from the rodeo, AF removed her underpants and other clothing that she had been wearing, and left them on her bedroom floor. These items of clothing were later seized by police and submitted for DNA testing.
The prosecution called a forensic scientist, Dr Rebecca Pinyon, to give evidence about the results of the DNA testing of the underpants. Her evidence consisted of a report, and oral evidence that summarised, and in some respects elaborated upon, aspects of that report.
The report relevantly stated in relation to the testing of AF’s underpants:
Examined at FSSA. Blood-like staining was detected on the inner and outer surface of the crotch. The inner crotch gave positive reactions to presumptive tests for semen. Sperm were not observed on microscope smears prepared from the inner crotch area.
The report then set out the results for the testing carried out in respect of three tape lifts and a cutting taken from the underpants:
(a)tape lift from outer upper including waistband (front and rear) – a mixed DNA profile from three contributors including AF was obtained, with extremely strong support[31] for the hypothesis that the appellant was one of the contributors;
(b)tape lift from inner upper including waistband (front and rear) – a mixed DNA profile from three contributors including AF was obtained, with extremely strong support[32] for the hypothesis that the appellant was one of the contributors;
(c)tape lift from inner crotch – a mixed DNA profile from two contributors including AF was obtained, with strong support[33] for the hypothesis that the appellant was one of the contributors; and
(d)cutting from inner crotch – a mixed DNA profile from two contributors including AF was obtained, with extremely strong support[34] for the hypothesis that the appellant was not a contributor.
[31] Greater than 100 billion times more likely.
[32] Greater than 100 billion times more likely.
[33] 110 times more likely.
[34] 29 million times more likely.
Importantly, the report did not indicate that semen had been detected on the outer upper waistband, nor that any of the DNA profiles had emanated from semen staining.
In her oral evidence, Dr Pinyon summarised the results obtained from the outer upper waistband and inner upper waistband, but did not say anything to suggest that there was semen staining in these areas, or that these DNA profiles had been taken from an area of semen staining. Similarly, in giving oral evidence in relation to the tape lift and cutting from the inner crotch of the underpants (which she described as taken from the “gusset area inside underpants”), Dr Pinyon summarised the results obtained without any suggestion that the DNA profiles from the inner crotch had been taken from an area of semen staining.
The effect of the evidence summarised above was that the only area of the underpants that gave a positive result to presumptive tests for semen was an area of the inner crotch. Precisely where within that area the semen staining was detected was not made clear by the evidence. Importantly, semen staining was not detected on the outer upper waistband of the underpants. There was no suggestion by Dr Pinyon, whether in her report or oral evidence, that any of the DNA profiles that were obtained came from a semen deposit. This was important because, if the appellant was a contributor to a DNA sample extracted from a semen deposit, the likelihood of AF’s account of attempted penile penetration being true was thereby enhanced.
In summarising the DNA evidence relevant to the allegations of offending against AF in his reasons, the trial judge said:[35]
DNA evidence was given by Dr Rebecca Pinyon. She said that semen was detected on the outer upper waistband of the complainant’s underpants. There was extremely strong support for the proposition that the accused was one of the contributors to the DNA profile from the detected semen. There was also strong support for the accused being a contributor to a tape lift taken from the inner crotch of the complainant’s underpants.
[35] R v Slape [2022] SADC 8 at [93]; see also [30], where the evidence was described only in very general terms that did not mention that any of the DNA profiles that were analysed came from semen staining.
The second and third sentences in this extract from his Honour’s reasons misstate the effect of the DNA evidence. There was no semen staining detected on the outer upper waistband of AF’s underpants, and a fortiori there was no DNA profile taken from semen at that location.
Further, it is apparent that the trial judge made use of his mistaken understanding of the DNA evidence in concluding that AF’s account was “truthful and reliable”.[36] In reaching this conclusion, his Honour mentioned AF’s evidence in support of Count 5 to the effect that the appellant had been unable to complete penile/vaginal intercourse, or at least desisted when she kept rejecting him. He regarded the DNA evidence as supporting AF’s account:[37]
However, the attempt at penile/vaginal intercourse and the placing of his penis on her back may explain the DNA evidence linking him to her underwear. The accused denies any sexual connection with the complainant which would explain the presence of the DNA. While he was at pains to emphasise the extent to which the complainant had physical contact with him during the night, something she denies, that contact does not explain the DNA.
[36] R v Slape [2022] SADC 8 at [118].
[37] R v Slape [2022] SADC 8 at [112].
While the trial judge did not in this passage repeat in express terms his earlier misstatement that there was a DNA profile obtained from semen detected on AF’s underpants (and in particular on the upper outer waistband of the underpants), it is apparent that this misunderstanding influenced his Honour’s reasoning. In particular, it is apparent from his Honour’s references to the denial of a sexual connection that would explain the presence of the appellant’s DNA, and to the appellant’s evidence of physical contact not explaining the DNA, that his Honour’s reasoning was predicated upon the DNA profile (for which there was support for the appellant being a contributor) having emanated from a semen stain on the underpants. As explained earlier, this reasoning was based upon a misunderstanding of the evidence. Certainly the DNA profile from the outer upper waistband of the underpants did not emanate from a semen stain. And even if the trial judge (despite his earlier summary of the evidence) had in mind the DNA profile obtained from the inner crotch tape lift, the evidence did not establish that that profile came from the semen staining found in that general area.
On appeal, the respondent acknowledged that the trial judge erred in his summary of the DNA evidence.[38] However, the respondent submitted that it had not been established that the trial judge’s error in this respect resulted in a miscarriage of justice. The basis for this submission was that, properly understood, the DNA nevertheless supported AF’s version of events, and hence meant that the trial judge’s reliance upon that evidence to support his conclusion in relation to Counts 4–6 was appropriate.
[38] R v Slape [2022] SADC 8 at [93].
The difficulty with the respondent’s contention is that it does not take into account the nature of the trial judge’s error as to the effect of the DNA evidence, and the apparent significance of this to the trial judge’s reasoning. While the DNA evidence did provide some support for AF’s evidence, the appellant had sought to explain the DNA evidence through his evidence of earlier physical contact with AF. But the defence case did not offer any potential explanation for the presence of the appellant’s DNA in a profile emanating from a semen stain found upon AF’s underpants.
In the circumstances, we are satisfied that the trial judge not only misunderstood the effect of the DNA evidence relating to the alleged offending against AF, but also deployed that misunderstanding in support of the credibility and reliability of AF’s account of that offending. Whilst the precise extent of the support drawn from the DNA evidence cannot be determined, we are satisfied that the trial judge’s error occasioned a miscarriage of justice. To the extent that the respondent submitted that there was any scope for the application of the proviso, we do not accept this submission. Despite the DNA evidence providing some support for AF’s account, it is not possible for this Court to make a proper assessment of the credibility and reliability of the various witnesses and hence to conclude that the convictions on Counts 4–6 were inevitable.
It follows that the ground of appeal alleging error in relation to the DNA evidence relating to the alleged offending of AF has been made out. The convictions in respect of Counts 4–6 should be set aside.
The appellant submits that because AF’s evidence was held to be cross-admissible in relation to Counts 1–3, the convictions on those counts should also be set aside. While we are inclined to agree with this submission, the issue is moot because, for the reasons set out below, we are satisfied that the trial judge made a similar error in his consideration of the DNA evidence relevant to those counts that independently requires that the convictions for Counts 1–3 be set aside.
Alleged offending against KP
The appellant contends that the trial judge erred in finding that his DNA was detected in semen staining on the crotch of KP’s track pants. He contends that the evidence did not establish that there was any semen-like staining on KP’s track pants (as opposed to a blanket from her swag). As with the error dealt with in the preceding section of these reasons, the appellant further contends that the trial judge’s reasons demonstrate a misunderstanding of the nature and effect of the DNA evidence in relation to the alleged offending against KP, and that his Honour ultimately used it to buttress KP’s account, thereby occasioning a miscarriage of justice.
The context in which this DNA evidence fell to be considered was that KP alleged, as summarised in greater detail earlier in these reasons, that the appellant forced her to masturbate and fellate him, before then engaging in penile/vaginal intercourse with her. Importantly, the defence case was that fellatio occurred but was consensual. The appellant was equivocal as to whether he ejaculated, but the defence case was that it allowed for this possibility.
The prosecution relied upon a report summarising the DNA analysis undertaken upon samples taken both from the bottom blanket of KP’s swag and from her track pants. This report was not supplemented by any oral evidence.
The report explained that many areas of the blanket from the swag tested positive to a presumptive test for semen. Cuttings were then taken from two areas of that blanket, and sperm were observed on microscope smears prepared from these cuttings. The cuttings from these two areas were then submitted for DNA analysis. The results of the analyses conducted on both the sperm and epithelial cell fractions obtained from those cuttings provided extremely strong support for both the appellant and DM being contributors to the DNA profiles obtained.
Turning to the track pants, the report stated that no semen staining was detected on the track pants. A tape lift was used to sample the front and rear of the inner crotch area of the track pants. The analysis of the DNA profile obtained from this tape lift provided extremely strong support for both the appellant and DM being contributors.
The effect of the evidence was that only the DNA profiles from the blanket emanated from sperm, or indeed from an area of semen-like staining. No sperm or semen-like staining was located on KP’s track pants. A proper understanding of this evidence was important because while the admitted act of fellatio might explain the appellant’s DNA in the profile obtained from semen-like staining on the blanket, it would not easily explain the appellant’s DNA in a profile obtained from semen-like staining from the crotch of KP’s track pants. However, once it is appreciated that the DNA profile obtained from the track pants did not emanate from any semen-like staining (let alone sperm), then it follows that the appellant’s DNA in that profile might be explained by the transfer of ordinary ‘contact DNA’ from the admitted physical contact between the appellant and KP.
In summarising the DNA evidence relevant to the allegations of offending against KP, the trial judge said:[39]
The uncontested DNA evidence was to the effect that there is a very high likelihood that both [DM] and the accused are contributors to sperm stains on the bottom blanket of the complainant’s swag, and the front and rear inner crotch of the complainant’s tracksuit pants.
[39] R v Slape [2022] SADC 8 at [72].
This summary is perhaps ambiguous. Particularly when read in light of his Honour’s earlier reference to this DNA evidence,[40] it is capable of being read as suggesting only that the DNA profile obtained from the blanket came from a sperm stain. It is also capable of being read as (incorrectly) suggesting that the DNA profiles from both the blanket and the track pants came from sperm stains.
[40] R v Slape [2022] SADC 8 at [23].
A later passage from the trial judge’s reasons, however, makes it plain that his Honour not only misunderstood the effect of the DNA evidence, but also brought this to bear in accepting KP’s account:[41]
There is some support for the complainant’s account in the DNA evidence. The DNA evidence links the accused to semen stains on a blanket of the complainant’s swag and on her trackpants. She says that the accused ejaculated when he committed the third sexual offence, the rape consisting of penile/vaginal intercourse. The accused’s account does not so clearly explain the DNA evidence as does hers. He was unconvincingly uncertain about whether or not he ejaculated. He is completely unable to say where he ejaculated, if he did. If he ejaculated in her mouth during the only sexual act he describes, then the presence of the semen stains is less easily explained.
I do not find that the DNA evidence is powerful evidence in support of the complainant’s account, but it is of some weight.
[41] R v Slape [2022] SADC 8 at [102]-[103].
The second sentence from this passage demonstrates that the trial judge mistakenly understood that the DNA profiles obtained from both the blanket and the track pants emanated from semen stains. This mistake was significant because, while the defence case (involving consensual fellatio) might explain the appellant’s DNA in a semen stain on the blanket, it would not easily explain his DNA in a semen stain on the crotch of KP’s track pants.
It may be accepted that even when properly understood the DNA evidence was supportive of KP’s version of events. However, the evidence had much less probative force than the trial judge understood it to have.
It may also be accepted, based upon the second paragraph from the passage extracted above, that the trial judge did not regard even the misunderstood DNA evidence as “powerful evidence”. But his Honour nevertheless afforded it “some weight” when assessing KP’s evidence. Indeed, his Honour made a further reference to the DNA evidence when expressing his ultimate conclusion in relation to the alleged offending against KP:[42]
My rejection of the evidence of the accused and his mother does not assist the prosecution to prove its case. I may only find the accused guilty of any charge if I am satisfied beyond reasonable doubt of the evidence of the complainant. I find her evidence consistent, compelling, and in accord with other evidence. Her account is supported by the DNA evidence. Her credit is enhanced by the evidence of complaint. Her account fits logically with the largely uncontested evidence of [DM].
[42] R v Slape [2022] SADC 8 at [109].
In the circumstances, as with the DNA evidence relevant to the alleged offending against AF, we are satisfied the trial judge misunderstood the effect of the DNA evidence relating to the alleged offending against KP, and was influenced by that mistaken understanding in reaching the view he did as to the credibility and reliability of KP’s evidence. Whilst the precise extent of the support drawn from this mistaken understanding of the DNA evidence cannot be determined, we are satisfied that the trial judge’s error occasioned a miscarriage of justice. We are also satisfied, for reasons equivalent to those given in respect of the DNA evidence relevant to the offending against AF, that this would not be an appropriate case to invoke the proviso.
The other grounds of appeal
The balance of the grounds of appeal advanced by the appellant relate to the adequacy of the trial judge’s reasons, including the directions he gave himself. Accepting that it is usually desirable that an intermediate appellate court address all grounds of appeal, we see little utility in doing so in the circumstances of the present case.
Given the errors made by the trial judge in relation to the DNA evidence, the convictions cannot stand. This Court’s reasons in relation to the cross-admissibility of the evidence of the two complainants will provide guidance as to the form of any retrial. But the balance of the grounds involve complaints that focus very much upon the way in which the issues were addressed in the trial below and in the trial judge’s reasons. This Court’s views on those issues are unlikely to be of any assistance or utility upon a retrial, let alone more generally.
Orders

We grant permission to appeal, allow the appeal, set aside the convictions on all counts, and order that there be a retrial.