SPC v The Queen - [2020] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
SPC v THE QUEEN
[2020] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bampton)
28 May 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction for two counts of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), three counts of aggravated threatening life contrary to s 19(1) of the CLCA and two counts of rape contrary to s 48(1) of the CLCA.
The victim of the offences was Ms X, the appellant’s wife. The offences occurred in the course of, and ultimately brought to an end, a tumultuous relationship between the appellant and Ms X. Ms X testified that their relationship was an abusive one and gave an account of violence and rape which preceded the charged counts (the relationship evidence).
The appellant appeals on the grounds that:
1. The Judge failed to adequately direct the jury on the use of evidence of Ms X’s distress when she reported the offending to a police officer at the Two Wells Police Station.
2. The Judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.
3. The verdict on count 8, the last rape offence, was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that Ms X was not consenting.
Held per Kourakis CJ (Nicholson and Bampton JJ agreeing), dismissing the appeal:
1. It was not put by the prosecutor, nor left to the jury by the Judge, that Ms X’s distress was corroborative or supportive of her testimony. Moreover, counsel for the appellant at trial assented to the Judge’s proposal not to give any directions on the evidence of distress.
2. The Judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been made out were sound.
3. The verdict on count 8 was not unreasonable; it was amply supported by Ms X’s evidence. There was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of Ms X’s testimony.
Criminal Law Consolidation Act 1935 (SA) ss 19, 24, 48; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Byczko (No 2) (1997) 17 SASR 460; R v Schlaefer (1984) 37 SASR 207; R v Dhir [2019] SASCFC 55, discussed.
Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Quist (2017) 127 SASR 471; R v Forrest (2016) 125 SASR 319; R v Pringle [2017] SASCFC 9; R v Jones (2018) 131 SASR 532, considered.

SPC v THE QUEEN
[2020] SASCFC 43
Court of Criminal Appeal: Kourakis CJ, Nicholson and Bampton JJ

KOURAKIS CJ: The appellant was convicted following a trial by jury of two counts of aggravated causing harm with intent to cause harm,[1] three counts of aggravated threatening life[2] and two counts of rape.[3] He was acquitted of a charge of aggravated cause harm (count 2). The victim of the offences was Ms X, the appellant’s wife. The last four counts, counts 5 to 8, charged offences of aggravated threaten life, aggravated cause harm, aggravated threaten harm and rape which occurred on the night of 27 February 2017 and in the morning of 28 February 2017. The offences occurred in the course of, and ultimately brought to an end, a tumultuous relationship between the appellant and Ms X. Ms X testified that their relationship was an abusive one and gave an account of violence and rape which preceded the charged counts (the relationship evidence).
[1] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA).
Following the last rape offence on the morning of 28 February 2017, Ms X left home to attend a first aid course in which she had enrolled but was so distressed that she drove instead to the Two Wells Police Station and reported the violence of the preceding night. Evidence of Ms X’s distress was adduced from Ms X and the police officer.
The appellant appeals on the grounds that:
1the Judge failed to adequately direct the jury on the use of the evidence of Ms X’s distress when she reported the offending to a police officer at the Two Wells Police Station on 28 February 2017;
2the Judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges; and
3the verdict on count 8, the last rape offence, was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that Ms X was not consenting.
I would dismiss the appeal.
As to the first ground, it was not put by the prosecutor, nor left to the jury by the Judge, that Ms X’s distress was corroborative or supportive of her testimony. Moreover, counsel for the appellant at trial assented to the Judge’s proposal not to give any directions on the evidence of distress.
As to the second ground, the Judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been made out were sound. The Judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not Ms X was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that consensual sexual intercourse was a feature of their relationship despite the violence to which Ms X testified. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.
Finally, the verdict on count 8 was not unreasonable; it was amply supported by Ms X’s evidence. There was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of Ms X’s testimony.
The evidence
Ms X migrated from China to Australia in 2009. She operated a stall where she met the appellant. They were engaged in February 2010 and were married in April of the same year. Their first child, J, was born in October of that year. In early 2011, they moved to a home at Mawson Lakes. Ms X testified that from that time the appellant began to abuse her by making disparaging and derogatory remarks. Ms X testified that later in 2011 the appellant raped her whilst they were on their honeymoon on Hainan Island, China.
Ms X and the appellant moved from Mawson Lakes to a home in Wild Horse Plains where their second son, Z, was born in 2012.
From 2014, the appellant commuted to Darwin for work. Ms X testified that he often returned from Darwin angry and abusive. He sometimes slapped her, pulled her hair, squeezed her cheek, or attempted to strangle her. Ms X gave evidence of an occasion on which the appellant slapped her head repeatedly and warned her, ‘If you fight back, I can hurt you more … I’m the alpha male in this house.’
In 2015, the appellant and Ms X travelled to Shanghai where they stayed with Ms X’s parents. Ms X testified that one night, in the presence of her family, the appellant struck her and placed his hands around her neck. He threatened to kill her family. The police attended and spoke to the appellant but did not arrest him. A photograph taken of Ms X after the assault showed bruising over her left cheekbone.
The first count on the Information charged the appellant with aggravated cause harm. The offence was allegedly committed in November 2015 when the appellant and Ms X came into Adelaide to attend a pre-Christmas party at the Adelaide Casino, having planned to stay overnight at the home of the appellant’s mother. When they arrived home, Ms X threatened to tell the appellant’s mother about the assault in China. According to Ms X, the appellant became angry and dragged her across the floor of the house in plain view of his mother and step‑father. Ms X testified that the appellant’s step‑father ordered the appellant to stop, saying, ‘There’s not going to be any violence at my home.’ The appellant agreed that Ms X had threatened to complain to his mother but denied assaulting her. The appellant’s mother and step‑father gave evidence in the defence case, and also denied that any such conduct took place. Their evidence was that on that occasion Ms X was drunk and abusive. However, the appellant’s step‑father believed that the incident he described ‘definitely’ occurred in November 2016.
The following morning, Ms X and the appellant drove home. Ms X testified that on the way there the appellant, who was still angry, pulled her hair, struck her head, arm and leg and choked her. That conduct was the subject of count 1.
A bundle of photographs, which Ms X testified showed bruising to her right upper arm caused by that assault on the drive home, was received into evidence as exhibit P6. The appellant denied assaulting Ms X at all.
Count 2 charged an offence of aggravated cause harm, allegedly committed in February 2017. Ms X testified that, on that day, she and the appellant fell into an argument about J’s behaviour. Ms X testified that the appellant smacked her around the head about a dozen times whilst denigrating her in language laced with expletives. The appellant testified that he had no memory of any incident of the kind described. The appellant was acquitted on this count.
Count 3 charged aggravated threaten life, alleged to have been committed on 27 February 2017. Ms X testified that there was another argument over J in which the appellant blamed her for his behaviour and, in doing so, worked himself into a rage. Ms X testified that the appellant tried to whip her in the face with a red t‑shirt. She testified that in the bedroom the appellant pulled her hair, pushed her onto her bed and punched her jaw and her head. The appellant then retrieved the t‑shirt and held it across her neck. He told her that he hated her, and that after killing her he would tell the police, ‘This Chinese girl went mental and hang herself.’
The appellant’s evidence was that after he arrived home he found Ms X giving their sons lollies just before dinner and berated her for doing so. After dinner, he took J to the bathroom for him to wash up. The appellant then found Ms X in their bedroom and again berated her for allowing their children to eat lollies before dinner. He mentioned the one-child policy in China, which appeared to anger Ms X who then flicked a piece of red clothing towards him. The appellant snatched it from her and whipped it back towards her face.
The appellant testified that Ms X then attempted to kick him between the legs, but he managed to avoid any contact by stepping back. The appellant conceded that he then ‘shoved her a couple of times into the side of the door’ to avoid her scratching him as she had in the past. The appellant gave evidence that Ms X’s jaw hit the door jamb, causing her to yell out that he had broken her jaw. There was a struggle between them, and Ms X ended up on her side on the matrimonial bed with the appellant trying to hold her arm. He put his right knee onto her back to push her down in order to stop her from attacking him. He used his right hand to push her down near the top of her shoulders as he told her to stop. According to the appellant, Ms X then repeated a frequently made threat to stab him in his sleep. He described Ms X as having an ‘infatuation’ with stabbing him in his sleep.
Count 4 charged the appellant with the offence of aggravated cause harm on the same evening. Ms X testified that the appellant repeatedly kicked her to the ground, only to order her to stand back up, before kicking her down again. The appellant left the bedroom to put J in the shower. On his return, he asked Ms X to kneel down on the floor facing the television in the bedroom. He placed a belt around Ms X’s neck and restrained her hands behind her back. The appellant told her to say goodnight to their sons ‘for the last time’.
Count 6 charged the appellant with the rape of Ms X by forcing her to perform fellatio. Ms X testified that after the children were put to bed, the appellant ordered her to go to the living room where he sat on the sofa. There he asked Ms X to perform oral sex. She protested that he was ‘taking the last bit of dignity out of [her]’ and complained of her swollen jaw. The appellant demanded that she please him. Ms X testified that she performed fellatio because she knew that she could not ‘get away with it this time’.
Count 5 charged aggravated threaten harm. Ms X testified that after the appellant raped her, he said to her, ‘When I take you out, you better be quiet and don’t make any noise’ and asked her if she wanted a quick or slow death.
The appellant also asked Ms X to bury her head in a bean bag because he intended to shoot her and did not ‘want to make a big mess’. That threat was the subject of count 7, which charged aggravated threaten life.
Moments later, Ms X felt pressure on the back of her head and, on looking back, saw the appellant holding his hand like a gun on the back of her head. The appellant left, only to return with a multi‑tool, which he held against Ms X’s neck. Ms X testified that the appellant told her to put some clothes on as he was going to take her outside. She begged him not to. Ms X said, ‘I’ll be good. Please don’t do this. We are in a good situation.’
Ms X testified that the appellant later calmed down and, at her urging, they retired to the matrimonial bed. The appellant asked Ms X to engage in an apparently long-standing night-time habit of tickling his back as he went to sleep. Ms X did so for an hour or so whilst attempting to calm him down by accepting personal fault for the night’s events and promising to be good and do everything he wanted.
The appellant denied the offences of rape and aggravated threaten life. He explained that when Ms X had threatened to kill him in his sleep he had retorted, ‘You’d better do a good job of it or I’ll get my 22 and shoot you in the kneecaps and in the head.’ As to count 6, the forced fellatio charge, the appellant testified that it was Ms X who initiated oral sex on the lounge. According to him, Ms X was trying to appease him because he had just told her that he wished to separate. However, the appellant told Ms X to stop because he felt it was wrong given what had just taken place. The appellant testified:
And then as she’s sort of sitting on my left and she turned to hug, and then actually, actually as she’s saying ‘Sorry, I’ll change’, she went down onto her knees, like, in front of me and then started - as we sort of let go of the hug, and then she rubbed her hand down the side - onto the side of my legs and was, like, what I call caressing me, and then she said ‘I want to make it up to you’, and then sort of went to pull my boxers down.
…
… and then I’ve just said ‘This feels wrong’, and she’s going ‘No, no, just relax, just relax honey. I will make it all better’. I said ‘No, this is all wrong’, and then as I pushed her back gently I said ‘Your jaw’s swelling up, oh my gawd’, and I felt disgusted, I felt shocking about it, and I said ‘Yeah, you need to get ice on it’, so I went round to the kitchen area and got an icepack and brought that around, and then we both said ‘We’ll go to bed’.
On the following morning, in accordance with her ordinary practice, Ms X prepared the appellant’s lunch. Ms X testified that she spoke to the appellant about not attending the first aid course, for which she had enrolled on that day, because of her swollen and bruised jaw. He initially suggested that she cover her jaw with her hair because he was ‘not wasting $100 on [her]’.
Ms X testified that he later gave her the following instructions:
A.... He said ‘If anyone ask you what happened to your face, tell them that the kids were playing with golf clubs during the weekend and accidentally hit on your face’, and then later on he said, ‘No’, he said, ‘don’t say golf club, say cricket club’.
Count 8 charged the appellant with a further offence of rape committed a little later in the bathroom. Ms X gave the following evidence of that rape:
A.As I was standing in front of the basin, he stand behind me and he said ‘Bend over, I want a quickie’.
Q.    He said what sorry.
A.    ‘Bend over, I want a quickie’.
…
Q.    Did you say anything to him when he said that.
A.    I thought - I don’t have time.
Q.    Did you say that to him.
A.    Yes.
Q.    What did he say in response if anything.
A.    He pretty much said ‘I don’t care, make time. Hurry up’.
Q.    So what did you do.
A.    I bend over the toilet seat.
Q.    What did he do.
A.    He put his penis in my vagina and had a quickie with me.
…
A.    Yes.
Q.    Did you want to do that with him.
A.    No.
Q.    Why did you do it with him then.
A.I don’t want him to get back into the rage. I was scared that he’s going to hurt me more.
(Emphasis added)
On appeal, the appellant contended that the meaning of the italicised answer ‘I thought – I don’t have time’ was that Ms X only thought to herself ‘I don’t have time’ but did not say as much to the appellant. That is unlikely because Ms X was responding to the prosecutor’s question, ‘Did you say anything to him when he said that[?]’ The second way in which the answer may be understood is that Ms X was about to explain the thought process which led to her giving that answer but then paused (her answer is punctuated by a dash), before answering the question directly. It became clear in the course of Ms X’s cross-examination, when a very different account of the events of that morning was put to her, that Ms X did protest out loud:
Q.There wasn’t any conversation about making up a story about how it happened, was there.
A.Pardon?
Q.There wasn’t any conversation between you about making up a story about how it happened.
A.There was. That I distinctly remember. I was in the kitchen preparing the kids’ lunch, the school bag and he said it. I remember that moment he said it, he was standing there looking at me preparing. I remember it so well, it’s because when he said it, I just felt that he’s so despicable, he’s all just making up lies.
Q.It was you who said to him when you were in the kitchen ‘I’ll explain this away by saying the kids hit me with a cricket bat’.
A.No. I wouldn’t - if I have an injury like that, I wouldn't want to go out. Why would I want to go out?
Q.When you got out of bed, you both got out of bed, you went into the shower to brush your teeth. You’ve told us about that, haven’t you.
A.Yes.
Q.He was in the shower already, wasn’t he.
A.No, he hasn’t showered. I can’t remember if he showered or not, but he was standing behind me.
Q.And I guess that he came out of the shower and was drying himself when you actually backed into him and you were rubbing your bottom against him.
A.No, no, no, no, no.
Q.His pelvis.
A.No.
Q.And he said to you ‘Do you want a quickie?’.
A.No, no. He ask me.
Q.That’s what I’m putting to. He said to you ‘Do you want a quickie?’.
A.No.
Q.And you said ‘Yes’.
A.No, he said ‘Let’s have a quickie’. I said ‘No, we don’t have time’.
(Emphasis added)

The unreasonable verdict ground must, therefore, be considered on the basis that the jury may have accepted that Ms X complained to the appellant that there was not enough time.
The appellant’s account of events on that morning was consistent with his counsel’s cross‑examination of Ms X:
A.So then, yeah, I just sort of put my head in to say to, you know, ‘It’s time to get up’. Then I’ve gone into the shower, hopped into the shower. I’ve had a shower. As I’ve hopped out the shower, [Ms X] had come into the bathroom and was brushing her teeth, and I’m there towelling myself dry (INDICATES) and [Ms X] had spat out her toothpaste and then rinsed her mouth out, and then she pushed her bum back onto me, because I’m standing like behind her from where you come out from the shower, and then she’s rubbed it into my genital area and then I did say ‘Do you want a quickie?’.
Q.Why, having rejected her the night before, did you say ‘Do you want a quickie?’ now.
A.Because she, one, pushed into me, and two, that was like a thing that had happened previously where we’d have make‑up sex.
Q.And you had sex with her.
A.Yeah.
On the concoction of a story about being hit with a cricket bat, the appellant testified:
A.Yeah, then continued getting ready for work. I’ve gone off to get dressed into my work clothes. I’ve come back in to then brush my teeth and to put gel in my hair, and then that’s when I said to [Ms X] ‘How are you going to go today with your course, your jaw, with it that swollen blowing into the dummy that you’ve got to do’ and then she -
Q.Sorry, I didn’t understand what you mean about blowing into the dummy.
A.Blowing into the dummy for a first-aid course when they teach you CPR.
Q.I see, you’re talking about ‘How are you going to cope with doing that with your jaw?’.
A.Yeah, and then she just blew into her like this (INDICATES) and said ‘I’ll be fine’.
Q.You clasped your hands and drew them to your mouth, is that right.
A.Yep, and then she blew into them and then she said ‘I'm just going to tell them that the boys had hit me with the cricket bat’.
Q.Did you suggest to her that she should say that the boys had hit her with golf clubs.
A.No.
Q.Did you then suggest to her she could say they’d hit her with a cricket bat.
A.No.
Ms X left the house that morning but did not go to the first aid course. Instead, she reported the appellant’s offending to the police:
A.I was crying. You know, that was probably the biggest decision I have to make in my life. I was panicking. I want to scream, and I just broke down for a bit in the car, and then I think I have to get going because he’s going to leave home pretty soon and if he see me still on the highway he’s going to get suspicious. Then I pulled back onto the Port Wakefield Highway, then kept on driving and I know there is a police station at Two Wells. Then I just pull into Two Wells and I stopped outside of police station. It’s still very early, I went out have a look, no‑one’s in there. Then I went back into my car. Then I called my mum in China. I told her that I decided to leave him, told my mum ‘He’s been hurting me all the time, I’m going to leave him now’.
…
A.…; as I was on the phone with my mum I saw a motorbike police officer pull into the police station, and I hung up the phone with my mum and I just walked out towards him.
…
A.…, I told him ‘Please help me’.
Q.I won’t ask you about what was actually said in this conversation but did you tell him what had been happening.
A.Yes.
Q.And how were you feeling when you were telling him that.
A.I just cry and - sad - and just told him everything, he just told me ‘It’s going to be okay, you’re safe now’.
Q.You mentioned just before you pulled into Dublin I think you said, and you said it was the biggest decision - you used those words ‘It was the biggest decision’. What did you mean by that, what was the biggest decision.
A.Because I know once I get to the police there is no point turning back.
Q.Were you planning on staying in a relationship with [the appellant] at this point.
…
A.I think, yeah, when he was beating me up in the bedroom, there was one point, I think it’s after he kicked me out of the bed, he grabbed my hair, lift me up and throw me on the ground and he put his foot on my face. He said ‘I hate you so much I just want to piss on you’. Then he had a lot of hateful things. At that point I kind of think ‘That’s it, I can’t live like this any more, it’s not a way for human to live. I have to end this’. So I kind of had made up my mind then and afterwards I just was building up the courage to finally do this.
The police officer to whom Ms X spoke described her demeanour as follows:
A.… she was initially very upset, very emotional and it took some time to calm her down enough that she could begin to explain what had happened, but once she began speaking, no problems at all.
Q.How long did it take to calm her down.
A.I haven’t made a note of the length of time, but a few minutes.
Q.Did you observe any injuries to her at all.
A.…I asked her to - … - to pull back the hair on, I think it was the left-hand side of her face ... Left-hand side of her face in the vicinity of her cheek and jaw was swollen and some slight bruising.
Ms X was conveyed to Yarrow Place. Photographs taken there were received into evidence. They depicted bruising to the complainant’s left arm and shoulder, on her back, and on her left cheek and jaw.
Ground 1 – Directions as to distress
The appellant complains of the Judge’s failure to give any directions as to the proper use of the evidence of Ms X’s distress when she attended at the police station. The appellant submits that Ms X’s evidence that she told her mother in a telephone conversation, before speaking to the policeman at Two Wells, that she was leaving the appellant, was an alternative explanation for her distress, as was the appellant’s decision to leave her. The appellant also submits that in the absence of clear directions limiting the proper use of the evidence, the jury were likely to consider the combined effect of Ms X’s statements and distress to be supportive of her credibility. In the summing up, the trial Judge did no more than summarise the evidence of, and leading up to, Ms X’s attendance at the police station. The appellant contends that the Judge should have:
·directed the jury that because of the passage of time and the significance of the reconciliation contended for by the appellant on the night of 27 February 2017 and the morning of 28 February 2017, that the distress was not relevant; and
·directed the jury that if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape on the morning of 28 February 2017, they would need to be satisfied that distress was not an emotional reaction to the complainant’s decision to leave the appellant.
It is important to state at the outset that the appellant’s trial counsel did not seek any such directions. In the course of the trial, during a discussion with counsel about the evidence of Ms X’s attendance at the Two Wells Police Station, the Judge intimated his preliminary view that he would tell the jury only that investigations of the offence commenced after Ms X’s attendance there. Experienced senior counsel for the appellant responded, ‘It may be one of those matters less said the best.’
Counsel in a criminal trial have an important ethical duty to assist the proper administration of justice by drawing to the trial Judge’s attention directions which may need to be given so as to ensure that there is no miscarriage of justice. Counsel will breach that duty if he or she fails to give that question proper consideration. Moreover, that ethical duty overrides counsel’s assessment of the effect of giving that direction on the accused’s prospects of acquittal and cannot be controlled by the accused’s instructions. It would, therefore, be a particularly egregious breach of that ethical duty to refrain from doing so in order to preserve an appeal point in the event of a conviction. For those reasons, on an appeal on the ground that a failure to give a direction has resulted in a miscarriage of justice, the Court will treat a decision by counsel not to seek a direction as a strong, albeit not conclusive, indication that no miscarriage of justice was occasioned by the omission.
In R v Byczko (No 2), Bray CJ explained that the rule of practice of warning juries not to put weight on evidence of distress was limited to cases in which it was left as corroboration: [4]
However, those four cases were cases where distress was left to the jury as potential corroboration. It is in those circumstances, in my view, that the warning is necessary and that failure to give it may lead to the conviction being quashed. Here the alleged distressed condition of the girl was not so left and, as I have said, was impliedly excluded from the potentially corroborative category. It was merely mentioned as one of a number of factual matters for the jury to consider. When dealing with such matters the trial Judge has a wide discretion. Broadly speaking it has never been the practice for appellate courts to intervene simply because the judge has not specifically directed the jury that they should give as much or as little weight to any particular factual matter as the appellate court thinks appropriate. Nor do I think it is desirable that appellate courts, extreme cases apart, should change their practice in this regard.
[4] (1997) 17 SASR 460 at 463.
In R v Schlaefer, King CJ explained: [5]
Two decisions of the Full Court establish that independent evidence of observed indications of distress may in certain circumstances amount to corroboration: The Queen v. Yates; The Queen v. Henderson. The test to be applied was laid down in Yates, following Reg. v. Flannery, as being whether an inference which the jury could reasonably draw is that there was a causal connexion between the alleged assault and the distressed condition. This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with the sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred. In Yates the Full Court adopted a passage from Flannery in which the Full Court of Victoria said:
In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distress condition.
Clearly, when the Full Court, following Flannery, referred to an inference which the jury could reasonably draw of a causal connection between the alleged assault and the distressed condition, it meant an inference that, having regard to the factors enunciated in the passage cited from Flannery and any other relevant factors, the distressed condition, as a matter of reason and common sense, could only have been caused by a sexual incident of the kind alleged and could not have been simulated, caused by an imagined sexual incident or caused by events which might reasonably have occurred other than the alleged sexual assault.
The role of the trial judge is to determine whether the evidence is capable in law of amounting to corroboration. He must rule whether it is reasonably open to the jury to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault and are not consistent also with having been caused by other events which may reasonably have occurred or by an imagined sexual assault or by simulation. If it is reasonably open to the jury to draw that inference, the evidence should be left as capable of amounting to corroboration. If not, to so leave it to the jury would be appealable error.
(Emphasis added; citations omitted)
[5] (1984) 37 SASR 207 at 216-217.
In R v Dhir (Dhir), I explained the importance of directions on the proper use of distress as follows: [6]
[61]Evidence of distress, like evidence of torn or damaged clothing or a generally dishevelled appearance, is circumstantial evidence of involvement in a physical altercation. The weight of such evidence will vary greatly depending on its contemporaneity, proportionality to the alleged offending, and the opportunity or motive to fabricate the allegation.
[62]It is not a condition of the admission of evidence of distress as circumstantial evidence that all other explanations for the distress can be excluded.
…
[68]The notion that the availability of a competing hypothesis for the distress can be advanced does not deprive the evidence of its admissibility was also explained in R v Mitrovic. Duggan J made the following comments about distress observed proximate to the time of a rape:
[27] The evidence of distress was not rendered inadmissible simply because of competing theories as to its cause. On the other hand, it is necessary in a case such as the present to direct the jury that the evidence of distress can only be used as evidence of consistency if the jury are satisfied that other explanations have been excluded.
[69]The distinction made by Duggan J between admissibility and a factual finding that the distress is corroborative is important. A trial judge will admit the evidence if it is capable of being corroborative, and it will be capable of being so if a causal inference can be drawn. However, it will not be corroborative unless there is no other apparent explanation other than that it was caused by the offence. …
(Citations omitted)
[6] [2019] SASCFC 55 at [61]-[62], [68]-[69].
In Dhir, evidence of distress on several different occasions was adduced from three different witnesses. On only the first occasion was it temporally proximate to the offence, but the distress on that occasion was not so great as to exclude other causes. Later, at the suggestion of the person who saw the complainant’s distress on the first occasion, the complainant presented to the Edwardstown Child and Family Health Clinic. The final occasion was the complainant’s subsequent attendance at a police station. It was implicit in that evidence that the persons to whom the complainant had presented formed the opinion that she was the victim of domestic violence. Importantly, the prosecutor in Dhir put an argument to the jury that the evidence of distress corroborated the complainant’s evidence of a violent relationship. The Judge gave no directions at all on the issue.
After referring to the observations of Bray CJ in R v Byczko (No 2) that the rule of practice of warning juries not to put weight on evidence of distress was limited to cases in which the distress was left as corroboration, I concluded:[7]
[75]… in the circumstances of this particular case, I would hold that the Judge ought to have given directions explaining that the evidence of distress:
•      was limited to the particular offences to which it was temporally related;
•      was capable of many alternative explanations; and
•      did not corroborate S’s evidence about the background circumstances.
The Judge should also have directed the jury to ignore the references, express or implied, in the evidence of S and Ms Fearon to S being victim of domestic violence. The failure to give these directions has resulted in a miscarriage of justice.
[7]    R v Dhir [2019] SASCFC 55 at [75].
The opposite conclusion must be reached in this case for the following reasons. First, neither the prosecutor nor the Judge left the distress to the jury as corroboration.
Secondly, the evidence was plainly admissible because of the close temporal connection to the last rape offence, the level of distress and the circumstances in which Ms X abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape Ms X alleged occurred the night before. On her account, she remained in the home only to appease the appellant and because of her fear of how the appellant might react if she did not. It must also be remembered that her sons remained at home. I acknowledge that, according to the appellant, he and Ms X had ‘made up’, but what he described as a reconciliation was, on Ms X’s testimony, a desperate attempt to appease him in the face of a very frightening series of events on the night of 27 February.
Thirdly, the alternative explanations for Ms X’s distress proffered on appeal are unrealistic. Distress at her own decision to leave the appellant would not have led Ms X to the police station. Whether or not the appellant had threatened to leave Ms X was a question for the jury. If they found that he had not, the inference that the offending was the cause of her distress was irresistible.
Fourthly, counsel at trial consented to the course taken by the Judge.
There was no miscarriage of justice. I would dismiss the appeal on ground 1.
Ground 2 – Relationship evidence
On this ground, the appellant also complains of the directions given on the permissible and impermissible uses of discreditable conduct evidence. It is necessary to repeat at some length the relevant parts of the Judge’s directions to the jury as to the uses of that evidence:
Ladies and gentlemen, as you can see, there is a considerable amount of this evidence about alleged assaults, threats to kill and other matters about which the complainant has given evidence and in respect of which no charges have been brought against the accused. The reason that this evidence is before you is that it would be quite unreal if all of this evidence that stands in the background of the alleged charged offences was not presented to you, so that the only evidence given to you would be limited to the conduct which is the subject of the charges themselves.
…
The accused has been charged with three counts of aggravated cause harm with intent to cause harm, three counts of aggravated threatening life and two counts of rape. He is not here on trial charged with other alleged offending. The evidence of this other alleged offending, which can be called uncharged acts, has not been presented to you to paint the accused as a bad person from which you can or may infer that he must therefore have committed the charged offences. That is not the way that you may use this evidence if you accept the evidence in the way that I have directed you.
…
First, it may assist you in explaining or understanding the true nature of the relationship that existed between the complainant and the accused. Was theirs the type of relationship as was suggested by the accused, or was it something far different as described by the complainant Ms [X].
Second, this evidence places into context the charged offences which the complainant was able to detail for you; that is, it provides the surrounding circumstances leading up to and, in some cases, following the offences charged. …
Thirdly, it might assist you in determining, in relation to the charges of aggravated threaten life, whether, from the associated conduct on those occasions, the accused intended to arouse a fear that he was going to kill the complainant.
Fourth, it can also explain why the complainant was unable to identify other specific incidents in detail because of the frequency of the domestic violence that she alleges she endured.
Fifthly, the evidence can provide an insight into why the complainant remained in this relationship with the accused. This is because these circumstances were interspersed with what the complainant described as good times and her determination to stay in her marriage and then only leave because there was no other alternative.
Finally, the evidence may also assist you in explaining why the accused acted as he did, that is with the sense of confidence, knowing the complainant had not made a complaint to anyone. But of course you know the prosecution case is that she did make a complaint in November 2015 to the parents of the accused and they deny that any such statement was made to them.
If you are satisfied about the complainant’s evidence on these other incidents of threatening and violent behaviour, then you may use that evidence for the purposes that I have directed you but only for those purposes. If you do not accept the evidence of the complainant, or you do not think that it provides you with any assistance, disregard it.
Crucially, if you accept this evidence about these other uncharged acts, it must not be used by you to reason that because the accused has behaved that way towards the complainant on other occasions, even on the occasions the subject of the particular offences charged, that he must have or is more likely to have committed the offences charged. That is not the reason this evidence was presented to you.
Whilst, if you accept this evidence, it does paint the accused in a particular light, you must not reason that he is therefore the sort of man who has committed the offences charged. That would be impermissible reasoning and you may not reason in that fashion.
The accused is not charged with any other conduct apart from the charged conduct. You may only convict him if you are satisfied of the charged offences as particularised for you. There can be no substitute for the evidence of the actual offences charged. However this other evidence of uncharged acts may help you to decide whether the prosecution has proved the offences charged.
Finally, you must not allow this evidence to cause you to close your mind about the accused, or to pay less attention to the other evidence in the case. This evidence is only part of the evidence the prosecution relies upon and, when arriving at your verdicts, you must consider all of the evidence. As I have directed you already, there are very limited ways that you may use this evidence and only when you are satisfied that you accept the evidence in relation to this conduct as being truthful and reliable and as alleged by the complainant.

The appellant’s complaint primarily relates to the failure to give the jury specific directions on how the relationship evidence was relevant, if at all, to proof of the mental element on counts 6 and 8, which charged the rape by fellatio on the night of 27 February and the rape in the bathroom on the following morning, respectively.
It must be accepted that, on the assumption that Ms X behaved as the appellant recounted in his evidence on counts 6 and 8, the relationship evidence could not prove that the appellant realised that she was not consenting. However, if the jury entertained the possibility that the intercourse took place in the circumstances described by the appellant, the jury could not have been satisfied that Ms X had not consented. The question of whether the appellant mistakenly believed Ms X to have consented would therefore not have arisen. On the other hand, the appellant accepted, at trial and on appeal, that if count 6 had occurred in the circumstances described by Ms X, the appellant must have appreciated that Ms X was not consenting.
It is, therefore, only on count 8, and on the premise that the jury accepted that the intercourse occurred as described by Ms X, that the possible use of the relationship evidence to determine the appellant’s state of mind arose as an issue. On that count, the appellant’s trial counsel did not make any concession as to the appellant’s state of mind. Whether or not the appellant realised that Ms X was not consenting to intercourse was a real issue on that count because of the limited nature of Ms X’s protest, even on her account.
Whether or not the appellant appreciated Ms X was not consenting to sexual intercourse in the bathroom on the morning of 28 February depended, to a large extent, on whose account of the events of the night before the jury accepted. If the jury entertained the possibility that the appellant and Ms X might have reconciled, they are likely to have had a doubt, at the very least, about proof of the mental element of that offence. If they found that there had been no reconciliation but only submission by Ms X to the force used by the appellant, they were likely to find both the objective and subjective elements of that charge of rape proved.
On either account, the relationship evidence could have no rational bearing on whether or not the appellant appreciated that Ms X was not consenting. It was common ground that Ms X had, on occasion, consented to sexual intercourse with the appellant, despite their violent relationship. Indeed, the appellant had described the intercourse on that morning as ‘make-up’ sex. Prosecution counsel did not suggest that the violent relationship was relevant to the appellant’s state of mind. There was no permissible or impermissible use to which the relationship evidence could sensibly be put on that issue. Neither counsel argued that it had any relevance to the appellant’s state of mind. It was simply irrelevant. The Judge was, therefore, not obliged to direct on it.[8]
[8] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [65]-[67].
The uses explained by the Judge did bear on the question of whether Ms X in fact consented or not. The first use, the nature of their relationship, was plainly relevant to whether Ms X had consented to the intercourse, or whether she simply had submitted to it given the violent nature of the relationship. The second use helped explain why Ms X stayed after the offending she alleged on the night of 27 February and on the following morning. The third use was limited by the Judge to the offence of aggravated threaten life. The fourth use went to an evaluation of Ms X’s testimony. The fifth use was on the nature of the relationship and Ms X’s conduct in remaining with the appellant despite the violent relationship she had described. The final use was as an explanation for the apparent impunity with which the appellant acted. Those uses left no room for the use of the discreditable conduct on the issue of the appellant’s state of mind.
There was no error of law nor any miscarriage of justice arising out of the Judge’s directions on the discreditable conduct evidence. I would dismiss the appeal on this ground.
Ground 3 – Unreasonable verdict
The appellant relies on a number of matters on this ground. He contends that the verdict of guilty on count 8 was not supported by the evidence because the jury must have entertained a doubt on proof of the mental element. I acknowledge that, on Ms X’s account, she submitted to sexual intercourse after protesting only that there was not enough time. However, the jury were entitled to reject as implausible the appellant’s account that he believed they were engaging in ‘make‑up sex’ if, as the verdicts show, the jury accepted Ms X’s evidence of the violence inflicted the night before.
The appellant contends that this Court must consider the reasonableness of the verdict consistently with the Judge’s direction to the jury that each count must be considered by reference to the evidence relating to that count alone.
The Judge directed the jury on the separate consideration of the evidence on each count as follows:
In that context, again I direct you that you are to consider the evidence in relation to each charge separately and that is fairly logical, having regard to what I have just said to you. So you will consider the charged offences separately, based upon the evidence that is to be assessed by you in the way that I have directed you.
I also direct you that merely because you may find the accused guilty on one particular count does not necessarily, or even logically, mean that you will find him guilty on another count of the same type or any other type. Each must be considered separately.
Conversely if, in considering a particular count you are not satisfied of the reliability or truthfulness of the evidence of Ms [X] on that count, you may take that dissatisfaction in mind when you address her evidence on the other counts.
The object of those directions was to ensure that the jury did not use evidence that showed the commission of an offence on one count as, in itself, probative of the commission of the offence charged in another count. The direction could not have meant, or be taken to have meant, that the jury were to consider the evidence in respect to each count in a vacuum extracted from the context of the relationship between the appellant and Ms X. Indeed, that was the very point of the fifth use explained in the Judge’s directions as to discreditable conduct. So too the direction on carrying over doubts about Ms X’s testimony from one count to another.
At the time of the sexual intercourse in the bathroom, the dramatic events of the night before must have weighed heavily on the minds of both the appellant and Ms X. Indeed, that was the very point the appellant sought to make by referring to ‘make-up sex’. Their actions and reactions on that morning must have been affected by their recollection of those events and, indeed, their entire relationship. The direction could not have been understood by the jury as a direction that they were to decide whether the prosecution had proved the elements of count 8 on the premise that both Ms X and the appellant were oblivious of all that had passed between them on the preceding evening. Even if the jury, or some jurors, had so unreasonably understood the direction, this Court is certainly not obliged to evaluate the evidence in such an artificial way.
Proof of the objective elements of rape charged by count 8 depended on the jury’s assessment of the testimonies of Ms X and the appellant, both as to the circumstances in which the sexual intercourse took place and the course of the relationship. Proof of the mental element turned on the jury’s finding as to events both immediately before the intercourse took place and on the night before, and, in particular, as to whether there was a subsequent reconciliation or not.
There is no doubt arising out of the evidence, or the issues joined, which was incapable of resolution by the jury’s evaluation of the respective testimonies of Ms X and the appellant, in the context of all of the other evidence.
Plainly enough, the jury accepted Ms X as a credible witness. It was open for them to do so. The jury were not bound in the circumstances of this case to be left with a doubt about the reliability to her testimony. It was indirectly supported by her account of the violence to which she had been subjected the night before, which was in turn supported by the photographs of her injuries taken the next day, notwithstanding the appellant’s innocent explanations for them. The conviction was also supported by the evidence of Ms X’s distress a little later that morning when she attended at the police station.
I would dismiss the appeal on the unreasonable verdict ground.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I would dismiss the appeal for the reasons given by the Chief Justice.
Whilst I agree with the Chief Justice’s reasons for the conclusion that the Judge’s discretion left no room for the use of the discreditable conduct on the issue of the appellant’s state of mind with respect to appeal ground 2, I make the following further observations concerning appeal ground 2.
Section 34R of the Evidence Act 1929 (SA) and authority in this Court[9] are clear to the effect that a Judge, whether sitting alone or with a jury, must identify and explain the purpose for which evidence admitted under section 34P (discreditable conduct) may or may not be used. The reason why permissible uses must be identified is to ensure that the trier of fact appreciates how the discreditable conduct evidence might be of assistance in support of the prosecution case. However, to fail to direct as to permissible uses might also, on occasion, risk prejudicing the defence by enhancing the risk that an impermissible use might be deployed or a permissible use deployed in an incorrect or prejudicial manner.[10]
[9] See, for example, R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319, R v Pringle [2017] SASCFC 9, R v Jones [2018] SASCFC 96; (2018) 131 SASR 532 and R v Quist [2017] SASCFC 37, (2017) 127 SASR 471.
[10] R v Forrest [2016] SASCFC 76; (2016) 125 SASR 319 at [47], R v Pringle [2017] SASCFC 9 at [74], R v Jones [2018] SASCFC 96; (2018) 131 SASR 532 at [41] and R v Quist [2017] SASCFC 37, (2017) 127 SASR 471 at [162].
In the present case, the Judge clearly explained, and directed the jury’s attention to, seven permissible uses and clearly explained, and directed against, impermissible uses. However, even if there were to have been one or more additional permissible uses, the fact that they were not identified by the Judge was of no moment in this case. At worst, the prosecution may have been deprived of some further assistance. But, any failure in this respect, given the clear directions as to what was permissible and what was not permissible, was sufficient to confine the jury’s reasoning processes and would not have increased the risk of the jury reasoning in an impermissible way
BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice.