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;
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CaseChat Overview and Summary
The legal issues before the Court were whether the trial judge had misdirected the jury regarding the use of the complainant's evidence of distress and her complaint to her boyfriend, and whether this misdirection, if any, amounted to a miscarriage of justice. Specifically, the Court had to consider the admissibility and relevance of the complainant's distress, how it could be used by the jury, and whether the judge's directions adequately explained the limited purpose for which such evidence could be considered, particularly in light of the defence's alternative explanation for the complainant's distress.
The Court analysed the trial judge's directions, which instructed the jury that the evidence of complaint could not be used to prove the truth of the allegations but only to explain how the allegations came to light and to assess the complainant's consistency. The judge also referred to the defence's submission that the complainant's mention of "betrayal" suggested she had made a choice regarding unprotected sex, and that this was not evidence of the truth of what was said, but could go to her credit if inconsistent with her evidence in court. The Court found that the judge's directions, while complex, adequately explained the principles governing the use of complaint evidence and the complainant's distress. The Court concluded that the jury had been properly instructed on these matters and that no miscarriage of justice had occurred.
The Court granted permission to appeal but ultimately dismissed the appeal.
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