THOMAS (A PSEUDONYM) v THE KING (STATE) [2026] SASCA 26

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-23-044525 Appellant: THOMAS (A PSEUDONYM) Counsel: MS J ABBEY KC WITH MR S MCDONOUGH - Solicitor: RANDLE & TAYLOR Respondent: THE KING (STATE) Counsel: MS T COSTI WITH MS L HURLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 15/09/2025 File No/s: SCCRM-25-013932 B 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. THOMAS (A PSEUDONYM) v THE KING [2026] SASCA 26 Judgment of the Court of Appeal (The Honourable Justice David, the Honourable Justice Stanley and the Honourable Auxiliary Justice Lovell) 26 March 2026 CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTIONS TO JURY JURY - MATTERS RELATING TO JURORS - QUESTIONS AND INQUIRIES BY JUROR CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS This is an application for permission to appeal against conviction. Following a trial by jury, the appellant was convicted of one count of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The appellant raised two grounds of appeal against conviction. The first ground complains of the trial judge’s directions on uncharged conduct, and the second ground complains of the trial judge’s direction in response to a question from the jury. Held, per the Court, dismissing ground 1, but granting permission to appeal and allowing the appeal on ground 2: 1. As to ground 1, the evidence of the uncharged conduct was admitted pursuant to s 34P of the Evidence Act 1929 (SA), which required the trial judge to give a direction to the jury pursuant to s 34R. A sufficient direction must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Having regard to the circumstances of the case -- 1 of 18 -- and the real issues at trial, the trial judge’s directions were sufficient to satisfy s 34R, and there was no risk the jury would treat proof of the uncharged conduct as proof of a particular of the charged conduct. 2. As to ground 2, the central issue before the jury involved resolving the issue of credibility and reliability of the complainant and the accused, who gave conflicting evidence. When the jury asked a question about whether accepting the complainant as honest and reliable amounted to proof beyond reasonable doubt, the trial judge failed to give a Liberato direction explaining that guilt required both acceptance of the complainant’s evidence and rejection of the accused’s evidence beyond reasonable doubt. This created a significant risk the jury misunderstood their task and resulted in a miscarriage of justice, notwithstanding the error having involved a forensic choice or judgment. 3. The conviction is set aside and the matter is remitted to the District Court for retrial. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to. Barnes v The King [2025] SASCA 53; Bates v The King [2023] SASCA 65; Burgoyne v R [2024] SASCA 143; Gilbert v R (2000) 201 CLR 414; HML v The Queen (2008) 235 CLR 334; JGS v The Queen (No. 2) (2022) 141 SASR 288; Johnson v The Queen (2018) 266 CLR 106; Nudd v R (2006) 80 ALJR 614; Rezaei v The King [2024] SASCA 150; R v Dolan (1992) 58 SASR 501; R v Lavery (2013) 116 SASR 242; R v Tran [2017] SASCFC 99; R v Vonarx [1999] 3 VR 618, applied. De Silva v R (2019) 268 CLR 57; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Liberato (1985) 159 CLR 507, discussed. Kakule v The King [2025] SASCA 20, considered. -- 2 of 18 -- THOMAS (A PSEUDONYM) v THE KING [2026] SASCA 26 Court of Appeal – Criminal: David and Stanley JJA and Lovell AJA THE COURT: Introduction 1 This is an application for permission to appeal against conviction. The appellant was convicted by a majority jury verdict of one count of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 2 The appellant was the stepfather of the complainant, L. It was the prosecution case that the appellant sexually abused the complainant on regular occasions over a seven-year period between 1 January 1980 and 31 December 1987 (the charged period). She was between the age of six and 16 years old. The sexual abuse constituted regular acts of a similar nature and occurred at four locations. The acts that occurred at Meadows and Prospect Hill in South Australia comprised the conduct the subject of the charge (the charged conduct). The acts alleged to have occurred in Papua New Guinea (PNG) and Cairns within the charged period were led as uncharged conduct relevant to the proof of the occurrence of the charged conduct (the uncharged conduct). 3 The charged conduct ended in late 1987 when the family moved to PNG for a second time. However, it was the prosecution case that the sexual abuse, forming the uncharged conduct, continued until about 1990 when the complainant left the family home in PNG to attend boarding school in Melbourne. 4 The prosecution case was that the sexual abuse was a single, uninterrupted course of conduct. The only reason why conduct was charged or uncharged related to the existence of a jurisdictional nexus of those acts to South Australia. There was no different case, either for the prosecution or defence, on the proof of the charged or uncharged conduct. 5 At his trial the appellant gave evidence as part of his defence denying all allegations. Necessarily, the majority of the jurors must have rejected his denials of having committed the charged conduct as a reasonable possibility. 6 He now applies for permission to appeal his conviction on two grounds. Grounds of appeal 7 The grounds of appeal relate to the trial judge’s directions on the uncharged conduct and the trial judge’s direction in response to a jury question. 8 The questions for the Court to determine on ground 1 are: -- 3 of 18 -- [2026] SASCA 26 The Court 2 (i) In the circumstances of this case, was there a risk the jury would have understood the trial judge’s directions to endorse an approach that they might rely on proof of uncharged conduct as proof of a particular of the charged conduct; and (ii) Whether the trial judge discharged his obligation under s 34R of the Evidence Act 1929 (SA) (Evidence Act) to identify the impermissible uses of the uncharged conduct said to have occurred in PNG or Cairns and, if the answer is in the negative, whether a miscarriage of justice was occasioned by the failure to do so. 9 The second ground of appeal raises the question of whether the trial judge’s response to a question from the jury was, in the circumstances where the answer was in the terms encouraged by senior counsel for the appellant at trial, deficient and, if so, whether a miscarriage of justice occurred. The charged conduct 10 The appellant was charged with a contravention of s 50(1) of the CLCA. The particulars of the charge were that over the charged period, at Meadows, Prospect Hill and other places, when the complainant was between the age of six and 16, the appellant maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts, with or towards her. Notwithstanding the reference to “other places” the trial was conducted on the basis that only Meadows and Prospect Hill were the places where charged conduct was committed. The prosecutor’s opening and an aide memoire given to the jury1 identified Meadows and Prospect Hill only as relevant to the charged conduct. The particulars of the charged conduct alleged the appellant: (i) caused the complainant to kiss his penis on more than one occasion; (ii) caused the complainant to hold his penis on more than one occasion; (iii) touched the complainant on her genital area on more than one occasion; (iv) touched the complainant on her breasts on more than one occasion; (v) used a vibrator on her genital area; and (vi) attempted to put his penis in her vagina. 11 It was alleged the acts of sexual abuse continued in “other places”, namely PNG and, on occasions, in Cairns, where the family went on holiday from time to time. Accordingly, the prosecution case was that while the charged conduct ended in 1987, the sexual abuse comprising the uncharged conduct, continued after that time. 1 AB 30-31. -- 4 of 18 -- [2026] SASCA 26 The Court 3 12 The appellant gave evidence and denied all allegations of sexual abuse between him and the complainant. It was the defence case that nothing sexual ever occurred between them. 13 It is convenient to deal first with Ground 2. The Liberato direction 14 Before turning to an analysis of the issue on ground 2, it is important to restate two basic principles. 15 First, it is fundamental that in any criminal case, the primary focus should always remain squarely on the prosecution evidence. The ultimate question for the jury is: “Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?”.2 16 Secondly, in cases where both the complainant and the accused give evidence on oath, a trial Judge’s summing up must clearly convey to the jury that their verdict should not be based upon the relative persuasiveness of the complainant and the accused but rather should be based upon a consideration of all of the evidence in the case; and that a verdict of guilty requires both the acceptance of the complainant’s evidence, and the rejection of the accused’s evidence, beyond reasonable doubt.3 17 These fundamental principles are recognised in what has become known as a Liberato jury direction4, that is, a direction which is relevant to a trial at which there is conflicting sworn evidence.5 In De Silva v R, Kiefel CJ, Bell, Gageler and Gordon JJ helpfully observed that the Liberato direction should be given in the following terms: 6 … (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? The jury question 18 After deliberating for over two hours, the jury sent a note to the trial Judge requesting assistance. The note stated: 2 R v Lavery (2013) 116 SASR 242 at [3] (Peek J). 3 R v Lavery (2013) 116 SASR 242 at [4] (Peek J). 4 Based on Brennan J’s dissenting opinion in R v Liberato (1985) 159 CLR 507. 5 It has been extended to cases where an accused does not give sworn evidence but participates in a record of interview; see De Silva v R (2019) 268 CLR 57. 6 (2019) 258 CLR 57 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ). -- 5 of 18 -- [2026] SASCA 26 The Court 4 Question Definition of beyond reasonable doubt for example, [the prosecutor] stated that if we find [the complainant] to be an honest [and] reliable witness - that would be proof beyond reasonable doubt - is that your guidance? 19 The question is somewhat Delphic. The trial Judge, in the absence of the jury, read the question to counsel. Both counsel and the trial Judge were unsure what guidance the jury required. After discussion with counsel, the trial Judge directed the jury, as counsel requested, as follows: … what I have to say is not related to anything said by either counsel. A reasonable doubt is simply a doubt that you as reasonable persons are prepared to entertain in the circumstances of this case. 20 The appellant does not suggest that the direction given was incorrect. However, he submits that the direction does not give “guidance” in relation to the issue the jury question raises. The appellant submits that the trial Judge was required in the circumstances to give a Liberato direction and the failure to do so has led to a miscarriage of justice. 21 On appeal, the respondent submitted that the jury question itself did not demonstrate a misapplication or misunderstanding of the trial Judge’s directions on how the jury should have approached the appellant’s evidence. Further, the respondent submitted that the trial Judge’s direction was given in terms the appellant’s counsel specifically requested. In that circumstance, the appellant is bound by the decision of his counsel, and no miscarriage of justice occurred. 22 We accept that as a general rule, our system of criminal justice requires the assumption that a jury will understand, and follow, the directions given by a trial judge.7 That assumption, however, is not immutable. 23 The respondent submitted that we should not speculate about the meaning of the jury question. While we agree that this Court should not speculate that does not mean that we should not attempt to interpret the question on its own terms. Background to the jury question 24 It is necessary to put the jury question in the context of what they had been told by counsel and the trial Judge’s directions. 25 We acknowledge that we have had the time to undertake that task. This luxury was not available to either counsel or the trial Judge. Both counsel and the trial Judge, with the jury waiting, had to consider the matter quickly. 7 Gilbert v R (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). -- 6 of 18 -- [2026] SASCA 26 The Court 5 26 Part of the jury question sets out accurately the prosecution submission made during her jury address. The prosecutor stated that: I remind you of those two important legal principles that I told you about at the beginning of the trial. The first is that the onus of proving the charges rests solely with the prosecution. The accused does not have to prove anything. And the standard of proof that the prosecution must meet for you to return a guilty verdict is beyond reasonable doubt. That is a high standard to meet. But as important as beyond a reasonable doubt is, it's not something that you need to be afraid of. A reasonable doubt is simply a doubt that you as reasonable persons are prepared to entertain. That is all it means. And to put it into the context of this case, if you are satisfied that [the complainant] was an honest and reliable witness on the key issues of this case then that would be proof beyond a reasonable doubt. (Emphasis added). 27 While consideration of the honesty and reliability of the complainant’s evidence was a necessary step when considering whether the appellant was guilty, it is, standing alone, not a sufficient step. That is, the prosecutor’s submission is an incomplete statement of the task the jury were required to undertake. This is not a criticism of the prosecutor’s submission; she was entitled to make that submission. However, in context it is an important aspect of the jury’s question. We note also that the prosecutor told the jury that a “reasonable doubt is simply a doubt that you as reasonable persons are prepared to entertain”. 28 The prosecutor later in her address stated: The main issue for you, in determining whether the charge is proven, is really whether you accept the evidence of [the complainant]. Essentially, the question for you is, whether [the complainant’s] evidence consisted of an account that was truthful and reliable. You need to consider was [the complainant] telling the truth when she described the particular occasions of sexual abuse and the way certain acts occurred repeatedly, in the same or in a similar way. The further question that you need to consider is whether [the complainant’s] account of events was reliable. By reliable I mean was it an honest and unmistaken account of the offending? I suggest, members of the jury, that if you accept the things that [the complainant] says have happened, you can find the accused guilty of the charge of sexual abuse of a child. To put it another way, if you accept [the complainant’s ] account, if you believe her, and you believe she was reliable about what she said in her evidence in relation to the charged conduct, and that if you find there were at least two unlawful sexual acts established by her account against the accused, then you can be satisfied beyond a reasonable doubt of the accused's guilt of the charge against him. (Emphasis added). 29 This is also an incomplete statement of the task the jury needed to undertake before they could find the appellant guilty. 30 The prosecutor, in what was a clear and powerful jury address, spent time analysing the complainant’s evidence and dealt with what she anticipated may be -- 7 of 18 -- [2026] SASCA 26 The Court 6 the accused’s submissions on the issues of the complainant’s credibility and reliability. It was later in her address that the prosecutor addressed the issue of the appellant’s evidence. She stated: Now, before I go on, I remind you that the onus of proving the charges always lies with the prosecution, and that applies to the accused's evidence, which I'm about to come to. Regardless of what you make of the accused's evidence, the onus is still on the prosecution to prove the charge beyond reasonable doubt. It's important that you keep that in mind when considering [the accused’s] evidence. If you reject his evidence, that does not make him automatically guilty. You need to consider the prosecution evidence, which, given the nature of this case, is primarily the evidence of [the complainant], and you need to determine whether that evidence proves the charges beyond reasonable doubt. … But regardless of why his account changed, and regardless of what [the accused’s counsel] might say is the significance or otherwise of this purported argument, what's important here is that [the accused’s] account is chopping and changing. First it's October 2023, then it’s 2022. You might think in those circumstances you can have no faith in the reliability, let alone the honesty, of [the accused]. As I say though, if you reject parts of the accused's evidence that doesn't add to [the complainant’s] credibility. It is always for the prosecution to prove its case. (Emphasis added). 31 The prosecutor was entitled to make these submissions, but they are not a complete summary of the jury’s task. 32 The trial Judge addressed the jury on the burden of proof in unremarkable terms as follows: At all times the accused comes into this court with the presumption of innocence. The law regards him as innocent unless and until his guilt is proved to your satisfaction beyond reasonable doubt. That means the burden of proving the charge of sexual abuse of a child lies completely upon the prosecution. If I tell you something must be proved, or established, or you must be satisfied of something, I mean in each case that thing must be proved, or you must be satisfied beyond reasonable doubt. Those words mean what they say, proof beyond reasonable doubt. That is the highest standard of proof that our law allows. In this case to prove [the accused] guilty of the offence of sexual abuse of a child the prosecution must prove each of the elements or ingredients of that charged offence beyond reasonable doubt. In respect of that prosecution case, nothing short of proof beyond reasonable doubt will do. It is not enough for' the prosecution to show mere suspicion of guilt, or that the accused … is probably guilty. An accused is not to be convicted unless guilt has been proved beyond reasonable doubt. The accused does not have to say, do, or prove anything. (Emphasis added). -- 8 of 18 -- [2026] SASCA 26 The Court 7 33 We note that while the trial Judge directed the jury in terms of what cannot amount to “reasonable doubt”, his Honour did not give the standard direction that “a reasonable doubt is simply a doubt that you, as reasonable persons, are prepared to entertain”. 34 Later, the trial Judge identified the main issue in the following terms: [The complainant] is the crucial witness in this case. As it is the duty of the prosecution to prove the accused is guilty, to do so the prosecution must convince you [the complainant’s] evidence is both true and accurate. it is not for' the defence to show [the complainant] is wrong or is lying. To find the accused guilty you must accept beyond reasonable doubt [the complainant’s] evidence about two or more of the unlawful sexual acts of the type particularised which [the complainant] said had happened. 35 The trial Judge identified the arguments of both counsel on the issue of the credibility and reliability of the complainant. When addressing the issue of the accused’s evidence the trial judge gave a Liberato direction. His Honour stated: [The accused’s] evidence did include repeated and complete denials of the alleged unlawful sexual acts which [the complainant] said had happened. Even if you do not accept that evidence but you consider there is a reasonable possibility it is true then you must acquit. On the other hand, if you reject [the accused’s] evidence about what happened you should put that evidence to one side. The question will still remain: has the prosecution, on the basis of the evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? (Emphasis added). 36 We note that the trial Judge gave this Liberato direction during his summary of the appellant counsel’s closing submissions. That is problematic particularly in light of the jury question. The appellant’s counsel spent some considerable time in his address stressing that the obligation was on the prosecution to prove the charges beyond a reasonable doubt and reminded the jury that the accused had given evidence on oath and that the jury could not reject the accused’s evidence. 37 In these circumstances, the Liberato direction did not obviously have the imprimatur of a legal direction that the jury were required to follow. It is of course not known whether the jury considered the Liberato direction to be a summary of counsel’s address or a direction that they had to follow. 38 The above factors are relevant to consideration of the jury question. That is while the trial Judge did give a Liberato direction, his Honour did so when summarising the appellant counsel’s address. Further, his Honour did not give the jury a direction on the meaning of “reasonable doubt”. These factors weakened the effect of the Liberato direction. 39 Further while the prosecutor had defined correctly the concept of “beyond a reasonable doubt”, the description of the jury’s task was incomplete and expressed in what was a necessary but not a sufficient step. -- 9 of 18 -- [2026] SASCA 26 The Court 8 40 In these circumstances, it is perhaps not surprising that the jury were unclear on the task they were to undertake when assessing all the evidence. At the very least there is a significant risk that the jury were confused about the proper approach. When the jury sought guidance, expressly quoting the prosecutor’s submission, they ought to have been directed that a verdict of guilty required both the acceptance of the complainant’s evidence, and the rejection of the accused’s evidence, beyond reasonable doubt. In the circumstances of the case, this concept required clear and explicit explanation. 41 The trial Judge’s redirection, which was a correct direction on what is meant by “reasonable doubt”, failed to address the substance of the question and give the “guidance” the jury were seeking. Their question concerned the fundamental task they were required to undertake before a verdict of guilty could be returned. The failure to give such a direction amounted to a miscarriage of justice. A forensic choice? 42 The respondent submitted that as the trial Judge answered the jury’s question in the terms suggested by his counsel, the appellant is bound by the forensic decisions made by counsel. That is, the appellant’s counsel did not seek a further Liberato direction and that was a clear forensic choice. 43 The failure to seek a further Liberato direction which is the product of a rational forensic decision may — not must — lead to a conclusion that there has been in the circumstances of this case, no miscarriage of justice. An obvious forensic decision is an obstacle, often a formidable obstacle, standing in the way of a conclusion that there has been a miscarriage of justice. However, it will not always be determinative of whether a miscarriage of justice has occurred. 44 The task for this Court is to consider whether there has been a miscarriage of justice. The test of whether the course taken by counsel is explicable on the basis that it resulted, or could have resulted, in a forensic advantage is an objective one. Where a decision or decisions taken by counsel contribute to a defect or irregularity in the trial, the question of whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration. Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment. As Gleeson CJ observed in Nudd v R,8 it is the fairness of the process that is in question, not the wisdom of counsel.9 45 Examination of the trial transcript demonstrates that both counsel and the trial Judge were confused by the terms of the jury question. Senior Counsel for the appellant was clearly concerned to ensure the trial Judge did not attempt to define 8 (2006) 80 ALJR 614 at 618 (Glesson CJ). 9 See also, Burgoyne v R [2024] SASCA 143 at [63] (Lovell JA, Doyle JA agreeing). -- 10 of 18 -- [2026] SASCA 26 The Court 9 to the jury the concept of reasonable doubt other than in standard terms. The question of a Liberato direction was not mentioned by counsel or the trial Judge. 46 The appellant obtained no forensic advantage by having the jury question addressed by the trial Judge giving the standard direction defining beyond reasonable doubt. The guidance sought by the jury required much more. The jury question suggests that the jury were confused about the task they were to undertake or at the very least there is a significant risk that they were confused. 47 Both counsel and the trial Judge were placed in a difficult position. Quick decisions were required and the question was, to some extent, apt to confuse. Counsel made a choice but on a misunderstanding of what guidance the jury were seeking. 48 The central issue before the jury involved resolving the issue of credibility and reliability of the complainant where the accused had given evidence. The error in responding to the jury question went to the fundamental issue in the trial. We consider that a miscarriage of justice occurred even though the error involved a forensic choice or judgment. 49 Given the main issue at trial was assessing the reliability and credibility of both the complainant and accused the respondent did not suggest that consideration of the proviso was appropriate. 50 We would allow the appeal on Ground 2. Ground 1 – directions on uncharged conduct 51 The evidence of the uncharged conduct was admitted pursuant to s 34P of the Evidence Act. Accordingly, the trial judge was obliged to give a direction to the jury pursuant to s 34R as to how that evidence could and could not be used. 52 While compliance with s 34R is mandatory, what constitutes compliance will depend on the circumstances of the case and the real forensic issues between the parties at trial.10 There is no requirement that the precise text of s 34P is used.11 The adequacy of the direction must be assessed and determined in light of the conduct of the trial, including the cases of, and addresses by, the parties.12 It is important that a summing up is fashioned to give practical guidance to juries on the real issues at trial, rather than loading the jury with warnings and directions that are superfluous to the issues.13 53 The directions to the jury must be sufficient to ensure that they understand the permissible use of the evidence of discreditable conduct and that there is no 10 Perara-Cathcart v The Queen [2017] HCA 9 at [51]-[53], (2017) 260 CLR 595 at 617; JGS v The Queen (No. 2) (2022) 141 SASR 288 at [165]. 11 Perara-Cathcart v The Queen [2017] HCA 9 at [52], (2017) 260 CLR 595 at 617; JGS v The Queen (No. 2) (2022) 141 SASR 288 at [95]. 12 Bates v The King [2023] SASCA 65 at [77]. 13 Rezaei v The King [2024] SASCA 150 at [57]. -- 11 of 18 -- [2026] SASCA 26 The Court 10 occasion for concern that the evidence of discreditable conduct might be used for an impermissible purpose.14 The High Court has held that on a trial of sexual offences alleged to have been committed against a single complainant, the complainant’s evidence of an accused’s other sexual misconduct towards them will commonly not give rise to a risk that the evidence will be used for any purpose, other than its legitimate, contextual use.15 54 The contest at trial was whether the complainant’s account on both the charged and uncharged conduct was credible and reliable beyond reasonable doubt. The appellant’s case was that the complainant’s evidence was fabricated. The real issue was whether the charged conduct occurred as the complainant described. The uncharged conduct did not offer independent or corroborative evidence of the charged conduct. The prosecution case rested on the acceptance of the complainant’s account alone. The defence case was a complete denial that any of the unlawful sexual acts occurred, whether charged or uncharged. As the charged conduct encompassed all of the sexual acts alleged to have occurred in South Australia during the charged period, necessarily the uncharged conduct encompassed all of the sexual acts said to have occurred outside of South Australia. 55 The appellant submits that, in the context of directing the jury on discreditable conduct, the trial judge addressed the uncharged conduct only, and inadequately for the purposes of s 34R. The direction 56 The only directions given by the trial judge referable to the uncharged conduct was:16 You also heard evidence from [the complainant] that [the appellant] had engaged in sexual acts with her during the times they were in PNG and Cairns. If you accept that evidence and you are satisfied those things happened as [the complainant] said they did, you could only use that evidence of what happened in PNG and in Cairns to explain that the alleged charged conduct did not suddenly stop when the family went overseas or interstate and to explain there was no gap in the offending conduct. As [the prosecutor] told you, that evidence, if you accept it, gave you the full picture of what had happened. You also heard [the complainant] tell you that [the appellant] had shouted at his wife, [J]. I mentioned that evidence a moment ago, and told you that that was put before you by [the prosecutor] to provide context, or to explain the relationship between [the appellant], [J] and [the complainant], and is circumstantial evidence to explain why [the complainant] did not complain earlier. 57 Following the direction in relation to evidence of the appellant yelling at his wife, [J], the trial judge gave this direction to the jury:17 14 Perara-Cathcart v The Queen [2017] HCA 9 at [57]-[58] and [66], (2017) 260 CLR 595 618 and 620. 15 Johnson v The Queen (2018) 266 CLR 106 at [19]; HML v The Queen (2008) 235 CLR 334 at [126]. 16 Summing Up p 13. 17 Summing Up p 13. -- 12 of 18 -- [2026] SASCA 26 The Court 11 That evidence, about what [the complainant] said happened in PNG and Cairns … is before you for those specific purposes. If you accept it, you may only use that evidence in those ways. They are the only ways you must use that evidence. You must not use it for any other purpose. You must not use that evidence to reason simplistically that merely because [the appellant] had done bad things in the past, he is a bad person and, therefore, the sort of person who is more likely to have committed the crime with which he is charged. Reasoning in that way would be wrong and unfair. You must not allow that evidence to distract you from the need to consider whether for each charge the prosecution has proved the charge beyond reasonable doubt. You cannot reason that [the appellant] has done something similar before, so that is enough to prove he committed the crime. Again, that sort of reasoning is wrong and unfair. 58 The only other times the uncharged conduct was addressed was in the prosecution opening18 and closing.19 59 When giving directions about what had to be proved by the prosecution, the appellant submits the trial judge did not make reference to some conduct being charged, other conduct being uncharged, or to the significance of that distinction. Neither did the aide memoire. 60 The appellant submits that the uncharged conduct was alleged to have taken place “in the course of their relationship during the relevant period” and was “of the type particularised and as [the complainant] had said had happened”. 61 Accordingly, the appellant submits that the jury was not directed that some of the sexual acts described, being the charged conduct, was capable of acting as evidence directly proving the charge on the Information, but that other acts, namely, the uncharged conduct, was incapable of directly proving the charge because they were committed outside of the jurisdiction. He submits that while a direction was given, it was given in a limited way, and that while there was a circumstantial use for the uncharged conduct, no direction was given as to what the impermissible uses of the uncharged conduct was, especially as direct evidence of the charge. 62 The appellant submits that the direction required in this case by s 34R(1) had to be sufficient in its terms to identify the specific discreditable conduct in the context of the case under consideration.20 63 In addition to being directed as to permissible non-propensity use of uncharged conduct, the appellant submits the jury should also have been clearly instructed that evidence of other sexual acts did not itself prove the offence charged, and that it was impermissible to convict the appellant of the charge he 18 T 54-55. 19 T 368. 20 Perara-Cathcart v The Queen [2017] HCA 9 at [51] (2017) 260 CLR 595 at 617; JGS v The Queen [2020] SASCFC 48 at [97]. -- 13 of 18 -- [2026] SASCA 26 The Court 12 faced on the basis that some other conduct had been proved.21 He submits that the risk that uncharged conduct would be used in substitution for a charged occasion is recognised generally, even in cases where the uncharged conduct is of a kind easily distinguishable and different from the charged conduct which was not the case here. The appellant submits that while it is not the case that a trial judge must identify or explain every conceivable or theoretical line of impermissible reasoning,22 in the context of the present case it was necessary for the trial judge to identify for the jury not just what were the permissible uses, but also what were the impermissible uses of the evidence of the uncharged conduct committed outside South Australia. 64 The appellant submits the risk of miscarriage in this case was amplified where the uncharged conduct consisted of further iterations of the charged offending, alleged to have been committed within the charged period, and was only distinguishable on account of where it was alleged to have been committed. In the circumstances he submits this distinction may not have occurred to the jury as material. The direction to the jury that the incidents said to have occurred overseas or interstate could be used to explain that the alleged charged conduct “did not suddenly stop” when the family went overseas or interstate, and to reason that there was no gap in the offending conduct, supported the idea that the charged conduct continued through periods outside South Australia. Given the nature of the charge, and the discretion open to the jury to select some but not all of the sexual acts alleged as founding guilt, there was peculiar scope for use of the uncharged conduct to find the appellant guilty. Given the jurors were not required to agree on the same two or more sexual acts, just one juror needed to have misused the evidence for the verdict to be affected. 65 The appellant further submits that scope for confusion was injected through confining directions about the use of the uncharged conduct to the context of a warning about propensity and “bad person” reasoning, where there was other, different discreditable conduct. The trial judge referred to “bad things in the past” in this direction, and it is not clear to which “bad thing” he is referring, where it is possible this is a reference to evidence of the appellant yelling at his wife, Judith. The appellant submits that the evidence concerning him yelling at Judith suggested it was a constant occurrence.23 The evidence, if accepted, established that the assaults committed outside the jurisdiction occurred during the charged period. He submits that in the context of the evidence, the “bad person” and non- propensity aspects of the direction were not properly anchored to the behaviour of the appellant in either PNG or Cairns. The direction was not sufficiently clear or specific as to be effective. Moreover, the appellant submits that the complainant’s evidence of him having installed a camera in the bathroom for what must have been a prurient purpose was not addressed at all and should have been. 21 R v Vonarx [1999] 3 VR 618 at [22]-[23]; R v Dolan (1992) 58 SASR 501 at 503. 22 R v Tran [2017] SASCFC 99 at [163]-[164]. 23 T 126. -- 14 of 18 -- [2026] SASCA 26 The Court 13 66 The appellant submits that the effect of the summing up was to leave the jury without direction on the use of extra-jurisdictional conduct, and without adequate direction on the use of discreditable conduct. The failure to give a direction, or an adequate direction, against impermissible use of the uncharged conduct, constituted a fundamental error of law.24 The appellant submits there was a real risk that he was convicted of offending with which he was not, and could not have, been charged in the trial. As a result he was denied a trial according to law. 67 We do not accept these submissions. 68 In Perera-Cathcart25 the Kiefel, Bell and Keane JJ explained the obligation of a judge directing a jury as to the obligation imposed by s 34R of the Evidence Act. The High Court said:26 A sufficient direction under s 34R(1) must identify the purpose for which the evidence may be used and the purpose for which it may not be used. Compliance with s 34R is mandatory. Whether there has been compliance with s 34R(1) will depend upon the circumstances of the case (61). The question is whether the trial judge’s directions were sufficient to identify the permissible and impermissible uses of the appellant’s admission that the cannabis found at his house belonged to him. Whether those directions conform to the requirements of s 34R(1) can only be determined having regard to the real issues in the case. In Huynh v The Queen, French CJ, Crennan, Kiefel, Bell and Gageler JJ reiterated that the general responsibility of the trial judge to direct the jury on matters of law is as stated in Alford v Magee; that is, the trial judge is obliged: “to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.” The sufficiency of a direction to satisfy the requirements of s 34R(1) must be determined in the light of this fundamental responsibility of the trial judge. In R v Getachew, a case in which the governing statute provided for mandatory directions to a jury in relation to a case of alleged rape, French CJ, Hayne, Crennan, Kiefel and Bell JJ said: “The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the [Crimes Act 1958 (Vic)] and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.” [citations omitted]. 69 In her opening the prosecutor made it clear that it was only the allegations of sexual abuse that occurred in South Australia that were the subject of the charge.27 The prosecutor explained that the allegations of sexual abuse in PNG and Cairns 24 Kakule v The King [2025] SASCA 20 at [72]. 25 [2017] HCA 9, (2017) 260 CLR 595. 26 Perara-Cathcart v The Queen [2017] HCA 9 at [51], [53] and [54], (2017) 260 CLR 595 at 617-618. 27 T 55.10-55.12, 57.8-57.11, 60.11-60.17. -- 15 of 18 -- [2026] SASCA 26 The Court 14 was uncharged conduct because they occurred outside of South Australia.28 The prosecution sought to rely on the acts of sexual abuse that occurred in PNG and Cairns to provide the full chronology of the sexual abuse so that the jury understood the sexual abuse did not suddenly stop when the family left South Australia and suddenly recommence when they returned.29 This submission was repeated in the prosecutor’s address.30 The prosecution did not seek to use the evidence for any other purpose. 70 In closing submissions to the jury, senior counsel for the appellant did not specifically and separately address the uncharged conduct that occurred in PNG and Cairns. Save for the few specific occasions where the sexual abuse differed from the regular form of sexual abuse, senior counsel referred to the sexual abuse in general terms.31 The thrust of the submission of senior counsel for the appellant as to the falsity of the allegations was that it was a “very simple, easy story to make up and stick to because it’s a very general non-specific story” and virtually impossible to test given its generality.32 71 The trial judge’s directions on the elements of the charge were tethered to the acts occurring at Meadows and Prospect Hill.33 The aide memoire provided to the jury during the summing up similarly tied the charged conduct to those places in South Australia.34 There was no evidence of acts of sexual abuse having occurred in any other place in South Australia. This was consistent with the prosecutor’s opening and closing address. 72 The aide memoire quite properly did not include reference to the uncharged sexual acts. The document related to the charged offences the jury needed to consider and focussed the jury’s attention on the matters they needed to be satisfied of beyond reasonable doubt to find the appellant guilty, or not. Identification of uncharged conduct 73 The trial judge specifically addressed the evidence of the uncharged sexual abuse in his summing up. His Honour commenced his directions in relation to the uncharged sexual abuse by telling the jury:35 You also heard evidence from [the complainant] that [the appellant] had engaged in sexual acts with her during the times they were in PNG and Cairns. 74 The trial judge’s identification of the uncharged conduct by location was reasonable given the evidence at trial, namely that the uncharged conduct was 28 T 54.22-54.26. 29 T 54.22-55.12. 30 T 368.25-369.1. 31 T 381.31-381.38, 383.29-383.34, 385.13-386.17. 32 T 385.13-385.21, 385.34-386.17. 33 AB 34, 35-39. 34 AB 30-31. 35 Summing Up p 13. -- 16 of 18 -- [2026] SASCA 26 The Court 15 temporally distinct from the charged conduct as opposed to being different in nature. 75 In highlighting the different locations, the trial judge signalled to the jury that his directions were moving from the charged conduct to the uncharged conduct. It reinforced what the jury had been told by the prosecutor throughout the trial, namely, that there was a distinction between the sexual abuse that occurred within South Australia and the sexual abuse that occurred outside of the jurisdiction. 76 No further direction was required from the trial judge on this topic. There was no risk that the jury would fail to understand that the charged offence related only to the sexual abuse alleged to have occurred in South Australia. The direction satisfied the obligation in s 34R 77 The trial judge went on to direct the jury that if they accepted the evidence of the complainant as to the uncharged sexual abuse, they could “only use that evidence of what happened in PNG and Cairns to explain that the alleged charged conduct did not suddenly stop when the family went overseas or interstate and to explain there was no gap in the offending conduct”.36 The trial judge reminded the jury that the prosecution led the evidence only for that specific purpose. 78 By using the phrases “the alleged charged conduct” and “no gap in the offending conduct” when explaining the permissible use of the evidence, the appellant submits, as we explained earlier,37 that the trial judge’s directions had the consequence of supporting the notion that the charged conduct continued through the periods outside of South Australia. While it would have been preferable for the trial judge to use the phrase “unlawful sexual acts” or “unlawful sexual conduct” as opposed to “offending” or “charged” conduct, when the summing up is considered as a whole, and in conjunction with the prosecution addresses, together with the clear direction provided by the aide memoire, there was no risk that the jury could have impermissibly understood that satisfaction of an act occurring in PNG or Cairns could constitute proof of a particular of the charge. 79 The appellant does not complain that the trial judge failed to identify an impermissible use, but rather submits that the trial judge did not adequately tether the direction on the impermissible uses of the evidence of uncharged conduct in PNG and Cairns. The trial judge’s directions on the impermissible use38 must be read in the context of what preceded it, which identified both the acts occurring in PNG and Cairns, and the appellant’s relationship with the complainant’s mother.39 80 Read as a whole, there was no risk that the jury would not have understood that the impermissible use described also applied to the uncharged sexual 36 AB 46. 37 Paragraph [64] of these reasons. 38 AB 46. 39 Paragraph [56] of these reasons. -- 17 of 18 -- [2026] SASCA 26 The Court 16 conduct.40 Further, by referring to the uncharged sexual acts in general terms only, it was clear, and the jury would have understood, that the trial judge’s directions encompassed all of the conduct alleged to have taken place outside of South Australia, including the alleged bathroom filming incident in PNG and the evidence of the appellant shouting at his wife. 81 While accepting that it is not determinative, we accept the respondent’s submission that the absence of any complaint or request for redirection by the appellant’s counsel tends to indicate that the trial judge succeeded in providing the necessary direction on the topic of discreditable conduct in the factual context of this particular matter.41 82 The directions were adequate. We would dismiss ground 1. Conclusion 83 We dismiss Ground 1. We would allow the appeal on ground 2. We would order that the conviction be set aside and the matter be remitted to the District Court for retrial. 40 AB 13. 41 Perara-Cathcart v The Queen [2017] HCA 9 at [60], (2017) 260 CLR 595 at 619. See also DeSilva v The Queen (2019) 268 CLR 57 at [35]; Barnes v The King [2025] SASCA 53 at 57. -- 18 of 18 --