RW v COMMISSIONER OF POLICE [2026] SASCA 3

On Appeal from YOUTH COURT OF SOUTH AUSTRALIA (MAGISTRATE FOTHERINGHAM) [2025] SAYC 1 Appellant: RW Counsel: MR G LANG - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: COMMISSIONER OF POLICE Counsel: MR C WEIR WITH MR J SWIFT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/11/2025 File No/s: SCCRM-25-005327 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. RW v POLICE [2026] SASCA 3 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Stanley) 5 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS Appeal against a finding of guilt. On 22 May 2023, the complainant was staying at a house occupied by her grandparents, with the appellant. The complainant was in a room with the appellant. The appellant covered her eyes with a beanie and his hand. The complainant felt what she described as the appellant’s ‘private parts’ or ‘his thing’ touching her mouth, lips and teeth, ‘a tiny bit’. She removed the beanie and saw his penis in her face. On 29 January 2025, a magistrate in the Youth Court found the appellant guilty of one count of having sexual intercourse with a person under 14 years of age, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant appeals by right against the magistrate’s finding of guilt on three grounds: 1. The magistrate’s finding of guilt was unreasonable and/or cannot be supported having regard to the evidence. 2. The magistrate erred in failing to properly or adequately consider alternative hypotheses consistent with innocence on the charge of unlawful sexual intercourse. -- 1 of 14 -- 3. In the alternative to Ground 2, the magistrate erred in rejecting any such hypothesis consistent with innocence arising on the evidence accepted by him. Held (by the Court), dismissing the appeal: 1. On the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. 2. Having regard to the defence case, the magistrate sufficiently addressed the alternative hypothesis, that it was something other than the appellant’s penis that touched the complainant’s mouth. Criminal Law Consolidation Act 1935 (SA) s 49(1); Youth Court Act 1993 (SA) s 22(2)(b)(ii); Evidence Act 1929 (SA) s 13BA, referred to. M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Alzuain v The King [2025] SASCA 67; R v Baden-Clay (2016) 258 CLR 308, considered. -- 2 of 14 -- RW v POLICE [2026] SASCA 3 Court of Appeal – Criminal: Bleby, David and Stanley JJA 1 THE COURT: On 29 January 2025, a magistrate in the Youth Court found the appellant guilty of one count of having sexual intercourse with a person under 14 years of age, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).1 The appellant has appealed against that finding of guilt pursuant to s 22(2)(b)(ii) of the Youth Court Act 1993 (SA). The appeal is by right. The grounds of appeal complain that: 1. the finding of guilt by the magistrate was unreasonable and/or cannot be supported having regard to the evidence; 2. the magistrate erred in failing to properly or adequately consider alternative hypotheses consistent with innocence; and 3. in the alternative to Ground 2, the magistrate erred in rejecting any such hypothesis consistent with innocence arising on the evidence accepted by him. The prosecution case 2 On 22 May 2023, the appellant and the complainant were staying at a house occupied by the complainant’s grandfather in Mimili, an Aboriginal community in the APY Lands. The appellant was 14 years old. The complainant was nine years old. 3 The prosecution tendered, by consent, a Statement of Agreed Facts, an affidavit of Detective Brevet Sergeant Paul O’Donnell (exhibiting photographs of the house and the appellant’s record of interview), an affidavit of Senior Constable Lynette Gibson (exhibiting the transcript of the complainant’s prescribed record of interview), a statement of Louise Anne Harkin attaching a forensic biology report and a video recording of the complainant’s prescribed record of interview. 4 At about 2:00am on 23 May 2023, Senior Constables Sampson and Cochrane were recalled to duty in respect of an alleged sexual assault of a young girl in Mimili. When Sampson arrived at the Police Station, the appellant was waiting at the front door. Sampson let the appellant in and left him with Cochrane before attending at the house of the complainant’s grandfather, WH. At the house, he spoke to WH, the complainant’s aunt, LKH, and the complainant. At 2:45am, Cochrane arrested the appellant and provided him with his arrest rights. 5 At about 10:40am on 23 May 2023, the appellant was interviewed, with his mother present. He was granted bail later that day. 1 Police v RW [2025] SAYC 1. -- 3 of 14 -- [2026] SASCA 3 The Court 2 6 On 31 May 2023, Gibson undertook a prescribed record of interview with the complainant, according to s 13BA of the Evidence Act 1929 (SA). This was admitted as the complainant’s evidence in chief. The Court gave leave for defence counsel to cross-examine the complainant. The complainant’s evidence 7 The complainant gave evidence that on 22 May 2023, she was staying at her grandparents’ house with the appellant. The complainant’s aunty and sister were in the lounge room. Her grandfather was in his own room. The appellant invited the complainant to his room. The complainant went into the room where the appellant was residing by himself and playing music. There was no one else in the room. 8 The appellant told the complainant to close her eyes. He placed a Taki (a type of chip) into her mouth. The Taki was spicy and the complainant left the room to get a drink of water. When she returned to the room, the appellant asked her to kneel on the ground. She started to do so but changed her mind and refused. She sat on a chair. The appellant told her to close her eyes. He put a pink beanie and his hand over her eyes. He asked her to open her mouth. The complainant thought he was going to put another Taki into her mouth. The appellant said, ‘don’t bite’. The complainant felt what she described as the appellant’s ‘private parts’ or ‘his thing’ touching her mouth, lips and teeth, ‘a tiny bit’. 9 The complainant initially thought the object touching her mouth was a squishy ball. She could not see the appellant’s penis given the beanie and the appellant’s hand were covering her eyes. 10 The complainant immediately removed the beanie and saw the appellant’s erect penis. She described seeing the appellant’s ‘private’, ‘straight and pointing in [her] face’. A handwritten note on the transcript of the interview identifies that she indicated how the appellant’s penis appeared by pointing her finger out straight. 11 The complainant kicked the appellant away. The appellant pulled up his pants. He told the complainant that he had put his two thumbs in her mouth. The complainant replied that he did not have any spit on his hand. He said that he had wiped it off on his shorts. The complainant did not believe him. 12 The appellant asked the complainant not to tell anyone. He said, ‘if you tell them I will die’. 13 The complainant lied, saying that she would not tell anyone so she could get away from the appellant. She attempted to leave the bedroom. The appellant pushed her back. The complainant felt scared. She started to chuck things and shook a table to alert others to come to the room and let her out. The appellant let her go. -- 4 of 14 -- [2026] SASCA 3 The Court 3 14 Once the complainant left the room, she ran to her grandfather, crying. She described that she was ‘crying so bad that [she] couldn’t talk properly’. Her grandfather asked her to ‘talk properly’. The complainant eventually told her grandfather that the appellant had pulled down his shorts and put his ‘thing’ in her mouth. 15 During cross-examination, the complainant maintained her account, but for some minor discrepancies. She acknowledged that she could not see when the beanie and the appellant’s hand were covering her eyes. She did not see the appellant pull down his shorts or what he put in her mouth. Given her eyes were covered, she conceded that it could have been the appellant’s hands that touched her teeth and lips. However, given he told her, ‘don’t bite’, and that she saw his penis in front of her face, she thought that it was his penis. 16 In cross-examination, the complainant said that while the beanie was still over her eyes, she asked the appellant, ‘what is that?’ The appellant said, ‘try and guess what it was’. Counsel asked the complainant if the beanie was still over her eyes. The following exchange occurred: A. No, that’s – he took it off me and then I was looking if, like anything was, like what was in my mouth. Q. So, he took the beanie off your eyes. A. Yes. Q. Did you keep guessing. A. Yes, but that’s when he put the beanie on top of my eyes again and then he said, ‘do you want to see what it was?’. I said ‘Yes’ because I wasn’t sure what it was. Q. And, that was when you still had the beanie over your eyes, the third time. A. Yes. Q. And, you said, ‘yes, I’d like to know’. A. Yes. Q. Did he tell you what it was. A. That’s when he took the beanie off my head. 17 This passage of cross-examination indicates that there was an interim moment, after the complainant felt the object in her mouth, when the appellant removed the beanie and then replaced it, but without the complainant seeing the appellant’s trousers down and erect penis pointing at her face. The complainant’s evidence in cross-examination was not clear about what, if anything, she was able to see in that interim moment, but she did not see the appellant’s penis at that stage. The occurrence of this interim moment was not apparent from the prescribed -- 5 of 14 -- [2026] SASCA 3 The Court 4 interview. Its potential significance lies in the breaking of the immediacy of the complainant seeing the appellant’s erect penis after feeling the object in her mouth. 18 The complainant was recalled after WH, her grandfather, gave evidence. She said that after she told WH what happened, WH and the appellant were standing in the lounge room. WH said to the appellant, ‘What happened, what did you do?’ and ‘Why is this girl crying?’ The appellant said that he didn’t do anything. WH rang the complainant’s aunt, LKH, who rushed over. The complainant told her that the appellant had put his ‘private’ in her mouth. Before LKH arrived, the appellant jumped on top of the roof. 19 When challenged again in cross-examination that it was not true that the appellant had done this, the complainant said that she knew he had put his ‘private’ in her mouth because when she took the beanie off, it was in front of her face, and this was after he had said, ‘don’t bite’. The evidence of WH 20 WH gave evidence that he was in his bedroom, speaking to his wife on the phone. The complainant ran into the room. She was screaming, crying, shaking and grabbing him. She was also spitting and holding her mouth. WH attempted to speak to her but could not make sense of what she was saying. 21 WH said that he went to the other room to ask the appellant what was happening. The appellant had already left the house. 22 WH’s daughter, LKH, then arrived and asked what was going on. She told WH that the appellant was on the roof of the Mimili medical clinic. He was swearing at WH, shouting his name and challenging him to come out for a fight. The appellant then ‘bolted’ to the police station, which was where his mother told him to go. The evidence of LKH 23 LKH is the aunt of the complainant. She is the appellant’s cousin and the daughter of WH. She worked at the Mimili medical clinic. 24 LKH gave evidence that on the night of 22 May 2023, she could hear noises outside her house. She walked outside to investigate. She saw the appellant on the roof of the clinic. He was kicking and trying to smash the roof. She asked him what was wrong and encouraged him to come down and talk to her. In cross-examination, LKH confirmed that he was facing WH’s house and screaming, asking WH to come out for a fight. 25 LKH returned to inside her house and asked her partner to look after the baby so she could determine what was going on. She returned to the clinic and again asked the appellant what was going on. He threw his mobile phone, which hit the edge of the roof. -- 6 of 14 -- [2026] SASCA 3 The Court 5 26 LKH asked another person, SF, to watch the appellant. She walked to WH’s house. She turned around and saw the appellant jump off the roof and take off towards the school. He climbed onto the roof of the school. 27 At the house, WH was holding the complainant. The complainant was crying and shaking. LKH attempted to calm her and asked what happened. The complainant said, ‘he put his thing, his thing in my mouth, his thing’. LKH understood that the complainant was referring to the appellant’s penis. 28 LKH called the police and the clinic. The police attended and talked to WH. The police took the complainant and LKH to the clinic. At the clinic, a nurse swabbed the complainant’s mouth. 29 LKH said that at the clinic, the complainant told her that she had been playing a game with the appellant. The game involved a beanie and a Taki. The beanie had been over her eyes. Later, the appellant had put the beanie back on and put his hands over her eyes. When she took the beanie off, she could see the appellant’s private parts in her face. She attempted to kick the appellant. The appellant blocked the door. He then said, ‘don’t tell, don’t tell, or they gonna kill me’. The complainant started making noises with the chair and the table so others in the house would hear her. 30 In cross-examination, LKH accepted that when the appellant was on the roof of the clinic, he was facing WH’s house, calling out WH’s name and challenging him to fight. She denied she had threatened the appellant while he was on the roof. She did not know if anyone else had threatened him. The forensic biology report 31 The forensic biology report of the complainant’s mouth swab and the appellant’s penile swab produced inconclusive results. The defence case 32 The appellant elected to give evidence. He said that on 22 May 2023, he was staying at WH’s house in Mimili, having travelled from a remote town about six hours north of Perth. He was in a bedroom by himself. He had talked to a friend, listened to music and played games on his mobile phone. While he was on the phone to his friend, the complainant came into his room for a few seconds and then left the room. She returned and remained for 15 to 20 minutes. The appellant and the complainant did not really talk. He told her twice to get out of the room in an aggressive manner, as he wanted to be alone. He could not remember if the complainant said anything, ran or walked out. His memory was that she just left. 33 About 10 seconds later, WH shoved the door open and asked the appellant, ‘what are you doing putting your wudgidi on her mouth’. ‘Wudgidi’ means ‘penis’. The appellant immediately replied, ‘what the fuck you talking about’. WH responded, ‘what the fuck are you doing’. -- 7 of 14 -- [2026] SASCA 3 The Court 6 34 WH told the appellant he was calling LKH. He left the room. The appellant walked behind, talking to him. He could not remember exactly what he said, only that he was ‘going off a bit’. WH told him to ‘fuck off to [LKH’s]’. At this stage, the appellant became mad and sad and walked out the front door of the house. His head became ‘real fuzzy’. 35 The appellant climbed onto the clinic roof. He screamed WH’s name. Whilst he was on the roof, he saw SF and LKH. He could not really remember whether they said or did anything to him while he was on the roof because his mind was all over the place. 36 The appellant jumped off the clinic roof and jumped onto the roof of the school building. He did this for his own safety as he heard others threatening him. He could not recall the details of the threats. He called his father and his friend. They both told him to go to the police station. 37 After about five minutes, the appellant climbed off the roof and walked to the police station. He wanted to tell the police what happened and his version of the events. 38 The appellant asked for his mum to be present at the police interview. His mum travelled from Alice Springs to be present. A lawyer from Aboriginal Legal Rights Movement was present on the phone for part of the interview. The lawyer provided him with some legal advice before the interview. The appellant exercised his right to silence based on the lawyer’s advice. 39 In his evidence in chief, the appellant denied putting his penis in the complainant’s mouth. He denied that he had showed his private parts to her. 40 In cross-examination, the appellant accepted that the complainant had come into his room but denied that he invited her to come in and eat some Takis or that they played a guessing game. He denied the entirety of her evidence, including that he put his penis in her mouth or that he showed her his penis. He also denied that he told her he put his thumbs in her mouth. He agreed that the complainant’s allegations had come out of nowhere. 41 The appellant said the complainant left his room upset due to the aggressive way he asked her to leave. However, she was not crying. The magistrate’s findings 42 The magistrate accepted the complainant’s evidence as honest and that the complainant used her best endeavours to assist the Court. He considered that she made appropriate concessions and corrected herself if she considered her initial statement to be incorrect. He did not think that she deviated substantially in evidence from her prescribed record of interview. -- 8 of 14 -- [2026] SASCA 3 The Court 7 43 The magistrate accepted that WH was trying to assist the Court and give truthful evidence, particularly regarding the demeanour of the complainant after the alleged incident. The one concern he had about WH’s evidence was that both the complainant and the appellant gave evidence that WH had confronted the appellant in the house before the appellant left. That was not the effect of WH’s evidence. However, WH’s account was not challenged in cross-examination. The magistrate accepted that WH did confront the appellant about the incident. 44 The magistrate accepted, in part, the defence contention that LKH had reconstructed or added to her evidence, particularly in relation to what the complainant told her at the clinic. He accepted that some of LKH’s evidence seemed to involve the repetition of details she became aware of later, observing that LKH did not refer to the beanie and Takis in her statement to police. Nonetheless, he considered that LKH was a truthful witness. He accepted her evidence of what occurred on her arrival at WH’s house, the complainant’s disclosure that the appellant ‘put his thing’ in her mouth and her evidence of the complainant’s demeanour. 45 The magistrate considered that the appellant’s evidence was evasive in some aspects and implausible in others. Notwithstanding the serious allegations that WH put to the appellant on the night, the appellant answered any questions in cross-examination about what occurred in the room with ‘I do not recall’. The magistrate considered that the appellant would have thought about the night in detail, particularly given his detailed evidence about what occurred after the alleged incident. 46 The magistrate concluded that the prosecution had established beyond reasonable doubt each element of the offence of having sexual intercourse with a person under 14 years. As to the element of having sexual intercourse, he explained his conclusion as follows:2 I am satisfied upon all the evidence that [the appellant] had sexual intercourse with the complainant by placing his penis on her lips and teeth because: 1. The complainant gave clear, honest and direct evidence of the events. I consider it is improbable that a nine-year old would lie in her very detailed description of the alleged offending given [in] both her prescribed interview and in cross-examination; 2. Whilst I accept that the complainant did not see [the appellant’s] penis touch her lips and mouth, I am satisfied that it is highly unlikely that a nine year-old girl would be able to provide the circumstantial evidence of [the appellant] saying “don’t bite it,” and a specifically detailed account about the feeling and appearance of [the appellant’s] penis. I also accept the complainant’s evidence of having seen [the appellant’s] erect penis immediately upon pulling off the beanie; 2 [2025] SAYC 1 at [117]-[119]. -- 9 of 14 -- [2026] SASCA 3 The Court 8 3. It is highly improbable that a nine-year-old would make up such a lie in such a short space of time, especially when she advised the other witnesses immediately after the incident was alleged to have occurred; 4. The evidence of the other prosecution witnesses as to the complainant’s level of distress immediately after the incident; and 5. The evidence of the other prosecution witnesses as to what they were told contemporaneously by the complainant immediately after the incident. I have considered the various criticisms of the complainant’s account individually and collectively. For the reasons I have set out earlier, the various arguments that have been put forward have not caused me to have doubts about the complainant’s evidence. I am satisfied beyond reasonable doubt that [the appellant] had sexual intercourse with the complainant. 47 The magistrate then gave his reasons for finding that the appellant intended to have sexual intercourse with the complainant, that the appellant’s conduct was voluntary, deliberate and unlawful and that the complainant was under 14 (which was an agreed fact). The appeal Whether the finding of guilt by the magistrate was unreasonable and/or cannot be supported having regard to the evidence (Ground 1) 48 The principles relating to a complaint of unreasonable verdict are well settled. The High Court explained the foundational principle in M v The Queen:3 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. 49 In Libke v The Queen, Hayne J explained that the relevant question is whether it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty, ‘which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.4 50 In Dansie v The Queen, the majority said:5 That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that 3 (1994) 181 CLR 487 at 493. 4 Libke v The Queen (2007) 230 CLR 559 at [113]; Pell v The Queen (2020) 268 CLR 123 at [44]–[45]. 5 Dansie v The Queen (2022) 274 CLR 651 at [8]. -- 10 of 14 -- [2026] SASCA 3 The Court 9 case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”. (Citations omitted.) 51 The majority confirmed that the same approach is to be taken by an appellate court in respect of an unreasonable verdict ground following a trial by judge alone:6 Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. (Emphasis added.) 52 Finally, in a circumstantial case, a given item of circumstantial evidence may, standing alone, fail to exclude an innocent explanation. However, items of circumstantial evidence are not to be looked at in a piecemeal fashion, at trial or on appeal.7 53 In R v Baden Clay, the High Court said:8 For an inference to be reasonable, it must “rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. (Citations omitted.) 6 Dansie v The Queen (2022) 274 CLR 651 at [16]–[17]. 7 Alzuain v The King [2025] SASCA 67 at [558]. 8 R v Baden-Clay (2016) 258 CLR 308 at [47]. -- 11 of 14 -- [2026] SASCA 3 The Court 10 54 These principles apply equally to an appeal against a finding of guilt by a magistrate as they do to an appeal against conviction in a superior court. 55 The appellant’s contention in support of this ground was relatively confined. It fastened onto the complainant’s concession in cross-examination that the object, which touched her lips and teeth, might not have been the appellant’s penis. This, in the appellant’s submission, gave rise to an alternative hypothesis that could not be excluded beyond reasonable doubt, that the object was not the appellant’s penis. 56 The concession concerned the complainant’s initial thought, when the beanie was over her face, that the object the appellant placed in her mouth was a squishy ball. After the complainant had confirmed in cross-examination that when she took the beanie off, she saw the appellant’s erect penis in front of her face, the following exchange occurred: Q. So, it could have been a squishy that he was trying to get you to guess. A. I thought. Q. You thought it was a squishy but could it have been a squishy. I’m guessing it was a squishy toy. A. And then I checked around the room. Q. Is that right, could it have been a squishy toy. A. No. Q. Why. A. That’s when I checked around the room and there was no squishy toys there. Q. Could it have been something else. A. I wasn’t that sure. Q. Could it have been his hand. A. I don’t know, maybe. 57 The appellant submitted that given that the complainant could not be sure what it was that he placed in her mouth, the hypothesis that it was something else could not be excluded beyond reasonable doubt. 58 For the purposes of considering this ground of appeal, the complainant’s concession, as the appellant described it, must be considered in the context of the whole of the complainant’s evidence, which the magistrate accepted as credible and reliable. On that evidence, the appellant initially asked the complainant to kneel, which she refused to do. Once she was seated and her eyes were covered, the appellant said, ‘don’t bite it’. The complainant then felt something that had the -- 12 of 14 -- [2026] SASCA 3 The Court 11 texture, to her thinking, of a squishy ball. When she removed the beanie, the appellant’s erect penis was directly in front of her face. 59 The appellant’s subsequent conduct also forms part of the circumstantial matrix. When the complainant reacted by kicking the appellant, the appellant said that he had put his two thumbs in her mouth. The complainant observed that he did not have any spit on his hand and the appellant said that he had wiped it off, on his shorts. He then asked the complainant not to tell anyone, saying, ‘if you tell them I will die’. When the complainant then attempted to leave the bedroom, the appellant pushed her back. He only let her go when she started to cause a racket. 60 The gap in the complainant’s evidence was her failure to see what the appellant put in her mouth at the time it happened. However, it is necessary to consider all of the circumstantial evidence in its context, including the complainant’s description of the sensation she felt in her mouth, the appellant’s injunction not to bite ‘it’ and his immediately subsequent conduct. That commenced with presenting his erect penis in front of the complainant’s face and included his panicked efforts to ensure she did not tell anyone. 61 The appellant submitted that the injunction not to bite ‘it’ and his exposed erection were consistent with the appellant preparing to insert his penis without having yet done so. He submitted that the complainant’s perception of no saliva on the appellant’s thumbs was equivocal, as it could not be assumed that saliva would be visible. He submitted that the statement that the complainant should not tell anyone, the complainant’s distress and the appellant’s panic were as consistent with a preparatory act with some sexual intent as with a completed act. 62 As the respondent submitted, the injunction not to bite ‘it’ was not consistent with the appellant having used his thumbs (plural) as he had told the complainant in the aftermath. There was also the sensation of a ‘squishy ball’ that the complainant felt. There was then the act of revealing his erect penis to the complainant after placing something in her mouth. In the context of the ‘game’, which had started with the Takis, this action was evidence of the appellant communicating to the complainant what he had just put in her mouth. 63 Having considered the evidence in its totality, we are satisfied that on the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. 64 In reaching this conclusion, we have taken into account the whole of the evidence, as summarised above. That includes what we have described as the interim lifting of the beanie before the appellant showed the complainant his erect penis. As we have explained, this evidence of the complainant in cross-examination was a little unclear. We have considered whether the addition of this consideration to the complainant’s concession provides enough, in context, to give rise to a doubt that the appellant had used his penis. Having regard to the surrounding circumstantial factors described above, we do not think that it does. -- 13 of 14 -- [2026] SASCA 3 The Court 12 The magistrate’s consideration (Grounds 2 and 3) 65 Ground 2 complains that the magistrate did not properly consider alternative hypotheses consistent with innocence. The alternative complaint, in Ground 3, is that the magistrate erred in rejecting any hypothesis consistent with innocence arising on the evidence accepted by him. That alternative complaint, however, does not seem to raise any consideration different from that raised by Ground 1, considered above. 66 The appellant did not prosecute the complaint in Ground 2 in detail. He submitted orally that the magistrate ‘didn’t really analyse’ the alternative hypothesis that the appellant had placed something else in the complainant’s mouth. 67 The magistrate acknowledged the complainant’s concession that it could have been the appellant’s hand and/or thumbs, because she could not see.9 He later noted the defence submission that he could not find the first element of the offence proved, as the complainant did not see what actually touched her lips and teeth.10 68 The magistrate’s reasons for finding that sexual intercourse had occurred, set out above, are understandably couched in terms that address the appellant’s positive case that the complainant was lying about anything having happened at all. Nonetheless, the magistrate was still required to find, beyond reasonable doubt, not only that something had touched the complainant’s mouth but also that the appellant’s penis had done so. In this regard, the defence submissions in closing were very short. Defence counsel observed that the complainant could not say that the appellant’s penis had touched her mouth and submitted: The complainant … thinks, but does not know that [the appellant] had put his penis on her mouth, touching her front teeth. I submit that this is not beyond a reasonable doubt as it is speculation and assumption. 69 The magistrate’s consideration of that question, most clearly in the second of the five considerations set out in full earlier, was relatively short. The reasons could have been more comprehensive. However, again, having regard to the positive defence case and the defence approach to this issue, we are satisfied that the magistrate addressed the alternative hypothesis, that it was something other than the appellant’s penis that touched the complainant’s mouth, sufficiently. Conclusion 70 We dismiss the appeal. 9 [2025] SAYC 1 at [40]. 10 [2025] SAYC 1 at [100]. -- 14 of 14 --