JOSHUA JOHN WILTON v THE KING [2026] SASCA 30

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALLEN) DCCRM-24-004749 Appellant: JOSHUA JOHN WILTON Counsel: MS M BARNES - Solicitor: ANDREW HILL & CO LAWYERS Respondent: THE KING Counsel: MS M CHALMERS SC WITH MS E CATTRALL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/03/2026 File No/s: SCCRM-25-022723 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. WILTON v THE KING [2026] SASCA 30 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice B Doyle) 2 April 2026 CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED Appeal against conviction. Following a trial by jury, the appellant was found guilty of two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant participated in a joint criminal enterprise with his co- offender by holding down the complainant while his co-offender performed sexual acts on her. The appellant appeals on the bases that the verdicts of guilty were unreasonable and unable to be supported by the evidence of the complainant (Ground 1), and that a miscarriage of justice resulted by reason of the judge’s failure to adequately direct the jury in relation to the principles of joint criminal enterprise (Ground 2). Held, per the Court, granting permission to appeal, but dismissing the appeal: -- 1 of 21 -- 1. It was open to the jury, having appropriately and carefully assessed the reliability of the complainant’s evidence, to conclude beyond a reasonable doubt that the appellant was guilty of Counts 1 and 2. 2. The judge’s directions in relation to the application of the principles of joint criminal enterprise in the context of Counts 1 and 2 were adequate. Evidence Act 1929 (SA) s 13BA, referred to. Alford v Magee (1952) 85 CLR 437; Huynh v The Queen (2013) 87 ALJR 434; Likiardopoulos v The Queen (2012) 247 CLR 265; M v The Queen (1994) 181 CLR 487; McAuliffe v The Queen (1995) 183 CLR 108; Mitchell v The King (2023) 276 CLR 299; Pell v The Queen (2020) 268 CLR 123; R v Bekele [2026] SASCA 9; R v ZT (2025) 281 CLR 137, considered. -- 2 of 21 -- WILTON v THE KING [2026] SASCA 30 Court of Appeal – Criminal: Livesey P, S Doyle and B Doyle JJA 1 THE COURT: The appellant, Joshua Wilton, was charged with three counts of rape. The charges related to the same complainant and the one incident, on 17 April 2023. 2 Counts 1 and 2 related to acts of cunnilingus and digital penetration alleged to have been committed by JS, who was a youth. It was alleged that the appellant was involved in a joint criminal enterprise with JS, and that pursuant to their agreement to rape the complainant, the appellant held the complainant down while JS performed cunnilingus on the complainant and digitally penetrated her vagina. Count 3 alleged that after this had occurred, the appellant had penile-vaginal intercourse with the complainant without her consent. 3 Only the appellant was on trial before the jury. The jury were told not to speculate about why JS was not part of the trial. 4 The jury convicted the appellant of Counts 1 and 2, but returned a verdict of not guilty on Count 3. 5 The appellant now seeks permission to appeal his convictions on two grounds. The first involves a complaint that the verdicts of guilty on Counts 1 and 2 were unreasonable, relying essentially on what was said to be the unreliability of the complainant’s evidence given that she was heavily intoxicated at the time of the alleged offending. The second involves a complaint about the judge’s directions in relation to the application of the principles of a joint criminal enterprise to the allegations of rape in Counts 1 and 2. 6 For the reasons which follow, we are not persuaded that there is merit in either of these grounds. We grant permission to appeal, but dismiss the appeal. The complainant’s evidence 7 The complainant’s evidence was in three parts. The first was a recording of a prescribed interview conducted by the police on 26 May 2023, just over a month after the incident. This was received in evidence without objection, pursuant to s 13BA of the Evidence Act 1929 (SA). The second was a recording of the complainant’s evidence in an earlier trial,1 which was also received in evidence without objection. The third was some oral evidence in chief and cross- examination. 8 By way of context, the complainant explained that JS was a friend of hers, and that he had introduced the complainant to the appellant about three days before the incident. The three of them had been ‘hanging out’ together throughout that 1 Pursuant to s 13D of the Evidence Act. -- 3 of 21 -- [2026] SASCA 30 The Court 2 period, taking drugs (Xanax and marijuana). In the hours leading up to the incident they were at the appellant’s home, in a room described as the kitchen/lounge. The complainant had drunk a substantial amount of alcohol (tequila), and had taken some Xanax tablets. 9 The complainant said that when she told JS and the appellant that she was going to leave to go to a party, the appellant became angry. He grabbed her and pushed her down onto an air mattress. The appellant said to JS ‘now’s your chance, like now you can get what you’ve wanted and stuff’. 10 The complainant described the appellant then holding her down with a hand on her neck and a knee on her waist, trying to kiss her. She was struggling and saying ‘stop’. She felt pain on her stomach and realised that JS was biting and sucking her skin. JS then pulled down her pants, and performed cunnilingus on her (Count 1), and digitally penetrated her (Count 2). The appellant was still trying to kiss her. She was yelling, telling them to stop, but some of her yelling was being muffled by the appellant’s attempts to kiss her. He was telling her to stop yelling. 11 The complainant said that the appellant then had penile-vaginal intercourse with her (Count 3). She said that JS held her shoulders while this occurred, although she described him as appearing to be ‘pretty out of it’ at that point. 12 Given the challenge to the reasonableness of the verdicts on Counts 1 and 2, it is appropriate at this point to set out an extract from the complainant’s prescribed interview in which she described this aspect of the alleged offending: And then I don't know [JS] started getting mad too and then he was like yeah … why do you want to leave, would say the stuff like you’re just gonna leave us here after everything we've done for you and all this other stuff. And he was holding really tightly onto my shoulders. Um like near the kitchen counter top thing. And then he like grabbed me and pulled me towards the big bed and pushed me down and I thought like he was going to hit me. Like I thought he was just going to attack me and stuff and then it sort of just started happening and then [JS] moved down too. And then Joshua was like, now’s your chance, like now you can get what you’ve wanted and stuff, and then Joshua was holding me down and then he was holding me with one of his shol, like one of his hands on my neck thing and then his knee was sort of like up here on my waist area. And then he was choking me with his other hand. Um I was telling them to stop, I was like stop, stop get off of me, stop, like this isn’t funny, stop. And then [JS] like got like down like, yeah, and then um he started to pull down my pants and stuff and Joshua was trying to kiss me and stuff and I was trying to move my head but they were obviously, there was two of them and they were a lot stronger than me and I was like thrashing my legs and stuff but [JS] was using his knees sort of like on my ankles and stuff so it was hard to move and I was really, really intoxicated. So it was a lot, I wasn’t as strong and stuff and everything was just fuzzy because of how intoxicated I was. Um and then I sort of, it sort of like cuts out a little bit, and then um there was all these pains in my stom, like all down here in stomach and stuff and [JS] was like biting me and sucking on my skin and stuff, and then he was like, he pulled my pants down at this point, but I don’t really remember him doing that I sort of just remember them being down. And -- 4 of 21 -- [2026] SASCA 30 The Court 3 Josh was still trying to kiss me and stuff and still choking me and telling me that I’m his and all this other stuff and I’m his dom, whatever the fuck that means. Um and then I was still telling them to stop but it was all like I wasn’t right like moving as much because everything just hurt. So I was still telling them to stop though. And then um [JS] sort of moved down and was like sucking and biting on my thighs and stuff and then moved to like, you know, do I have to say it, like you know, private parts and then he was doing his you know. Um and he was biting and sucking and it really fucking hurt. Um and then he was using his fingers and then he was coming back up to my stomach and like just biting and sucking on my stomach again. And then I’m not really sure how long that was going on for but Joshua was just still telling me to like stop and like, well he was telling me to stop because I was like yelling and then he was still trying to kiss me and I was still moving my head but that was really all I was moving and I was telling them to stop and I was like being loud like yelling loudly but it was kind of hard like some of them were muffled because he kept like putting his mouth over mine. And then um I’m not really sure how long that went on for. And then I sort of just stopped moving my head and stuff. I wasn’t like giving in to them or I wasn’t say, I never said they could do it but I just like stopped moving and stuff, I sort of just gave up. And then um [JS] like stopped and then he sat up but his knees were still on my ankles, and then he moved like up, like he moved like to my left side and he was holding my hips with his hand. And then I sort of took the chance and like got up and was like thrashing my legs and stuff and then Joshua got mad and then he just yelled and then he grabbed my like thighs and pushed them down really hard. 13 The complainant then described the appellant’s conduct the subject of Count 3: And then [JS] was holding my shoulders and then I was moving at this point because they weren’t holding on to me that tight so I could like move and I was trying to get out of it. Um, and then um Joshua started to take his pants and stuff off and then [JS] sort of asked him what he was doing and then he was like well you had your chance so now it’s my turn. And then I don’t think [JS] liked that because I know [JS] had a crush on me. Um I think he thought he was entitled or whatever I don’t really know. Um but he still was holding down my shoulders and stuff, he wasn’t trying to kiss me or anything, he was just holding down my shoulders. He looked pretty like out of it at that point, like he wasn’t really doing anything but holding my shoulders. And then Joshua was like after he’d taken his pants off and his underwear and stuff was like moving closer and then just started doing his thing you know. Um and then I stopped what I was like moving my heads and then like lifting up my hips and stuff because like it hurt and I was crying at this point and like trying, like I was yelling um because Jo, [JS] wasn’t holding my mouth or anything like that so I was yelling and then um it like really, really was hurting like a lot. And I’ve never done that before so I think it hurts more, I don’t really know. Um and then he stopped and [JS] got off me and then he grabbed his, Josh grabbed his pants and stuff and they sort of just walked over to the other side of the room and sat on the bed and started smoking bongs. And I wasn’t really sure, I didn’t really understand or comprehend what had just happened. Um I was still like really drugged up and stuff, like my vision was all blurry and stuff. -- 5 of 21 -- [2026] SASCA 30 The Court 4 Um and then I grabbed my underwear and pants and then my t-shirt, well it wasn’t my t- shirt, it was Joshua’s t-shirt I think, it was cos it was next to me, so I just grabbed that and then um I was looking for my phone. But this was like 20 minutes after it happened cos I was sort of just laying there cos I didn’t really know what to do or if they’d get mad or anything, they didn’t really seem to care because they were like laughing and stuff when they were having their bongs and stuff and just talking like it never even happened. Um and like halfway through the point of me laying there, [JS] asked if I wanted a bong. So I was, didn’t really think they’d care if I got up and moved. So I waited a little bit longer and then I got up and then I grabbed my underwear and pants and I grabbed um [JS’s], I mean Joshua’s t-shirt, it was green I think, or blue, I don't know ....... And then um I was looking for my phone and I couldn’t see it um and then it, I stood up um like on my knees and like it, it was up on the bench so I grabbed it and then I texted my auntie’s boyfriend because my auntie and her boyfriend Luke are like my two favourite people and I trust them and I know that they have friends down where I was cos I wanted to get out of there straight away so they could um get find some, like get someone to pick me up like straight away. 14 Later in the interview, the complainant clarified and confirmed that her allegation was that JS had been biting and sucking on her vagina, and that he had put two fingers inside her vagina. She also confirmed that when she said that the appellant was ‘doing his thing’ she meant that he was putting his penis in her vagina. 15 When asked how long the offending lasted, she said: Um [JS] was definitely doing it for a longer. I’m not really sure how long it was for. Um probably like anywhere between five and eight minutes I reckon. Like it, I don’t really know. I reckon like five, between five and eight minutes. Joshua wasn’t doing it for that long, only like five minutes or something, but I don’t really remember most of when Joshua was doing it, like his thing, you know um I sort of just remember the first time he did it like went inside and then like basically once he was done like its sort of like just a black part in the middle of that so I’m not really sure but it felt just like five minutes it didn’t feel that long. 16 The complainant also made it clear that she had not consented to what occurred, saying that ‘I said no heaps of times and I said stop and obviously all my thrashing and moving indicated that I didn’t want it.’ She added that she ‘definitely 100 percent remembered saying no and saying stop’. 17 As described above, after the appellant had intercourse with the complainant, he and JS moved away from the complainant. They moved to the other side of the room and started smoking marijuana. After waiting a while to see what would happen, the complainant said she was leaving. She found her phone, and sent a text message to a family member asking to be collected. The complainant also rang her step-mother and told her that she had been raped. 18 Ultimately the complainant’s mother arrived and took her home. Police were then called and attended. The complainant said in her prescribed interview that she had bruises (or ‘hickeys’) as well as teeth marks all over her stomach, as well -- 6 of 21 -- [2026] SASCA 30 The Court 5 as on her ‘thighs and stuff’. Whilst some photographs were taken of her bruises, she declined a medical examination. 19 As mentioned earlier, in addition to her prescribed interview the complainant also gave evidence at an earlier trial, and at the trial that resulted in the convictions the subject of this appeal. 20 During this evidence, the complainant confirmed that the drugs and alcohol she had taken had affected her memory and behaviour, both in the days leading up to the offending, and at the time of the offending itself. She described her memory during the relevant period as being ‘blurry’, and as cutting in and out. It was the first time she had taken Xanax. 21 The complainant explained that the reason she refused a medical examination on the night of the incident was that she was really tired, and not in the right frame of mind. She also said that she was embarrassed about the whole thing, and did not want everyone knowing and talking about something that was personal to her. 22 The complainant was not asked many questions about the detail of the alleged offending, although she was given an opportunity to describe in general terms what had occurred to her. She did so in terms which were consistent with, albeit more general than, what she had said in her prescribed interview. During the second trial she did give some additional detail about her allegation of penile-vaginal intercourse by the appellant, including that she did not know whether the appellant ejaculated. She explained that the intercourse ended when JS, whom she described as appearing irritated while the appellant was having intercourse with her, asked the appellant whether he wanted a bong. Although the appellant seemed to ignore JS the first time he asked, they both ended upon moving to the corner of the room and had a bong. 23 The complainant also confirmed that she was 16 years of age at the time of the alleged offending, and did not consent to the sexual acts performed by JS or the appellant. 24 In her evidence at the first trial, the complainant drew a sketch of the appellant’s house, and indicated the location within that house where the offending occurred. This sketch was received in evidence in the second trial, as were some photographs which the complainant confirmed were of the kitchen/lounge area where the offending occurred. 25 In her evidence at the first trial, the complainant also said that she thought the appellant’s mother was at home and in her bedroom when the offending occurred. In the second trial she explained that she had seen the appellant’s mother two to three hours before the offending when she came into the kitchen/lounge area before returning to her bedroom. -- 7 of 21 -- [2026] SASCA 30 The Court 6 Civilian and police evidence 26 In addition to the forensic evidence, and evidence in relation to the complainant’s intoxication, both of which are separately addressed below, the prosecution also led some other evidence from members of the complainant’s family and police. 27 This included evidence from the complainant’s stepmother that she received a text message from the complainant at 10.37 pm on 17 April 2023, and then a phone call. During the phone call, the complainant said ‘I’ve just been raped’, and sounded very distraught. Later in the evening, she observed bruises on the complainant’s stomach. She described seeing red marks on her arm, chest and back, as well as a swollen bottom lip.2 28 Police Officer Garner gave evidence that he attended in response to the complainant’s allegations of rape shortly after midnight. He spoke with the complainant and made notes. While he was speaking with her, the complainant made some notes in his notebook, which included ‘I got drunk … they then got mad, pinned me to the bed, tied my hands up and took turns raping me’. Officer Garner said he suggested a medical examination, but the complainant declined. 29 It is convenient to note at this point that, during her cross-examination at the second trial, it was put to the complainant that she had told police on the night of the offending that her hands had been tied up. The complainant clarified that her hands were never tied, and she did not remember saying that to police. Forensic evidence 30 Photographs of the complainant were taken by police in the hours after the alleged incident. They showed bruising on her stomach and thigh. The complainant declined a medical examination, but did provide some clothing for DNA analysis. 31 The following day, forensic samples were taken from the appellant and JS. 32 The prosecution called evidence from a DNA analyst about testing carried out on the forensic samples taken from the complainant’s underpants and from the two co-accused. 33 Both the appellant’s and JS’s DNA was present in the waistband of the complainant’s underpants, with the appellant’s DNA profile being a very small percentage contributor. From testing of the crotch area of the underpants, JS’s DNA was present, but the appellant’s DNA was excluded. No semen was detected in the crotch area of the complainant’s underpants; however, there was a positive reaction for amylase (being an enzyme found in saliva). 2 The complainant’s mother did not observe the red marks, and Officer Garner made no note of observing them. -- 8 of 21 -- [2026] SASCA 30 The Court 7 34 In relation to the swab taken from the appellant’s penile shaft, there was extremely strong support for the proposition that the complainant was not a contributor to the mixed DNA profile identified. In relation to swabs taken from JS’s fingernails on both hands, there was strong support for the complainant being a contributor to the DNA profile obtained. Evidence of intoxication 35 As mentioned earlier, the complainant acknowledged that, in the days leading up to the incident, she had consumed significant quantities of drugs including Xanax and marijuana. She also acknowledged that in the hours immediately prior to the incident, she had taken some further Xanax tablets and had drunk a significant quantity of tequila. She acknowledged that the drugs and alcohol had affected aspects of her behaviour, understanding and memory. 36 Some members of the complainant’s family gave evidence that in the days leading up to the incident, the complainant had been using drugs and appeared to be intoxicated. This included evidence from her mother that when she arrived to collect the complainant from the appellant’s house, the complainant was under the influence and needed to be physically helped up off the ground and into the car. 37 The prosecution called evidence from a toxicologist, Professor White. He said that the appellant’s toxicology results from samples taken the night after the incident indicated that he had several drugs in his system, including methylamphetamine, Xanax (from the class of drugs known as benzodiazepines) and cannabis. 38 Professor White was shown some body-worn camera footage of the complainant captured a few hours after the alleged offending. He acknowledged that the complainant did not appear to be intoxicated at that point. 39 No blood or urine samples were taken from the complainant. However, Professor White expressed the opinion that if the complainant had taken Xanax in the quantities described, then he would have expected her to have experienced effects including sedation, slurred speech, loss of consciousness, confusion, and irrational or disinhibited behaviour. The maximum effect of a dose of Xanax would be felt between about half an hour and two hours after its ingestion, and then decline over time after that. 40 Similarly, Professor White opined that, if the complainant had consumed the amount of alcohol described, he would have expected her to have experienced profound effects, including an impaired ability to walk, talk and understand what was happening. The effects of alcohol on her would have been compounded by the use of Xanax. Defence case 41 The defence did not call any evidence. -- 9 of 21 -- [2026] SASCA 30 The Court 8 42 The defence case, and the contest at trial, focussed upon the reliability of the complainant’s version of the alleged offending. In particular, it was argued in the closing address for the appellant that the complainant was so intoxicated, and her memory so unreliable, that the jury could not be satisfied beyond a reasonable doubt about the detail of what the complainant had described, and in particular that the appellant in any way encouraged or participated in any sexual acts by JS, or that he had penile-vaginal intercourse with the complainant. As defence counsel put it, it was not suggested that nothing happened to the complainant, just that there was no proper evidential basis to properly conclude that the appellant played any role in what occurred. On the defence case, the complainant’s injuries were attributable to the conduct of JS alone; and there was no independent support for the appellant’s alleged involvement and offending. 43 Whilst the defence case involved a denial that the appellant held the complainant down, and that the appellant had intercourse with the complainant, it did not involve any direct attack upon the complainant’s credit. The defence case was one focused upon the complainant’s reliability. Unreasonable verdict 44 The principles governing a challenge to a verdict of guilty on the ground that it is unreasonable, or unable to be supported having regard to the evidence, remain as set out in M v The Queen.3 They require consideration of whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the charged offence. They require the Court to consider whether the jury, acting reasonably, must have, as distinct from might have, entertained a doubt as to the appellant’s guilt. 45 The Court must undertake its own assessment of the evidence adduced at trial, but having regard to any advantage the jury might have had from seeing and hearing the complainant give evidence. As the plurality explained in M v The Queen:4 In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. 3 M v The Queen (1994) 181 CLR 487. 4 M v The Queen (1994) 181 CLR 487 at 494 (Mason CJ, Deane, Dawson and Toohey JJ). -- 10 of 21 -- [2026] SASCA 30 The Court 9 46 As the High Court observed in Pell v The Queen,5 the appellate court’s assessment ordinarily proceeds on the assumption that the complainant’s evidence was assessed by the jury to be relevantly credible and reliable, but it must then consider whether any deficiencies in the sufficiency or quality of that evidence nonetheless mean that the jury ought to have entertained a reasonable doubt:6 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. 47 In the present case, the assumption upon which the analysis proceeds is a more qualified one. Whilst it is to be assumed that the jury assessed the complainant’s description of the appellant’s involvement in JS’s acts of cunnilingus and digital penetration as credible and reliable, it is apparent that the jury did entertain a doubt about the complainant’s description of the appellant then having penile-vaginal intercourse with her. 48 The appellant does not contend that the jury’s verdicts were inconsistent. It is accepted that there were bases upon which the jury could properly have convicted the appellant of Counts 1 and 2, but not Count 3. In this respect it is noteworthy that the judge directed the jury in relatively strong terms that, whilst there was nothing to prevent them convicting upon the basis of the complainant’s evidence alone, they should only do so after scrutinising her evidence with great care. With this in mind, it may be that the jury differentiated between the counts on the basis that there was some objective evidence (of injuries and DNA) which supported the occurrence of the sexual acts the subject of Counts 1 and 2 (albeit not necessarily the appellant’s involvement in those acts), whereas there was no equivalent support for the occurrence of the sexual act the subject of Count 3. 49 In any event, the relevant point is merely that in the present case, it cannot be assumed that the jury assessed the complainant to be credible and reliable as to the entirety of her version of events. They plainly entertained a doubt as to at least part of her account of the offending. 50 In challenging the jury’s verdicts on Counts 1 and 2, the appellant’s complaint is not as to the sufficiency of the complainant’s evidence; it is as to the quality of that evidence. In particular, the appellant contends that the complainant’s state of intoxication, and the impact of this upon the reliability of her ability to appreciate and recall what occurred, were such that the jury ought to have entertained a reasonable doubt about the reliability of her description of the 5 Pell v The Queen (2020) 268 CLR 123. 6 Pell v The Queen (2020) 268 CLR 123 at [39] (the Court). -- 11 of 21 -- [2026] SASCA 30 The Court 10 appellant’s conduct (in inviting JS to have his way with the complainant, and in holding her down while he then did so). 51 In considering the appellant’s complaint, a convenient starting point is the complainant’s own evidence about her consumption of drugs and alcohol in the lead up to the alleged offending. As recounted earlier, she acknowledged that she had consumed a number of Xanax tablets and marijuana over an approximately three-day period. She then consumed further Xanax tablets and a significant amount of alcohol (a bottle of tequila) in the few hours before the offending. Drawing on the evidence of Professor White, the appellant submits that it is to be expected that the complainant would have been experiencing significant effects from her intoxication at the time of the alleged offending. It is to be expected that those effects would have included an impairment of her ability to perceive, understand and remember what was occurring. Her state of intoxication might also have led her to behave in an irrational and disinhibited manner. 52 The appellant argues that these expected effects were consistent with the observations of the complainant’s family members during the days leading up to the charged incident. 53 Most significantly, however, the appellant emphasises the complainant’s own evidence as to the effects of her intoxication. On her own evidence, she experienced significant gaps in her memory of the events in the days leading up to the charged incident. She referred in her prescribed interview to being ‘drunk and high’, saying that she did not really remember most of the three days preceding the offending. She accepted in cross-examination that her memory of the day of the incident was blurry, and that the Xanax she had taken was affecting her memory and behaviour that day. 54 Not surprisingly, given her acknowledgment of the Xanax and alcohol she consumed only hours before charged incident, the complainant’s description of that incident included references to her difficulties in understanding and recalling parts of what occurred. As set out earlier in these reasons, when describing Counts 1 and 2 in her prescribed interview, the complainant said that she was ‘really, really intoxicated’ and that ‘everything was fuzzy because of how intoxicated I was’. She added at one point in her description of the offending the subject of Count 1 that ‘it sort of cuts out a little bit, and then um there was all these pains’ from JS biting and sucking her skin. She expressed uncertainty about the length of time for which JS sexually assaulted her. 55 Further, after describing the appellant having penile-vaginal intercourse with her, the complainant said that she ‘didn’t really understand or comprehend what had just happened’, adding that she was ‘still like really drugged up and stuff, like my vision was all blurry and stuff’. Later in her prescribed interview, when attempting to estimate how long the offending by the appellant lasted, the complainant mentioned there being ‘a black part in the middle’ of her recollection of the appellant having intercourse with her. -- 12 of 21 -- [2026] SASCA 30 The Court 11 56 There is no doubt that the complainant was heavily intoxicated at the time of the alleged offending, and that this would have affected her understanding and memory of what occurred. Thus, despite the absence of any direct challenge to the complainant’s credibility, care was nevertheless required in assessing the reliability of her account of the alleged offending. 57 However, despite the obvious gaps and confusion in aspects of her description of the offending, there were several aspects of her description which may have reassured the jury as to her reliability. 58 First, there was the apparent frankness of the complainant’s acknowledgments of the difficulties she had in understanding and recalling some aspects of what occurred to her. Not only did she acknowledge that she was generally affected in these ways, but also, as reflected in the passage from her description of the offending from her prescribed interview set out earlier, she made express reference in her account of what occurred to those moments when she had gaps in her memory or was otherwise confused in her recollection or understanding. In other words, the complainant appeared to be able to, and careful to, distinguish between what she could and could not recall and understand. 59 Secondly, despite some gaps in her recollection, it is significant that the complainant was able to remember, and recount, in a coherent and plausible way, quite a bit of detail of the alleged offending. The account she gave in her prescribed interview described a clear narrative, which relevantly involved: the appellant becoming annoyed that the complainant was planning to leave; the appellant then becoming aggressive and pushing her onto the air mattress; the appellant telling JS that ‘now’s your chance … you can get what you’ve wanted and stuff’; the appellant holding her down with a hand on her neck and a knee on her waist area; the complainant telling them to stop and get off her; JS removing her pants and then sucking and biting her on her stomach, thighs and vagina; JS inserting his fingers into her vagina; the appellant trying to kiss the complainant while this was occurring; the complainant thrashing her legs about and yelling; the appellant removing his pants and having penile-vaginal intercourse with her while JS was holding her down by her shoulders; and JS and the appellant eventually moving away from her to the other side of the room where they were smoking marijuana. 60 Summarised in this way, there was nothing complicated, or incoherent or implausible, about the actions of the appellant and JS. The jury were entitled to accept that, even if she was not able to understand or recall some of the detail of what occurred, the complainant’s description of what she did recall was nevertheless reliable, and sufficient to establish that the appellant was guilty of Counts 1 and 2 (as a party to a joint criminal enterprise to commit those offences). The jury were entitled to accept, as a matter of common sense and experience, that the human memory can operate in this way. -- 13 of 21 -- [2026] SASCA 30 The Court 12 61 Furthermore, the complainant’s account of relevant events was not confined to the core narrative just outlined. There were several matters of detail woven through the complainant’s account of what occurred that the jury were entitled to consider had the ring of truth, and tended to reinforce the reliability of what the complainant could recall. We include within this the following matters of descriptive detail: the appellant’s mood changing, and aggression beginning, when the complainant indicated her intention to leave (after jointly consuming the drugs supplied by the appellant); the appellant’s reference to JS having a chance to ‘get what [he] wanted’, which was consistent with the complainant’s understanding that JS had a ‘crush’ on her; the complainant’s yelling being partly muffled by the appellant’s attempts to kiss her; the appellant saying to her that she was his ‘dom’, with the complainant adding ‘whatever the fuck that means’; the complainant sensing that JS was uncomfortable with the appellant having intercourse with the complainant, and apparently encouraging the appellant to instead join him in smoking a bong; and the complainant being confused about what was happening after she had been abused, and being unsure about whether they would be mad if she attempted to leave. 62 All things considered, the jury were entitled to accept that, despite the admitted difficulties in her understanding and memory of some aspects of relevant events, the complainant’s account of the key aspects of what she said occurred was nevertheless reliable. Importantly, the jury had an advantage over this Court in coming to that conclusion. In addition to viewing the prescribed interview and recording of her evidence in the earlier trial, the jury also had the benefit of seeing and hearing the complainant giving evidence in person.7 The jury thus had an opportunity to make an assessment of the complainant’s reliability from what appears to have been the relatively clear and consistent manner in which she described what occurred. 63 Of course, when assessing the complainant’s reliability as to the critical aspects of her evidence, the jury were also entitled to have regard to the aspects of evidence from others which provided some corroborative support for aspects of the complainant’s account. In particular, there was some support for her description of JS’s conduct in biting and sucking her in the bruising that was observed by the complainant’s step-mother, and that could be seen in the photographs taken of the complainant. The DNA evidence also provided some support for her allegations of the offending the subject of Counts 1 and 2 (albeit only very limited support in relation to the appellant’s involvement in that offending). The jury were also entitled to have regard to the complaint evidence, although this was general in nature and, whilst supportive of the complainant’s credibility in a general way, did not bear directly upon the jury’s assessment of the reliability of the detail of what the complainant said occurred. 64 Bearing all of the above in mind, there was a sound basis for the jury to have been satisfied as to the reliability of the complainant’s description of the conduct 7 R v ZT (2025) 281 CLR 137 at [16]-[18] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). -- 14 of 21 -- [2026] SASCA 30 The Court 13 of the appellant and JS in relation to Counts 1 and 2, and to have concluded beyond a reasonable doubt that the appellant was guilty of these offences. As we have explained, there was no necessary inconsistency inherent in the jury at the same time having some reservations about Count 3 and so finding the appellant not guilty of that count. In our view, the difference in the verdicts is consistent with the jury taking an appropriately careful approach to their assessment of the reliability of the complainant’s evidence, rather than indicative of any inconsistency or unreasonableness in their verdicts. 65 In coming to this conclusion, we have not overlooked some of the additional matters of detail relied upon by the appellant in challenging the reliability of the complainant’s version of events. 66 We refer in this respect to the complainant’s reference to the appellant’s mother being home, and to Officer Garner’s evidence that the complainant wrote in his notebook that her hands had been tied. 67 As to the first of these matters, it seems unlikely that the appellant’s mother could have been home at the relevant time (and not have intervened) if, as the complainant described, she was yelling for the appellant and JS to stop what they were doing. Even allowing for some ‘muffling’ of her yelling by the appellant’s attempts to kiss her, her account suggests that her yelling would have been heard throughout what was a modestly sized house. However, given the complainant’s suggestion that the mother may have been home was based only upon her having briefly seen the mother some hours before the offending, it is not clear that she was still at home at the time of the offending. 68 As to the second of these matters, it is strange that the complainant would, at a time only a few hours after the offending, have made a written reference to her hands being tied if that was not what she recalled at the time. However, the jury had the opportunity to observe the complainant being cross-examined about this matter, and maintaining, consistently with the absence of any reference to her hands being tied in her prescribed interview, that her hands were not tied. She said that she did not recall saying this to the police officer, adding that she was very drunk and ‘not really there after the incident’. She said that she might have ‘mistaken it from my hands being held down’. The balance of the complainant’s note of what occurred was consistent with her subsequent descriptions of what occurred. Whilst there is undoubtedly a difference between her hands being tied down, and merely held down, it was for the jury to assess the significance of this difference. 69 We are satisfied that, having regard to the complainant’s evidence in its entirety, and in the context of the evidence in the trial more generally, the jury were entitled to accept that the complainant was reliable in her description of the conduct the subject of Counts 1 and 2, despite these apparent discrepancies. The discrepancies were not such as to require that the jury entertain a reasonable doubt in relation to these two counts. Any doubt which this Court might entertain given -- 15 of 21 -- [2026] SASCA 30 The Court 14 the frailties in the complainant’s evidence that we have identified was capable of being resolved having regard to the jury’s advantage in having seen and heard the complainant give evidence. 70 This ground of appeal has not been made out. Misdirection 71 The appellant’s second ground of appeal involves a complaint of a miscarriage of justice by reason of the trial judge failing to adequately direct the jury in relation to the appellant’s potential liability for Counts 1 and 2. 72 The prosecution case at trial was that the appellant was guilty of Counts 1 (cunnilingus) and 2 (digital penetration) by reason of his participation in a joint criminal enterprise with JS, pursuant to which JS perpetrated acts of cunnilingus and digital penetration without the complainant’s consent. 73 Liability through a joint criminal enterprise involves establishing that the accused was party to an agreement with one or more others, the scope of which encompassed commission of the relevant offence; that the accused participated in the implementation of that agreement; that while the agreement was on foot, one or more parties to the agreement did the acts necessary to commit the charged offence; and that the accused had the state of mind necessary to commit the charged offence.8 The agreement between the parties need not be express or the subject of any planning; it may be tacit and inferred from the parties’ conduct, arising essentially spontaneously. 74 In the context of an allegation of a joint enterprise to rape a complainant, the actus reus is sexual intercourse without the complainant’s consent; and the parties must agree that they will have sexual intercourse with the complainant without their consent (with the accused’s mental state being one of either knowing of, or being recklessly indifferent to, that lack of consent).9 75 There is no dispute that the complainant’s evidence, if accepted as reliable, was sufficient to establish the appellant’s guilt of Counts 1 and 2 pursuant to a joint criminal enterprise with JS. The prosecution case in this respect was a relatively simple one; namely, that each of the appellant’s agreement to rape the complainant, his mental state, and his participation, was to be inferred from the appellant’s statement to JS that ‘now’s your chance … you can get what you’ve wanted and stuff’, and his subsequent conduct in holding the complainant down (despite her 8 Mitchell v The King (2023) 276 CLR 299 at [54]-[55] (Gordon, Edelman and Steward JJ); McAuliffe v The Queen (1995) 183 CLR 108 at 114 (the Court); Likiardopoulos v The Queen (2012) 247 CLR 265 at [19] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 9 R v Bekele [2026] SASCA 9 at [148] (Bleby and David JJA); cf Kourakis CJ, who held that it is necessary that the accused have a belief in the lack of consent. Nothing turns on this distinction as to the mental element in the context of the present case. -- 16 of 21 -- [2026] SASCA 30 The Court 15 protests) while JS then performed cunnilingus and digitally penetrated the complainant’s vagina. 76 Before addressing the appellant’s complaints about the judge’s directions in relation to his liability for participation in a joint criminal enterprise, it is appropriate to commence the analysis of this ground by setting out his Honour’s directions on this topic:10 [1] The prosecution case is that both the accused and [JS] engaged in a joint enterprise to commit the relevant offences in counts 1 and 2 that are before you. The prosecution says you can be satisfied on the whole of the evidence that both the accused and [JS] engaged in a deliberate course of conduct with each other. The law says that if two or more persons join in a joint criminal enterprise every act done and every word spoken in furtherance of that enterprise by any of these people is, in law, done and spoken by all of them. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed can make them all guilty in the resulting crime. [2] The law considers that in such circumstances each person is acting on their own account and on behalf of any other person that’s part of the agreement and participating. The concept of a joint criminal enterprise implies that the persons concerned are acting as a team to achieve a mutually agreed outcome. [3] There is an example of this which is commonly provided. Two or more people agree to rob a bank and further agree that one of them will enter the bank and the other will remain outside with the car with the engine running keeping watch, and if that agreement is then implemented with both participating in that agreement in some way then they can both be guilty of the crime of robbing the bank, even though only one person actually went into the bank and took the money. [4] The person waiting outside can be equally guilty as the person who went into the bank, despite not setting foot into the bank. [5] It is not enough that a person enters into an agreement to commit a crime. Having entered into the agreement they must then participate in that agreement in some way to be responsible for the subsequent conduct of others if involved in that same agreement. [6] In this case the prosecution must prove beyond reasonable doubt on counts 1 and 2 that there was an agreement between the accused and [JS] to jointly commit the offence of rape against the complainant. That necessarily would require proof beyond reasonable doubt that both the accused and [JS] formulated a plan to, and engage in, firstly, acts of sexual intercourse without the consent of the complainant and knowing or being reckless that the complainant did not consent to each act of intercourse. [7] In the circumstances of this case if you are not satisfied beyond reasonable doubt as to the existence of the agreement to commit each element of the offence on counts 1 and 2 then your verdicts on counts 1 and 2 will be verdicts of not guilty. 10 Paragraph numbering inserted for ease of reference. -- 17 of 21 -- [2026] SASCA 30 The Court 16 77 The judge then turned to the Count 3 allegation of rape, explaining the prosecution case, and noting that joint criminal enterprise did not arise for consideration in relation to that offence. 78 The judge next addressed the elements of the offence of rape (being essentially (i) engaging in sexual intercourse with the complainant, (ii) without the complainant’s consent, and (iii) with the accused knowing, or being recklessly indifferent, as to that lack of consent). 79 In relation to the first element, the judge identified the three acts of sexual intercourse for Counts 1, 2 and 3 (being the cunnilingus by JS, digital penetration by JS, and penile-vaginal intercourse by the appellant), and reminded the jury of the need to be mindful of his directions in relation to joint enterprise when considering Counts 1 and 2. The judge then addressed the remaining two elements: [8] So the next two matters that the prosecution must satisfy you beyond reasonable doubt of are, first, that [the complainant] was not consenting to the acts of sexual intercourse with [JS] and the accused, and if so, that Mr Wilton knew that she was not consenting, or was recklessly indifferent as to whether she was not consenting. So they are the next two things that you need to consider. [9] A person consents to sexual activity, including sexual intercourse, if that person freely and voluntarily agrees to the sexual activity that’s taken place. The person’s consent can be given verbally or expressed through their actions or both. [10] The two elements that we are now talking about, firstly, concern [the complainant’s] state of mind and then, secondly, the state of mind of the accused. [11] It will be apparent from what I am about to say that it is never enough in a case of rape for the prosecution to only prove that the alleged victim was not consenting. That, of course, must be proved but in addition it must also be proved that the accused knew that the alleged victim was not consenting, or was recklessly indifferent as to whether the alleged victim was not consenting, but decided to go ahead and have sex anyway. 80 In the particulars in support of Ground 2 of his appeal, the appellant identifies what he contends are four inadequacies in the judge’s directions about the operation of the principles of joint criminal enterprise in relation to Counts 1 and 2. In essence, they are that the judge failed: • to identify the evidence that established the existence and scope of the joint criminal enterprise; • to direct the jury that they must be satisfied beyond reasonable doubt that the appellant and JS shared a common intention to commit the particular sexual acts without the complainant’s consent; • to direct the jury that mere presence while JS performed the relevant sexual acts was sufficient to establish joint criminal enterprise; and -- 18 of 21 -- [2026] SASCA 30 The Court 17 • to direct as to how the mental state of JS could be relevant. 81 It may be accepted that the judge’s directions in relation to the operation of the principles of joint criminal enterprise in relation to Counts 1 and 2 were economical. The judge could have been more thorough and precise in his directions on this topic. 82 However, in assessing the adequacy of the judge’s directions, and in particular whether they occasioned a material miscarriage of justice, it is important to bear in mind that the judge’s task was to direct the jury as to so much of the law, and its application to the facts, as was necessary to guide the jury in their determination of the real issues in the case.11 The judge was not required to, and indeed it may have been an unhelpful distraction to, direct the jury in relation to aspects of the law in relation joint criminal enterprise which did not have any practical role to play in determining the real issues in the case. 83 In terms of the real issues in the present case, as mentioned, the prosecution case against the appellant in relation to Counts 1 and 2 was narrow and clear. It was simply that the appellant and JS agreed that JS would have sexual intercourse with the complainant without her consent; and that JS then proceeded to do so. The agreement was to be inferred from the appellant’s invitation to JS that ‘now’s your chance … you can get what you’ve wanted and stuff’, and his conduct in then holding the complainant down whilst she attempted to resist JS performing cunnilingus and digitally penetrating her. As reflected in the closing addresses of both the prosecutor and defence counsel, the real issue in the case was not the proper legal characterisation of what was alleged to have occurred; the real issue was the reliability of the complainant’s description of what occurred. 84 Addressing the particulars of the appellant’s Ground 2, the first two complaints relate to the judge’s failure to identify the evidence that established the existence and scope of the agreement between the appellant and JS, and whether it extended to the particular sexual acts in question. The judge might usefully have set out the principles governing the formation of an agreement (including that it may be formed spontaneously and inferred from conduct). He might usefully have told the jury in more precise terms of the need to be satisfied that the scope of the agreement included the commission of sexual intercourse without the complainant’s consent, and that what JS did was within the scope of that agreement. However, we do not think a formal or detailed approach to these issues was necessary in the present case. The judge told the jury in plain terms that it was necessary to find that the appellant and JS reached an agreement to commit the relevant crime, including by reference to his example of an agreement to rob a bank (see paragraphs [1], [2] and [3] of the directions). The judge then told the jury in equally plain terms that they needed to find that the appellant and JS agreed to jointly commit the offence of rape against the complainant; and that they had a 11 Alford v Magee (1952) 85 CLR 437 at 466 (the Court); Huynh v The Queen (2013) 87 ALJR 434 at [31] (the Court). -- 19 of 21 -- [2026] SASCA 30 The Court 18 plan to engage in acts of sexual intercourse without her consent, knowing of or being reckless as to her lack of consent (paragraph [6]). 85 If the jury accepted the complainant’s evidence as reliable, there was, as we have explained, no real issue about whether the appellant’s conduct (in inviting JS to take his ‘chance’, and then holding the complainant down while JS had sexual intercourse with her) involved the formation of an agreement to commit rape. Further, in circumstances where there was no need for the agreement to have been specific as to the particular act(s) of sexual intercourse that would constitute the rape, we do not think there was any real issue as to whether the sexual acts performed were within the scope of the agreement. Put another way, there was no suggestion or issue in the present case that what JS did to the complainant might have been outside the scope of any agreement with the appellant. 86 As to the appellant’s third complaint, the judge directed the jury that an agreement was not enough; that they must find that the appellant then participated in the agreement in some way (paragraph [5]). It is true that the judge did not explain the breadth of the concept of participation in this context. However, it is difficult to see how this omission, if it be one, was of any consequence in the present case. Even accepting that presence during the commission of the charged crime pursuant to the agreement may establish participation,12 any failure to appreciate this breadth of the concept of participation could only have been favourable to the appellant. But more fundamentally, it would have been clear to the jury that the prosecution case was that the appellant participated by holding down the complainant while JS performed the sexual acts the subject of Counts 1 and 2. The real issue in the case was not the breadth of the concept of participation; it was the reliability of the complainant’s allegation of participation in the manner described. 87 As to the final complaint raised by the appellant, it may be acknowledged that the judge’s directions were not entirely clear as to the need for the jury to be satisfied that JS knew that the complainant was not consenting, or was recklessly indifferent as to that consent, at the time he was performing cunnilingus and digitally penetrating her vagina. In describing the elements of the offence of sexual intercourse, the judge directed the jury that the third element required that ‘the accused’ knew, or was recklessly indifferent to the fact, that the complainant did not consent. In context, this was presumably a reference to the perpetrator’s state of mind. However, when the judge returned to the issue in the context of the case in joint enterprise against the appellant, his Honour’s references to the state of mind of ‘the accused’ (paragraphs [8], [10] and [11]) appear to have been directed to the state of mind of the appellant. 88 This lack of precision in the judge’s directions is unfortunate, but we are not persuaded that it was ultimately of any consequence. To the extent that the judge may have been proceeding on the basis that the appellant was required to have the 12 Huynh v The Queen (2013) 87 ALJR 434 at [38] (the Court). -- 20 of 21 -- [2026] SASCA 30 The Court 19 described state of mind beyond the point of entry into the agreement, and at the time the acts of sexual intercourse were performed (by JS), then this was erroneous – but favourable to the appellant. There being no suggestion of any withdrawal from any agreement by the appellant, his state of mind at the time of the acts of sexual intercourse was not to the point. 89 To the extent that the judge did not make it clear to the jury that it was necessary that JS had the described state of mind at the time he perpetrated the acts of sexual intercourse alleged by the complainant, this was of no consequence where: the jury were clearly told they had to find that JS had agreed to rape the complainant; and, on the complainant’s evidence, it could not seriously be suggested that he did not have this state of mind. In circumstances where, on the complainant’s evidence, the complainant was being held down, saying stop, yelling and thrashing her legs about, the real issue was the reliability of the complainant’s evidence about these matters, and not whether JS knew that the complainant was not consenting (or was recklessly indifferent as to her consent). 90 We acknowledge in this context that, following the completion of the judge’s summing up, the jury sent a note asking for ‘a more in-depth legal definition of ‘reckless indifference’’. Whilst this suggests that the jury were interested in understanding this aspect of the mental element for the offence of rape, we do not think it suggests any confusion about the requirement that JS have this state of mind at the relevant time. In our view, that was not a real issue in the case. Further, we are not persuaded that this note required that the judge embark upon any attempt to elaborate upon his directions as to the principles of joint criminal enterprise. We do not think the note suggested any issue, or called for any assistance, in relation to those principles. 91 In summary, we are satisfied that the judge’s directions as to the operation of the principles of joint criminal enterprise in the context of Counts 1 and 2 were adequate. They provided sufficient guidance to the jury in their application of those principles to the real issues in the case. We do not consider that any errors, omissions or confusion in his Honour’s directions resulted in a miscarriage of justice. Nor, in any event, was any error, omission or confusion material, in the sense that it was realistically capable of influencing the jury’s reasoning to guilt, given that the only forensic contest at trial was the reliability of the complainant’s evidence. 92 This ground of appeal has not been made out. Conclusion 93 For the reasons given, we grant permission to appeal but dismiss the appeal. -- 21 of 21 --