Warren v The King

Case [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;

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Warren v The King [2025] SASCA 65
Case
[2025] SASCA 65
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Warren, against his conviction for a sexual offence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, S Doyle and David JJ. The central dispute revolved around the trial judge's directions to the jury concerning the complainant's evidence of distress and her initial complaint to her boyfriend.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Ground 9 has not been made out. Conclusion We grant permission to appeal, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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