CYNTHIA MARION JEAN FRAHN v THE KING [2026] SASCA 27

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE BARNETT) DCCRM-24-021404 Applicant: CYNTHIA MARION JEAN FRAHN Counsel: MR R WILLIAMS SC WITH MS K WAITE - Solicitor: WEBSTERS LAWYERS Respondent: THE KING Counsel: MS J LITSTER WITH MS N SLATER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 24/12/2025 File No/s: SCCRM-25-011166; SCCRM-25-036408 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. FRAHN v THE KING [2026] SASCA 27 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Justice Kimber) 26 March 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE Applications for permission to appeal against conviction and sentence. On 27 February 2025, a jury convicted the applicant of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and unlawful sexual intercourse, contrary to s 49(3) of the CLCA. Unlawful sexual intercourse was laid as an alternative to a charge of rape in respect of which the jury acquitted the applicant. The prosecution case was that the applicant had kissed the complainant on the face and lips and performed fellatio on him without his consent. The prosecution led evidence of several other uncharged acts by the applicant against the complainant to provide context for the alleged offending. The applicant was sentenced to a period of imprisonment of four years, with a non-parole period of two years and six months. -- 1 of 35 -- On the appeal against conviction, the applicant raised the following issues: • whether the judge committed ‘the prosecutor’s fallacy’ in summing up on DNA evidence (Ground 1); • whether the admission of forensic evidence relating to sampling from the complainant’s swag constituted an error of law or occasioned a miscarriage of justice (Ground 2); • whether the judge’s directions failed to correct adequately an invitation by the prosecutor to engage in impermissible reasoning with respect to forensic evidence relating to sampling from the complainant’s swag (Ground 3); • whether the admission into evidence of text messages and a voice call of the applicant, on the basis they constituted implied admissions, occasioned a miscarriage of justice (Ground 4); • whether the use that the prosecution sought to make of the evidence of the telephone communications caused a miscarriage of justice which the directions did not cure (Ground 5); and • whether the judge’s directions were erroneous at law or occasioned a miscarriage of justice in limiting the jury’s use of any rejection by them of the complainant’s evidence regarding uncharged acts (Ground 6). Held (by the Court) granting permission to appeal against conviction on Grounds 2, 3 and 6 but dismissing the appeal: 1. To the extent the Summing Up could be said to have strayed, at times, into language suggestive of the prosecutor’s fallacy, it is not arguable that it caused a miscarriage of justice when the judge’s directions are read in the whole context of the Summing Up, and together. Defence counsel made a forensic decision not to raise the possibility that the DNA that returned probability weightings in favour of being the applicant’s was not, in fact, the applicant’s. 2. The forensic evidence relating to sampling from the complainant’s swag were pieces of circumstantial evidence in a case that relied on both direct evidence and other pieces of circumstantial evidence. It was for the jury to determine the weight to be attributed to that evidence in the entire evidential context. 3. The judge’s directions with respect to the prosecutor’s invitation to engage in impermissible reasoning with respect to sampling from the complainant’s swag were directory in nature and clear in their terms. 4. The judge gave specific directions that set out what was open to be inferred from the applicant’s statements contained in the telephone communications and what was not. The further direction by the judge – namely, that the question of weight the jury attributed to the admissions and denials they found to have been proved was a matter for them – did not undermine her specific directions. 5. The direction to the effect that if the jury did not find a particular uncharged act or discreditable conduct was proved, they were to put it to one side, would not, in all the circumstances, have left the jury with the impression that, if they did not accept an uncharged act had occurred, that would not feed into their assessment of the complainant’s reliability and credibility. On the appeal against sentence, the applicant complained that the sentence imposed by the sentencing judge deprived the applicant of the full benefit of her acquittal on the charge of rape. Held (by the Court) refusing permission to appeal against sentence: 1. The verdict was consistent with the jury accepting the complainant’s evidence beyond reasonable doubt, including to his absence of consent, but doubting the applicant’s mens rea -- 2 of 35 -- (relevantly, reckless indifference) for rape. The sentencing judge made it clear that she was not sentencing the complainant on a basis that she had found a mental element that would support a conviction of rape. Criminal Law Consolidation Act 1935 (SA) ss 47, 49(3), 56; Criminal Procedure Act 2009 (Vic) s 295(3); Evidence Act 1995 (NSW) s 137; Evidence Act 1929 (SA) ss 29B, 34P(2)(a), 34P(3), 34R; Evidence Act 2008 (Vic) s 137, referred to. R v Hillier (2007) 228 CLR 618; R v Ali [2015] NSWCCA 72; R v Shamouil (2006) 66 NSWLR 228, applied. DPP (Victoria) v Wise [2016] VSCA 173, distinguished. R v Doheny and Adams [1997] 1 Cr App R 369; R v Marticanaj [2010] SASCFC 82; R v Garner; R v Webb [2021] SASCA 68; R v Fleming; R v Maher (2017) 129 SASR 27; Hughes v The Queen (2017) 263 CLR 338; R v Novakovich [2016] SASC 132; R v Spencer [2019] SASCFC 70, discussed. Hillier v R (2008) 163 ACTR 60; R v Karger (2002) 83 SASR 135; R v Keir (2002) 127 A Crim R 198; R v Joyce (2002) 173 FLR 322; R v Juric (2002) 4 VR 411; R v GZ [2015] ACTSC 229; Western Australia v Piccioni [2025] WADC 69; R v Christie [1914] AC 545; House v The King (1936) 55 CLR 499; Murdoch v The Queen (2007) 167 A Crim R 329; Hillier v The Queen [2005] ACTCA 48; BRS v The Queen (1997) 191 CLR 275; KRM v The Queen (2001) 206 CLR 221; Perara-Cathcart v The Queen (2017) 260 CLR 595; JGS v The Queen [2020] SASCFC 48; Adamson (a pseudonym) v The King [2024] SASCA 91; Kane (a pseudonym) v The King [2024] SASCA 70; R v Nieterink (1999) 76 SASR 56; R v Markuleski (2001) 52 NSWLR 82; R v Storey (1978) 140 CLR 354; Garrett v The Queen (1977) 139 CLR 437; R v Darby (1982) 148 CLR 668; R v Isaacs (1997) 41 NSWLR 374; R v De Simoni (1981) 147 CLR 383; Cheung v The Queen (2001) 209 CLR 1; Chiro v The Queen (2017) 260 CLR 425, considered. -- 3 of 35 -- -- 4 of 35 -- FRAHN v THE KING [2026] SASCA 27 Court of Appeal – Criminal: Bleby and Stanley JJA and Kimber AJA 1 THE COURT: On 27 February 2025, a jury convicted the applicant of indecent assault (Count 1 on the information), contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and unlawful sexual intercourse (Count 3), contrary to s 49(3) of the CLCA. Count 3 was laid as an alternative to a charge of rape (Count 2) in respect of which the jury acquitted the applicant. 2 On 13 August 2025, a judge sentenced the applicant to four years’ imprisonment with a non-parole period of two years and six months. She backdated the sentence to 27 February 2025, being the date the applicant’s bail was revoked following the verdict. 3 The applicant has applied for permission to appeal against both the conviction and the sentence. 4 The issues arising on the appeal against conviction are, broadly: • whether the judge committed ‘the prosecutor’s fallacy’ in summing up on DNA evidence (Ground 1); • whether the admission of forensic evidence relating to sampling from the complainant’s swag constituted an error of law or occasioned a miscarriage of justice (Ground 2); • whether the judge’s directions failed to correct adequately an invitation by the prosecutor to engage in impermissible reasoning with respect to forensic evidence relating to sampling from the complainant’s swag (Ground 3); • whether the admission into evidence of text messages and a voice call of the applicant, on the basis they constituted implied admissions, occasioned a miscarriage of justice (Ground 4); • whether the use that the prosecution sought to make of the evidence of the telephone communications caused a miscarriage of justice which the directions did not cure (Ground 5); and • whether the judge’s directions were erroneous at law or occasioned a miscarriage of justice in limiting the jury’s use of any rejection by them of the complainant’s evidence regarding uncharged acts (Ground 6). 5 The issue arising on the appeal against sentence is whether the sentence imposed deprived the applicant of the full benefit of her acquittal on the charge of rape, such as to constitute a process error warranting the Court’s intervention. -- 5 of 35 -- [2026] SASCA 27 The Court 2 6 The respondent has cross-appealed against sentence, contending that the sentence was manifestly inadequate. The respondent only presses the cross appeal in the event that the applicant is granted permission to appeal against sentence. Background The prosecution case 7 The prosecution case was that the offending took place during the night of 9 June 2023. The complainant attended a gathering hosted by the applicant’s son at their property in Monarto. The applicant was 51 years old. The complainant was 16. 8 The complainant had attended an earlier gathering at this address, on 15 April 2023. On that occasion, the applicant greeted the complainant and the other boys in attendance with a kiss on the cheek. She gave the complainant an additional kiss on the lips, which caused him to become distressed. The complainant left the party and walked to another shed where he cried, returning to the party 15–20 minutes later. 9 After this incident, the complainant tried to avoid the applicant as much as he could without jeopardising his friendship with her son. Between 15 April and the gathering on 9 June 2023, the complainant received various Snapchat messages from the applicant. The complainant gave evidence that the messages included a reference to him being ‘irresistible’. 10 The complainant arrived at the gathering on 9 June 2023 at about 5:00pm. Between 6:30 and 7:00pm, the attendees, of whom there were at least seven teenaged boys, went to the shed and started drinking. 11 Over the course of the evening, on the prosecution case, there were a number of incidents of the applicant behaving in an increasingly sexualised manner towards the complainant. As the complainant was walking past the pool table, the applicant deliberately pushed her bottom towards him and rubbed it against his groin. At another point, when the other boys had gone for a walk, the applicant sat next to the complainant on a mattress. She told him that his innocence was what made him so irresistible, that she thought about him while using a vibrator and ‘would fuck him in a heartbeat’. The complainant walked out the door. The applicant moved in front of him to stop him getting out and rubbed her arm on his ‘private area’. The complainant went to the window. The applicant went in front of him again and groped his penis area before trying to kiss him. The complainant objected. He went out to the garage area. He turned around and the applicant grabbed his face and kissed him on the lips using her tongue. 12 These incidents were uncharged. The prosecution relied on them to provide context for the alleged offending. 13 Later in the night, the applicant was drinking with the complainant and the other boys. The complainant became very intoxicated, retired to his swag and -- 6 of 35 -- [2026] SASCA 27 The Court 3 either went to sleep or blacked out. He woke to find the applicant standing over him. He felt the applicant’s face on his, kissing him on the face and lips. This conduct formed the basis of Count 1 (indecent assault). 14 The complainant then became aware that the applicant was performing fellatio on him, without his consent. This formed the basis of Count 2 (rape) and, in the alternative, Count 3 (unlawful sexual intercourse). The complainant objected and the applicant told him to relax and be happy. She told him to hold her hair and heard her giggle. He felt frozen. 15 The applicant took off her shirt and bra and positioned her body back up next to the complainant’s. Once the complainant began to ‘come together again’, he pulled his pants up and lay there, breathing heavily. He thought he was going to have a panic attack. 16 The complainant’s friend, LW, gave evidence that before he went to bed, he was standing near the couch he later slept on. He could see the complainant’s swag. He observed what he thought were female legs in black tights protruding from the complainant’s swag. He said he heard a female voice moaning intermittently. He also heard some faint claps and giggling and whispering. He did not recognise the voice. 17 The complainant left the swag, telling the applicant he needed a glass of water. He found LW, and said, ‘We need to talk’. They went outside to talk. The complainant told LW to keep on walking. He told LW that the applicant had sucked his penis, becoming tearful and distressed. They ended up going back to the shed, where the complainant moved his swag to another room near LW. They eventually went back to sleep. The complainant’s father picked them up the next morning. 18 After the party, the applicant and the complainant engaged in communications via Snapchat. The complainant took screenshots of at least some of the messages, which occurred between 14 June 2023 (five days after the party) and 21 July 2023. Messages on 14 June 2023 included the following: • the complainant wrote, ‘You pushed your self onto me when I was about to black out drunk’. The applicant responded, ‘Wow!! I have no words for that!! That was not the impression I got …’. The complainant asked, ‘What was your impression’. The applicant replied, ‘You wanted it too …’; • the complainant said, ‘You know it wasn’t right I’m 16 years old ffs … Your 54’. The applicant responded, ‘WOW!! … Yeah but you wanted it too …’. The complainant replied, ‘No I didn’t You came into my swag I can’t ever talk about this again without feeling fucken sick to my stomach…’. The applicant replied, ‘Same!! Trust me it won’t happen again, I don’t know what more I can say atm as I’m so shattered…’; -- 7 of 35 -- [2026] SASCA 27 The Court 4 • the applicant and the complainant continued to exchange further messages until the complainant asked her to stop as he was uncomfortable. The applicant said, ‘I think you interpreting what I’m saying incorrectly atm it’s not always in a sexual manner…’; The following exchanges occurred on 20 July 2023: • after the applicant tried to call the complainant, the complainant wrote, ‘You think I want to be your friend after what happened Are you fucken cooked … You took advantage’. The applicant replied, ‘No I disagree … I remember saying, once you say something you can’t take it back & you agreed & I asked r u sure you wanted to know? & you said yes!! & u know where it all unfolded from there … You never said NOm’. 19 In the early hours of 21 July 2023, there were further communications and voice memos, the contents of which the complainant could not recall. The applicant and complainant engaged in a Snapchat call sometime after midnight. Two of the complainant’s friends, LW and JM, were present. JM recorded the call using the video function on his mobile phone. During the call, the following exchanges took place: • the complainant said, ‘then that’s why you came into my swag when I was pissed drunk, and then you fucken took advantage of me … I’m sixteen. I’m fucken sixteen. What do you not understand? … don’t turn it out like you’re not a fucken paedophile …’. The applicant responded, ‘It wasn’t planned mate’ and ‘You wanted it’; • following a disagreement about whether the complainant was ‘black out drunk’, the complainant said, ‘I’m always respectful to my mates’ parents, when they’re not a fucken paedophile, and they don’t take advantage of sixteen-year-old boys’. The applicant responded, ‘I didn’t take advantage of … Sixteen-year-old boy, who wanted it’; • the complainant said, ‘Did you realise I couldn’t give consent? I’m sixteen. Did you hear the words “yes” come out of my mouth?’ The applicant responded, ‘Yep’. 20 The applicant sent the complainant some further messages following the call. At 12:59am, she sent a message that included, ‘… Blame me as much as you want, but the truth is you were into it as much as me. Just saying!!!’ 21 The final message in the Snapchat exchange was from the complainant, saying, ‘So you think the I said yes to you coming into my swag and sucking me while I was drunk’. 22 There was no evidence that the applicant responded to this message or even opened or saw it. -- 8 of 35 -- [2026] SASCA 27 The Court 5 23 The prosecution adduced evidence of samples taken from the complainant’s swag. For the purposes of testing, the inner surface of the swag was split up into two sides and each side was split up into three sections. Luke Volgin from the Biology Section at Forensic Science South Australia gave expert evidence about the samples tested. The samples produced the following results: • Sample 2.01-01 (swab sample of the zippers from side 1 of the swag) produced a mixed DNA profile originating from two individuals. There was extremely strong support for the applicant not being included in the sample, in the order of 110 million times in favour of her exclusion; • Sample 2.01-05 (swab sample of the zippers from side 2 of the swag) produced a mixed DNA profile originating from three individuals. There was strong support for the applicant not being included in the sample, in the order of 330 times in favour of her exclusion; • Sample 2.01-06 (tape lift from side 2, end 1 of the swag) produced a mixed DNA profile originating from four individuals. There was extremely strong support for the applicant being included in the sample, in the order of 100 billion times in favour of her inclusion; • Sample 2.01-07 (tape lift from middle of side 2 of the swag) produced a mixed DNA profile originating from four individuals. There was extremely strong support for the applicant being included in the sample, in the order of 1.5 billion times in favour of her inclusion; • Sample 2.01-09 (cutting from side 1, end 1 of the swag) produced a single-source DNA profile. The likelihood ratio was greater than 100 billion times in favour of the complainant’s inclusion in the sample. This sample was from an ‘amylase positive’ area of the swag; • Sample 2.01-11 (cutting from side 2, end 2 of the swag) produced a single-source DNA profile, with extremely strong support for the hypothesis that the complainant was the source of the DNA. This sample was from an ‘amylase positive’ area of the swag; • Sample 2.01-12 (cutting from middle of side 2 of the swag) produced a mixed DNA profile originating from three individuals. There was very strong support for the applicant’s inclusion in the sample, in the order of 9,600 times in favour of her inclusion. This sample was from an ‘amylase positive’ area of the swag. Mr Volgin explained that given the DNA profiles were mixed profiles, and if it were assumed that saliva was present, he could not confirm which contributor deposited saliva. 24 Mr Volgin also gave evidence about sources of DNA, including saliva and other biological fluids, and its propensity to be deposited through direct contact or secondary or tertiary transfer. Saliva contains a high level of the amylase enzyme; -- 9 of 35 -- [2026] SASCA 27 The Court 6 elevated levels of amylase can be used as a presumptive indicator of the presence of saliva in a DNA sample. The defence case 25 The defence cross-examined the complainant on various topics that aimed to undermine the credibility of his evidence, including occasions said to be demonstrative of the complainant being jealous of the applicant’s son. It adduced evidence of two photographs taken during the night at 10:45pm (Exhibit D10) and 10:52pm (Exhibit D9), respectively. Exhibit D10 depicts both the complainant and another boy kissing the applicant’s cheeks. Exhibit D9 depicts the same people together (not kissing), with the tagline superimposed, ‘#welovemilfs’. The complainant gave evidence that ‘milfs’ means, ‘mothers I’d like to fuck’. He said he did not write the tagline on the photograph. 26 The defence relied on the photographic evidence as providing a possible explanation for the evidence about the probabilities of the applicant’s DNA being in the swag. It also contended that the photographs were inconsistent with the complainant’s account that he was wary of the applicant at the gathering. It contested the complainant’s evidence about not wanting to be around the applicant, feeling awkward around her and not wanting to sit next to her. 27 The complainant admitted that when he was 15, he lied to his friendship group about fathering a baby, which included showing them a photo of the baby. Defence relied on this also to attack his credit as a witness. 28 In relation to the DNA evidence, the defence case was that a secondary or tertiary transfer could explain the presence of the applicant’s DNA on the swag. Defence counsel submitted: So, rather than it being surprising or shocking that [the applicant’s] DNA has been transferred into a swag that’s set up in her shed at the night of her party when her couch has been sat on and her property has been touched, her body has been touched, the science you heard from the prosecution expert, is that the DNA transfer is readily explicable, it’s not surprising. 29 Defence counsel also addressed the presence of amylase, for which there were presumptively positive results as set out earlier. She pointed out that there were two amylase positive areas that contained only the complainant’s DNA. As to the other profile, defence observed that this was: … found in an area of the swag where there were… four contributors of DNA, three contributors to the amylase positive area. You don’t know who the other contributors are. You don’t know who has contributed the greatest amount of DNA to that area either. 30 Defence counsel did not make any submission inviting doubt as to whether the applicant was, in fact, a contributor to the samples where the results showed support for the complainant’s DNA being included in the sample. -- 10 of 35 -- [2026] SASCA 27 The Court 7 The appeal against conviction Whether the judge committed ‘the prosecutor’s fallacy’ in summing up on the DNA evidence (Ground 1) 31 The prosecutor’s fallacy is a syllogistic fallacy identified in the case law as liable to occur when reasoning from evidence of the presence of DNA material, as a piece of circumstantial evidence, to guilt. Its significance is connected to the recognition that juries are likely to attribute significant weight to DNA evidence.1 Judges are required to explain carefully the forensic significance of DNA evidence and associated statistical evidence.2 32 The ‘prosecutor’s fallacy’ takes the form of the following syllogism:3 1. Only one person in a million will have a DNA profile which matches that of the crime stain. 2. The defendant has a DNA profile which matches the crime stain. 3. Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime. 33 This process of reasoning does not account for the fact that despite one person in a million has a DNA profile that matches the sample, it is statistically likely that numerous other people will also have DNA that matches the sample in a country with a population of many millions.4 As Kourakis J explained in R v Marticanaj:5 The prosecutor’s fallacy occurs when the premise on which the standard formulation stands, “if he was the source” is overlooked. The prosecutor’s fallacy equates the possibility of finding another person with the same profile with the possibility that someone else deposited the material, and ultimately with the possibility of innocence. The statistical evidence based on the DNA database shows the likelihood, or more commonly, lack of it, of there being, in addition to the identified possible depositor, another unknown, unrelated person with a matching DNA profile. It does not demonstrate the likelihood that the known person was the source of the DNA; it assumes it. The expected frequency of the identified profile is evidence that the known person is the depositor but many other evidential considerations may also affect the ultimate probability of that fact. Even the slimmest possibility of finding another matching DNA profile will count for little in the face of unimpeachable evidence of alibi. To say that the DNA profile obtained from biological material is X times more likely to match, in the sense of being identical to, the DNA profile of the person who deposited it, than another unknown unrelated male, is in a sense to state the obvious … However, the critical part of the standard formulation is its statement of the relative possibility of the DNA profile, which is shared by the swabbed material and a known person, also matching the DNA profile of another unknown and unrelated person. It is of course physiologically possible that there might be such a match, with another unknown person, because even 1 R v Doheny and Adams [1997] 1 Cr App R 369 at 375 (Phillips LJ); Hillier v R (2008) 163 ACTR 60 at 91, [181] (Madgwick, Weinberg and Dowsett JJ). 2 R v Karger (2002) 83 SASR 135 at 145, [36] (Doyle CJ). 3 R v Doheny and Adams [1997] 1 Cr App R 369 at 372–373 (Phillips LJ). 4 R v Doheny and Adams [1997] 1 Cr App R 369 at 373 (Phillips LJ). 5 [2010] SASCFC 82 at [93]-[94]. -- 11 of 35 -- [2026] SASCA 27 The Court 8 though DNA is, apart from identical twins, unique, two unrelated persons might exhibit the same profile at the locations tested even though their respective DNA sequences will vary at other, probably many other, locations. It is that possibility which is expressed, in the case of Mr B’s profile, to be “one in a billion”. Given the certainty to which I have just referred that the profile of the deposited material will match the profile of the person who deposited it, it can then be said that it is a billion times more likely that the profile of blood deposited by Mr B will match Mr B’s profile than the profile of an unrelated person selected randomly from the Australian community. (Emphasis added.) 34 The emphasised passage is a very different proposition from saying that there is a billion to one probability that the defendant deposited the sample. That fallacious step has the effect of occluding that the probability ratio is only part of the evidence and must be evaluated in light of the totality of the evidence.6 35 The applicant submitted that several paragraphs of the Summing Up, relating to descriptions of the ‘likelihood ratio’ and summaries of various tape lifts and a cutting, adopted the prosecutor’s fallacy, giving rise to a miscarriage of justice. As to the meaning of the ‘likelihood ratio’, the judge said: As part of undertaking the comparison of the samples, specific regions of DNA profile are analysed and from that they can provide a hypothesis of the likelihood that an individual contributed to that DNA. It is referred to as a 'likelihood ratio' and is expressed in two difference [sic] ways. That is, whether or not the person is a source of the DNA, or the person is not the source of the DNA and the source of the DNA must be from an unknown person in the population. So that is the two ways that it is expressed. That is, how likely it is that a person's DNA is present in the profile versus the DNA originating from an unknown person. So that is what that statistical weighting or likelihood ratio relates to. It does not say how much DNA is in there, it just says whether or not it is likely. With respect to the sample 2.01-06 the judge said: So the tape lift from side 2 end 1 had a mixed profile from four contributors, including [the complainant], and one of the other contributors in both of the tape lifts was a hundred billion times more likely to be [the applicant] than someone else. With respect to the sample 2.01-07 the judge said: … you have the same result in relation to item 7 in relation to the middle section, side 2 middle, which, again, has a mixed DNA profile from four contributors, including [the complainant], and a likelihood of 1.5 billion in favour of [the applicant] being a contributor to that profile as well. With respect to the sample 2.01-12 the judge said: [The complainant] is a contributor to that and another of the profiles, the hypothesis being that it is 9,600 times more likely that [the applicant] is the contributor than someone else. So it shows very strong support that she is the contributor. Again, you might not think that 6 R v Keir (2002) 127 A Crim R 198 at 205–206, [31] (Giles JA). -- 12 of 35 -- [2026] SASCA 27 The Court 9 is unlikely - surprising because of her being present in the tape lift as well, which was of that whole area. Finally, the judge said: … the likelihood ratio does not tell you how much DNA is present, it is just that it is present. (Emphases provided by the applicant.) 36 The applicant submitted that each of the emphasised parts of these passages manifested instances of the prosecutor’s fallacy. She accepted that the likelihood ratios, in respect of each of the three samples, did provide strong support for the hypothesis that her DNA was present. However, the statistical weighting, or likelihood ratio in respect of each represented only the probability of seeing the DNA if that hypothesis was true, compared with if the applicant was not a contributor. It did not provide the statistical probability of the hypothesis, that the applicant was a contributor, actually being true. However, the judge’s directions went so far as to say that the effect of the evidence was to identify the probability of the applicant being a contributor. 37 We do not think that this submission can be maintained strongly in respect of all the passages the subject of complaint. Language that might be impugned in that regard is most apparent in the passage about sample 2.01-07. With respect to the other two samples referred to, the addition of the phrase ‘than someone else’ directs, in a fairly shorthand way, attention to the true analysis. The first, longer passage incorporates the correct analysis (‘how likely it is that a person's DNA is present in the profile versus the DNA originating from an unknown person’). We accept that it also carries language that might tend to invoke the prosecutor’s fallacy. 38 In its bare terms, the last passage could be construed as invoking the prosecutor’s fallacy. 39 These directions must be read in the whole context of the Summing Up, and together. The ultimate difficulty for the applicant, however, is that defence counsel at trial did not raise, at any point, the possibility that the DNA that returned probability weightings in favour of being the applicant’s was not, in fact, the applicant’s. Counsel for the applicant on appeal accepted that this was a forensic decision on the part of defence counsel. The defence focused on the possibility of transference in circumstances where the party was at the applicant’s property and there was evidence of the applicant having touched the complainant during the course of the evening. 40 At the hearing of the appeal, counsel for the applicant adopted a more nuanced complaint under this ground. This was to the effect that in circumstances where the admissibility of the DNA evidence was challenged (its admission being the subject of Ground 2 of the appeal), the commission of the prosecutor’s fallacy -- 13 of 35 -- [2026] SASCA 27 The Court 10 in the Summing Up meant that the jury would have been over-awed by the high numbers and jump to the conclusion that the act of fellatio had occurred as alleged. 41 For reasons which we come to below, and which counsel for the applicant went some way towards conceding, this more nuanced complaint is better considered within the context of Ground 3, which concerns the prosecutor’s own alleged deployment of the prosecutor’s fallacy in closing address, and in the specific context of consideration of the evidence of amylase. 42 There was extremely strong support for the applicant being a contributor to the samples 2.01-06 and 2.01-07, compared with the hypothesis that the source was another person. The defence case proceeded on the basis that the applicant was a contributor, and raised no case based on the possibility that she was not. To the extent the Summing Up could be said to have strayed, at times, into language suggestive of the prosecutor’s fallacy, We are not persuaded that it is arguable that this caused a miscarriage of justice. 43 We refuse permission to appeal on Ground 1. The admission of forensic evidence relating to sampling from the complainant’s swag (Ground 2) The invitation by the prosecutor to engage in impermissible reasoning with respect to sampling from the complainant’s swag (Ground 3) 44 It is convenient to consider these grounds together. Ground 2 contains lengthy particulars. It reads, in its entirety, as follows: 2. It was an error of law (or, alternatively, an error which occasioned a miscarriage of justice) to admit the forensic evidence pertaining to sampling of the complainant’s swag (the forensic evidence). 2.1 The complainant’s credibility and reliability were the critical issues in the trial and any independent evidence that might have been viewed as supportive of his account was likely to be given great weight by the jury. 2.2 The forensic evidence had a seductive quality but, when carefully scrutinised and properly understood, was of no probative value as it was incapable of founding an inference supportive of the complainant’s account (as opposed to being equally consistent with the applicant’s innocence). 2.3 The presence of the applicant’s DNA in the swag, even if that could be safely inferred, was equally capable of being explained by innocent transference in the undisputed circumstances. 2.4 The presumptive positive results indicative of the presence of amylase in the complainant’s swag (an enzyme present in saliva but also in other biological materials including faecal matter and semen) (the amylase evidence), viewed in conjunction with the DNA results, was incapable of founding an inference supportive of the complainant’s account because, when carefully scrutinised and properly understood, it indicated that the complainant himself was the -- 14 of 35 -- [2026] SASCA 27 The Court 11 source of the biological material in the area of the swag sampled which reacted positively to the presumptive test. 2.5 There was a real risk that the jury would (and, absent adequate directions, did) misunderstand the effect of the forensic evidence as to both the presumptive positive amylase results and DNA results (in isolation and in combination), giving the evidence far greater weight than it was legitimately capable of bearing. 2.6 The danger of the jury misusing the forensic evidence was illustrated by, and compounded by, the submissions of the prosecutor in the closing address. 45 Particular 2.6 illustrates the link between this ground, which is primarily concerned with admissibility but spills into a complaint about directions, with Ground 3, which asserts prejudice arising from the prosecutor’s address regarding evidence of amylase in the swag. Ground 3 reads as follows: 3. The use the prosecution sought to make of the forensic evidence occasioned a miscarriage of justice which was not cured by directions. 3.1 While the prosecutor’s submissions were the subject of comment in the Summing Up (reflecting the danger of misuse as recognised by the Judge) the purported directions did not eliminate the danger because, while suggesting the weight of the evidence was limited, her Honour permitted the jury to disagree and disregard her comments; both implicitly – because they would have been understood as ‘comments about aspects of the evidence or the facts’ and not ‘directions … about the law’ (SU 1 [3-5]) – and explicitly (SU 42 [9]; SU 43 [1]). 3.2 There is a considerable risk that the jury disagreed and disregarded the Judge’s comments and instead preferred the prosecutor’s view that the evidence was strongly supportive of the applicant’s saliva being in the swag and therefore fellatio having likely occurred (SU 44 – SU 45 [1]). 46 The foundation of the applicant’s objection to the admissibility of the samples lay in the proposition that the possibility of secondary transfer of DNA, coupled with the ‘CSI effect’ may give rise to a risk of unfair prejudice that outweighs any slight probative value of the evidence. The applicant extended this proposition to where the DNA evidence is to be considered in conjunction with evidence indicating the possible presence of saliva, in a case alleging fellatio. 47 The applicant called in aid the decision of the Victorian Court of Appeal in DPP (Victoria) v Wise (‘Wise’). 7 In that case, the respondent was charged with rape on the basis of having performed fellatio on the complainant while the complainant was asleep after a party. The evidence included samples taken from tape lifts of the complainant’s underwear. That sample contained DNA from three contributors. As well as containing DNA from the complainant, there was 7 [2016] VSCA 173. -- 15 of 35 -- [2026] SASCA 27 The Court 12 extremely strong support for the respondent being a contributor, and very strong support for the complainant’s girlfriend being a contributor.8 48 A second sample from the underwear contained both saliva and DNA of the complainant. It could not be determined whose saliva it was. The evidence was that the absence of the respondent’s and the girlfriend’s DNA in this sample did not necessarily establish that the saliva was not theirs, as epithelial cells containing DNA can be removed in the course of a tape lift.9 49 There was also evidence supporting the capacity of DNA to be transferred.10 Witnesses gave evidence of a fight earlier on in the day during which the respondent had physically restrained the complainant. 50 The trial judge excluded the DNA evidence, holding that it was necessary to undertake a balancing exercise between the probative value and whether that was outweighed by the danger of unfair prejudice to the respondent:11 This involves a need to assess amongst other things the risk that notwithstanding appropriate warnings the jury may attach greater weight to the evidence than it should receive. I need to assess the risk notwithstanding appropriate jury directions and warnings. 51 The judge concluded that in all the circumstances, there was a real risk that the evidence would be misused in an unfair way, that the jury may misjudge the weight to be given to it or engage in an illegitimate form of reasoning. He concluded that the prejudicial effect outweighed the probative value of the evidence. Section 137 of the Evidence Act 2008 (Vic) (an enactment of the Uniform Evidence Law) provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. The words ‘probative value’ are defined in the dictionary in that Act: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue 52 Section 137 consequently required the judge to exclude the DNA evidence. 53 When the prosecutor subsequently requested him to do so, the judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 (Vic) that the evidence, if ruled inadmissible, ‘would eliminate or substantially weaken the prosecution case’. 8 DPP (Victoria) v Wise [2016] VSCA 173 at [33] (Warren CJ, Weinberg and Priest JJA). 9 DPP (Victoria) v Wise [2016] VSCA 173 at [33] (Warren CJ, Weinberg and Priest JJA). 10 DPP (Victoria) v Wise [2016] VSCA 173 at [33] (Warren CJ, Weinberg and Priest JJA). 11 DPP (Victoria) v Wise [2016] VSCA 173 at [34] (Warren CJ, Weinberg and Priest JJA). -- 16 of 35 -- [2026] SASCA 27 The Court 13 54 The Director sought a review of the refusal to certify and, if that were to be successful, applied for leave to appeal against that interlocutory decision, prior to trial. The Victorian Court of Appeal refused the application for review. 55 The Court’s assessment of the probative value of the DNA evidence was critical to its decision to refuse the application for review. The Court said:12 As we have said, when the DNA evidence is properly evaluated, the presence of the respondent’s DNA in the underpants can establish no more than that [the complainant] had come into contact with the respondent, or with some other person or object that had come into contact with the respondent. It may be that the presence of respondent’s DNA inside the underpants is explicable by transference connected with oral sex, but, at the risk of repetition, in our view to attempt to draw an inference to that effect would be wholly speculative. The presence of [the girlfriend’s] DNA in the mixture means that it would not be open safely to hypothesise other than that the presence of the respondent’s DNA may have been attributable to transference in the course of other activities during the events at LR’s house. Thus, as we have said, the evidence from the first sample has no (or very little) probative value. Moreover, one of the dangers associated with DNA evidence, is what has come to be known as the “CSI effect”. The “CSI effect” is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings. As we have explained, as a matter of pure logic, the DNA evidence has little or no probative value. By virtue of its scientific pedigree, however, a jury will likely regard it as being cloaked in an unwarranted mantle of legitimacy — no matter the directions of a trial judge — and give it weight that it simply does not deserve. The danger of unfair prejudice is thus marked, and any legitimate probative value is, at best, small. With respect to the evidence of the finding of saliva, the trial judge dealt with its admissibility under the same umbrella as the DNA evidence. That is understandable, in circumstances where the prosecution are apparently content to do the same. The prosecution’s assertion that, although it cannot be determined whose saliva it is, it can be assumed that it is the saliva of one of the contributors to the DNA results, reveals the danger of unfair prejudice associated with the evidence. It does not follow as a matter of logic that the absence of DNA in the sample of saliva must mean that the saliva came from one of the individuals whose DNA was found to be present in the other sample. But it is a seductive leap of logic that a jury is likely to make (particularly if the evidence of the finding of saliva is admitted concurrently with that of the DNA). In any event, if the DNA evidence falls to be excluded, there is simply no occasion to admit the evidence of saliva on the basis contemplated by the prosecution. (Emphasis added; footnotes omitted.) 56 There have been other instances of Australian courts excluding DNA evidence where innocent and inculpatory explanations for the DNA’s presence are equally likely.13 By contrast, in R v Ali (‘Ali’),14 the respondent was charged with 12 DPP (Victoria) v Wise [2016] VSCA 173 at [69]-[71] (Warren CJ, Weinberg and Priest JJA). 13 See R v Joyce (2002) 173 FLR 322 at 324–325, [8] (Angel J), quoting R v Juric (2002) 4 VR 411 at 426 (Winneke P, Charles and Chernov JJA); R v GZ [2015] ACTSC 229 (Burns J). See also Western Australia v Piccioni [2025] WADC 69 (Astill DCJ). 14 [2015] NSWCCA 72. -- 17 of 35 -- [2026] SASCA 27 The Court 14 offences concerning an allegation that he digitally penetrated the 7-year-old complainant’s vagina. The complainant’s mother had walked into the room and seen the respondent put his hand between her daughter’s legs, pull her pants to one side and appear to push his fingers into the area of her daughter’s vagina. The complainant was interviewed and gave an account that was consistent with her mother’s evidence. 57 The trial judge excluded DNA evidence indicating two male DNA profiles on the complainant’s underpants, one of which was consistent with the respondent. There was evidence that gave some cause for concern about transference in the course of the chain of custody of the underpants. In addition, the respondent had been physically close to the complainant from time to time during the day before the incident was alleged to have occurred.15 58 The trial judge found that the DNA evidence had relatively slight probative value, given the issues surrounding its retrieval and the lack of continuity, combined with the fact that the respondent and the complainant had been in close contact leading up to the alleged offence. Further, the presence of other male DNA could not be satisfactorily explained. He held that the evidence could not only be unfairly prejudicial but also misleading and confusing. The possibility of contamination and of secondary transfer was real.16 59 That case was also concerned with the application of s 137 of the Uniform Evidence Law, here, s 137 of the Evidence Act 1995 (NSW). The New South Wales Court of Criminal Appeal held that while there were difficulties with the chain of possession and the possibility of contamination, the judge overstated those difficulties.17 It analysed the cases concerned with the proper application of s 137, and in particular R v Shamouil (‘Shamouil’), in which Spigelman CJ said:18 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. … To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen (1990) 171 CLR 207 at 275, this is not a permissible “basis for enlarging the powers of a trial judge at the expense of the traditional jury function”. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137. 15 R v Ali [2015] NSWCCA 72 at [25] (Hoeben CJ at CL). 16 R v Ali [2015] NSWCCA 72 at [26] (Hoeben CJ at CL). 17 R v Ali [2015] NSWCCA 72 at [48] (Hoeben CJ at CL). 18 R v Shamouil (2006) 66 NSWLR 228 at [60], [64]. -- 18 of 35 -- [2026] SASCA 27 The Court 15 60 The Court in Ali ultimately held that s 137 did not bar the admissibility of the DNA certificates prepared by a DNA expert. It was open to the jury, acting reasonably, to use them in assessing whether the respondent committed the offences with which he had been charged:19 The capacity of the certificates to establish that issue, as distinct from the weight likely to be given to them, is substantial. Accordingly, the certificates have significant probative value. 61 This is not an exhaustive survey of the cases. Taken together, they illustrate that an assessment of the probative value of DNA evidence will have regard to all the circumstances. In saying that, different emphases in approach under s 137 are apparent, especially as concerns the capacity of DNA certificates to establish a fact in issue, as opposed to the weight to be accorded to them, having regard to possibilities of transference. The New South Wales Court of Criminal Appeal might be said to have demonstrated a greater reluctance to interfere with the jury’s fact-finding function in this regard than the Victorian Court of Appeal. However, the limits on the probative value of DNA in any given case will depend on the context of all the evidence. 62 Section 137 is the statutory enactment of the common law ‘Christie discretion’.20 This Court noted in R v Garner; R v Webb:21 Whether questions of admissibility (for example the R v Christie [1914] AC 545 discretion or its equivalent under the various Uniform Evidence Acts) involve the exercise of a true discretion or are evaluative questions with a unique answer has been subject of debate in New South Wales and Victoria; see Hughes v The Queen (2017) 263 CLR 338 at [42]; R v Riley [2020] NSWCCA 283; Kadir v The Queen (2020) 267 CLR 109. Whether ss 34P(2)(a) and 34P(3) involve the exercise of a discretion as opposed to an evaluative judgment was not argued in this case but see R v Fleming (2017) 129 SASR 27 at [60]. 63 In R v Fleming; R v Maher,22 the Court observed that an assessment under ss 34P(2)(a) and 34P(3) of the Evidence Act 1929 (SA) (‘Evidence Act’) was not an exercise of a discretion in the House v The King23 sense, but an evaluative assessment of fact and degree.24 Similarly, in Hughes v The Queen,25 the High Court described the assessment of admissibility of tendency evidence as an ‘open-textured, evaluative task’.26 64 This also appropriately describes the task of the Court in the present case in assessing whether the evidence of the samples from the complainant’s swag should have been excluded on the basis that it was more prejudicial than probative. The relevant surrounding circumstances extend to the complainant and another boy 19 R v Ali [2015] NSWCCA 72 at [50] (Hoeben CJ at CL). 20 R v Christie [1914] AC 545. 21 [2021] SASCA 68 at [73], ft 42. 22 (2017) 129 SASR 27. 23 (1936) 55 CLR 499. 24 R v Fleming; R v Maher (2017) 129 SASR 27 at [60] (Peek J). 25 (2017) 263 CLR 338. 26 Hughes v The Queen (2017) 263 CLR 338 at [42] (Kiefel CJ, Bell, Keane and Edelman JJ). -- 19 of 35 -- [2026] SASCA 27 The Court 16 kissing the applicant, the applicant deliberately pushing her bottom towards the complainant and rubbing it against his groin when the complainant was walking past the pool table, and the applicant groping the complainant’s groin and trying to kiss him. 65 There was a clear capacity for DNA transference from the applicant to the complainant’s skin and clothes. Mr Volgin gave evidence that lip to cheek contact, as depicted in Exhibit D10, would result in a greater likelihood of DNA being transferred, given that the biological source would be from saliva. Direct physical contact, with arms wrapped around two individuals as depicted in Exhibit D10, can lead to DNA being deposited on the outer surface of clothing. If the person stayed in their clothes, that might be transferred to their bedding. At a more general level, Mr Volgin’s evidence was that DNA was more likely to be deposited through direct physical contact than through secondary transfer. 66 It is necessary here to revisit the results of the samples. Samples 2.01-06 and 2.01-07 both produced a mixed DNA profile originating from four individuals. Both showed extremely strong support for the applicant’s inclusion in each sample. Sample 2.01-01 showed extremely strong support for the applicant’s exclusion from the sample. Sample 2.01-05 showed strong support for the applicant’s exclusion from the sample. Sample 2.01-09 produced a single source, with extremely strong support for the complainant’s inclusion. Sample 2.01-12 produced a mixed profile from three individuals. There was very strong support for the applicant’s inclusion in the sample. 67 Four samples indicated a presumptive positive test for amylase. The evidence was that saliva and other bodily secretions such as faeces and semen were all sources of amylase. Two of the amylase-positive samples, 2.01-09 and 2.01-11, produced a single-source DNA profile, with extremely strong support for the hypothesis that the complainant was the source of the DNA. 68 Sample 2.01-12 was the only sample from an ‘amylase positive’ area of the swag for which there was support for the applicant being a contributor to the mixed profile (9,600 in favour of inclusion), as opposed to the source being an unknown person. Mr Volgin could not say who of the contributors deposited the saliva, if that is what the source of the amylase was. 69 The applicant submitted that the probative value of the DNA evidence was entirely neutral, commensurate with the evidence in Wise. That is, where there was evidence of support for the applicant being a contributor to the sample, this was equally probative of secondary transfer as it was of the applicant having direct physical contact with the swag. Indeed, the judge directed in terms that reflected this: What you make of the DNA is a matter for you, but you might find that the DNA evidence is consistent with both the prosecution and the defence case, that it does not support one more than the other. -- 20 of 35 -- [2026] SASCA 27 The Court 17 Evidence of the accused’s DNA is consistent with her having been in the swag but it is equally consistent with it having been deposited by a secondary or tertiary transfer. 70 The applicant submitted that once it is accepted that the probative value was, in effect, neutral, the prejudice occasioned by the ‘CSI effect’, as described in Wise, mandated exclusion. She also made a further, specific submission concerning the risk of the CSI effect on the amylase evidence in respect of sample 2.01-12. While there was very strong support for the applicant being one of the three contributors to the mixed profile, there was no evidence as to the source of the amylase. Yet there was an obvious risk that the jury would jump to the conclusion that the applicant was the source of the amylase, given the support for her being a contributor to the DNA profile. Saliva being a source of amylase, the risk was of a prejudicial leap to a conclusion of guilt. That was not least in circumstances where other samples tested presumptively positive for amylase where the evidence only supported the complainant being the sole contributor to the DNA. 71 The applicant therefore invoked the ‘CSI effect’ both in objection to admissibility of the DNA and amylase evidence and in support of her contention that the directions were insufficient to guard against prejudicial reasoning. It is necessary to say a little more about the ‘CSI effect’. 72 The Victorian Court of Appeal in Wise described the CSI effect as ‘the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings’ such as risks cloaking the evidence with a mantle of unwarranted scientific legitimacy.27 That in turn is said to create danger of unfair prejudice when the probative value may be slight. There is an obvious parallel between the present case and Wise, where the allegation was also one of fellatio. The presence of saliva was detected, and it could not be said whose saliva was present. There was evidence of contact between the complainant and the accused prior to the alleged incident and the relevant DNA profile was mixed, with strong support for the accused being a contributor.28 The Court in Wise excluded the DNA evidence and the evidence of saliva.29 73 We accept that DNA evidence carries a risk of prejudice of the kind described in Wise. It is necessary, however, to interrogate the context in which this apprehended risk may arise. Risks of prejudice attach to various kinds of evidence. For example, evidence that is admitted for a permissible use that relies on a particular propensity or disposition of a defendant as circumstantial evidence may be admissible, subject to requirements of careful directions. In South Australia, the admission of such evidence is governed by s 34P of the Evidence Act, which requires that the evidence must have strong probative value having regard to the particular issue or issues at trial. Section 34R then prescribes the directions that must accompany the admission of any such evidence. These sections, and their 27 DPP (Vic) v Wise [2016] VSCA 173 at [70] (Warren CJ, Weinberg and Priest JJA). 28 DPP (Vic) v Wise [2016] VSCA 173 at [69]-[71] (Warren CJ, Weinberg and Priest JJA). 29 DPP (Vic) v Wise [2016] VSCA 173 at [71]-[73] (Warren CJ, Weinberg and Priest JJA). -- 21 of 35 -- [2026] SASCA 27 The Court 18 application in the circumstances of a given case, are the product of long development of both the common law and legislative intervention to reach a fair and practicable treatment of a fraught class of evidence that has the potential to invite prejudicial reasoning.30 74 DNA evidence has been a feature of the forensic landscape for some decades. It was first introduced into forensic scientific procedures in Australia in 1988.31 Since then, the Courts have grappled with issues of reliability in the contexts of risks of transference, as well as the forensic utility of the samples as seized, and the integrity of subsequent storage and transferring processes. Wise and Murdoch v The Queen32 provide examples. 75 In a given case, DNA evidence is a piece of circumstantial evidence. In R v Hillier (‘Hillier’),33 the High Court considered the significance of evidence of DNA of an unknown contributor found on a tape lift from the collar of the pyjamas the deceased was wearing at the time of her death. The Australian Capital Territory Court of Appeal had held that there was a real possibility that another person was responsible for the deceased’s death:34 The evidence of handcuffs, the marks on the bed head, the bruises on her wrists, the DNA from an unknown male on her collar, the footprints in the soot and other evidence consistent with the presence of a third person at the relevant time raises the disquietening possibility that such a person may have been admitted to the house and in some fashion caused her death. 76 The High Court held this reasoning to be erroneous. The plurality explained:35 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances36. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence37. (Footnotes in original.) As to the significance of the DNA evidence, the plurality said:38 30 See, e.g., BRS v The Queen (1997) 191 CLR 275 at 308; KRM v The Queen (2001) 206 CLR 221 at [36]-[38]; Perara-Cathcart v The Queen (2017) 260 CLR 595 at [51]-[56]; JGS v The Queen [2020] SASCFC 48 at [97]; Adamson (a pseudonym) v The King [2024] SASCA 91 at [48]-[57]; Kane (a pseudonym) v The King [2024] SASCA 70 at [65]. 31 R Scott and C Skellern, ‘Medical Issues: DNA evidence in jury trials: The “CSI effect”’, (2010) 18(3) JLM 239 at 254. 32 (2007) 167 A Crim R 329. 33 (2007) 228 CLR 618. 34 Hillier v The Queen [2005] ACTCA 48 at [99] (Higgins CJ and Crispin P). 35 R v Hillier (2007) 228 CLR 618 at [46] (Gummow, Hayne and Crennan JJ). 36 See, eg, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ. 37 Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J. 38 R v Hillier (2007) 228 CLR 618 at [49] (Gummow, Hayne and Crennan JJ). -- 22 of 35 -- [2026] SASCA 27 The Court 19 In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier's innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty. 77 It was significant in that case that the accused had given evidence at trial. The plurality observed that the jury were bound to consider what they made of that evidence. The question was whether it was open to the jury to be persuaded on all the evidence, including the accused’s oral evidence, that he was guilty.39 The DNA evidence of an unknown contributor was one piece of evidence that fell to be considered as part of the evidence as a whole. The Court concluded that the pieces of evidence, including the DNA evidence, that tended to suggest that a third person was present at the relevant time did not mean that it was not open to the jury to conclude that guilt had been proved beyond reasonable doubt. That would only follow if the significance given to those aspects of the evidence was assessed separately from the rest of the evidence, which would be an erroneous approach.40 78 Hillier exemplifies the approach to be taken to DNA evidence, as a piece of circumstantial evidence, within the whole of the evidence. Nevertheless, miscarriages of justice have occurred as a result of uncritical acceptance of the probabilities presented by such evidence as certainties.41 It is important that the jury be directed about the forensic utility and limits of DNA evidence. However, invocation of the abstraction of the ‘CSI effect’ as a potential bar to admissibility should be approached with some caution. In Ali, the Court accepted the submission of the DPP:42 … that his Honour’s finding that the jury would overreact or approach the evidence in an illogical or irrational manner by reason of the fact that the certificates had the backing of science, understated the capacity of the jury to understand evidence which was not particularly complicated. 79 In reaching the conclusion quoted earlier, the Court observed that the difficulties in the chain of possession and possibility of contamination were ‘quite capable of being explained to the jury and understood by them’.43 80 For the reasons already discussed in the context of Ground 1, there was no contest in the present case over chain of possession or the possibility of contamination of the DNA samples. The contention now raised is simply that given the presence of DNA with a high probability of the applicant being a contributor was equally explicable by direct contact (as alleged by the prosecution) or indirect 39 R v Hillier (2007) 228 CLR 618 at [50] (Gummow, Hayne and Crennan JJ). 40 R v Hillier (2007) 228 CLR 618 at [51]-[52] (Gummow, Hayne and Crennan JJ). 41 See, e.g., The Honourable FHR Vincent, Report: Inquiry into the circumstances that led to the conviction of Mr Farah Abdulkadir Jama (Melbourne, Printing and Publishing Services Victoria, May 2010). 42 R v Ali [2015] NSWCCA 72 at [46] (Hoeben CJ at CL). 43 R v Ali [2015] NSWCCA 72 at [48] (Hoeben CJ at CL). -- 23 of 35 -- [2026] SASCA 27 The Court 20 transfer, the prejudice attributable to the ‘CSI effect’ outweighed what was a negligible probative value. 81 Had the DNA evidence been the only evidence linking the applicant to the alleged offending, in the circumstances supporting the possibility of indirect transfer outlined above, the applicant’s submission that the DNA evidence should have been excluded as being more prejudicial than probative may have had more force. However, it was not. There was the evidence of the complainant himself, as well as the evidence of LW about the legs he saw protruding from the swag. There was also the evidence of the subsequent electronic messages sent by the applicant to the complainant. These are the subject of a separate challenge, below. However, for the reasons given below, we would refuse permission to appeal on Grounds 4 and 5. The evidence of the electronic communications can therefore be considered as part of the entire circumstantial case for present purposes. 82 Taking the approach exemplified in Hillier, Ali and Shamouil, in circumstances where the DNA and amylase evidence were pieces of circumstantial evidence in a case that relied on both direct evidence and other pieces of circumstantial evidence, it was for the jury to determine the weight to be given to those pieces of evidence in the entire evidential context. The amenability of DNA to secondary transference was not a difficult concept. Mr Volgin explained it carefully and clearly. The jury were entitled to assess the significance of that possibility in the context of assessing all the evidence. 83 It follows that we reject the contention that the judge erred in admitting the DNA evidence. 84 Having said that, it was also necessary that the jury be given careful directions about the limits of the probative value of that evidence. That is not only in respect of the capacity of DNA to be the subject of secondary and tertiary transfer, as explained in evidence by Mr Volgin, but also regarding the limited forensic significance of the amylase evidence. 85 It is necessary to consider the judge’s directions in the context of remarks made by the prosecutor in closing, which remarks are the subject of complaint in Ground 3. The prosecutor said: … If there is some innocent explanation for an amylase positive cutting to which Mr Volgin found very strong support that [the applicant] contributed her DNA to from the middle of that swag, then it would have to be said that [the applicant] has been the victim of the most unfortunate bad luck … It would be an extremely unfortunate coincidence if there was some innocent explanation for these DNA results which are very consistent with [the complainant’s] given account of what happened in the swag. 86 This submission did not reflect the evidence. It formed one of two bases for an application for a mistrial, which the judge refused. The evidence was that it was reasonably possible that the presence of the applicant’s DNA was caused by secondary or tertiary transfer. Moreover, this statement tended to elide the -- 24 of 35 -- [2026] SASCA 27 The Court 21 evidence that, of the three contributors to the mixed DNA profile produced from sample 2.01-12 that also featured the amylase, it could not be said who contributed the amylase. 87 The judge gave the following direction with respect to Sample 2.01-12: [The prosecutor] then turned to the DNA evidence and said that it supports the complainant’s] evidence. That the results sit comfortably with what he said happened in the swag. That the amylase positive swab in the middle of the swag was consistent with the description of her performing – of his description of her performing fellatio and being without her top on in the swag. She spoke of the chronology of [the complainant] provided in his statement and then the testing of the swag being done later and, in the context, she made a comment that, if there was some innocent explanation for the amylase positive cutting, to which Mr Volgin found very strong support, that [the applicant] would have to be a victim of the most unfortunate bad luck and coincidence if there was an innocent explanation. Ladies and gentlemen, I have just explained to you the DNA evidence of Mr Volgin. It is not a matter or unfortunate bad luck or coincidence. His evidence was clear, that a possible explanation for [the applicant’s] evidence being present in the swag, both in the tape lift and the cutting, was secondary and tertiary transfer in light of the contact that was shown in D9 and D10, and there were other – and other potential contact with the accused’s DNA on items in the accused’s house which might have had an accumulation of DNA on it. He also said that, further, given the amylase positive cutting was a mixed profile, one could not be certain, first, that it was saliva, it could have been faecal matter, but secondly, and importantly, you could not say whose saliva it was of the contributors to the profile. So it is not a question of bad luck or of coincidence. There is a reasonably possible explanation for the presence of the accused’s DNA in the swag which is consistent with her not having been anywhere near the swag and it does not, in those circumstances, involve an acceptance of [the complainant’s] evidence. 88 The applicant submitted that while these remarks showed that the judge disagreed with the prosecutor’s comments, they were not framed as legal directions and did not eliminate the danger of the jury engaging in the reasoning invited by the prosecution. We do not accept that submission. The remarks were directory in nature and clear in their terms. The applicant also drew on the judge’s earlier direction in Summing Up that, ‘what you make of the DNA is a matter for you’. We do not accept that this earlier, perfectly correct statement, somehow undermined the directory impact of the passage set out above. 89 That is not the end of the matter, however. In the course of argument, the applicant developed a submission to the effect that the judge’s directions did not go far enough in putting the evidence of amylase in sample 2.01-12 in its proper context. While the DNA profile was supportive of the applicant having been a contributor, and there was evidence of amylase, the forensic limits of that combination had to be made clear. Specifically, there were also other amylase-positive samples where there was only a single source profile of DNA, with the probability being that this belonged to the complainant. When viewed in -- 25 of 35 -- [2026] SASCA 27 The Court 22 that light, the significance of there being amylase in an area where there was also DNA, with a strong probability that the applicant was a contributor, was much reduced. 90 Prior to correcting the prosecutor’s submissions in the manner set out above, the judge directed the jury in detail on Mr Volgin’s evidence. When it came to the amylase-positive samples, she directed as follows: Turning over the page, you have the areas that were cuttings, and you will recall that he said the areas the cuttings were taken from were where there was the presumptive test, positive test, for amylase, so that’s where the areas were cut from. If you look at item 9, which is the cutting taken from side 1 end 1, and you can see where that was in photograph P15, that was a single source of DNA, which [the complainant] was the only contributor. Similarly with item 11, which was from side 2 end 2, that was a single source of DNA, of which [the complainant] was the only contributor. Then you have item 12, which was a cutting taken from side 2, the middle portion, where there was an amylase positive area, and that was a mixed profile with three contributors. You might think that is not surprising given that the tape lift from that area showed a mixed profile from four contributors. So you might think it is not surprising that item 12 has a mixed profile from three contributors in that particular area. [The complainant] is a contributor to that and another of the profiles, the hypothesis being that it is 9,600 times more likely that [the applicant] is the contributor than someone else. So it shows very strong support that she is the contributor. Again, you might not think that is unlikely – surprising because of her being present in the tape lift as well, which was of that whole area. That is all I want to say about the table. An important concession that was made by Mr Volgin is that, whilst amylase is present in saliva, the profile being a mixed profile from three contributors in relation to item 12, one of whom was [the complainant], does not say anything about, if you find it is saliva, whose saliva it might be. (Emphasis added.) 91 The emphasised parts of this passage show that the judge identified that other amylase-positive areas coincided with a single contributor (the complainant), that whether the source of the amylase in sample 2.01-12 was saliva was in issue and, if it was saliva, the presence of the mixed profile did not say anything about who was the source. 92 The judge did not, in that last paragraph, direct the jury that when considering the results of sample 2.01-12, they should have regard to the fact that the other amylase-positive areas had single-source DNA profiles. However, on careful consideration, we are satisfied that this was not necessary. Defence counsel had made the point in their closing address. The judge’s directions with respect to this sample were part of a broader direction about the amylase-positive areas. Within that context, the judge pointed out which samples coincided with the complainant being the single contributor. We are satisfied that the judge, in giving this whole -- 26 of 35 -- [2026] SASCA 27 The Court 23 direction, pointed out the relevant aspects of the amylase-positive areas in a way that left the jury sufficiently instructed about the forensic limits of sample 2.01-12. 93 While it is not determinative, we also note that defence did not seek any further direction in respect of the amylase-positive samples. Defence counsel was clearly acutely alive to the issues surrounding this evidence. The attempt to exclude the evidence and the application for a mistrial demonstrate this, as does defence counsel’s own reference to certain single source profiles coming from amylase-positive areas. Having regard to the entire context of the Summing Up on this issue, we do not accept that the directions with respect to the DNA and amylase evidence occasioned a miscarriage of justice. 94 For these reasons, we grant permission to appeal on Grounds 2 and 3 but dismiss these grounds of appeal. The admission and use sought to be made of the telephone communications (Grounds 4 and 5) 95 Grounds 4 and 5 also overlap. They read as follows: 4. It was an error of law (or, alternatively, an error which occasioned a miscarriage of justice) to admit the evidence of the messages and voice call, Exhibits P5 – P7 (the telephone communications). 4.1 The asserted failures of the applicant to positively deny allegations made by the complainant were not capable of amounting to implied admissions to the charged conduct. 4.2 To the extent that the defendant impliedly admitted the truth of aspects of what the complainant asserted, there was no evidence independent of the complainant that the statements made by him were referable to the charged act or acts. 4.3 Statements made by the complainant – particularly those which may not have been received or heard by the applicant – were self-serving and highly prejudicial. 4.4 The danger of the jury misusing the telephone communications evidence was illustrated by, and compounded by, the submissions of the prosecutor in the closing address. 5. The use the prosecution sought to make of the telephone communications occasioned a miscarriage of justice which was not cured by directions. 5.1 While the prosecutor’s submissions were the subject of comment in the Summing Up (reflecting the danger of misuse as recognised by the Judge; SU 35-36) and her Honour used the terms ‘direction’ (SU 35[7]) and ‘limited use’ (SU 36 [2]-SU 37 [4]) there was a real risk that the jury would have understood these directions as comments about the facts, rather than directions ‘about the law’, and so would have considered themselves at liberty to disagree and disregard what should have been directions reinforced with the authority of the Judge’s office. -- 27 of 35 -- [2026] SASCA 27 The Court 24 96 The applicant accepted that some of the responses she gave in the communications set out earlier were admissible as potential implied admissions to something consensual having occurred in the swag. However, she submitted that the messages were incomplete (it is apparent on the face of the screenshots that some messages had been deleted or had disappeared), the assertions were mostly vague, and the implied admissions were equivocal at best. There was only one specific reference to fellatio in the messaging. This was in the final message sent by the complainant. There was no evidence that the applicant had even read that message. The applicant complained that this message was inadmissible as a prior consistent statement and liable to bolster the credit of the complainant. 97 The applicant further submitted that those messages constituting an implied admission that something happened were not probative of the most serious charge of fellatio. These were the messages, ‘you wanted it’, ‘you sort of did [give consent]’, and ‘you were encouraging it’. To the extent that other responses to messages from the complainant impliedly admitted that something had occurred in the swag, there was no evidence that the statements made by the complainant, to which the applicant responded, were referable to the charged acts. 98 The generality or vagueness of the complainant’s admissions did not operate as a bar to their admission. In R v Novakovich, Stanley J explained:44 An admission can take a variety of forms. An admission against interest may include a statement which includes an admission but does not constitute a confession of guilt. It does not have to relate to a fact directly in issue. It need not necessarily relate to an element of the crime. It must be relevant in the sense of going towards proof of a fact in issue but it does not have to prove directly the commission of the offence. It can reveal esoteric knowledge, it can reveal a consciousness of guilt. It might just be a statement adverse to the interest of the accused. Further, an admission may be constituted by nothing more than conduct or silence or some change in demeanour by an accused that evidences the accused’s acceptance of a proposition put to him or her as the truth. (Footnotes omitted.) As to the capacity of silence to constitute an admission, in R v Spencer, the Court said:45 An allegation or assertion is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, having heard the statement and having had the opportunity to explain or deny it, and the occasion being one upon which he or she might reasonably be expected to make some observation, explanation or denial, has, by his or her silence or conduct, substantially admitted the truth of the whole or some part of the allegation made. It is not that what is said to an accused can of itself be evidence against an accused, but his response may be if his silence or conduct may amount to an admission of the truth of what was said. 44 R v Novakovich [2016] SASC 132 at [146]. 45 R v Spencer [2019] SASCFC 70 at [35] (Nicholson, Lovell and Hinton JJ). -- 28 of 35 -- [2026] SASCA 27 The Court 25 99 In the present matter, it was accepted on the appeal that the applicant’s non-responsiveness to various assertions of the complainant, and in particular the last message, were not open to be construed as admissions. 100 The judge gave lengthy directions about the messages and the Snapchat recording. She noted that the complainant had conceded that the messages did not capture a full record of all the exchanges and did not constitute a continuous record. She explained to the jury that there was no evidence that the applicant had even read the last message in which the complainant had made the specific allegation: Also, the last message said to have been sent on 21 July – this is on page 22 – is not responded to. There is no response. This is the only time there is a specific allegation of the charged conduct put to the accused or said to be put to the accused. So, you see, it is not responded to. In fact, there is no evidence that it was received or opened by the accused. It is not a matter that you could infer in the circumstances that she had regard to. 101 As to the applicant’s non-responsiveness to allegations in the messages, the judge said: I direct you that, in the context of these messages, you cannot use her silence to infer that, because she does not deny a sexual act occurred, or protest that a sexual act did not happen, that she has, by her silence, or failure to protest, impliedly admitted to a sexual act occurring in the swag, and specifically that she has admitted to any of the charged conduct. That is not something that you can infer from these messages. There is no evidence as to what [the complainant] was referring to specifically and even if there was, the state of the messages and the recordings are so vague on that topic that it could not be inferred that she understood that he was referring to any specific sexual acts occurring in the swag. The limited use you can make of the messages and the recording is to consider whether she is admitting to some consensual activity occurring in the swag and their respective levels of intoxication. In that context, you will need to carefully consider the messages and the recording as to what [the applicant] understood by what was being said to her, remembering that those messages and the recording are an incomplete record. I remind you again that you must be wary about making assumptions and not fill in the gaps. 102 The judge gave detailed directions about denials the applicant made in her responses on certain matters and explained that the jury were entitled to consider and give weight to those denials. She then said: I remind you that if you are satisfied that [the applicant] has admitted some activity occurring in the swag, that is the limited use that you can make of the evidence and it is a circumstantial piece of evidence that can be used with all of the other matters that you find proved. 103 The judge further explained that only what the applicant said was evidence, insofar as the jury found the statements to be admissions. She explained that the complainant’s statements might provide some context to help explain what the applicant meant. She emphasised that nothing that the complainant said was -- 29 of 35 -- [2026] SASCA 27 The Court 26 evidence of the truth of anything written or said, and these could not be used to add to his evidence in court. She specifically directed the jury against using those messages to bolster the complainant’s evidence: You must also take into account this direction: that what [the complainant] said to [the applicant] is not evidence. Only [the applicant’s] statements can be used as evidence, if you find them to be admissions, though [the complainant’s] statements may provide some context or to help explain what [the applicant] meant. 104 The applicant complained that notwithstanding what were detailed directions, there remained an irremediable danger of the jury misusing the telephone communications. She complained specifically that the admission of the complainant’s message that the applicant did not answer caused a miscarriage of justice. Counsel at trial had initially objected to the admissibility of that message but withdrew the objection. On the appeal, the complaint was that the directions did not cure the prejudice that necessarily accompanied the admission of the statement. 105 The applicant accepted that the directions were fair and detailed but submitted that they were then undermined by a further direction that: … the question of weight you attach to any admission you find proved or, indeed, any denial that you find proved is completely a matter for you. 106 The applicant submitted that in circumstances where the judge gave this direction, the jury would have understood the directions set out earlier were not directions on the law, but on the facts, and that they were free to depart from them. 107 We reject these complaints. The directions set out above were perfectly clear as to their binding nature. The judge had set out what was open to be inferred from the applicant’s statements and what was not. She explained clearly that the applicant’s silence in the face of various assertions could not be used as admissions. She quite properly directed the jury that the question of weight they then attributed to the admissions and denials they found to have been made, was a matter for them. This in no way undermined the specific directions. 108 Ground 5 is an extension of Ground 4 in that it complains that these directions did not cure the mischief of the prosecutor’s submissions about the telecommunications. The prosecutor submitted to the jury that the applicant’s silence or failure to protest in response to allegations made by the complainant in the messages and the recording constituted implied admissions to sexual activity having occurred in the swag. The prosecutor also suggested that an apology the applicant gave might have related to the alleged act of fellatio. These submissions formed the second basis of the mistrial application. 109 The judge refused the mistrial application, taking the view that she would be able to fashion directions that would ensure that the jury would not misuse the evidence. She then gave the directions set out earlier (commencing, ‘I direct you that, in the context of these messages…’) as an express correction of the -- 30 of 35 -- [2026] SASCA 27 The Court 27 prosecutor’s submission that the applicant’s silence or failure to protest could be inferred to be admissions. 110 The applicant submitted, again, that the jury were liable to construe these directions as comments about the facts, rather than as directions about the law. Again, there is no warrant for that conclusion. The directions were clear. They were carefully aimed at correcting the prosecutor’s incorrect submission. 111 We refuse permission to appeal on grounds 4 and 5 of the appeal. The directions about uncharged acts (Ground 6) 112 Ground 6 reads: 6. The Learned Trial Judge erred as a matter of law (or, alternatively, occasioned a miscarriage of justice) in her directions … which limited the use of a rejection of the complainant’s evidence of uncharged acts. 6.1 A failure to find uncharged acts proved could legitimately have impacted adversely on the complainant’s credibility and/or reliability. 6.2 It was an error to direct that if any such allegation was not proved ‘then you will just simply put it to one side’ … 113 The judge gave a lengthy direction about the use that the jury could, and could not, make of the evidence of the uncharged acts, if they found the applicant had engaged in those acts. These acts were the subject of the complainant’s evidence of what occurred between the applicant and him from 15 April 2023 through to 9 June 2023, before the complainant got into his swag. 114 The applicant accepted that the judge directed the jury in ‘generally’ appropriate terms in accordance with s 34R of the Evidence Act and R v Nieterink.46 Her complaint related to the direction that preceded these directions, after explaining that it was for the jury to decide whether any of the uncharged acts had occurred: If you do not find that particular uncharged act or discreditable conduct was proved, then you will just simply put it to one side. 115 The applicant submitted that this direction had the effect of precluding the jury from bringing an adverse credibility assessment against the complainant, in respect of uncharged acts, to bear on the question of whether or not his evidence could be accepted beyond reasonable doubt on the charged counts. 116 The applicant essentially submitted that because the judge had ventured into what was to be done in respect of any evidence of uncharged acts that the jury did not accept, it became necessary for her to give a direction ‘similar to’ a Markuleski47 direction. That is a direction referring to potential impact upon the 46 (1999) 76 SASR 56. 47 R v Markuleski (2001) 52 NSWLR 82. -- 31 of 35 -- [2026] SASCA 27 The Court 28 assessment of the credibility of the complainant where the jury does not accept the complainant’s evidence with respect to a particular alleged act or count. 117 The applicant accepted that the facts and circumstances of the case did not themselves warrant a Markuleski direction. She accepted that such a direction will not generally be appropriate. Indeed, s 29B of the Evidence Act prohibits directions of this kind where the jury doubts the truthfulness or reliability of evidence in relation to a charge. As a general proposition, juries can be expected to understand that doubts surrounding credibility or reliability of the complainant on one count may impact another.48 However the effect of the direction in this case, in the applicant’s submission, was to put the evidence of any uncharged act ‘to one side’ (if they rejected it) and thereby remove that understanding from the jury’s consideration altogether. 118 The judge gave this direction in the context of introducing a detailed direction in compliance with s 34R. That is to say, the context of the direction indicates that this was the judge’s way of introducing the permissible and impermissible uses of the evidence of uncharged acts if the jury accepted that any of them had occurred. 119 The context of this direction also includes what came before it. Immediately before giving the direction, the judge said: You have heard about those other uncharged acts or discreditable conduct in order to have a complete picture of the allegations made by the complainant. So in terms of those uncharged acts or discreditable conduct, it is for you to decide whether or not you are satisfied that any of them or all of them occurred, that is the first step. As I said, there has been a challenge to aspects of those pieces of evidence and a suggestion that they did not occur, or that he was confused about others making sexualised comments to [the applicant] or, indeed, that they were inconsistent with what he said he was feeling – his feelings towards [the applicant]. (Emphasis added.) 120 The judge here introduced the contest over whether the uncharged acts occurred by referring to the attacks on the complainant’s credibility and reliability. 121 While the complaint was framed in terms of the need to give a Markuleski-style direction, it is perhaps better understood from a different perspective. As the complainant accepted, this case did not, absent the impugned direction, warrant such a direction. In our view, the question is not whether a Markuleski-style direction was required for remedial purposes, but more simply, whether the impugned direction itself, being to ‘put it to one side’, was productive of a miscarriage of justice. 122 Having regard to the full context in which it was given, we read the impugned direction simply as marking out the scope of the required s 34R directions, by indicating when those directions would not require further consideration (that is, 48 R v Moores (2017) 128 SASR 340 at 374, [184] (Blue J); R v B, P [2006] SASC 229 at [6] (Doyle CJ). -- 32 of 35 -- [2026] SASCA 27 The Court 29 if the jury did not think an uncharged act was proved). The preceding paragraph acknowledged that the complainant’s reliability and credibility with respect to his evidence of the uncharged acts was in issue. In all the circumstances, we do not think that the impugned direction would have left the jury with the impression that if they did not accept an uncharged act had occurred, that would not feed into their assessment of the complainant’s reliability and credibility. 123 We grant permission to appeal on Ground 6 but dismiss the ground. Conclusion on the appeal against conviction 124 We refuse permission to appeal on Grounds 1, 4 and 5. We grant permission to appeal on Grounds 2, 3 and 6. We dismiss the appeal against conviction. The appeal against sentence 125 As indicated earlier, the judge sentenced the applicant to four years’ imprisonment with a non-parole period of two years and six months. She backdated the commencement of the sentence to 27 February 2025, when the applicant was taken into custody. The sole remaining ground of appeal against sentence complains that in sentencing the applicant for the alternative offence of unlawful sexual intercourse, the judge denied her the full benefit of her acquittal of the primary charge of rape. 126 The essence of the applicant’s complaint was distilled in the following written submission: The verdict necessarily means that the jury were not satisfied, at the very least, that the [applicant] knew or was reckless as to the suggested lack of consent. In those circumstances, the issue of consent, or indeed lack thereof, does not form part of the sentencing process. The effect of sentencing the [applicant] on a basis that included a lack of consent is inconsistent with the verdict of the jury acquitting the [applicant] of rape. 127 The complainant’s evidence was that he was ‘black out drunk’. The applicant submitted that there was no room for any middle ground: the jury must either have accepted or rejected this. The verdict indicated they must have rejected it, and so, the applicant submitted, there was no scope for the judge to factor in any lack of consent on the part of the complainant when it came to sentencing. 128 Defence counsel at sentencing submitted: [The applicant] was found not guilty of rape… your Honour should only, in my submission, consider the age of the complainant with regards the consideration to consent. So the jury has not accepted that sleep or intoxication have vitiated consent in any way, and the other factors relating to consent that are unrelated to age – it’s difficult to see how that could be incorporated into the sentence given the verdict on the alternate charge of rape that deals with consent. In response, the prosecutor submitted: -- 33 of 35 -- [2026] SASCA 27 The Court 30 I just say that the offence of unlawful sexual intercourse can of course occur in a range of circumstances, and those circumstances are, in my submission, relevant to the sentence that your Honour imposes. So the degree of willingness on the victim’s part is something that’s relevant, and that doesn’t at all offend the principle in De Simoni. It doesn’t mean that your Honour is engaging in questions of consent and [the applicant’s] knowledge of lack of consent; all it is, is taking into account the circumstances as they were, which of course do attach to the moral culpability that your Honour needs to consider in sentencing. 129 The judge determined this contest in the following passage in the Sentencing Remarks, which was the focus of the applicant’s complaint on the appeal: Your counsel submitted the only aggravating feature was the age of the complainant and that I could not find that the victim was not consenting. I accept the prosecution’s submission that the offending is not an example where there was a willingness or acquiescence on the part of the victim for you to kiss him or fellate him, that is, that being heavily intoxicated and having gone to bed, he woke up or became aware what was happening and when he became aware of what was happening, he lay there frozen. The judge went on: As I said, you have been found not guilty of the more serious offence of rape and you are not to be sentenced on the basis you had a state of mind consistent with that offence. 130 The applicant invoked numerous authorities on the obligation to give full recognition to an acquittal.49 It is not necessary to traverse these authorities. The effect of the applicant’s submission was that the judge in effect infringed the principle in R v De Simoni50 by indicating that there was a lack of consent to the sexual intercourse. This was the distinguishing element between unlawful sexual intercourse and rape; the applicant was consequently, in her submission, punished for an offence she had not committed. 131 Provided that facts found by a sentencing judge are not inconsistent with the verdict, the judge may make their own assessment of the offender’s degree of culpability.51 132 The premise of the applicant’s complaint, distilled in the submission set out earlier, elides the difference between the question of the complainant’s consent on the one hand, and that of whether the applicant was recklessly indifferent to the complainant’s consent,52 on the other. Here, the verdict was consistent with the jury accepting the complainant’s evidence beyond reasonable doubt, including as to his absence of consent, but doubting the applicant’s mens rea (relevantly, reckless indifference) for rape. 49 R v Storey (1978) 140 CLR 354 at 397; Garrett v The Queen (1977) 139 CLR 437 at 445; R v Darby (1982) 148 CLR 668 at 682; R v Isaacs (1997) 41 NSWLR 374. 50 (1981) 147 CLR 383 at 389. 51 Cheung v The Queen (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWLR 374 at 377-378; cf Chiro v The Queen (2017) 260 CLR 425 at [70]-[71]. 52 CLCA, s 47. -- 34 of 35 -- [2026] SASCA 27 The Court 31 133 It was consistent with the verdict for the judge to find that the complainant was not willing and did not acquiesce in the applicant’s acts. The judge also made it clear that she was not sentencing the complainant on a basis that she had a mental element that would support a conviction of rape. We reject the applicant’s contention that she was sentenced on a premise that did not give full credit for her acquittal of the charge of rape. Conclusion on the appeal against sentence 134 We refuse permission to appeal against sentence. The Director sought permission to cross-appeal against sentence, on the ground that the sentence was manifestly inadequate. However, counsel for the Director indicated that she only pressed this application in the event that the Court granted the applicant permission to appeal against sentence. In those circumstances, it is not necessary to consider the Director’s application further. Conclusion 135 We make the following orders: 1. Permission to appeal against conviction on Grounds 1, 4 and 5 is refused. 2. Permission to appeal against conviction on Grounds 2, 3 and 6 is granted. 3. The appeal against conviction is dismissed. 4. Permission to appeal against sentence is refused. -- 35 of 35 --