Warren v The King - [2025] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WARREN v THE KING
[2025] SASCA 65
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
18 June 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
Appeal against conviction.
The appellant was found guilty by a jury of one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA).
The complainant was a sex worker engaged by the appellant. On the prosecution case, the appellant had unprotected intercourse with the complainant without her consent.
The appellant’s grounds relate to the judge’s treatment of the risk of impermissible choice reasoning (Grounds 3 and 3A), the appellant’s cross-examination (Ground 6), the evidence of the complainant’s distress (Ground 8), and the identification of the act of intercourse the subject of the charged offence (Ground 9).
Held, per the Court, granting permission to appeal, but dismissing the appeal:
1.The prosecutor’s closing address did not invite the jury to engage in impermissible choice reasoning, and in any event, the judge’s directions were adequate and sufficient to avoid any miscarriage of justice.
2.The judge’s intervention during the appellant’s cross-examination did not create a risk of the jury being influenced in their assessment of the appellant’s evidence.
3.The evidence of the complainant’s distress did not require separate directions, and it was sufficient that the judge addressed such evidence together with the evidence of complaint.

4. The judge adequately identified the act of intercourse the subject of the charge.
Criminal Law Consolidation Act 1935 (SA) s 48(1); Crimes Act 1958 (Vic) s 44(2); Evidence Act 1929 (SA) ss 34L(5), 34M, 34M(4)(b); Evidence Act 2008 (Vic) s 66, referred to.
Brawn v The King [2025] HCA 20; De Silva v The Queen (2019) 268 CLR 57; Douglass v The Queen (2012) 86 ALJR 1086; Fergusson v The King [2024] SASCA 63; Fragos v The King (2023) 142 SASR 314; Jones v The Queen [1980] WAR 203; Lapthorne v The Queen [1990] WAR 207; Liberato v The Queen (1985) 159 CLR 507; McKell v The Queen (2019) 264 CLR 307; Mead (a pseudonym) v The King [2025] SASCA 3; Murray v The Queen (2002) 211 CLR 193; Nimely v The King [2023] VSCA 20; Paull v The Queen [2021] VSCA 339; R v Baltensperger (2004) 90 SASR 129; R v Churchill (a pseudonym) [2025] HCA 11; R v Dhir [2019] SASCFC 55; R v El Rifai [2012] SASCFC 98; R v Esposito (1998) 45 NSWLR 442; R v Flannery [1969] VR 586; R v Flora (2013) 233 A Crim R 320; R v Green [2001] SASC 25; R v MacBeth [2008] SASC 71; R v Pahuja (No 2) (1989) 50 SASR 551; R v Rogers [2008] VSCA 125; R v Schlaefer (1984) 37 SASR 207; Roberts v The Queen (2022) 141 SASR 73; Seccull v The King [2022] VSCA 219, considered.

WARREN v THE KING
[2025] SASCA 65
Court of Appeal – Criminal: Livesey P, S Doyle and David JJA

THE COURT: Following a trial by jury, the appellant was found guilty of a single count of rape.[1] He now appeals against that conviction.
[1] In contravention of s 48(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case was that the appellant, who had engaged the complainant’s sex working services, had unprotected sexual intercourse with the complainant without her consent. The appellant did not deny that unprotected sexual intercourse occurred. The appellant’s case was that the prosecution failed to prove that the complainant did not consent, and that he knew that she did not consent (or was recklessly indifferent to that fact).
The appellant seeks permission to appeal his conviction on five grounds. The grounds involve complaints of a miscarriage by reason that:
·the prosecutor’s closing address invited the jury to engage in impermissible choice reasoning (Ground 3);
·the trial judge failed to give a Liberato direction (Ground 3A);
·the trial judge’s interventions during cross-examination of the appellant were apt to convey to the jury the judge’s disbelief or scepticism about the credibility of his evidence (Ground 6);
·the trial judge failed to direct the jury as to the use that could be made of the complainant’s evidence of distress (Ground 8); and
·the trial judge’s failure to direct the jury as to the act of intercourse which was the subject of the charge (Ground 9).
For the reasons which follow, we grant permission to appeal on each of the above grounds, but dismiss the appeal.
Overview of the trial
The prosecution called evidence from the complainant and her boyfriend. The defence case consisted of evidence from the appellant and two witnesses called to give evidence of the appellant’s good character.
The prosecution case
The complainant gave evidence that in 2021 she was a sex worker. She advertised her services online, and her advertisements included her mobile number so that people could contact her. She said that her advertisements contained the words ‘no natural sex’, which meant that she was not willing to engage in penile-vaginal sexual intercourse without a condom. In her advertisements and text messages with clients, she sometimes referred to providing ‘FS’ or a ‘full service’. However, she said that, at least in her case and in the context of her references to ‘no natural sex’, this was a reference to protected penile-vaginal intercourse.
During cross-examination the complainant acknowledged that she had previously advertised through an online service called ‘Chaosads’, and that some of these advertisements had identified her as ‘Jenny’[2] and referred to her as ‘BBW’ (meaning ‘big beautiful woman’). She could not recall whether any of her 2021 advertisements on Chaosads had appeared without reference to ‘no natural sex’. She appeared to accept that this might have been the case in relation to some joint advertisements referring to her and another sex worker.
[2] A pseudonym for the purposes of anonymity in these reasons.
The complainant said that on 3 August 2021, she received a text message from the appellant for the first time. The message was received at 9.26 am and said ‘Hosting?’. The complainant’s evidence was that such a message was an inquiry as to whether she was able to host clients. Having not received an immediate response to this text message, the appellant sent a second text message at 9.35 am which said ‘Jenny?’. This evidence assumed some significance because, by the time the appellant sent that message, he knew the complainant’s name, and therefore, on the prosecution case, must have seen one of the complainant’s online advertisements which stated that she did not engage in unprotected sexual intercourse. No meeting took place on 3 August 2021.
Throughout August 2021, the appellant and complainant exchanged further text messages, which included a message in which the complainant provided a price for a full service (or ‘FS’). But they did not meet until 5 October 2021.
On that day, the appellant sent a text message to the complaint which said ‘Hosting? BBBJ?’. The complainant responded, advising that a BBBJ with ‘cim’ would be $120 for 15 minutes. The evidence was that ‘BBBJ’ stood for ‘bareback blowjob’, or fellatio without a condom; and that ‘cim’ stood for ‘cum in mouth’, meaning that the complainant was willing to allow the appellant to ejaculate in her mouth. They agreed to meet later that day.
The appellant arrived at the Highlander Hotel where the complainant had hired a room. The appellant sent a text message to the complainant at 2.43 pm indicating he had arrived, and she responded with the number of the room she was in. The complainant’s evidence was that when the appellant arrived in her room, he said ‘hello’, but was ‘very eager’ and started kissing her. The complainant described the sexual interactions that occurred between them in some detail.
First, they got undressed, but with the complainant initially leaving her G-string on. The complainant asked the appellant to sit on the edge of one of the beds, and she knelt and commenced performing oral sex on him. The appellant was struggling to get an erection so the complainant, at his request, straddled him and began kissing him. While that was happening, the appellant started to touch the complainant’s vagina, at first over her underwear and then underneath it. The complainant said that, at that stage, she was feeling ‘okay’, explaining that some people like to ‘feel around’ to help them become more aroused. The complainant considered herself to be consenting to what was occurring at that stage.
Next, the appellant moved closer to the head of bed, and the complainant thought that he wanted her to perform fellatio. She crawled up towards him on the bed. As she did so, the appellant removed her G-String. She explained that this was not unusual, that people ‘like to see things’, and so she allowed him to do this. However, while she was on all fours, the appellant moved so that he ended up kneeling behind her. She began to feel ‘quite uneasy with how he was’, explaining that he was silent and shaking. When he then ‘tried to get inside’ her, she ‘rolled away’ to try and get herself out of what she described as a ‘compromising situation’. She was trying to close her legs, but he had positioned himself between her legs. Her evidence was that she believed she said ‘no, no, no you need a condom, we need to get a condom’.[3] The appellant did not respond, and was still shaking. As she continued to try and close her legs, and roll away from him, he grabbed her and held her shoulders and legs, and indeed nearly knocked a lamp off the side table in the process.
[3] The complainant’s evidence was that she did have some condoms in her red bag, which she had left near the luggage stand.
The appellant took hold of the complainant’s hips and became forceful. She kept telling him that they needed to use protection if he wanted to have sex with her. As he continued to ignore her, and became physical and rough with her, she continued to say ‘no’ and that ‘we need to use protection’. Her tone was initially firm, but became panicked when he ignored her.
After at one point being on her back facing him, she ended up in a position on her knees. He had climbed behind her, and then, whilst standing, put his penis inside her vagina. Having been physically overpowered, and with his weight holding her down so that she was unable to move, she said she had tried to physically resist but there came a point when there was nothing more she could do. The intercourse lasted a couple of minutes, with the appellant thrusting until he ejaculated inside her vagina.
The complainant then asked the appellant if he needed some wipes or a shower. He said he would clean himself in the sink, which he did. Following that, the two engaged in some small talk and the appellant said that he was going to see his mother. He left $120 in cash on the table, making some remark about getting more than he bargained for, and then left the room.
On the complainant’s evidence, the appellant was in the hotel room for about 15 minutes.
The complainant gave evidence that after the appellant left, she cried in the shower for about 10 minutes. She then sent a text message to her boyfriend which caused him to call her. She could not recall specifically what she said to her boyfriend, but she did tell him ‘something had happened and I didn’t know what to do’. She said she cried while she was on the phone to her boyfriend. In cross-examination, the complainant denied that she felt she had betrayed her boyfriend by having unprotected sex, or by letting it happen. She said she did not have a choice.
The complainant’s boyfriend gave evidence that he received a text message from the complainant shortly after 3.00 pm on 5 October 2021. He telephoned her, and she was crying and upset. It was difficult to understand her, but he remembered her saying ‘he wouldn’t stop’ and ‘I felt betrayed’. He described her as distressed and distraught, with her voice cracking or breaking, and barely able to put her sentences together. She was speaking in a ‘jumbled way’ and he had to fill in some of the gaps to make sense of what she was saying. About 20 to 30 minutes later, she went to see him at his work. She did not say anything further about what had happened. She just ‘sat there for a little bit, very quiet, very anxious’. The boyfriend said that ‘she seemed very upset, so very fidgety and stuff’.
In cross-examination, the boyfriend agreed that he had told police that the complainant said something to the effect that she felt that she had betrayed him for letting it happen. Whilst initially agreeing that he believed that the complainant had said this (and that he had responded that it was not her fault for letting it happen), he added that he believed he could ‘mostly’ only remember her using the word ‘betrayed’; that he could not make out a lot of what she was saying, and had had to fill in the gaps.
The prosecution also relied upon some formal evidence from an investigating police officer, and some agreed facts.
The defence case
The defence called evidence from two witnesses as to the appellant’s good character.
The appellant also gave evidence in which he agreed sending the complainant text messages, meeting her at the Highlander Hotel, and engaging in sexual activity with her. However, he described their sexual interaction in quite different terms from the complainant’s evidence, and denied any non-consensual intercourse.
The appellant said that he had not seen any of the complainant’s advertisements tendered by the prosecution (with their references to ‘no natural sex’). He said that he saw her on a site called ‘Chaosads’. Whilst he could not remember the wording of the advertisement for her escort services that he saw, he recalled a reference to her as a big beautiful woman, using the alias ‘BBW slut’.
The appellant said that after entering the hotel room, he sat on the bed. The complainant commenced performing oral sex on him, but he could not achieve an erection so he motioned for her to get onto the bed.
The complainant got onto the bed, and they started kissing and fondling. He said that the complainant, with a giggle, said something like ‘I haven’t got any condoms, I know it’s silly isn’t it?’. The appellant said that he attempted to take her underwear off, but was unsuccessful. As a result, she stood up at the end of the bed, removed her own underwear and gave a ‘suggestive wiggle’.
On the appellant’s evidence the complainant then got back onto the bed. They continued kissing and fondling, and ended up in the missionary position. While in that position, the appellant attempted to insert his penis into her vagina, but was unsuccessful in achieving penetration due to their respective sizes. As a consequence, he placed his arms behind her legs, tilted her pelvis up, and was able to have sexual intercourse with her in that position. That intercourse lasted only a short period because his arms started to tire and his back started to hurt.
The appellant rolled off, moved around behind the complainant, and indicated for her to position herself such that they could have intercourse in that position. She did, and they commenced having intercourse with him behind her on the bed. Again, this intercourse only lasted a short time. As he described it, their legs were at a different height, and he was having to ‘strain’ to try and maintain penetration, ‘so that obviously wasn’t working’.
The appellant then moved so that he was standing next to the bed. He motioned for her to point her bottom towards him, and they then had intercourse in this position. The appellant said that he was having difficulty maintaining an erection, and so he eventually removed his penis from the complainant’s vagina, and masturbated until he ejaculated on her bottom.
The appellant agreed that the complainant asked him whether he wanted some wipes or a shower, and that he responded that he was happy to clean himself in the sink. After cleaning himself, and some small talk, he paid her and left. He denied saying anything to the effect that he had got more than he bargained for.
On the appellant’s evidence, the complainant did not ever ask him to wear a condom, or otherwise do anything to indicate that the sexual activity that occurred was not consensual. He believed it was consensual.
Ground 6: judicial intervention in cross-examination
During the course of the appellant’s cross-examination, the trial judge asked several questions on the topic of how the appellant came to know the complainant’s name. In Ground 6, the appellant complains that the interventions were apt to convey a level of incredulity or scepticism on the part of the judge, and resulted in a miscarriage of justice.
The impugned intervention
The complainant’s evidence was that the first communication she received from the appellant was a text message on 3 August 2021. In the second message that day, he used her name (Jenny). The prosecution case was that because he knew her name, he must have seen one of the advertisements tendered in evidence in which she made clear that she did not have ‘natural sex’.
The appellant, however, said that he had not seen these advertisements. He claimed to have learnt that the complainant provided escort services through an earlier advertisement on Chaosads. While he had not been able to find a copy of the advertisement, he said that he recalled it describing her as a big beautiful woman (BBW), but did not recall it mentioning the services that she offered or her name.
An issue thus arose as to how the appellant knew the complainant’s name when he used it in a text message on 3 August 2021. When initially cross-examined on the topic, the appellant said that he must have had earlier text message communications with the complainant as a result of seeing the advertisement which he had mentioned.
The prosecutor later returned to this topic. After the appellant repeated his evidence that the first advertisement he saw was on Chaosads prior to 3 August 2021, the cross-examination continued as follows:
Q.    But you said it was the first advert. Did you see any other of her adverts.
A.    Before August the 3rd, no.
Q.    So before August the 3rd, you had not seen any adverts for [the complainant].
A.    I could not be sure I’d seen any other adverts.
Q.    Well, you just said a moment ago ‘Before August the 3rd, no’.
OBJECTION:     MRS SHAW OBJECTS
MRS SHAW:      No, your Honour. He hadn’t seen any other adverts before August the 3rd. That was the question and that was the answer, and he answered it –
HIS HONOUR
Q.    How about before October.
A.    Not sure.
XXN
Q.My friend correctly put what I asked you. Before August 3rd, you had not seen any other adverts, and you answered ‘No’.
A.Before August 3rd, I had not seen any other adverts other than the first one I mentioned?
Q.    Yes, that’s correct.
A.If I answered ‘No’, then I should have answered ‘Not sure’. I don’t recall any others. I just recall that first one.
Q.And so you can’t tell the court today whether that was the first ad that you saw of [the complainant’s].
A.    The ‘BBW’ was the first one I saw of her.
Q.    And is that the Chaos ad which you’ve described to the court.
A.    Yes.
Q.    And that’s the ad that didn’t have her name in it.
A.    Yes.
Q.    And from your recollection, that’s on the 3rd of August 2021.
A.    Be – before the 3rd of August 2021.

By this point, the appellant had said he had seen an advertisement for the complainant’s services on Chaosads prior to 3 August 2021, and perhaps more than one. But he had also said (or confirmed) that the advertisement he recalled did not have the complainant’s name in it. The judge then intervened as follows:
HIS HONOUR
Q.Well, I’m confused. Did you just say that before the 3rd of August, you had not seen her name on an advertisement.
A.    Yes.
Q.    You’re clear about that.
A.    Yes.
Q.    Well, how did you know her name on the 3rd of August.
A.It had her phone number on it. I contacted her. I – sorry, that’s – my assumption is I contacted her because I did not know her name until –
Q.    Well, do you say that there was a contact you made before the 3rd of August.
A.    Yes.
At this point, counsel for the appellant asked to raise a matter in the absence of the jury. She complained that the judge’s intervention had been unfair, and would have suggested to the jury that his Honour did not believe her client’s answers. The judge responded that the only conclusion the jury could have come to was that he was confused. After obtaining instructions, defence counsel made an application for a mistrial, which the judge refused.
Analysis
As this Court recently summarised in Roberts v The Queen,[4] the fundamental task of a trial judge is to ensure a fair trial for the accused. In the context of a jury trial, this requires that the judge ensure the fair and efficient conduct of the trial in accordance with the rules of evidence, providing appropriate guidance to the jury as to the matters in issue and the legal principles necessary to resolve those issues, and assisting the jury in their application of those principles to the evidence. Importantly, this occurs in an adversarial context, where it is for the parties to dictate the forensic landscape, and for the jury to determine the facts. As emphasised in McKell v The Queen, the judge must be, and be seen to be, impartial and independent.[5]
[4] Roberts v The Queen (2022) 141 SASR 73 at [1]-[8] (Livesey P), [62]-[63] (Doyle JA, David JA agreeing).
[5] McKell v The Queen (2019) 264 CLR 307 at [2] (Bell, Keane, Gordon and Edelman JJ).
Intervention or questioning by a judge is permissible – for example, where it is directed towards addressing or clarifying an area of the evidence that has been overlooked or left in an uncertain or equivocal state. However, the judge must be careful to avoid any perception on the part of the jury that he or she does not believe, or is sceptical of, the evidence that has been given; or that the judge is otherwise aligning himself or herself with one side or the other. Such a perception may arise from the frequency, length, terms or tone of the judge’s intervention. It may also arise from the intervention appearing to involve the judge taking over a line of questioning in a way that assists, or interferes with, one party’s presentation of their case.[6]
[6] Roberts v The Queen (2022) 141 SASR 73 at [9] (Livesey P), [65]-[70] (Doyle JA, David JA agreeing); referring in particular to R v Esposito (1998) 45 NSWLR 442 at 467-472 (Wood CJ at CL) and R v MacBeth [2008] SASC 71 at [72]-[76] (Doyle CJ, Bleby and Gray JJ agreeing).
The appellant contends that, in the present case, the questioning was apt to convey a degree of incredulity, or scepticism, on the part of the trial judge as to the truthfulness of the appellant’s evidence. While accepting that the questioning could not be regarded as extensive, the appellant argues that the nature of the questions was likely to sway the jury’s assessment of the appellant’s evidence on the topic of how he learnt of the complainant’s name, and hence what he might have known about the services she was offering to provide. The appellant emphasises the likely importance of this topic to the assessment of his evidence more generally.
In our view, even if capable of giving rise to a momentary hint of scepticism or incredulity, the judge’s intervention fell short of establishing a miscarriage of justice. The intervention was short and isolated. It did not introduce a new topic or steer the cross-examination in a fresh direction. Nor did it involve any significant interference or assistance. Importantly, the intervention related to a topic that was addressed at length by the cross-examiner both before and after the judge’s intervention.
The appellant, having initially said that he only saw one earlier advertisement on Chaosads, later allowed for the possibility that he had seen others. However, having confirmed that he did not recall seeing the complainant’s name on the earlier advertisement,[7] there was some uncertainty as to how, on the appellant’s evidence, he knew the complainant’s name when he sent the 3 August 2021 text message.
[7] It seems that the fact that the appellant had earlier said he must have had earlier text message communications with the complainant appears to have been overlooked.
The judge’s intervention was directed towards clarifying this aspect of the evidence, and was accompanied by an express reference by the judge to him being confused. It was not expressed in terms suggesting that the judge intended to test or challenge the appellant’s evidence. And it occurred in a way which provided an opportunity for the appellant to clarify his evidence that he assumed he must have had earlier contact, or text message communications, with the complainant. The prosecutor returned to the topic, and by the time she completed her cross-examination on this topic, the appellant’s evidence was clear.
In the circumstances described, the judge’s interventions could not realistically have influenced the jury’s assessment of the appellant’s evidence, and did not occasion any miscarriage of justice.[8]
[8] Brawn v The King [2025] HCA 20 at [10] (the Court).
Grounds 3 and 3A: impermissible choice reasoning
Under Grounds 3 and 3A, the appellant complains that, in addressing the two competing versions given in evidence by the complainant and the appellant, the prosecutor’s closing address invited impermissible choice reasoning. He further contends that the directions given by the trial judge were inadequate; that the judge failed to give a Liberato direction,[9] and did not otherwise remedy the prosecutor’s invitation to engage in choice reasoning. On the appellant’s argument, the combination of the prosecutor’s closing address and the judge’s inadequate directions resulted in a miscarriage of justice.
[9] Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J).
The principles governing consideration of this ground are not in dispute. They have been identified and developed in a series of High Court decisions, particularly Liberato v The Queen,[10] Murray v The Queen,[11] Douglass v The Queen,[12] and De Silva v The Queen.[13]
[10] Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J), 519-520 (Deane J).
[11] Murray v The Queen (2002) 211 CLR 193 at [23] (Gaudron J), [57] (Gummow and Hayne JJ).
[12] Douglass v The Queen (2012) 86 ALJR 1086 at [12]-[13] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[13] De Silva v The Queen (2019) 268 CLR 57 at [9]-[10] (Kiefel CJ, Bell, Gageler and Gordon JJ).
They were recently summarised by this Court in Mead (a pseudonym) v The King:[14]
In terms, the observations in Liberato, supplemented by those in Murray and as summarised and affirmed in De Silva, were concerned with the need for a direction to a jury in order to avoid risks associated with the misapplication or non-application of the burden of proof. The risks are that the jury may erroneously consider that it may be enough, in order to conclude the question of guilt, merely to form a preference for the complainant’s evidence over the accused’s evidence and, relatedly, that the jury might wrongly apprehend that they ought only find the accused not guilty if they positively believe the accused’s account. The refinement to the so-called Liberato direction endorsed by the plurality in De Silva, drawing upon observations made by Wheeler JA in Johnson v Western Australia, also reinforces the proposition that even in a case where the jury entirely rejects the accused’s account, it remains necessary to scrutinise the prosecution evidence to determine whether guilt has been proved beyond reasonable doubt.
None of these authorities suggests that the evidence of the complainant or the accused should be considered in isolation from one another, or in isolation from the other evidence relevant to the facts in issue to which those witness’ testimony relate. Nor do they suggest that in some way it is wrong ultimately to form a preference for one witness’ testimony over another. The generally-required directions are instead designed to guard against the jury being distracted from the requirement of proof by the prosecution beyond reasonable doubt, and to guard against the simplistic and wrong reasoning that merely to reach the point of forming a preference for the complainant’s evidence over that of the accused is sufficient in order to be satisfied beyond reasonable doubt of the accused’s guilt. The requirement that the accused’s account be negatived as a reasonable possibility (assuming that account would render him or her innocent) is nothing more than the corollary of the proposition that guilt must be proved beyond reasonable doubt. It is not a requirement separately to consider and to reject that evidence beyond reasonable doubt with reference only to the evidence of the accused in chief and under cross-examination, before a verdict of guilt can be reached.
[14] Mead (a pseudonym) v The King [2025] SASCA 3 at [55]-[56] (S Doyle JA, Bleby JA and B Doyle AJA); see also Fragos v The King (2023) 142 SASR 314 at [66]-[68], [72] (Livesey P, Lovell and Doyle JJA).
It follows that when the evidence, issues or conduct of a case give rise to a risk that the jury might engage in impermissible choice or preference reasoning, or otherwise be distracted from a proper application of the burden and standard of proof, then directions will be required to avoid a miscarriage of justice.
In Liberato v The Queen, Brennan J suggested directions which inform the jury both that ‘even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence’, and that ‘even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt’.[15]
[15] Liberato v The Queen (1985) 159 507 at 515 (Brennan J).
In De Silva v The Queen, the majority proposed an elaboration of the Liberato style direction which included both limbs proposed by Brennan J, together with a third limb which catered for the scenario where the jury rejected the defence evidence (and reinforced the need for the jury to nevertheless attend to the issue of whether the prosecution evidence proved guilt beyond reasonable doubt). Their Honours said that in a case where the relevant risk arises:[16]
… it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence … [or] account … you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence … you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
[16] De Silva v The Queen (2019) 268 CLR 57 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
In addressing the appellant’s complaints in the present case, it is convenient to commence by addressing the impugned passages from the prosecutor’s closing address before turning to the trial judge’s directions.
The prosecutor’s address
The trial judge did not make any opening remarks as to the role and function of the jury, or the burden and standard of proof. However, in her opening address, the prosecutor referred to the presumption of innocence and the burden and standard of proof. She provided the jury with a copy of the Information and articulated the elements of the offence, telling the jury that the prosecution must prove each element beyond reasonable doubt. She concluded her opening by telling the jury that the evidence of the complainant would be the central pillar of the prosecution case; that they would need to scrutinize her evidence carefully; but that on the prosecution case they could be satisfied of the charge of rape beyond a reasonable doubt.
Turning to the impugned passages from the prosecutor’s closing address, after making a general submission about the assessment of witnesses, she said:[17]
[1]… by now, ladies and gentlemen, you will have realised and appreciate this isn't a trial about a grey area. This is a trial where clearly someone is lying, two competing accounts. Two very different accounts of what occurred in that hotel room. There is simply no room for mis-interpretation or confusion. Someone is lying.
[2]Now, I want to make it very clear, ladies and gentlemen, that the defendant doesn't have to prove anything. Even if you don't accept the evidence of the accused, you are still to put that to one side and return to the prosecution case and whether it is proven. This isn't a case of picking one account over another. The prosecution must prove the charge beyond a reasonable doubt. The defendant doesn't have to prove anything. The same applies, that the defendant is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt and you will receive direction from his Honour about this.
[3]With all of this in mind, however, noting that there are two competing accounts, can I first deal with the accused?
[17] Paragraph numbers inserted for ease of reference.
After then addressing at length why the jury should reject the appellant’s evidence as true or a reasonable possibility, the prosecutor concluded this section of her address by submitting:
[4]Considering this, considering the implausibility of the detail, considering the vagueness, the way the defendant gave his evidence, can I suggest that you simply put his account to one side as a fabrication to deflect blame. That the way he describes events, the inability to remember how he came to know the complainant as [Jenny] or at Modbury but thinks there must have been a conversation, or the way you might consider the lack of explanation for the DNA evidence, can I suggest that it doesn't add up. That using your own commonsense, you can put the defendant's account to one side and return to the evidence, in my submission, which wasn't a lie - the evidence of [the complainant].
In concluding her address, the prosecutor referred to the complainant as a ‘vulnerable, emotional, but genuine woman’. She submitted that the complainant had come before the jury, ‘knowing that her personal life was going to be put on display’, and had ‘sat through … difficult and confronting cross-examination’. She invited the jury to find that the complainant had been up-front and honest, and was a credible and reliable witness. She submitted that the jury could find the appellant guilty of rape beyond a reasonable doubt.
In assessing the appellant’s criticisms of the prosecutor’s closing address, it is appropriate to commence by acknowledging that there is no doubt that the prosecutor, at stages, invited the jury to prefer the complainant’s evidence and version of events over that of the appellant. She did so implicitly in making a strong and detailed attack upon the appellant’s evidence and veracity, and in inviting the jury to accept the complainant as credible and reliable. More than this, she did so almost in terms in paragraph [1] above, in referring to there being ‘two competing accounts’ and suggesting that ‘someone is lying’.
Whilst the appellant relies heavily upon this feature of the prosecutor’s closing address, two observations may be made.
The first is that the submission made by the prosecutor was open on the evidence. As outlined earlier, the complainant and the appellant gave versions of what occurred in the hotel room which differed in several significant ways. In circumstances where both purported to have relatively clear and detailed recollections of what occurred, the differences were of a nature and extent that it was open and appropriate to invite a focus upon credibility rather than reliability, and suggest that one was lying.
The second is that there was nothing inherently or necessarily inappropriate about a submission which invites a preference for the evidence or version of a complainant over that of an accused. As explained in the passage from this Court’s reasons in Mead (a pseudonym) v The King[18] set out above, the authorities do not suggest that it is impermissible to form (or invite the jury to form) a preference for the evidence of the complainant over that of the accused. Rather, what is impermissible is to ‘frame the issue for the jury’s determination’ (that is, satisfaction of the accused’s guilt) as turning on such a preference, or as involving a choice between conflicting prosecution and defence evidence or accounts.[19]
[18] Mead (a pseudonym) v The King [2025] SASCA 3 at [56] (S Doyle JA, Bleby JA and B Doyle AJA).
[19] De Silva v The Queen (2019) 268 CLR 57 at [9] (Kiefel CJ, Bell, Gageler and Gordon JJ); Murray v The Queen (2002) 211 CLR 193 at [23] (Gaudron J), [57] (Gummow and Hayne JJ); Fragos v The Queen (2023) 142 SASR 314 at [66] (Livesey P, Lovell and Doyle JJA).
Of course, when the evidence, issues or conduct of a case tend to invite a choice between competing accounts, then the prosecutor, and ultimately the judge, must take care to ensure that the jury do not lose sight of the appropriate framing of the issue for determination. Directions of the style proposed by Brennan J in Liberato v The Queen,[20] as elaborated upon in De Silva v The Queen,[21] may be necessary to ensure that this is achieved. But that is not the same as saying that the jury cannot compare and contrast the competing bodies of evidence, and in the process of doing so, form a preference for one over the other. A jury may do so, as long as they do not lose sight of the need to attend to the burden and standard of proof in determining the accused’s guilt.
[20] Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J).
[21] De Silva v The Queen (2019) 268 CLR 57 at [12] (Kiefel CJ, Bell, Gagelar and Gordon JJ).
Returning to the prosecutor’s address in the present case, having invited the jury to determine who was lying, it was appropriate that the prosecutor place this submission in the appropriate framework for determination of the appellant’s guilt. In our view, the prosecutor adequately attended to this task in the very next passage of her address (paragraph [2] above). Having elsewhere explained the burden and standard of proof in general terms, the prosecutor explained to the jury that even if they did not accept the evidence of the appellant, they were still required to put that to one side, and return to the prosecution case and see whether it had been proved. She expressly warned against choice reasoning (‘this isn’t a case of picking one account over another’), and repeated the need for proof beyond reasonable doubt.
Whilst acknowledging that this passage ‘tempered’ or ‘mitigated’ the risk of impermissible choice reasoning, the appellant argues it did not go far enough. It did not do so because it only addressed a scenario where the jury completely rejected the appellant’s evidence, and did not address a scenario where the jury, whilst not accepting the accused’s evidence, nevertheless considered that there was a reasonable possibility it was true. In other words, while addressing the scenario catered for by the De Silva v The Queen elaboration upon the Liberato direction, the prosecutor did not address an aspect of the scenarios catered for in Liberato v The Queen itself.

We do not accept this criticism of the prosecutor’s address. In our view, paragraph [2] involved an appropriately proximate and clear attempt to guard against any risk that the jury would be misled, by the submission which had just been made, into misunderstanding the proper framework for their determination of the case. The prosecutor expressly disavowed simplistic choice reasoning. Whilst she did not explicitly address each scenario contemplated by the directions suggested in Liberato v The Queen and De Silva v The Queen, this was understandable in the context of the submission she was seeking to advance. In circumstances where her submission was that the appellant’s evidence could be rejected as a lie, it was understandable that she focussed her framing of the ultimate issue to be determined by reference to the scenario in which that submission was accepted and the appellant’s evidence was rejected as a lie and put to one side. In circumstances where the prosecutor, both in this section of her address and elsewhere, repeatedly emphasised the appropriate burden and standard of proof, we do not accept that the prosecutor’s address was impermissible, inappropriate or, of itself, caused the trial to miscarry.
For completeness and before turning to the adequacy of the trial judge’s directions, we mention the appellant’s emphasis upon the prosecutor’s use of the word ‘however’ in paragraph [3] above. The appellant submits that even if paragraph [2] tended to mitigate against the risk of impermissible choice reasoning, this was undermined by what followed. As we understand the argument, it was that the prosecutor’s introduction in paragraph [3] to her attack upon the appellant’s evidence which was to follow, and in particular her use of the word ‘however’, somehow suggested that what had just been said could be put to one side, or that what she was about to say was an exception or qualification to what she had just said. And this was said to have been reinforced by the prosecutor then embarking upon separate treatments of the competing accounts of the appellant and complainant. We do not accept this submission. In our view, the prosecutor’s use of the word ‘however’ was nothing more than a linguistic filler. Certainly, we do not think it conveyed any meaning or emphasis which operated to undermine the appropriate framing of the issue for determination in paragraph [2] of her address.
The application for a mistrial
At the conclusion of the prosecutor’s address, defence counsel made an application for a declaration that the trial had miscarried by reason of the prosecutor having inappropriately invited the jury to engage in impermissible choice reasoning. The judge rejected the application.
For the reasons set out above, we do not consider that the application was based upon a fair characterisation of the prosecutor’s address. But in any event, the issue for this Court is not whether the judge erred in refusing the application for a mistrial. The issue is whether there was ultimately a miscarriage of justice. This requires consideration of the directions given by the judge in his summing up. The defence closing address also forms part of the relevant context.
Defence closing address
Defence counsel quite properly and forcefully, addressed on the presumption of innocence, and the burden and standard of proof. She emphasised that it was necessary to conclude that the complainant was truthful and reliable, such that her evidence could be accepted beyond reasonable doubt before the appellant could be convicted. She also explained to the jury that if they considered what the appellant had said was reasonably possible, they had to acquit.
The trial judge’s summing up
Early in his summing up, the trial judge provided the jury with clear directions as to the burden and standard of proof:[22]
[1]Every person who is charged with an offence comes to the court with the presumption of innocence. That means that unless and until a jury finds proved beyond reasonable doubt that a person is guilty of an offence, then he or she is presumed to be innocent of that offence. That presumption remains with him or her throughout the trial. Nothing short of proof beyond reasonable doubt will suffice.
[2]In respect of each ingredient of the charge, the prosecution bears the onus of proving that ingredient to you and proving it beyond reasonable doubt. Unless the prosecution does so, the accused is entitled to a verdict of not guilty on the charge. The accused bears no onus of proof.
[3]I have used the expression ‘reasonable doubt’ and counsel have used it too. I say something about it. A reasonable doubt is one that you, as reasonable jurors, are prepared to entertain. The expression requires no other explanation than that. It is simply a doubt that a reasonable person entertains and you, as jurors, are presumed to be reasonable persons. At the end of the day, you ask yourselves am I in doubt, as a reasonable person acting reasonably, about the guilt of the accused? You ask that question in respect of each ingredient of the charge.
[4]Beyond reasonable doubt does not mean that the accused is possibly guilty of the offence. That is not the burden of proof in any proceedings whatsoever. Beyond reasonable doubt does not even mean that the accused is probably guilty or that he is more likely than not to be guilty. That is the standard of proof in civil proceedings, for example, when you are suing on a contract. Beyond reasonable doubt is the highest standard of proof known to the law.
[22] Paragraph numbers inserted for ease of reference.
The judge followed this by expressly warning the jury against choice or preference reasoning:
[5]Your task in this case is not to choose between the prosecution's evidence and the defence evidence. It is not a question of whose account do you prefer. It is ultimately a question of whether the evidence of the prosecution leads you to be satisfied beyond reasonable doubt that the accused is guilty of the charge. If the evidence does so satisfy you, then you find the accused guilty. If the evidence does not so satisfy you, then you find him not guilty.
When later summarising the prosecutor’s address, the judge summarised the passage in which she had warned the jury against choice reasoning, and informed them of the need – even if they did not accept the evidence of the appellant – to consider whether the prosecution had proved the appellant’s guilt beyond reasonable doubt:
[6][The prosecutor] then started her analysis with the evidence of the accused. Correctly she explained that the accused does not have to prove anything. Further, even if you did not accept the evidence of the accused, and you put it aside, you would have to return to the prosecution case and decide whether the evidence of the prosecution has proved the accused's guilty beyond reasonable doubt. It is not a case of preferring one account over another.
Whilst expressed as a repetition or summary of what the prosecutor had told the jury, it is noteworthy that the judge included reference to the prosecutor ‘correctly’ explaining the approach.
Later in his summing up, the judge addressed the prosecutor’s reference, in concluding her closing address, to the complainant having been put through the trial process:
[7] [The prosecutor] went on to say it made no sense to go through this entire legal process. As a matter of law that submission runs the risk of reversing the onus of proof. While not expressly put in these terms the submission might have the effect of inviting you to reason that the complainant would only take part in this prosecution if she was telling the truth. It might lead you to think that you could reason that exposing herself to a trial is a sign of her truthfulness. You must avoid that sort of reasoning. The burden of proof is throughout on the prosecution. The defence has to prove nothing.
At the conclusion of the summing up, counsel for the appellant made a request for a Liberato style direction. Defence counsel maintained her earlier argument that the prosecutor had, in her closing address, suggested to the jury that their task required a choice between competing accounts, and that the judge had, through his summing up, accepted or endorsed this approach. Defence counsel argued that the judge ought to give a further direction clarifying for the jury that if they do not know where the truth lies, or they are left in a state of uncertainty, then the appellant was entitled to the benefit of the doubt. The prosecutor opposed a further direction on the basis that the judge had already made it clear to the jury that their task was not one of simply picking one account or version over another.
A Liberato style direction is not a general or universal requirement as a matter of law. As explained earlier, whether or not it is required in a particular case will depend upon the circumstances of that case, including the nature of the evidence and issues, and the way in which the parties conduct and present the case. The direction serves to clarify and reinforce directions on the burden and standard of proof in a case where there is a risk that the jury might be left with the impression that their task is one that turns upon a preference for the prosecution evidence or version over the defence evidence or version. As such, the direction should be given where there is a real risk that the jury might view their role in this way.[23]
[23] De Silva v The Queen (2019) 268 CLR 57 at [10], [13] (Kiefel CJ, Bell, Gageler and Gordon JJ).
A Liberato style direction was required in the present case. That was inherently so given the competing and conflicting evidence given by the complainant and the appellant of the critical events. But the need for direction was reinforced by the prosecutor’s decision to focus upon this characterisation of the evidence in her closing address (albeit accompanied by appropriate reference to the burden and standard of proof).
However, the judge did give directions warning the jury against choice reasoning, and reinforcing the need for them to frame their determination of the appellant’s guilt through an application of the criminal standard of proof beyond reasonable doubt. The complaint by the appellant, and issue for this Court, relates to the adequacy of the terms of those directions. In particular, the appellant complains that whilst the judge addressed limb (iii) of the Liberato style direction suggested in De Silva v The Queen, his Honour did not address limb (ii). That is, his Honour addressed the scenario in which the jury completely rejected the appellant’s evidence, but did not address the scenario in which the jury did not positively accept the appellant’s evidence. His Honour did not, in terms, instruct the jury that in that scenario, if they were left with a reasonable possibility that his evidence was true, then they had to acquit.
It is to be accepted that this is an accurate description of the judge’s directions. His Honour did not, in terms, address limb (ii) of the Liberato style direction suggested in De Silva v The Queen. We would also accept that the preferable course would have been to include express reference to this limb. Indeed, this limb was included within Brennan J’s original formulation of the appropriate directions in Liberato v The Queen itself. In circumstances where defence counsel’s closing address embraced the scenario contemplated by this limb, there is some force in the appellant’s complaint.
However, in considering whether the judge’s failure to make express reference to limb (ii) resulted in a miscarriage of justice, the issue is whether there remained a realistic prospect that, despite the Liberato style direction that was given, the jury might nevertheless have been distracted from a proper application of the burden and standard of proof, and have engaged in inappropriate choice or preference reasoning.
In addressing this issue, the first point to make is, of course, that the directions the judge gave did squarely warn the jury against choice or preference reasoning, and did squarely remind the jury of the need to fame their determination of the issue of the appellant’s guilt through the prism of proof beyond reasonable doubt. The directions thereby attended to the central task of a Liberato style direction. They did so in a context where the prosecutor and judge had elsewhere properly emphasised the applicable burden and standard of proof.
Further, in circumstances where the prosecutor had submitted that this was a case where the conflict between the evidence of the complainant and appellant was such that the jury should proceed on the basis that one was lying, and ultimately that it was the appellant that was lying, it was appropriate that any elaboration upon this central task of the Liberato style direction focus upon limb (iii) (that is, the scenario where the jury completely rejects the appellant’s evidence).
It is also relevant to observe, as their Honours did in De Silva v The Queen,[24] that in a case where the jury are invited to ‘completely reject the accused’s evidence’, they might ‘find it confusing’ to be told to consider whether that evidence gave rise to a reasonable doubt. In other words, where the case is conducted and presented as a limb (iii) case, it might be confusing for a jury to be directed in relation to limb (ii).
[24] De Silva v The Queen (2019) 268 CLR 57 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
Against this, it should be acknowledged that the defence case did encompass the scenario in limb (ii). In these circumstances, despite any risk of confusion, it would have been preferable that the direction given addressed all three limbs of the Liberato style direction suggested in De Silva v The Queen.
Whilst the majority in De Silva v The Queen described a direction in these terms as ‘preferable’,[25] their Honours did not say that strict adherence to this formula, or inclusion of reference to all three limbs, was necessary in order to avoid a miscarriage of justice. In the ultimate analysis, the issue is one of impression and degree.
[25] De Silva v The Queen (2019) 268 CLR 57 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).
Having had regard to the express warnings against impermissible choice reasoning by the prosecutor and judge, and to both the accompanying and more general directions reminding the jury of the importance of attending to the applicable burden and standard of proof, we are satisfied that the judge adequately guarded against any realistic prospect of the jury’s verdict being influenced by impermissible reasoning. No miscarriage of justice has been established.
For completeness, we mention that the appellant argued that the judge’s treatment (in paragraph [7] above of his summing up) of the prosecutor’s submission, which risked reversing the onus of proof, somehow exacerbated the risk of the jury being distracted from the applicable burden and standard of proof. To the contrary, we consider that the judge’s direction to the effect that the burden of proof remained on the prosecution throughout, and that the defendant did not have to prove anything, was a strong and clear reminder of the appropriate framing of the jury’s task.
Ground 8: evidence of distress
Under Ground 8, the appellant complains that the judge failed to direct the jury as to the circumstances in which they could use the evidence of the complainant’s distress, and the use that could be made of that evidence. In particular, the appellant contends that the jury ought to have been instructed that they could only use the evidence of distress as evidence of consistency of conduct (and hence credibility of the complainant), and even then, only if satisfied that all explanations for the distress (other than the alleged offending) have been excluded. The appellant relies upon R v Baltensperger[26] in support of this contention.
[26] R v Baltensperger (2004) 90 SASR 129 at [58] (Gray J, Doyle CJ and Bleby J agreeing).
In order to address this ground of appeal, it is convenient to commence by summarising the treatment of the evidence of the complainant’s distress at trial, and the principles governing the admissibility and relevance of this evidence.
Treatment of the distress evidence at trial
As described earlier in these reasons, the complainant gave evidence of her distress immediately following her sexual encounter with the appellant. She mentioned crying in the shower for about 10 minutes, and then crying on the telephone to her boyfriend when telling him what had happened (being an initial complaint for the purposes of s 34M of the Evidence Act).
The complainant’s boyfriend also described the complainant as being in a distressed state both when speaking to her on the telephone, and when she arrived at his work about 20 to 30 minutes later. Indeed, she was so upset on the phone that it was difficult to work out what she was saying to him.
In her closing address, the prosecutor relied upon the complainant’s complaint and distress as supportive of her credibility. Defence counsel, on the other hand, focussed upon the boyfriend’s evidence that the complainant had referred to betrayal, suggesting that the complainant’s reason for her distressed complaint of being raped to her boyfriend may have been a function of her being upset because she had betrayed her boyfriend by allowing the appellant to have unprotected sex with her.
In addressing the jury, the judge gave relatively detailed directions in relation to the use that might be made of what he described as ‘evidence of complaint’.[27] The judge commenced by summarising the relevant evidence, in terms similar to the above, and hence including reference to the complainant crying in the shower and being upset when speaking to her boyfriend on the telephone. His Honour also mentioned the boyfriend’s evidence that the complainant had said that she ‘felt like she betrayed him, for letting it happen’. The judge told the jury that they must first determine whether the complaint was made. His Honour then explained that, assuming a complaint was made, they could not use the evidence to demonstrate the truth of what was reported. Rather, the evidence was only to be used to explain how the allegations came to light, and to consider the degree of consistency on the part of the complainant. His Honour then went on to explain the two types of consistency to which the jury might have regard, sometimes referred to as consistency of account and consistency of conduct.
[27] Summing up, pp4-5.
When subsequently summarising the prosecution case,[28] the judge returned to the evidence of the complainant’s complaint and distressed condition, referring to the prosecution case to the effect that the complainant had behaved in a way that one might expect in the circumstances which she said had occurred. In later summarising the prosecutor’s address,[29] his Honour referred to the prosecutor’s submission to the effect that the evidence of the complaint, including the emotions that had been described, was consistent with someone describing a traumatic experience they had been through. In summarising defence counsel’s closing address,[30] the judge mentioned her submission to the effect that the boyfriend’s evidence that the complainant had referred to ‘betrayal’ suggested that the complainant was saying she had had a choice about having unprotected sex, and that she had made the wrong choice. After reminding the jury that the complainant had denied saying anything about betrayal, the judge explained that whatever the complainant said to her boyfriend was not evidence of the truth of what was said. But if there was an inconsistency between what she said in the complaint and what she said in court, then this went to her credit.
[28] Summing up, p6-7.
[29] Summing up, p13.
[30] Summing up, p14.

After a request by defence counsel for further directions on certain aspects of the evidence of complaint and distress, the judge returned to the issue.[31] He explained to the jury that he had omitted in his earlier directions to explain that there may be varied reasons why the alleged victim of a sexual offence makes a complaint at a particular time or to a particular person. Whilst noting that the prosecution had relied upon the promptness of the complainant’s complaint to her boyfriend, the judge instructed the jury that they had to ‘bear in mind that there may be other reasons why the complainant reported as she did, other than the one put forward by the prosecution’.
[31] Summing up, pp34-35.
The judge concluded these additional directions by referring to the prosecution’s reliance upon the consistency inherent in the complainant’s emotions when speaking to her boyfriend. The judge emphasised that ‘evidence of consistency really only goes to bolster the complainant’s credit, rather than supporting her evidence. It is a distinction the law makes, an important distinction the law makes’.
Principles governing the admissibility and use of evidence of distress
The admissibility and use of evidence of distress were recently considered by this Court in Fergusson v The King.[32] As explained in that case, in a trial of a sexual offence, evidence of a complainant’s distressed state or condition following an alleged offence is generally described as admissible for two purposes.
[32] Fergusson v The King [2024] SASCA 63 at [26]-[43] (Livesey P, Doyle and David JJA).
First, it may in some cases be admissible and used as independently probative of the alleged offending.[33] Used in this way, it is circumstantial evidence of the complainant having been involved in a distressing incident. Whilst there must be some basis for the inference of a causal connection between the complainant’s distressed condition and the alleged offending, it is not a pre-requisite to the admission of the evidence of distress as circumstantial evidence that all other explanations for the distress be excluded. The weight of such evidence will vary greatly depending on the contemporaneity and proportionality of the distress to the alleged offending, and the opportunity or motive for it to be fabricated. It is sometimes said that such evidence should be received and treated with some caution.
[33] Fergusson v The King [2024] SASCA 63 at [28]-[32] (Livesey P, Doyle and David JJA), relying upon R v Dhir [2019] SASCFC 55 at [61]-[69], [71] (Kourakis CJ, Stanley and Doyle JJ agreeing), as well as R v Schlaefer (1984) 37 SASR 207 at 215-217 (King CJ) and several Victorian decisions (R v Flannery [1969] VR 586 at 591 (Winneke CJ, Pape and Starke JJ), R v Rogers [2008] VSCA 125 at [18]-[20] (Nettle JA), R v Flora (2013) 233 A Crim R 320 at [69], [72], [82] (Redlich, Weinberg and Coghlan JJA), Paull v The Queen [2021] VSCA 339 at [40]-[42] (Priest, Kaye and Niall JJ), Seccull v The King [2022] VSCA 219 at [30] (Priest AP) and Nimely v The King [2023] VSCA 20 at [26] (Priest, Taylor and Kaye JJA)).
Secondly, evidence of distress may also be probative of consistency in the complainant’s behaviour or conduct, and hence supportive of a complainant’s credibility.[34] Even when received and used in this more limited way, the Courts in this State have generally emphasised the importance of the distress having a temporal and causal connection with the alleged sexual offending. That said, it appears that there is some room for flexibility in this respect when considering evidence of distress when it accompanies evidence of a complaint.
[34] Fergusson v The King [2024] SASCA 63 at [26], [33]-[42] (Livesey P, Doyle and David JJA), relying upon R v Baltensperger (2004) 90 SASR 129 at [55] (Gray J, Doyle CJ and Bleby J agreeing), R v Green [2001] SASC 25 at [145] (Olsson J) and R v Pahuja (No 2) (1989) 50 SASR 551.
It is to be acknowledged that the law relating to distress has not been the subject of any direct legislative development in the way that the law governing the admissibility and use of complaint evidence has been developed through the introduction of s 34M of the Evidence Act.[35] Under that section, whilst the complaint must be referrable to a charged sexual offence, there is no threshold requirement of contemporaneity to the admissibility of evidence of the complaint. Further, the evidence of complaint may be used to explain how the alleged offending came to light, and as probative of the degree of consistency of conduct on the part of the complainant and hence the credibility of the complainant (s 34M(4)(a)). There is also an express prohibition against using the complaint as evidence of the truth of the sexual offending alleged (s 34M(4)(b)).
[35] Fergusson v The King [2024] SASCA 63 at [40] (Livesey P, Doyle and David JJA).
When the evidence of distress relates to the complainant’s demeanour in making a complaint, it may be relevant and admissible as informing an assessment of the credibility and reliability of the complaint evidence.[36] It may provide important context in assessing the complaint evidence, for example, by explaining the length of the relevant conversation, or the limited and general terms in which the allegations were made, or the confused or incomplete nature of the allegations.
[36] Fergusson v The King [2024] SASCA 63 at [43]-[44] (Livesey P, Doyle and David JJA).
In some cases, where the evidence of distress relates to the complainant’s demeanour in making an initial complaint, there may be no need for separate directions specifically addressing the evidence of distress. The standard directions in relation to the permissible and impermissible uses of the complaint evidence may suffice. That was held to be so in R v El Rifai.[37]
[37] R v El Rifai [2012] SASCFC 98 at [91] (David J, Kelly J agreeing).
In other cases, separate treatment may be appropriate or required. In R v Baltensperger,[38] the trial judge gave separate directions in relation to distress. However, those directions were held to be deficient because they drew upon an earlier directions in relation to intoxication (which were themselves inadequate), and did not instruct the jury to consider whether there was a reasonable possibility that the complainant’s distress might be attributable to matters other than the alleged offending (such as regret about her conduct the previous night, concern about having had sexual intercourse with a stranger, or concern about being late for work).
[38] R v Baltensperger (2004) 90 SASR 129 at [58] (Gray J, Doyle CJ and Bleby J agreeing).
In Fergusson v The King,[39] the directions in relation to the complainant’s distressed condition when making her initial complaint were held to be inadequate because they invited reasoning which suggested that the evidence of her distress had a relevance beyond the complainant’s credibility in connection with her complaint. They invited reasoning which suggested that the evidence might be used as supportive of the complainant’s credibility more generally, in circumstances where there was not a sufficient causal or temporal proximity with the alleged offending to permit its use in this way.
[39] Fergusson v The King [2024] SASCA 63 at [45] (Livesey P, Doyle and David JJA).
Whilst R v El Rifai, R v Baltensperger and Fergusson v The King might each be seen as supporting differing approaches to evidence of distress in the context of a complaint (at least when it is temporally removed from the alleged offending), they may be reconciled on the basis that what is necessary by way of directions will depend upon the nature and prominence of the evidence of distress, the use sought to be made of it, and the extent to which it presents any issues separate and distinct from those presented by the complaint evidence to which it is connected.
Further, to the extent that R v Baltensperger and Fergusson v The King might be seen as supporting a cautious approach to evidence of distress in the context of an admissible complaint, the recent decision of the High Court in R v Churchill (a pseudonym) (‘Churchill’)[40] may be seen as supporting a more expansive view as to the admissibility and relevance of this evidence, and a less demanding approach to the directions that might be required.
[40] R v Churchill (a pseudonym) [2025] HCA 11.
The respondent in Churchill was charged with sexual offences (two counts of incest contrary to s 44(2) of the Crimes Act 1958 (Vic)) against his stepdaughter which were alleged to have occurred in 2005. There was evidence at the trial of the child complainant making a complaint to her mother over a year later, in 2006 or 2007, when attending a hearing in the Children’s Court. The evidence was that the child, when telling her mother that she had been raped by the respondent, was very upset and distressed, yelling and having a ‘meltdown’.
In his closing address, the prosecutor relied upon the evidence of the child’s distressed condition as consistent with her complaint. Defence counsel, on the other hand, urged the jury not to draw any causal connection between the child’s distress and the alleged offending more than a year earlier, but to treat the distress as the result of a range of other circumstances then affecting her.
The judge gave directions in relation to the evidence of complaint, instructing the jury that it could be used as both supportive of the child’s credit, and as evidence of the fact that the conduct complained of had occurred. As to the latter, it is important to note that this reflects the position in Victoria as a result of complaint evidence being admissible as an exception to the rule against hearsay under s 66 of the Evidence Act 2008 (Vic).[41] This involves a departure from the position that used to exist at common law, and continues to exist in South Australia by reason of the express prohibition against using a complaint as evidence of the truth of the sexual offending alleged in s 34M(4)(b) of the Evidence Act 1929 (SA).
[41] R v Churchill (a pseudonym) [2025] HCA 11 at [51] (the Court).
The prosecutor in Churchill had sought a direction to the effect that the evidence of distress, if accepted, was indirect evidence that the child had suffered a traumatic event, being the alleged offending. Defence counsel had opposed this direction on the basis that the causal connection between the distress and the alleged offending was too remote and tenuous.
The judge ultimately gave a direction along the lines requested by the prosecutor. After giving a standard direction about indirect or circumstantial evidence, the trial judge gave the distress evidence as an example of such evidence. He mentioned the prosecution argument to the effect that the child’s distress when claiming she had been raped was indicative of the trauma of having been sexually abused by the respondent. He also mentioned the defence argument in response to the effect that the distress may have been the product of a whole host of difficulties the child was experiencing a year or so after the alleged offending. The judge completed his directions on this topic by explaining that the jury should take care when drawing conclusions from indirect evidence of this kind; that they should consider all the relevant evidence and only draw reasonable conclusions based on the evidence that they accept. And they should only convict if satisfied of guilt beyond reasonable doubt.
The Victorian Court of Appeal allowed the respondent’s appeal on the basis that the judge’s directions in relation to the evidence of distress occasioned a miscarriage of justice. Drawing on its earlier decisions in Paull v The Queen, Seccull v The King, Nimely (a pseudonym) v The King and R v Flannery,[42] the Court described the causal link between the distress and alleged offending as ‘weak’. In their Honours’ view, the direction as to distress ought to have included reference to the need for the jury to be satisfied that there was a rational causal link, and a warning to the jury that distress evidence generally carried little weight. In supporting the Court of Appeal’s decision in the High Court, the respondent argued that the judge ought to have instructed the jury that it needed to be satisfied that the child’s distress was caused by the respondent’s offending, and not by some other cause, before using the evidence of distress.
[42] See footnote 32 above.
In allowing the appeal, the High Court took an expansive view of the relevance and admissibility of evidence of distress in the context of a complaint. The evidence of distress, like the evidence of the complaint itself (in Victoria), was ordinarily relevant and admissible both to the complainant’s credibility and the occurrence of the alleged offending:[43]
In a trial of a sexual offence in Victoria, evidence that a complainant was distressed at the time of making a pre-trial complaint is ordinarily relevant and admissible. It is relevant within the meaning of s 55 of the Evidence Act on either or both of two bases: as evidence that, if accepted, could, first, enhance the credit of the complainant if the jury were to find a causal connection between the distress and the making of the complaint and, second, support the occurrence of the offending if the jury were to find a causal connection between the distress and the offending. On either basis, the evidence could rationally indirectly affect the assessment of the probability of the existence of a fact in issue – namely, whether the offending occurred – and is therefore relevant within the meaning of s 55. Consequently, it is admissible in a trial of a sexual offence under s 56 of the Evidence Act.
[43] R v Churchill (a pseudonym) [2025] HCA 11 at [3] (the Court) (omitting footnotes); and to the same effect, at [27].
In holding that the trial judge’s directions had been adequate, the Court explained:[44]
The general direction that the trial judge gave to the jury in the present case as to the drawing of conclusions and the distinction between direct and circumstantial evidence sufficed to explain the permissible use by the jury of the evidence by the complainant and her mother of the complainant’s distress at the time of complaining to her mother that the respondent had raped her. Indeed, the general direction would have sufficed even if the trial judge had not used that evidence of complaint as an example of indirect evidence. No further direction was required.
[44] R v Churchill (a pseudonym) [2025] HCA 11 at [37] (the Court).
The Court proceeded to explain that the Court of Appeal had erred in its reliance upon the earlier Victorian decisions mentioned above, and the common law principles which underpinned them.[45] In particular, the Court explained that various common law evidentiary rules had been overridden by statute in Victoria, including: the requirement to warn juries that it was dangerous to convict an accused of a sexual offence in the absence of corroboration; the treatment of corroborative distress as an indispensable intermediate fact, requiring the exclusion of other explanations for it beyond reasonable doubt; the rule against hearsay, and its extension to conduct constituting a non-verbal aspect of a complaint; and the need to warn a jury whenever there was a feature of the evidence which judicial experience suggested a significant possibility it was unreliable for reasons which may not be evident to the jury. The Court concluded:[46]
The prior common law rules which informed the reasoning in Paull, Seccull and Nimely have been interred by statute. Their ghosts ought to be banished from judicial reasoning. To revert, even implicitly, to the concepts of independent corroboration or intermediate fact considerations in analysing the relevance of the permissible use by a jury of evidence of pre-trial distress on the part of a complainant in the trial of a sexual offence or to characterise such evidence as inherently weak or having a significant possibility of being unreliable is a recipe for confusion and can only distort the requisite statutory analysis.
[45] R v Churchill (a pseudonym) [2025] HCA 11 at [38]-[53] (the Court).
[46] R v Churchill (a pseudonym) [2025] HCA 11 at [53] (the Court).
Some care is necessary in applying this approach in South Australia given the different legislative intervention which has occurred in this State. Whilst the requirement that the jury be warned that it is unsafe to convict on a complainant’s uncorroborated evidence has been abolished by s 34L(5) of the Evidence Act, in South Australia there is no equivalent exception to the hearsay rule for complaints of the kind that exists in Victoria. To the contrary, as mentioned earlier, s 34M(4)(b) expressly prohibits any use of complaint evidence as probative of the truth of the allegations contained in the complaint. It would tend to undermine the effect of this subsection if evidence of a complainant’s distressed condition when making a complaint was nevertheless admissible as probative of the truth of the alleged offending. Certainly it is doubtful whether a jury could realistically be expected to understand, let alone observe, any distinction between the permissible use of the complaint and distress evidence in this respect.
However, it is not necessary to explore the full ramifications of the High Court’s decision in Churchill for criminal trials in this State because there was no suggestion in the present case that the evidence of distress be given any permissible use as probative of the alleged offending. It is significant that the evidence of distress in the present case related to a complaint which was essentially contemporaneous with the alleged offending.
Analysis
In the circumstances of the present case, we do not think that it was necessary for the trial judge to give any separate directions addressing the evidence of distress. Consistently with the decision in R v El Rifai, it was sufficient that the judge addressed this evidence in conjunction with the evidence of the complaint to which it related.
When describing the evidence of complaint, the judge included reference to the evidence as to the complainant’s distressed state immediately before, and as, she made this complaint. By addressing the evidence of distress in this way, the judge’s directions ensured that the use of that evidence was confined to its use in considering the degree of consistency in the complainant’s conduct, and hence as relevant only to her credibility.
Even though the evidence suggested that the distress commenced prior to, and extended beyond, the complaint, this was appropriate and sufficient in circumstances where the prosecutor had not sought to elevate the evidence of distress so as to give it some independent probative force beyond providing context for the complaint.
Having regard to the reasons of the High Court in Churchill, we do not think it was necessary for any additional or specific direction to be given as to the limited weight to be afforded to evidence of distress, or as to the need to exclude other possible explanations for the distress.
As to this last point, defence counsel had made a submission to the effect that the boyfriend’s evidence as to the complainant’s reference to betrayal supported an alternative explanation for the complainant’s distress when making her complaint to her boyfriend. Whilst this was a matter the jury needed to consider when assessing the evidence of complaint and distress, it was sufficient that the judge made specific reference to this submission when summarising defence counsel’s closing address.
In our view, the appellant has not identified any inadequacy in the trial judge’s directions in relation to the evidence of the complainant’s distressed state. He has not established any miscarriage of justice in this respect.
Ground 9: particulars of the charge
The context for the arguments advanced under Ground 9 is that the appellant was charged with a single count of rape which, on the prosecution case and complainant’s evidence, involved the appellant inserting his penis into her vagina without a condom and without her consent. On the complainant’s evidence, this occurred while the appellant was standing behind her and holding her by the hips, and immediately following her making it clear that the appellant needed to use protection and hence that she did not consent to having sex without a condom.

The defence case, as reflected by the appellant’s evidence, was that the complainant and appellant engaged in consensual penile-vaginal intercourse on three occasions: in the missionary position, with the appellant behind the complainant and on his knees, and with the appellant behind the complainant and standing.
Under Ground 9, the appellant contends that the trial judge, in directing the jury, failed to identify the act of intercourse the subject of the charged offence. On the appellant’s argument, this was problematic for three related reasons. First, there was a risk that the jury convicted the appellant of an offence of rape on the basis of an act of intercourse which was not the subject of the charge. Secondly, there was a risk that the jury were not unanimous in their verdict as to one particular act of intercourse. Thirdly, the verdict was bad for uncertainty.
In our view, these complaints are not made out. The basis upon which the prosecution case was presented was clear. As the prosecutor emphasised in her opening address, the charge related to the act of intercourse that occurred when the appellant inserted his penis into her vagina from behind, and immediately after being told by the complainant that she did not consent to unprotected sex. The complainant’s evidence was consistent with the prosecutor’s opening. On the prosecution case, the relevant act of intercourse was clear.
It is true that the appellant described three instances of consensual intercourse which differed from the act described by the complainant. However, the jury would have understood that if there was a reasonable possibility that the sexual activity between the complainant and appellant occurred as he described, then they would be required to acquit him of rape. There was no suggestion by counsel or the judge of any pathway to conviction based upon anything other than an acceptance beyond reasonable doubt of the complainant’s evidence as to the lack of consent concerning the act of sexual intercourse which she described. There was no realistic risk of the jury in effect combining the evidence of the complainant and appellant, and convicting him on the basis of the complainant’s evidence as to lack of consent, but on one or more of the other acts of intercourse as described by the appellant.
The cases relied upon by the appellant are distinguishable. In both Jones v The Queen[47] and Lapthorne v The Queen,[48] the appellant was charged with one count of sexual offending against a complainant, but where the prosecution led evidence that a second uncharged similar act of sexual penetration upon the same complainant occurred on the same occasion. In both cases, the appeals were allowed because the prosecution had not identified which act constituted the charge, leaving scope for uncertainty in relation to the juries’ verdicts of guilty. In theory a similar difficulty could arise where the evidence of the second act of penetration is led by defence. But only if it resulted in uncertainty in the prosecution case, and hence in the basis upon which any conviction might be entered. For the reasons explained above, that was not the situation in the present case.
[47] Jones v The Queen [1980] WAR 203.
[48] Lapthorne v The Queen [1990] WAR 207.
Ground 9 has not been made out.
Conclusion
We grant permission to appeal, but dismiss the appeal.