[2026] SASCA 22

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE PRESS) DCCRM-22-006638 APPEL: STOKES (A PSEUDONYM) Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Respondent: THE KING Counsel: MS S AGNEW WITH MR E SAKOULIDIS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/09/2025 File No/s: SCCRM-24-050391; SCCRM-24-050392 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. STOKES (A PSEUDONYM) v THE KING [2026] SASCA 22 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Auxiliary Justice Mullins) 19 March 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - JURY'S MISCONDUCT, BIAS OR FAILURE TO APPLY MINDS TO REAL ISSUES CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES This is an appeal against conviction and sentence. -- 1 of 21 -- Following a trial by jury, the appellant was found guilty of one count of indecent assault in relation to the first complainant, ML; and one count of aggravated indecent assault and two counts of unlawful sexual intercourse with a person under 12 years in relation to the second complainant, CQ, contrary to sections 56 and 49(1) of the Criminal Law Consolidation Act 1935 (SA). Under the amended notice of appeal against conviction, the appellant complains that: - the trial Judge erred in refusing an application for a separate trial of the first count relating to ML from the other counts relating to CQ resulting in a miscarriage of justice (Ground 1); and - the trial Judge erred by not examining or discharging a juror when, after the jury retired, a message was conveyed to the Judge that a juror could not bring an impartial mind to their deliberations; and this was productive of a miscarriage of justice (Ground 3). Held, per the Court, granting permission to appeal against conviction on all grounds but dismissing the appeal: 1. As to Ground 1, the complainants’ evidence was cross-admissible for improbability reasoning. There was no error by the trial Judge when declining to order separate trials. 2. As to Ground 3, there was not a sufficient basis upon which a fair-minded and informed member of the public would entertain a reasonable apprehension that the juror would not discharge their duty impartially. The trial Judge did not err when declining to examine or discharge any juror in relation to the note. There was no miscarriage of justice. As to sentence, pursuant to s 26(2a) of the Sentencing Act 2017 (SA), the Judge indicated the following notional sentences: - in relation to the offence of indecent assault committed against ML (Count 1), a notional sentence of 20 months’ imprisonment; and - in relation to the offence of aggravated indecent assault (Count 4) and the two offences of unlawful sexual intercourse committed against CQ (Counts 2 and 3), the Judge indicated a notional sentence of imprisonment for five years and 10 months. His Honour also indicated that he did not consider any concurrency was warranted between the sentences in order to impose a proportionate or appropriate sentence. This resulted in a total head sentence of seven years and six months’ imprisonment. A non-parole period of six years was fixed. The head sentence was backdated to commence from 5 April 2024, when the appellant was taken into custody. The appellant complains that the sentence was manifestly excessive. As part of his complaint, the appellant contends that the sentencing Judge erred by failing to apply any concurrency between the notional sentences; that each notional sentence was too high and disproportionate to the circumstances of the offending and the offender; and the Judge failed to consider the issue of totality when imposing the head sentence. Held, per the Court, granting permission to appeal against sentence but dismissing the appeal: 1. There was no error in the Judge’s indication that in relation to the offences against ML, and CQ, he would have imposed wholly cumulative sentences. 2. The Judge did not err in failing to consider the issue of totality. His Honour explicitly referred to the notion of totality when he observed that the final sentence imposed must be proportionate to the appellant’s personal circumstances and the nature of the offending. 3. The objective seriousness of the offending and the principles of personal deterrence called for a strongly denunciatory sentence. The sentence imposed was within the permissible range for the offender and the offences; and was not unreasonable or plainly unjust. The sentence imposed was not manifestly excessive. -- 2 of 21 -- Criminal Law Consolidation Act 1935 (SA) ss 49, 56; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34M, 34P, 34S; Sentencing Act 2017 (SA) ss 26, 54, referred to. HCF v The Queen (2023) 280 CLR 596; House v The King (1936) 55 CLR 499; McRoberts v The King [2024] SASCA 92; R v C, CA [2013] SASCFC 137; R v D (1997) 69 SASR 413; R v Lian (2023) 144 SASR 303; R v Marshall (2023) 144 SASR 1; R v McIntyre (2020) 138 SASR 17; R v MJJ; R v CJN (2013) 117 SASR 81; Smith v Western Australia (2014) 250 CLR 473; Webb v The Queen; Hay v The Queen (1994) 181 CLR 41, considered. -- 3 of 21 -- -- 4 of 21 -- STOKES (A PSEUDONYM) v THE KING [2026] SASCA 22 Court of Appeal – Criminal: S Doyle JA, David JA and Mullins AJA 1 THE COURT: Following a trial by jury, the appellant was found guilty of one count of indecent assault in relation to the first complainant, ML; and one count of aggravated indecent assault and two counts of unlawful sexual intercourse with a person under 12 years in relation to the second complainant, CQ, contrary to sections 56 and 49(1) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation in respect of the offence of aggravated indecent assault was that CQ was under the age of 14 years at the time. 2 The appellant is the maternal uncle of ML. Between 22 December 2004 and 23 December 2005, when ML was around 13 years old, she stayed the night at the appellant’s house and slept in his bed. While in bed with ML, the appellant allegedly slid his hand from ML’s knee to her inner thigh (Count 1). 3 The appellant is CQ’s grandfather. In October 2009, when CQ was nine years of age, she stayed the night at the appellant’s house. CQ went to sleep in the appellant’s son’s room and woke to the appellant digitally penetrating her vagina (Count 2). During the night, the appellant returned to the bedroom a number of times. CQ woke on another occasion to the appellant again digitally penetrating her vagina (Count 3), and kissing the back of her neck (Count 4). 4 The central issue at trial was whether the prosecution had proved beyond reasonable doubt that the alleged sexual act, the subject of each charge, occurred. 5 The trial took place in April 2024, almost 20 years after the first alleged sexual incident. 6 As to sentence, pursuant to s 26 of the Sentencing Act 2017 (SA), the trial Judge sentenced the appellant to seven years and six months’ imprisonment with a non-parole period of six years’ imprisonment. 7 The appellant now appeals against his convictions and sentence. 8 Under the amended notice of appeal against conviction,1 the appellant complains that: • The trial Judge erred in refusing an application for a separate trial of the first count relating to ML from the other counts relating to CQ resulting in a miscarriage of justice (Ground 1). • The trial Judge erred by not examining or discharging a juror when, after the jury retired, a message was conveyed to the judge that a juror 1 Ground 2 was abandoned by the appellant. -- 5 of 21 -- [2026] SASCA 22 The Court 2 could not bring an impartial mind to her deliberations; and this was productive of a miscarriage of justice (Ground 3). 9 As to the appeal against sentence, the appellant complains that the sentence was manifestly excessive. The evidence at trial 10 The prosecution case consisted of evidence from the two complainants, as well as the mother of ML, and the investigating officer through whom the appellant’s record of interview was tendered and played. Count 1 – ML 11 ML gave evidence that on one occasion when she was around 13 years old, she had a sleepover at the appellant’s house. This was first time she had stayed overnight at the appellant’s house, and she did so as her cousin was visiting from interstate and she wanted to spend some time with her. She could not remember whether anyone else stayed at the house that evening. 12 That night, the appellant, ML, and her cousin watched movies. ML’s cousin went to bed first and slept in one of the bedrooms that were used by the appellant’s daughters. The appellant suggested that ML sleep in his bed (and he would sleep elsewhere). She agreed to do so as she did not want to share a single bed with her cousin. ML woke to the appellant climbing into bed behind her. He lay behind her and pulled her closer. He then ran his hand from just above her knee, up her leg and slid his hand onto her inner thigh towards her groin (Count 1). The appellant said, “I won’t hurt you.” 13 ML pushed the appellant’s hand away and rolled out of the bed. She ran to the toilet and locked herself inside where she remained for the remainder of the night. 14 ML said that she first disclosed the alleged offending to her mother about one year later, around Christmas time. However, ML said that she did not tell her mother any details about the alleged touching. She explained that she was prompted to tell her mother about the offending, as she ‘flipped out’ and started crying when she observed the appellant’s car at her grandmother’s house for a Christmas family function. ML’s conversation with her mother was led as evidence of an ‘initial complaint’.2 15 The complainant’s mother confirmed in her evidence that there was one occasion, when ML was around 12 or 13 years old, that ML slept over at the appellant’s house. She also gave evidence that she had a conversation with her daughter around Christmas time when ML said that she did not want to go to a 2 Section 34M, Criminal Law Consolidation Act, 1935 (SA). -- 6 of 21 -- [2026] SASCA 22 The Court 3 family function because the appellant would be there. ML told her that he had “touched, rubbed or whatever, her thigh.” 16 However, in cross-examination, ML’s mother said that the relevant Christmas family function was about 10 years after the alleged offending (when ML was in her early 20’s). 17 As to any risk of collusion or contamination between the two complainants’ accounts, ML gave evidence of a conversation she had with CQ in, or around, 2020, at her aunt’s house. ML said she told CQ that the appellant “touched me sexually, harassed and that”, and on one occasion when she had stayed at his house, the appellant “had touched my leg and [I told her] the words that he used”. ML said that in response, CQ told her of: “…several incidents between the two of them and she proceeded to tell me about some of those incidents. I don’t recall exactly all of them but there were multiple times and that things had happened to her that she told me about, one of which was an incident involving…she was also sleeping at the time and had awoken to him being in bed next to her and then he said something to her…. He had fingered her is what she had said to me.” 18 ML could not recall the exact words CQ used. 19 ML denied in cross-examination that this conversation with CQ had any impact on her recollection of her account of the appellant allegedly touching her. Counts 2, 3 and 4 – CQ 20 CQ gave evidence that on, or around, 31 October 2009, when she was nine years old, she stayed overnight at the appellant’s house, as it was Halloween and she wanted to spend time trick or treating with the appellant’s son. This was not the first time she had stayed overnight at the appellant’s house but on previous occasions, she had slept in a bedroom with bunkbeds or on the couch. 21 The complainant said that at around 6:30pm, on Halloween night, she, the appellant, and his son sat in the lounge room and went through all the treats she had collected earlier that evening. She also remembered the appellant’s son telling the appellant that he was going to leave the house at 9:30pm to go to a Halloween party. 22 CQ said that the appellant’s son told her that she could sleep in his bed that evening, which she did. Later that night, she woke to the appellant lying behind her in the bed and penetrating her vagina with his fingers (Count 2). CQ said that she initially froze, but after about three to five minutes she began to move as if she had just woken up. She said that the appellant got up and left the room. After the appellant left, CQ cried and then went back to sleep. 23 CQ said that she was woken a second time by the appellant. On this occasion, she was lying on her stomach with the appellant straddling her, rubbing her neck and shoulders with his hands. He told her to “just relax” and that it was “going to -- 7 of 21 -- [2026] SASCA 22 The Court 4 be okay.” He continued to do this for approximately five minutes. CQ said to him, “Why, please, please stop.” He again told her to relax. He then got up and left the room. 24 CQ said that she fell asleep again. She was then woken for a third time by the appellant. She was lying in the foetal position on her side, and the appellant was lying behind her and penetrating her vagina with his fingers (Count 3). She asked him to stop and asked him why he was doing this. He pulled away and slowly got out of bed. He then left the room. She said that she cried herself to sleep. 25 CQ woke up again and found the appellant in the bed, behind her and pressed up against her body. The appellant was kissing the back of her neck and breathing heavily (Count 4). CQ yelled at the appellant to get out and to leave her alone. The appellant got out of bed and left the room. CQ then pushed a dresser across the closed door to block it. She slept the rest of the night on the floor by the door. 26 CQ said that some years later, she had a text message conversation with ML over Messenger about the appellant. CQ said that she told ML that the appellant had “crept into bed with [her]” but did not go into the detail of what had happened. She said that ML confirmed that something had happened with the appellant but “basically told me that she wanted to forget about it and that she wanted to move on in her life”. CQ denied the conversation had any impact on what she said the appellant had done to her. 27 In cross-examination, CQ said that her conversation with ML occurred in, or around, 2019, and approximately two years before she spoke to the police. CQ agreed that she had been diagnosed with various psychiatric disorders, including schizophrenia, and that she had used illicit drugs including methamphetamine since the age of 14 years. When it was put to CQ that she had fabricated allegations because she was angry with her grandfather as he would not give her money, she denied this suggestion. 28 CQ reported the allegations to police in, or around, September 2021. 29 On 10 December 2021, the appellant participated in a record of interview with police and denied the offending. 30 The appellant was arrested and charged in January 2023. The appellant’s record of interview 31 During the record of interview, the appellant acknowledged that there was an occasion when ML stayed the night at his house when his daughter was also staying with him. He said they all were watching television in his room while they were in bed together, and that both girls slept in his bed that evening. He said that he may have put his arm around ML while she was asleep, but he denied there was anything sexual about this touching. -- 8 of 21 -- [2026] SASCA 22 The Court 5 32 In relation to CQ, the appellant said that CQ stayed overnight at his house on a number of occasions. He said that she often massaged him and that he would massage her. He said this usually occurred in the lounge room, but on some occasions in his bedroom whilst they watched television. He denied CQ’s allegations of sexual touching. The defence case 33 The appellant did not give evidence nor call any evidence at trial. 34 In relation to ML’s evidence, defence counsel emphasised the inconsistencies between her evidence and her mother’s evidence, particularly in relation to the timing and content of the initial complaint. In addition, defence counsel submitted that ML may have been mistaken about the circumstances of the alleged touching, and the prosecution had not proved that the touching was committed in circumstances of indecency. 35 With respect to CQ’s evidence, defence counsel, in cross-examination, put to CQ that she had a possible motive to fabricate the allegations because she was angry with the appellant when he refused to give her money to fund her drug use (which CQ denied). It was defence counsel’s submission that CQ was not a credible nor reliable witness and the jury could not be satisfied beyond reasonable doubt of the alleged offending. 36 As to improbability reasoning, defence counsel submitted that the prosecution had not excluded that the complainants had colluded or innocently contaminated each other’s account, and in those circumstances, the evidence of one complainant on the charges relating to the other complainant had no probative force. The course of proceedings 37 Prior to the commencement of the trial, the Director of Public Prosecutions (SA) (‘the Director’) filed a notice pursuant to 34P(4) of the Evidence Act 1929 (SA) (‘Evidence Act’), indicating a reliance upon evidence of the appellant's commission of all the charged offences against both complainants to demonstrate that the appellant had a sexual interest in female children and a specific propensity to act on that sexual interest. 38 However, at the outset of the trial, the prosecutor indicated that the Director no longer sought to rely on the evidence of all counts as propensity evidence. Rather, the prosecution contended that the complainants’ evidence was cross-admissible for (non-propensity) improbability reasoning. 39 Defence counsel applied for a separate trial of the first count (relating to ML) from the other counts (relating to CQ) on the basis that the similarities in the complainants’ accounts did not meet the threshold for cross-admissibility under s 34P(2)(a) of the Evidence Act. -- 9 of 21 -- [2026] SASCA 22 The Court 6 40 Section 34P of the Evidence Act relevantly provides: 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. (3) In the determination of the question in subsection 2(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. … 41 The trial Judge declined to sever the counts, finding that the evidence of the complainants was cross-admissible for the purpose of improbability reasoning. In reaching this conclusion, his Honour emphasised the following similarities between the complainants’ accounts. 1. Neither complainant referred to any prior touching or grooming behaviour leading up to the alleged offences, which may have alleviated the risk of either child disclosing the offending to an adult. 2. Both complainants alleged that the offending occurred during a sleepover at the appellant’s home. 3. Both complainants alleged that the appellant got into bed with them while they were asleep (rather than offending from a standing position next to the bed). 4. Both complainants alleged that the appellant attempted to verbally reassure them when he was met with some resistance. -- 10 of 21 -- [2026] SASCA 22 The Court 7 5. Both complainants alleged that the appellant touched them from behind while lying in bed with them. 6. Neither complainant suggested that the appellant threatened them when they did in fact resist him. 42 The trial Judge acknowledged there were differences between the complainants’ accounts, particularly that the offending against CQ was more invasive and persistent than the offending against ML. However, his Honour considered that the differences between their accounts did not materially detract from the probative force of the evidence. 43 During his summing up, the trial Judge directed the jury as to the use they could make of any similarities between the evidence of the complainants (if they accepted their evidence and found there were similarities). His Honour said: Now the prosecution says it is most unlikely that two complainants would give such similar accounts unless those accounts were truthful and accurate. In other words, the prosecution says it is most unlikely that two witnesses would independently have made the same similar wrong or false allegations against [the appellant]. Now this is a permissible way for you to use that evidence, and if you accept the evidence, you may use it in that way. 44 The jury were also instructed that they must be satisfied beyond reasonable doubt that the similarities were not as a result of collusion or contamination. 45 The trial Judge then outlined for the jury the similarities in the complainants’ accounts, and defence counsel’s submissions in respect of those purported similarities in the following terms: Now, the similarities that you may consider – and it is a matter for you to determine whether you agree it is a similarity or it is not a similarity – but the similarities you may consider are as follows: Each alleges it was [the appellant] who sexually abused them. Both allege that the alleged offending occurred in circumstances in which [the appellant] used a sleepover to facilitate the offending. Both allege [the appellant] came into the bedroom whilst they were asleep. Both allege he got into the bed with them rather than offending from a standing position next to the bed. Both allege he attempted to verbally reassure them as he touched them. Both allege that he approached them from behind when in the bed with them. Both allege [the appellant] began sexually abusing them while they were asleep. And neither suggested that [the appellant] had threatened them when they did eventually resist. Lastly, each alleges that the offending occurred without any forewarning or testing of their attitude to a sexual advance. Each therefore, describes [the appellant] acting in a manner which may be said to have given rise to a greater risk that the complainant would make a complaint to an adult or parent when the opportunity arose. … On the prosecution case, as I have said, two witnesses reporting that the same person sexually interfered with them in such similar circumstances is a coincidence that is so unlikely that the prosecution ask you to consider that there is no reasonable explanation other than that the events happened as they have been alleged. So it will be for you to -- 11 of 21 -- [2026] SASCA 22 The Court 8 determine the significance of those similarities and whether they are relevant to an assessment of the witness. Now, from the defence perspective there are obviously also differences in their accounts. [CQ] alleges multiple incidents occurred. The offending described by [CQ] is of a more invasive nature. [ML] describes [her cousin] being home and, therefore it may be said that the offending against [ML] was far more risky than the alleged offending described by [CQ], because [her cousin] may have walked in. [CQ] also describes [the appellant] leaving the room and then coming back in on a number of different occasions which is different to the account given by [ML] so these differences are also matters that you will need to take into account. You will need to consider whether the dissimilarities in their accounts undermine the significance of any similarities of which you are satisfied. … …I stress that the defence case is that any similarities are explainable on the basis of collusion or contamination, but, alternatively, even if the prosecution has excluded collusion and contamination beyond reasonable doubt, then from the defence perspective you must still consider how significant those similarities are. From the defence perspective, it would be suggested that they are not so significant that you would reason in the way that the prosecution has invited you to do so. 46 Finally, the jury were directed as to the impermissible use of the evidence, which included orthodox directions not to engage in propensity reasoning. 47 The appellant does not challenge the adequacy of those directions. Rather, the appellant complains that the evidence was not cross-admissible for improbability reasoning and the Judge erred when declining to order separate trials; and this error was productive of a miscarriage of justice. Ground 1 – Cross-admissibility and separate trials 48 The joinder or separation of charges is governed by s 102 of the Criminal Procedure Act 1921 (SA) (‘the CPA’). Relevantly, this section provides: 102—Joinder and separation of charges (1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character. … (5) A court may direct that— (a) charges contained in a single information be dealt with in separate proceedings; or (b) charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information). -- 12 of 21 -- [2026] SASCA 22 The Court 9 (6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply: (a) Subject to paragraph (b), those counts are to be tried together; (b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim. … 49 In the present case, it was common ground at trial (and on appeal) that the charges were properly joined. As the appellant was charged with multiple sexual offences against two complainants, the power to order separate trials under s 102(6) of the CPA was enlivened only if the evidence relating to one count (and a particular complainant) was not admissible in relation to the other counts (and a different complainant). 50 Where the prosecution relies upon similarities between the complainants’ accounts for improbability reasoning, the use of the evidence does not engage propensity reasoning. Thus, the question of cross-admissibility fell to be determined pursuant to s 34P(2)(a) of the Evidence Act. 51 Where evidence is admitted for improbability reasoning, the probative force of the evidence lies in its capacity to negate the possibility that the complainants independently concocted, fabricated, imagined or were otherwise mistaken as to their accounts. The determinative question is whether, as a matter of human experience, the similarities between the complainants’ accounts are such that it is improbable that each complainant, for reasons peculiar to him or her, independently concocted, imagined or were otherwise mistaken about the offending alleged. 52 As Kourakis CJ explained in R v C, CA:3 The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. … The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that 3 R v C, CA [2013] SASCFC 137 at [57], [61] (Kourakis CJ). -- 13 of 21 -- [2026] SASCA 22 The Court 10 evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies… 53 Ultimately, the task for this Court is to form an evaluative judgment as to the probative value of the similarities of the complainants’ accounts, and whether it outweighs any prejudicial effect it may have had on the appellant.4 54 When evaluating the similarity of account as between complainants, and the extent to which those similarities bear upon the improbability of concoction or innocent contamination or mistake, the starting point will often be the inherent unlikelihood that more than one child, known or related to an adult, would happen to fabricate or imagine that they had been sexually abused by the same offender. From there, other similarities in the complainants’ accounts may give rise to the improbability of each complainant having independently fabricated or imagined their allegations. 55 As this Court explained in McRoberts v The King:5 …The strength of the evidence may lie in the ‘unusual features’ or ‘underlying unity’ or ‘system’ or ‘pattern’ established by the evidence. However, it is not necessary to establish a ‘striking similarity’ between the accounts or a unique modus operandi for the evidence to meet the threshold for admissibility. What is required is that the similarities in the complainants’ accounts raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated or imagined their allegations. 56 In the present case, we are satisfied that the similarities in the complainants’ accounts could render improbable the hypothesis that the complainants had independently concocted, imagined or have been otherwise mistaken about the allegations; and the probative value of the evidence outweighed its prejudicial effect. Those similarities include that in respect of each complainant: the offending occurred during a sleepover at the appellant’s home; the appellant came into the bedroom where the complainant was sleeping and began sexually touching her while she was asleep; the appellant got into bed with the complainant, and while in bed with her, commenced sexually touching her from behind; the appellant attempted to verbally reassure the complainant while touching her; and the appellant did not attempt to threaten the complainant when she did eventually resist his touching. 57 In addition, both complainants said that the alleged sexual incident occurred “out of the blue” and without there being any lead up of other uncharged sexual acts or grooming behaviour. 4 R v C, CA [2013] SASCFC 137 at [61] (Kourakis CJ). 5 McRoberts v The King [2024] SASCA 92 at [39] (Kourakis CJ, Bleby and David JJA). -- 14 of 21 -- [2026] SASCA 22 The Court 11 58 It is appropriate to observe that these last two ‘similarities’ had a negative aspect to them, in the sense that they relate to the absence of certain features from the complainants’ allegations (being the absence of grooming or threats). Whilst caution is necessary in relying upon similar omissions from complainants’ allegations, they may nevertheless have some significance where they involve the omission of features commonly found in cases of child sexual abuse. 59 In concluding that the evidence is cross-admissible for improbability reasoning, we have not overlooked the appellant’s submissions as to the dissimilarities between the complainants’ accounts, including that the appellant’s alleged offending against CQ was qualitatively more persistent and invasive. However, it must be borne in mind that according to ML, she left the bedroom after the alleged touching and locked herself in the bathroom without returning for the remainder of the night. 60 We have also considered the appellant’s submission that many of the features of the complainants' accounts relied upon by the prosecution as relevant similarities are unremarkable and common to many defendants charged with sexual offences. There is some force in this submission. However, while the matter is finely balanced, we consider that the similarities in the complainants’ accounts, outlined above, particularly as to the fact that the appellant commenced sexually touching each child while she was asleep in his house and under his familial care, transcended generic allegations common to many allegations of child sexual abuse. 61 We are satisfied that the similarities between the complainants’ accounts raise, as a matter of common sense and experience, the improbability of each complainant having independently fabricated or imagined or otherwise being mistaken about their allegations. 62 While not expressly argued on appeal, we have also considered the issue of whether the risk of collusion or contamination between the complainants was productive of a miscarriage of justice. Section 34S of the Evidence Act provides that evidence is not to be excluded only on the basis it may be the result of collusion or concoction. However, there may be occasions where evidence adduced during the trial raises the risk of collusion or contamination between complainants which defeats the probative force of the evidence and is productive of a miscarriage of justice. This was not such a case. It was open to the jury to exclude, as a reasonable possibility, the risk of collusion or contamination between the complainants. Both complainants gave evidence that their single conversation about their respective allegations of sexual touching by the appellant did not affect their account. 63 For those reasons, we consider the evidence was cross-admissible and there was no error by the trial Judge when declining to order separate trials nor did it result in a miscarriage of justice. 64 We grant permission to appeal but dismiss this ground of appeal. -- 15 of 21 -- [2026] SASCA 22 The Court 12 Ground 3 – Apprehension of bias by a juror 65 Ground 3 complains that a miscarriage of justice has been occasioned by reason of the trial Judge’s failure to discharge the jury. His Honour received a note from the jury about one hour after they retired to deliberate. Although the note is no longer available, the report of his Honour, dated 15 August 2025, indicated that the note was to the effect that: One of the jurors has indicated/disclosed that he/she/they was/were a social worker and one juror is concerned/believes that juror is not being impartial. The juror does not think his/her/their impartiality is compromised. 66 The trial Judge’s recollection was that the word ‘one’ was underlined. 67 Defence counsel made an application for the discharge of the juror but did not request that the juror be examined, conceding this would inevitably result in the juror indicating that they could be impartial, which would not advance the matter. Nor was there a request for the other juror who had raised the issue of bias to be examined. The prosecutor did not advance any submissions or adopt a position on defence counsel’s application to discharge the juror. 68 The trial Judge did not make any further enquiries of the juror and noted that a person’s occupation did not, on its face, give rise to a reasonable apprehension of bias. His Honour also considered that any enquiry may risk the jury’s deliberations being revealed, which would be inappropriate. 69 The Judge declined to discharge the jury. Instead, his Honour brought the jury back into the courtroom and repeated his earlier directions to the effect that while they should apply their common sense and life experiences when evaluating the evidence, they needed to approach their task in an impartial manner. 70 The appellant contends that by virtue of the trial Judge’s decision to not further ‘investigate’ the issue, and to not discharge the juror, there was a miscarriage of justice. 71 In determining whether there has been a miscarriage of justice by reason of juror bias, the test to be applied is whether a fair-minded and informed member of the public might have a reasonable apprehension that a juror or jury has not discharged their task impartially.6 It is appropriate when making such an assessment to take into account any warning or directions given by the trial Judge. 72 In the circumstances of this case, we are not satisfied that a fair-minded and informed member of the public might reasonably apprehend that the juror did not discharge his or her task impartially. As observed by the trial Judge, generally speaking, a person’s occupation does not give rise to a reasonable apprehension of 6 Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 at 53 (Mason CJ and McHugh J), cited in Smith v Western Australia (2014) 250 CLR 473 at [54]-[55] (French CJ, Crennan, Kiefel, Gageler and Keane JJ); HCF v The Queen (2023) 280 CLR 596 at [11]-[14] (Gaegler CJ, Gleeson and Jagot JJ). -- 16 of 21 -- [2026] SASCA 22 The Court 13 bias or impartiality. The juror’s occupation was the only concern raised in the note as the basis for questioning the juror’s impartiality. We consider, in the circumstances of this case, that to be an insufficient basis to form a reasonable apprehension that the juror would not be impartial. 73 It was also clear from the note that the other jurors did not hold similar concerns about the juror’s impartiality. The note emphasised that only one member of the jury held such concerns (by underlining the word one). 74 In addition, the juror positively indicated that he or she did not believe they were not impartial, although it may be accepted that this says little, if anything, about a juror’s unconscious bias or a layperson’s perception of a juror’s unconscious bias. 75 It is also of some significance that the trial Judge repeated his earlier directions to the jury as to the need for impartiality and that it was “always necessary to approach your task without preconceived ideas and in a cold, dispassionate and impartial manner.” 76 Contrary to the appellant’s submissions, we also do not think it would have been appropriate to examine any juror or the jury in relation to the note. That would clearly have given rise to a risk of the jury disclosing their deliberations given that the note was provided to the trial Judge over an hour after the jury retired to consider its verdicts. 77 For those reasons, we are satisfied that there is no basis upon which a fair-minded and informed member of the public would entertain a reasonable apprehension that the juror would not discharge his or her duty impartially. 78 We dismiss this ground of appeal. The appeal against sentence 79 Pursuant to s 26 of the Sentencing Act, the Judge imposed a head sentence of seven years and six months’ imprisonment. As the appellant fell to be sentenced as a serious repeat offender under s 54(1)(b) of the Sentencing Act, a non-parole period of six years was fixed, being four-fifths of the head sentence. 80 The maximum penalty for the offence of indecent assault is eight years’ imprisonment; and for the offence of aggravated indecent assault (at the relevant time), 10 years’ imprisonment. The maximum penalty for the offence of unlawful sexual intercourse is life imprisonment. 81 For the offence of indecent assault committed against ML, the Judge indicated a notional sentence of 20 months’ imprisonment. In relation to the offence of aggravated indecent assault and the two offences of unlawful sexual intercourse committed against CQ, the Judge indicated a notional sentence of imprisonment for five years and 10 months. His Honour indicated that he did not -- 17 of 21 -- [2026] SASCA 22 The Court 14 consider any concurrency was warranted between the sentences in order to impose a proportionate or appropriate sentence. 82 The sentence was backdated to commence from 5 April 2024, when the appellant was taken into custody. 83 Intervention orders were imposed in respect of both victims. 84 The appellant complains that the sentence imposed is manifestly excessive. As part of his complaint, the appellant contends that the Judge erred by failing to apply any concurrency between the notional sentences; that each notional sentence was too high and disproportionate to the circumstances of the offending and the offender; and that the Judge failed to consider the issue of totality when imposing the head sentence. 85 As to the appellant’s personal circumstances, at the time of sentencing, he was 61 years of age. When he was nine years old, he emigrated to Australia from Croatia with his three elder sisters and his parents. 86 After completing Year 12, he joined the army in 1980. In 1984, he married and had five children. The appellant and his wife separated in, or around, 2015. 87 After leaving the army, the appellant was employed in various occupations. Prior to being taken into custody, the appellant worked as a traffic controller and was residing with one of his sons who suffers from a number of mental health issues. The appellant was his son’s primary carer. 88 Although the appellant’s father has passed away, he continues to have the support of his elderly mother. One of the appellant’s sisters is seriously ill with cancer. 89 The appellant has numerous convictions for offences committed between 1984 and 2023, none of which involved sexual offending, but were for driving offences, and offences of assault, trespass and a breach of bail. The sentencing remarks 90 The sentencing remarks were relatively brief. The Judge summarised the offending and the appellant’s personal circumstances. 91 Pursuant to s 26(2a) of the Sentencing Act, the Judge was required to indicate notional sentences for the offence relating to ML, and for the offences relating to CQ, as they involved different victims and were committed on different occasions. 92 As to concurrency, the Judge indicated that he considered that some concurrency between the sentences imposed for the offending against CQ was appropriate as the offences all occurred on the same evening. However, as between the offences relating to ML and CQ, the Judge observed that the offending involved quite separate incursions into criminal activity. As such, the Judge -- 18 of 21 -- [2026] SASCA 22 The Court 15 indicated he considered it appropriate that the two notional sentences be served cumulatively. 93 The Judge then imposed the sentence outlined earlier, having explicit regard to the requirement that “the final sentence must be proportionate to [the appellant’s] personal circumstances then and now and the nature of [the appellant’s] offending. It must also reflect the different purposes of sentencing.” Manifest excess 94 The general principles applicable to a complaint of manifest excess are well established, not in dispute and need not be repeated. The determinative question is whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.7 95 As to the contention that the starting point for each sentence was too high resulting in a sentence that was manifestly excessive, the appellant relies on R v Lian (‘Lian’)8 and submits that Lian is an example of a case where the offending was more egregious yet the sentence was lower than the sentence imposed in the present case. 96 In Lian, the Director of Public Prosecutions (‘the Director’) appealed against a sentence of one year and 18 days’ imprisonment, with a non-parole period of five months, imposed on the respondent following his plea of guilty to the offence of maintaining an unlawful sexual relationship with a child. The unlawful sexual relationship persisted from 1 July 2019 until 10 September 2020. It comprised about five or six occasions of penile-vaginal sexual intercourse. The victim of the offence was aged 14 years when the unlawful relationship commenced and was 15 years of age when it came to an end. The respondent turned 24 during the relationship. The victim became pregnant as a result of the offending. 97 The respondent had no criminal history. He had fled from war torn Myanmar and emigrated to Australia (via India) on a humanitarian visa when he was aged 22 years. He was experiencing considerable hardship in prison and was isolated due to his language difficulties and cultural differences from other prisoners. 98 This Court held that the sentence was manifestly inadequate, granted the Director permission to appeal and set aside the sentence. The respondent was re-sentenced to imprisonment for five years with a non-parole period of two years and six months. 99 It is difficult to conceive how the appellant’s reliance on Lian advances his complaint on appeal. The offending in Lian was undoubtedly serious but in the 7 House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). 8 R v Lian (2023) 144 SASR 303. -- 19 of 21 -- [2026] SASCA 22 The Court 16 present case, the offending had other equally serious features, including the fact that it was committed against two young children (one of whom was only nine years old at the time) and involved a gross breach of familial trust. Further, it is immediately evident that the respondent in Lian was a young man, with no prior convictions and some personal circumstances which excited some sympathy and leniency. He had entered a guilty plea and demonstrated some remorse for his offending. There was some scope to place less emphasis on principles of personal deterrence in Lian by reason of his personal circumstances. Those factors are not present in this case. 100 The appellant also contends that the sentence was manifestly excessive as a result of the Judge’s failure to impose any concurrency between the sentences imposed in relation to both victims. Contrary to that contention, we consider that there was a sound basis for the Judge’s indication that he would have imposed wholly cumulative sentences. The offending against ML and CQ occurred on different occasions, five years apart, and was obviously committed against different victims. They were plainly separate incursions into crime. Further, the Judge explicitly indicated that he considered it appropriate that there be some concurrency in respect of all the offences against CQ. There was no error in the Judge’s approach to concurrency. 101 As to the submission that the Judge failed to take into account the principle of totality, we disagree. As set out earlier, the Judge explicitly referred to the notion of totality when he observed that the final sentence imposed must be proportionate to the appellant’s personal circumstances and the nature of the offending. 102 Ultimately, the question for determination under this ground of appeal is whether the sentence imposed pursuant to s 26 is outside of the permissible range for the offender and the offences, and unreasonable or plainly unjust. 103 There were several features to the appellant’s offending which rendered it objectively serious and called for a strongly denunciatory sentence. The appellant’s conduct constituted a gross breach of a position of familial trust. He abused his position as a grandfather and uncle to the complainants to commit the offending on occasions when they were left in his care for his own sexual gratification. 104 The complainants were also both young females at the time of the offending, with CQ aged only nine years old. The offending occurred in frightening circumstances with both complainants waking during the night to find the appellant in bed with them. 105 It may be accepted that the offending against each complainant involved an isolated occasion. However, in relation to CQ, the offending was characterised by a degree of persistence throughout the evening. This underscored CQ’s vulnerability and the seriousness of the offending. In relation to ML, the appellant -- 20 of 21 -- [2026] SASCA 22 The Court 17 only desisted due to ML running out of the bedroom and locking herself in the bathroom for the rest of the evening. 106 While neither complainant provided a victim impact statement, the likely adverse effect and psychological harm of such sexual offending on young children is well-documented.9 107 As to the appellant’s personal circumstances, while he has no prior convictions for sexual offending, he did not fall to be sentenced as a first offender. Moreover, the appellant has not acknowledged nor accepted any responsibility for his offending. Nor has he shown any remorse or insight into his offending. This undermines the appellant’s prospects of rehabilitation, requiring greater weight to be placed on the sentencing objectives of personal deterrence and the protection of the safety of the community. 108 Given the objectively serious nature of the offending which called for a strongly denunciatory sentence, and after having regard to the appellant’s personal circumstances, we do not consider the sentence imposed was unreasonable or plainly unjust. The sentence needed to meet the sentencing objectives of personal deterrence and the protection of the safety of the community. In those circumstances, the sentence was not manifestly excessive. 109 We grant permission but dismiss the appeal against sentence. Orders 7. As to the appeal against conviction, we grant permission to appeal on Grounds 1 and 3 but dismiss the appeal. 8. As to the appeal against sentence, we grant permission but dismiss the appeal. 9 R v McIntyre (2020) 138 SASR 17 at [58] Doyle JA referring to R v D (1997) 69 SASR 413 and R v MJJ; R v CJN (2013) 117 SASR 81. -- 21 of 21 --