JESSE LLOYD LESLIE KENNEDY v THE KING [2026] SASCA 10

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE PRESS) DCCRM- 23-014147 Appellant: JESSE LLOYD LESLIE KENNEDY Counsel: MR W MICKAN - Solicitor: SHAW LEGAL & ADVISORY Respondent: THE KING Counsel: MS L DUONG WITH MR J ENG - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/02/2026 File No/s: SCCRM-25-010956 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. KENNEDY v THE KING [2026] SASCA 10 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice David) 19 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT In this application for permission to appeal against conviction, the jury returned a unanimous verdict of guilty on one count of sexually abusing a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is the daughter of the appellant’s former domestic partner, and the offending was alleged to span a period of around two years. The complainant’s initial complaint of the offending was made at the end of a school lesson, when the complainant spoke to her teacher whilst writing and drawing pictures. The complainant later spoke with her mother in terms which the parties accepted was an elaboration of her initial complaint. The primary issue on appeal related to directions given by the trial judge regarding the complaint evidence admitted pursuant to s 34M of the Evidence Act 1929 (SA). In particular, about what the complainant had said about her writing and drawings by way of explanation during three prescribed police interviews and a later recording of her sworn evidence. -- 1 of 13 -- The appellant argued that the trial judge erred in directing the jury that: 1. The evidence of complaint extended to any instance in which the complainant was asked to explain the drawings which formed part of the initial complaint; and 2. Those utterances could be used to evaluate how the allegations first came to light and the complainant’s consistency of conduct. Held (the Court), granting permission to appeal and dismissing the appeal: 1. By explaining her writing and drawings, the complainant explained her initial complaint. The effect of her evidence was to explain what might otherwise have been unintelligible to the jury. 2. The directions given by the trial judge entailed no material miscarriage of justice. The purpose of the directions was to ensure that the jury did not confuse the evidence of the initial complaint with the complainant’s testimony about the appellant’s offending. This was achieved by describing the complainant’s explanations about her writing and drawings as part of her initial complaint. 3. There is no risk that the complainant’s evidence was impermissibly bolstered by any consistency across her explanations, because the trial judge’s directions invariably focussed on the initial complaint. Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158 (2); Evidence Act 1929 (SA) ss 12AB, 13BA, 34M, 34M(3), 34M(6); Summary Offences Act 1953 (SA) s 74EB, referred to. Anderson (A Pseudonym) v The King (2024) 144 SASR 548; Boyle (A Pseudonym) v The Queen [2022] SASCA 50; Brawn v The King [2025] 99 ALJR 872; Brown (A Pseudonym) v The King [2025] SASCA 40; JGS v The Queen (No 2) (2022) 141 SASR 288; Kakule v The King (2023) 143 SASR 118; R v Jones [2018] SASCFC 80; R v Usher (2014) 119 SASR 22; Singh v The King [2025] SASCA 98, considered. -- 2 of 13 -- KENNEDY v THE KING [2026] SASCA 10 Court of Appeal – Criminal: Livesey P and David JA THE COURT: Introduction 1 The appellant seeks permission to appeal against his conviction for the sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).1 2 The complainant is the daughter of the appellant’s former domestic partner. The offending was alleged to span a period of around two years until 9 August 2022. During this period, the complainant was aged between seven and eight. The prosecution case depended upon accepting the complainant’s evidence. 3 On 9 August 2022, following a lesson on bodily autonomy and integrity, the complainant spoke to her teacher whilst writing and drawing a number of pictures. On the prosecution case, this was the initial complaint. A little later in August, the complainant spoke with her mother in terms which the parties accepted was an elaboration of her complaint. 4 This appeal turns on the directions given by the trial judge regarding complaint evidence admitted pursuant to s 34M of the Evidence Act 1929 (SA) (the Evidence Act). The issue on appeal – explaining complaint evidence 5 The appellant’s challenge is to the directions given by the trial judge about what the complainant said about her writing and drawings during three prescribed police interviews on 11 and 12 August, and 14 September 2022, together with a recording of her sworn evidence given in 2024, when she was aged 10. The trial judge directed the jury as to what comprised the complaint evidence, and this included the explanations she later gave about her writing and drawings on 9 August 2022:2 So the evidence of complaint to [the complainant’s teacher] is the evidence of what [the complainant] verbally said to [her teacher] and also what she conveyed to [her teacher] by means of the drawings. The complaint evidence also includes any instances in which [the complainant] was asked in the interviews or in court to explain what she had drawn. So her evidence which explains what she drew is therefore part of the complaint evidence. It is not evidence of what occurred between her and the accused. 1 On 24 October 2024, the appellant was sentenced to imprisonment for 12 years and six months, together with a non-parole period of eight years. 2 Summing up, AB 105. -- 3 of 13 -- [2026] SASCA 10 The Court 2 6 The trial judge directed the jury about the use they could make of the complaint evidence:3 So how can you use this evidence of complaint? In addition to the two directions that I have already given you, I direct you that there are two reasons why evidence of complaint is given. The first is to tell you how the allegations first came to light. … The second reason is that you may use the evidence of complaint when assessing the degree to which [the complainant] has acted consistently, that is, to what extent did [the complainant] complain about the offending at a time that you would have expected her to complain? And further, to what extent is what she said to [her teacher] and then her mother consistent with her evidence in the trial? So assessing consistency has two aspects: firstly the timing and the circumstances of the making of the complaint and, secondly, the content of the complaint. So I will deal first with the timing. … Now, the next aspect is the consistency of account. So as to consistency of account, the prosecution case is that [the complainant] disclosed to [her teacher] acts which she then gave evidence about. … On the prosecution case, it is submitted that her complaint to both [her teacher] and her mother is consistent with her evidence in court. From the defence perspective you may also consider that in her complaint, if she did not mention anything about a dream, then that is not consistent with what she then said in both interview No.1 and interview No.2. On the defence case you will therefore consider whether the lack of consistency in that regard does undermine her reliability and/or her credibility. So provided you follow the rules and directions I have just given, [it] is a matter for you to decide what weight or significance that you give to the evidence of complaint. 7 The appellant contended that the jury were permitted to evaluate the complainant’s consistency of conduct by reference to her initial complaint as well as her subsequent explanations, which risked bolstering the complainant’s credibility by allowing her to repeatedly give self-serving statements. The complainant’s credibility was, accordingly, impermissibly enhanced. 8 The appellant also contended that the jury should have been directed to the effect that they could not take into account any consistency apparent from the ways in which the complainant later explained her writing and drawings. Finally, the appellant contended that if this Court is satisfied there was an error, this was not an appropriate case in which to apply the proviso.4 3 Summing up, AB 108-110. 4 Criminal Procedure Act 1921 (SA), s 158(2); Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [102] (Livesey P, Doyle and Bleby JJA); Kakule v The King (2023) 143 SASR 118, [44]-[46] (Livesey P, Lovell and Bleby JJA); JGS v The Queen (No 2) (2022) 141 SASR 288, [190]-[191] (Doyle, Bleby and David JJA). The appellant’s contention was that the impugned direction had the capacity to affect the jury’s assessment of the complainant’s credibility and reliability and thereby proof of the charges beyond reasonable doubt, and so it was not open to find that no substantial miscarriage of justice occurred. -- 4 of 13 -- [2026] SASCA 10 The Court 3 The resolution of the appeal 9 For the following reasons, permission to appeal should be granted, but the appeal dismissed.5 10 By explaining her writing and drawings, the complainant explained her initial complaint made on 9 August 2022. The effect of the complainant’s evidence was to explain what might otherwise have been unintelligible to the jury. The purpose of the impugned directions was to ensure that the jury did not confuse the evidence of the complainant’s initial complaint with her testimony about the appellant’s offending. That was achieved by describing the complainant’s explanations about her writing and drawings as part of her initial complaint. 11 There is no risk that the complainant’s evidence was impermissibly bolstered by any consistency across her explanations, because the directions which were given invariably focussed on the initial complaint made on 9 August 2022. The circumstances of the offending 12 The appellant and the complainant’s mother commenced a relationship during 2020. The appellant began living with the complainant and her family in October 2020 at Morphett Vale. After the appellant and the complainant’s mother separated, he moved into the home of the complainant’s father at Hackham West. During this period, the complainant spent weeknights with her mother and weekends with her father. 13 The prosecution case was that the offending occurred regularly at Morphett Vale when the complainant’s mother left the complainant with the appellant at night when she visited friends. Towards the end of their relationship, the complainant’s mother was out most nights. The offending comprised a broad range of sexual activity including penile-vaginal intercourse and fellatio. The prosecution case was that the appellant engaged in similar offending at the Hackham West home after the complainant’s father went to bed. 14 The defence case was that none of the offending occurred and the complainant’s credibility and reliability were challenged. Part of the challenge relied on the complainant’s initial account that the offending formed part of a “bad dream”. 15 The defence case also relied on a prior conviction of the complainant’s father for the aggravated indecent assault of a 13-year-old girl when he was 18, as well as the fact that he had commenced a sexual relationship with the complainant’s mother when she was 16 and he was 19. It was argued that the jury could not exclude the reasonable possibility that the complainant’s father was the offender. 5 The appellant required an extension of time, but this was not opposed and the extension was granted at the hearing. -- 5 of 13 -- [2026] SASCA 10 The Court 4 16 The appellant was first tried in March 2024 but that ended in a mistrial. The appellant was retried in May 2024 and, on 22 May, he was found guilty by unanimous verdict of the jury. The initial complaint, the elaboration and the prescribed interviews 17 The complainant’s evidence was set out in three prescribed interviews admitted pursuant to s 13BA of the Evidence Act,6 together with her recorded evidence from the first trial. 18 After the lesson on 9 August 2022, the complainant was asked by her teacher whether she was feeling scared and worried. She was provided with paper and commenced writing, drawing and speaking with her teacher. The writing and drawings were tendered as Exhibit P5. The version that was written and drawn on during a prescribed interview was tendered as Exhibit P11. 19 The complainant’s teacher gave evidence. Referring to page one, the complainant’s teacher said that the complainant told her that she and “Jesse” (the appellant) were depicted, with the complainant lying on her bed and the appellant trying to get into the bedroom. She said that she did not want the appellant to come in and so she put her bookshelf in front of the door. On a different part of the first page, the complainant said that it was a hot night and she drew a fan. She said that she was only wearing underwear and the appellant came into the room, next to her bed. On yet another part of the first page, the complainant identified herself and the appellant in bed. The complainant said that the appellant took off her underwear and climbed on top of her. The complainant said that the appellant was naked. 20 On the second page, the complainant’s teacher said the complainant had written the word “S**” in two places. She said the complainant told her that she did not want to say certain words, and this was one of them. On a different part of the same page, the complainant’s teacher said that she wrote “Jan 2020 three times a week” because that is what the complainant told her. 21 On page three, the complainant’s teacher said that this may have been when the complainant mentioned crying and drew tears. On a different part of the same page, the complainant’s teacher said that the complainant told her she had drawn the lounge room and the appellant on a couch. The complainant demonstrated her position of getting onto the carpet on her back, arching her back and opening her mouth with her head back. On a different part of that page, the complainant’s teacher recalled the complainant telling her that she could not draw what she wanted to draw but demonstrated it by folding the paper in half so that one person was on top of the other. 6 See generally Brown (A Pseudonym) v The King [2025] SASCA 40 (Livesey P, Doyle and Bleby JJA) regarding recordings of evidence taken in prescribed interviews, conducted pursuant to s 74EB of the Summary Offences Act 1953 (SA), and in pre-trial special hearings, conducted pursuant to s 12AB of the Evidence Act 1929 (SA). -- 6 of 13 -- [2026] SASCA 10 The Court 5 22 During the first prescribed interview, the complainant was shown some of the pictures she drew. It is sufficient to describe just some of what the complainant said to the police officer. 23 The complainant said that she told her teacher that she was scared of the appellant, and she was describing “a little bit of my really bad dream”. She drew her story because she would have otherwise burst into tears. She said that she was “finding it really hard to explain” her dream. 24 The complainant described what she had drawn. For example, she explained that she tried to draw herself in her “panda onesie” and that she was “not happy” in her picture, whereas the appellant was “happy”. 25 During the second prescribed interview, the complainant identified the people depicted but drew underwear on one figure, together with a bra, because she said she was embarrassed. Again, the complainant was asked to tell the interviewer what was depicted and, for example, she described having drawn water shooting out of her eyes because she was crying. The police officer asked the complainant why she was crying, and the complainant said, “that’s what I need to write down”. She was also asked if what had happened in the lounge made her sad and the complainant nodded. 26 During this interview, the complainant said that she was speaking about her dream which happened three times each week at her mother’s house. 27 After this interview, the complainant spoke with her mother. She asked her mother what the white stuff was that came out of a penis. She told her mother that it did not smell or taste nice. The complainant’s mother said that, as this was happening, the complainant had her head down and was crying. Later that night, the complainant’s mother said that the complainant told her that the appellant had made her watch sex videos and had kissed her. She spoke of bleeding from her vagina. This evidence was adduced, without objection, as an elaboration of the initial complaint. 28 During the third prescribed interview, the complainant gave an account of the appellant’s offending, saying that she was now able to “verbalise” it. She said that what she had previously said about dreams was real. She had said that they were dreams because she was scared of what was going to happen. The trial: the complainant’s evidence and the summing up 29 During the course of her evidence, the complainant described what she had written and drawn. By way of example, she said she had written that the appellant had said to her words such as, “you’re so stupid, please stop, you’re going to wake up [a sibling]”. The complainant described having drawn herself with something in her mouth, which was the appellant’s penis. -- 7 of 13 -- [2026] SASCA 10 The Court 6 30 The complainant said her writing included the words “Why does this have to happen every night?” and the appellant’s answer was, “cos it can”. The complainant described drawing the appellant getting on top of her and putting his penis into her vagina. 31 The trial judge gave the jury two directions as to the use of the initial complaint evidence. He directed the jury that the evidence of the complaint was not admitted as evidence of the truth of what had happened. He also directed the jury that the complaint evidence could be used to assess the witness, and they must take into account that there were various reasons why the alleged victim of a sexual offence may make a report at a particular time or to a particular person. The contentions of the parties on appeal 32 Whilst the appellant conceded that it was permissible for a complainant to give evidence explaining aspects of an initial complaint, such as where it is necessary to explain unintelligible handwritten words, that was conceptually and legally separate from the explanations given in this case. The appellant contended that it was necessary to construe s 34M of the Evidence Act and determine whether it permitted the admission of later statements as part of the initial complaint for the purposes of evaluating consistency of conduct. 33 The appellant contended that the appellant’s credibility was impermissibly bolstered because of the absence of a direction limiting the jury’s analysis of the complainant’s consistency of conduct to what happened on 9 August 2022. The risk of confusion and miscarriage was increased because the jury was not properly directed as to what was evidence of complaint, and what was testimonial evidence, during the prescribed interviews and in the complainant’s evidence. There was a risk that the complaint evidence was given a testimonial use. 34 The respondent contended that any further explanation or clarification from the complainant during the three prescribed interviews, and in her evidence, simply comprised the complainant’s account of what she had written or drawn on 9 August 2022. They were not elaborations. 35 The respondent challenged the proposition that the complainant’s explanations might have formed part of her testimonial evidence by pointing to the directions given by the trial judge. The respondent contended that the trial judge made it clear that the testimonial evidence only included the evidence given by the complainant when she was specifically asked to explain what had happened, and the judge gave the example of the complainant saying that the appellant put his penis into her mouth in response to questions during the interviews and in court when she was asked to explain what the appellant had done to her. 36 The respondent emphasised that the effect of the impugned directions was that the jury were told not to use the complainant’s explanations as part of her testimonial evidence of what had happened. They could not treat those -- 8 of 13 -- [2026] SASCA 10 The Court 7 explanations as a separate body of evidence going to the truth of what had occurred. 37 Finally, the respondent contended that, even if there was an error, it was not a “fundamental” irregularity and the trial process had not become “flawed in a fundamental respect”,7 and so the proviso could be applied. The determination of the application for permission to appeal 38 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— 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 7 Brawn v The King [2025] 99 ALJR 872, [9]-[10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ); Singh v The King [2025] SASCA 98, [83] (Livesey P, with whom Bleby JA agreed). -- 9 of 13 -- [2026] SASCA 10 The Court 8 (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). 39 Complaint evidence is adduced to inform the jury how a complainant’s allegations first came to light and to bolster the credibility of the complainant.8 Its importance in cases involving alleged sexual offending cannot be understated.9 It is one of the limited number of exceptions to the common law rule preventing witnesses from giving evidence about their prior consistent statements.10 40 Pursuant to s 34M(3), evidence concerning an “initial complaint” of alleged sexual offending is admissible without the need to establish the contemporaneity formerly required at common law.11 There is no restriction regarding the form of the evidence of a complaint, nor from whom that evidence may be elicited. 41 Section 34M(6), and the definition of “initial complaint”, permits evidence by way of later “elaboration”. Whilst there is a degree of flexibility in the determination of what comprises “elaboration”, particularly regarding the time between the complaints and the people to whom the complaints may be made, there must nonetheless be a readily identifiable connection between the complaints so as to permit the conclusion that the first complaint and any subsequent complaint together comprise the one “initial complaint”.12 8 Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [82] (Livesey P, Doyle and Bleby JJA). 9 Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [82] (Livesey P, Doyle and Bleby JJA); Kakule v The King (2023) 143 SASR 118, [43] (Livesey P, Lovell and Bleby JJA); R v Jones [2018] SASCFC 80, [64] (Kelly, Blue and Lovell JJ); Boyle (A Pseudonym) v The Queen [2022] SASCA 50, [31] (Livesey P, Lovell and Bleby JJA). 10 Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [82] (Livesey P, Doyle and Bleby JJA); R v Jones [2018] SASCFC 80, [64] (Kelly, Blue and Lovell JJ). 11 R v Usher (2014) 119 SASR 22, [48] (Kourakis CJ, Gray and Peek JJ); Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [83] (Livesey P, Doyle and Bleby JJA). 12 Anderson (A Pseudonym) v The King (2024) 144 SASR 548, [91] (Livesey P, Doyle and Bleby JJA). -- 10 of 13 -- [2026] SASCA 10 The Court 9 42 Pictures convey meaning in a manner different to words, whether those words are written or spoken. Depending upon what is drawn, and what is intended to be conveyed, a picture may convey meaning more or less clearly than words. Where a drawing made by a witness is relevant, there can be no objection to that witness explaining why the drawing was made and what the witness intended to convey. Generally, some understanding of the context and an explanation will be required if the trier of fact is to properly understand what the person making the drawing was trying to convey. Inevitably, there will be questions of fact and degree.13 Any explanation may be challenged by defence counsel. The proper meaning of a drawing as explained by a complainant in a recorded interview or in evidence will ultimately be a question of fact for the jury to determine. 43 In cases involving witnesses who are children, it is understandable if they find it easier to attempt to convey difficult or traumatic memories by means of drawings. An explanation will be particularly important where the child’s writing or drawing is rudimentary or difficult to interpret, or where there is some risk that the words or pictures might be unintelligible or misunderstood if they are not explained. The extent of the explanation is likely to depend upon the age and aptitude of the child, as well as what the child was trying to convey in writing or by the drawing. 44 In this case the appellant conceded that it was proper to permit the complainant to explain what was said, written or drawn by way of her initial complaint to her teacher. That concession was appropriate. The complainant was a young child at the time of her initial complaint. The meaning and significance of her writing was far from obvious or clear. Her drawings, in particular, were hard to interpret. It was appropriate that she be asked questions which permitted her to explain what she was endeavouring to convey, particularly as she was explaining matters of some moment which she evidently found distressing. 45 There was nothing unfair or unjust about that process. It was necessary. Unless it was done, the jury could not properly understand the evidence of initial complaint elicited pursuant to s 34M of the Evidence Act. 46 Insofar as some of the things said by the complainant during the three prescribed interviews or in her evidence went further than a bare explanation or transcription of her initial complaint, the evidence fell into one of two further categories. First, and in most instances, the complainant was responding to direct questioning about what had happened. This was evidence from the complainant about the appellant’s offending and was admissible in the usual way. This testimonial evidence was the subject of an appropriate direction. It was not necessary for the trial judge to do other than give an illustration, as he did. If the trial judge had gone through every instance of the complainant giving evidence 13 Cf R v Usher (2014) 119 SASR 22, [49]-[55] (Kourakis CJ, with whom Peek J agreed) where the complaint was not referable, let alone sufficiently referable, to the charged offending. -- 11 of 13 -- [2026] SASCA 10 The Court 10 about the events, the directions would have become unnecessarily lengthy and complicated. 47 Second, and to the extent that, occasionally perhaps, the evidence from the complainant gave any greater detail than appeared in the writing or the drawing this was, in our view, permissible elaboration of the initial complaint. There is no risk that this would have been treated other than as part of the initial complaint evidence. 48 The impugned directions by the trial judge about the use of the complaint evidence were not the subject of any challenge or request for modification at the trial. That is unsurprising. In our view, they were not affected by error. They ensured that the jury understood that the complainant’s explanations about her writing and drawings could not be used other than as complaint evidence. They could not be used in proof of what the complainant said had occurred. 49 The contention that it was necessary for the trial judge to warn the jury that they could not take into account the occasion of each explanation when determining whether the complainant had been consistent in her account must be rejected. The postulated direction is both unnecessary and only likely to be confusing. It is unnecessary because the trial judge made it clear that any evaluation and use of the complainant’s account was confined to what she said and did on 9 August 2022 when she was with her teacher, or shortly afterwards when with her mother. The postulated direction would have been confusing because, in the circumstances of this case, it would not have occurred to anyone that the complainant’s consistency of account could be bolstered by the number of occasions she explained her writing and drawings. 50 Indeed, seeking that kind of direction would only have risked reinforcing the proposition that the complainant had been unerringly consistent about the appellant’s offending across the three prescribed interviews and in her recorded evidence. 51 The directions given by the trial judge entailed no material miscarriage of justice. 52 Finally, it will usually be necessary to exercise care when eliciting evidence from a child complainant in a case such as this, whether during the course of a prescribed interview, during a pre-trial special hearing, or in evidence at a trial before a jury or a judge in a trial by judge alone. Because evidence is often now recorded in interviews or hearings conducted in different places at different times, rather than led orally in “a traditional trial at which all the evidence is given in the same room during the same hearing”,14 it is important that the questioning be clearly signposted. The questioner should make it clear when the child is being asked to explain her words, writing or drawings by reference to what was said or 14 Brown (A Pseudonym) v The King [2025] SASCA 40, [120] (Livesey P). -- 12 of 13 -- [2026] SASCA 10 The Court 11 done at the place and time of the initial complaint. Then, if the questioner intends to ask about the child’s testimonial account, the questions should make that clear. For example, the child could be asked to put the writing or drawings aside and say what she recalls about what the defendant did at the place and during the period of the alleged offending. Asking clear questions in this way should reduce the scope for argument about what comprises the child’s evidence of complaint, including by way of any explanation of the initial complaint, and what comprises the child’s evidence of the offending. Conclusion 53 The appellant should be granted permission to appeal but the appeal should be dismissed. -- 13 of 13 --