MICHELE DE VIRGILIO v THE KING [2026] SASCA 16

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUIR JUDGE DAVISON) DCCRM-22-007019 Appellant: MICHELE DE VIRGILIO Counsel: MRS M SHAW KC WITH MR W MICKAN (CONVICTION) AND MR G HASSOUROS (SENTENCE) - Solicitor: PATSOURIS & ASSOCIATES Respondent: THE KING Counsel: MR J SLOCOMBE WITH MR F NIEMANN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 21/05/2025, 30/06/2025 File No/s: SCCRM-24-024809; SCCRM-24-038566 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. DE VIRGILIO v THE KING [2026] SASCA 16 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stanley) 6 March 2026 CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IMPROPER TRIAL DIRECTIONS CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW – EVIDENCE – OTHER MATTERS This is an appeal against conviction and sentence. Following a trial by jury, the appellant was convicted of one count of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that while massaging the complainant at his father’s house, the appellant inserted one or more of his fingers into the complainant’s vagina for about 10 seconds. The defence case at trial was that the appellant accidentally touched the complainant near her vagina but over her clothing. The appellant was legally blind and had a number of other infirmities. The appellant raised several grounds of appeal against conviction, including whether: 1. The trial judge had failed to adequately direct the jury regarding the use that could properly be made of the complainant’s prior inconsistent statements; -- 1 of 62 -- 2. The trial judge erred in her directions as to the use that could be made of the appellant’s prior good character; 3. The trial judge erred in her directions as to the assessment of the appellant’s text messages; and 4. The trial miscarried as a result of the admission of prejudicial evidence. In the alternative, the appellant appealed his sentence of imprisonment of six years, together with a non-parole period of two years and nine months. The appellant appealed on the grounds that: 1. The sentence is manifestly excessive; and, in addition 2. The sentencing judge erred in concluding that the appellant did not satisfy the jurisdictional facts required to establish “special reasons” for the purposes of home detention under s 71(4)(a) of the Sentencing Act 2017 (SA). Held, per Livesey P and Stanley JA, (David JA agreeing), granting permission to appeal against conviction on all grounds but dismissing the appeal: 1. As to Grounds 1 and 2, the trial judge’s directions regarding the use that could properly be made of the complainant’s prior inconsistent statements and the appellant’s good character did not give rise to a miscarriage of justice. 2. As to Ground 3, there was no error by the trial judge in her directions to the jury as to the assessment of the appellant’s text messages. In a case where the burden of proof was addressed in an orthodox way, it was not necessary to prove the proper meaning of the text messaging beyond reasonable doubt separately from the determination of guilt based on the whole of the evidence before the jury Per David JA: The trial judge’s directions regarding the assessment of the appellant’s alleged admission in the text message exchange with the complainant’s friend were adequate. There was no error by the trial judge in failing to warn the jury that they needed to be satisfied, beyond reasonable doubt, that the appellant’s text messages constituted an admission of guilt to deliberately digitally penetrating the complainant’s vagina. Livesey P and Stanley JA, (David JA agreeing): 3. As to Ground 4, the prejudicial evidence of a statement made by the appellant to the complainant soon after the offending was admissible and could not have realistically affected the reasoning of the jury on the question of guilt. There was no miscarriage of justice. Held, per Livesey P and Stanley JA, (David JA agreeing), granting permission to appeal against sentence and allowing the appeal: 1. The sentence imposed was manifestly excessive. 2. The sentence imposed in the District Court is set aside, and the appellant is re-sentenced to a term of imprisonment for four years, together with a non-parole period of two years, both backdated to commence on 20 September 2024. 3. The intervention order in the terms imposed by the sentencing judge will again be made. Child Safety (Prohibited Persons) Act 2016 (SA) s 32; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4); Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Procedure Act 1921 (SA) ss 157(1)(a)(iii), 158(1)(b), 158(1)(c), 158(2), 166; Evidence Act 1929 (SA) ss 34M, 34P, 34R; Jury Directions Act 2015 (Vic) ss 61, 62; Sentencing Act 2017 (SA) ss 71, 96(9); Summary Offences Act 1953 (SA) s 74D, referred to. Burns v The Queen (1975) 132 CLR 258; Magill v The Queen (2013) 42 VR 616; Melbourne v The Queen (1999) 198 CLR 1; R v ZT (2025) 281 CLR 137, discussed. -- 2 of 62 -- Alford v Magee (1952) 85 CLR 437; Alzuain v The King [2025] SASCA 67; Athans v The Queen [2022] SASCA 71; Attorney-General v Grosser [2016] SAFC 49; Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92; Brant v The King [2023] SASCA 67; Brawn v The King [2025] HCA 20; Brown (a pseudonym) v The King [2025] SASCA 40; BRS v The Queen (1997) 191 CLR 257; Castle v The Queen (2016) 259 CLR 449; Cornes v The Queen (2018) 265 CLR 178; Crofts v The Queen (1996) 186 CLR 427; Davis and Hyland v The Queen (1995) 183 LSJS 186; Davis v The King [2022] SASCA 116; Day v The Queen (2021) 289 A Crim R 346; De Silva v The Queen (2019) 268 CLR 57; Director of Public Prosecutions v Roder (A Pseudonym) (2024) 281 CLR 18; Domican v The Queen (1992) 173 CLR 555; Doney v The Queen (1990) 171 CLR 207; Driscoll v The Queen (1977) 137 CLR 517; Edwards v The Queen (1993) 178 CLR 193; Fergusson v The King [2024] SASCA 63; Fingleton v R (2005) 227 CLR 166; GBF v The Queen (2020) 271 CLR 537; Hackett v The Queen [2021] SASCA 32; Hewitt v The Queen [2021] NSWCCA 227; Hofer v The Queen (2021) 274 CLR 351; House v The King (1936) 55 CLR 499; Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; JGS v The Queen [2020] SASCFC 48; JV v R [2017] NSWCCA 49; KBT v The Queen (1997) 191 CLR 417; King v Brant [2023] SASCA 67; Kingston (a pseudonym) v The King [2022] SASCA 90; Kirkland v The Queen [2021] SASCA 14; Lander v R (1989) 52 SASR 424; Lane v The Queen (2018) 265 CLR 196; Liberato v The Queen (1985) 159 CLR 507; Macfarlane v The Queen [2022] SASCA 46; Maric v The Queen (1978) 20 ALJR 631; MDP v The King (2025) 99 ALJR 969; Morton (a pseudonym) v The King [2025] SASCA 29; NDA & KA v The Queen [2021] SASCA 11; Neill v Police [1999] SASC 270; Patel v The Queen (2012) 247 CLR 531; Perara-Cathcart v The Queen (2017) 260 CLR 595; Phillipou v The Queen [2020] SASCFC 21; Phillips v The Queen (2006) 225 CLR 303; Potter (A Pseudonym) v The King [2024] SASCA 108; R v B and D (1993) 66 A Crim R 192; R v Baltensperger (2004) 90 SASR 129; R v BEC (2023) 16 QR 1; R v Belcher [2016] SASCFC 17; R v Booth; R v Combarngo [2018] QCA 74; R v C (2004) 89 SASR 270; R v Calides (1983) 34 SASR 355; R v Craggs [1991] SAFC 2736; R v Deboo (2019) 133 SASR 374; R v Dorning (1981) 27 SASR 481; R v Fuller [2015] SASCFC 71; R v Heldon [2019] SASCFC 62; R v Hirst (2013) 116 SASR 300; R v Hitchins (1995) 184 LSJS 333; R v Khalil (1987) 44 SASR 23; R v Knight [2016] SASCFC 40; R v Kohlhagen [2016] SASCFC 19; R v Lian (2023) 144 SASR 303; R v Ly, Nguyen and Ngo [2011] SASCFC 133; R v Major (1998) 70 SASR 488; R v MAS (2013) 118 SASR 160; R v McIntee (1985) 38 SASR 432; R v Meier (1982) 30 SASR 126; R v Murch; R v Logan [2014] SASCFC 61; R v P, S (2016) 261 A Crim R 329; R v PS [2016] SASCFC 97; R v Rendell (Unreported, Supreme Court of South Australia, Prior, Duggan and Debelle JJ, 29 May 1996) ; R v Ross [2018] SASCFC 120; R v Salih (2005) 160 A Crim R 310; R v Sherrin (No 2) (1979) 21 SASR 250; R v Smith (1987) 44 SASR 587; R v Trimboli (1979) 21 SASR 577; R v Wilkes and Briant [1965] VicRp 64; Rezai v The King [2024] SASCA 150; Sadler v The King [2023] SASCA 63; Shepherd v The Queen (1990) 170 CLR 573; Sidhu (a pseudonym) v The King [2025] SASCA 26; Slatterie v Pooley (1840) 6 M. & W 664; Small v Western Australia [2023] WASCA 179; The King v Ryan Churchill (A Pseudonym) (2025) 99 ALJR 719; Velevski v The Queen (2002) 76 ALJR 402; Zoneff v The Queen (2000) 200 CLR 234, considered. -- 3 of 62 -- -- 4 of 62 -- DE VIRGILIO v THE KING [2026] SASCA 16 Court of Appeal – Criminal: Livesey P, David & Stanley JJA LIVESEY P and STANLEY JA: Introduction 1 On 11 June 2024, the appellant was convicted by a majority verdict following a trial before a jury of one count of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty is life imprisonment. 2 On 20 September 2024, the appellant was sentenced to a term of imprisonment of six years, together with a non-parole period of two years and nine months. Because the offending involved a “serious sexual offence” the sentence could not be suspended. Home detention was available only if the sentencing judge was satisfied that there were “special reasons” for making that order. The appellant contended that because he was 54 years at the time of sentence, legally blind and had a number of other infirmities, he no longer presented any appreciable risk to the safety of the community, and the interests of the community would be better served by him serving his sentence on home detention. 3 The sentencing judge was not satisfied that there were special reasons and declined to make a home detention order. 4 The appellant has now appealed against his conviction and sentence. An application for bail pending appeal was heard and dismissed on 11 December 2024. 5 An initial hearing date in March 2025 was vacated as a result of a change in legal representation. Leave was granted to rely on new grounds of appeal. The conviction appeal was argued during May 2025. The appellant applied to lead further evidence before the Court of Appeal in support of his sentence appeal, and leave was given to issue subpoenas. After that material was considered, the application to lead further evidence and the sentence appeal were argued in late June 2025. 6 In so far as it was required, any question of permission to appeal was referred for argument as on appeal. For the following reasons, permission should be granted to appeal both conviction and sentence, but the conviction appeal dismissed. The appeal against sentence should be allowed and the appellant re-sentenced. -- 5 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 2 7 These reasons are arranged as follows: The circumstances of the offending ............................................................................................... 2 The grounds of appeal .................................................................................................................... 4 Appeal ground 1 – directions on prior inconsistent statements ..................................................... 6 Appeal ground 2 – good character evidence ................................................................................ 10 Appeal ground 3 – the directions concerning the appellant’s admission of guilt ........................ 15 Appeal ground 4 – the admission of prejudicial evidence ........................................................... 27 Conclusion on the conviction appeal ........................................................................................... 32 The sentence appeal ..................................................................................................................... 32 The circumstances of the offending .......................................................................................... 33 The circumstances of the offender ........................................................................................... 33 The remarks of the sentencing judge ....................................................................................... 35 The application to lead further evidence on appeal ..................................................................... 37 A home detention order under s 71 of the Sentencing Act? ......................................................... 40 Was the sentence manifestly excessive? ...................................................................................... 44 Conclusion ................................................................................................................................... 47 The circumstances of the offending 8 The appellant and the complainant became known to one another when they both worked “in retail” in 2016. The appellant later worked as a masseur. The complainant contacted the appellant and arranged to have a massage. 9 The prosecution case was that whilst massaging the complainant at his father’s house on 13 January 2022, the appellant inserted one or more of his fingers into the complainant’s vagina. 10 According to the evidence of the complainant, some minutes after the massage commenced, the appellant spread her legs. The complainant was wearing a “G-string” which was too big. The appellant then massaged the complainant on the inside of her right thigh, commencing at her knee. It was whilst massaging all the way up that he made contact with her vagina. The complainant said that she felt fingers go inside her vagina, but she was not able to say how many fingers, “It just felt really thick”. This lasted for about 10 seconds. The G-string did not move during the course of the massage. 11 The complainant gave evidence that she then said, “Michael”, to which the appellant answered, “Sorry darling”. The appellant removed his fingers. The complainant closed her legs but then opened them again. The appellant continued the massage on her left leg. -- 6 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 3 12 When the appellant temporarily left the massage room, the complainant got dressed and went out to the common area and spoke to the appellant’s father. The complainant then thanked the appellant and hugged and kissed him goodbye. 13 The prosecution case was said to be supported by two pieces of evidence. The first concerned complaint evidence led pursuant to s 34M of the Evidence Act 1929 (SA) (the Evidence Act). This comprised an initial complaint and a subsequent elaboration made by the complainant to a friend on 13 and 14 January 2022. Initially, the complainant said to her friend that she “just had a massage and I was touched by Micky”.1 Subsequently, the complaint told her friend that she “thought” that the appellant had put his fingers in her and she was not sure.2 The complainant questioned whether the appellant’s conduct was serious enough to warrant going to the police. 14 The trial judge gave the jury orthodox directions about this evidence in conformity with the requirements of s 34M of the Evidence Act. 15 The second piece of evidence concerned what was alleged by the prosecution to be an admission made by the appellant to the complainant’s friend on 14 January 2022. In the course of an exchange of text messages, the appellant was confronted with the message, “what the fuck did you do to [the complainant] last night stay away from her do not contact her ever again”. The appellant’s response was, “I don’t no [sic] what to say or do I’m imbarrassed [sic] and dissapointed [sic] with myself. I wanted to apologise for my massive error of judhment [sic]. I need to apologise to her”.3 16 Otherwise, the prosecution case entirely depended on the evidence of the complainant. 17 The defence case at trial was that the appellant accidentally touched the complainant near her vagina but over her clothing. In support of this case, the defence pointed to the fact that the appellant was effectively blind, the massage room was dark, the complainant was wearing an oversized G-string which was not moved during the massage, and the complainant’s evidence was inconsistent regarding the positioning of her underwear as well as about what had happened. Initially, the complainant referred to the appellant touching her bottom or simply being “touched”, and she was initially unsure (she “thought”) the appellant had penetrated her.4 Later, she became more certain. 18 The appellant contended that the complainant had fabricated or reconstructed her account, and the jury could not be satisfied that the appellant had made any admission regarding digital penetration. It was said that the response by text 1 Transcript 136. 2 Transcript 202. 3 Exhibit P5. 4 As to this evidence, the defence relied on Magill v The Queen (2013) 42 VR 616, [5] (Buchanan AP), [77] (Priest JA), addressed later in these reasons. -- 7 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 4 message to the complainant’s friend was explicable as an apology for unprofessional conduct, being the accidental touching of the complainant rather than for the alleged penetration. 19 In addition, the appellant called evidence of his good character. The appellant did not give evidence before the jury. 20 Central to the defence case at trial was the challenge made to the complainant’s credibility and reliability. In argument before this Court that challenge was refined somewhat, and the appellant contended that it was necessary for the trial judge, amongst other matters, to address the reasonable possibility that there may have been accidental penetration. The grounds of appeal 21 The appellant relied on the following substituted appeal grounds dated 12 May, for which leave was granted on 21 May 2025: 1. The learned trial judge erred in her directions in relation to the use that could be made of prior inconsistent statements made by the complainant: 1.1. by failing to direct the jury that the inconsistent statements were relevant to their evaluation of the credibility of the complainant’s evidence in addition to its reliability (AB83); 1.2. by directing the jury in terms that the inconsistent statements were to be considered having regard to the extent that they bore upon the risk the complainant’s evidence was unreliable (AB83); and 1.3. by directing the jury that in their consideration of the significance of the inconsistent statements in relation to the reliability of the complainant’s evidence, they were “entitled to take into account any independent evidence that goes to support the evidence of a sworn witness”, where there was no such support and/or alternatively, without identifying the evidence that was said to be capable of being so used. 2. The learned trial judge erred in her directions as to the use that could be made of the applicant’s prior good character (AB71, 85-96; Tx340-341): 2.1. by failing to direct the jury as a matter of law of its available use in relation to their consideration of the improbability of the applicant committing the offence; and 2.2. by failing to direct the jury that the evidence was relevant to their evaluation of any alternative innocent explanation for the text messages sent by the applicant, which was relied upon by the prosecution as an admission. 3. The learned trial judge erred in her directions as to the assessment of the text messages, by failing to direct the jury that it was necessary to exclude beyond reasonable doubt any alternative innocent explanation for the messages before they could be used as an admission (AB75). -- 8 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 5 4. The fair trial of the applicant miscarried as a result of the admission of evidence of a prior occasion of comparable alleged misconduct with another person, which evidence was not the subject of any limiting direction by the learned trial judge (Tx134, Tx185, Tx198). 22 As argued in this Court, by appeal ground 1 the appellant contended that the trial judge had failed to adequately direct the jury regarding the use that could properly be made of the complainant’s prior inconsistent statements. It was contended that the trial judge did not direct the jury that the prior inconsistent statements, if proved, were relevant to their assessment of the complainant’s credibility. It was said that the trial judge’s directions had the effect of erroneously confining the jury’s assessment to the complainant’s reliability.5 Associated with this ground was the complaint that the jury were directed that they were entitled to “take into account any independent evidence” that supported the evidence of a sworn witness without identifying what that evidence might be.6 23 Appeal ground 2 concerned the directions given by the trial judge regarding the appellant’s good character. There were two aspects to this complaint. The first was that the trial judge erred by couching the use of good character evidence as a submission advanced by the defence, without placing the court’s imprimatur on that use. In addition, it was contended that the trial judge erred by failing to direct the jury that the appellant’s good character was relevant not only to the general assessment of his guilt, but particularly the jury’s assessment of the alleged admission. The appellant contended that the good character evidence also went to the probability of the defence hypothesis regarding the true meaning of the message or, more accurately, the inability of the prosecution to exclude the alternative, innocent hypothesis. 24 Appeal ground 3 concerned the trial judge’s directions about the assessment of the appellant’s alleged admission contained in the text message exchange with the complainant’s friend. The appellant contended that the trial judge failed to direct the jury that it was necessary to exclude the alternative explanation offered by the defence as a reasonable possibility before the jury could act on that admission. 25 Appeal ground 4 concerned the admission of evidence about a statement made by the appellant to the complainant soon after the offending in which he said, “You should have seen the girl I had before, she was dripping from everywhere”. The appellant contended that where this statement was made almost immediately after the alleged offending, the evidence had the capacity to suggest that the appellant had acted in a similar manner on an earlier occasion with someone other than the complainant. It was contended that this amounted to evidence of discreditable conduct which was “incurably prejudicial”. The appellant also contended that the admission of this evidence, particularly in the absence of 5 Summing up, AB 83. 6 Summing up, AB 83. -- 9 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 6 directions, could realistically have affected the reasoning of the jury on the question of guilt.7 26 Finally, on behalf of the appellant, it was contended that where the contest at trial was dominated by the question of the complainant’s credibility, if there had been an error, it cannot be said that no substantial miscarriage of justice occurred. This Court was necessarily left in a position where it could only speculate as to how each of the errors may have affected the contest at trial.8 Accordingly, should this Court be satisfied about any of the errors for which the appellant contended, this is not a case in which it is appropriate to apply the proviso.9 Appeal ground 1 – directions on prior inconsistent statements 27 An important element of the defence challenge to the complainant’s credibility and reliability were a number of inconsistent statements. In his final address, counsel for the appellant gathered these together, submitting that they were a source of reasonable doubt. Broadly, these arose between the complainant’s evidence given in court and the accounts she gave to police or her friend: 1. The first inconsistency concerned the complainant’s account regarding the position of her underwear during the massage. In her statement provided to police in January 2022, the complainant said that the appellant pulled her underwear below the cheeks of her bottom. In evidence, the complainant said that the appellant did not touch her underwear and that it did not move.10 This was described by defence counsel in his final address as a “profound” inconsistency, suggesting that the difference was only explicable if “you’re making it up as you go along”.11 Counsel described the allegation as confusing and “not based in fact”.12 2. The second inconsistency concerned the complainant’s account of the appellant touching her breasts at the start of the massage. In her statement to police, the complainant described the appellant as having “groped” her when touching her breasts. In evidence, the complainant said that the appellant massaged the side of her breast towards her armpit. In final address, counsel for the appellant explained the difference on the basis that there may have been “some incidental touching” but the complainant had elevated this into “something which it most clearly was not”.13 3. The third inconsistency concerned the complainant’s account about whether there were CCTV cameras inside the house, including in the massage room, 7 Relying on Brawn v The King (2025) 99 ALJR 872, [3], [8], [10]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 8 Davis v The King [2022] SASCA 116, [141] (Doyle, Bleby and David JJA). 9 Fergusson v The King [2024] SASCA 63, [82] (Livesey P, Doyle and David JJA). 10 Transcript 181. 11 Transcript 320. 12 Transcript 319-320. 13 Transcript 321. -- 10 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 7 together with a television with multiple cameras. This account was given to both police and the complainant’s friend.14 In evidence, the complainant said there was CCTV inside the house.15 4. The fourth inconsistency concerned whether the appellant penetrated the complainant’s vagina. As has been seen, the complainant’s friend gave evidence that the complainant said she “thought” the appellant put his fingers into her vagina. She did not say that she was sure he had done so. The complainant’s friend gave evidence that, the next day, the complainant told her that the appellant had put his fingers inside her. The appellant’s counsel emphasised that the complainant initially doubted what occurred and suggested that the complainant’s “elevated certainty is obviously a matter of concern”.16 This was described in final address as a “process of reconstruction”.17 Counsel concluded that it was “really hard to know what she is saying, thus it’s impossible to know what you act upon or believe is established beyond reasonable doubt”.18 5. Fifth and finally, there was some inconsistency as to how many fingers penetrated the complainant’s vagina. When she spoke to police on 16 January 2022 the complainant described at least two fingers. However, in her evidence, the complainant said that she did not know how many fingers penetrated her vagina. 28 In the course of her summing up, the trial judge told the jury that the assessment of witnesses involved a two-stage inquiry.19 The first stage was to consider the question of credibility and then, secondly, to consider the question whether the witness was reliable. On this approach, an honest witness might still be inaccurate or unreliable. The appellant submitted that this direction conveyed to the jury that a staged inquiry was necessary. 29 The trial judge then moved to the topic of inconsistent statements, summarising the statements and the circumstances in which each was made. The trial judge directed the jury as follows:20 First of all, you will need to consider the versions that were given in court and out of court. You will need to consider whether you think they are inconsistent with each other. If they are, then you need to consider the effect of them being inconsistent. The defence argue that since [the complainant] has given different accounts at different times you cannot accept her evidence in court. They argue that these inconsistencies, when considered with other evidence in the case, affect the credibility of [the complainant] to such an extent that you 14 AB 77. 15 Transcript 145 16 Transcript 323. 17 Transcript 324. 18 Transcript 326. 19 Summing up, AB 65. 20 Summing up, AB 82-83. -- 11 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 8 cannot rely on her evidence to prove the charge against the accused. And, without her evidence, there is no basis to find the accused guilty. It is important to realise that you cannot use the evidence of witness’s statements outside court for any other purpose. … If you consider that there are inconsistencies between the evidence of [the complainant] in court to what she has said out of court, then you will need to consider the significance of those inconsistencies. You will need to ask yourselves whether they touch upon an important issue in the case, or are they peripheral or incidental? If they to touch upon an important issue you may consider in what circumstances the statements were made. You may consider is there an acceptable explanation for the inconsistencies? … 30 Then, in a passage which is important to this appeal ground, the trial judge gave the following directions:21 Do you consider that that explanation is consistent with the witness’s sworn evidence being believable and reliable? Obviously enough, the more significant an inconsistency the greater the risk that the sworn evidence may be unreliable. You are of course entitled to take into account any independent evidence that goes to support the evidence of a sworn witness. 31 There is no issue between the parties to this appeal regarding the principles to be applied to evaluating prior inconsistent statements.22 The appellant advanced four propositions. The first was that the trial judge failed to direct the jury that the inconsistent statements were relevant to their assessment of the complainant’s credibility because the focus of the direction was on the complainant’s reliability. This was, it was submitted, different to a direction given by a trial judge as to how evidence could be used or approached.23 The jury were entitled to accept or reject directions about how evidence can be used but they could not reject directions about how evidence ought be approached.24 The issue was, it was submitted, of sufficient importance that it was necessary for the trial judge to put her imprimatur on the way in which the inconsistent statements may have impacted on the complainant’s credibility.25 32 The second proposition was that the directions had the effect of limiting the relevance of any proved inconsistency to an assessment of the complainant’s 21 Summing up, AB 83. 22 See Driscoll v The Queen (1977) 137 CLR 517, 536 (Gibbs J); Brown (a pseudonym) v The King [2025] SASCA 40, [173]-[180] (Livesey P, with whom S Doyle and Bleby JJA generally agreed, see [226]). 23 Contrasting Domican v The Queen (1992) 173 CLR 555, 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 24 Contrasting Sadler v The King [2023] SASCA 63, [150] (Nicholson AJA). 25 The appellant relied on: R v MAS (2013) 118 SASR 160, [76]-[81]; Davis and Hyland v The Queen (1995) 183 LSJS 186, 191-192; R v Rendell (Unreported, Supreme Court of South Australia, Prior, Duggan and Debelle JJ, 29 May 1996), 6. See also R v Baltensperger (2004) 90 SASR 129, 149; R v Wilkes and Briant [1965] VR 475, 478; R v Salih (2005) 160 A Crim R 310, 321; R v B and D (1993) 66 A Crim R 192, 196. -- 12 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 9 reliability. It was submitted that the jury would not have understood the direction given by the trial judge as encompassing both reliability and credibility. 33 The third proposition was that the direction posed the relevant analysis as involving an assessment of risk, namely the risk of unreliability. The appellant submitted that, to the contrary, it was necessary that the jury be directed that the more significant the inconsistency the greater its capacity to reflect adversely on the complainant’s credibility as well as her reliability. 34 Fourth and finally, the trial judge was said to have diluted the force of the direction she gave by reminding the jury that they were “entitled to take into account any independent evidence that goes to support the evidence of a sworn witness”.26 This aspect of the direction was said to be reminiscent of directions formerly given in cases calling for corroborating evidence where the evidence of an accomplice was involved. However, in those cases there was a threshold issue as to whether the evidence was, as a matter of law, corroborative, and it was necessary for the trial judge to identify that evidence for the jury.27 The failure of the trial judge to identify that evidence was, it was submitted, “ordinarily fatal” because it impacted directly on the assessment of the credibility and reliability of the witness.28 35 The appellant contended that the jury was given no assistance of this kind, and this was important in a case where there was very little evidence which “could be said to be truly independent of the complainant”.29 This exposed the appellant to the risk that the jury might cast about for independent evidence, wrongly having regard to evidence thinking it was independent when in fact it was not.30 36 The appellant concluded that the failure to give appropriate directions realistically affected the reasoning of the jury concerning a key component of the defence case,31 and accordingly, a miscarriage of justice has been occasioned because this Court cannot be satisfied that the appellant had the trial to which he was entitled.32 37 These contentions should be rejected. Whatever the doubts that may be expressed from time to time about directing the jury concerning a “two-stage” approach to assessing the evidence of a witness,33 the issue here concerned the 26 Summing up, AB 83; The appellant relied on: Doney v The Queen (1990) 171 CLR 207; BRS v The Queen (1997) 119 CLR 275; R v Murch; R v Logan [2014] SASCFC 61. 27 Relying on: Doney v The Queen (1990) 171 CLR 207; BRS v The Queen (1997) 119 CLR 275; R v Murch; R v Logan [2014] SASCFC 61. 28 Relying on R v Sherrin (No 2) (1979) 21 SASR 250. 29 Written submissions of the appellant on appeal against conviction, [18]. 30 R v Lander (1989) 52 SASR 424. 31 Relying on Brown (a pseudonym) v The King [2025] SASCA 40, [187] (Livesey P, with whom S Doyle and Bleby JJA generally agreed, see [226]). 32 Relying on: Alford v Magee (1952) 85 CLR 437; Fingleton v The Queen (2005) 227 CLR 166, [79] (McHugh J). 33 Cf Brown (a pseudonym) v The King [2025] SASCA 40, [193] (Livesey P). -- 13 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 10 adequacy of the directions given regarding the prior inconsistent statements identified by the trial judge. 38 When one looks at what the trial judge said, she made it clear that the analysis of the complainant’s prior inconsistent statements was concerned with whether her evidence was “believable and reliable”. These words necessarily encompassed credibility and reliability. The absence of the use of the word “believable”, like the absence of the use of the word “credible”, in the sentence that followed is not fatal. The jury would have understood that they were required to assess both credibility and reliability. 39 That this is a fair reading of the effect of the direction is supported, at least in part, by the absence of any objection from counsel for the defence at trial. No request was made for a further direction notwithstanding that further directions were requested on other issues during a subsequent break in the summing up that day.34 40 As for the reference to “independent evidence”, the analogy with the older authorities on corroboration as a matter of law should be rejected. In this case, the evidence independent of the complainant came from the appellant’s responses in the text message exchange involving the appellant and the complainant’s friend. These were the subject of separate directions. 41 Whilst it may have been better if the trial judge had identified the independent evidence she had in mind, in the circumstances of this case that was not necessary. 42 Here again, that inference is strengthened by the fact no objection was taken nor was any request made for clarification by defence counsel at the trial. One can readily imagine the reluctance of counsel for the appellant at trial to seek a further direction emphasising the impact of evidence independent of the complainant which was supportive of the complainant’s account. 43 These directions did not give rise to a miscarriage of justice and appeal ground 1 should be dismissed. Appeal ground 2 – good character evidence 44 The appellant led evidence from three witnesses attesting to his good character. This evidence was extensively summarised by the trial judge.35 Each witness attested to the appellant’s reputation in the community and his good qualities. Each gave evidence that they had been massaged by the appellant or knew of others who had been massaged. The appellant adduced evidence to the effect that he had never been charged with any offence and had no convictions. 34 Summing up, AB 88-93. 35 Summing up, AB 69-71. -- 14 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 11 45 The need for a direction regarding the appellant’s good character was raised by his counsel after addresses but before the summing up.36 The address made by counsel for the appellant to the jury was consistent with its use as a factor affecting the likelihood of the accused committing the crime with which he was charged.37 The trial judge gave the following direction to the jury concerning the good character evidence:38 This evidence in relation to character is relevant to the probability that the accused committed the offence of rape. The defence argue that he is a person of good character and so is less likely to have committed these offences as it is not in his nature. Of course, this does not mean that you must find the accused guilty even if you accept he is a person of good character. You may accept other evidence that leads you to conclude beyond reasonable doubt that he is guilty. Sometimes a person who was previously of a good character is found to have committed a crime for the first time. When you come to consider this case, you must take into account the evidence of his good character in determining whether the prosecution have proven the case beyond reasonable doubt. 46 Later, during a break in the summing up, an issue was raised regarding this direction, correcting one sentence so that it read, “Of course, this does not mean that you must find the accused not guilty even if you accept that he is a person of good character”.39 47 Two broad submissions were made about this ground of appeal. First, the appellant contended that the direction given by the trial judge was couched in terms of reminding the jury about a defence argument rather than as a direction that the jury was obliged to follow. This had the effect, it was contended, of downplaying the significance of the appellant’s good character evidence. 48 The appellant argued that the effect of the direction was that the jury should take the good character evidence into account when considering whether they should accept the complainant’s evidence but the jury was not clearly directed “to the relevant question to be asked in the context of the improbability purpose”.40 Because evidence of an accused’s good character on a trial of sexual offending may play a significant role in the outcome,41 where the improbability of the appellant acting in the manner alleged was central, it was contended that it was necessary to explain the required process of reasoning with the weight of the trial judge’s authority and this was not done. 49 The second matter relied on by the appellant under this appeal ground was the failure of the trial judge to direct the jury that the good character evidence was relevant not only to guilt generally but also to the jury’s assessment of the 36 Transcript 340-341. 37 R v Trimboli (1979) 21 SASR 577, 578 (King CJ); Melbourne v The Queen (1999) 198 CLR 1, [101] (Kirby J); Sidhu (a pseudonym) v The King [2025] SASCA 26, [55]-[62] (Livesey P and Bleby JA). 38 Summing up, AB 71. 39 Summing up, AB 95. 40 Contrasting R v P, S (2016) 261 A Crim R 329, [86] (Nicholson and Lovell JJ, with whom Parker J agreed). 41 JV v R [2017] NSWCCA 49, [122] (N Adams J, with whom Leeming JA and Fagan J agreed). -- 15 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 12 “admission” which it was alleged the appellant had made in the text message exchange with the complainant’s friend. 50 Before the jury could act on that admission, the appellant contended that it was necessary for the prosecution to exclude the reasonable possibility that it was, as the appellant’s counsel had argued, a reference to an unprofessional engagement such as an accidental touching rather than an admission to rape.42 It was submitted that this was important where the admission was “somewhat ambiguous”. Accordingly, the appellant’s good character was relevant to the resolution of that issue because his good character made it more likely that the “admission” was in fact merely an apology for accidental touching. 51 The appellant contended that whether an admission to rape had been made was an important issue at the trial because the prosecutor urged the jury to find that the complainant’s account was supported by what the appellant had said in his text message.43 In a case where the complainant’s account was otherwise uncorroborated, the admission had the capacity to materially affect the jury’s reasoning. The jury may well have convicted the appellant on the strength of what was perceived to be an admission of guilt.44 52 In this regard, the appellant contended that there were two aspects to the analysis of any “admission”. Both were affected by the appellant’s good character. The first was that during the massage the appellant had said, “sorry”. The second was the apology given after the confrontation by text message. The appellant contended that it was notable that the initial apology was not relied on as an admission, and this reinforced the proposition that both apologies concerned “something other than the alleged conduct”. 53 The appellant contended that, given the importance of this issue to the contest at trial, it was necessary for the jury to be directed on all salient matters concerning the resolution of this issue. Accordingly, and notwithstanding the absence of any request for a direction, it was submitted that this Court should find that there has been a miscarriage of justice occasioned by the failure of the trial judge to apply the good character evidence to the alleged admission. 54 In resolving this ground, it is necessary to address the evidence and the directions given about that evidence. The evidence is in Exhibit P5. The complainant’s friend commenced the exchange: Friend: what the fuck did you do to [the complainant] last night stay away from her do not contact her ever again 42 Summing up, AB 101. 43 Transcript 306-308. 44 See Castle v The Queen (2016) 259 CLR 449, [65] (Kiefel, Bell, Keane and Nettle JJ). -- 16 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 13 Accused: I don’t no [sic] what to say or do I’m imbarrassed [sic] and dissapointed [sic] with myself. I wanted to apologise for my massive error of judhment [sic]. I need to apologise to her. Friend: she is fkn traumatised you fkn piece of shit … Accused: i feel really bad she’s my friend. What can I do. Friend: stay away all over red rover. Accused: Ok I understand. 55 The trial judge directed the jury that the text messages from the complainant’s friend could not be used to prove the truth of what was said in them. They could only be used as context for understanding what was said by the accused in response.45 The trial judge also directed the jury that they needed to consider what was said, what was meant, and what weight they should give to the evidence of what the text messages sent by the accused meant:46 Firstly, you will need to consider what he meant. Is he admitting that he put his fingers into [the complainant] as is alleged by her? Or is there another explanation for him saying those words such as admitting an accidental act? 56 It was at this point in the summing up that the trial judge reminded the jury about the arguments put by counsel, particularly by counsel for the appellant. In substance, these arguments addressed the proposition that the appellant may have been apologising for something which was accidental but not criminal. The trial judge then reminded the jury about the address of counsel for the prosecution and the suggestions that she had made:47 So, members of the jury, if it is suggested to you that the error of judgment was an accidental touching, I suggest that you should reject that suggestion. And if it is suggested to you that the error of judgment was massaging [the complainant] in the dark, well, you have heard this morning that was something that the accused used to do. You have heard from two witnesses this morning that massaging in the dark was nothing unusual or with the lights off was nothing unusual for the accused so that can’t have been the error of judgment. 57 The trial judge concluded her directions on this topic as follows:48 It is for you to consider whether there is an explanation other than that the accused is admitting he deliberately put his finger or fingers in [the complainant’s] vagina. If you do consider there is another reasonable explanation for that then you will put this evidence of P5 to one side. However, if you find its reference to massive error of judgment amounts to an admission that he did put his finger or fingers in her vagina deliberately, no matter how 45 Summing up, AB 72. 46 Summing up, AB 72-73. 47 Summing up, AB 74. 48 Summing up, AB 75. -- 17 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 14 fleeting that was, then you can use this evidence to support the version of events that [the complainant] has given in this court. 58 The authorities show that evidence concerning an accused’s good character is admissible for two purposes. The first is that it bears on the likelihood of an accused acting as alleged.49 The second purpose is that it supports the credibility of an accused.50 In Trimboli, King CJ articulated three propositions regarding the content of directions concerning good character evidence:51 1. In all cases in which there is evidence about the accused’s good character a direction must be given regarding the use of that evidence. 2. No particular form of words is necessary. However, the jury should in substance be told that the evidence should be regarded “as a factor affecting the likelihood of the accused committing the crime charged”. The judge may add, if the judge thinks it appropriate in a particular case, that the jury should consider the accused’s good character “in assessing the credibility of any explanation given by him and, when he has given evidence, his credibility as a witness”. 3. Trial judges are at liberty to remind the jury that people do commit crimes for the first time, which is a consideration which applies with particular force in certain types of crime, and notwithstanding evidence of past good character. 59 Good character evidence may engender reasonable doubt because of the improbability that a right-thinking person would engage in criminal wrongdoing.52 And, as may be obvious, good character evidence is not only relevant in cases where an accused has given an account to police or where an accused has given evidence in court. As was explained in Melbourne v The Queen,53 since Trimboli it has become accepted in England, New Zealand and Canada that a direction relevant to the credibility of the accused may be necessary where the accused has made various out of court statements. 60 In that case, the High Court accepted that good character evidence could be relevant to an assessment of the statements made by an accused out of court, where those statements may take various forms.54 In the same case, however, McHugh J held that the court retained a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance concerning: (a) the 49 R v Trimboli (1979) 21 SASR 577, 578 (King CJ) (Trimboli). 50 Melbourne v The Queen (1999) 198 CLR 1, [30]-[31] (McHugh J). 51 Trimboli (1979) 21 SASR 577, 578 (King CJ). See also Sidhu (a pseudonym) v The King [2025] SASCA 26, [55]-[62] (Livesey P and Bleby JA). 52 Morton (a pseudonym) v The King [2025] SASCA 29, [29] (Kourakis CJ, Doyle and David JJA). 53 Melbourne v The Queen (1999) 198 CLR 1, [102] (Kirby J). 54 Melbourne v The Queen (1999) 198 CLR 1, [199]-[202] (Callinan J). In that case, the High Court was divided on whether that kind of direction should have been given in the circumstances of that case. -- 18 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 15 accused’s propensity to commit the crime charged, and (b) the accused’s credibility. 55 61 The nature and extent of the direction which may be required concerning an accused’s good character must inevitably depend upon the circumstances of the particular case. These will include the facts in issue, the kind of statements made, and how the good character evidence may or may not bear on those facts or statements. In this case, no particular direction was given concerning the accused’s good character regarding the analysis of the accused’s alleged admission made in the course of the text exchanges with the complainant’s friend. 62 Though the trial judge referred to the submissions of counsel on these matters in the final address, she did not fail to give directions with the imprimatur of the court. The jury was directed about the proper analysis of the alleged admission, and the jury was also given directions regarding the way in which good character evidence may be relevant to an assessment of the accused’s guilt. Whilst a specific direction could have been given regarding the relevance of good character on the topic of evaluating the accused’s admission, in the circumstances of this case that was not required, and none was sought by experienced counsel for the defence. The general directions given about good character and proof of the appellant’s guilt were apparently thought sufficient. 63 There is no reason to think that the jury failed to appreciate that the accused’s good character was relevant to its analysis of the accused’s guilt, including to the extent that reliance was placed on the suggested admission. 64 In all of these circumstances, it cannot be said that the accused was denied a fair trial or that there was otherwise a miscarriage of justice. Appeal ground 2 should be dismissed. Appeal ground 3 – the directions concerning the appellant’s admission of guilt 65 The appellant put as his “central submission” on this ground that the trial judge erred on a matter of considerable forensic significance at the trial. The appellant contended that the admission could have represented an independent pathway to a finding of guilt.56 The appellant, however, also submitted that the 55 Melbourne v The Queen (1999) 198 CLR 1, [30]-[32]. See also R v P, S (2016) 261 A Crim R 329, [80]-[86] (Nicholson and Lovell JJ, with whom Parker J agreed). Recently, in Morton (a pseudonym) v The King [2025] SASCA 29, [26]-[29] (Kourakis CJ, Doyle and David JJA), this Court accepted that good character evidence may be relevant when assessing a number of “bare denials” made by an accused out of court. Nonetheless, the Court there said at [26] that: “It could only have marginally, if at all, affected the weight to be given to the appellant’s non-testimonial exculpatory statements which took the form of bare denials”. 56 In argument, senior counsel for the appellant relied on Castle v The Queen (2016) 259 CLR 449 and Lane v The Queen (2018) 265 CLR 196. -- 19 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 16 admission was equivocal in nature and this only “increased the need for careful direction”.57 66 The appellant contended that the trial judge erred in connection with her directions to the jury on how the alleged admission was to be assessed. The particular words criticised were:58 It is for you to consider whether there is an explanation other than that the accused is admitting he deliberately put his finger or fingers in [the complainant’s] vagina. If you do consider there is another reasonable explanation for that then you will put this evidence of P5 to one side. 67 The appellant’s proposition was that the use of the word “consider” was tantamount to “find”. On this basis, the submission was that the jury was left with what amounted to a “binary choice” which failed to reflect the prosecution burden to exclude any reasonable hypothesis consistent with innocence. This was criticised on the basis that it was not for the jury to consider whether there was an alternative explanation because it was for the prosecution to exclude the reasonable possibility that there was another explanation. The criticism regarding this aspect of the burden can be dealt with at the outset. 68 It would have been preferable for the trial judge to direct that the text message exchange could not be used in support of the prosecution case unless the jury was first satisfied that the prosecution had excluded any reasonable explanation for the exchange other than the complainant’s allegations. However, when the directions are considered as a whole, the jury was not directed toward a binary choice. The jury was not directed to choose.59 Rather, after the trial judge carefully summarised the case of each party, the jury was invited to consider the meaning of the exchange and whether there was another explanation for the appellant’s messaging and, if there was, the jury was directed to put the messaging to one side. 69 Otherwise, the appellant principally relied upon the approach taken by Buchanan AP and Priest JA in Magill v The Queen, where their Honours found that there was a substantial miscarriage of justice occasioned by the failure of the trial judge to properly direct the jury regarding the assessment of a text message beyond reasonable doubt.60 As appears from that decision, that kind of direction was routinely given to juries in Victoria where a confession or admission comprised an important part of the prosecution case.61 There are a number of other cases from Victoria where the same approach has been suggested in the case of 57 Contrasting: Brant v The King [2023] SASCA 67, [40] (Livesey P, Doyle and David JJA); R v Ly, Nguyen and Ngo [2011] SASCFC 133, [80]-[81] (Peek J), citing R v Khalil (1987) 44 SASR 23. 58 Summing up, AB 75. 59 Cf The Queen v Calides (1983) 34 SASR 355, 356-360 (Wells J), 360-361 (Legoe J), 361 (Matheson J). See also Jeremy Gans, “Whom do you believe?: Criminal Appeals, Conflicting testimony and burden of proof” (2000) Sydney Law Review, 220; Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J); De Silva v The Queen (2019) 268 CLR 57, [11] (Kiefel CJ, Bell, Gageler and Gordon JJ). 60 Magill v The Queen (2013) 42 VR 616, [5]-[6] (Buchanan AP), [76]-[80] (Priest JA). 61 Magill v The Queen (2013) 42 VR 616, [74] (Priest JA). -- 20 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 17 lies,62 flight,63 and other post-offence conduct giving rise to an inference of consciousness of guilt.64 70 When addressing this ground of appeal, it is first necessary to put the impugned passage into context, for the summing-up must be considered as a whole. The trial judge gave standard directions about the burden of proof, as well as regarding the approach required when evaluating the text message exchange in Exhibit P5:65 The accused comes into this court with a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused does not have to prove anything at all. … You will remember that earlier in the trial I gave you some directions in relation to these messages. That direction is that you can take into account the messages that were sent by [the complainant’s friend] to the accused to give context to the texts that were sent by the accused, but you cannot use the content of the text messages sent by [the complainant’s friend] to prove the truth of what she is saying in those text messages. There is an important distinction between those two things. You will, of course, need to consider the text that she sent to the accused to consider what he meant by the answer that he sent back to her. … … You will need to consider what was said, what was meant and what weight you can give to the evidence of what the text messages sent by the accused mean. Firstly, you will need to consider what he meant. Is he admitting that he put his fingers into [the complainant] as is alleged by her? Or is there another explanation for him saying those words such as admitting an accidental act? 71 The direction given about how the jury should approach the messages from the complainant’s friend was particularly important in a case where the admissibility of this exchange does not appear to have been challenged and where there was no evidence or any other out of court statement from the appellant. 62 R v LAZ [1998] 1 VR 453, 468-469 (Ormiston, Charles JJA and Vincent AJA), and regardless whether the lie is not the only evidence against the accused, provided it reveals a consciousness of guilt because it represents “the realisation of guilt and a fear of the truth”. 63 R v Ciantar (2006) 16 VR 26, [44]-[73] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA), where lies and post-offence conduct were described as “a species of circumstantial evidence”, [44], and where the jury need not be satisfied about “other potential explanations”, though it was customary for “prudential reasons” to require that evidence of consciousness of guilt be proved beyond reasonable doubt, citing cases such as R v Katzmann [1999] 2 VR 123, [21] (Callaway JA) and, later, R v Power (1996) 87 A Crim R 407, 409 (Doyle CJ), a case on admissibility. 64 R v Farquarson (2009) 26 VR 410, [172]-[174], [188]-[192] (Warren CJ, Nettle and Redlich JJA) as to whether “all other reasonable possibilities” were excluded, concerning attempts to manipulate a witness not to reveal conversations suggestive of guilt. 65 Summing up, AB 53, 72-73. -- 21 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 18 72 The exchange of text messages demonstrated at least two matters necessitating the direction to disregard the truth of the texts sent from the complainant’s friend. The first is that, when combined with the evidence of complaint from the complainant and her friend, the complainant’s friend could only ever have had in mind the complainant’s version of events, about which she had no personal knowledge. She knew only what the complainant had told her. That was hearsay, admissible only as complaint evidence under s 34M of the Evidence Act. Secondly, and as is clear from the tenor of the text message exchange, the complainant’s friend clearly believed what the complainant had told her, and this too was potentially prejudicial, reinforcing the need for the direction that was given. 73 The trial judge then addressed the competing arguments of counsel in some detail, before addressing the manner in which the jury might approach its evaluation of the appellant’s answers, and the passage which is the subject of challenge, earlier set out. 74 In order to determine this challenge, it is helpful to categorise the evidence, recognising that these categories are not fixed by bright lines and there is some room for flexibility, especially where the process of fact finding was, subject to any directions from the trial judge, a matter for the jury. What emerges from these categories or examples is that it is not usually necessary to prove evidence or inferences drawn from evidence beyond reasonable doubt, including the meaning of text messaging, separately from the determination of guilt based on an evaluation of the whole of the evidence. 75 First, whilst the appellant contended that the admission in the appellant’s text messaging could have represented a separate pathway to a finding of guilt, that contention must be rejected, essentially for the reason that what was said by the appellant did not explicitly refer to criminal offending. As the jury were appropriately reminded, there may have been alternative explanations available for the appellant’s apology, such as an admitted error of judgment which was not related to the allegation of criminal offending. Accordingly, and regardless of the submissions made to the jury by the prosecution, whether the appellant’s response referred to criminal offending necessarily depended, at least in part, on the view taken of the evidence of the complainant. 76 In that context, and as the trial judge explained, the admission could only ever represent support for the complainant’s account rather than a separate and discrete pathway. 77 Secondly, the support provided by the appellant’s text messaging could be considered a form or item of circumstantial evidence. In Shepherd v The Queen, Dawson J described circumstantial evidence, together with the links between -- 22 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 19 “basic … facts”, an “intermediate factual conclusion”, and the “ultimate inference” of guilt in the following way:66 Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought or be proved. The inference, which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, the ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. 78 In this case, the prosecution did not suggest that the messages be used as circumstantial evidence and urged the jury to find that the appellant’s text messages contained an admission to the criminal offending described by the complainant, and of which he was (implicitly) being accused by the complainant’s friend. However, in context, the appellant’s messages could only be considered an admission if an inference was drawn based on other evidence in the case. That is because the messages were sent in a context where they must have been referring to the appellant’s massage of the complainant the previous day, and to something – a massive error of judgment by the appellant – which warranted his apology. From these features the jury was asked to infer the further fact that the appellant was apologising for something more serious than a mere accident or error of professional judgment. Whether that inference was drawn depended on a combination of the jury’s assessment of the complainant’s evidence and their assessment of the tone and content of the appellant’s messaging. If the inference was drawn, that was a circumstance providing support for the complainant’s account of the offending the day before.67 79 Ordinarily, it is not necessary for any item of circumstantial evidence, including an inference drawn from it, to be proved beyond reasonable doubt. According to the common law rule described in Shepherd v The Queen,68 it is only intermediate facts indispensable to a conclusion of guilt that must be proved beyond reasonable doubt.69 In Shepherd v The Queen, Dawson J observed:70 On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence 66 Shepherd v The Queen (1990) 170 CLR 573, 579 (Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed). 67 Whether or not the inference was drawn, the fact and tone of the apology in the context in which it was made might have been thought circumstances relevant to the determination of guilt. The case was, however, not argued in that way. 68 Shepherd v The Queen (1990) 170 CLR 573. 69 The King v Ryan Churchill (a pseudonym) (2025) 99 ALJR 719, [45] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ). 70 Shepherd v The Queen (1990) 170 CLR 573, 579 (Dawson J). -- 23 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 20 consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. 80 The text messaging alleged to constitute an admission in this case was not an indispensable intermediate fact. That is to say, the alleged admission was not an indispensable link in a chain of evidence necessary to prove the appellant’s guilt.71 In Shepherd v The Queen, Dawson J explained that, absent the necessity “to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt”,72 the jury must have regard to the whole of the evidence when determining whether guilt has been proved beyond reasonable doubt:73 Indeed, the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories [of evidence], there was no reasonable explanation consistent with the applicant’s innocence. It was appropriate that the jury should have been given a direction in those terms and they were given one. 81 In this case, the jury were directed to consider the meaning of the appellant’s text messages, and the prosecution submitted that they should draw the inference that the appellant was not referring to an accident but only to the complainant’s allegations of criminal offending and he was apologising for that. If that inference was drawn, the appellant’s messages may have been treated as an admission which informed the jury’s determination of guilt. Whether that inference was drawn, however, depended on the jury’s view of other evidence, especially the complainant’s evidence, evaluated when considering all the evidence in the case. Indeed, and whilst it was a matter entirely for the jury to determine, if they regarded the complainant as credible, they may well have thought the appellant’s responses were more consistent with the complainant’s allegations of criminal offending. If the jury took that view, the admission could have been treated as a form of direct evidence going to proof of guilt. 82 Thirdly and finally, and relatedly, because the appellant’s text responses necessarily took their colour and meaning from other evidence in the case, particularly the complainant’s evidence, any admission operated in a manner similar to an implied admission. An implied admission is an example of post- offence conduct. The admission was implied because whether the appellant’s apology and admitted error of judgment related to the complainant’s allegation of 71 See Velevski v The Queen (2002) 76 ALJR 402, [43]-[44] (Gleeson CJ and Hayne J). 72 Shepherd v The Queen (1990) 170 CLR 573, 585 (Dawson J). 73 Shepherd v The Queen (1990) 170 CLR 573, 586 (Dawson J). -- 24 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 21 criminal offending was never made express. It could only be inferred having regard to other evidence in the case. That is to say, it was implicit that the appellant was referring to the complainant’s allegations only if the jury had regard to the complainant’s account. The use of any admission was as evidence supportive of the complainant’s account, and not in substitution for it as a mode of proving guilt. 83 However, because the appellant’s texts did not comprise a statement of confession, it was not necessary to apply the approach sometimes taken to a confession. For these purposes, a confession comprises evidence of an admission to particular wrongdoing which is capable, of itself, of proving the elements of a criminal charge. For example, in Burns v The Queen,74 the accused was convicted of armed robbery, and the only implicating evidence was a confession allegedly made to police. Police said that the accused refused to sign the record of interview containing the confession. However the accused said, in a statement made from the dock, that in his presence a police officer typed out a concocted series of questions and answers. This case came at a time long before police interviews with suspects were routinely recorded, whether by audio or audio-visual recording.75 84 The prosecution in Burns also relied on the circumstantial evidence that, before the robbery, the accused had a number of debts and, after the robbery, many of these were repaid. In his statement from the dock the accused denied telling police that his debts were repaid with proceeds of the crime. He said he used money won by gambling. 85 After police gave evidence, the trial judge warned the jury that they could use the confession only if they were satisfied that it had been made, and that it was truthful and accurate. 86 The warning given by the trial judge in Burns was not repeated in the summing up. The trial judge however directed the jury that they had to be satisfied beyond reasonable doubt that the accused had made the confessional statement.76 The High Court refused special leave to appeal. The plurality explained the jury’s entitlement to consider all of the relevant evidence when deciding their verdict:77 It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. 74 Burns v The Queen (1975) 132 CLR 258 (Burns). 75 See, for example, s 74D of the Summary Offences Act 1953 (SA) and Alzuain v The King [2025] SASCA 67, [319]-[330] (Kourakis CJ, Livesey P and Bleby JA). 76 Burns (1975) 132 CLR 258, 261 (Barwick CJ, Gibbs and Mason JJ). 77 Burns (1975) 132 CLR 258, 261 (Barwick CJ, Gibbs and Mason JJ). -- 25 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 22 87 The Court then explained that the nature of the direction which was required depended on the circumstances of the case:78 The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. “There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.” (Ross v. The King [(1922) 30 CLR 246. at p. 255]). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue. 88 The Court did not regard it as necessary for the warning given after the police evidence to be repeated in the summing up. The plurality cautioned that the well- known rationale for receiving admissions, as explained by Baron Parke in Slatterie v Pooley,79 that “What a party himself admits to be true, may reasonably be presumed to be so”, provided no useful guide to the manner in which this kind of evidence may be used by a jury:80 It would be a grave misdirection to tell a jury that there is a presumption that a confession made by an accused person is true. The jury, in deciding whether in the light of all the circumstances of the case they are satisfied of the truth of the whole or part of a confession, must approach that question without the aid of any presumption except that of innocence. 89 As for the challenge made to the evidence regarding the accused’s debts, the Court rejected the proposition that this evidence could only be taken into account if the jury first decided that the confession was made, because the jury was entitled to consider the whole of the evidence in deciding guilt:81 We have already said that when the evidence that an accused person has made a confession is not the only evidence in the case the jury are entitled to consider the whole of the evidence in deciding whether or not they are satisfied of the guilt of the accused. Any evidence that has been admitted at the trial and is relevant to the question whether the accused made the confession may be considered by the jury in relation to that question. In R. v. Hammond [(1941) 28 Cr App R 84)], the Court of Criminal Appeal took the view that evidence that showed that a confession was true was relevant to the question whether the confession was voluntarily made. There the accused on the voir dire was questioned as to 78 Burns (1975) 132 CLR 258, 261 (Barwick CJ, Gibbs and Mason JJ). 79 Slatterie v Pooley (1840) 6 M & W 664, 669. 80 Burns (1975) 132 CLR 258, 262 (Barwick CJ, Gibbs and Mason JJ). 81 Burns (1975) 132 CLR 258, 263 (Barwick CJ, Gibbs and Mason JJ). The Court acknowledged that there are strong reasons why a judge on the voir dire should exercise his or her discretion to prevent the accused from being cross-examined as to guilt. -- 26 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 23 his guilt and admitted it completely; the questions were held relevant to the question of how he came to make his statement. 90 The approach taken by the High Court to a statement of confession in Burns was later followed by a majority of the Victorian Court of Appeal in Magill v The Queen, a case involving a rape charge.82 In that case, the sole ground of appeal concerned whether the primary judge “erred in failing to direct the jury about how they could use evidence of the text message alleged to have been sent by the appellant to the complainant and alleged to be an admission of guilt”.83 The appellant contended that the prosecution had relied on the text message as an admission of guilt, and it was conceded that the text message was “a major plank in the Crown case”.84 91 In contrast to the present case, in Magill v The Queen the identity of the author of the text message was put into issue. The text message sent to the complainant from the appellant’s phone was as follows:85 Dad is so fucking sorry, he was stoned and pissed. He had no idea what he was doing and I know sorry doesn’t cut it. But he really has a lot of respect for you and if knew it was you he would never have did it. Please (C), I’m so fucking sorry. And my dad is too. He love U as a daughter and he is sorry and so am I. 92 Justice Priest held that before the jury could use the text message in proof of the appellant’s guilt, they first needed to be satisfied beyond reasonable doubt that:86 1. The appellant was the author of the text message; 2. The text message contained an admission to the crime of rape (or, at least, an intentional sexual act without consent); and 3. In so far as the text message contained an admission of rape (or an intentional sexual act without consent), it was true. 93 Acting President Buchanan, who generally agreed with Priest JA, held that the trial judge erred by “failing to direct the jury that that they were required to be satisfied beyond reasonable doubt that the text message did amount to a confession of guilt of the crime of rape”.87 However, Buchanan AP also held that it was not necessary for the jury to be directed that they had to be satisfied beyond reasonable doubt that the text message was sent by the appellant, although it may have been preferable to do so.88 82 Magill v The Queen (2013) 42 VR 616. 83 Magill v The Queen (2013) 42 VR 616, [8]-[9] (Neave JA). 84 Magill v The Queen (2013) 42 VR 616, [71] (Priest JA). 85 Magill v The Queen (2013) 42 VR 616, [25] (Neave JA). 86 Magill v The Queen (2013) 42 VR 616, [73] (Priest JA). 87 Magill v The Queen (2013) 42 VR 616, [4]-[5] (Buchanan AP). 88 Magill v The Queen (2013) 42 VR 616, [2]-[3] (Buchanan AP). -- 27 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 24 94 Justice Neave, in dissent, held that a Burns direction was not required where it is alleged that the accused made an admission which is relied upon to corroborate other evidence against the accused, as opposed to a full confession of guilt.89 Further, Neave JA observed that even if a Burns direction may be required in some circumstances where it is contended that the accused made “an admission not amounting to a full confession of guilt, the authorities do not support the proposition that a Burns direction must always be given in such circumstances”.90 95 There are a number of other text message cases where proof beyond reasonable doubt of the meaning of the message has not been required. In R v Booth,91 the Queensland Court of Appeal referred to Magill v The Queen and accepted that the decision of the majority may be explained by the doubt about whether the appellant sent the message, and observed that there may be a difference of opinion depending on whether the accused made an admission or a full confession.92 In Hewitt v The Queen,93 the New South Wales Court of Criminal Appeal treated Magill v The Queen as an example of a case involving a confession, holding that a Burns direction is not required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate.94 In Small v Western Australia,95 in passages with which we respectfully agree, the Western Australian Court of Appeal appeared to endorse the reasoning of Neave JA in Magill v The Queen,96 applied the principles in Shepherd v The Queen,97 and then explained:98 There is no reason in principle why a different approach should be adopted where the prosecution relies on evidence of an express, or any other form of implied, admission of guilt. … There was no need for the trial judge, in order to ensure a fair trial, to warn the jury that they needed to be satisfied, beyond reasonable doubt or otherwise, that the Text Message constituted an admission of guilt to some or all the alleged criminal conduct. A direction 89 Magill v The Queen (2013) 42 VR 616, [44]-[45] (Neave JA). 90 Magill v The Queen (2013) 42 VR 616, [46] (Neave JA). 91 R v Booth [2018] QCA 74. 92 R v Booth [2018] QCA 74, [58]-[59] (Douglas J, with whom Gotterson JA and Flanagan J agreed). 93 Hewitt v The Queen [2021] NSWCCA 227. 94 Hewitt v The Queen [2021] NSWCCA 227, [72]-[76] (Payne JA, with whom Garling and Wright JJ agreed). 95 Small v Western Australia [2023] WASCA 179. 96 Small v Western Australia [2023] WASCA 179, [116] (Mazza, Hall and Vandongen JJA). But, in the particular circumstances of Magill v The Queen, at [124] the Court said that it was “understandable why it might be concluded that such a direction would be required”. 97 Shepherd v The Queen (1990) 170 CLR 573. The Court also referred to what was said by Deane, Dawson, and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 concerning lies, where they are not the only evidence of guilt, or where they are not an “indispensable link”: “ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. … They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt”. 98 Small v Western Australia [2023] WASCA 179, [118], [126] (Mazza, Hall and Vandongen JJA). -- 28 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 25 of that nature was not required to avoid a perceptible risk of a miscarriage of justice in this case. 96 Since Magill v The Queen was decided, ss 61 and 62 of the Jury Directions Act 2015 (Vic) now preclude giving a direction that the jury must be satisfied beyond reasonable doubt that an admission was made and was true.99 In Victoria, it is therefore now “only the elements of an offence (and the disproof of any relevant defence), not some particular piece of evidence or intermediate fact, that must be proved beyond reasonable doubt”.100 97 Whilst there are no provisions equivalent to ss 61 and 62 of the Jury Directions Act 2015 (Vic) operating in South Australia, this represents the approach previously taken. In South Australia, short of proving guilt, it is not generally necessary to prove any evidence or inference beyond reasonable doubt unless it represents an independent pathway to a finding of guilt, or the case otherwise comes within Shepherd v The Queen.101 98 The approach taken by Neave JA in Magill v The Queen to an admission is similar to the approach taken to other post-offence conduct in R v Hirst.102 In that case the appellant was a police officer who had been convicted of aggravated assault whilst acting in the course of his duty. The principal issue was whether the prosecution proved beyond reasonable doubt that the appellant had not assaulted the victim accidentally whilst attempting to defend himself. There was evidence of statements made by the appellant to other police officers after the alleged offending. On appeal, there was an issue about whether the trial judge had adequately directed the jury about the use that could be made of those statements: “whether … for the limited purpose of establishing a cover-up or for the broader purpose of establishing a consciousness of guilt”.103 99 Justice Stanley (as his Honour then was) held, in accordance with Zoneff v The Queen,104 that the trial judge erred by failing to direct the jury about the use that could be made of the evidence of the statements, which the prosecution claimed represented an attempted cover-up.105 The danger recognised by Stanley J was that there was a real risk that the jury would, without proper direction, reason that the appellant had lied as the prosecution had claimed, and that this was because of a consciousness of guilt, when in fact there were alternative possible 99 Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18, (Roder) [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ), referring to Magill v The Queen (2013) 42 VR 616. 100 Roder (2024) 281 CLR 18, [17] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 101 Shepherd v The Queen (1990) 170 CLR 573. 102 R v Hirst (2013) 116 SASR 300. 103 R v Hirst (2013) 116 SASR 300, [35] (Stanley J, with whom Peek J agreed, Anderson J dissenting). 104 Zoneff v The Queen (2000) 200 CLR 234. 105 R v Hirst (2013) 116 SASR 300, [47] (Stanley J, with whom Peek J agreed). There was, however, a suggested need for proof beyond reasonable doubt confined to whether the statements were made by the appellant, not their proper meaning. -- 29 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 26 explanations for the statement he made after the alleged offending.106 By contrast, and relevantly for the present case, Stanley J also held that a Burns direction was “not concerned with implied admissions but express admissions” and, in the circumstances of that case, it was not appropriate for a Burns direction to be given.107 100 Two recent decisions of the High Court are of some relevance. In Director of Public Prosecutions v Roder,108 the High Court allowed a prosecution appeal against the ruling by the Victorian Court of Appeal that it was necessary for uncharged acts, relied on as evidence of tendency, to be proved beyond reasonable doubt:109 In R v Dennis Bauer (a pseudonym), this Court observed that trial judges in New South Wales should not ordinarily direct a jury that, before they may act on evidence of uncharged acts adduced to support an alleged tendency on the part of an accused, they must be satisfied of proof of the uncharged acts beyond reasonable doubt. The Court noted that one circumstance in which such a direction should be given is where there is a “significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt”, citing, amongst other cases, Shepherd v The Queen. (Citations omitted.) 101 The Court explained that tendency or propensity evidence was a “special class” of circumstantial evidence:110 Tendency evidence (or propensity evidence) is a form, and indeed a “special class”, of circumstantial evidence. Prior to the “uniform” Evidence Acts coming into force, and in recognition of its capacity to be strongly prejudicial, the admissibility of such evidence was treated as being governed by the test to be applied by juries in determining guilt by reference to circumstantial evidence, namely whether there was “no rational view of the evidence consistent with the innocence of the accused”. (Citations omitted.) 102 In R v ZT,111 the High Court recently considered a case of murder where the principal evidence comprised intercepted telephone calls between ZT and members of his family and associates, and interviews with police. The acquittal by a majority of the Court of Appeal, on the basis that the verdict was unreasonable or unsupported, was overturned because the Court did not listen to the intercepted 106 R v Hirst (2013) 116 SASR 300, [48] (Stanley J, with whom Peek J agreed). A similar approach was taken to silence in the face of an accusation in R v BEC (2023) 16 QR 1, [95]-[101] (Livesey AJA, with whom Callaghan J agreed, see [154], Mullins P dissenting). The suggested direction required that the jury consider whether alternative explanations “remained a reasonable possibility”, in which case the post-offence conduct could not be used. 107 R v Hirst (2013) 116 SASR 300, [49]-[50] (Stanley J, with whom Peek J agreed). 108 Roder (2024) 281 CLR 18 109 Roder (2024) 281 CLR 18, [1] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 110 Roder (2024) 281 CLR 18, [23] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 111 R v ZT (2025) 281 CLR 137. -- 30 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 27 calls or watch the police interviews, and it therefore erred in finding that the jury did not have a relevant or significant advantage. 103 A majority of the High Court in R v ZT observed that, “[l]eaving aside proof of an indispensable intermediate fact in a circumstantial case, the elements of an offence must be proved beyond reasonable doubt rather than the evidence that supports proof of those elements”.112 The High Court concluded that none of the admissions relied upon by the prosecution in that case represented an indispensable intermediate fact.113 104 These recent decisions provide no support for a contention that the meaning of text messaging, even if it contains an express or implied admission, must be proved beyond reasonable doubt. Unlike a case such as Burns,114 the text messaging in this case did not amount to a confession which, standing alone, was capable of proving the appellant’s guilt. Contrary to the appellant’s submission, the text messaging could not on its own have represented an independent pathway to a finding of guilt. 105 In a case where the burden of proof was addressed in an orthodox way, it was not necessary to prove the proper meaning of the text messaging beyond reasonable doubt separately from the determination of guilt based on the whole of the evidence before the jury. 106 This ground of appeal should be dismissed. Appeal ground 4 – the admission of prejudicial evidence 107 In the course of her evidence, the complainant described her massage with the appellant and its aftermath. As the complainant was preparing to leave, the appellant told her to keep hydrated. This exchange then occurred during the course of the complainant’s evidence:115 Q: Did he tell you why you should stay hydrated. A: No, but he made a comment about another person being on that table that was dripping from everywhere a week before, I’m not sure what he was referring to. Q: So what was that comment that he made about another person that had had a massage, can you recall that comment now. A: You should have seen the girl that I had before, she was dripping from everywhere. 112 R v ZT (2025) 281 CLR 137, [67] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ), referring to Roder (2024) 281 CLR 18, [19] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 113 R v ZT (2025) 281 CLR 137, [67] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). At [68] their Honours referred to “the distinction between weighing the reliability of the admissions on the one hand and proof of guilt beyond reasonable doubt on the other”. 114 Burns (1975) 132 CLR 258. 115 Transcript 134. -- 31 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 28 108 The complainant said that she spoke to the appellant’s father before saying goodbye and leaving. Under cross-examination, the complainant said that she had “a face full of tears” when she got up from the massage:116 A: I was crying in my towel which then related to when I got up from the massage, when I had, when I had a face full of tears and that’s when he had then said the comment about the girls dripping from everywhere because it brings out your emotions. 109 Though the complainant was challenged about whether she was crying as she left, she was not challenged about the comment concerning another girl. Under cross-examination, the evidence of complaint included this aspect of the conversation between the appellant and the complainant:117 A: … then he continued massaging her and then he, massaging her and then he put two fingers in her and she screamed again and said ‘What are you doing’ and he said ‘It’s okay, it’s okay to be emotional’. Q: Did she tell you whether she said anything when that occurred. A: She said ‘What are you doing’ and she screamed. Q: Did she tell you whether she screamed with noise or did she scream words. A: No, she just said she screamed and said ‘What are you doing’. Q. Did she tell you whether he said anything when she did that. A: She just said ‘It’s okay the girl that I had last time had the same problem and it’s just releasing her toxins’. 110 The appellant contended that the admission of highly prejudicial and inadmissible evidence came under the third limb of the common form criminal appeal provision.118 111 In Ilievski v R; Nolan v R (No 2),119 Hamill J regarded the dispositive question on the admission of inadmissible evidence as being whether the appellant had established a miscarriage of justice and, if so, whether the court could be satisfied that there had been no substantial miscarriage of justice.120 Whilst the admission of prejudicial and inadmissible evidence amounts to an irregularity, it was necessary to consider whether what occurred was capable of affecting the 116 Transcript 185. 117 Transcript 198. 118 Criminal Procedure Act 1921 (SA), s 158(1)(c), “on any ground there was a miscarriage of justice”. See also Maric v The Queen (1978) 52 ALJR 631; Crofts v The Queen (1996) 186 CLR 427; Patel v The Queen (2012) 247 CLR 531, [67] (French CJ, Hayne, Kiefel and Bell JJ); R v Meier (1982) 30 SASR 126. 119 Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375. 120 Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375, [89] (Hamill J). See also Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen [2022] SASCA 90, [107]-[109] (Lovell JA). -- 32 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 29 verdict.121 It was necessary to consider the nature and potential impact of the impugned evidence. 112 In this case, the appellant’s argument was that this evidence could only be understood as a reference to the appellant having done something to another girl which caused her to cry in the same way. As a result, the inference was open that the appellant had done something similar to another girl. That is, during a massage the appellant had penetrated another girl with his fingers:122 There is a manifest risk in these circumstances that the jury would conclude that the [appellant] had digitally penetrated another female, only a week before the complainant, and had upset that girl (or caused her to ‘drip’, which itself has sexual connotations). Self-evidently, if the jury reasoned in this fashion, this would be incurably prejudicial to the [appellant] as it suggested he had previously acted in a similar way to that alleged by the complainant. Not only was this evidence highly prejudicial, but it was also inadmissible.123 113 The appellant contended that there was also a manifest risk that the jury might reason that because the appellant had “done it before”, it was more likely that he had acted in the manner alleged on the charged occasion. It was submitted that the likely result was that the jury may have reasoned in a way proscribed by ss 34P and 34R of the Evidence Act. The jury was given no directions as to how to approach this evidence, nor any directions to guard against its improper use. In the absence of directions, there remained the risk that the jury did not approach this evidence on the basis that the appellant was simply describing a massage as a cathartic experience. 114 Despite the absence of any objection, and the absence of any application for a mistrial or any request for a direction,124 the appellant contended that his trial miscarried and the proviso could not be applied. 115 The respondent contended that the evidence fell to be considered simply on the primary rule of evidence, namely, that a court will only receive evidence that is relevant to the issues if it could affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.125 116 The respondent submitted that the words were led for the purposes of establishing “the narrative of the charged offending” and to establish the appellant’s reaction to the complainant leaving the massage table. The respondent 121 See also Brawn v The King (2025) 99 ALJR 872 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ), in the sense that the error was material to the outcome of the trial. 122 Written submissions of the appellant on appeal against conviction, [45]. 123 Even if one assumes that the other girl did not consent: see Phillips v The Queen (2006) 225 CLR 303, [47]-[49] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). 124 BRS v The Queen (1997) 191 CLR 257; KBT v The Queen (1997) 191 CLR 417; Fingleton v The Queen (2005) 227 CLR 166; De Silva v The Queen (2019) 268 CLR 57, [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); and Rezai v The King [2024] SASCA 150, [85] (Bleby, Stanley and Doyle JJA). 125 Day v The Queen (2021) 289 A Crim R 346, [43] (Kelly P, Lovell and Livesey JJA). -- 33 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 30 also submitted that the evidence was relevant to establishing the consistency of the account of the complainant’s complaint. 117 The respondent contended that this evidence was largely ignored and there was “no risk that the jury had elevated this evidence above its relative obscurity”.126 The respondent submitted that in the absence of any submissions or directions there was no basis to elevate the comment to a form of discreditable conduct requiring admission through the filter of s 34P, and directions pursuant to s 34R of the Evidence Act. The respondent contrasted cases such as Kirkland v The Queen,127 Brant v The King,128 Sidhu (a pseudonym) v The King,129 and Castle (a pseudonym) v The King.130 118 Finally, the respondent contended that the question was whether there had been a “wrong decision on a question of law”,131 and whether it was material to the verdict in the sense that it could realistically have affected the reasoning of the jury to a verdict of guilty in the criminal trial that occurred.132 As to this the respondent submitted that any error or irregularity was not material:133 It is submitted that any error of law, namely a failure to specifically direct on the topic of the impugned words, was not significant given the obscurity of that evidence in issues joined for trial. The obscurity of the evidence was such that a jury might not have given any consideration at all to the words spoken beyond their directed use, namely to consider them as to the issue of the consistency of the account of the complainant’s report of the charged offending. That assumption must follow from the provision of the directions as a whole in any criminal trial. 119 The resolution of this ground of appeal must start with the absence of any objection or submissions about this comment during the trial. The comment was not the subject of any cross-examination, and it was not, for example, suggested that the comment had not been made. 120 There was no submission from the prosecution about the absence of cross-examination on this topic during the final address.134 The comment attributed by the complainant to the appellant was mentioned only briefly by the prosecutor in her final address:135 126 Written submissions of the respondent on appeal against conviction, [47]. 127 Kirkland v The Queen [2021] SASCA 14, [82]-[123] (Kelly P), [124]- [150] (Lovell JA) (use of restraints kept in a bedroom). 128 Brant v The King [2023] SASCA 67, [15]-[29] (Livesey P, Doyle and David JJA) (where the accused had access to pornography). 129 Sidhu (a pseudonym) v The King [2025] SASCA 26, [23] (Livesey P and Bleby JA) (where the evidence concerned the accused’s exploitation of his status as a “god walking in human form”). 130 Castle (a pseudonym) v The King [2025] SASCA 10, [43]-[56] (Lovell, David and Nicholson JJA) (where the accused sent images of his penis to a child complainant). 131 Criminal Procedure Act 1921 (SA), s158(1)(b). 132 Brawn v The King (2025) 99 ALJR 872, [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 133 Written submissions of the respondent on appeal against conviction, [54]. 134 Hofer v The Queen (2021) 274 CLR 351. 135 Transcript 299. -- 34 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 31 She said he didn’t say anything to her about the massage that had occurred other than that she should stay hydrated and that another girl who had come for a massage the week before was dripping from everywhere. She told you that she got dressed, said hi to the accused’s dad and then she left the house. 121 No reference to this comment was made by the trial judge in the course of her summing up. 122 Section 34P and 34R of the Evidence Act relevantly provide: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. … 34R—Trial directions (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. (2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly. 123 Whilst it may be accepted that the obligation under s 34R(1) is framed by the issues joined between the parties at trial, and in many cases comfort may be drawn from the failure of counsel to complain or seek a relevant direction, compliance -- 35 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 32 with s 34R is mandatory, though what is required will depend on the particular circumstances of the case.136 124 The starting point in the resolution of this appeal ground is whether the comment is capable of being characterised as discreditable conduct evidence. That raises a question whether the conduct was capable of being viewed with a level of seriousness that may have caused the jury to engage in impermissible “bad person” reasoning.137 125 Was this comment capable of being characterised as referring to conduct by the appellant which was “wrongful or morally repugnant in some way such that it reflects poorly upon the defendant”?138 That is to say, was the comment capable of being viewed as a reference to the effect of the appellant’s massage on another female patient in circumstances similar to those described by the complainant? 126 It is a long bow indeed to speculate that the comment suggested that the appellant had been referring to similar wrongdoing on a prior occasion. Whilst the comment attributed to the appellant is unusual, it can safely be assumed that it was either ignored by the jury or there was no risk that it may have been taken to refer to a form of discreditable conduct and made the subject of any impermissible use. 127 In all of these circumstances, the comment cannot have been used as suggesting any form of discreditable conduct or as an admission against the appellant’s interests. That is so whether the issue is addressed as a matter of law,139 or under the miscarriage limb.140 In any event, this Court can be satisfied that no substantial miscarriage of justice occurred.141 Conclusion on the conviction appeal 128 Permission to appeal should be granted, but the appeal against conviction dismissed. The sentence appeal 129 The appellant challenged his sentence of imprisonment of six years, together with a non-parole period of two years and nine months, on the grounds that these are manifestly excessive and, in addition, the sentencing judge erred in concluding that he did not satisfy the jurisdictional facts in s 71(4)(a) of the Sentencing Act 2017 (SA) (the Sentencing Act) concerning “special reasons” and the availability 136 Perara-Cathcart v The Queen (2017) 260 CLR 595, [51] (Kiefel, Bell and Keane JJ); JGS v The Queen [2020] SASCFC 48, [95] (Lovell J, with whom Peek and Bampton JJ agreed). 137 Sadler v The King [2023] SASCA 63, [27] (Doyle JA). 138 Sadler v The King [2023] SASCA 63, [27] (Doyle JA). 139 MDP v The King (2025) 99 ALJR 969; Alzuain v The King [2025] SASCA 67. 140 Brawn v The King (2025) 99 ALJR 872. 141 Criminal Procedure Act 1921 (SA), s 158(2); Castle v The Queen (2016) 259 CLR 449, [68] (Kiefel, Bell, Keane and Nettle JJ); Cornes v The Queen (2018) 265 CLR 178, [36]-[37] (Kiefel CJ, Bell, Keane and Gordon JJ); GBF v The Queen (2020) 271 CLR 537; Boyle (a pseudonym) v The Queen (2022) 299 A Crim R 92, [145] (Livesey P, Lovell and Bleby JJA). -- 36 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 33 of home detention. The appellant also sought to adduce fresh evidence on appeal pursuant to s 166 of the Criminal Procedure Act 1921 (SA) (the Criminal Procedure Act). The circumstances of the offending 130 In outline, at the time of the offending, the appellant was in his 50s and the complainant in her 20s. The appellant’s offending involved a reprehensible breach of trust in a context where the complainant was entitled to assume that the appellant would act in a respectful and professional manner when providing a massage on a commercial basis. Instead, in the course of the massage he placed a finger, or fingers, inside the complainant’s vagina, moving them in and out about three times over a period of about 10 seconds. The offending stopped when the complainant called out the appellant’s name, after which he apologised and removed his fingers. 131 As the sentencing judge explained, the complainant’s victim impact statement set out the lasting impact of the offending. The complainant described crying daily, recoiling from hugs, and struggling to trust other people. She was unable to engage in sexual intimacy without breaking down in tears and she was concerned about whether she will be in a position to start a family. The offending profoundly affected the complainant and her fiancé. 132 The appellant did not accept the verdict of the jury and maintained his denial of any criminal wrongdoing. The circumstances of the offender 133 At the time of sentence, the appellant was aged 54 years, and he had no prior criminal history. He had enjoyed a happy childhood as the eldest of four children. He was educated to year 12, did a sports training course and practised as a sports trainer for nearly 30 years. 134 In early 2017, the appellant enrolled in a course designed to confer a certificate for massage therapy. At the time of his offending, the appellant had completed all practical components and was left only with some theoretical subjects to complete. After the offending, the appellant determined not to complete the course or continue in massage work. 135 The appellant had twin daughters following his marriage in 1995. At the time of sentence, they were living with him and aged 19 years. 136 Some years before, the appellant had been diagnosed with retinitis pigmentosa. This caused a progressive loss of eyesight. This strained the appellant’s marriage and culminated in its breakdown. Whilst the appellant had commenced a new relationship a short time before sentence, it was described by the sentencing judge as being in the nature of a platonic relationship. 137 Apart from the good character evidence led during the course of the trial, the sentencing judge had before her letters of support from the appellant’s sister and -- 37 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 34 one of his daughters. The appellant enjoyed a close and nurturing relationship with his daughters. 138 The sentencing judge had before her a volume of medical evidence. Broadly, this comprised: 1. A Benson Radiology ultrasound report by Dr Marco Kwok dated 17 September 2023 which revealed a tender lump at the base of the appellant’s penis together with curvature, compatible with Peyronie’s disease. 2. A report of Dr Shane Durkin dated 22 July 2024. Dr Durkin explained that the appellant’s eye condition behaved like the more commonly known retinal dystrophy, retinal pigmentosa. The condition was first diagnosed in 2011 following reduced central vision and night blindness. The appellant’s vision deteriorated with significant loss of central, peripheral and low light vision. The appellant has been unable to hold a driver’s licence since 2016, legally blind since 2019, and in need of a carer to assist with the activities of daily living. There was no specific treatment for the condition, and it can lead to a progressive and permanent loss of vision, together with an increased need for assistance and support. This has restricted the appellant in many activities of daily living. Dr Durkin doubted whether the appellant’s eye condition prevented an erection or sexual intercourse, explaining that these were more likely impacted by his diabetes and cardiac disease. Dr Durkin expressed the opinion that the appellant’s eye condition limited his opportunities to be a risk to the safety of the community. 3. Reports of Dr Peter Waddy dated 23 July and 2 August 2024. Dr Waddy explained that he commenced treating the appellant following his complications after open heart surgery performed on 21 December 2022. He prescribed the appellant with various medication during 2023 and the appellant did not appear to be significantly physically incapacitated. Dr Waddy then learned that the appellant had been admitted to the Queen Elizabeth Hospital on 18 July 2024 with chest pains. ECGs disclosed acute myocardial infarction which necessitated a primary angioplasty procedure on an occluded obtuse marginal circumflex vessel. The procedure had a good result, albeit with some residual back pain and need for further medication. Dr Waddy encouraged daily exercise, to be built up over time, together with regular GP and cardiac oversight. 4. Report of Dr Punala Kiripitige and Dr Tan Ly from the Cardiology Department of the Queen Elizabeth Hospital (undated) which addressed the appellant’s discharge on 19 July 2024, explaining that the cause of the appellant’s heart attack was likely multifactorial, including previous myocardial infarction, hypertension, hyperlipidaemia and diabetes mellitus. The Department expressed the view that possible contributing factors included diet, physical activity and external stressors. -- 38 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 35 5. Report of Dr Tom Turnbull, Medical Director, SA Prison Health Service dated 22 August 2024. This outlined the appellant’s medical history in some detail, together with his medications, and expressed the view that the appellant’s health care needs could be met in a custodial setting. Dr Turnbull explained how the appellant’s difficulties with eyesight might be managed, for example, by giving the appellant accommodation in a cell on a ground floor and a bottom bunk. 139 The sentencing judge recorded that the appellant had experienced significant weight loss following his heart attack in July 2024. In addition, the sentencing judge recorded a submission that the appellant had no sexual desire. The remarks of the sentencing judge 140 The sentencing judge explained the serious nature of the appellant’s offending and the sentencing considerations she took into account:142 By committing this offence, you abused the significant trust that had been placed in you by the complainant. It goes without saying that when a person is engaged in a therapeutic relationship with another the law requires a very high standard of professional behaviour. This is one of the reasons why it was necessary for you to complete the training programme that I referred to earlier. Professionals in these situations have to maintain these standards at all times, especially when they are in a one-on-one situation with a person who is necessarily unclad, and in a vulnerable position on a massage table. The law requires that the paramount consideration for the sentence I must impose is the protection of the community. Other considerations are the need to deter, not only you, but others minded to commit offences such as this. It is also important that the sentence recognises the harm done to the victim. 141 The sentencing judge considered that the only appropriate penalty was a term of imprisonment. Her Honour imposed a sentence of six years’ imprisonment. When setting a non-parole period of two years and nine months, shorter than might otherwise have been set, the sentencing judge took into account the absence of any prior criminal record, the appellant’s difficult personal circumstances associated with his degenerative eye condition which will render him blind, together with his other health conditions. 142 The sentencing judge recognised that the appellant’s time in custody would be harder than for many others. 143 The sentencing judge recorded that she was precluded from suspending the sentence because the offence of rape is a “serious sexual offence”. The sentencing judge addressed the submission that the appellant’s compounding health conditions should be reflected in a home detention order. Her Honour recognised that this option was only available if she was satisfied that special reasons existed for the making of that order, and an order could not be made unless the appellant’s advanced age or permanent infirmity meant that he no longer presented an 142 Sentencing remarks, AB 123. -- 39 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 36 appreciable risk to the safety of the community, and the interests of the community as a whole would be better served by the appellant serving his sentence on home detention rather than in custody. 144 The sentencing judge recognised that the Sentencing Act stipulated that she must not have regard to any other matter, other those listed above, in determining whether she was satisfied that special reasons exist. 145 The sentencing judge had available a home detention report which concluded that the proposed residence, with the appellant’s daughters, was suitable. However, the sentencing judge explained why she did not regard the appellant as no longer presenting an appreciable risk to the safety of the community:143 At the time of the offending, you were considered legally blind. I accept that your condition likely has and will continue to deteriorate. I accept that it is a permanent condition. You also suffer from a cardiac condition, diabetes, and from Peyronie’s disease. Whilst I accept that these conditions present a serious and unusual combination of medical conditions, I do not consider that either alone or in combination they are a permanent infirmity that means you no longer present an appreciable risk to the safety of the community. Your offending was an opportunistic sexual offence. There are a wide range of circumstances in which sexual offences can be committed. The current offence was perpetrated in a manner where your own sexual functioning was not relevant. You were already legally blind at the time you committed this offence when the opportunity presented itself. Although you require some assistance in the community, you are still living independently and still working, albeit from home. Whilst I consider it unlikely you will offend again in the future, it has little to do with your medical conditions and more to do with the deterrent effect that the criminal justice system has already played, and that this sentence will serve. Having regard to both your ophthalmological and cardiac conditions the prison health report says that appropriate medical care can be provided in a custodial setting. 146 Whilst the sentencing judge accepted that imprisonment with the appellant’s physical infirmities would be a more significant imposition on him than on other prisoners, there remained considerations such as general and personal deterrence and the need to adequately punish, associated with the appellant’s breach of trust. The sentencing judge was not satisfied that there were special reasons to make a home detention order. 147 The sentencing judge also imposed an intervention order. 143 Sentencing remarks, AB 124-125. -- 40 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 37 The application to lead further evidence on appeal 148 The appeal under s 157(1)(a)(iii) of the Criminal Procedure Act is by way of re-hearing and this Court is ordinarily confined to the materials available to the sentencing court. However, by s 166 of the Criminal Procedure Act the Court is empowered to receive further evidence. The condition precedent to the exercise of that power is that this Court must find that it is necessary or expedient in the interests of justice to do so, recognising that this power is ancillary to the appellate jurisdiction of this Court.144 149 In Athans v The Queen this Court explained the approach required in the exercise of discretion under s 166 of the Criminal Procedure Act:145 The exercise of the discretion to admit fresh or further evidence must take into account both the public interest in the finality of litigation as well as the prospect that it will have an important bearing on the outcome of the case146. It is generally accepted that an applicant seeking to adduce fresh or further evidence will usually satisfy three conditions before that evidence will be received on appeal:147 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing; 2. The evidence, if adduced, would probably have an important influence on the result, though it need not be decisive; and 3. The evidence must be apparently credible. The authorities have described the second requirement in various ways, which include whether the evidence, if adduced, would have an important influence or bearing on the outcome or, at the very least, substantially alter the relative weight of the material that was before the sentencing judge.148 More recently, after reviewing the various authorities, the Court of Criminal Appeal reiterated that “the power of the court to receive fresh evidence cannot be fettered by hard and fast rules”.149 In that case it received evidence that the applicant’s wife had been diagnosed with a terminal illness.150 Indeed, King CJ had described the approach in very broad terms in R v McIntee:151 The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence 144 Athans v The Queen (2022) 300 A Crim R 339, [19]-[23] (Livesey P, Doyle and Bleby JJA). 145 Athans v The Queen (2022) 300 A Crim R 339, [24]-[26] (Livesey P, Doyle and Bleby JJA). 146 R v Dorning (1981) 27 SASR 481, 485 (Walters, Zelling and Williams JJ). 147 R v Dorning (1981) 27 SASR 481, 485-486 (Walters, Zelling and Williams JJ); R v Smith (1987) 44 SASR 587, 588 (King CJ, with whom Cox and O’Loughlin JJ agreed); Macfarlane v The Queen [2022] SASCA 46, [33]-[38] (Livesey P). 148 R v C (2004) 89 SASR 270, [32]-[34] (Doyle CJ, with whom White J agreed). 149 Phillipou v The Queen [2020] SASCFC 21, [60] (Kourakis CJ, with whom Stanley and Doyle JJ agreed) citing Neill v Police [1999] SASC 270, [21] (Doyle CJ) with approval. 150 Phillipou v The Queen [2020] SASCFC 21, [67] (Kourakis CJ, with whom Stanley and Doyle JJ agreed). 151 R v McIntee (1985) 38 SASR 432, 435 (King CJ). -- 41 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 38 is permitted to stand. With this in mind, the members of the Court inspected the psychiatric report which Mr. Tilmouth desired to tender. We satisfied ourselves that the report added little or nothing to the material which was before the sentencing Judge. We refused to allow the report to be given in evidence. 150 In Athans v The Queen the Court also explained that if further evidence is admitted by the Court of Appeal, it acts on the basis that the sentence is erroneous in the sense that it has formed the view that a different sentence should be imposed:152 In our view, if the Court of Appeal admits the further evidence, it must review the original sentence and determine whether, with the benefit of the further evidence in the context of all of the material before the Court, the sentence may be said to be “affected by error such that the defendant should be re-sentenced”, as is required by s 158(7) of the CPA. When conducting that review, the Court is not constrained by having to identify error such as manifest excess. Rather, it is sufficient that the sentence is erroneous in the sense that the Court forms the view that a different sentence should be imposed. To the extent that s 158(7) assumes error of the kind contemplated by House v The King,153 the original sentence may be said to have been passed without regard to relevant evidence, or on the basis of a material error of fact. 151 This Court was supplied with a large volume of further material obtained by the appellant with the benefit of various subpoenas. Whilst the respondent did not object to the Court receiving that material, there was objection to the terms of the affidavits by which it was adduced. The respondent took issue with some of the descriptions of the material set out in the affidavit evidence. The respondent accepted that it was open to this Court to receive the affidavit evidence on the basis that what was set out in the affidavits was treated effectively as submissions rather than evidence. We will proceed on that basis. 152 It is sufficient for present purposes to describe the broad effect of the material put before this Court. The appellant has spent time in the high dependency unit, and he has suffered chest pain. Three specialist appointments for the appellant’s cardiac condition between December 2024 and March 2025 were cancelled and his next appointment was scheduled for mid-2025. He was sent to the Royal Adelaide Hospital in January 2025 in connection with what appeared to be a cardiac event. There have been further admissions to the Royal Adelaide Hospital for heart related conditions including unstable angina. 153 The appellant remains very distressed about the prospect of losing his eyesight and he had made requests during January and February 2025 for a referral. He said that his right eye was deteriorating and it was causing him discomfort and concern. 154 On 28 February 2025 the appellant was referred back to see Dr Durkin but he was unable to get to the appointment because the location had not been approved by the Department for Correctional Services. Eventually, the appellant 152 Athans v The Queen (2022) 300A Crim R 339, [29] (Livesey P, Doyle and Bleby JJA). 153 House v The King (1936) 55 CLR 499. -- 42 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 39 was seen by a different ophthalmologist on 6 May 2025 who did not have access to the appellant’s medical history. It was recorded that his mental health had deteriorated as a result of developing a cataract in the right eye. 155 On 14 April 2025 the appellant hit his leg on a chair. On 26 April 2025 he was taken to Modbury Hospital after tripping over a chair and falling to the ground. Overall, there have been three falls and the appellant is considered to be at risk of further falls. 156 More generally, the evidence suggests that the appellant feels unable to leave his cell. The appellant has only been able to navigate around the prison with assistance from a sympathetic cell mate. 157 The appellant has been unable to engage in recreational activities, employment or other coping strategies, and his request for access to audiobooks has not yet been addressed. 158 Subsequently, Dr Turnbull wrote a further report dated 2 December 2024. He addressed the appellant’s general health summary, mental health summary and medication requirements before explaining that the SA Prison Health Service was based on a community equivalent model of care. Dr Turnbull wrote that the appellant used a cane to ambulate and had regular medical practitioner and nursing reviews. Again, Dr Turnbull expressed the opinion that the appellant’s health care needs could be met in a custodial setting. 159 The appellant submitted that the effect of the evidence was to demonstrate that there had been a deterioration in his health, including his mental health, and the prison system was unable to adequately care for his medical conditions. The respondent countered that, apart from three falls and some delay in accessing medical services, the appellant’s medical needs have been met and the evidence did not demonstrate that, if admitted, the further evidence would probably have an important influence on sentence. 160 Having regard to the material before the sentencing judge, the further evidence proposed to be admitted, and the submissions of the parties, it has not been established that, if admitted, the further evidence would be likely to have an important influence on the result. It tends only to confirm the real hardship which was anticipated by the sentencing judge by reason of the appellant’s infirmities and, as might also have been expected, the deleterious effect of these and the time spent in custody on his mental health. 161 Accordingly, the application to adduce further evidence on appeal should be refused. -- 43 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 40 A home detention order under s 71 of the Sentencing Act? 162 It is next convenient to address the appellant’s complaint that the sentencing judge failed to find that the jurisdictional facts to support a finding of “special reasons” were made out on the evidence before the sentencing court. 163 The effect of the appellant’s argument before this Court was that the factual finding made by the sentencing judge concerning “appreciable risk” was wrong. The appellant recognised the difficulty he faced in seeking to overturn a factual finding such as this. In developing these submissions, the appellant relied on the further evidence which this Court has refused to receive. Nonetheless, and regardless of that ruling, the appellant contended that the combination of the finding by the sentencing judge that the appellant was unlikely to offend again, and his permanent infirmity included a lack of sexual interest and function, which meant that the finding that he effectively poses an appreciable risk was unreasonable and unjust.154 164 The relevant provisions of the Sentencing Act are as follows: 71—Home detention orders … (2) The following provisions apply to a home detention order: (a) a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice; (b) a home detention order must not be made if the defendant is being sentenced— … (ii) as an adult for a serious sexual offence unless— (A) the offence is a prescribed serious sexual offence that occurred in prescribed circumstances; or (B) if subparagraph (A) does not apply, the court is satisfied that special reasons exist for the making of a home detention order; or … (4) The following provisions apply for the purposes of subsection (2)(b)(ii)(B): (a) the court cannot be satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B) unless the court is satisfied that— 154 Appeal transcript, 30 June 2025, p10. -- 44 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 41 (i) the defendant’s advanced age or permanent infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general); and (ii) the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody; (b) the court must not have regard to any other matter in determining whether it is satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B). 165 The parties were agreed that the offence of rape contrary to s 48 of the CLCA is a “serious sexual offence” for the purposes of determining the availability of suspension and home detention orders.155 In consequence, there is no scope for ordering suspension,156 and a home detention order cannot be made unless the court is satisfied that there are “special reasons”.157 It is important to recognise that, by s 71(4)(b), the sentencing court must not have regard to any other matter in determining whether it is satisfied that special reasons exist. 166 The following points may be made about the meaning and operation of s 71(4)(a) of the Sentencing Act. First, and despite the potential breadth of the term “special reasons”, that term is defined in a way that requires that two “jurisdictional facts” be established. Sub-section 71(4)(a)(i) requires that it be established that the defendant’s advanced age, or permanent infirmity, means that the defendant no longer presents an appreciable risk to the safety of the community, whether as individuals or in general.158 Sub-section 71(4)(a)(ii) requires that it be established that the interests of justice as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.159 167 Secondly, the sentencing court cannot be satisfied that special reasons exist unless it is satisfied of both limbs of s 71(4)(a); both jurisdictional facts must be established. 168 Thirdly, the reference to whether a defendant “no longer presents an appreciable risk” must necessarily be directed to the defendant’s offending in so far as it is known to the court including, most obviously, the offending for which the defendant falls to be sentenced. 169 Fourthly, what may be regarded as “an appreciable risk to the safety of the community (whether as individuals or in general)” is likely to depend on the nature of the defendant’s permanent infirmity, the nature of the offending which the court 155 Sentencing Act 2017 (SA), s 71(5) and s 96(9). 156 Sentencing Act 2017 (SA), s 96(3)(ba). 157 Sentencing Act 2017 (SA), s 71(2)(b)(ii) and s 71(4). It was common ground between the parties that s 71(2)(b)(ii)(A) did not apply because the offending did not occur in “prescribed circumstances”. 158 Sentencing Act 2017 (SA), s 71(4)(a)(i). 159 Sentencing Act 2017 (SA), s 71(4)(a)(ii). -- 45 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 42 has in contemplation, and the court’s assessment about the risk to the safety of the community in those circumstances. 170 As for the assessment of risk, the parties relied on earlier decisions where similar language was in contemplation. The first was Attorney-General v Grosser.160 In that case the question was whether an extended supervision order should be made pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA). There the Supreme Court may, on application, make an order that a person be subject to an extended supervision order if it is satisfied that they are a high-risk offender who poses an appreciable risk to the safety of the community if not supervised. Stanley J, as he then was, explained:161 I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree… (Citation omitted.) 171 Later, in R v Deboo,162 a question similar to that which arises in this case arose under an earlier iteration of s 71(4) of the Sentencing Act. The question was whether “special reasons” existed for the making of an order that a sentence of imprisonment be served on home detention because the defendant no longer presented an appreciable risk to the safety of the community. The defendant had been convicted of sexual offending involving two teenage boys. Kelly J (as her Honour then was, with whom Stanley J and David AJ agreed) referred to Attorney- General v Grosser and rejected the defence argument on the basis that the defendant remained a “relatively healthy, active and sexually capable individual”.163 172 The requirement that the defendant negate an appreciable risk requires that the sentencing court be satisfied that by reason of the defendant’s advanced age or permanent infirmity there is no perceptible risk that the defendant may again engage in criminal offending which might risk the safety of the community. The requisite risk may be a risk to identified individuals or it may be a risk which is more general in nature, not confined to any particular person. 160 Attorney-General v Grosser [2016] SASC 49. 161 Attorney-General v Grosser [2016] SASC 49, [29] (Stanley J). 162 R v Deboo (2019) 133 SASR 374. 163 R v Deboo (2019) 133 SASR 374, [76]-[78] (Kelly J, with whom Stanley J and David AJ agreed). The appellant also referred the Court to observations made by a senior member in the context of a determination of what comprised an unacceptable risk to children for the purposes of a prohibition notice under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA), Griggs v Department of Human Services [2023] SACAT 60,[40]-[53]; (Senior Member Ward); see also GM v Department of Human Services [2025] SASCA 68, [75]-[122] (Livesey P, S Doyle and Bleby JJA). Given the very different legislative context it is not necessary to consider decisions such as these. -- 46 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 43 173 Finally, the requirement that the court address the “interests of justice” is, of its nature, an open textured enquiry which requires an evaluation and contrast between serving a sentence on home detention as distinct from serving a sentence in custody. A broad range of matters will be relevant to that evaluation, including the interests of the defendant and the community, together with the interests of any victim of the defendant’s criminal wrongdoing. 174 It may be accepted that the appellant has a permanent infirmity which is progressive in nature and likely to worsen, ultimately leading to a loss of sight. Whilst the appellant has other infirmities, the evidence does not suggest that these are resistant to treatment or necessarily permanent. 175 In the circumstances of this case the relevant risk is the risk of sexual assault, particularly rape, where the appellant abused a position of reliance and trust in the course of a professional massage engagement. That the appellant has announced that he will no longer engage in massage work is relevant but not decisive. Similarly, that an intervention order will be imposed concerning the complainant is also relevant but, here again, not decisive. 176 The offending occurred at a time when the appellant had pronounced difficulties with eyesight, together with the other physical infirmities referred to in the evidence. Whilst the appellant’s permanently impaired eyesight and other infirmities are relevant to the assessment of risk, it was not necessary for the appellant to use his eyesight or any physical force separate from the violation inherent in the conduct comprising the rape. 177 At the time of the sentencing, and certainly subsequently, it has been said that the appellant had no sexual interest and function. He was in a relationship which has been described as platonic. Nonetheless, it is evident that the offending was sexually motivated. There is no medical evidence to suggest that the appellant has a loss of sexual function and, perhaps more importantly, a loss of sexual interest. 178 In particular, it cannot be said that the appellant’s ophthalmological condition means that he does not present an appreciable risk to the safety of the community concerning offending of the kind in issue in this case. 179 That the appellant is unlikely to offend again in the future does not mean that, given the opportunity, he “no longer presents an appreciable risk to the safety of the community (whether as individuals or in general)”. Whilst one might anticipate that the appellant’s physical infirmities will continue to deteriorate over time, it cannot be said that the sentencing judge was wrong to conclude that the defendant continued to present an appreciable risk to the safety of the community, particularly in circumstances where he continues to reject the jury’s verdict. 180 Accordingly, this ground of appeal should be dismissed. -- 47 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 44 Was the sentence manifestly excessive? 181 There was no dispute between the parties regarding the well-known principles governing the determination of an appeal based on an argument about whether a sentence is manifestly excessive.164 The appellant acknowledged that the crime of rape is “one of the most serious offences known to the criminal law”,165 but emphasised that this Court had repeatedly declined to establish any sentencing standard or tariff for offences of rape.166 182 The parties referred to a number of earlier decisions, with appropriate qualification and deference, in order to illustrate their competing contentions. A review of these cases over the last 25 years or so illustrates a pronounced hardening in community attitude to sexual offending of this kind. 183 In R v Major, Doyle CJ observed that for a single offence of rape an offender might well receive a sentence of about five years’ imprisonment.167 That case involved a prosecution appeal against sentence where, during a period of about a decade, the defendant committed six rapes, two indecent assaults and two burglaries. The sentencing judge had imposed a sentence of imprisonment of 12 years with a non-parole period of eight years. Doyle CJ and Olsson J allowed the appeal (Williams J dissenting) and substituted a head sentence of 20 years with a non-parole period of 10 years. 184 In R v Craggs,168 the Court of Criminal Appeal upheld a sentence of seven years’ imprisonment with a non-parole period of two years and six months where the appellant had digitally penetrated the vagina of a 13-year-old girl on three occasions, the first of which involved some degree of force. The victim was asleep on the second and third occasions. The victim was the daughter of a woman with whom the appellant was then living. 185 In R v Fuller, the Court of Criminal Appeal upheld a sentence of six years and six months’ imprisonment, with a non-parole period of four years, albeit describing that sentence as “severe”.169 The appellant was a 42-year-old male convicted of two counts of rape following a trial by jury. The victim was 14 years at the time, and the foster sister of the appellant’s de facto domestic partner. The victim was extremely intoxicated and awoke to find the appellant performing cunnilingus whilst digitally penetrating her vagina during an incident which lasted about five minutes. 164 See, for example, Hackett v The Queen [2021] SASCA 32, [9] (Kelly P, Lovell, Livesey JJA); Ndrekav The Queen [2021] SASCA 11, [28] (Doyle JA, with whom Kelly P and Bleby JA agreed). 165 R v Belcher [2016] SASCFC 17, [21] (Kelly J, with whom Blue and Nicholson JJ agreed). 166 R v Hitchins (1995) 184 LSJS 333, 335; R v Fuller [2015] SASCFC 71, [41]-[42] (Sulan J, with whom Kourakis CJ and Stanley J agreed); R v Ross [2018] SASCFC 120, [44] (Kourakis CJ, Blue and Lovell JJ); Potter (A Pseudonym) v The King [2024] SASCA 108 (Kourakis CJ, S Doyle and David JJA). 167 R v Major (1998) 70 SASR 488, 491 (Doyle CJ). 168 R v Craggs, unreported, 822 of 1990, 22 February 1990 (King CJ, Millhouse and Debelle JJ). 169 R v Fuller [2015] SASCFC 71 (Kourakis CJ, Sulan and Stanley JJ). -- 48 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 45 186 In R v Kohlhagen,170 the Court of Criminal Appeal found, by a majority, that a sentence of four years, eight months and 24 days, (reduced from a head sentence of six years), with a non-parole period of two years, five months and 24 days, was manifestly excessive. In that case, the appellant was a friend of the victim’s family. The appellant was 28 and the victim 13 years when, after the victim’s family had gone to bed, the appellant engaged the victim in text messaging with sexual overtones before going into the victim’s bedroom and engaging in sexual wrongdoing. This comprised charges of aggravated making a child amendable to sexual activity, aggravated indecent assault and unlawful sexual intercourse with a person under 14 years. 187 The victim awoke to find that the appellant was lying behind her and rubbing her breasts with one hand whilst moving one or two of his fingers in and out of her vagina. In all, the conduct involved a significant period of time and was followed by extensive attempts to dissuade the victim from reporting the offending. 188 Justice Nicholson, with whom Peek J agreed (Blue J dissenting), found that the sentence was manifestly excessive and, having regard to the appellant’s good rehabilitation prospects, substituted a starting sentence of four years and nine months for all three offences, reduced by 20 per cent on account of the appellant’s guilty pleas, resulting in a sentence of three years and ten months, together with a non-parole period of 23 months. 189 In R v Knight,171 Kourakis CJ undertook an extensive review of previous rape decisions where the head sentences ranged between five years and 20 years. A number involved multiple rapes, or rapes involving violence, including violence or threats of violence involving a weapon. The Chief Justice observed that there was a wide sentencing range for offences of rape, but that sentences as high as 14 years had not been imposed unless a weapon had been used or where the offending involved protracted violence over and above the sexual violence associated with the rape.172 190 In R v Ross,173 the Court of Criminal Appeal allowed a prosecution appeal against sentence and substituted a sentence of four years and seven months (after a reduction for pleas of guilty), together with a non-parole period of one year and eight months. The respondent had engaged in penile-vaginal intercourse with the victim on two occasions. There was no violence beyond the violence associated with each rape, though the respondent coerced the complainant by threatening to distribute intimate images of her. The Court held that this offending was not at the lower end of seriousness for offending of this kind. 170 R v Kohlhagen [2016] SASCFC 19 (Peek, Blue and Nicholson JJ). 171 R v Knight [2016] SASCFC 40 (Kourakis CJ, Blue and S Doyle JJ). 172 R v Knight [2016] SASCFC 40, [68] (Kourakis CJ, with whom Blue and Doyle JJ agreed). 173 R v Ross [2018] SASCFC 120. -- 49 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 46 191 In R v Heldon,174 the Court of Criminal Appeal imposed a sentence of imprisonment of ten years, together with a non-parole period of seven years, where the appellant had chased the victim and brought her to the ground while she was walking late at night in the Victoria Park racecourse. The appellant used violence to overcome the victim’s resistance before digitally penetrating the victim’s vagina on two occasions. The Court upheld the sentence but allowed the appeal so as to make appropriate allowance for the time spent in custody and on home detention. 192 Finally, in Potter (a pseudonym) v The King,175 the appellant was found guilty following a trial by judge alone of two counts of rape involving penile-vaginal intercourse whilst the complainant was asleep. The offending spanned a lengthy period and was punctuated by occasions when the appellant, who was married to the complainant, had been warned by his wife not to engage in that kind of sexual activity. The appellant was sentenced to 12 years’ imprisonment together with a non-parole period of six years and six months. The Court found that the sentence was manifestly excessive and adopted starting points of six years and seven years for the offending. Allowance was made for concurrency, and the appellant was ultimately sentenced to imprisonment for nine years and six months, together with a non-parole period of five years. 193 In this case it is clear that the appellant was a first-time offender whose offending fell towards the lower end of the range of objective seriousness, albeit that it involved a gross breach of trust. It is necessary to recognise that the kind of digital penetration apparent in this case is not necessarily less serious or less harmful than, for example, penile penetration. As this Court explained in R v Berry:176 It may be accepted that these sexual acts were not as invasive or depraved as in some other cases. Whilst it is relevant to consider the nature and frequency of the sexual acts constituting the offending, the authorities emphasise that caution is appropriate when considering these matters. There is no hierarchy of sexual acts, and the sentencing court should not rely simply upon generalisations or assumptions. The seriousness of the offending must be determined according to its own individual circumstances, including the effect of the offending upon the victim.177 There is no necessary correlation between the nature of the offender’s interference with, or violation of, the victim’s body and the psychological harm that may be suffered by the victim.178 174 R v Heldon [2019] SASCFC 62 (Kelly J, with whom Parker J and David AJ agreed). 175 Potter (A Pseudonym) v The King [2024] SASCA 108 (Kourakis CJ, S Doyle and David JJA). An application for special leave to appeal does not challenge the sentence. 176 R v Berry [2024] SASCA 116, [72] (Doyle, Bleby JJA and Hall AJA). 177 R v Beaumont [2023] SASCA 128, [48] (Livesey P, Lovell and Bleby JJA), applying R v Friesen [2020] 1 SCR 424, [146]; see also Musgrave v Western Australia (2021) 289 A Crim R 17, [3]-[8] (Quinlan CJ), as applied in this Court in, for example, Baxter (a pseudonym) v The King [2024] SASCA 64, [45] (Livesey P, David JA and Stein AJA); Turnbull (a pseudonym) v The King [2023] SASCA 121, [29] (Livesey P and Doyle JA); Warner v The Queen (2022) 142 SASR 275, [139] (Doyle JA); Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [55] (Livesey P, Doyle and David JJA). 178 R v Beaumont [2023] SASCA 128, [37] (Livesey P, Lovell and Bleby JJA), applying R v Friesen [2020] 1 SCR 424, [144]. -- 50 of 62 -- [2026] SASCA 16 Livesey P and Stanley JA 47 194 Nonetheless, the offending was not premeditated and was relatively transient. It could properly be categorised as involving an aberration of character. The sentencing judge found that it was unlikely that the appellant would again offend in the future. 195 In addition, and as has been outlined at some length, the appellant suffered a number of serious health issues which exposed him to considerable hardship whilst in custody, even though those health issues could be adequately managed. This hardship was of a kind that was relevant to the determination and mitigation of the appellant’s sentence.179 196 Notwithstanding the ongoing failure of the appellant to acknowledge his guilt, the sentence imposed in this case was manifestly excessive. In particular, the starting sentence of six years is unjust and unreasonable. It is appropriate to allow the appeal and set aside the sentence and proceed to re-sentence. 197 It is not necessary to recapitulate the circumstances of the offending and of the offender. In the circumstances of this case, it is appropriate to impose a sentence of imprisonment for four years and to fix a non-parole period of two years. Given the findings earlier made, home detention is not available. Conclusion 198 Permission to appeal against conviction and sentence should be granted. The appeal against conviction should be dismissed. The appeal against sentence should be allowed, and the following orders made: 1. The sentence imposed in the District Court is set aside. 2. The appellant is re-sentenced to a term of imprisonment for four years, together with a non-parole period of two years, both backdated to commence on 20 September 2024. 3. An intervention order in the terms earlier made will again be made. 199 DAVID JA: I agree with the joint reasons of Livesey P and Stanley JA in relation to Grounds 1, 2 and 4 and would join with their Honours in dismissing the conviction appeal. I also agree with their Honours regarding the disposition of the sentence appeal. However, in relation to Ground 3 of the conviction appeal, and the issue of the adequacy of the directions relating to the appellant’s text messages, I provide separate reasons. 200 Under this appeal ground, the appellant complains that the trial Judge erred in her directions as to the assessment of the text messages by failing to direct the 179 Kroni v The Queen (2021) 138 SASR 37, [228] (Livesey J, with whom Doyle J agreed), R v Lian (2023) 144 SASR 303, [145]-[150] (Doyle JA). -- 51 of 62 -- [2026] SASCA 16 David JA 48 jury that it was necessary to exclude, beyond reasonable doubt, any alternative explanation for the messages before they could be used as an admission. 201 As the argument was developed during the appeal hearing, there were in fact two parts to this appeal ground. 202 First, the appellant contends that the trial Judge erred by failing to direct the jury that before they could use the appellant’s text messages as an admission to the charged act (as urged upon the jury by the prosecution), it was necessary that the jury be satisfied, beyond reasonable doubt, of the incriminatory meaning of the words used in the text message. The appellant emphasises that the alleged admission was capable of being a pathway to guilt on its own. 203 Secondly, the appellant contends that the trial Judge’s direction to the jury cast upon the appellant a burden to provide an alternative explanation for the text message. This is also said to be a form of binary, or choice reasoning. The appellant contends it was not for the jury to consider (or find) whether there was an alternative explanation to be attributed to the words used. Instead, the prosecution bore the onus to exclude any alternative explanation for the words used consistent with innocence. 204 For those reasons, the appellant complains that the jury were not properly instructed about how to assess a key piece of the prosecution case; and the error could have realistically affected the reasoning of the jury to its guilty verdict. 205 Before turning to consider the appellant’s contentions in more detail, it is necessary to outline the relevant evidence adduced at trial, and the parties’ respective cases. 206 The alleged offence occurred on the evening of 13 January 2022. Following a massage during which the appellant allegedly digitally penetrated the complainant’s vagina, and while driving home from the massage, the complainant pulled over and made a phone call to her friend, BP. During this phone call she disclosed the alleged offence. The phone call was made at approximately 9.45pm. The conversation was led by the prosecution as an ‘initial complaint’ under s 34M of the Evidence Act. 207 Both the complainant and BP gave evidence as to the content of the phone call. 208 That evening and the following morning, the complainant received several text messages from the appellant to which she did not respond.180 209 The following day, on 14 January 2022, the complainant met up with BP at a café. There, they had a conversation during which the complainant elaborated on her disclosure and told BP that: ‘I was on the table and I felt [the appellant’s] 180 Trial Exhibit P3. -- 52 of 62 -- [2026] SASCA 16 David JA 49 fingers in me, went inside my vagina during the massage’. BP encouraged the complainant to report the allegation to the police. 210 Following this meeting, there was a text exchange between BP and the appellant in the following terms:181 BP: What the fuck did you do to [the complainant] last night stay away from her do not contact her again. Appellant: I don’t [know] what to say or do I’m embarrassed and disappointed with myself, I wanted to apologise for my massive error of [judgment] I need to apologise to her. BP: She is f[ucking] traumatised you f[ucking] piece of shit. Appellant: …I feel really bad she’s my friend. What can I do. BP: Stay away all over red rover. Appellant: Ok I understand. 211 There was no dispute at trial that the appellant was the author of the relevant text messages, or that he sent the text messages. 212 The complainant attended the Norwood Police Station on Sunday, 16 January at 2.30pm. At that time, she reported the alleged offence and provided a statement to police. 213 Prior to the commencement of the trial, there was no application to exclude the evidence of the text message exchange. In her opening address, the prosecutor submitted that the text messages by the appellant amounted to an admission to the alleged offending. 214 The appellant did not give evidence at trial. There was no record of interview tendered to the jury (it having been excluded upon the application of defence counsel). Defence counsel put to the complainant that while the appellant may have touched her vagina, ‘there was no penetration whatsoever’. It was also put to the complainant that any touching was to her G-string, and not on her actual vagina. The complainant denied both suggestions. 215 During the prosecutor’s closing address, she made the following submissions as to the appellant’s text messages: Now, the evidence of [the complainant] is of course the most important evidence on the prosecution case. However, it is not the only evidence on the prosecution case. On the prosecution case there is also some evidence in the form of text messages that the prosecution says were sent by the accused. In my submission you can accept that those texts were exchanged by [BP] and the accused. She has told you she had exchanged 181 Trial Exhibit P5. -- 53 of 62 -- [2026] SASCA 16 David JA 50 messages with him before. His contact details were saved in her phone. And when you read those text messages the author of those text messages clearly understood who [the complainant] was and had had some interactions with [the complainant] the night before and so in my submission you should have no difficulty that those messages exchanged were from the accused. It is the prosecution case that those text messages sent by the accused amount to admissions to the charged offence. Think about the words used in that text message. ‘I’m embarrassed and disappointed with myself. I wanted to apologise for my massive error of judgment’. Now, we all know from our own life experience that sometimes we make a conscious decision, that is we make a judgment to do something and then for some reason we have to apologise for that decision, for that judgment that we made in doing that. Other times we have to apologise for something that we accidentally did. For example, ‘Sorry I accidentally ran into your car’ or something like that. Are those words in that message what you expect to be used in relation to an accidental event? ‘A massive error of judgment.’ Or would you describe a conscious decision to touch someone in a way that you did not have their consent to as a massive error of judgment? In my submission it is very much the latter. The fact that the accused has said in that text message that he made a massive error of judgment you might think makes sense in the context of the evidence [the complainant] gave. Now, ladies and gentlemen, if it is suggested to you that this text apology is an apology for an accidental touching, I suggest you should consider how the words ‘error of judgment’ fit with that scenario. Is an accident an error of judgment? Well no. An accident is just that. It is not deliberate. There is no judgment involved. The word ‘accident’ or any circumstances about an apparent accident do not appear in that text exchange. So, members of the jury, if it is suggested to you that the error of judgment was an accidental touching I suggest that you should reject that suggestion. And if it is suggested to you that the error of judgment was massaging [the complainant] in the dark, well, you’ve heard this morning that that was something that the accused used to do. You’ve heard from two witnesses this morning that massaging in the dark was nothing unusual, or with the lights off was nothing unusual for the accused. So that can’t have been the error of judgment. And you’ve also heard this morning that, as part of his standard massage practice, the accused would massage people on their thighs and their glutes. So that can’t have been the error of judgment. Now, I remind you again, members of the jury, the defence does not have to prove anything to you in this trial. The burden of proof rests solely on the prosecution to prove each and every element of the offence beyond a reasonable doubt. On the prosecution case those text messages amount to an admission by the accused of the offending that [the complainant] told you occurred. That was a massive error of judgment. (Emphasis added). 216 It is convenient at this point to make some observations about the prosecutor’s closing address. 217 First, the focus of her closing address on this topic was the support the text message lent to the complainant’s evidence. It was referred to as ‘some evidence’ in addition to the complainant’s evidence; it was not suggested to the jury that it was an independent pathway to guilt. Nor could such a suggestion have properly been made because the content of the messages drew their meaning and force from -- 54 of 62 -- [2026] SASCA 16 David JA 51 the complainant’s evidence as to what took place during the massage, her evidence as to their previous association and friendship, and the timing and context in which the appellant wrote and sent the text messages including that he was responding to accusations put to him. 218 Secondly, the prosecution relied on the appellant’s text messages as being inconsistent with the defence case (as put to the complainant) that any touching of the complainant’s vagina was an accidental touching involving no penetration. It was the prosecutor’s submission that an accidental touching did not, in ordinary human experience, constitute ‘a massive error of judgment’, whereas an act of digital penetration of the complainant’s vagina during a massage did meet this description. 219 Thirdly, the prosecution emphasised that the appellant did not have to prove anything (implicitly, that it was not for the defence to provide an alternative explanation for the words uttered) and that the burden of proof ‘rests solely’ on the prosecution. 220 Fourthly, it was made plain that the prosecution relied on the appellant’s text messages as an admission of guilt to the charged offence. This was perhaps to cast the use of the evidence too broadly – the evidence was capable of being used as an admission to a deliberate act of digital penetration; that is, to an element of the offence rather than to the charged offence. But, on the facts of this case, if the jury were satisfied that this element was proved, it followed that the appellant would be found guilty of the offence, as there was no suggestion that the complainant consented to an act of digital penetration, or that the appellant knew or was recklessly indifferent to her lack of consent to the alleged act of digital penetration. 221 By contrast, defence counsel in his closing address made the following submissions as to the text message exchange: And I want to urge upon you a consideration of this text. The error of judgment. Because of course if you do touch someone in a professional circumstance and you are professional and you just say ‘sorry’ and brush over it rather than really pausing. ‘Now I’ve done that. All right. That’s embarrassing. I shouldn't continue. Are you happy for me to continue or do you want to stop now? I’m obviously not going to charge you’. It is like cutting the ear or having a car accident. It’s an error of judgment of the way in which you respond to a circumstance. So be careful how you view that text. Because it’s not an admission to a rape for example. ‘I should never have touched her.’ That's not what that text reads. Please do this when you are thinking about texts because we all author a lot of them these days. How many times have you authored a text and you are like ‘That is not probably what I meant but that is the text and I’ve sent it’. And what if someone is hammering you; ‘Boooo boooo booo. You did this, you did that’. ‘Okay. Massive error of judgment. I’m sorry’. Think about that. How many texts have you authored that don’t actually reflect exactly what you intended to convey? And what if you are under attack. Hopefully that hasn’t happened to you. ‘You -- 55 of 62 -- [2026] SASCA 16 David JA 52 did this and you did that.’ ‘Okay, I’m really sorry.’ When in truth what you are really saying is ‘Geez. Calm down’. You won’t say that in the text. You are trying to be nice. Care about others. Trying to be nice. That’s how you responded. Hanging a person on that text in my submission – it will be a matter for you – requires you to think for yourself about how texts operate. They are imperfect means of communication. We all send texts and go ‘That’s not what I really wanted to say’. Put yourself in this situation and look at the surrounding communication. 222 It is evident that defence counsel, in his closing address, submitted that the appellant’s text messages did not constitute an admission to an allegation of digital rape. There was no dispute that the appellant wrote and sent the relevant text messages, or about the words used. Rather, defence counsel challenged the prosecution’s submissions as to the meaning the appellant was intending to convey, appearing to submit that the appellant’s ‘massive error of judgment’ was an accidental touching of the complainant’s vagina. He submitted that it was necessary for the jury to consider the text message in the context of all the surrounding circumstances, including that the appellant was being ‘attacked’ by BP and that text messages are an ‘imperfect means of communication’ to convey the true meaning of what a person wants to say. 223 In her summing up, the trial Judge outlined the parties’ respective submissions. Relevantly, her Honour instructed the jury as follows: I now want to turn to the exhibit P5. Do you have that there with you? Now P5, as you will see or remember, are the text messages that you heard evidence that had been sent between [BP] and the accused the day after the alleged offence occurred. It was said that these messages were sent whilst [BP] was at the cafe with the complainant. … You will need to consider what was said, what was meant and what weight you can to the evidence of what the text messages sent by the accused mean. Firstly, you will need to consider what he meant. Is he admitting that he put his fingers into [the complainant] as is alleged by her? Or is there another explanation for him saying those words such as admitting an accidental act? 224 The trial Judge then set out the parties’ arguments, in similar terms as above, and continued: It is for you to consider whether there is an explanation other than that the accused is admitting he deliberately put his finger or fingers in [the complainant’s] vagina. If you do consider there is another reasonable explanation for that then you will put this evidence of P5 to one side. However, if you find its reference to [a] massive error of judgment amounts to an admission that he did put his finger or fingers in her vagina deliberately, no matter how fleeting that was, then you can use this evidence to support the version of events that [the complainant] has given in this court. 225 The appellant contends that the prosecution relied on the text messages as an admission to the charged offence (tantamount to a full confession) and as a ‘central plank’ to the prosecution case. As such, the trial Judge was obliged to direct the -- 56 of 62 -- [2026] SASCA 16 David JA 53 jury that before they could use the appellant’s text message as an admission, they needed to be satisfied beyond reasonable doubt that the appellant intended that his words convey a truthful admission of guilt to the offence. The appellant submits that an admission to having committed the charged offence is qualitatively different to an admission to some other incriminatory fact which circumstantially bears upon the ultimate question of guilt; the former will require proof beyond reasonable doubt, whereas the latter may not. 226 In support of his submissions, the appellant relies on the decisions of Burns v The Queen182 and Magill v The Queen.183 227 Before turning to consider those decisions, it is necessary to say something more about the prosecution case. As mentioned earlier, while the prosecution relied on the appellant’s text messages as amounting to an admission of guilt to the charged offence, it was, in fact, only capable of being an admission to an element of the charged offence, namely a deliberate act of digital penetration. However, it may be accepted that this was an important piece of evidence which provided support for the complainant’s account and the charged offence of rape. 228 Further, the content of the appellant’s text messages did not contain an explicit admission to a deliberate act of digital penetration. Rather, the jury were asked to draw that inference from the apology for a ‘massive error of judgment’ which could be considered inconsistent with an accidental touching. 229 The evidence of the appellant’s text messages of itself could not sustain a guilty verdict for the charged offence. This was not a case where the offence of rape could be proved beyond reasonable doubt solely on the evidence of the appellant’s text messages. They did not constitute a complete confession but rather were an admission to an element of the offence, albeit the only element in dispute in the case. The other elements of the offence – that the complainant was not consenting, and the appellant’s state of mind as to her lack of consent – relied upon the complainant’s evidence. In addition, the meaning of the words conveyed in the appellant’s text message also drew their context from the complainant’s evidenced as to what transpired during the massage. 230 Nor was this a case where the evidence of the appellant’s admissions constituted a piece of circumstantial evidence which was an indispensable link in proof of the charged offence. The prosecution case relied on the direct evidence of the complainant, as buttressed by her initial complaint, and as supported by the evidence of the appellant’s purported admission in his text messages. If the jury were satisfied that the text messages sent by the appellant constituted an admission, they were a piece of direct evidence that provided some support for the complainant’s account of the appellant having deliberately (as opposed to accidentally) digitally penetrated her vagina. 182 (1975) 132 CLR 258. 183 (2013) 42 VR 616. -- 57 of 62 -- [2026] SASCA 16 David JA 54 231 With those general observations in mind, I turn to consider the authorities relied upon by the appellant in support of his contention that the trial Judge erred by failing to give a direction that it was necessary for the jury to be satisfied beyond reasonable doubt that the appellant’s text messages constituted an admission before they could use the evidence in support of the prosecution case. 232 In Burns v the Queen (‘Burns’),184 the High Court held that a warning may be required that the jury are not to use the evidence of a confessional statement made by a defendant in proof of their guilt unless they are satisfied that the defendant made the statement, and it was true. However, as the majority in Burns explained, there is no rule of law or practice which requires such a warning to be given in every case, and the nature and content of any such direction will depend upon the circumstances of the case:185 It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of the confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. “There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.” In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue. (Citations omitted.) 233 In Burns, the appellant was alleged to have made a confession in an unrecorded police interview to participating in an armed robbery. The appellant disputed that he made the confessional statement. The confessional statement was the only evidence implicating the appellant in the offence apart from some circumstantial evidence that he was struggling financially before the robbery, and in possession of a large sum of money after the robbery. 234 During the trial, the trial Judge warned the jury that they could use the confession only if they were satisfied that it had been made, and that it was truthful and accurate. The warning was not repeated in the summing up. The trial Judge 184 (1975) 132 CLR 258. 185 Burns v The Queen (1975) 132 CLR 258 at 261 (Barwick CJ, Gibbs and Mason JJ). -- 58 of 62 -- [2026] SASCA 16 David JA 55 however directed the jury in the summing up that they had to be satisfied beyond reasonable doubt that the appellant had made the confessional statement. 235 The decision in Burns is not authority for the proposition that a confessional statement is always required to be proved beyond reasonable doubt. Rather, the essential holding is that in certain circumstances, a jury may need to be instructed that they should not act upon a confessional statement unless satisfied it was made by the defendant, and that it is true. 236 The appellant also relies on Magill v The Queen (‘Magill’).186 In Magill, a majority of the Victorian Court of Appeal held that a substantial miscarriage of justice had been occasioned due to the trial Judge’s failure to direct the jury that they had to be satisfied beyond reasonable doubt as to the incriminatory meaning of a text message. In that case, a text message was relied upon as an admission to the offence of rape, or at least an intentional act of intercourse without consent. Like the present case, the terms of the relevant text message took the form of an apology, and on its face were ambiguous. There was also evidence adduced on the prosecution case which provided an alternative explanation for the text message. In Magill, defence counsel challenged the prosecution’s assertion that the appellant was the author of the text messages, whereas in the present case there was no such dispute, and the contested issue was confined to the meaning the appellant intended to convey by his text messages. 237 By majority, the Victorian Court of Appeal held that the trial Judge erred by failing to direct the jury that they were required to be satisfied beyond reasonable doubt that the defendant had intended to acknowledge that he had sexual intercourse with the complainant without her consent, and that the confession was true. 238 The authority of Magill has recently been considered by the Queensland Court of Appeal in R v Booth; R v Combarngo (‘Booth’)187 and by the New South Wales Court of Appeal in Hewitt v The Queen (‘Hewitt’).188 239 In Booth, the relevant statements were characterised not as a confession but as a statement against interest. Justice Douglas considered that if the conversation was to be treated as a confession, it would normally have been incumbent on the trial Judge to give a Burns direction to the jury that they should not treat the statement as a confession in proof of guilt unless they were satisfied that it was said, and that it was true. His Honour identified that there were competing views about whether a Burns direction should be given in the case of a statement against interest as opposed to what was described as a full confession. There was no discussion as to the criminal standard to which it must be proved that a defendant has made a statement and that it was true. 186 (2013) 42 VR 616. 187 [2018] QCA 74. 188 [2021] NSWCCA 227. -- 59 of 62 -- [2026] SASCA 16 David JA 56 240 In Booth there was no challenge to the identity of the maker of the statements nor as to the statements having been made. They were also characterised as statements against interest rather than confessional statements. The Queensland Court of Appeal held there was to be no miscarriage of justice. 241 In Hewitt, the prosecution relied on a text message and a pre-text call as admissions of guilt. The prosecution also relied on the appellant’s failure to positively assert his version of events to the complainant as an implied admission that the version of events given at trial was false. 242 On appeal, it was submitted that the trial Judge erred by failing to give a Burns direction to the effect that before they could use the statements in proof of guilt, they needed to be satisfied that the appellant intended to acknowledge that he had sexual intercourse with the complainant without her consent, and that the confessional statements were true. There was no submission made during the appeal that those matters needed to be established beyond reasonable doubt. In any event, Payne JA concluded that a direction was not required as a matter of law in every case where there is a dispute about whether a confession or admission was truthful or accurate, and that there was no error by the trial Judge in not giving a Burns direction. 243 More recently, in Small v Western Australia,189 the Western Australian Court of Appeal considered that it is not necessary, in every case in which the prosecution relies on an admission or confession, to instruct a jury that before relying on such evidence, they must be satisfied beyond reasonable doubt that the accused made the statement, and it was true. Applying the principles in Shepherd v The Queen,190 the Court observed that such a direction may be required where a confession is the only evidence relied upon by the prosecution to prove the guilt of the accused, or to prove the element of an offence, or the evidence is an indispensable link in a chain of reasoning to guilt. The Court also considered that it may also be generally accepted that where the evidence of a confession is a significant component of a prosecution case, such a direction may also be required. With respect, I agree with those observations as to the circumstances which may call for such a direction. But, for the reasons I have already explained, this is not such a case. 244 Since Magill v The Queen was decided, ss 61 and 62 of the Jury Directions Act 2015 (Vic) now preclude giving a direction that the jury must be satisfied beyond reasonable doubt that the admission was made and was true. In Victoria, it is ‘only the elements of an offence (and the disproof of any relevant defence), not some particular piece of evidence or intermediate fact, that must be proved beyond 189 [2023] WASCA 179. 190 Shepherd v The Queen (1990) 170 CLR 573. The Court also referred to what was said by Deane, Dawson and Gaudron JJ in Edwards v The Queen (1993) 178 CLR 193 at 210 concerning lies where they are not the only evidence of guilt, or where they are not an “indispensable link”: “…ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. … They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt”. -- 60 of 62 -- [2026] SASCA 16 David JA 57 reasonable doubt’. Whilst there are no equivalent provisions to ss 61 and 62 of the Jury Directions Act 2015 (Vic) operative in South Australia, this nevertheless represents the approach previously taken to this kind of evidence in South Australia. 245 In R v ZT,191 the High Court recently considered a case of murder where the main evidence comprised intercepted telephone calls between ZT and his family and associates. A majority of the High Court observed that “[l]eaving aside proof of an indispensable intermediate fact in a circumstantial case, the elements of an offence must be proved beyond reasonable doubt rather than the evidence that supports proof of those elements”.192 The High Court concluded that none of the admissions relied upon by the prosecution in that case represented an indispensable intermediate fact and did not need to be proved beyond reasonable doubt. 246 In the present case, the text messages did not amount to a confessional statement to the charged offence but rather, an admission to an element of the offence. Further, the text messages did not contain an explicit admission to the offence such that alone they were capable of establishing the appellant’s guilt to the charged offence. Contrary to the appellant’s submissions, the text messages could not have represented a separate pathway to a finding of guilt. Nor were the text messages an indispensable link in a chain of circumstantial reasoning to the appellant’s guilt. As outlined earlier, the prosecution case relied primarily on the complainant’s evidence, as buttressed by her initial complaint. If the jury were satisfised that the appellant’s text messages constituted an admission to deliberately (as opposed to accidentally) penetrating the complainant’s vagina, they were capable of providing ‘some support’ for her account. While the evidence was probative and of some importance, they could not be described as a ‘central plank’ in the prosecution case. 247 In those circumstances, I am satisfied that the trial Judge was not required to warn the jury that they needed to be satisfied, beyond reasonable doubt, that the appellant’s text message constituted an admission of guilt to deliberately digitally penetrating the complainant’s vagina. 248 As to the second limb of this appeal ground, this involves the more difficult question of whether the direction by the trial Judge left the jury with a ‘binary choice’ which failed to reflect that the burden to prove the case rested on the prosecution and that an accused person bears no burden of proof. 249 The appellant contends that the trial Judge’s directions cast a burden on the appellant to provide an alternative explanation for the meaning of the words used in the text message. The appellant submits this was an error because it was for the prosecution to exclude any alternative explanation for the words used, and it was 191 (2025) 281 CLR 137. 192 R v ZT (2025) 281 CLR 137 at [67] (Gordon, Edelman and Steward JJ). -- 61 of 62 -- [2026] SASCA 16 David JA 58 only then that the jury could use the appellant’s text messages as an admission to an element of the charged offence in proof of the appellant’s guilt. 250 It would have been preferable for the trial Judge to instruct the jury explicitly that before they could use the text messages as an admission, the prosecution were required to establish (not to any standard) that the appellant intended that his words were an apology for a deliberate act of digital penetration, and this required the jury to exclude any rational or cogent alternative explanation for those words in the text message. It would also have been preferable if the trial Judge had reiterated her earlier directions that the burden of proving the charge lies wholly upon the prosecution and the appellant does not have to prove anything at all. 251 However, the trial Judge had earlier given orthodox directions as to the onus and standard of proof. Her Honour directed the jury’s attention to the issue in dispute, namely the meaning of the words used in the text message. The directions made clear that the jury must exclude any reasonable alternative explanation for the messages before they could be used as an admission in proof of the charged offence. All of defence counsel’s submissions in this regard were comprehensively set out for the jury. When the directions are considered in their totality, the jury was not directed toward a binary choice. Rather, the jury was invited to consider the meaning of the exchange and whether there was another explanation for the appellant’s messaging, which was a reasonable explanation, other than an admission of guilt. In a case where the burden of proof was appropriately addressed, the jury would have understood that any finding that the text messages constituted an admission necessarily required that the prosecution exclude any reasonable alternative explanation available on the evidence. 252 There was no error by the trial Judge productive of a miscarriage of justice and I would dismiss this ground of appeal. -- 62 of 62 --