HASTWELL v THE KING [2026] SASCA 69

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE WHITE) DCCRM-23-46038 Appellant: BRADLEY JOHN HASTWELL Counsel: MR J WILSON - Solicitor: WEBSTERS LAWYERS Respondent: THE KING Counsel: MS L DUONG WITH MS E BARTEMUCCI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/03/2026 File No/s: SCCRM-25-026822 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HASTWELL v THE KING [2026] SASCA 69 Judgment of the Court of Appeal (The Honourable Justice David, the Honourable Justice Stanley and the Honourable Justice B Doyle) 25 June 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE This is an appeal against conviction. Following a trial by jury, the appellant was found guilty of one count of unlawful sexual intercourse with a person under the age of 17 years in relation to the complainant, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The complainant met the appellant in March 2019 when they were both working as sales representatives at Bunnings, Edwardstown. On 6 July 2019, the appellant collected the complainant from Bunnings and drove her to the Wilfred Taylor Reserve sporting complex in Morphett Vale. There, and while seated in his vehicle, the appellant allegedly caused the complainant to perform an act of fellatio upon him (the charged offence). The appellant was 23 years old, and the complainant was 16 years old at the time of the charged offence. -- 1 of 19 -- The appellant now appeals his conviction on the following four grounds: - The trial judge erred in admitting evidence that the appellant sent the complainant a photograph of himself lying on his bed in his underpants, or in the alternative, the receipt of this evidence gave rise to a miscarriage of justice (Ground 1). - The trial judge’s directions as to the permissible and impermissible use of various uncharged acts of sexualised behaviour were inadequate and failed to comply with s 34R of the Evidence Act 1929 (SA) (Ground 2). - The trial judge erred by not directing the jury as to the use of prior inconsistent statements made by the complainant, resulting in a miscarriage of justice (Ground 3). - The trial judge erred by not directing the jury as to the permissible and impermissible uses of the complainant’s evidence that she had a discussion with her boyfriend about the alleged offending (which was not led as evidence of initial complaint), and this was productive of a miscarriage of justice (Ground 4). Held, per the Court, granting permission to appeal on Grounds 1 and 2 and allowing the appeal on Ground 2: 1. As to Ground 1, there was no error by the trial judge in admitting the evidence of the underpants photograph pursuant to s 34P(2)(b) for a propensity use and further, its admission was not productive of a miscarriage of justice. 2. As to Ground 2, the trial judge’s directions as to the evidence of the recorded telephone conversation between the complainant and the appellant during which they spoke about the complainant’s bras were erroneous. The relevant part of the telephone conversation was not capable of amounting to an implied admission to the charged act of fellatio. It was only capable of amounting to an implied admission to the uncharged conduct of the appellant looking down the complainant’s top at her bra which was in turn relevant to prove the appellant’s sexual interest in the complainant and preparedness to act upon it. 3. The appeal is allowed and the matter is remitted for re-trial. Having allowed the appeal on Ground 2, it is not necessary to reach a final conclusion as to the appropriate disposition of Grounds 3 and 4. However, the Court makes the following observations: 1. As to Ground 3, the trial judge’s directions did not wrongly convey that a prior inconsistent statement is relevant only to the witness’ reliability as distinct from their credibility. Whilst the word ‘reliability’ can be, and earlier in the summing up was, used in contradistinction to credibility, it also has a broader meaning that encompasses any reason for not accepting evidence as accurate. That broader meaning was the meaning conveyed in the directions the subject of complaint. 2. As to Ground 4, without deciding this ground, it would have been preferable for an explicit direction to be given about the limited use that could be made of evidence given in re- examination by the complainant to the effect that she had told her then boyfriend about “what happened to [her] by [the appellant]”. Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) ss 34M, 34P, referred to. Brant v The King (2023) 143 SASR 166; Hughes v The Queen (2017) 263 CLR 338; McPhillamy v The Queen (2018) 92 ALJR 1045; Potter (a pseudonym) v The King [2024] SASCA 108; R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; R v Golubovic [2016] SASCFC 144; Sadler v The King (2023) 144 SASR 153; TL v The King (2022) 275 CLR 83, considered. -- 2 of 19 -- HASTWELL v THE KING [2026] SASCA 69 Court of Appeal: Criminal – David, Stanley and B Doyle JJA 1 THE COURT: Following a trial by jury, the appellant was found guilty of one count of unlawful sexual intercourse with a person under the age of 17 years in relation to the complainant, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). 2 The complainant met the appellant in March 2019 when they were both working as sales representatives at Bunnings, Edwardstown. 3 On 6 July 2019, the appellant collected the complainant from Bunnings and drove her to the Wilfred Taylor Reserve sporting complex in Morphett Vale. There, and while seated in his vehicle, the appellant allegedly caused the complainant to perform an act of fellatio upon him (the charged offence). The appellant was 23 years old, and the complainant was 16 years old at the time of the charged offence. 4 The central issue at trial was whether the prosecution had proved, beyond reasonable doubt, that the act of fellatio took place as alleged by the complainant. 5 The appellant now appeals his conviction on four grounds: • The trial judge erred in admitting evidence that the appellant sent the complainant a photograph of himself lying on his bed in his underpants, or in the alternative, the receipt of such evidence gave rise to a miscarriage of justice (Ground 1). • The trial judge’s directions as to the permissible and impermissible use of various uncharged acts of sexualised behaviour were inadequate and failed to comply with s 34R of the Evidence Act 1929 (SA) (Ground 2). • The trial judge erred by not directing the jury as to the use of prior inconsistent statements made by the complainant, resulting in a miscarriage of justice (Ground 3). • The trial judge erred by not directing the jury as to the permissible and impermissible use of the complainant’s evidence that she had a discussion with her boyfriend about the alleged offending (which was not led as evidence of initial complaint), and this was productive of a miscarriage of justice (Ground 4). 6 For the reasons which follow, we grant permission to appeal on Grounds 1 and 2 and allow the appeal on Ground 2. We set aside the conviction and order a re-trial. -- 3 of 19 -- [2026] SASCA 69 The Court 2 The evidence at trial 7 The prosecution relied primarily on the complainant’s evidence in proof of the charged offence. In addition, there was evidence adduced from the complainant as to other uncharged occasions of sexualised behaviour by the appellant which allegedly occurred both before and after the charged offence. 8 The complainant gave evidence that when she first met the appellant, she thought he was “loud and obnoxious”. However, over time they began talking with one another, socialising at work and became friends. 9 The complainant gave evidence that in, or around, June 2019 (prior to the charged offence), the appellant would take her to “blind spots” at work which were not captured by CCTV. Whilst at these locations, he would pull at her work polo shirt so he could see her bra. The complainant said this occurred almost every shift they were working. 10 On 6 July 2019, the complainant had organised for the appellant to take her home from work. She changed from her work uniform into a new top, but remained in the rest of her work clothing. The appellant picked her up in his vehicle and together they travelled to the Wilfred Taylor Reserve sporting complex in Morphett Vale. 11 The complainant said that when parked at the reserve, the appellant asked her what colour bra she was wearing. When she did not answer, he pulled at the top of her shirt so he could look down her shirt at her bra. The complainant said he was “upset it wasn’t the red [bra]”. Next, he put his hand over her right breast and squeezed it for about five seconds. 12 Following this alleged sexual touching, the complainant said the appellant undid the zip and button of his pants and pulled them slightly down his legs. He then grabbed her right hand from her lap and moved it in a rubbing motion on his penis over his underwear. She estimated that this sexual touching lasted for about two to three minutes. The appellant then pulled his underwear down his thighs and asked her several times to lick the “pre-cum”. The complainant said she eventually did this, before the appellant caused her to perform an act of fellatio upon him by grabbing the back of her head and pushing her head down. She said that he ejaculated in her mouth before pulling up his pants and underwear and driving her home. 13 The complainant gave evidence that after this sexual incident, the appellant told her almost every day that she could not tell anyone what had happened because he did not want his partner or employer finding out. 14 In relation to other alleged occasions of sexualised behaviour, the complainant gave evidence that a few months after the charged offence, while she was still 16 years old, she and the appellant were in his vehicle during a work break. The complainant said that while she was looking out the front window, she -- 4 of 19 -- [2026] SASCA 69 The Court 3 heard the appellant making a rustling noise with his pants. He then gestured to a wet patch on his crutch area and said that he had to get home and clean himself up before his partner arrived home. 15 The complainant also gave evidence of another occasion after the charged offence where the appellant sent her a photograph on Snapchat of himself lying on his bed wearing only his underpants (“the underpants photograph”). She gave evidence that she thought the photograph was taken in the appellant’s bedroom as it depicted a fish tank with LED lights, which she understood he had in his bedroom. The complainant said she could not recall how long after the charged offence the appellant sent her the photograph. However, there was evidence suggesting that it was sent, at the latest, by the end of 2020 (or up to 18 months after the charged offence). 16 The admissibility of the evidence of the underpants photograph is the subject of appeal Ground 1. 17 The appellant continued to work at Bunnings until 26 December 2021, about two years and six months and after the alleged offending. The complainant also continued to work at Bunnings until November 2023. 18 They continued to have contact with each other until about August 2021 when the complainant “blocked” the appellant on social media. 19 The complainant reported the allegations to police in August 2022. 20 On 15 August 2022 (three years after the charged offence) there was a recorded telephone call between the appellant and the complainant wherein the appellant is alleged to have made implied admissions to looking down the complainant’s top at her bras. This recorded conversation is one aspect of the second ground of appeal relating to the adequacy of the trial judge’s directions. The defence case 21 The appellant did not give or adduce any evidence at trial. 22 In his closing address, defence counsel submitted that the complainant could not be accepted as a credible or reliable witness, emphasising the inconsistencies and omissions in her evidence. 23 Defence counsel also submitted that the complainant had a motive to lie, namely, to invoke sympathy from her then boyfriend in the context of a breakdown of their relationship. 24 It was defence counsel’s ultimate submission that the complainant’s evidence lacked credibility and reliability and consequently, the jury should not be satisfied beyond reasonable doubt that the appellant committed the charged sexual offence. -- 5 of 19 -- [2026] SASCA 69 The Court 4 Appeal Grounds 25 The grounds of appeal (as amended) have been particularised as follows: 1. The trial judge erred in admitting evidence pursuant to both s 34P(2)(a) and s 34P(2)(b) of the Evidence Act 1929 (SA) that, at some unknown time after the charged offence, the appellant had allegedly sent the complainant a picture on Snapchat of himself lying on a bed in his underpants (“the underpants photograph”). Alternatively, the receipt of the underpants photograph for propensity purposes resulted in a miscarriage of justice. 2. The trial judge erred at law by failing to direct the jury, or failing to adequately direct the jury in conformity with s 34R(1) of the Evidence Act 1929 (SA) in relation to the following items of discreditable conduct: 2.1 the underpants photograph (in that the jury were directed as to the permissible uses of the evidence pursuant to s 34P(2)(a) that were not properly open); 2.2 the portion of the phone conversation between the complainant and the appellant on 15 August 2022 during which the pair spoke about the complainant’s bras; 2.2.1 in the alternative, to the extent that the 15 August 2022 discussion regarding the complainant’s bras did not, of itself, amount to discreditable conduct, a miscarriage of justice was occasioned by the trial judge’s failure to appropriately direct the jury regarding the evidence; 2.3 the complainant’s evidence that the appellant allegedly masturbated in the complainant’s presence on an occasion that postdated the charged offending (in that the jury were directed as to permissible uses of the evidence pursuant to s 34P(2)(a) that were not properly open); 2.4 the contents of the recorded phone call between the complainant and appellant on 15 August 2022 (Exhibit P3 and P4) which referred to the appellant masturbating to “every kind of porn there is” and contained example of the types of the pornography that the appellant was interested in (in respect of which no direction was given); and 2.4.1 in the alternative, to the extent that the pornography conversation did not amount to discreditable conduct, a miscarriage of justice was occasioned by the trial judge’s failure to appropriately direct the jury regarding the permissible and impermissible uses of the evidence. 3. A miscarriage of justice was occasioned by the trial judge’s directions regarding the use that could be made of prior inconsistent statements made by the complainant, in that the trial judge failed to direct the jury that the inconsistent statements were relevant to their evaluation of the credibility of the complainant’s evidence in addition to the complainant’s reliability (summing up p 7). 4. A miscarriage of justice was occasioned by the trial judge’s failure to provide any direction to the jury on the topic of the evidence volunteered by the complainant in re-examination that she had told someone about the appellant’s alleged offending, where such evidence did not amount to evidence of initial complaint pursuant to s 34M of the Evidence Act 1929 (SA). -- 6 of 19 -- [2026] SASCA 69 The Court 5 Ground 1 – Admissibility of the underpants photograph 26 This ground complains that the evidence of the appellant sending the complainant the underpants photograph was evidence tending to suggest that the appellant had engaged in discreditable conduct. The appellant contends that the trial judge erred by admitting the evidence for a propensity purpose under s 34P(2)(b) of the Evidence Act 1929 (SA) (‘Evidence Act’), or in the alternative, even if the ruling was correct at the time of its admission, the vagaries in the evidence as to the timing of the photograph being sent meant its admission was productive of a miscarriage of justice. 27 The complainant gave evidence that she received the underpants photograph after the charged offence (allegedly committed on 6 July 2019) and by the end of 2020. She said that she did not receive the photograph in 2021, and indeed had “blocked” the appellant on social media by the end of 2021. She also said that she did not speak to the appellant for about one year before she reported the allegations to police in August 2022. Accordingly, the complainant’s evidence was to the effect that she received the underpants photograph during a period when they were still working together at Bunnings (and within 18 months after the charged offence). 28 The prosecution sought to lead the evidence for both propensity and non-propensity purposes. As to the propensity purpose, under s 34P(2)(b) of the Evidence Act, the prosecution relied on the evidence to show that “the accused had a sexual interest in [the complainant] and a tendency to act upon it as alleged” and as “a piece of circumstantial evidence that makes it more likely, or that the accused … engage[d] in the conduct the subject of [the charged offence]”. 29 Prior to the commencement of the trial, defence counsel did not object to the evidence being admissible under s 34P(2)(a) for a non-propensity purpose, but challenged the admissibility of the evidence under s 34P(2)(b). It was submitted that the evidence did not have strong probative value in proof of the contested issue (namely, whether the prosecution had proved the commission of the act of fellatio on 6 July 2019); and that the permissible use of the evidence could not be kept sufficiently separate and distinct from the impermissible use (“bad person reasoning”) to remove any appreciable risk of the evidence being used for that purpose as required under s 34P(3). 30 The trial judge admitted the underpants photograph under both ss 34P(2)(a) and 34P(2)(b). His Honour considered that the evidence was of strong probative value in proving the appellant’s sexual interest in the complainant, and his willingness to act upon it as of July 2019. Further, his Honour considered this specific propensity was of strong probative value in proving that the alleged sexual act took place. -- 7 of 19 -- [2026] SASCA 69 The Court 6 31 However, the trial judge in his reasons for admitting the evidence (published after the conclusion of the trial), erroneously referred to the underpants photograph as having been sent before the charged offending. 32 Under this ground of appeal, the appellant contends that the evidence of the underpants photograph did not possess strong probative value in support of any issue at trial as a result of the combination of the following matters: • the complainant could not say how long after the charged offending this occurred; • the conduct occurred after the charged conduct (possibly by over two years or more); • the conduct may well have occurred after the complainant was aged 17 and over the age of consent; and • the nature of the conduct was dissimilar in nature and gravity to the charged offending. 33 The appellant contends that the evidence of the underpants photograph was inadmissible for a propensity purpose and the trial judge’s ruling was an error of law or, if correct at the commencement of the trial, was by the conclusion of the evidence, ultimately productive of a miscarriage of justice. 34 There was no suggestion at trial (nor on this appeal), that the evidence of the underpants photograph did not engage s 34P as constituting evidence tending to show that the appellant had engaged in discreditable conduct. 35 In order for the evidence to be admissible for a propensity use under s 34P(2)(b), it is necessary for the evidence to not only have a probative value that outweighs any prejudicial effect it may have on the defendant (and meet the threshold requirements of s 34P(2)(a)), but the evidence is also required to have “strong probative value” having regard to the issues arising at trial.1 36 The analysis under s 34P(2)(b) requires a consideration of first, the capacity for the evidence to support the propensity relied upon; and secondly, the capacity for that propensity to be probative of the charged conduct or fact in issue.2 In this case, the evidence of the underpants photograph was relied on to support the appellant’s sexual interest in the complainant and his willingness to act upon it (as of July 2019) which in turn was relevant to prove the issue in dispute, namely 1 Potter (a pseudonym) v The King [2024] SASCA 108 at [82] (S Doyle and David JJA, Kourakis CJ agreeing). 2 Potter (a pseudonym) v The King [2024] SASCA 108 at [86] referring to Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ), [89]-[94] (Gageler J); McPhillamy v The Queen (2018) 92 ALJR 1045 at [26] (Kiefel CJ, Bell, Keane and Nettle JJ); TL v The King (2022) 275 CLR 83 at [31] (The Court). -- 8 of 19 -- [2026] SASCA 69 The Court 7 whether the prosecution had proved that the alleged sexual act of fellatio took place. 37 The admission of evidence of a sexual interest and willingness to act upon it in a trial involving a single complainant was considered by the High Court in R v Dennis Bauer (a pseudonym) (‘Bauer’):3 Henceforth, it should be understood that a complainant’s evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes. (citations omitted) 38 The High Court in Bauer also observed:4 … in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. … And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents. 39 Where the issue in dispute is whether a defendant committed the alleged sexual act, there need not be any striking pattern or similarity between incidents for the evidence to have the requisite probative value. The probative force of the evidence lies in its ability to show the defendant’s sexual interest in the complainant which may render it more likely that the defendant has acted upon that interest to commit a sexual offence against the complainant. 40 In applying these principles to the evidence of the underpants photograph, when considered in the context of the other evidence of sexualised behaviour towards the complainant, we are satisfied that the evidence of the underpants photograph has strong probative value in support of the appellant’s ongoing sexual interest in the complainant throughout the period he knew her, and his willingness to act upon it. This specific propensity is in turn strongly probative of the central issue in this case being whether the appellant caused the complainant to engage in the act of fellatio. The other evidence of discreditable conduct includes: 3 R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at [48] (The Court). 4 R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at [60] (The Court). -- 9 of 19 -- [2026] SASCA 69 The Court 8 • the appellant looking down the complainant’s top on occasions before and after the offence; • the other sexualised acts occurring on the day of the offence (such as touching the complainant’s right breast); and • the occasion on which the appellant masturbated in his vehicle in the Bunnings carpark. 41 It is those acts considered collectively rather than in isolation, which support the appellant’s specific propensity, or sexual interest in the complainant and his preparedness to act upon it by engaging in sexualised behaviour towards her. The appellant’s specific propensity has strong probative force in support of a fact in issue, namely whether the charged sexual act in fact occurred. 42 The appellant contends that the probative value of the underpants photograph is diminished by the fact it was sent well after the alleged offending, and possibly at a time when the complainant was no longer a child. In considering this contention, two matters need to be borne in mind. 43 First, on the complainant’s evidence, the photograph was sent within 18 months after the charged offence; and therefore, the gap between the charged offence and the appellant sending the underpants photograph is more limited than that asserted by the appellant. Further, this was not the only alleged uncharged act of sexual behaviour but just one aspect of a body of evidence of alleged sexualised behaviour towards the complainant after the charged offence. It was one aspect of a series of sexualised acts which was capable of showing the appellant’s ongoing sexual attraction to the complainant, which rendered it more likely he held that sexual attraction as of July 2019. 44 Secondly, while it is to be accepted that there is a qualitative difference between an attraction to a person who is an adult as opposed to when they were a child,5 this is less marked in the circumstances of this case. The alleged offence was committed when the complainant was 16 years old, and the underpants photograph was likely sent at a time when the complainant was still aged 16 years (and still a child) or having turned 17 years old (in April 2020). Furthermore, and in any event, the relevance of the evidence does not lie in its support for the appellant’s sexual interest in children generally, but rather, in its support for the appellant’s specific sexual interest in the complainant and willingness to act upon it over much of the period he knew her, and worked with her. 45 It may be accepted that the probative force of uncharged sexualised conduct may diminish the further away in time the conduct is committed from the charged act. However, in the present matter, the evidence of the underpants photograph when considered with all the other evidence of uncharged sexualised behaviour, 5 Brant v The King (2023) 143 SASR 166 at [28] (The Court). -- 10 of 19 -- [2026] SASCA 69 The Court 9 and indeed the evidence of the charged offence, revealed a continuity of sexualised behaviour by the appellant towards the complainant throughout a large part of their association. The evidence that the appellant continued to engage in sexualised behaviour after the day of the charged offence made it more likely that he had a sexual interest in the complainant at the time of the charged offence, and had a preparedness to act upon that sexual interest. 46 As to the submission that the nature of the sexualised behaviour in the underpants photograph was not of the same type as the charged act of fellatio, this consideration was largely irrelevant in the circumstances of this case. The evidence of a defendant’s specific sexual attraction in a particular complainant may encapsulate various acts of sexualised behaviour. The force of the evidence lies in its capacity to show the appellant’s ongoing sexual interest in the complainant, and his preparedness to act upon it, which made it more likely that he was sexually interested in the complainant and willing to act upon that sexual attraction at the time of the charged offence. 47 For those reasons, although the trial judge appears to have misapprehended the effect of the evidence as to when the underpants photograph was sent, there was no error by his Honour in admitting the evidence of the underpants photograph pursuant to s 34P(2)(b) for a propensity use and further, its admission was not productive of a miscarriage of justice. 48 We dismiss this ground of appeal. Ground 2 – Directions as to the use of discreditable conduct evidence 49 Under this ground of appeal, the appellant complains that the trial judge’s directions as to the permissible use of the evidence of discreditable conduct under s 34P(2)(a) were inadequate and failed to comply with s 34R of the Evidence Act. 50 The trial judge directed the jury as to the permissible uses under s 34P(2)(a) in the following terms: The second way you may use the evidence is to help you understand and assess the direct evidence of [the complainant] of the alleged sexual act that is the basis of the charge. In particular, you can use the evidence to show that [the complainant] is not saying the offending occurred out of the blue. Without this evidence, you may think it implausible that [the appellant] committed the alleged act of oral sex on 6 July 2019 with no lead-up. It may also help explain why [the complainant] reacted as she says she did. Again, without this evidence, you may think it implausible that after the alleged oral sex in the car, [the complainant] basically outwardly behaved as if nothing unusual had happened. Finally, it might help show why [the appellant] felt able to act as he did on that occasion on 6 July and did not fear that she would report him, and allowed him to ask her to keep it a secret and expect that she would. 51 During the initial part of his summing up, the trial judge overlooked including in his directions the evidence of the appellant’s alleged masturbation in the Bunnings carpark. However, he later explicitly instructed the jury that his earlier directions as to discreditable conduct also applied to this evidence. -- 11 of 19 -- [2026] SASCA 69 The Court 10 Ground 2.1 – the underpants photograph 52 The appellant contends that none of the permissible uses identified by the trial judge applied to the underpants photograph as they were in fact only relevant to those uncharged acts which occurred before the charged offending, and not to the alleged sexualised behaviour which occurred after the charged offence. The appellant contends that it follows that the jury were not in fact adequately directed as to the permissible uses of the underpants photograph for a non-propensity purpose under s 34P(2)(a). 53 It is true that several of the permissible uses of the evidence of discreditable conduct outlined by the trial judge were not applicable to the underpants photograph. The evidence was not capable of showing that the offending occurred out of the blue. Nor was it capable of explaining why the complainant acted as she says she did on the day of the charged offence; nor why the appellant was emboldened to commit the charged offence. 54 That may be so, but in addition to being relevant for a propensity purpose, the evidence was also capable of informing the complete nature of their relationship and why the complainant continued to socialise and interact positively with the appellant for some time after the charged offence. The evidence could also provide the jury with an explanation to why the appellant may have felt confident that she would continue to remain silent (as he requested) and not inform his partner, their employer or report the allegations to the police which might otherwise appear unlikely. The evidence was capable of being understood as indicative of, even if not productive of, the appellant’s confidence or attitude towards the complainant. 55 While it would have been preferable if the trial judge had given separate and distinct directions in respect of the permissible use of the evidence which postdated the alleged offence, including the underpants photograph, we are satisfied the jury would have understood the part of his Honour’s collective directions which did apply (and those which did not apply) to this evidence. We are also satisfied that a jury would not reason that the appellant or complainant’s conduct as at the time of the offence would be influenced by sexual activity which had not yet occurred. It is also noteworthy that the appellant’s counsel did not seek a re-direction nor raise any issues about the appropriateness or otherwise of the impugned directions as to the permissible use of the evidence. While this did not relieve his Honour of his requirement to give a direction in conformity with s 34R, it does provide an indication of the adequacy of the directions that were given. 56 We reject this aspect of this ground of appeal. -- 12 of 19 -- [2026] SASCA 69 The Court 11 Ground 2.2 - the portion of the phone conversation between the complainant and the appellant on 15 August 2022 during which the pair spoke about the complainant’s bras 57 As mentioned earlier, the prosecution tendered a recording made by the complainant of a telephone conversation she had with the appellant on 15 August 2022, about three years after the alleged offending. At the time of the telephone conversation, the complainant was 19 years of age. The recording was received without objection. During the recorded telephone conversation, the complainant told the appellant, “I also got rid of that red bra …” to which he responded, “I was a big fan of the green one to be honest from memory”. The appellant then asked the complainant if she had deleted her Instagram account and said, “[w]ell didn’t you have a photo of you in your green one on Insta and your red one on Insta?” to which the complainant responded “[o]h yeah I think it’s still on my private Instagram …”. 58 The prosecution relied on the complainant’s evidence as to the appellant looking down her top as evidence of the appellant’s sexual interest in her, and willingness to act upon it. This part of the telephone conversation was adduced as an implied admission to that uncharged conduct. The prosecution did not rely on this part of the conversation, of itself, as constituting evidence of the appellant’s sexual interest in the complainant. 59 During the trial, the prosecutor explicitly submitted that the telephone conversation and the uncharged conduct should be considered together. It was never suggested that the appellant’s comments in the telephone conversation of themselves amounted to evidence of the appellant’s sexual interest in the complainant. 60 As mentioned earlier, the directions given by the trial judge were cast in general terms applicable to all the categories of evidence of discreditable conduct including “ … the conversation in the phone call on 15 August 2022, talking about being a big fan of her green bras”. 61 The appellant contends that the trial judge erred by including this piece of evidence in his directions as to the evidence of discreditable conduct. Whether or not the evidence of this part of the telephone conversation alone amounted to discreditable conduct, this was not the use sought to be made of the conversation. The relevance of the evidence was an implied admission by the appellant to looking down the complainant’s top at her bra on occasions proximate to the charged offence. It was incumbent on his Honour to direct the jury as to this use of the evidence. However, the directions as to the permissible use of the collective evidence of discreditable conduct did not encapsulate this specific use of this part of the telephone conversation. 62 At no stage did the trial judge direct the jury that this part of the telephone conversation was a piece of circumstantial evidence in support of the uncharged offending of the appellant looking down the complainant’s top. Nor did his Honour -- 13 of 19 -- [2026] SASCA 69 The Court 12 direct the jury that when considering whether this evidence constituted an implied admission, they needed to have regard to the defence explanation for the comments, namely that he had seen photographs of the complainant’s bras in different colours (red and green) on her Instagram account. The complainant gave evidence that she would post pictures on Instagram of herself in her bra, and the appellant referred to this fact in the telephone call. Further, the complainant appears to have accepted during the call that she had posted photographs of herself wearing both coloured bras on her Instagram account. On the defence case, this part of the conversation provided a plausible alternative explanation as to why the appellant would have knowledge of the colour of the complainant’s bras. 63 Further, and consistent with the prosecution position at trial, the jury were not instructed that the telephone conversation which took place in August 2022, of itself, was not evidence of the appellant’s sexual interest in the complainant and a willingness to act upon his sexual interest at the time of the alleged offending in 2019. 64 It is true that the trial judge did proceed to give further directions as to the use of the telephone conversation generally, including comments relating to the complainant’s bras. His Honour specifically referred to the “red bra/green bra” conduct with the relevant transcript line reference, and instructed the jury in the following terms: Those passages, [the prosecutor] says point to references, not direct but implied, to an acknowledgment of oral sex at that reserve on 6 July. I want to direct you very carefully about that prosecution submission which was properly made. I am not saying it should not have been made but I just want to make sure that you use it properly. I direct you that you must be very careful in examining these identified passages before using them against [the appellant]. It is a very long call. You will take into account his manner of dealing with people, perhaps as [CB] told you about, in considering this phone call as well. If there is a reasonable possibility that those identified passages are not concerning, in general or specifically, towards the 6 July 2019 allegation of oral sex made by [the complainant], then you cannot use them against him. In other words, you must be satisfied beyond reasonable doubt and exclude all other explanations that are reasonably possible beyond reasonable doubt, that [the appellant] is referring at those passages to that occasion as alleged by [the complainant]. … [The prosecutor] says these references are clear and when properly considered, they are clear and point, beyond reasonable doubt, to the sexual crime [the complainant] alleges on 6 July 2019. [Defence counsel] says if you take the view that the identified passages does refer to the past, it is general only and does not allude or refer specifically to 6 July 2019 - in other words, you cannot be satisfied of that beyond reasonable doubt. If that is so, you cannot use it against him. -- 14 of 19 -- [2026] SASCA 69 The Court 13 65 However, these directions in fact contained a misdirection. The relevant part of the telephone conversation was not capable of amounting to an implied admission to the charged act of fellatio. It was only capable of amounting to an implied admission to the uncharged conduct of the appellant looking down the complainant’s top at her bra which was in turn relevant to prove the appellant’s sexual interest in the complainant and preparedness to act upon it. The appellant’s propensity was a piece of circumstantial evidence in proof of the charged offence. Accordingly, the trial judge’s directions amounted to a misdirection. 66 For those reasons, we consider that the trial judge’s directions as to this aspect of the telephone conversation were erroneous. 67 The respondent accepts that the directions identified a use for the evidence which had not been relied on and was not properly available. However, the respondent contends that because the complainant’s account of the charged offending did not suggest that the appellant would on that occasion see the complainant’s bra, the jury would not treat the evidence as directly supporting the charged offence. That may, or may not be so, but the evidence had the capacity to be relied on to the prejudice of the appellant and given the confusing nature of the directions, the misdirection cannot be said to be immaterial. 68 There was no submission that this was an appropriate case to apply the proviso. 69 Accordingly, we grant permission to appeal and allow the appeal on this aspect of Ground 2. Ground 2.3 - Masturbation in the complainant’s presence 70 Under this limb, the appellant complains that the trial judge failed to properly direct the jury in relation to the allegation of the appellant masturbating in the complainant’s presence. 71 As mentioned earlier, the trial judge did not initially include this conduct in his direction on the evidence of discreditable conduct but later appears to have realised this omission and instructed the jury that “ … if I did not specifically put it in that topic and if I have missed it somehow, can you put that as topic No.5 for the uncharged sexual behaviour.” 72 Similar to his earlier submissions in relation to the underpants photograph, the appellant submits that in circumstances where this incident of masturbation occurred after the charged offence, none of the permissible uses articulated by the trial judge applied to the evidence. Accordingly, it is submitted that the jury were not given any relevant directions about the permissible use of this evidence. Further, the appellant contends that his Honour’s collective directions carried the risk that the jury would place undue weight on the impugned evidence and use it in ways that were simply not open. -- 15 of 19 -- [2026] SASCA 69 The Court 14 73 In contrast with the evidence of the underpants photograph, there is no assertion that the evidence of masturbation in the complainant’s presence was inadmissible. That is an appropriate concession. The evidence of the occasion of masturbation which occurred after the charged offence was admissible for non-propensity purposes. The evidence was capable of informing the jury of the complete nature of the relationship and why the complainant may have continued to associate with the appellant in a friendly manner after the charged offence. It was also capable of informing why the appellant may have felt confident that the complainant would continue to remain silent (as he requested) and not inform his partner or report the allegations to the police. 74 Again, it may be accepted that the other uses of the evidence of discreditable conduct outlined by the trial judge in his collective directions were not applicable to this evidence. However, we are satisfied that the jury would have understood the part of the directions which did apply (and those which did not apply) to this evidence and the jury would not have reasoned impermissibly that the appellant or complainant’s conduct as at the time of the offence would be influenced by sexual activity occurring after the offence. 75 It is also noteworthy that the appellant’s counsel did not seek a re-direction nor raise any issues about the appropriateness or otherwise of the impugned directions as to the permissible use of the evidence. Again, while this did not relieve the trial judge of his requirement to give a direction in conformity with s 34R, it does provide an indication of the adequacy of the directions that were given. 76 For those reasons, we reject this aspect of this ground of appeal. Ground 2.4 – The appellant masturbating to “every kind of porn there is” 77 The appellant contends that the evidence of the appellant masturbating to “every kind of porn there is” constituted evidence tending to suggest the appellant had engaged in discreditable conduct. As such, the trial judge was required to give the jury directions as to the permissible and impermissible uses of this evidence pursuant to s 34R. 78 During the telephone conversation on 15 August 2022, the appellant stated, “ … I think I’ve wanked to every kind of porn that there is now. I think I am out of porn” and “I am more into like stuff, just the stuff … like cream pies and that sort of shit. Like cumming on tits. That sort of stuff.” The appellant contends that this part of the telephone conversation engaged s 34P. 79 The question of whether evidence in any given case is in fact evidence of “discreditable conduct” for the purposes of s 34P will be a question of fact and degree in the circumstances of the case. As Doyle JA observed in Sadler v The King:6 6 Sadler v The King (2023) 144 SASR 153 at [27] (Doyle JA). -- 16 of 19 -- [2026] SASCA 69 The Court 15 … Speaking generally, and without tending to be definitive, evidence of discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible “bad person” reasoning. 80 While it may be accepted that the relevant statements made by the appellant did not expressly confine the types of pornography to adult pornography, there was no explicit or implicit suggestion by the appellant that he was discussing child pornography. To put the relevant part of the conservation in its complete context, the appellant’s comments arose out of a discussion about his sexual relationship with his then adult partner. By the time of this conversation, the appellant was also an adult. There was nothing in the latter parts of the conversation which implied that the appellant was interested in child pornography. 81 The appellant relies on the authority of R v Golubovic (‘Golubovic’).7 In that case, there was evidence which was suggestive of the presence of generic (adult) pornography on a computer. Golubovic involved allegations of the possession of child pornography and concerned the trial judge’s failure to give a direction about the permissible and impermissible uses of the evidence of file names suggestive of adult pornography on a computer. The Court held that in the absence of such directions, there was a risk of the jury reasoning that the generic pornography was morally reprehensible and by virtue of bad person reasoning, it was likely the appellant was in possession of the charged child pornography. 82 The present case can be factually distinguished from Golubovic for the following reasons: the appellant’s comments about pornography were made to the complainant when she was an adult; they were made in the context of his discussions about his adult sexual relationship with his then partner; and there is no other evidence of the appellant having accessed pornography nor any reference to the appellant accessing child pornography. 83 It is also relevant to observe that the prosecution did not seek to lead this part of the conversation. Rather, defence counsel requested the prosecution adduce the whole of the telephone conversation to demonstrate the positive nature of the relationship between the appellant and the complainant at the time of the telephone conversation. Consequently, the prosecution did not rely on this part of the conversation to support the appellant’s sexual interest in the complainant or indeed, place any emphasis on it all. 84 For those reasons, we are satisfied that this part of the recorded telephone conversation was not evidence tending to show the appellant had engaged in discreditable conduct and did not engage s 34P. 7 R v Golubovic [2016] SASCFC 144. -- 17 of 19 -- [2026] SASCA 69 The Court 16 85 In addition, and in any event, prior to the telephone call being played to the jury, the trial judge instructed the jury in the following terms: … The phone call is lengthy and covers a lot of subjects, including some which you might find not to your moral liking. If that is so, you have to put that absolutely behind you. We are only here to decide whether the charge is proved beyond reasonable doubt or not and any comments in the phone call involving [the complainant] and [the appellant] that doesn’t accord with your lifestyle values or the way you like to think or try and conduct yourself, it doesn’t matter, because you've got a different role to any other member of the public. You are part of the court and you are here to decide if the charge is established beyond reasonable doubt or not. So that has to take a very big step backwards to almost being non-existent. In fact, it must be non-existent, any lines of thought about moral matters. We are only here to see it and the evidence is relevant and will be no doubt subject of submissions, and the evidence is relevant to issues at the trial, which is all we’re focused on. 86 This direction was sufficient to remove any risk of a miscarriage of justice by reason of the admission of the evidence. 87 We reject this ground of appeal. Grounds 3 and 4 88 Having found that the error complained of in appeal Ground 2.2 has been made out, and the appeal should be allowed, it is not necessary to reach a final conclusion as to the appropriate disposition of Grounds 3 and 4. However, we make the following observations. 89 Ground 3 complains that when directing the jury about the use that may be made of evidence of a prior inconsistent statement, and having explained that it is what is said in court rather than out of court that constitutes evidence of the underlying events, the trial judge said that: … If an out-of-court statement comes into court, it is done for the purpose that I have just given, testing the evidence and for you to gauge the explanation, if you believe an inconsistency exists between an out-of-court statement and the in-court statement, as to how reliable that witness is. 90 Shortly before this direction, the trial judge gave an example of a witness being questioned about an inconsistent out-of-court statement for the purpose of testing the strength and reliability of their sworn evidence. The appellant’s complaint is that these directions wrongly conveyed that a prior inconsistent statement is relevant only to the witness’ reliability as distinct from their credibility. 91 Whilst the trial judge had earlier referred to the need to consider both the reliability and credibility of a witness’ evidence (and in the latter context emphasised the need to consider whether the witness was honestly trying to tell the truth), we do not consider that, in the context of the discussion of prior inconsistent statements, the jury would have understood the reference to the strength and reliability of evidence as excluding consideration of its honesty. -- 18 of 19 -- [2026] SASCA 69 The Court 17 92 It was the complainant’s credibility, rather than her reliability, that was the battleground in this trial. It would be very surprising if the jury was under any misapprehension about that. Whilst the word reliability can be, and earlier in the summing up was, used in contradistinction to credibility, it also has a broader meaning that encompasses any reason for not accepting evidence as accurate. In our view, that broader meaning was the meaning conveyed in the particular passage the subject of complaint. That no complaint was made about the direction at the time tends to confirm that proposition. 93 Ground 4 concerns the absence of any direction about the limited use that could be made of evidence given in re-examination by the complainant to the effect that she had told her then boyfriend about “what happened to me by [the appellant]”. In context, this was a reference, albeit in general terms, to the appellant having engaged in inappropriate sexual behaviour with or towards her. Shortly after the evidence was given, it was clarified that it was not lead as complaint evidence pursuant to s 34M of the Evidence Act, and counsel for the appellant submitted that it comprised inadmissible hearsay evidence. 94 On the hearing of the appeal, counsel for the appellant accepted that it had a limited non-hearsay use in explaining the context in which the complainant had come to “block” the appellant on social media. The complaint was that the trial judge should have directed the jury that they could not rely on the evidence for the truth of the assertion made out of court. The respondent accepts that, being an out-of-court statement, admitted for a limited forensic purpose, it was not available to be used by the jury as evidence of the truth of the assertion. The respondent contends, however, that earlier directions, given in the context of prior inconsistent statements, adequately warned against reliance upon out-of-court statements for their truth. 95 There is force in the appellant’s complaint that a warning against reliance on the truth of a prior inconsistent statement did not give the jury sufficient guidance in relation to what was, in effect, a prior consistent statement, but whether in all the circumstances the absence of a specific direction occasioned a miscarriage of justice need not be resolved. It suffices to observe that it would have been preferable for an explicit direction to be given about the limits of the evidence. Orders: 1. We grant permission to appeal on Grounds 1 and 2, and allow the appeal on Ground 2.2. 2. We set aside the conviction, and order a re-trial. -- 19 of 19 --