BEDHANE TARIKA BEKELE v THE KING [2026] SASCA 9

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE FULLER) DCCRM-22-001563 Appellant/Respondent: THE KING Counsel: MS T COSTI WITH MS A O’SULLIVAN AND MS N INDIGAHAWELA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) First Respondent/Appellant: BEDHANE TARIKA BEKELE Counsel: MR M CHRISTEY - Solicitor: MATTHEW MITCHELL SOLICITORS Second Respondent/Appellant: BESUFIKAD YEBELTHAL HAILE Counsel: MR B ARMSTRONG - Solicitor: OLIVIA FANTIS LEGAL Third Respondent: SADAM HUSSEIN ISSAK Counsel: MR A CULSHAW WITH MR O MORRIS - Solicitor: WILLIAMS BARRISTERS AND SOLICITORS Hearing Date/s: 09/10/2025 File No/s: SCCRM-25-026189; SCCRM-25-026854; SCCRM-25-036291 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. R v BEKELE & ORS; HAILE v THE KING; BEKELE v THE KING [2026] SASCA 9 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Bleby and the Honourable Justice David) 13 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED -- 1 of 55 -- Appeals against directed acquittal (Bekele, Haile and Issak) and appeals against conviction (Bekele and Issak). The defendants were charged with various counts of indecent assault and rape in respect of events that occurred in the early hours of 18 June 2025. The prosecution case was that each act the subject of the charge on the information was committed in furtherance of a common purpose, and that liability for each act attached to each participant in the joint enterprise. The defendants were tried jointly. The judge determined that there was no evidence capable of establishing a joint criminal enterprise and therefore no case to answer on Counts 2, 6 and 7 for the defendant Bekele, Counts 4, 5 and 7 for the defendant Haile and Counts 1, 2, 3, 4, 5, 6 and 7 for the defendant Issak. She directed the jury to return not guilty verdicts on those Counts. This direction exhausted the counts against Issak. The trial continued on the remaining counts. The jury found Bekele guilty, by majority, of Count 3 (indecent assault) and Count 5 (rape). The jury found Haile guilty, by majority, of Count 6 (rape). The Director applied for permission to appeal against the orders directing the acquittals. The Director’s appeal raises the following issues: • whether there was evidence capable of establishing, beyond reasonable doubt, that there existed a joint criminal enterprise that contemplated the commission of each of Counts 2, 3, 5, 6 and 7 and to which: o Bekele and Issak were party in respect of Counts 2 and 3; o all three respondents were party in respect of Counts 5 and 6; and o Bekele and Haile were party in respect of Count 7; • whether there was evidence capable of establishing, beyond reasonable doubt, that the act of fellatio the subject of Count 2 occurred; and • whether the judge should have granted the Director’s application to amend the information so as to allege indecent assault as an alternative to Count 2. The defendants Bekele and Haile applied for permission to appeal against their convictions. They raise the following issues: • whether the judge directed the jury inadequately with respect to prior inconsistent statements, occasioning a miscarriage of justice; • whether evidence admitted as complaint evidence was not complaint evidence and not admissible pursuant to s 34M of the Evidence Act 1929 (SA) (‘Evidence Act’); and • alternatively, whether the judge’s directions with respect to the complaint evidence were erroneous in law or occasioned a miscarriage of justice. After the Court had reserved its decision, counsel for Issak wrote to the Court, drawing attention to Hawell v R, David v R, Hawell v R [2025] NSWCCA 210 (‘Hawell’), and requesting leave to file additional written submissions. The Court in Hawell determined that an agreement to engage in sexual intercourse ‘with or without consent’ instead of just ‘without consent’ was not an agreement capable of founding a joint criminal enterprise. The trial judge erred in directing the jury to that effect. Issak submitted that the evidence in this case was not capable of establishing an agreement to engage in sexual intercourse ‘without consent’. Held, granting the Director permission to appeal and allowing the appeal: (per Kourakis CJ) -- 2 of 55 -- 1. An agreement to have sexual intercourse with a person is not, without more, an agreement to commit a crime. To be an accessory to rape by joint criminal enterprise, the participant must (1) enter into an agreement with another(s) that they will have sexual intercourse with the complainant without taking any reasonable steps to ascertain whether the complainant was consenting and to proceeded with the act regardless of any possibility that the complainant was not consenting and (2) have a belief in the existence of the attendant circumstances which renders the agreed conduct criminal; namely, that the complainant was not consenting to engaging in sexual intercourse. 2. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that the agreed conduct will take place in circumstances which render the conduct an offence: Giorgianni v The Queen (1985) 156 CLR 473, 506-507 (per Wilson, Deane, Dawson JJ). The recognition of a mere possibility, or even probability, that the complainant is not consenting is not sufficient to satisfy the fault element applicable to an accessory, unless it amounts to wilful blindness which is the equivalent of knowledge: at [13]; Giorgianni v The Queen (1985) 156 CLR 473, 482 (per Gibbs CJ), 507 (per Wilson, Deane, Dawson JJ). (per Bleby and David JJA) 3. The totality of the evidence is capable of establishing beyond reasonable doubt the existence of an agreement that Bekele and Issak formed no later than on their entry into the taxi and in which Haile joined no later than when the sexual acts occurred at Bekele’s residence. 4. The error of the prosecution in opening was to describe the alleged agreement too widely, as an agreement to have sexual intercourse ‘irrespective of whether [the complainant] was consenting or not’. In any event, the state of the evidence remained such that there was a case to answer. Unlike in Hawell, the issue did not proceed to directions. Had it done so, it would have been the duty of the trial judge to correct the prosecution case by directing the jury according to law. 5. Having regard to the evidence, it was clearly open to the jury to conclude, beyond reasonable doubt, that the complainant was performing an act of fellatio on Issak as charged by Count 2. 6. In ruling that there was no case to answer on the charges caught by these aspects of the prosecution case, the judge erred. 7. The directed acquittals have the clear capacity to undermine public confidence in the administration of justice. It is difficult to see that the subsequent recognition of the necessary confinement of the prosecution case on retrial, compared to what it alleged at the first trial, increases the force of the clear and real double jeopardy considerations that oppose a grant of leave. In these circumstances, the capacity of the directed acquittals to undermine public confidence in the administration of justice outweighs the principles of double jeopardy that would attend on the defendants being tried again. 8. The judge erred in holding, on the Director’s application to amend Count 2, that the charge of indecent assault was not available as an alternative to the charge of rape. Had that been the only error established, the interests of justice would not have warranted a grant of permission to appeal. However, having regard to the disposition of the appeal, it will be open to the prosecution to amend the information to charge indecent assault in the alternative to Count 2 in advance of any retrial. Held (per Bleby and David JJA, Kourakis CJ agreeing), granting permission for Haile to appeal on Grounds 3, 4 and 8, and for Bekele to appeal on Grounds 4 and 5, but dismissing those appeals: 9. While the trial judge did not direct the jury that Mr Hamed’s out of court statement that the complainant had drunk 40 drinks had no testimonial value, the failure to do so was not material. -- 3 of 55 -- 10. The judge failed, strictly, to direct the jury in accordance with s 34M(4) of the Evidence Act. The complaint evidence had the capacity to demonstrate consistency of conduct. Nonetheless, the error could not have bolstered the complainant’s credibility or detracted from a negative assessment of her credibility. No substantive miscarriage of justice occurred. 11. It was not impermissible for the prosecution to assert that the complainant’s distress was consistent with and may be inferred to be referable to her having no memory of what occurred. The trial judge’s direction regarding the relevance of the evidence of complainant’s distress did not cause any miscarriage of justice. Criminal Law Consolidation Act 1935 (SA) ss 20(3), 47, 48, 134, 137; Evidence Act 1929 (SA) s 34M; Criminal Procedure Act 1921 (SA) ss 128(2)(b), 157(1)(b)(ii), 158(4)(b), 158(2), referred to. McAuliffe v The Queen (1995) 183 CLR 108; Huynh v The Queen (2013) 87 ALJR 434; Alzuain & Ors v The King [2025] SASCA 67; Osland v The Queen (1998) 197 CLR 316; R v Tangye (1997) 92 A Crim R 545; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; R v Chishimba [2010] NSWCCA 228; Phan v R (2001) 123 A Crim R 30; Ahern v The Queen (1988) 165 CLR 87; Catanzariti v The Queen [2021] SASCA 110; Tripodi v The Queen (1961) 104 CLR 1; R v Donovan [2025] SASCA 7; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; R v Henderson (2023) 142 SASR 507; R v Brougham (2015) 122 SASR 546; R v PL (2009) 199 A Crim R 199; R v Snow (1915) 20 CLR 315; R v Cheng (1999) 48 NSWLR 616; R v JS (2007) 175 A Crim R 108; R v Turner (2001) 25 WAR 258; R v MJJ; R v CJN (2013) 117 SASR 81; Ayles v The Queen (2008) 232 CLR 410; R v Fitzpatrick (1988) 50 SASR 10; Brown v The King [2025] SASCA 40; Driscoll v The Queen (1977) 137 CLR 517; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; Kalbasi v Western Australia (2018) 264 CLR 62; Lane v The Queen (2018) 265 CLR 196; Giorgianni v The Queen (1985) 156 CLR 473; Hawell v R; David v R; Hawell v R [2025] NSWCCA 210; Johnson v Youden [1950] 1 K.B. 544; R v LK (2010) 241 CLR 177, considered. -- 4 of 55 -- R v BEKELE & ORS; HAILE v THE KING; BEKELE v THE KING [2026] SASCA 9 Court of Appeal – Criminal: Kourakis CJ, Bleby and David JJA 1 KOURAKIS CJ: For the reasons given in the joint judgment of Bleby and David JJA, I would join in the orders proposed by their Honours: • refusing permission to appeal on Ground 2 of Haile’s Second Amended Appeal Grounds and Ground 3 of Bekele’s Amended Appeal Grounds; and • granting permission to appeal on Grounds 3, 4 and 8 of Haile’s Second Amended Appeal Grounds and Grounds 4 and 5 of the Bekele’s Amended Appeal Grounds but dismissing their appeals against conviction. 2 I would also join in the orders proposed by Bleby and David JJA quashing the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile, and Counts 2, 3, 5, 6 and 7 for Issak. 3 The evidence adduced by the prosecution established a case to answer on all of those counts. I agree with the evaluation of the evidence in [51]-[136] of the joint judgment. The jury, as the constitutional tribunal of fact, should be allowed to pass the judgment of the community on whether the evidence, which establishes a case to answer, proves the commission of the offences beyond a reasonable doubt. Balancing the proper administration of justice against the principles of double jeopardy, the public interest clearly lies in allowing those charges of serious sexual offending to be determined by a jury. Indeed, it would undermine public confidence in the administration of justice to allow the acquittals to stand. 4 Even though I would join in the order quashing the acquittals, it is necessary for two reasons to explain that I have applied a higher standard as to the fault element than that applied in [148] of the joint judgment. First, so that my conclusion that the evidence establishes a case to answer can be understood against that standard. Secondly, and more importantly, because the elements of the offence identified for the purpose of determining whether there is a case to answer are also the elements on which the trial judge must direct the jury on the retrial. 5 Their Honours, in [148], express the fault element in this way: The respondents had a case to answer of ‘advertent recklessness’ (which concept is the subject of s 47(a) of the CLCA), to use the phrasing of the New South Wales Court of Criminal Appeal. That case was that as participants to an agreement, they must have known, or been aware of the possibility, that the complainant was too intoxicated to be able to consent. This in turn demonstrated their agreement that sexual intercourse without her consent should occur. 6 In my respectful opinion, to state the elements of rape by participation in a joint criminal enterprise in that way conflates the fault element for accessorial liability with the fault element prescribed by s 47 of the Criminal Law -- 5 of 55 -- [2026] SASCA 9 Kourakis CJ 2 Consolidation Act 1935 (SA) (the CLCA) for the perpetrator of an offence against s 48 of the CLCA. The former requires a belief in the existence of those attendant circumstances which are necessary to render criminal the acts to which the accessories agreed: in this case, that the complainant was not consenting. Absent that belief the conduct agreed upon is not criminal. It is an agreement to engage in sexual intercourse with a person without a belief in the circumstance, non- consent, which is necessary for the intercourse to constitute the crime of rape. The recognition of a mere possibility that the complainant is not consenting is not sufficient to satisfy the fault element applicable to an accessory. At the very least, wilful blindness, which is the virtual equivalent of belief, is necessary. 7 It follows from that statement of the elements of the offence in [148] of the joint judgment of Bleby and David JJA that an accused who believed that the complainant was consenting, albeit recognising a possibility that she was not, would be convicted as an accessory to the rape by entering into an agreement to engage in acts, which on that belief as to the complainant’s consent, were lawful. As we shall see, a direction to that effect is contrary to High Court authority. 8 Applying the principles for liability based on participation in a joint criminal enterprise established in Giorgianni v The Queen (Giorgianni),1 a proper statement of the elements in the circumstances of this case is as follows: The accused, believing that the complainant would not consent to sexual intercourse or was incapable of consenting because of her intoxication, or closing their minds to that likelihood by ignoring the drunken appearance of the complainant, agreed that one or more of them would have sexual intercourse with her, as the opportunity arose, without taking any reasonable steps to ascertain whether she was in fact consenting and by proceeding regardless of any possibility that she was not. (Emphasis added.) 9 The underlined term of the agreement, failing to take reasonable steps, is not a fault element. It is an agreement as to their conduct. It is that agreement which would render one joint participant guilty of a rape perpetrated by another who has proceeded recklessly and/or by failing to take reasonable steps. 10 My reasons follow. Fault Element for Accessorial Liability 11 The decision in Giorgianni establishes that it is a necessary element of the culpability of a principal in the second degree (an accessory) that the accessory knows all the essential facts which render what is done a crime. For that purpose, deliberately shutting one’s eyes to what is going on is the equivalent of knowledge, but neither negligence nor recklessness is sufficient.2 1 (1985) 156 CLR 473. 2 Giorgianni v The Queen (1985) 156 CLR 473. -- 6 of 55 -- [2026] SASCA 9 Kourakis CJ 3 12 Chief Justice Gibbs succinctly put the principle in this way:3 No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient. 13 Chief Justice Gibbs had earlier explained that deliberately closing one’s eyes to the obvious, from fear that the true facts are better not known, is the virtual equivalent of knowledge. To put it in another way, without employing the visual metaphor, deliberately not thinking through the implications, or enquiring about what is apparent, so as to not be burdened with knowledge of the true facts suffices as a fault element for accessorial liability. 14 Importantly, Gibbs CJ also explained that knowledge of the inculpatory attendant circumstances is a necessary element of accessorial liability even when the offence itself is one of strict liability, that is, when it is not necessary to establish any fault element on the part of the perpetrator.4 15 Justice Mason also emphasised that accessorial liability required proof of a fault element even though the offence involved no fault element:5 The application of the doctrine of secondary participation to statutory offences involving no mental element has been considered in a number of cases. In general, the absence of intention as an element of the substantive offence has not been regarded as obviating the necessity for knowledge on the part of the secondary party of the essential facts constituting the offence. The “link in purpose” between the secondary party and the principal offender is not established where a person does something to bring about, or render more likely, the commission of an offence by another in circumstances in which, through ignorance of the facts, it appears to him to be an innocent act. 16 It follows, even more obviously, that the fault element of belief in the existence of the attendant circumstances, which constitute the agreed conduct as a crime, also applies to offences for which the fault element of the perpetrator is recklessness. 17 Justice Mason also relied on the following statement of principle articulated by Lord Goddard CJ in Johnson v Youden that:6 Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. 3 Giorgianni v The Queen (1985) 156 CLR 473 at 487-488. 4 Giorgianni v The Queen (1985) 156 CLR 473 at 493-494. 5 Giorgianni v The Queen (1985) 156 CLR 473 at 493-494. 6 Johnson v Youden [1950] 1 K.B. 544 at 546. -- 7 of 55 -- [2026] SASCA 9 Kourakis CJ 4 18 Importantly, Wilson, Deane and Dawson JJ (the plurality) expressly denied that recklessness was a sufficient fault element:7 For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. … It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. 19 I first acknowledge that the basis for accessorial liability under consideration in Giorgianni was aiding, abetting, counselling, and procuring. However, as the Court in Giorgianni observed, the distinctions between the various forms of accessorial liability have largely disappeared. There is no legally significant distinction between counselling and procuring on the one hand, and joint criminal enterprise on the other, for the purpose of identifying the fault element. Moreover, the decision in Giorgianni was expressly relied on in R v LK (‘LK’)8 to hold that the fault elements of conspiracy included knowledge of the circumstances which rendered the agreed conduct of a crime. An agreement to commit a crime is the foundational element of both conspiracy and joint enterprise. 20 Secondly, as appears from the above cited passage, the conclusion of the plurality in Giorgianni was supported by drawing an analogy with conspiracy. 21 The offence considered in LK was conspiring to deal with the proceeds of crime. The trial Judge had directed the jury to acquit because the charge alleged only that the accused were reckless as to whether the money with which they agreed to deal was the proceeds of crime. The trial Judge held that the charge was bad because knowledge of the facts which made the proposed conduct an offence was a necessary element of a conspiracy charge. On an appeal by the Commonwealth Director of Public Prosecutions, the High Court upheld the Judge’s direction. 22 Chief Justice French observed:9 The association between attempt and conspiracy assists in the consideration, relevant to these appeals, of whether conspiracy to commit an offence can be made out where the Crown does not propound as part of its case the existence of a physical element or 7 Giorgianni v The Queen (1985) 156 CLR 473 at 506-507 (Wilson, Deane, Dawson JJ). 8 (2010) 241 CLR 177 at [67]. 9 R v LK (2010) 241 CLR 177 at [66]-[67]. -- 8 of 55 -- [2026] SASCA 9 Kourakis CJ 5 circumstance of that offence as the subject of the agreement. Plainly a conspiracy cannot be made out in such a case. This leads to a consideration of the place of recklessness in relation to the elements of the offence which is the subject of the conspiracy. At common law a reckless state of mind is not sufficient to constitute the mens rea for the offence of attempt. Knowledge of the likely consequences of an act may evidence the requisite intention to commit the relevant offence. But such knowledge is not to be equated with that intention. Similarly, it is not sufficient that an alleged conspirator be reckless as to the existence of an element of the substantive offence – for that kind of recklessness would negate the very intention that is necessary to form the unlawful agreement. As was said in Giorgianni v The Queen: “For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another.” (Citations omitted.) 23 Chief Justice French concluded:10 The charge of conspiracy to commit an offence, which is created by s 11.5(1) of the Code, requires proof of an agreement between the person charged and one or more other persons. Moreover, the person charged and at least one other person must have intended that the offence the subject of the conspiracy would be committed pursuant to the agreement. Intention to commit an offence can be taken to encompass all the elements of the offence (subject to the operation of s 11.5(7A) in relation to special liability provisions in the substantive offence). That intention extends to both physical and fault elements of the substantive offence. In the case of an offence against s 400.3(2) its physical elements are: (1) conduct of the offender by the act of dealing with money; (2) the circumstance in which that conduct occurs, namely that the money is proceeds of crime; and (3) the further circumstance that the value of the money at the time of the dealing is $1,000,000 or more. It is the second element which is the stumbling block in the way of the Crown’s argument. There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged. In this case that intention is an intention to deal with money which is proceeds of crime. Recklessness as to whether the money is proceeds of crime is recklessness about a term of the agreement constituting the conspiracy. This is what was referred to at the commencement of these reasons as the fault line in the Crown’s argument. (Citations omitted.) 10 R v LK (2010) 241 CLR 177 at [75]-[77]. -- 9 of 55 -- [2026] SASCA 9 Kourakis CJ 6 24 The following passages from the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ (the plurality) show that the Commonwealth unsuccessfully attempted to limit the principle stated in Giorgianni to accessorial liability:11 The appellant’s challenge is to the conclusion that a person cannot be found guilty of an offence under s 11.5(1) unless he or she knows the facts that make the act or acts unlawful. The appellant points out that Giorgianni was concerned with derivative, accessorial, liability. The appellant submits that a more refined analysis of what constitutes knowledge of, or belief in, the “necessary facts” is required with respect to proof of the intention to conspire to commit an offence of recklessness. Since the conspiratorial agreement is to engage in conduct in the future, the question of whether a person intends to commit an offence is said to require consideration of what was within the scope of the agreement. On this analysis, if two (or more) persons agree to deal with money and each has in contemplation that the carrying out of their agreement may involve dealing with money that is, or will be, proceeds of crime and nonetheless they agree to deal with the money, it is open to conclude that each possessed sufficient knowledge of, or belief in, the “necessary facts” to find as a fact that each intended that an offence be committed pursuant to the agreement. In the appellant’s submission, the reference in the joint reasons in Giorgianni to the intention required for liability in conspiracy does not address the issue presently raised. The same is said with respect to the decision in Gerakiteys. Conformably with these submissions, the appellant contends that the references in the Gibbs Committee Report and the MCCOC Report to the necessity for proof of intention are to the intentional entry into the conspiracy and not to the knowledge or belief that is required when the object of the conspiracy is an offence that has recklessness as its fault element. It is said to be “at least questionable” that the common law supports Spigelman CJ’s conclusion with respect to conspiracies to commit offences of recklessness. The appellant’s submission is unsupported by authority. As McHugh J observed in Peters v The Queen, it would seem to follow from Gerakiteys that, at common law, a person must intend to achieve the carrying out of the unlawful act and that it is not sufficient proof of a conspiracy that the person realised that the probable consequences of the agreed conduct might result in the performance of an unlawful act. His Honour referred to Professor Sir John Smith’s view that “[r]ecklessness as to circumstances of the actus reus is not a sufficient mens rea on a charge of conspiracy to commit a crime even where it is a sufficient mens rea for the crime itself”. (Citations omitted.) 25 The plurality stated the question of principle as to the fault element in this way:12 It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law. Subject to one 11 R v LK (2010) 241 CLR 177 at [108]-[110]. 12 R v LK (2010) 241 CLR 177 at [117]-[122]. -- 10 of 55 -- [2026] SASCA 9 Kourakis CJ 7 reservation, it is how the fault element of the offence created in s 11.5(1) operates. The reservation concerns the application of s 11.5(2)(b). As these reasons will show, this provision informs the meaning of “conspires” in sub-s (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement. It also speaks to proof of the accused’s intention. The reservation arises because s 11.5(2)(b) is subject to s 11.5(7A), which applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. A special liability provision includes a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence. Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision. (Emphasis added; citations omitted.) 26 Their Honours applied that principle to reject the prosecution contention that recklessness was sufficient in a way which is instructive in this case:13 Senior counsel for the appellant accepted that his argument is captured by the proposition that A and B commit the offence of conspiracy under s 11.5(1) if they intentionally agree that one or other of them, or a third party, C, will do acts, A and B taking the substantial and unjustifiable risk that the acts, if carried out, will be criminal. It is the intention that the acts will be done even if the doing of them is criminal that is central to the appellant’s argument. The prosecution case at its highest was that the respondents intentionally entered an agreement to deal with money whether or not it was proceeds of crime. The matters upon which the appellant relies as providing the factual basis for the inference of intent, namely the respondents’ awareness that the money may be proceeds of crime and their agreement to deal with it even if it was, expose the flaw in the analysis. At the time the agreement was made the money may, or may not, have been (or have become) proceeds of crime. The agreement, if carried out in accordance with LK’s and RK’s intention, may not have involved a dealing with money that is proceeds of crime. It follows that, on the evidence given at the trial, it was not open to find that either respondent intentionally entered an agreement to commit the offence that is said to have been the object of the conspiracy. 27 The Court of Criminal Appeal in Hawell v R, David v R, Hawell v R (Hawell),14 after referring to the passages in LK I have set out above, said:15 However the respondent correctly submits that joint criminal enterprise is a more flexible concept than conspiracy, which at common law and pursuant to the Code has a number of technical aspects inapplicable to joint criminal enterprise at common law, and creates criminal liability by virtue of the agreement. Advertent recklessness is meaningfully different for present purposes from inadvertent recklessness in its capacity to coherently apply in a joint criminal enterprise such as alleged in these proceedings. The legislature has specifically chosen to include mental states less demanding than actual knowledge of absence of consent as attracting liability for sexual assault. We are of the view that the prosecution can, in a trial of the type before the Court, ask the jury to draw an inference from the circumstances proved that the participants must have and did know that the complainants were not consenting, or sufficiently recognised this as a prospect, to 13 R v LK (2010) 241 CLR 177 at [121]-[122]. 14 [2025] NSWCCA 210. 15 [2025] NSWCCA 210 at [188]. -- 11 of 55 -- [2026] SASCA 9 Kourakis CJ 8 demonstrate their agreement that sexual intercourse without the complainants’ consent should occur, if they were not consenting. 28 It is necessary to make three points about that passage. First, it is not obvious to me on what grounds the first sentence distinguishes conspiracy from criminal joint enterprise when the plurality in LK expressly relied on the statement of general principle in Giorgianni. Moreover, as I earlier observed, both conspiracy and joint enterprise are founded on an agreement to commit a crime. 29 Secondly, it is not obvious why the difference between advertent and inadvertent recklessness mentioned in the second sentence matters at all when the fault element of belief by the accessory applies even to offences of strict liability. 30 Thirdly, as can be seen from the formulation of the test, I proffer in [8], I agree that the fault element of recklessness on the part of the perpetrator can be integrated with the fault element of a participant in a joint enterprise, by including as a term of the agreement that they would have intercourse without taking reasonable steps to check that the other person is consenting. However, the state of mind in which the agreement is made, and adhered to, must be belief, or wilful blindness, as to non-consent. An appreciation of a ‘prospect’ that she is not is insufficient. 31 Nonetheless, the Court in Hawell went on to explain how the statutorily prescribed fault element of the perpetrator of a rape might affect the fault element of the perpetrator of a rape might affect the fault element of an accessory:16 We are of the view that advertent recklessness is capable of being coherently considered in conjunction with principles of joint criminal enterprise in relation to the charges faced by the applicants. It does not unduly dislocate legal responsibility from moral culpability, and is capable of rational combination. This does not however permit the description of the agreement to commit the crime to be anything other than agreement to have sexual intercourse without consent (including, if appropriate and coherent, an extended definition of knowledge of absence of consent). That is the actus reus of the crime, it is an orthodox way of describing the agreement to commit the crime in joint criminal enterprise cases (as explained for example in KA), and, unlike the element of age in Rohan, knowledge of absence of consent is an element of the offences these applicants were charged with. In Rohan, it would have been contrary to the legislative intent that knowledge of the age of the girls intentionally supplied with drugs and sexually engaged with was not required to be proved against an individual accused, to include in the definition of the agreement the age of the girls. In relation to the commission of sexual intercourse without consent alleged in this trial, it was not anomalous with the elements of sexual assault in New South Wales legislation to require the agreement to be described in a way which recognised mental advertence to and agreement concerning non-consent, by describing its true actus reus of sexual intercourse without consent as part of that which was agreed upon. The decisions of the High Court referred to above at [126]-[129], and Rohan, underscore the importance of clear focus on what it is that is alleged to have been agreed upon. The trial judge’s references to an agreement to have sexual intercourse, or sexually assault or touch “with or without” the consent of the complainant bore close similarity to her 16 [2025] NSWCCA 210 at [189]-[190], [195]. -- 12 of 55 -- [2026] SASCA 9 Kourakis CJ 9 Honour’s directions regarding the “state of mind” (see above at [94], and further below), which relied upon consensual as well as nonconsensual activity. This amplified the prospect of the jury not understanding the significance of the need for agreement to commit the crime of sexual assault. The phrase can be seen to be similar enough to the respondent’s suggestions of an intention to have sexual intercourse “regardless of whether the complainant was consenting” when understood in light of the oral submission for the respondent that the Crown was able to maintain liability in this case on the basis of an agreement to have sexual intercourse, which then crystallised into a crime when the complainant did not in fact consent. An agreement to have sexual intercourse with a person is not an agreement to commit a crime. The actus reus of this crime, which needed to be the subject of the agreement, was sexual intercourse without consent. … In a case such as the present where the agreement to be proved was an agreement to have sexual intercourse or sexually touch the women without their consent (or her consent in relation to counts 8-11), and the Crown relied on the same evidence to prove the agreement, participation, and the commission of a crime in furtherance of the joint criminal enterprise, there may have been no need to additionally prove agreement as to the mental element of sexual assault. That is because the requisite mental state will need to be referred to in explaining how the Crown endeavours to prove an agreement to have sexual intercourse without consent. However KA stands as authority for the proposition that the Crown was required to prove this, the matter was not squarely argued before us, and we reach no concluded view about it. Although individual liability arises from realisation of the possibility of lack of consent, and as noted above at [147] Button J said in Lee this may be appropriately described as knowledge of a non-trivial possibility of absence of consent, it may be more important in a joint criminal enterprise case such as the present for the jury to understand that subjective realisation of the prospect that the complainants were not consenting needs to have been tangible enough to found an agreement to have sexual intercourse with them without their consent. (Emphasis added.) 32 In respect to the first of the underlined sentences, I again make the point that the extension of the definition of knowledge to include inadvertent recklessness is the fault element of the perpetrator. Lack of consent of the complainant is an attendant circumstance, and is neither a fault nor conduct element of the offence. The participants to a joint enterprise to rape do not agree what the victim’s state of mind is, or will be, as seems to be suggested in the second underlined sentence. They each have their individual belief about what the state of consent is, might be, or will be. The Court in Hawell later correctly observed that an agreement to have sexual intercourse with a person is not, without more, an agreement to commit a crime. Only the parties to that agreement, who believe that the other person is not consenting, are accessories to the perpetrator of the rape. 33 The Court in Hawell continued:17 Although individual liability arises from realisation of the possibility of lack of consent, and as noted above at [147] Button J said in Lee this may be appropriately described as knowledge of a non-trivial possibility of absence of consent, it may be more important in a joint criminal enterprise case such as the present for the jury to understand that subjective 17 [2025] NSWCCA 210 at [195]. -- 13 of 55 -- [2026] SASCA 9 Kourakis CJ 10 realisation of the prospect that the complainants were not consenting needs to have been tangible enough to found an agreement to have sexual intercourse with them without their consent. 34 With respect, a realisation tangible enough to found an agreement is radically uncertain and circular. It might be asked who, or what, are the characteristics of the postulated participants. Moreover, it appears to me to be artificial to treat the individual beliefs of the participants as a term of the agreement. More importantly, even though the test so stated is far less than that of wilful blindness stated in Giorgianni, no basis for distinguishing Giogianni is proffered. Evidence of Fault Element by Accessories 35 The analysis of the evidence, referred to in the joint judgment which establishes a case to answer by the accessories on the fault element as articulated in [8] above, is tabulated below: Offences Summary Paragraphs Offences in the taxi – Counts 2, 3 (a) Drunken appearance of complainant C on streets in presence of Bekele, Issak and Haile. (b) Drunken appearance in taxi in presence of Bekele, Issak and Haile. (c) C’s exclamations and appearance of discomfort in the taxi. (d) C’s statements that she did not wish to engage in sexual activity ‘in the car’ and because she was menstruating. (e) C crying. [66]-[82] Offences in the residence – Counts, 5, 6 7 (f) C’s distress and drunken appearance whilst Bekele engages in sexual intercourse. (g) Bekele slapping C’s face whilst engaged in sexual intercourse. (h) The absence of any evidence of reasonable steps to ascertain whether C is consenting. (i) The apparent delight of Haile and Bekele in Issak’s presence in persuading C to parrot their lewd expressions of C’s sexual preferences whilst she appears to be distressed. (j) The exclamation ‘we wanted this girl’. [83]-[94] 36 I acknowledge that the events listed in the summary did not precede all of the charged offences. However, that affects only the strength, and not the establishment, of a case to answer. C’s drunken and distressed appearance was apparent to all of the accused before the commission of each offence. C appeared so intoxicated that it can be inferred that each accused believed she was not in a fit state to consent. The final exclamation in (j) is evidence of their agreement that they would have intercourse with C as is the very series of sexual acts in which -- 14 of 55 -- [2026] SASCA 9 Kourakis CJ 11 each of them in turn engaged in the presence of the others. The way in which C was handled in the taxi, slapped in the residence and denigrated by the conduct in (i) evidences their reckless disregard of C’s wishes and their failure to take reasonable steps to ascertain them. It follows that there is evidence of each of the elements of accessorial liability for rape set out in [8] above. 37 BLEBY AND DAVID JJA: On 25 January 2024 the Director of Public Prosecutions laid an information against Bedhane Tarika Bekele, Besufikad Yebeltal Haile and Sadam Hussein Issak, charging each of them with various counts of aggravated indecent assault and rape, in respect of events that occurred in the early hours of 18 June 2023. The three defendants pleaded not guilty and were tried jointly in the District Court before a jury, the trial commencing on 15 May 2025. On 11 June 2025, the trial judge directed the jury to return not guilty verdicts on Counts 2, 6 and 7 for the defendant Bekele, Counts 4, 5 and 7 for the defendant Haile and Counts 1, 2, 3, 4, 5, 6 and 7 for the defendant Issak. The direction in respect of the charges against Issak exhausted the counts against him. 38 The trial continued on the remaining counts. On 17 June 2025, the jury unanimously found the defendant Bekele not guilty of Count 1. They found Bekele guilty, by majority, of Count 3 (indecent assault) and Count 5 (rape). They found the defendant Haile guilty, by majority, of Count 6 (rape). 39 The Director has applied for permission to appeal against the orders directing the acquittals, pursuant to s 157(1)(b)(ii) of the Criminal Procedure Act 1921 (SA) (‘CPA’). Bekele and Haile have appealed against their convictions. We will refer to the respondents to the Director’s application collectively as ‘the respondents’ and individually by their surnames. Background 40 The prosecution case at trial, described broadly, was that in the early hours of 18 June 2023, the respondents committed various sexual offences against the complainant. They committed these offences first in a taxi that drove them and the complainant from the city to Bekele’s residence, and then at Bekele’s residence. The prosecution alleged that each act the subject of the charge on the information was committed in furtherance of a common purpose, and that liability for each act attached to each participant in the joint enterprise. The prosecution case as to the individuals who were party to an agreement in respect of each count varied according to what it alleged were the respective knowledge and participation of each individual at the time of each act the subject of the charge. Broadly speaking, the prosecution alleged that an agreement existed first between Bekele and Issak, and that Haile later joined the agreement. 41 The prosecution case was that the complainant was so heavily intoxicated that she was unable to consent to the alleged indecent assaults and acts of sexual intercourse, and that the respondents knew or were recklessly indifferent to the fact that the complainant was incapable of consenting. Specifically, as concerned the joint enterprise, the prosecution case as expressed in Opening was: -- 15 of 55 -- [2026] SASCA 9 Bleby and David JJA 12 We say that there was an agreement that had been reached earlier between the accused that one or more of them would engage in unlawful sexual acts with [the complainant], sexual acts irrespective of whether she was consenting or not. 42 Later in Opening, the prosecution explained: We say that by the time they’re seated in the back of that taxi, there’s an agreement between them. One or both of them intend to engage in unlawful sexual acts with [the complainant], sexual acts irrespective of whether she is consenting. In short, we say that they agree ‘We’re going to have sexual relations with his girl whether she consents or not’. 43 Elsewhere, the prosecutor referred to a necessary element of joint criminal enterprise as being an agreement that they ‘will commit the crime’ and an agreement ‘to commit the relevant offence’. 44 The complainant had no memory of the events incorporating the charged acts. CCTV footage from cameras in the city captured various interactions between the respondents and the complainant before they got into the taxi. CCTV footage from inside the taxi comprised the evidence of the charged acts alleged to have occurred in the taxi. Mobile phone video footage of each sexual act the subject of a charge alleged to have occurred in Bekele’s house comprised the evidence in respect of those counts. The Director’s application for permission to appeal against directed acquittals 45 The Director prepared a table setting out the charges, their basis and their disposition as a helpful aid on the appeal. We reproduce it here, with some minor modifications18 and highlighting the verdicts and directed acquittals: Count No. Offence (as laid) Accused Act Offender who committed the act Participants in the JCE Comment 1 Aggravated indecent assault. Bekele. Issak. Bekele touching the complainant’s genitals in the taxi. Issak in rear of the taxi with Bekele and complainant. Bekele. Acquitted of indecent assault (basic) by jury. Issak. 46 Directed acquittal on basis no evidence capable of establishing JCE. Charge amended to indecent assault (basic) following Issak’s directed acquittal. 2 Rape. Bekele. Issak. Act of fellatio upon Issak. Bekele forcing the Bekele. Directed acquittal on basis no Issak. Directed acquittal on basis no 47 18 Specifically, the bases of the directed acquittals on Count 2 are corrected from the Director’s table to reflect that Bekele’s directed acquittal was only on the basis that there was no evidence of an act of sexual intercourse and Issak’s directed acquittal was on both bases. See transcript T1044.2ff. -- 16 of 55 -- [2026] SASCA 9 Bleby and David JJA 13 complainant’s head into Issak’s lap as all three are seated in the rear of the taxi. evidence of act of sexual intercourse. evidence of act of sexual intercourse, and no evidence capable of establishing JCE. 3 Aggravated indecent assault. Bekele. Issak. Bekele touches the complainant’s genitals. Bekele. Guilty of indecent assault (basic) (majority verdict). Issak. Directed acquittal on basis no evidence capable of establishing JCE. Charge amended to indecent assault (basic) following Issak’s directed acquittal. 4 Rape. N/A. Withdrawn as it was duplicitous with count 5. 5 Rape. All respondents. Bekele engages in penile vaginal intercourse with the complainant. The Complainant is laying between Issak’s legs whilst Haile films it. Bekele. Guilty verdict (majority). Issak and Haile. Directed acquittal on basis no evidence capable of establishing JCE. 6 Rape. All respondents. Haile engages in penile vaginal intercourse with the complainant immediately following count 5. Issak is on the bed, and Bekele is present in the room. Haile. Guilty verdict (majority). Bekele and Issak. Directed acquittal on basis no evidence capable of establishing JCE. 48 7 Rape. All respondents. Unnamed male engaging in penile vaginal sexual intercourse with the complainant. Bekele and Haile present and speaking to the complainant and each other on camera. Unnamed male. Bekele and Haile. Directed acquittal on basis no evidence capable of establishing JCE. The prosecution conceded there was no case to answer for Issak on this count as he cannot be seen on camera. -- 17 of 55 -- [2026] SASCA 9 Bleby and David JJA 14 49 The Director’s application for permission to appeal raises the following issues: • whether there was evidence capable of establishing, beyond reasonable doubt, that there existed a joint criminal enterprise that contemplated the commission of each of Counts 2, 3, 5, 6 and 7 and to which: a. Bekele and Issak were party in respect of Counts 2 and 3; b. all three respondents were party in respect of Counts 5 and 6; and c. Bekele and Haile were party in respect of Count 7; • whether there was evidence capable of establishing, beyond reasonable doubt, that the act of fellatio the subject of Count 2 occurred; and • whether the judge should have granted the Director’s application to amend the information so as to allege indecent assault as an alternative to Count 2. 50 The appeals of Bekele and Haile raise the following issues: • whether the judge directed the jury inadequately with respect to prior inconsistent statements, occasioning a miscarriage of justice; • whether evidence admitted as complaint evidence was not complaint evidence and not admissible pursuant to s 34M of the Evidence Act 1929 (SA) (‘Evidence Act’); and • alternatively, whether the judge’s directions with respect to the complaint evidence were erroneous in law or occasioned a miscarriage of justice. The prosecution case and the evidence 51 On the evening of 17 June 2023, the complainant attended at the Zhivago nightclub in the city with her boyfriend, Mr Hamed. Over the course of the evening and into the early hours of 18 June, the complainant became heavily intoxicated. CCTV footage from inside the nightclub shows the complainant looking unsteady, and then falling over, shortly before 2:00am. A little after 2:00am, she was evicted from the nightclub on account of her intoxication. 52 Events following the complainant’s eviction and prior to her getting into the taxi were recorded by various CCTV cameras in the city. The complainant had almost no memory of those events and none of the subsequent events in the taxi or at Bekele’s residence. 53 The complainant walked out of the nightclub with Mr Hamed and sat in the door area (out of view of the CCTV) for about 24 minutes. Just before 2:30, Mr Hamed carried the complainant out of the door area and walked down Leigh Street with her. He put her down and, shortly after that, police spoke with him. The -- 18 of 55 -- [2026] SASCA 9 Bleby and David JJA 15 complainant got up off the ground but was unable to stand by herself. Mr Hamed walked her to a planter box where she appears to have vomited. Over the next 40 minutes or so, there were various interactions between the complainant, Mr Hamed and third parties that were indicative of the complainant being extremely intoxicated. These interactions included some other men engaging with them, one of them putting his arm around the complainant, and Mr Hamed pushing him away. 54 The respondents are first depicted in the CCTV footage in the vicinity of the complainant at 3:07am. Bekele first touched the complainant on the arm within a minute of appearing. Mr Hamed started fighting with one of the other men already on the scene. The complainant then walked back towards the police station entrance. Mr Hamed followed, as did Bekele and then Issak. A few minutes later, the complainant pushed Mr Hamed away and hugged Bekele. Over the next 25 minutes, CCTV footage depicts the complainant acting affectionately towards Bekele. This included hugging and kissing at 3:16am and hugging again at 3:27am, in the presence of Issak and Haile. In the course of this, Mr Hamed tried to grab the complainant. Bekele pulled the complainant towards him. At 3:31am, Mr Hamed started dancing around in an aggressive manner. He commenced fighting with another man. 55 Bekele is then seen facing the complainant and appearing to be talking to her. The complainant is seen to lean against the wall. Police came out of the station and took Mr Hamed in. The respondents then walked with the complainant down Hindley Street, looking back frequently. 56 At 3:32am, the complainant knelt on the ground and turned back towards Mr Hamed. Bekele pulled her up and they kept walking. The complainant stumbled again shortly after that. The respondents then took the complainant into an alcove. Bekele and the complainant kissed. 57 A different camera then depicts the complainant and Bekele running round the corner on Clubhouse Lane, holding hands. Bekele took the complainant behind a car. The complainant squatted down. Bekele turned to face her and then eventually helped her up. During the course of this interaction, Issak and Haile can be seen to approach and become visible on screen. 58 At 3:36am, the complainant put her arms around Bekele. Haile and Issak came over. Haile pointed towards a car park and they all walked towards it, with Bekele and Issak holding the complainant’s hands. Bekele then held the complainant round the waist. 59 Haile entered the car park, with Bekele, Issak and the complainant following behind. Haile appears to have been on his phone. He turned and watched Bekele and Issak help the complainant down the entry ramp, with the complainant holding both of their hands. The complainant squatted on the ground and Bekele and Issak both helped her stand up. They all continued to walk through the car park. Haile -- 19 of 55 -- [2026] SASCA 9 Bleby and David JJA 16 looked back. Bekele started to carry the complainant. Haile stood at the open exit door of the car park. Bekele ushered the complainant through the door. 60 The events that then occurred in the taxi were recorded on the CCTV in the taxi. The taxi pulled up at the curb where the respondents and the complainant were at about 3:40am. 61 Haile got into the front passenger seat of the taxi. Issak got into the rear passenger seat behind the driver. Someone can be heard saying, ‘the other two’. Both Haile and Issak both looked towards the footpath. Haile asked someone off screen, ‘do you want to sit in the front?’ The complainant and Bekele then appeared at the rear passenger door of the taxi. They got in, with the complainant in the centre, Bekele being in the rear left passenger seat. The complainant was therefore between Issak and Bekele. Bekele said, ‘Where’s KD?’ 62 At 3:42, the complainant’s legs were over Bekele’s legs. Bekele touched the complainant’s genital area. Bekele and the complainant kissed. The complainant leaned back onto Issak. The seatbelt alarm was sounding. The complainant said, ‘Oh shit’. She leaned right back onto Issak. Bekele then appeared to put his seatbelt on. The complainant straightened up, stuck a finger up towards the driver and made a face. Issak tried to pull her hands down. 63 The complainant adjusted her dress over her knees. Bekele put his hand up her dress and touched her genital area. The complainant leaned back onto Issak then came forward and kissed Bekele. Issak was smiling during this time. The complainant then leant back again. Issak touched her thigh. The complainant said, ‘Not in the car, not in the car’. She then adjusted her underwear, during the course of which she turned over with her head down towards Issak’s lap. Bekele’s hands were on her hips. Issak’s hand rubbed the complainant’s thigh, pushing up her dress slightly. Bekele’s arm was across the complainant’s back at this stage. The complainant and Issak then kissed, with Bekele’s arm still across the complainants back. 64 The complainant said, ‘Oh fuck, oh shit’ and moaned. She appeared to be in discomfort. Bekele and Issak were smiling at each other. 65 The complainant sat up and squirmed around. The driver looked back and said, ‘Hey mate, this car, it’s not your bedroom’ Bekele laughed, leant over, tapped the driver’s shoulder and said, ‘Yeah, I like that, I like that’. He then engaged the driver in conversation. During this, Issak gestured towards his lap with his head. The complainant put a finger to her mouth saying, ‘Shh’. She had one hand in Issak’s lap. She then pushed her hair to one side and leant down over his lap. Her head moved up and down (uncharged). Issak’s lap and the complainant’s face were obscured from the footage by the driver’s seat. -- 20 of 55 -- [2026] SASCA 9 Bleby and David JJA 17 66 The complainant lifted her head up and Bekele pushed her head back down towards Issak’s lap (Count 2). Her head was positioned down in Issak’s lap for over thirty seconds. 67 The seatbelt alarm went off and the driver said, ‘Can you plug in your seatbelts and sit properly?’ The complainant’s head remained in Issak’s lap. 68 The driver turned the overhead light on. Haile looked back and observed what was going on. The complainant sat up and said, ‘Sorry’. 69 The complainant reached for her seatbelt but did not put it on. She and Bekele spoke. She then leaned back against Issak. Bekele then pushed her head down onto his own lap. Issak grabbed her thigh and pulled her towards him. The complainant said, ‘Stop, stop, stop, stop. Let me breathe. Let me fucken breathe’. She then pulled her hair back and lowered her head into Issak’s lap. She sat up. Bekele had his hand on the back of her neck. The complainant said, ‘Stop’, again. 70 Bekele then pushed the complainant’s head down onto his own lap, which was obscured by the front passenger seat. Issak touched the complainant’s genital area under her dress. The complainant sat up and said, ‘No, stop’ to Bekele. 71 The complainant then leaned over towards Issak and moaned. Bekele touched her genital area. Issak’s arm was around the complainant. Issak then touched the complainant’s genital area. Bekele rubbed the complainant’s thigh. The complainant moved Bekele’s hand from her thigh. 72 Bekele then pushed the complainant’s head down towards his lap. The complainant resisted, and Bekele pushed again, succeeding in pushing her head down. 73 The complainant sat up, then she and Bekele spoke for a bit. She turned to Issak and said, ‘Tell him to calm down’, gesturing to Bekele. 74 Bekele said, ‘Where’s KD? Where’s KD? KD has to come bro’. 75 The complainant said to Bekele, ‘Calm down please’. Issak was touching her genital area. 76 Bekele said, ‘Shut up’ to the complainant. 77 The complainant then appeared to start crying. She leant towards Issak and put her arm round his neck. Bekele pulled her leg towards him and over his leg. 78 Bekele then touched the complainant’s genital area under her underwear (Count 3). He appeared to be mouthing something to Issak. The complainant appeared distressed. She pulled her dress down. Bekele said, ‘So rude, aren’t you? I, I, I, like rude bitches’. -- 21 of 55 -- [2026] SASCA 9 Bleby and David JJA 18 79 The complainant said, ‘I’m just finishing my period, I’m just finishing my period’. 80 Bekele said, ‘What are you crying for? The complainant responded, ‘Because you’re being so mean to me’. 81 The taxi stopped. Bekele pushed the complainant’s head into his lap again. Haile then got out of the taxi. Bekele got out also. The complainant said, ‘I feel sick’. Bekele helped the complainant out of the taxi. He then reached in and picked up her handbag. As the taxi drove off, Bekele’s hand was around the complainant. 82 The events the subject of charges at Bekele’s residence were captured by three files of mobile phone footage. Haile created each of the files. It is regrettably necessary to describe the contents of this footage in detail, given its circumstantial relevance to the prosecution case of joint criminal enterprise. 83 File 1 is nine seconds long. It includes audio. It shows Bekele engaging in penile vaginal intercourse with the complainant (Count 5). The complainant is lying on her back. Issak is seated behind the complainant. The complainant’s head appears to be in Issak’s lap or between his legs. Issak’s left arm is holding the complainant’s leg back. His right hand is holding a phone with the flash on, illuminating the complainant. 84 File 2 is one minute long. It does not include audio. It starts with Bekele engaging in penile vaginal intercourse with the complainant. The complainant is lying on her back. Her head is in Issak’s lap or between his legs. Issak is holding a phone in his right hand. The complainant appears distressed. Bekele slaps the complainants face. After 27 seconds, the phone moves away to a desk where Haile, who is doing the filming, can be seen to grab a condom. The camera pans back to Bekele still engaged in intercourse. 85 Bekele then stops and gets off the complainant. The complainant covers her genital area with her hands. The footage blurs for about five seconds. The angle then changes, from above the complainant’s head. Haile engages in penile vaginal intercourse with the complainant (Count 6). He is holding one of the complainant’s legs up to her chest. 86 File 3 is 31 seconds long. It includes audio. It starts with Bekele seated on the edge of the bed. The bed is shaking. Haile, who is filming, says, ‘Ask her, ask her’. 87 The camera moves round to show the complainant, naked, bent over a pillow. A fourth male is engaged in penile vaginal intercourse with her (Count 7). He is holding the complainant at her hips. The complainant is making distressed sounds. Bekele says, ‘Do you like black dick?’ The fourth man pauses and Bekele says, ‘Do you love black cock?’ -- 22 of 55 -- [2026] SASCA 9 Bleby and David JJA 19 88 The complainant says, ‘yes’. The fourth man squeezes the complainant’s buttocks. Bekele asks, ‘Do you like black or white cock?’ The complainant says, ‘Yes, black cock’. Bekele says, ‘Black cock, say it’. 89 The fourth man slaps the complainant’s buttocks a number of times. The complainant says, ‘I love black cock’. Throughout the exchange, she sounds distressed. 90 Bekele says, ‘What do you prefer? Which cock to you prefer?’ 91 The complainant says, ‘black cock’. 92 Bekele says, ‘black cock’. He says something that sounds like, ‘That’s what we want’. Haile laughs and makes a hand gesture to Bekele. Bekele makes a hand gesture to Haile. 93 Haile says, ‘We wanted this girl’. 94 The complainant can be heard saying, ‘fuck, fuck, fuck, fuck’. The ruling of no case to answer 95 At the close of the prosecution case, all respondents submitted that there was no case to answer. The judge indicted that she reserved the right to provide full and detailed reasons ‘should [she] be required to do so’ and ruled in the following terms: On the assumption that all evidence of primary fact considered at its strongest from the point of view of the prosecution is accurate, and on a further assumption that all inferences most favourable to the prosecution which are reasonably open and drawn, the evidence is incapable of producing in the mind of a reasonable person satisfaction beyond a reasonable doubt of the existence of a joint enterprise between Mr Bekele and Mr Issak in which Mr Haile later joined. It follows that there is no case to answer on all counts which rely upon joint enterprise as a pathway to guilt for those accused who are not alleged to have performed the physical act or acts constituting the offence charged. 96 The judge then identified the effect of that ruling with respect to each charge, the effects of which are set out in the table, above. On Count 2 (rape, Bekele causing the complainant to perform an act of fellatio on Issak in the taxi), she found Issak had no case to answer as a consequence of her ruling on joint enterprise liability. However, she also found that as against both Issak and Bekele, there was no evidence from which a properly instructed jury could be satisfied beyond reasonable doubt that sexual intercourse occurred. The directed acquittals on Counts 2, 3, 5, 6 and 7: joint enterprise 97 The question whether there was a case to answer on Counts 2, 3, 5, 6 and 7 asks whether it was open to the jury to conclude beyond reasonable doubt that the alleged joint enterprise existed at the relevant time in each case and, in respect of -- 23 of 55 -- [2026] SASCA 9 Bleby and David JJA 20 Count 2, that sexual intercourse took place. The prosecution case was that by the time Bekele and Issak entered the taxi, there was at least a tacit agreement between them that one or more of them would engage in sexual activity with the complainant, knowing or being reckless as to whether or not she was capable of consenting to that sexual activity. The prosecution case was also that by the time the sexual acts commenced in Bekele’s residence, Haile had joined in that agreement. 98 In McAuliffe v The Queen,19 the High Court explained the principle as a means of establishing the complicity of a secondary party to the commission of a crime, additional to the doctrines of aiding and abetting, counselling and procuring:20 But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. (Citation omitted.) 99 A person can participate in a joint criminal enterprise by being present when the crime is committed.21 The agreement need not be confined to specific criminal acts, for example, that each of the respondents would engage in the specific conduct that they did. Rather, as this Court observed in Alzuain & Ors v The King:22 It is an agreement to engage in that conduct which must be proved. Once that is proved, the only further element which must be proved to establish complicity in a crime, which was in fact perpetrated, is foresight on the part of the participant that that conduct might result in of the commission of the other crime. 100 The agreement need not be express; its existence may be inferred from all the circumstances, including the circumstances of the commission of the crime itself. In Osland v The Queen,23 the High Court approved the following statement by the New South Wales Court of Criminal Appeal in R v Tangye:24 (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding 19 (1995) 183 CLR 108. 20 McAuliffe v The Queen (1995) 183 CLR 108 at 114. 21 Huynh v The Queen (2013) 87 ALJR 434 at [38]; R v Tangye (1997) 92 A Crim R 545 at 557. 22 [2025] SASCA 67 at [537]. 23 (1998) 197 CLR 316 at [73]. 24 R v Tangye (1997) 92 A Crim R 545 at 556-557. -- 24 of 55 -- [2026] SASCA 9 Bleby and David JJA 21 or arrangement amounting to an agreement formed between them then and there to commit that crime. 101 In a case where the prosecution seeks to prove circumstantially the existence of a tacit agreement, the capacity to infer, beyond reasonable doubt, the existence of ‘an unspoken understanding or arrangement’ from the circumstances of the commission of the crime itself is an application of well understood principles of inference of fact from the whole of the circumstantial evidence.25 The whole of the evidence to be considered to this end includes the actions of each respondent as recorded by city CCTV, taxi CCTV and mobile phone at Bekele’s residence. That is notwithstanding that many of those actions occurred after the point in time that the agreement was alleged to have been formed. 102 At this stage it is convenient to address certain propositions raised by counsel for Issak. Counsel accepted that an agreement may be inferred from conduct. However, he submitted that acquiescence, support and even an identical but separately reached intention are not sufficient to establish an agreement. It is necessary for the existence of an agreement to be the only rational explanation for the conduct. The risk, he submitted, was in making an a priori assumption of the existence of a joint enterprise by reason of the person’s presence. In consequence, he submitted that it was: … manifestly insufficient for the Crown to point at the presence of a person at the commission of an offence, their knowledge of an offender, and their failure to prevent the offence as being in some way indicative that they must therefore be in on an agreement for the offence to be committed. Indeed, even participation in an offence by way of aiding and abetting is insufficient – it goes only to the participation element of the joint enterprise analysis. Before getting to that point, it is necessary to establish that there was an agreement in the first place. 103 The difficulty with this submission is that it fails to recognise the task of inference from the whole of the circumstantial evidence. It may be, in a given case, that any one, or more, of the aspects referred to would be insufficient to prove the existence of an agreement beyond reasonable doubt. However, it may be that evidence of a person’s presence, their knowledge of the offender and their failure to prevent the offence do, when considered as part of the whole of the evidence, provide a sound circumstantial basis for that inference. The person’s participation may also contribute to that circumstantial basis. 104 To rely on those matters in support of the existence of an agreement is not to assume the conclusion. To engage directly with a further submission of Issak in this regard, the fact that Issak was present in the taxi when Bekele touched the complainant’s vagina would not, by itself, prove the existence of an agreement. The prosecution did not suggest otherwise. Rather, it is one piece of circumstantial evidence relevant to whether an agreement was formed earlier, to be considered as part of the whole of the evidence. It would also be relevant to whether Issak 25 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535-539 (Gibbs CJ and Mason J). -- 25 of 55 -- [2026] SASCA 9 Bleby and David JJA 22 participated in the agreement at that stage, if the jury were to find, on all the evidence, that the agreement had been formed earlier. 105 Issak made a related submission, to the effect that what was required to be excluded beyond reasonable doubt was the alternative hypothesis that each defendant was acting in his own interests, rather than pursuant to any agreement. He explained it in this way: To bring it back to the facts of this case, the possibility that in my submission the evidence was not capable of excluding, on Mr Issak’s case, is: three men are out in town having a night together; they come across a female, and one of them, Mr Bekele in this case, seems to be making some headway in terms of romantic or sexual liaison with her; and then over the course of that sexual liaison developing, Mr Issak comes to think ‘I might be able to join in with this’, and does so and continues to do so. But it doesn’t mean that he’s formed any agreement with Mr Bekele. That’s the alternative hypothesis. 106 Issak raised this hypothesis as a strict alternative. However, this too must be considered in the context of the whole of the evidence. For example, Issak’s actions cannot be considered separately from Bekele’s actions at the same time. Whether or not a tacit agreement had been formed between them by the time they had entered the taxi is to be considered on the whole of the evidence including, for example, Bekele’s actions the subject of Count 2. 107 The respondents pointed to aspects of the evidence which they submitted supported the alternative hypothesis articulated by Issak. However, the question of a case to answer should not be approached on the assumption that there must be a strict dichotomy between the respondents acting in their own interests on the one hand and acting pursuant to a tacit agreement on the other. A respondent acting in accordance with a tacit agreement will still have been pursuing his own interests. 108 Rather, when it comes to the alternative hypothesis, the question for this Court is whether the evidence as a whole is capable of supporting, beyond reasonable doubt, the inference of the tacit agreement for which the prosecution contends, having regard to that alternative hypothesis. In a case based on a considerable number of items of circumstantial evidence, which descend to fine matters of detail, such as glances and smiles exchanged between the respondents, it is necessary to take care here not to usurp the function of the jury. 109 The most significant matters on which the Director relied in support of inferring the existence of an agreement were the circumstances in which the respondents all engaged in sexual activity with the complainant and participated when another was engaged in sexual activity with her. That is set out in detail above. The Director then pointed to the following matters. 110 The mutual intention of Bekele and Issak was evident from their behaviour leading up to getting into the taxi. They worked together to provide physical support to the complainant and usher her to the point where they engaged the taxi. Haile was present and cognisant of them doing this. These actions signified a -- 26 of 55 -- [2026] SASCA 9 Bleby and David JJA 23 mutual intention towards the complainant, given that none of them had any prior relationship with her that might enliven sympathy or responsibility of her welfare. 111 This ushering and support occurred in circumstances where the complainant had behaved affectionately towards Bekele almost immediately after encountering him for the first time. 112 Once they were in the taxi, Bekele and Issak both engaged in sexual touching of the complainant almost immediately, that is, within a minute. They were both touching her at the same time. 113 The taxi footage shows Bekele and Issak smiling at each other, engaging with the driver and having a general demeanour of joviality. The Director submitted that this was evidence of them observing and encouraging each other in their actions towards the complainant. 114 Next, Bekele clearly observed what the Director submitted was the uncharged act of fellatio immediately preceding Count 2, and then deliberately pushed the complainant’s head back down towards Issak’s groin. The Director submitted that this was an unambiguous act demonstrating the understanding between Issak and Bekele that they would engage in sexual activity with the complainant. Then, demonstrating the same understanding, Bekele pushed the complainant’s head towards his own groin, at the same time that Issak touched the complainant’s genital area. 115 In respect of the recorded acts at the house, the Director relied on Issak’s act in holding back the complainant’s leg and illuminating her with the torch light from his phone, while Bekele engaged in sexual intercourse with her. He also relied on Issak’s continued presence when Bekele and Haile both engaged in sexual intercourse with the complainant. 116 The Director relied on a number of matters in support of the inference that Haile joined the agreement. Haile was present and observed Bekele and Issak as they walked through the city with the complainant. He remained present in the house after having observed Bekele and Issak engage in sexual activity with the complainant in the taxi. He then filmed Bekele having sexual intercourse with the complainant. He then obtained a condom from the desk when Bekele was still engaged in sexual intercourse. The Director submitted that this demonstrated his state of mind of an understanding and preparedness between him and others in the room that he would be the next to engage in sexual activity with her. 117 Haile then commenced sexual intercourse with the complainant immediately after Bekele finished. He encouraged Bekele to ask the complainant questions about their sexual contact with her as the fourth male was engaging in intercourse with the complainant. Then he said, on camera, ‘we wanted this girl’. 118 The respondents took issue with the capacity of a number of these pieces of evidence to support the existence of an agreement. First, they submitted that the -- 27 of 55 -- [2026] SASCA 9 Bleby and David JJA 24 mere fact of Bekele and Issak helping the complainant to a taxi did not indicate any intention or agreement to commit any sexual offence against her. He submitted that the fact of the complainant being left with Bekele and Issak could be no more than happenstance. Similarly, the fact of the complainant being affectionate towards Bekele gave no support to the existence of an agreement. Rather, the sequence of events supported Issak and Haile supporting Bekele’s individual endeavour to engage sexually with the complainant. 119 Issak also submitted that it was unclear why the prosecution chose him as co- conspirator before getting into the taxi, when Haile was as involved in the lead up. He submitted that the prosecution was effectively retrofitting the case to match the fact that it was Issak who got into the back of the taxi. 120 The difficulty with these submissions is that they attack individual pieces of evidence as individual pieces of evidence, and not as parts of the whole of the circumstantial case. Any one of these pieces would likely not, by itself, demonstrate the necessary agreement. However, they are not to be considered in isolation. Thus, for example, the fact that Issak got into the back of the taxi is a piece of circumstantial evidence relevant to the allegation that there was an agreement between him and Bekele. That is to be considered together with the fact that he then did engage cooperatively with Bekele in engaging in sexual acts with the complainant in the taxi. That must also be considered together with the actions of each of them in the lead up to getting into the taxi. That does not involve ‘retrofitting’ the case. It is simply an exercise in considering the whole of the evidence. 121 Issak then submitted that the acts in the taxi were equally indicative of Bekele’s and Issak’s individual intentions to engage with the complainant. He complained that the Crown engaged in circular reasoning to the effect that just because each of them had touched the complainant, there must have been an agreement. This again misunderstands the nature of the circumstantial case. The touching engaged in by each of them, together with all of the evidence including, for example, the exchanged smiles between them, was capable of supporting, when considered as part of the whole of the evidence, the existence of an agreement. Issak’s submission ignored the effect of the observation made earlier, that the fact that each was pursuing their own sexual interests was not a mutually exclusive proposition from the existence of an agreement. 122 With respect to the acts the subject of the uncharged act of fellatio and Count 2, Issak submitted that Bekele pushing the complainant’s head down towards Issak’s groin did not give any support to the existence of an agreement. Issak submitted that whether he acquiesced in Bekele’s actions was not to the point; the prosecution case again assumed the existence of an agreement. 123 We reject this submission. Issak acquiescing in Bekele’s pushing the complainant’s head down was a piece of circumstantial evidence that, when considered together with the whole of the evidence, was capable of supporting the -- 28 of 55 -- [2026] SASCA 9 Bleby and David JJA 25 inference that there was an agreement. Again, when considered alone, it would likely be insufficient to prove the existence of an agreement beyond reasonable doubt. However, it was not required to be considered alone. 124 Issak made a submission in similar terms with respect to the footage of him holding the complainant’s leg while Bekele engaged in sexual intercourse with her. He made a similar submission with respect to him remaining in the room while Bekele and Haile had sexual intercourse with the complainant. These submissions meet the same response. Each piece of evidence is to be considered in conjunction with the others, as part of the whole body of circumstantial evidence. 125 Issak referred to R v Chishimba (‘Chishimba’),26 in which a 15-year-old girl had become intoxicated with a friend. She was introduced to two men and went back to the house of those men where a number of men had sexual intercourse with her. A majority of the New South Wales Court of Criminal Appeal (Macfarlan JA, James J agreeing, McCallum J dissenting) held that the evidence was incapable of establishing the existence of a joint criminal enterprise. Macfarlan JA referred to the following statement of that Court in Phan v R:27 “ … mere acquiescence or assent to a crime does not make a person liable as a principal in the second degree. What was needed in such a case is proof that the principal in the second degree was linked in purpose with the person actually committing the crime, and was by his or her words or conduct doing something to bring about, or rendering more likely, through encouragement or assistance, its commission”. 126 Macfarlan JA observed that this and other authorities indicated that:28 … proof of “encouragement” of the commission of a crime ordinarily requires proof that the accused took some active steps to indicate to the perpetrator his or her approval of the perpetrator’s conduct, such that the accused and the perpetrator may be regarded as being linked in purpose. Expressions, gestures and other actions, as well as words, will qualify as active steps if they are intended to communicate approval to the perpetrator of the perpetrator’s actions. Mere presence when a crime is committed will not generally however so qualify unless the circumstances are exceptional, such as they were in Russell where the moral duty of a father to intervene to save his wife and children and exercise control over the situation gave to the father’s presence and inaction “the quality of participation” in the wife’s criminal acts … . 127 In Chishimba, Macfarlan JA held that there was no evidence of events or communications prior to the commission of the relevant act of sexual intercourse that was capable of assisting in proving that the appellants participated in a joint enterprise.29 Any such agreement had to be inferred from the circumstances of the intercourse itself. There was not even any evidence capable of identifying which 26 [2010] NSWCCA 228. 27 (2001) 123 A Crim R 30 at [69], cited in R v Chishimba [2010] NSWCCA 228 at [145]. 28 R v Chishimba [2010] NSWCCA 228 at [148]. 29 R v Chishimba [2010] NSWCCA 228 at [149]. -- 29 of 55 -- [2026] SASCA 9 Bleby and David JJA 26 appellant had engaged in the act; the agreement had to be inferred from the mere presence of the appellants in the room. Macfarlan JA concluded:30 The Crown submission on appeal as to encouragement, when shorn of matters that were not available to be taken into account … amounted to a submission that the inference of a joint criminal enterprise should be drawn from the entry of the appellants into the bedroom whilst the complainant was sleeping and their failure to intervene or leave when one of the men commenced to have sexual intercourse with the complainant … This was not in my view a sufficient basis for the jury to conclude beyond reasonable doubt that the appellants encouraged the unlawful conduct. I recognise that there may be some circumstances in which presence without verbal communication may amount to encouragement to commit an unlawful act. For example, if the evidence had been that the appellants were standing around the bed and, as Mr Chinyani described as occurring at an apparently later point of time, laughing, the position may have been different. If they had stood there naked, that again may have led to a different result, although I note the observation in Cowell as to the difficulty of inferring a prior agreement to commit an unlawful sexual assault simply from the fact that the appellant in that case was standing naked beside the bed (see [143] above). However lying or sitting on the floor in the darkened bedroom without (so far as the evidence suggested) making any sound, cannot in my view be regarded as evincing an encouragement to the perpetrator of the act who in these circumstances cannot even be assumed to have necessarily had the other appellants in his vision. (Emphasis added.) 128 It is immediately apparent from the emphasised passage that the evidence available from the various pieces of footage in the present case was of a materially different quality than that available in Chishimba. Issak drew on this authority to emphasise the difference between the doctrine of joint criminal enterprise and aiding and abetting, which was not charged. He also emphasised the distinction that Macfarlan JA drew between evidence of a sexual interest in a person and an intention, let alone an agreement, to have unlawful sexual relations. These distinctions may be accepted. However, Chishimba does not aid Issak’s submission that the evidence was incapable of supporting the inference, beyond reasonable doubt, of an agreement. 129 It is necessary to consider the whole of the evidence, comprising the CCTV footage of the events in the city, the taxi CCTV footage and the mobile phone footage. This footage in total is lengthy and evidences a series of interactions which, when viewed together as a whole, paint a picture from which the existence of a tacit agreement of the nature alleged by the prosecution may easily be inferred. These extend from the coordinated actions of the three men with respect to the complainant and each other in the city, to the cooperative acts and glances between Bekele and Issak in the taxi, and then to the cooperative circumstances of the sexual acts in the bedroom and their filming. 130 It was clearly open to the jury to exclude, as a reasonable possibility, the alternative hypothesis that each respondent was only acting opportunistically in 30 R v Chishimba [2010] NSWCCA 228 at [151]. -- 30 of 55 -- [2026] SASCA 9 Bleby and David JJA 27 his own interests. We are satisfied that the totality of the evidence is capable of establishing, beyond reasonable doubt, the existence of an agreement that Bekele and Issak formed no later than on their entry into the taxi and in which Haile joined no later than when the sexual acts occurred at Bekele’s residence. Whether a jury reaches that conclusion beyond reasonable doubt is a matter for it. 131 As to Haile’s statement, ‘We wanted this girl’, there was some dispute at trial as to the exact words, with a suggestion that he actually said, ‘We won this girl’. However, if Haile’s statement was admissible, the difference in wording is of little, if any, consequence. The prosecution submitted that this statement was admissible against all three respondents under the co-conspirator’s rule, which provides a basis for admissibility as a statement made in furtherance of the agreement:31 That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi32. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime. (Citation in original.) 132 The prosecution case was that this statement demonstrated Haile’s participation in the joint enterprise (and was therefore admissible against Haile) and the nature and extent of all offenders’ participation and intention in furtherance of the agreement (and was therefore admissible against all respondents). This latter use must be preceded by reasonable evidence of preconcert to commit an offence.33 However, if there is evidence capable of proving the existence of an agreement, this statement would be admissible if it is made in furtherance of the agreement to prove the nature and extent of the participation. 133 For the reasons given earlier, there was evidence capable of proving the existence of an agreement. The question then is whether the statement can be said to have been made in furtherance of the agreement. A mere relation of some past transaction is inadmissible against the putative co-conspirators.34 In Tripodi v The Queen,35 the High Court explained:36 31 Ahern v The Queen (1988) 165 CLR 87 at 94-95. 32 (1961) 104 C.L.R. at p.7. 33 Catanzariti v The Queen [2021] SASCA 110 at [166]. 34 Catanzariti v The Queen [2021] SASCA 110 at [168], citing JD Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) 1206. 35 (1961) 104 CLR 1. 36 Tripodi v The Queen (1961) 104 CLR 1 at 7. -- 31 of 55 -- [2026] SASCA 9 Bleby and David JJA 28 It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. ... (Emphasis added.) 134 Haile made the statement in an exultant tone and made a hand gesture to Bekele, in response to the complainant finally answering, ‘black cock’ to the repeated questioning, and Bekele saying something like, ‘We wanted this’. This all occurred while the fourth man was still having sexual intercourse with the complainant and had just slapped her. 135 The statement was not merely narrative of something that had taken place. It was a triumphant utterance of accomplishment made during, and at the culmination of, execution of the alleged agreement. It was made in response to events as they were unfolding pursuant to the alleged agreement. 136 The statement was admissible against all respondents. This was not to show the existence of an agreement, which was capable of being inferred from other evidence. Rather, the statement was admissible as having been made in furtherance of the agreement. It was relevant to showing the nature and extent of the respondents’ participation in the agreement, in that it can be inferred from the statement that the agreement contemplated sexual intercourse with the complainant without, or with reckless indifference as to, her consent. Scope of the joint enterprise: an agreement to have sexual intercourse ‘without consent’ 137 On 10 December 2025, after the Court had reserved its decision on the appeal, counsel for Issak wrote to the Court, drawing attention to the decision of the New South Wales Court of Criminal Appeal in Hawell v R; David v R; Hawell v R (‘Hawell’).37 Counsel requested leave to file written submissions about the effect of this decision on the appeal. The Court granted the parties leave. Issak and Haile filed further written submissions and the Director filed further written submissions in response. 138 In Hawell, three applicants were convicted of various sexual offences, including aggravated sexual assault, in respect of events at a buck’s party. The prosecution relied on principles of joint criminal enterprise in respect of 10 of the counts alleged. 37 [2025] NSWCCA 210. -- 32 of 55 -- [2026] SASCA 9 Bleby and David JJA 29 139 The New South Wales offence of aggravated sexual assault, proscribed in s 61J of the Crimes Act 1900 (NSW), was relevantly comparable with the offence of rape proscribed by s 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). Section 61J(1) provided: 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. 140 Section 61HE(3)(b) then provided, in effect, that a person was deemed to know that an alleged victim did not consent to the sexual activity if the person was reckless as to whether the alleged victim consented to the sexual activity. 141 The Court of Criminal Appeal, after referring to various authorities,38 explained the scope of the concept of recklessness for the purposes of this offence:39 As Lee and Tuuholoaki make clear, recklessness for the purposes of sexual assault in New South Wales is made out where the accused realises there is a possibility the other person does not consent to sexual intercourse but proceeds regardless (sometimes called “advertent recklessness”) or where the accused does not consider at all whether the other person is consenting (sometimes called “inadvertent recklessness” and called “non-advertent recklessness” in Lee ). 142 The concepts of ‘advertent’ and ‘inadvertent’ recklessness here outlined reflect the forms of reckless indifference described in ss 47(a) and 47(c) of the CLCA and which apply to the offence of rape in s 48. Section 47 provides: 47—Reckless indifference For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she— (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed. 38 Including Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170 (‘Lee’) at [146]-[184] and Tuuholoaki v R [2024] NSWCCA 135 (‘Tuuhoalaki’) at [244]-[276]. 39 Hawell [2025] NSWCCA 210 at [146] (Free JA, Hamill and Rigg JJ). -- 33 of 55 -- [2026] SASCA 9 Bleby and David JJA 30 143 In Hawell, the prosecution case was put, and the judge directed the jury, on the basis that the applicants were participants in a joint criminal enterprise to have group sex with women ‘with or without their consent’. However, as the Court explained, it was fundamental to the basis of joint enterprise liability that the Crown was required to prove beyond reasonable doubt an agreement to commit a crime.40 The actus reus of the offence was sexual intercourse without consent.41 The Court considered that the concept of ‘advertent recklessness’ was ‘capable of being coherently considered in conjunction with principles of joint criminal enterprise in relation to the charges of [aggravated sexual assault]’.42 However, that did not permit the description of any agreement to commit the crime as anything other than an agreement to have sexual intercourse ‘without consent’.43 144 The Court held that an agreement to engage in sexual intercourse ‘with or without consent’, instead of just ‘without consent’ was not an agreement capable of founding a joint criminal enterprise. The trial judge erred in directing the jury to that effect:44 The trial judge’s references to an agreement to have sexual intercourse, or sexually assault or touch “with or without” the consent of the complainant bore close similarity to her Honour’s directions regarding the “state of mind” (see above at [94], and further below), which relied upon consensual as well as non-consensual activity. This amplified the prospect of the jury not understanding the significance of the need for agreement to commit the crime of sexual assault. The phrase can be seen to be similar enough to the respondent’s suggestions of an intention to have sexual intercourse “regardless of whether the complainant was consenting” when understood in light of the oral submission for the respondent that the Crown was able to maintain liability in this case on the basis of an agreement to have sexual intercourse, which then crystallised into a crime when the complainant did not in fact consent. An agreement to have sexual intercourse with a person is not an agreement to commit a crime. The actus reus of this crime, which needed to be the subject of the agreement, was sexual intercourse without consent. For the reasons given thus far, we are of the view that error has been established in describing the joint criminal enterprise by reference to sexual intercourse, assault or touching “with or without” consent (instead of “without” consent), inclusion of inadvertent recklessness in the definition of knowledge of absence of consent for the purpose of element 4, and inferentially in the description of the joint criminal enterprise. 145 Issak submitted that this Court should follow this analysis of principle unless convinced that it was ‘plainly wrong’.45 There is no reason to doubt the analysis of principle. The Director did not suggest to the contrary. The question is the relevance of the analysis to this case. 146 As set out earlier, the prosecution opened in terms that the agreement was to have sexual intercourse with the complainant ‘whether she was consenting or not’. 40 Hawell [2025] NSWCCA 210 at [126]. 41 Hawell [2025] NSWCCA 210 at [134]. 42 Hawell [2025] NSWCCA 210 at [189]. 43 Hawell [2025] NSWCCA 210 at [189]. 44 Hawell [2025] NSWCCA 210 at [190]-[191]. 45 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]. -- 34 of 55 -- [2026] SASCA 9 Bleby and David JJA 31 As counsel for Issak observed, counsel for Haile at trial argued that this impermissibly extended the scope of the agreement capable of being alleged, in just the way that was since found to have occurred in Hawell. The trial judge appears to have rejected that argument. 147 Issak submitted, having regard to Hawell, that even if the evidence was capable of proving beyond reasonable doubt the existence of an agreement, it was not capable of establishing beyond reasonable doubt that the agreement was to engage in sexual intercourse without consent. He submitted that the video footage evidence simply did not allow that inference to be drawn. 148 We reject this submission. As the Director submitted, the prosecution case was that each of the respondents observed and was aware of the complainant’s very high level of intoxication. The complainant’s extremely intoxicated state is apparent from the video footage. The respondents had a case to answer of ‘advertent recklessness’ (which concept is the subject of s 47(a) of the CLCA), to use the phrasing of the New South Wales Court of Criminal Appeal. That case was that as participants to an agreement, they must have known, or been aware of the possibility, that the complainant was too intoxicated to be able to consent. This, in turn, demonstrated their agreement that sexual intercourse without her consent should occur. 149 Hawell suggests that the prosecution’s formulation at trial, insofar as it reflected the ‘with or without consent’ approach to the asserted agreement, was in error. Accepting, for the sake of argument, that that is so, it makes no difference to the state of the evidence. There was a case to answer. Unlike in Hawell, this issue did not proceed to directions because the judge directed acquittals on the counts that relied on principles of joint criminal enterprise. Had these charges proceeded to verdict, it would have been the duty of the trial judge to direct the jury according to law. The fact that she might not have done so, as indicated by her response to Haile’s submissions on this very topic, is not to the point. There was a case to answer. The directed acquittal on Count 2: proof of sexual intercourse 150 The Director pointed to the following matters as supporting the inference, beyond reasonable doubt, that the complainant performed an act of fellatio on Issak in the taxi, the subject of Count 2: • the complainant’s hands in Issak’s lap in the moments leading up to the alleged act, consistent with manipulating clothing; • the complainant pulling her hair to one side before leaning towards Issak in relation to the uncharged act that Bekele observed before Bekele’s actions the subject of Count 2; • the complainant’s words about, and appearance consistent with, having difficulty breathing; -- 35 of 55 -- [2026] SASCA 9 Bleby and David JJA 32 • the position of the complainant’s head with respect to Issak’s groin; • the movement of the complainant’s head and torso as her head is positioned near Issak’s groin; • Issak’s facial expression and demeanour at the time the complainant’s head is positioned near his groin; and • Bekele’s and Issak’s facial expressions and demeanour as the act the subject of Count 2 is occurring. 151 Having viewed the video and having reference to the matters listed above which are incidents of what is portrayed in the video, it was clearly open to the jury to conclude, beyond reasonable doubt, that the complainant was performing an act of fellatio on Issak. To find that there was no case to answer, presumably on the basis that Issak’s groin area and the complainant’s mouth were obscured, again constitutes a failure to engage with the capacity of circumstantial evidence to prove a fact beyond reasonable doubt. Conclusion on the no case to answer rulings 152 There was manifestly a case to answer both in respect of the existence of a joint criminal enterprise and in respect of an act of fellatio the subject of Count 2 having occurred. In ruling that there was no case to answer on the charges caught by these aspects of the prosecution case, the judge erred. Permission to appeal 153 As noted earlier, the Director has applied for permission to appeal pursuant to s 157(1)(b)(ii) of the CPA. It is well understood that an appeal of this nature engages squarely considerations of double jeopardy. In R v Donovan (‘Donovan’),46 this Court noted that the application of double jeopardy principles to the determination of an application for permission to appeal against an acquittal has been regarded as stronger than in the case of an application for permission to appeal against sentence.47 154 Donovan concerned an application by the Director for permission to appeal against an acquittal on a charge of causing death by dangerous driving. The Court refused permission to appeal. In doing so, it observed:48 Assuming that there is a right to appeal against an acquittal, or at least the right to seek permission to do so, the need to observe and give effect to principles of double jeopardy will usually require that the Director demonstrate that there are considerations which, though they must include the outcome or merits, are broader than the outcome or merits of the particular case before the Court. That will usually be easier to demonstrate where the application is concerned with matters of law or principle which may transcend the 46 [2025] SASCA 7. 47 R v Donovan [2025] SASCA 7 at [15]. 48 R v Donovan [2025] SASCA 7 at [23]-[24]. -- 36 of 55 -- [2026] SASCA 9 Bleby and David JJA 33 particular case before the Court, and which may have an important bearing on the administration of justice more generally. Associated with these considerations, it may be observed that the examples given by the Director were clearly not all errors of fact. An error about the elements of an offence is an error of law. But let it be assumed that a trial judge has made an error of fact. Indeed, let it be assumed that a trial judge has made an egregious error of fact. Let it also be assumed that the error is material in the sense that it is an error capable of affecting the outcome. For these purposes it must be assumed that any error has been made in good faith, and that the trial process has not been wholly undermined and vitiated. In the ordinary case, it is difficult to see how the Director could demonstrate that material errors of fact, rather than material errors of law or principle, will engage questions of high public policy of sufficient importance to the interests of justice that they have the capacity to overcome the common law principles against double jeopardy.49 (Footnote in original.) 155 The Court went on to reiterate that the case must be rare and exceptional before a grant of permission to appeal will be countenanced. It explained:50 Those circumstances may raise, for example, the need to consider the principled intervention of this Court to address an error or outcome that has the capacity to undermine public confidence in the administration of justice. 156 The complaint in the present case is one of error of law, to the effect that the judge erred in holding that there was no case to answer on the identified charges. It has a different character than, for example, an acquittal on a trial by judge alone, based on an error of fact. 157 The error of law must be capable of affecting the verdict. Here, that is self-evident. All three respondents had a case to answer. An acquittal was by no means inevitable. Contrary to the submission of Issak, the Director’s case on appeal was not a case that ‘boiled down to its own facts’. Whether the evidence was capable of establishing beyond reasonable doubt the existence of the alleged agreement was a question of law. 158 The difference in conclusion we have reached is not merely a matter of taking a different view of the evidence from that taken by the trial judge. The trial judge explained the reasoning exercise correctly in her ruling. She was not asked to provide detailed reasons for her conclusion, even though she offered to do so if requested. Nevertheless, when regard is had to the whole of the evidence, and not merely each piece in isolation, it is difficult to see that the ruling of no case to answer constituted anything other than a misapplication of principle. 49 Cf Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [15]-[20] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); R v Henderson (2023) 142 SASR 507, [34]-[42] (Livesey P and David JA). 50 R v Donovan [2025] SASCA 7 at [25]. -- 37 of 55 -- [2026] SASCA 9 Bleby and David JJA 34 159 The respondents (and in particular Issak) emphasised the passage in R v Brougham51 that explained that not even a contrary finding of a case to answer would necessarily result in a grant of permission to appeal:52 However, the words of s 352(1)(ab)(ii) are wide enough to capture the quite different kind of case where the elements of the charge are agreed and the defence contention is simply that the evidence is insufficient to prove one (or more than one) of those elements beyond reasonable doubt. In such circumstances, the mere fact that the trial judge errs in deciding that there is no case to answer will not necessarily be sufficient to warrant a grant of permission to appeal, for the prosecution case may well still be quite weak and such that an acquittal may be called for in any event. Thus, even if the Court of Criminal Appeal considers that there was a case to answer, it will be necessary for the Court to also consider whether permission to appeal is warranted in all the circumstances and, even if it is, whether the appeal should nevertheless still be dismissed pursuant to the residual discretion connoted by the use of the term “may allow” (italicised above).53 The following remarks by Burchett AUJ (with whom Malcolm CJ and Wheeler JJ concurred) in R v Turner are helpful here:54 [24] For these reasons, the appeal fails. But, before parting with the case, I should make it clear that, had the Crown shown there was a case to answer, an order for a new trial made pursuant to s 690(3) would not by any means automatically have followed. Section 690(3) provides that the Court “may order a new trial”. A discretion is involved, and in its exercise the Court should regard the principle of double jeopardy, not as abrogated, but as modified, by the Crown’s right of appeal, which, as I have said, Wickham J has described as “unique”. It is for a special case, and where a verdict is directed on the ground the evidence is inadequate, but this Court thinks there was just enough to go to the jury, public justice may call only weakly for a further hearing, while private justice to the respondent may require full weight to be given to the fact that once already he has stood his trial. (Footnotes in original.) 160 In the present case, the case to answer cannot be said to have been weak. It was based on a considerable amount of detailed video footage which, when viewed as a whole, painted a picture of three men preying on an obviously highly intoxicated young woman, late at night, acting in concert to direct her away from her boyfriend and into a taxi and then cooperatively perpetrating various sexual acts on her. When all the evidence is viewed as a whole, the circumstantial case 51 (2015) 122 SASR 546. 52 R v Brougham (2015) 122 SASR 546 at [64]-[65]. 53 As to the residual discretion in such circumstances, in R v PL (2009) 199 A Crim R 199, Spigelman CJ (with whom McClellan CJ at CL and RA Hulme J concurred) stated: [80] … The issue that has arisen for the first time with respect to s 107, is whether the discretions Found within the words “may … quash the acquittal” and “may order a new trial” are relevantly unconfined. … [83] It is well established that the word “may” appearing in some legal texts must be understood as “must”. With respect to a legislative scheme that overturns a long established fundamental principle of the criminal law, the word “may” cannot be so construed. The double jeopardy principle is of that character. (Cf R v Snow (1915) 20 CLR 315 esp at 322, 362; R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616 at [32]-[34]; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [26]-[32]). 54 R v Turner (2001) 25 WAR 258. -- 38 of 55 -- [2026] SASCA 9 Bleby and David JJA 35 that this was done pursuant to a joint enterprise, constituting an agreement to have sexual intercourse with the complainant without her consent, was relatively strong. 161 Issak and Haile further submitted that the fact that the prosecution had formulated its case of a joint enterprise in terms that reflected the ‘with or without consent’ formulation, held by the Court in Hawell to be erroneous, fortified their resistance to a grant of permission on the basis of double jeopardy. Should the matter be remitted, these respondents would have to face a case where the prosecution would ask the finder of fact to reject as a reasonable possibility a case that it put at first instance. 162 The error of the prosecution in opening was to describe the scope of the alleged agreement too widely. Ultimately, as observed earlier, it would have been the duty of the judge to correct the prosecution case in her directions to the jury. The fact that on a retrial the prosecution would be confined to a narrower case than it alleged at the first trial does not mean that it would be changing the facts on which it relied. Rather, the prosecution would be confined to a case to which, as a matter of law, it was always confined. 163 It is difficult to see that the subsequent recognition of this necessary confinement of the prosecution case somehow increases the force of the double jeopardy considerations that oppose a grant of leave. The double jeopardy considerations are, in any event, clear and real. 164 That said, the directed acquittals have the clear capacity to undermine public confidence in the administration of justice. In the circumstances of this case, we are satisfied that this consideration outweighs the principles of double jeopardy that would attend on the respondents being tried again. Accepting the existence of a residual discretion under s 158(4)(b) of the CPA, we nonetheless grant the Director leave to appeal, allow the appeal, quash the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile and Counts 2, 3, 5, 6 and 7 for Issak. We order a new trial on each of those counts. The application to amend the information 165 Following the ruling of no case to answer, the prosecution applied, pursuant to s 128(2)(b) of the CPA, to amend the information to charge Bekele with indecent assault. The act said to constitute the indecent assault was Bekele’s action the subject of Count 2, being his forcing the complainant’s head down towards Issak’s groin. The prosecutor said, in Opening: That second or that act of Mr Bekele forcing [the complainant’s] head to Mr Issak’s lap for her to perform fellatio upon him is the subject of count 2 on the information so the offence of rape. 166 The judge held that the statutory alternative of indecent assault was not open. She held that the evidence of the conduct remained admissible as an uncharged act. The ruling itself did not explain the decision. However, it appears from the -- 39 of 55 -- [2026] SASCA 9 Bleby and David JJA 36 transcript that the judge accepted the submission of counsel for Bekele, which was in the following terms: In my submission this is not an alternative to the rape. It might have been for Mr Issak, but it’s not the same conduct that constitutes the rape. In my submission the rape is constituted by Mr Issak’s actus. It’s his acts that constitute the rape, which is fellatio. This creates a new separate offence for Mr Bekele. This offence creates liability for another set of acts committed by another person. 167 Immediately before ruling, the judge said to the prosecutor: Mr Allen, what do you say about the submission that now I have found a no case to answer on the basis of joint enterprise and your case with respect to Mr Bekele was that he was liable via joint enterprise principles for count 2 and Mr Issak was the principal as it were, that that changes the landscape and so what is being charged is a substantive offence against him of indecent assault as opposed to one of joint enterprise liability? 168 The prosecutor maintained that the actus reus in both cases was Bekele’s act of pushing the complainant’s head down onto Issak’s groin. The judge then ruled that the alternative charge was not available. The inference is available that she did so on the basis that Count 2 charged Bekele with rape by reason of his participating in a joint criminal enterprise, whereas the proposed alternative charge of indecent assault relied on Bekele’s act of pushing. 169 The information particularised Count 2 (rape) in the following terms: Bedhane Tarika Bekele and Sadam Hussein Issak on the 18th day of June 2023 at Adelaide and in other places, engaged or continued to engage in sexual intercourse with [the complainant] by causing her to perform an act of fellatio on Sadam Hussein Issak, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting. 170 The prosecution opened by describing the act the subject of Count 2 as Bekele forcing the complainant’s head into Issak’s lap for her to perform fellatio on Issak. In the course of argument on the no case submission, the prosecutor described Bekele as the ‘principal’ on a hypothetical case of aiding and abetting. That reflected the prosecution case that the actus reus of the offence of rape was Bekele pushing the complainant’s head down onto Issak’s penis. 171 To the extent that the judge relied, in refusing the amendment application, on Bekele’s exposure to Count 2 (rape) being only on the basis of joint enterprise, that did not reflect the prosecution case. Moreover, it was inconsistent with the judge’s own ruling of no case to answer. The judge had already found that Bekele had no case to answer on Count 2 only on the basis that there was no evidence that sexual intercourse had occurred. She did not do so on the basis that there was no evidence capable of establishing joint criminal enterprise beyond reasonable doubt. -- 40 of 55 -- [2026] SASCA 9 Bleby and David JJA 37 172 Counsel for Bekele maintained on appeal that the alternative charge was not based on the same conduct as Count 2. In this regard he relied on the observations of Kourakis CJ in the Court of Criminal Appeal in R v MJJ; R v CJN:55 To my mind, the better solution to the conundrum lies in the power of the Court to amend an Information to substitute a count charging indecent assault for the count charging unlawful sexual intercourse.56 There is an important limitation on the exercise of that power just as there is on the power to return an alternative verdict. The conduct of the accused on which the alternative charge of indecent assault is based must be the same conduct on which the charge of unlawful sexual intercourse was based. If the same conduct, save for the issue of whether that conduct resulted in intercourse, is charged then it can be accepted that the charge of unlawful sexual intercourse in general terms puts the accused on trial for both the pleaded charge and on the lesser alternative of indecent assault.57 If that is right, then there is arguably a power to amend the charge to plead the alternative if there is no case to answer on the primary offence. Of course, it may, in a particular case, still be unfair to leave the alternative to the jury. (Counsel’s emphasis; citations in original.) 173 The difficulty with this passage for Bekele is that the proposition, that the factual basis for the proposed alternative charge was different from that for Count 2, was incorrect. Counsel submitted at trial, and maintained on appeal, that Bekele’s liability for Count 2 could only be by way of joint criminal enterprise. While there might have been a basis for alleging it in that way, that is not the approach the prosecution took. As set out earlier, the prosecution alleged that the conduct the subject of Count 2 was Bekele’s act of pushing the complainant’s head down onto Issak’s penis. That approach may have carried a degree of risk, but that was the prosecution case. 174 Bekele’s expressed view, that this was not the appropriate approach and that his liability could only have been alleged by operation of principles of joint enterprise, was immaterial, at least for present purposes. The prosecution case was otherwise and was reflected in the judge’s no case ruling. Once it is understood that the proposed alternative charge was, in fact, based on the same act by Bekele on which Count 2 was based, the objection to the availability of the alternative charge falls away. 175 It is difficult to see that allowing the amendment to the information would have occasioned unfairness to Bekele. There is no suggestion that his defence would have been conducted differently. Nonetheless, were this the only error established, we would be disinclined to grant permission to appeal. We do not think that the interests of justice favouring a grant of permission would outweigh the force of the applicable double jeopardy considerations, in circumstances where the alternative charge could have been laid from the outset. However, as we allow the appeal on the basis that the judge erred in holding that there was no case to 55 (2013) 117 SASR 81 at [71]. 56 Ayles v The Queen (2008) 232 CLR 410 at [7] per Gleeson CJ; [50] per Heydon J; [69]; [75] per Kiefel J. 57 R v Fitzpatrick (1988) 50 SASR 10. -- 41 of 55 -- [2026] SASCA 9 Bleby and David JJA 38 answer, it will be open to the prosecution to amend the information to charge indecent assault in the alternative to Count 2 in advance of any retrial. The appeals against conviction 176 Haile and Bekele have appealed against their convictions for Counts 3 and 5 (Bekele) and Count 6 (Haile). While the Grounds of Appeal are differently expressed, at the hearing of the appeal Bekele adopted Haile’s submissions and indicated to the Court that he limited his appeal to those grounds of appeal prosecuted by Haile. Haile abandoned Grounds 1, 5, 6 and 7, leaving the grounds numbered 2, 3 and 4 in his Second Amended Appeal Grounds. These grounds read as follows: 2. A miscarriage of justice was occasioned by the Learned Trial Judge failing to adequately direct the jury in relation to prior inconsistent statements, in that: 2.1. The directions failed to properly isolate the prior inconsistent statements of the witnesses; and 2.2 The jury was not directed that the prior statements were not admissible for the truth of them. 3. The evidence led evidence of complaint, from the complainant and her mother, was not complaint evidence and therefore not admissible pursuant to s 34M of the Evidence Act 1929 (SA). 3.1 The evidence did not have the requisite detail, either in terms of the sexual act complained of or in terms of identity of the alleged offender to qualify as for admission pursuant to s 34M of the Evidence Act 1929 (SA). 4. In the alternative to ground 3, the Learned Trial Judge’s directions with respect to the evidence of the initial complaint were erroneous in law, or occasioned a miscarriage of justice, in that 4.1 The contained material and/or invited consideration of issues which were irrelevant to the jury’s consideration of the complaint evidence in the instant case. 4.2 They invited the jury to reason on the basis of a consistency of conduct use when no such use was available. 4.3 They did not identify for the jury the offender or offender(s) against whom the complaint was admissible. 4.4 They did not identify for the jury the evidence relevant to and/or the reasoning process by which they might determine which of the alleged offender(s) the complaint related to. 177 At the hearing of the appeal, counsel for Haile applied to add a further ground of appeal (Ground 8), reading: -- 42 of 55 -- [2026] SASCA 9 Bleby and David JJA 39 A miscarriage of justice was occasioned by the learned trial judge in leaving the issue of distress on the basis that it was relevant to the Crown case on the basis that it was referable to a lack of memory. 178 Counsel for the Director did not oppose leave being granted to prosecute the new ground. Directions with respect to prior inconsistent statements (Ground 2) 179 Haile’s complaint under this heading concerned evidence given, and statements made, by Mr Hamed as to how many drinks the complainant had consumed during the night. The complainant gave evidence that other than in respect of a few moments, she had no memory of events after leaving the Zhivago night club. The effect of her evidence was that she had had about seven drinks. 180 Counsel for Issak cross-examined Mr Hamed on the drinks he recalled the complainant consuming. Mr Hamed gave evidence that the complainant had consumed three vodka oranges, 10 whisky and cokes, 15 vodka Red Bulls and a further five shots. That made 33 drinks. Counsel then put to Mr Hamed the contents of a statement he had earlier made to police, to the effect that the complainant had consumed 20 mixed vodka drinks, five shots, 10 whisky mixed from the bar and another five whisky mixed. He also said that the complainant would sometimes drink from his drink. Counsel put to him that the amount he had put in his statement was about 40 drinks. 181 In any event, counsel put Mr Hamed’s statement to police as a prior inconsistent statement and put to him that he was making up the number of drinks the complainant had consumed. 182 The judge summed up on the topic of prior inconsistent statements in the following terms: Another way of evaluating a witness’s evidence is asking ‘has the witness given a consistent account in his or her evidence before me, or has it been proved that he or she said something on an earlier occasion, out of court, that I think is different from what they told me in court?’ Now, this process is the sort of process you undertake in your daily life, if you are confronted with someone telling you one thing and you find out that person told somebody else something quite different. You may wonder whether what you are being told is the truth or what the person said to somebody else is the truth. It may cause you to doubt the reliability of what you are being told and if you transpose that into a courtroom situation, if a witness tells you something on oath and you find out that witness said something different on that topic in a police statement, for example, that has the potential to undermine the reliability or credibility of their evidence. But those are entirely matters for you to weigh and to judge. 183 Later, in addressing the evidence of Mr Hamed, the judge said: [Mr Hamed] agreed that in his first statement to the police, he said ‘when I saw [the complainant] at the bar, she ordered two drinks. I don’t drink very much, because I needed to drive back home and I’m aware of not drinking much’. He said that was a mistake, because he did not have to drive home that night. -- 43 of 55 -- [2026] SASCA 9 Bleby and David JJA 40 Members of the jury, that is an example of a prior inconsistent statement. What you make of it is a matter for you. … He agreed that the total number of drinks that he had given evidence about that he saw [the complainant] drink was 33. In his statement to police, he said this about how much alcohol she consumed: 20 glasses of vodka mixed and five shots, 10 whisky mixed from the bar, five more whisky mixed, and sometimes she drank from his whisky, which was with no ice or mix. He agreed, after some calculation, that added up to 40 drinks. 184 The judge did not explain to the jury that the evidence of Mr Hamed’s previous statement, to the effect that the complainant had consumed 40 drinks, could not be used for a testimonial purpose. 185 In Brown v The King (‘Brown’),58 this Court explained the necessity in that case, and in cases like it, for the judge to explain to the jury that a prior statement could only be used to assess the credibility of the witness (in that case, the complainant). President Livesey explained, having referred to Driscoll v The Queen,59 that the jury should be warned that they cannot use what was said in the prior statement for any other purpose and in particular as evidence of what happened.60 186 The evidence of the complainant in Brown was critical to the prosecution case. The complainant’s credibility and reliability were central features. Her prior inconsistent statements included allegations of sexual assaults of a quite different character from those about which she gave evidence. 187 The inconsistency identified and relied on in the present appeal was that arising between Mr Hamed’s prior statement to the effect that the complainant had consumed 40 drinks, and his evidence that she had consumed 33 drinks. Counsel for Haile submitted that this amounted to a significant difference, such that they may not have come to a conclusion of guilt if they had been directed that Mr Hamed’s evidence went no further than that the complainant had consumed no more than 30 (actually 33) drinks. 188 Counsel for Haile could not point to any expert evidence identifying a material difference between the effect of 33 and 40 drinks on a woman of the stature of the complainant. A pharmacologist, Professor White, gave evidence on the general effects of alcohol at different levels of blood alcohol concentration, including disinhibition and loss of memory. His evidence did not extend, either in chief or in cross-examination, to how many drinks would be sufficient to cause a certain level of blood alcohol concentration in a woman such as the complainant. 58 [2025] SASCA 40. 59 (1977) 137 CLR 517. 60 Brown v The King [2025] SASCA 40 at [179]. -- 44 of 55 -- [2026] SASCA 9 Bleby and David JJA 41 189 Defence counsel at trial did not contest that the complainant was very intoxicated. What was put in issue was whether the complainant nonetheless consented to the sexual acts. Thus, as counsel for Bekele submitted at trial: We know okay, there’s no doubt that she was … intoxicated. No doubt. I mean, I’m not disputing that. In fact, [the prosecutor] described it at one stage as being grossly intoxicated. He’s probably right. Look what she throws up when she came out of the club. No doubt she’s pretty maggoted, must be realistic about that. No doubt about that, okay. You saw her in the taxi, pretty drunk in there too, okay. The issue is … It doesn’t mean that just because she’s so maggoted or she’s so drunk or she’s so intoxicated she’s incapable of understanding what’s happening, okay. … And it doesn’t mean that she’s incapable of making decisions about things when she’s that drunk. … She was drunk, all right, and she made drunken decisions, all right, but they’re still decisions. That’s the issue in this case for Mr Bekele, all right, because drunken consent, even every drunken consent, is still consent. You can have sex if you’re obliterated, all right. It doesn’t matter, so long as you’re able to understand, have some comprehension of what’s going on, okay. … 190 Unsurprisingly, defence counsel then relied on aspects of the evidence to show that notwithstanding the complainant’s obvious intoxication, she was still capable of consenting: I’m going to take you some aspects of the evidence, all right, I’m going to take you to some aspects of the evidence that I say demonstrate that [the complainant], notwithstanding the fact that she was really drunk, that she had an appreciation, she had an understanding and she was capable of making decisions… 191 Counsel went on to give examples, such as when the complainant stuck her finger up towards the taxi driver in response to him saying to put on seatbelts. 192 Similarly, counsel for Haile at trial accepted that the complainant was ‘undoubtedly drunk’ when the acts occurred. He drew a distinction between a loss of inhibition and a loss of memory, submitting that a loss of memory did not necessarily inform what a person may have done at the time. He submitted that the footage of Haile having sexual intercourse with the complainant ‘depicts acts of lewd and degrading at times, but on [the complainant’s] part drunken sex, and not on count 6 an act of rape, or frankly any other [count], act of rape for that matter’. 193 It is not necessary to rehearse all the trial submissions. The defence cases accepted, as was plainly obvious from the footage, that the complainant was highly intoxicated. In doing so, and in submitting that the complainant was nonetheless capable of consenting, and did consent, to the sexual acts, they relied on aspects of the video footage. Both the question of the level of intoxication of the complainant and her consent were questions of fact left for the jury. 194 There was no evidential basis on which a difference between the complainant having drunk 33 or 40 drinks could have borne on the issues raised at trial. Either number is, as a matter of ordinary experience, extraordinarily high. The evidence attached no forensic significance to the difference. While the trial judge did not direct the jury that Mr Hamed’s out of court statement that the complainant had drunk 40 drinks had no testimonial value, the failure to do so was not material. It -- 45 of 55 -- [2026] SASCA 9 Bleby and David JJA 42 could not realistically have affected the reasoning of the jury to the verdict of guilty in the context of this trial. 195 We refuse permission to appeal on Ground 2 of Haile’s Second Amended Appeal Grounds and Ground 3 of Bekele’s Amended Appeal Grounds. Evidence of recent complaint 196 Haile and Bekele submitted that evidence of statements made by the complainant that were admitted as evidence of initial complaint could not be characterised as such. Alternatively, they submitted that if the evidence was of initial complaint, the directions were inappropriate or inadequate. They acknowledged that counsel at trial made no objection to the evidence and took no exception to the proposed direction when the judge put it to them for comment before giving it. 197 The premise of these complaints was that the complainant’s evidence in chief was to the effect that she had no memory of the sexual acts the subject of the charges that had occurred at Bekele’s residence. Being shown the video footage did not revive her memory. The prosecution conducted its case on that basis. 198 The complainant gave evidence that when she returned home the following evening, she told her mother and Mr Hamed, who were both at her residence, ‘I’m pretty sure that what just happened was that I was basically kidnapped and raped’. In cross-examination, she agreed that she had said, ‘I’ve been taken advantage of’. When her mother asked, ‘Does that mean you have been raped?’ she said, ‘Yes’. 199 Counsel for Issak put to the complainant in cross-examination that she had not told her mother that she was basically kidnapped and raped. The complainant did not accept that. 200 The complainant’s mother gave evidence that the conversation occurred in the complainant’s bedroom, with Mr Hamed present. She said that the complainant said that ‘she can’t remember much and that she was taken and taken advantage of’. She said the complainant was ‘bawling’ when she said this. The complainant said, ‘call the police’. The complainant’s mother agreed in cross examination that she had asked the complainant if that ‘meant she’d been raped’. She also agreed that when the complainant came in the door, she asked her, ‘Where the hell have you been?’ 201 Section 34M of the Evidence Act provides: 34M—Evidence relating to complaint in sexual cases (1) This section abolishes the common law relating to recent complaint in sexual cases. Note— -- 46 of 55 -- [2026] SASCA 9 Bleby and David JJA 43 See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427 (2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct. (3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence. Examples— Evidence may be given by any person about— • when the complaint was made and to whom; • the content of the complaint; • how the complaint was solicited; • why the complaint was made to a particular person at a particular time; • why the alleged victim did not make the complaint at an earlier time. (4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that— (a) it is admitted— (i) to inform the jury as to how the allegation first came to light; and (ii) as evidence of the degree of consistency of conduct of the alleged victim; and (b) it is not admitted as evidence of the truth of what was alleged; and (c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case. (5) It is not necessary that a particular form of words be used in giving the direction under subsection (4). (6) In this section— complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). -- 47 of 55 -- [2026] SASCA 9 Bleby and David JJA 44 202 The primary complaint that this evidence was not evidence of recent complaint was premised on the complainant’s evidence of her lack of memory. Haile submitted that if, as was the prosecution case, the complainant had no memory of the events, anything that she later said about being raped must necessarily be speculation. The complaint evidence was thereby incapable of being evidence of consistency of conduct of the complainant. In this regard, Haile referred to the observation of the Court of Criminal Appeal in R v Jones:61 The purpose of the complaint evidence can be seen in the mandatory directions that a trial judge must give. It is important that counsel have regard to the mandatory terms of s 34M when considering the question of the admissibility of complaint evidence. 203 Earlier, in R v S, DD,62 Peek J accepted a contention:63 … that when addressing an objection taken to reception of evidence as an “initial complaint” pursuant to s 34M, the Court must closely bear in mind the fact that if evidence is to be admitted pursuant to s 34M, the Court must be able to conscientiously direct the jury pursuant to s 34M(4) that such complaint evidence is admitted both to inform the jury as to how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim. 204 Justice Peek went on to say that if it was found that the evidence was not capable of demonstrating ‘consistency of conduct’, that would preclude admission as an initial complaint.64 205 The authority of the observations in in R v S, DD must now be doubted. At the time that case, s 34M(4)(a)(ii) read: (ii) as evidence of the consistency of conduct of the alleged victim; … 206 In 2015, s 34M was amended to refer to evidence of the degree of consistency of conduct, etc. This amendment indicates that the evidence is admissible to show any degree of consistency. It supports that which is encapsulated by the chausette to s 34M(4), that the complaint may be used to show a lack of consistency of conduct. As the Court said in R v Jones:65 Subsection (4) paragraphs (b) and (a)(ii) reflect the common law that evidence of complaint is never admissible as evidence of the truth of the complaint but rather is evidence of the degree of consistency of conduct of the complainant: that is, to the credit of the complainant. The chausette to ss 34M(4) that it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case strongly indicates that the legislature intended it to be left to the jury to use evidence of complaint either in favour of or adversely to the credit of the complainant. A direction to the jury that it cannot use the evidence adversely to the credit of the complainant would usurp the function entrusted by the chausette to ss (4) to the jury. 61 [2018] SASCFC 80 at [132]. 62 (2010) 109 SASR 46. 63 R v S, DD (2010) 109 SASR 46 at [107]. 64 R v S, DD (2010) 109 SASR 46 at [113]. 65 [2018] SASCFC 80 at [117]-[118]. -- 48 of 55 -- [2026] SASCA 9 Bleby and David JJA 45 (Emphasis added.) 207 In the present case, Haile submitted that having regard to the lack of detail in the complaint said to be the product of the complainant’s lack of memory, the complaint was inadmissible. In addition, the complaint evidence was not referable to any particular offender or particular act. Haile submitted that the complaint evidence needed to identify the offender in some way as the cases required separate consideration as against each offender (the case of joint enterprise by then having been the subject of directed acquittals). 208 It is necessary to consider this submission in the broader context of the evidence. The complainant gave evidence of waking up the next day in a room with a number of men, not knowing where she was. She gave evidence that the men offered her cannabis to smoke. One of them asked to have sexual intercourse with her, to which she consented. 209 In those circumstances, the complaint, commencing with the words, ‘I’m pretty sure…’ reflects an awareness that something likely happened. It is also consistent with referring to something other than the consensual act of sexual intercourse she engaged in the following day. The fact that the complainant could not identify particular acts or people might affect the probative value of the complaint when assessing its impact on her credit. However, as the chausette to s 34M(4) makes clear, that was a matter for the jury. 210 In the event, the prosecution did not rely on the complaint evidence to show consistency of conduct on the part of the complainant and did not address the jury on this evidence. That was to the advantage of the defence. However, not only did the defence not object to this evidence being led but relied on it to impugn the complainant’s credit. The defence case was that: the complainant had only complained to her mother and Mr Hamed that she had been raped as she had come to regret her conduct; her complaint was a false report after being confronted by her mother; and her conduct after waking up was not consistent with fearing or being concerned that she had been raped, or could not remember what had happened. 211 It was open to the defence to deploy this evidence as demonstrating inconsistent conduct on the part of the complainant, in order to detract from the complainant’s credit.66 Section 34M does not require that the initial complaint evidence bolster the complainant’s credit. The evidence was admissible. 212 The trial judge directed the jury on the relevance of this evidence to the prosecution case in the following terms in respect of which, as already noted, counsel had been given the opportunity to comment: What [the complainant] told her mother is what is called at law ‘initial complaint’. An initial complaint, in relation to an alleged sexual offence, is admissible at law for two 66 R v Jones [2018] SASCFC 80 at [117]-[118]. -- 49 of 55 -- [2026] SASCA 9 Bleby and David JJA 46 limited purposes. The first is to explain how the allegations came to light. So the initial complaint explains how this all came to the surface and ended up in court. Secondly, if the complaint, that is the initial complaint, was made at a time and to a person to whom it was reasonable to complain, that may demonstrate consistency of conduct, and I will try and explain that to you. In other words, in a hypothetical case you have a complainant who has said to you, on oath ‘I was raped’. Now, if you as the jury thought it was reasonable for that complainant to have told her best friend she had been raped, so the first person she spoke to and told she was raped was her best friend, if you thought that was reasonable, you might find that the fact she told her friend that is consistent with the conduct of a person who had been raped. That is, someone who has been raped is likely to have told their best friend that they had been raped. If this is what the hypothetical - if what this hypothetical complainant told her best friend - so this is the scenario: you have got someone who said on oath ‘I was raped’, you learn that that person told her best friend she was raped and then you hear what she told her best friend. If what she told her best friend was the same as she told you, you can see the accounts are consistent and that might enhance the witness’s credibility. ‘Look, she told us she was raped, here’s what she’s described’ and low and behold the first person she told about this was her best friend and she said exactly the same thing’. That is the use in that hypothetical situation you can put the complaint evidence to, enhancing the credibility of the witness, but not for the truth of what she told her friend. The difference in this trial is that when [the complainant] made the initial complaint to her mother, whichever version you act upon, she never said, when she told her mother, that she was remembering what happened, or that what she told her mother was based on her memory that Sunday night. Indeed, the effect of her evidence, if you accept it, is that she has never previously had any better memory of the events in the taxi, or the share house, than what she could describe to you in the witness box. She agreed in cross-examination that when she woke up at the share house, she did not remember the taxi ride or meeting the men she saw when she woke up, how her clothes came off and did not remember much of the night before. Even when shown the footage in P15, it did not refresh her memory at all. Seeing that did not trigger a single memory for her. And she did not tell you that when she spoke to her mother her memory had come back to her. And I remind you that her words were ‘pretty sure that what just happened was I was basically kidnapped and raped’. Now, the net result of all of that is that I direct you that whatever version of the complaint you act upon, that you find to be proved, you cannot find it consistent with any account which she gave because she gave no account. There is no account in the witness box that you can compare what she told her mother to, because she never said to you ‘look, I was raped, and this is how it happened’. So the only use of this evidence, on the prosecution case, is it explains how the allegation came to light. I have had to go through that explanation of how it can be used to demonstrate to you why you cannot use it in that way in this case. This is an unusual case where you have an alleged victim of a sexual offence who says she has got no memory of it. (Emphasis added.) 213 This direction reflected the prosecution concession that the complaint evidence could only be relied on, on the prosecution case, to show how the -- 50 of 55 -- [2026] SASCA 9 Bleby and David JJA 47 allegations came to light. The prosecutor agreed that because the complainant had not given an account, there was nothing, on the prosecution case, to compare it to. 214 However, Haile submitted that the judge should simply have mentioned the issue of consistency of conduct and then indicated that this had no work to do in this case. He submitted that by introducing and developing, at some length, the hypothetical example that is in the above extracted paragraphs, the judge introduced a prohibited line of reasoning (reliance on the complaint for the truth of the statement) and thereby in effect encouraged that prohibited line of reasoning. 215 This complaint must be considered in the context of all the relevant parts of the summing up, and the defence case. As already identified, the defence case was that the complaint evidence demonstrated inconsistent conduct on the part of the complainant such as to sound adversely to the complainant’s credit. 216 The judge addressed the relevance of the complaint to the defence case immediately following the relevance of the complaint evidence to the prosecution case: I direct you that there may be varied reasons why the alleged victim of the sexual offence has made a complaint to a particular person at a particular time, and this may include a situation where the reason the complaint is made at a particular time, or to a particular person, is because the complainant has a motive to make a false allegation of rape. So that is the direction that I have given you, that (a) there may be varied reasons why somebody complained at a particular time to a particular person, and it can include a situation where someone is making a false complaint of rape. Now, as you know, the defence case is that [the complainant] either had no memory of what has happened, so she is genuine in her lack of memory, and has given an explanation to her mother and Philip, based on a version of events that avoids her accepting responsibility for staying at the share house all day and having sex with Mr Haile. Or - so that is one alternative, or she does have some memory of what happened, once she is sober, she regrets it and gives an explanation to her mother and Philip, to avoid the fallout from telling the truth. It is entirely a matter for you to decide whether she made the complaint to her mother for either of - for both of those reasons, or neither of those reasons. 217 The judge went on to sum up further on the defence cases in detail, including as to the complainant’s motivation to make a false complaint. 218 The combined effect of these directions was to confine the jury’s consideration of the complaint evidence to whether it operated adversely to the complainant’s credit. The directions removed from the jury’s consideration any question of the extent to which the complaint evidence showed positive consistency of conduct on the part of the complainant. That was in circumstances, however, where the prosecution had eschewed any such relevance. The judge fully explained the defence case with respect to this evidence. 219 We reject the submission that the hypothetical example encouraged the jury to engage in a prohibited line of reasoning. It is true that the judge gave the example in some detail. The example was of when a complainant’s credit might be -- 51 of 55 -- [2026] SASCA 9 Bleby and David JJA 48 supported by the making of a complaint, identified in contradistinction to the present case. The judge was clear that a complaint given in such circumstances could not be used for the truth of what is said. 220 Given the relevance of the complaint evidence to the prosecution case identified earlier, in our view the judge failed, strictly, to direct the jury in accordance with s 34M(4). The complaint evidence had the capacity to demonstrate consistency of conduct, albeit that this was likely to be forensically slight. 221 That failure constituted an error of law. The question is then whether no substantial miscarriage of justice has actually occurred.67 That depends on the particular misdirection and the context in which it occurred.68 Gageler J said in Lane v The Queen:69 For the appellate court to conclude that no substantial miscarriage of justice “has actually occurred” is for the appellate court to conclude that, notwithstanding the error or other irregularity, no substantial miscarriage of justice “in fact” occurred. And for the appellate court to conclude that “no substantial miscarriage of justice” in fact occurred is for the appellate court to conclude that the error or irregularity affected neither: (1) the outcome of the trial, such as to have denied the appellant “a chance of acquittal which was fairly open to him or her”; nor (2) the process of the trial, to an extent sufficient to warrant the conclusion that a substantial miscarriage of justice occurred without need of inquiry into its effect on the outcome of the trial. (Footnotes omitted.) 222 The insufficient direction on the relevance of the complaint evidence to consistency of conduct was couched in terms that could only have assisted the defence. Its effect was only that the jury could not use that evidence to show positive consistency of conduct on the part of the complainant. 223 The defence case with respect to the complaint evidence was left intact. Indeed, the judge canvassed it at length. It is unsurprising that counsel expressly acquiesced in the wording of the direction. The error, such as it was, could not have operated in a way that could have bolstered the credibility of the complainant or detracted from a negative assessment of her credibility. 224 In our view, no substantive miscarriage of justice has occurred. We apply the proviso. We grant permission to appeal on Grounds 3 and 4 of Haile’s Second Amended Appeal Grounds and Grounds 4 and 5 of Bekele’s Amended Appeal Grounds. However, we dismiss the appeal on these grounds. 67 CPA, s 158(2). 68 Kalbasi v Western Australia (2018) 264 CLR 62 at [57]. 69 (2018) 265 CLR 196 at [53]. -- 52 of 55 -- [2026] SASCA 9 Bleby and David JJA 49 Evidence of distress 225 The complaint about the direction regarding the complainant’s distress is similar. As noted earlier, the complainant’s mother gave evidence that the complainant was ‘bawling’. She said the complainant was ‘blaming herself’. The judge directed on the topic of the complainant’s distress as follows: I just want to deal with this topic of [the complainant’s mother’s] evidence of how distressed her daughter was when she was telling her that. I have been at pains to point out that there is no evidence from [the complainant] herself on the topic of whether she consented to having sex with Mr Bekele or Mr Haile or anyone else in the early hours of 18 June 2023 because she remembers next to nothing of that period of time. I direct you the fact that she appeared distressed when making the initial complaint to her mother cannot be used by you to infer she was behaving in a way consistent with a person who had been raped because she told you she had no memory of being raped. So, you recall the example of the hypothetical complainant. In evidence they tell you ‘I’ve been raped’. You find out they tell their best friend they have been raped. The best friend says, ‘When she told me that she was crying, and she was really upset’. In those circumstances you can see how that might be consistent conduct that somebody would be upset when they are detailing a complaint of rape. The only relevance on the prosecution case on [the complainant’s] distress when she is telling her mother that is that you should infer her distress is because she cannot remember what happened, she has got no memory and that is why she is so anxious. Of course, if you accept or draw the inference the prosecution asks you to draw, then you might think it follows she is making an allegation of kidnapping and rape when she has actually got no memory of that occurring. On the defence case, however, you can infer from her distress that she is anxious that her mother and Phillip not actually find out what really happened and that is a sign that she did remember what happened the night before. So, on the defence case the distress is explicable because when she gets home, she has got to say something to explain what she has done and where she has been. In cross-examination [the complainant’s mother] agreed that when [the complainant] came home through the door, she asked her ‘Where the hell have you been?’ After [the complainant] told her she had been taken advantage of she asked her if that meant she had been raped and she said ‘Yes’ and that is when she started crying. 226 Haile complained that in circumstances where the complainant had not given evidence about why she was distressed, the evidence of distress had no relevance to the prosecution case. He complained that it was therefore an error to direct that it was relevant on the prosecution case as evidence that she could not remember what had happened and was consequently anxious. 227 It is true that there was no direct evidence of the reason for the complainant’s distress. That is as true in respect of the inference that the defence sought to draw as that asserted on the prosecution case. The sting of the direction on the prosecution’s case was that the distress could not be used to infer that the complainant was behaving in a way consistent with being raped. -- 53 of 55 -- [2026] SASCA 9 Bleby and David JJA 50 228 It was the prosecution case, and the complainant’s evidence, that the complainant had no memory. The inference that her distress was on account of her lack of memory was consistent with the prosecution case. That is, it was relevant to the credibility of her claim that she had no memory. We do not accept that the prosecution was not entitled to invite the jury to draw that inference. The extent to which the jury did consider that inference to be open was a matter for them. 229 In any event, the judge then qualified that direction in terms that were entirely favourable to the defence, in the paragraph commencing, ‘Of course…’. She then addressed the defence contention as to the relevance of the complainant’s distress, in some detail. 230 The direction as to the relevance of distress on the prosecution case was confined. The judge gave defence counsel an opportunity to comment on her proposal to direct that the prosecution case on distress was that it was referable to the complainant’s anxiety about not being able to remember what happened. Both defence counsel and the prosecutor expressly took no issue with the proposal. 231 The direction did not cause any miscarriage of justice. The judge was careful to disconnect the evidence of distress from any suggestion that the complainant was behaving in a way consistent with being raped. We cannot see that it was impermissible for the prosecution to assert that the complainant’s distress was consistent with and may be inferred to be referable to having no memory of what occurred. Defence counsel expressly took no issue with it. In any event, the direction was both confined and heavily qualified in the defendants’ favour. 232 We grant permission to appeal on this further ground but dismiss the ground. Conclusion 233 We make the following orders: 1. The Director’s application for leave to appeal against the directed acquittals is granted. 2. The appeal against the directed acquittals is allowed. 3. The Court quashes the acquittals on Counts 2, 6 and 7 for Bekele, Counts 5 and 7 for Haile and Counts 2, 3, 5, 6 and 7 for Issak. 4. There is to be a new trial on each of those counts. 5. Permission to appeal on Ground 2 of Haile’s Second Amended Appeal Grounds and Ground 3 of Bekele’s Amended Appeal Grounds is refused. 6. Permission to appeal on Grounds 3 and 4 and 8 of Haile’s Second Amended Appeal Grounds and Grounds 4 and 5 of Bekele’s Amended Appeal Grounds is granted. -- 54 of 55 -- [2026] SASCA 9 Bleby and David JJA 51 7. The appeals against conviction are dismissed. -- 55 of 55 --