SHARMA (A PSEUDONYM) v THE KING [2026] SASCA 29

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE DAVISON) DCCRM-22-739 Appellant: SHARMA (A PSEUDONYM) Counsel: MR J LYONS - Solicitor: NORTHSIDE LAWYERS Respondent: THE KING Counsel: MS A FISHER WITH MS N SLATER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/03/2026 File No/s: SCCRM-25-017202 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. SHARMA (A PSEUDONYM) v THE KING [2026] SASCA 29 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice B Doyle) 26 March 2026 CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - ELEMENTS OF OFFENCE GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE The appellant was found guilty by a judge sitting without a jury of two counts of rape and one count of aggravated indecent assault against his ex-partner. The appellant appeals against his conviction, contending that: 1. the judge erred by exercising power pursuant to s 128(2) of the Criminal Procedure Act 1921 (SA) (‘CPA’) to amend count 1 on the information so as to conform with the complainant’s evidence at trial regarding the event in question and, alternatively, the trial miscarried by reason that the appellant was not re-arraigned following the amendment (grounds 1 and 1A); 2. the judge erred in fact in finding that there was consistency in the evidence of the complainant with the initial complaint (ground 2); 3. the verdicts were unreasonable or could not be supported having regard to the evidence by reason of inconsistencies affecting the credibility and reliability of the complainant’s account and by reason that even accepting the honesty of the complainant’s account there remained a reasonable doubt as to whether the appellant knew of, or was recklessly indifferent as to, the complainant’s lack of consent (ground 3). -- 1 of 27 -- Held, granting permission to appeal so far as is necessary, but dismissing the appeal: 1. in circumstances where it was expressly conceded that the amendment to the information would cause no forensic disadvantage there was no injustice within the meaning of s 128(3) of the CPA, the power or discretion to amend the information did not miscarry, and there was no need to re-arraign the appellant; 2. a complaint that the judge erred in fact does not without more engage a ground of appellate intervention in s 158(1) of the CPA and, in any event, the judge’s observations to the effect that the complaint evidence was generally consistent with the complainant’s account respecting counts 2 and 3 was not erroneous; 3. the verdicts were not unreasonable. Criminal Law Consolidation Act 1935 (SA) ss 5(1), 46(2), 48, 56; Criminal Procedure Act 1921 (SA) ss 128, 158(1), referred to. Ayles v The Queen (2008) 232 CLR 410; Bowen (a pseudonym) v The King [2025] SASCA 36; Cleanaway Operations Pty Ltd v Hanel [2025] SASCA 112; Hilliard v The King [2025] SASCA 91; Ilich v The Queen [2021] SASCA 45; Jago v District Court (NSW) (1989) 168 CLR; Kaporonovski v The Queen (1973) 133 CLR 209; Lawrence (a pseudonym) v The King [2024] SASCA 145; R v B [1999] SASC 403; R v Bekele [2026] SASCA 9; R v Murphy (1988) 52 SASR 186; R v Radley (1973) 58 Cr App R 394; R v S, GS [2025] SADC 43; R v VHP unreported, Court of Criminal Appeal, NSW, No 60773 of 1996, 7 July 1997; Ridgeway v The Queen (1995) 184 CLR 19, discussed. -- 2 of 27 -- SHARMA (A PSEUDONYM) v THE KING [2026] SASCA 29 Court of Appeal – Criminal: S Doyle, David and B Doyle JJA 1 THE COURT: The appellant was charged with two counts of rape1 and one count of aggravated indecent assault2 against a single complainant, his ex-partner. Following a trial by judge alone he was found guilty on each count. This appeal is against those convictions. 2 The appellant and the complainant married in India in February 2004 and moved to Australia in March 2009. They have two children. In December 2014, they moved to a home in Lightsview. Whilst the reasons were disputed at trial, it was common ground that there were relationship difficulties which saw the appellant and the complainant live separately for a time. After a five month separation, the complainant and her mother, as well as the children, returned to the Lightsview address at the end of July 2021.3 3 Count 1 comprised an allegation of rape on the evening of 28 August 2021. Count 2 comprised an allegation of rape on the evening of 23 September 2021. Count 3 alleged an aggravated indecent assault on the morning of 24 September 2021. There was evidence that later that morning the complainant made a complaint to a girlfriend PK, with whom she had worked in childcare. PK called the police that day, and that set in train the complainant being medically examined at Yarrow Place, as well as swabs being taken of parts of the appellant’s body. Investigators also seized a CCTV hard drive from the appellant’s premises which, as will be explained, contained some footage of particular relevance to count 2. The appellant was interviewed on 24 September 2021. 4 The appellant gave evidence at trial. He denied that sexual contact of the kind the subject of counts 1 and 3 occurred at all. In respect of count 2, his evidence was that there was consensual sex. He denied any non-consensual sex with the complainant. 5 The judge found that the evidence of complaint was consistent with the complainant’s account concerning counts 2 and 3, and supported that version of events.4 The judge found the complainant to have given evidence in a composed and thoughtful manner.5 Like the other prosecution witnesses, the complainant was found to be credible and reliable.6 1 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 48. 2 CLCA, s 56. 3 R v S, GS [2025] SADC 43 (‘Reasons’) [1], [21]-[25]. 4 Reasons [434]. 5 Reasons [476]. 6 Reasons [492]. -- 3 of 27 -- [2026] SASCA 29 The Court 2 6 The appellant was considered to be a most unsatisfactory witness,7 although the judge made clear that her decision not to accept him as credible or reliable did not mean that the charges were proved. It remained necessary, putting his account to one side, to consider whether the charges had been proved beyond reasonable doubt.8 7 The judge’s findings on the critical issues are summarised in paragraphs 3-10 of a concluding part of her reasons for verdict:9 3. The accused began looking through her phone and found innocuous messages between her and her friend, YK. He then began suggesting that she was having a sexual relationship with him. She denied any sexual relationship. I find that she was not engaged in a sexual relationship with YK. 4. On 28 August 2021, the complainant and the accused were in their bedroom together. They were drinking. The accused raised the topic of her alleged infidelity. He wanted her to admit that she had numerous partners. They argued. Her mother, who was in the third bedroom, telephoned them, saying she could hear them arguing and they should get to bed. 5. This upset the accused, and he asked why her mother was bothering them. He then came to bed and was trying to take the complainant’s clothes off. She was resisting that, saying that she was not going to take her clothes off and she was not going to have sex with him tonight. He became more aggressive. He held her legs to her chest and pushed her hands above her head. He could not get his penis into her vagina and asked her to do this for him. She complied. The complainant stopped resisting as she knew there was no point. The accused had vaginal sexual intercourse with her. She was not consenting, and he knew she was not consenting or, at the very least, was recklessly indifferent to whether she was consenting. The accused was behaving aggressively. She had told him she did not want to have sex with him, and he was very rough. 6. The following day, she noticed bruises on her outer thighs, took photos of those bruises. Those photos were tendered and marked Exhibit P4. 7. They separated after this event. It was decided they would live in separate rooms. Following the separation, the accused slept in the master bedroom, and the complainant slept in either the second or third bedroom. 8. On 23 September 2021, the complainant was sleeping in the third bedroom with her children. Her mother had returned to India by this time. In the middle of the night, the complainant heard someone enter her bedroom but pretended to be asleep. The accused started to pinch her leg to get her attention. They both went into the living room. The accused went towards her to try and grab her, she ran away from him around the dining room table. He grabbed her, and she tried to resist. He put her over his shoulder and walked down the hallway to the bedroom. He took her to the bedroom; she tried to pinch him, but did not resist as she thought it would be easier to let the accused do what he wanted. 7 Reasons [493]. 8 Reasons [499]. 9 Reasons [500] (footnotes omitted). -- 4 of 27 -- [2026] SASCA 29 The Court 3 9. In the bedroom, he put her on the bed, removed her pyjama pants, pushed her onto her back and got on top of her. He could not insert his penis so asked her to do it. He told her to kiss him. She said no. At one point during the act of intercourse, the accused said, ‘You want this too, you are wet and you are just refusing, but you want this too.’ She did not respond. He requested that she perform fellatio on him, but she turned her head. The accused had vaginal sexual intercourse with her. I find that the complainant was not consenting to that act of vaginal sexual intercourse and that the accused knew she was not consenting as he had forcefully taken her to the bedroom. She had, at no stage, consented to sexual intercourse, and he acknowledged by what he said that he knew she was not consenting. 10. The following morning, the complainant was in the third bedroom with the children. She was lying in the middle of the children. The accused entered the room and lay down next to their son. He then moved his hand to touch the complainant’s breast and put his hand down the back of her pants and touched her buttocks. She was not consenting to these acts, and he knew she was not consenting as these acts were occurring in the presence of the children and she had made it clear that she did not wish to engage in sexual activity with him. I am satisfied beyond reasonable doubt that to assault a person in this way in these circumstances is indecent. 8 The appellant advances four grounds of appeal. Grounds 1 and 1A are related. They concern the judge’s decision to permit count 1 to be amended so as to more precisely conform with the complainant’s evidence at trial. Ground 1 complains that the discretion to amend the information was improperly exercised because the amendment could not be made without causing injustice.10 Ground 1A complains that the appellant was not re-arraigned following the amendment, which it is said had the result of him being tried and convicted for a different offence. 9 Ground 2 complains that the judge erred by finding that the timing and content of the complaint in respect of counts 2 and 3 was consistent with the complainant’s account and supported her version of events. As will be explained, this ground must be considered as an aspect of ground 3, which contends that the verdict is unreasonable or cannot be supported having regard to the evidence.11 10 For the more detailed reasons that follow, the amendment to the information did not mean that the appellant was being prosecuted for a different offence. The amendment was appropriate to ensure that the information better conformed with the complainant’s evidence, and might preferably have been made sooner, but in circumstances where it was conceded that this would have made no forensic difference to the conduct of the appellant’s case, there was no ‘injustice’ in the requisite sense. Nor was there any need to re-arraign the appellant. 11 In respect of ground 3, for the more detailed reasons that follow, the verdict has not been shown to be unreasonable or unsupportable having regard to the evidence. Considered cumulatively, the matters emphasised on appeal by the appellant are not such as to demonstrate an ineradicable doubt as to the credibility or reliability of the complainant’s account. And nor was this a case where it could 10 Criminal Procedure Act 1921 (SA) (‘CPA’), s 128(3). 11 CPA, s 158(1)(a). -- 5 of 27 -- [2026] SASCA 29 The Court 4 be said that, even if the complainant’s account were accepted, there remained a reasonable doubt as to whether the appellant possessed the required mental state. Ground 1 12 The particulars of count 1 on the information initially alleged that: [The appellant] on the 28th day of August 2021 at Lightsview, continued to engage in sexual intercourse with [the complainant] by inserting his penis into her vagina, after her consent had been withdrawn, knowing or being recklessly indifferent to the fact she had withdrawn her consent. 13 The complainant’s evidence at trial was that the appellant had returned home from Melbourne that day. After putting the kids to sleep they were sitting on the floor of the master bedroom consuming alcohol. She drank a glass whilst he drank the balance of two bottles of wine. The complainant’s mother was at that time staying in another bedroom in the house, which was towards the rear of the house (the master bedroom being located immediately adjacent the front door). The appellant was accusing the complainant of having multiple partners, something they had argued about before. 14 Towards around 11 or 11.30 pm, the complainant’s mother called on her phone, saying she could hear the argument, that it was too late and to go to bed. By this time the complainant was sitting up on the edge of the bed. The appellant kept on talking and he became more aggressive after this call, saying the complainant’s mother was interfering and asking when she would be leaving. 15 The complainant’s evidence was that:12 A He, he came on the bed, he came on the bed and he was like trying, he tried to take my clothes off and I said 'I'm not going to have any anything with you now, I'm not doing, I'm not going to take off my clothes because whatever you have said to me, it's still going through in my mind and it wasn't good. I am not going to have sex with you tonight' but then he said 'No, you have to' and he became very aggressive. I was trying to resist, I remember me crossing my legs and pushing him away with my arms, but that didn't go very well. Q You've given evidence that he inserted his penis into your vagina. Now what position were you in when he did that. A When I was resisting, I remember him holding my legs very tight and they were on my chest, both of my legs and he was also holding my hands. My hands were like this on the top (INDICATES). He was holding my legs as well. I think his, I don't know how he managed, but my legs and hands was, is in control, in his control. Q For the benefit of the transcript, I understand that your hands were above your head, is that correct, and they were held above your head, is that what you're saying. 12 Answers preceded by an asterisk are recorded in the transcript as having been given through an interpreter. -- 6 of 27 -- [2026] SASCA 29 The Court 5 A I think so. Because I remember about my legs very - I remember that. I believe my, I think my hands were behind me, like on my head. Q What was he doing to your legs. A He kind of had it this way also, like hand on my legs, this hand on my chest and my legs at the bottom (INDICATES) and then at some point, he was holding my only legs, he was holding them, from side of my legs, from my thighs, both thighs, and he was pressing it towards my chest (INDICATES). Q So you've just held your arm up to the side in a horizontal way. What part of his arm or hand was making contact with your body. A How should I explain that? A * So he pushed my both legs with his both hand towards my chest. So he pressed both legs from the thighs. He hold, he held from the thighs and he pushed towards my chest. Q So at this time that he was holding your thighs towards your chest, were you still lying on your back. A Yes. Q At that time, was he saying anything. A I exactly don't remember, but he was saying something like 'Who will you call now? Is your mum going to come now? What do you want to do?', and he also said 'The more you move, the more you resist, it's going to take longer and it will hurt. So it's better you just relax'. Q When he was holding your legs in that way, was his penis in your vagina. A Yes. Q What did you do. A At one point I stopped resisting because I knew now there's no point. Q What did it feel like. A All those traumas from past, I remembered it at that point and, and I was also thinking 'Where is this going now? What am I going to do? I left the house, I came back in the house, this is happening again. What I'm going to do now'. This is what all I was thinking at that time. Q Did it hurt. A At that time it was hurting, was like my vagina is, I was feeling it's very hot, it was burning and it pains the next day more. Every time that happened to me, the next day, the morning, the next day, it's hard to go through the day looking after the kids, going to work, doing housework. It's hard. For next few days it's hard. Q Did you say anything to him about it hurting, that is during the intercourse. -- 7 of 27 -- [2026] SASCA 29 The Court 6 A Yes. I said 'It's hurting. It's hurting me'. Q Did he say anything. A He - he didn't care about it, he always thought that I'm just exaggerating things. Q How long did he have sexual intercourse with you during this incident. A It took time for him to ejaculate because I was resisting and it took time, I think two, three minutes, around. Q You've just given evidence that at a point you stopped resisting, prior to stopping resisting how were you resisting. A I remember him saying 'It's hurting, stop', before I was moving my legs and my arms to move him but then he had control over me. But I remember I was struggling in the bed that day and I kept on saying 'No' and pushing him away. Q When you say struggling with your arms and legs, what do you mean. A Because he had control over me. He is very strong and I was not at that time. I'm still not physically strong but he was very strong. Q During this incident to what extent was [the appellant] impacted by the alcohol. A That night? Q Yes. So during the time that he was inserting his penis into your vagina, to what extent did you observe he was affected by alcohol. A He was not very much affected as compared to when he drinks whisky. He was in his senses. I cannot say that he was very drunk. Q Did you notice any signs that he was intoxicated. A His aggression. Q Did he ejaculate. A Yes. Q How did you know. A Because that's when he stopped. Q Throughout this incident, throughout the time that he was having sexual intercourse with you, were you only lying on your back or were you in any other positions. A In start he did move me around, he was not able to ejaculate so he did move me around. I remember me - my hands on the bed and him - my back was turned towards him and he was behind me, I remember that. I was resisting that time as well but then he tossed me around again and then I was on the back and he was on top of me, that's how he had a control over my body and that's when he ejaculated after few minutes. Q Now, did you receive any injuries from this incident. -- 8 of 27 -- [2026] SASCA 29 The Court 7 A I had - I saw bruises on my thighs next morning, on both my thighs. 16 The complainant went on to explain that she took photographs of this bruising. These were admitted into evidence.13 As is apparent from the answers set out above, the complainant’s evidence was that there had been previous instances of non-consensual sex between them. 17 In cross-examination, the appellant’s counsel raised with the complainant that in a statement given to police on 24 December 2021, she had said:14 On Saturday, 28th August 2021, [the appellant] had returned from his work trip to Melbourne. … I do not recollect the exact incident, but after getting drunk, [the appellant] started touching me and wanted to have sex with him. I gave in since I did not want the situation to escalate. [The appellant] angry at me for having left home and also having argued with him, became very rough with me. He grabbed my legs and bent me causing my knees to touch my forehead and began to roughly penetrate my vagina. I was in extreme pain, yelled out asking him to stop. I told him it was hurting me but he did not stop and continued thrusting himself into me. … 18 The complainant agreed that she had made a statement in those terms. It was put to her that what she was saying there was that she had allowed him to initially have sex with her but that, during the course of the sex, because he was rough, she told him to stop. She disagreed, saying: ‘The way you are saying it I didn’t say it that way’. 19 In the course of the cross-examination that followed, the judge expressed a doubt that the statement ‘I gave in’ could fairly be equated with consent, as the cross-examiner’s question seemed to assume. At all events, the complainant agreed that she had not told the police that, before any penetration, she had said to the appellant that she did not want to have sex with him. She nevertheless maintained the evidence she gave in court, and denied that she was lying or had entirely made up that there had been a sexual encounter on the occasion in question. 20 In the course of the prosecution’s closing address, the judge inquired of the prosecutor whether the particulars of count 1 accurately reflected the prosecution case. The prosecutor took instructions from the Director of Public Prosecutions and made an application to amend the information so that the particulars would read: [The appellant] on the 28th day of August 2021 at Lightsview engaged or continued to engage in sexual intercourse with [the complainant] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not consenting. 13 Exhibit P4. 14 Exhibit P16. -- 9 of 27 -- [2026] SASCA 29 The Court 8 21 The appellant opposed the amendment, emphasising that it had not been made at the end of the prosecution case, but had only been made after the appellant’s evidence. It was ‘just too late’. 22 The trial judge gave the appellant’s counsel an opportunity to consider whether he could advance any submission that the appellant would be prejudiced by the amendment. The appellant’s counsel conceded that the appellant’s defence was that the charged conduct ‘never happened’ and that had the amendment been made earlier it would not have changed his cross-examination of the complainant one way or the other. The appellant’s counsel said he could not contend he had been forensically disadvantaged. However, he maintained his objection ‘just in case I have missed anything’. 23 The judge granted permission to amend in the terms indicated. 24 Section 128 of the Criminal Procedure Act 1921 (SA) (‘CPA’) provides: 128— Objections to informations in superior court, amendments and postponement of trial (1) An application to quash an information on the basis of a formal defect apparent on the face of the information must be made before the jury is empanelled and not afterwards. (2) Subject to subsection (3), the court may before trial, or at any stage of a trial, make an order to amend an information as the court thinks necessary if — (a) the information is defective; or (b) there is a variation between a particular stated in the information and the evidence offered in proof of that particular. (3) An order should not be made under subsection (2) if, having regard to the merits of the case, the proposed amendment to the information cannot be made without causing injustice. …. (7) Any power of the court under this section is in addition to and does not limit any other power of the court for the same or similar purposes. 25 Ground 1 contends that the discretion reposed in the trial judge by s 128 of the CPA miscarried, including by reason that the judge should have considered that the amendment was first raised by her Honour and very late in the trial. 26 As developed on appeal, the appellant’s contention was that the expression ‘injustice’ in s 128(3) was not confined to forensic disadvantage or prejudice. The appellant submitted that the result of allowing the amendment in this case was to deny the appellant an acquittal, and that this would be an injustice. -- 10 of 27 -- [2026] SASCA 29 The Court 9 27 In our view, neither the premise, nor the conclusion, is made out. First, as will be explained, it is not clear that, absent an amendment, the appellant was entitled to an acquittal. 28 Secondly, even if that were the case, the loss of an acquittal is not, without more, relevant injustice for the purposes of s 128(3). One of the evident purposes to be served by permitting an amendment is to avoid a situation where, by reason of a defect in its drafting, or by reason that the evidence differs from the particular offending charged, a defendant may be entitled to point to the form of the information in support of a directed acquittal or verdict of not guilty. 29 The concept of injustice in s 128(3) requires a consideration of whether, over and above that consequence, allowing the amendment would result in a relevant unfairness, or would otherwise be contrary to the wider interests of justice at stake in a criminal prosecution. 30 The lateness of an application, particularly if unexplained, may well weigh heavily where its success would result in delay, forensic disadvantage or unfairness in the trial. However, because of the broader public and community interest in the conviction of those guilty of crime,15 it would rarely if ever be appropriate to deny an amendment simply to mark the court’s disapproval of delay on the part of a prosecuting authority (at least where no forensic decision or improper purpose can be discerned). 31 It may be that in cases of significant delay, relevant prejudice is more readily to be inferred. But regard must still be had to the nature of the amendment and a realistic assessment must be made of its practical significance in light of the forensic issues in the case. In Lawrence (a pseudonym) v The King,16 the Court observed that:17 An amendment which increased the maximum penalty to which an offender had already pleaded guilty might in other circumstances be regarded as causing injustice to the offender. However, in the particular and unusual circumstances of this case, the amendment does not cause injustice. If the defect had been discovered before sentence, an application could have been made pursuant to s 128 and it could hardly have been resisted. It was not suggested to this Court that there was any reason to think that the applicant would have sought to change his plea. Given the nature and strength of the prosecution case, that is hardly surprising. In such circumstances, the theoretical possibility that by allowing the amendment at this stage the Court would be denying the applicant the opportunity to set aside his guilty plea in relation to the offending against TF; then to be re-arraigned, and then to plead not guilty is not a sufficient basis to conclude that the amendment in this case would be productive of injustice. 32 In the present case, the appellant denied that any sexual activity of the kind alleged as part of count 1 took place. To the extent that the original formulation 15 Ridgeway v The Queen (1995) 184 CLR 19 at 32 (Mason CJ, Deane and Dawson JJ), Jago v District Court (NSW) (1989) 168 CLR 23 at 33 (Mason CJ), at 61 (Deane J). 16 [2024] SASCA 145. 17 [2024] SASCA 145 at [30] (Kourakis CJ, David JA and Bond AJA). -- 11 of 27 -- [2026] SASCA 29 The Court 10 of the information reflected the complainant’s statement to police, any discrepancy between the way in which the statement had been expressed and the complainant’s evidence at trial was, as one might expect, the subject of cross-examination of the complainant. 33 Had the complainant not been challenged on the basis of a bold strategic decision that her account could not support a finding of guilt of the offence as particularised, the position might be different. Had the appellant’s decision whether to give evidence been influenced by a view as to the effect of the count as particularised, that may also have been important. However, the appellant’s counsel indicated to the trial judge that had the amendment been pursued at the outset, it would not have affected the conduct of the case. The appellant’s counsel is to be commended, not criticised, for this frankness, but its consequence is that there is no room for inferred or presumed prejudice in this case. 34 Returning to the premise, the appellant’s contention was that the originally particularised offending involved an allegation of a different offence to the offence of which the appellant was ultimately convicted. In support of that contention the appellant submitted that s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) created two distinct offences. That section provides: 48—Rape (1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who— (a) does not consent to engaging in the sexual intercourse; or (b) has withdrawn consent to the sexual intercourse and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be). Maximum penalty: Imprisonment for life. 35 Section 46(2) of the CLCA provides that a person ‘consents’ to sexual activity including sexual intercourse18 if they freely and voluntarily agree to the sexual activity.19 36 The appellant submitted that s 48(1) marked a departure from the common law position pursuant to which if there was consent at the time of penetration, it did not matter what happened after that. That might be thought to be a controversial proposition. For instance, in R v Murphy,20 Cox J observed that if a 18 ‘Sexual intercourse’ includes any activity of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object: CLCA, s 5(1). 19 Section 46(3) provides that a person does not freely and voluntarily agree to sexual activity if—(a) the person agrees because of—(i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or (ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person. 20 (1988) 52 SASR 186. -- 12 of 27 -- [2026] SASCA 29 The Court 11 defendant, at the time of penetration, erroneously believed the complainant was consenting, but soon afterwards realised that he was mistaken, but nevertheless continued having intercourse, he was by his deliberate act of continuance guilty of rape.21 37 As was recently observed in Hilliard v The King,22 Cox J’s analysis was based on the recognition that sexual intercourse is a continuing act and it followed that the offence could be made out at any point during the intercourse if the second and third elements of the offence became established part-way through (such as by the withdrawal of consent).23 On this view, it may be doubted if the common law position was any narrower than s 48, at least as it was understood by the time that section was enacted. 38 In any event, it is impossible to discern within s 48(1) two separate and distinct offences. The appellant’s submission would require the sub-section to be construed as defining distinct offences where a person: • engages in sexual intercourse with a person who does not consent to engaging in sexual intercourse; and • continues to engage in sexual intercourse with a person after the person has withdrawn consent to the sexual intercourse. 39 On the appellant’s submission, in the second case, the prosecution must establish a withdrawal of consent. The appellant submitted that because the complainant’s trial evidence did not suggest a withdrawal of consent, but was instead to the effect that the absence of consent had been conveyed from the very beginning, he was entitled to be acquitted of the offence of which he had been charged, being the second of the two distinct offences described. 40 The appellant’s construction of s 48(1) should be rejected. As its express language suggests, it creates a single offence. The parsing of the offence provision required by the appellant’s submission would also create difficulties in a case where consent is absent throughout, but where the evidence shows that the defendant only knew or was reckless as to the absence of consent after a time, but continued to engage in intercourse. That is to say, the appellant’s construction seems to limit the circumstances in which ‘continuing to engage’ may comprise the physical element to those cases where consent exists but is withdrawn. 41 In our view, s 48(1) creates a single offence. The physical element is satisfied by engaging or continuing to engage in sexual intercourse. The next (circumstance) element is that consent must be absent.24 The final element is that 21 (1988) 52 SASR 186 at 201. 22 [2025] SASCA 91. 23 cf. [2025] SASCA 91 at [49] (Livesey P, Bleby and David JJA). 24 R v Bekele [2026] SASCA 9 at [6] (Kourakis CJ), Kaporonovski v The Queen (1973) 133 CLR 209 at 231 (Gibbs J). -- 13 of 27 -- [2026] SASCA 29 The Court 12 at a time when the physical element is accompanied by that absence of consent, the person must know or be recklessly indifferent to the absence of consent. 42 All that s 48(1)(b) makes clear is that it is not the case that consent, once given, is irrevocable. A person may withdraw their consent. But withdrawal of consent is not an element in any meaningful sense; it simply identifies the moment of the changed status of the complainant’s consent. In practical terms, if the evidence shows that the person was consenting, it would be necessary to point to something in the evidence to suggest that that changed. 43 It follows that the appellant was not entitled, absent amendment, to an acquittal on the footing that a different offence, involving the withdrawal of consent, had been charged. 44 Whether he was, absent amendment, entitled to an acquittal, or to challenge any verdict of guilty, would turn on a consideration of whether the prosecution’s case at the conclusion of the trial involved a departure that involved procedural or substantive unfairness.25 In deciding that question, it would be relevant that: the departure from the particulars did not involve any change to the date or circumstances of the offending; the appellant had entered a plea of not guilty to a particularised allegation which implicitly accepted that consent may have originally been present; and his evidence at trial was that intercourse did not occur at all on the occasion in question. 45 It is not necessary finally to resolve the question whether an acquittal was required if the amendment had been refused. It suffices to observe that it is not obvious that that is so, and that even if removing that possibility was the consequence of granting the amendment, that was not a controlling consideration in the exercise of the power conferred by s 128(2). 46 The amendment was one which the judge considered necessary by reason of a variation between the particular stated in the information and the evidence of the complainant.26 The judge was not persuaded to exercise the power would cause injustice.27 In those circumstances, the power or discretion28 was enlivened. Whether the correctness or deference standard of appellate review applies, or whether the former applies to the question that arose under s 128(3), and the latter applies to the exercise of the power under s 128(2), no error is shown. Ground 1 must therefore be dismissed. 25 See, eg, R v VHP (unreported, Court of Criminal Appeal, NSW, No 60773 of 1996, 7 July 1997) (Gleeson CJ, Handley JA and Studdert J agreeing), referred to in Cleanaway Operations Pty Ltd v Hanel [2025] SASCA 112 at [149] (Livesey P, Lovell and Bleby JJA). 26 CPA, s 128(2)(b). 27 CPA, s 128(3). 28 The section was described in Ilich v The Queen [2021] SASCA 45 at [64] (Kelly P, Lovell and Livesey JJA) as involving a discretionary power, conditioned upon the absence of injustice. -- 14 of 27 -- [2026] SASCA 29 The Court 13 Ground 1A 47 Ground 1A contends that the appellant did not receive a trial according to law because he should have been, but was not, re-arraigned on the amended information, which charged a different offence. To the extent the ground depends on the proposition that a different offence was charged, for the reasons given in respect of ground 1, it fails. 48 In Ayles v The Queen,29 Kiefel J (with whom Gleeson CJ and Heydon J generally agreed), said that re-arraignment is usually required where the amendment is of ‘real significance’ to an accused, not where the new charge is essentially the same.30 49 The amendment here was not of real significance to the appellant, in the sense that it caused no forensic disadvantage. The amended particulars were to essentially the same effect. Fundamentally, the appellant was alleged to have engaged in intercourse without the complainant’s consent. Ground 1A is not made out. Ground 2 50 Ground 2 complains that the judge erred in fact in finding that there was consistency in the evidence of the complainant with the initial complaint. Framed in that way, it does not obviously engage any recognised ground for appellate intervention in s 158(1) of the CPA. 51 An important misapprehension of an agreed fact or about an aspect of the evidence, or demonstrably inadequate reasoning about an evidentiary issue, might conceivably ground a contention of miscarriage,31 but it cannot be said here the judge was unaware of the inconsistency contended for by the appellant. Her reasons show she correctly apprehended the state of the evidence about these issues. 52 In some cases, a mishandling of complaint evidence may involve a wrong decision on a question of law.32 However, it was not submitted that the evidence of the complainant’s statements to PK did not qualify for admission under s 34M, nor was the appeal conducted on the basis that the judge’s reasons were inadequate as a matter of law,33 though the appellant’s counsel did incidentally contend that the judge failed to grapple with the asserted inconsistency. 29 (2008) 232 CLR 410. 30 (2008) 232 CLR 410 at [83], referring to R v Radley (1973) 58 Cr App R 394 and R v B [1999] SASC 403 at [121]. 31 CPA, s 158(1)(c). See, eg, Bowen (a pseudonym) v The King [2025] SASCA 36 at [38] (Livesey P, S Doyle and David JJA). 32 CPA, s 158(1)(b). 33 cf. Bowen (a pseudonym) v The King [2025] SASCA 36 at [36] (Livesey P, S Doyle and David JJA). -- 15 of 27 -- [2026] SASCA 29 The Court 14 53 An assertion that a judge sitting without a jury has erred in fact might form part of a broader contention that the verdict is unreasonable or unsupportable.34 The appellant does in fact rely on the asserted inconsistency in support of appeal ground 3. 54 It follows that the substance of appeal ground 2 is best understood as an important aspect of the broader contention made under appeal ground 3. 55 It is nevertheless convenient to deal at this juncture with the inconsistency in question. This requires a summary of the evidence relating to counts 2 and 3, and the complaint made to PK shortly after the events the subject of count 3. 56 The complainant’s evidence was that on the evening of 23 September 2021, she was sleeping in the third bedroom, with the children.35 The appellant came into the bedroom, wearing only his underwear, and was pinching her leg. She told him several times she was not ‘coming with [him]’. Becoming concerned the children would wake, she got up and walked to the living room. She told him to go to his room. He came forward and grabbed her, and she ran away from him around the dining table. He then grabbed her. She tried to resist, but he picked her up and put her over his shoulder, carrying her through the hallway to the master bedroom. As he carried her down the hallway she maybe told him ‘I don’t want to go’. 57 The appellant put the complainant down on the bed onto her back and removed her pyjamas. He attempted to insert his penis into the complainant’s vagina but was not able to do so. He asked her to do it and she complied. She was concerned if she resisted it would hurt really badly. Whilst having intercourse he said to her ‘You are just refusing but you want this too’. He asked her to kiss him, and she complied. The appellant asked her to put his penis in her mouth, but she turned her face away. He ejaculated. The complainant cleaned herself and went back to bed with the children. 58 Before turning to the evidence about count 3 and the complaint, and the cross- examination relating to that topic, it may be observed that CCTV cameras installed on the outside of the residence capture the kitchen and living room and part of the hallway. Footage from the evening in question does appear to depict the complainant trying to avoid the appellant as he approached her around the dining table. He is then seen grabbing the resisting complainant, putting her over his shoulder and carrying her down the hallway towards the bedroom.36 There are periods, whilst the appellant was walking down the hallway, where the view is partly obscured (by the wall between the windows and sliding doors). Further, the entirety of the hallway (at the master bedroom end) is not visible. 34 CPA, s 158(1)(a). 35 In cross-examination, she said that after her mother moved out, she felt safer sleeping in that room between the two children. 36 Exhibit P8. The vision shows that before proceeding down the hallway, and with the complainant over his shoulder, the appellant briefly circled back to the kitchen to turn off the light. -- 16 of 27 -- [2026] SASCA 29 The Court 15 59 The complainant said that the next morning, the appellant entered the bedroom where she was in bed with the children. He got into bed, and started touching her breasts underneath her clothes, squeezing them one at a time. She tried to move away and expressed concern that the children would see as they were both awake. The appellant put his hands down her pants and touched her bottom. He tried to touch her vagina but she pushed his hand away. 60 The appellant took the children to school. Once he left, the complainant complained to her friend, PK, in relation to the acts the subject of counts 2 and 3. PK immediately reported the matter to police. The appellant was arrested that day and participated in a recorded interview. It may be noted that at trial he admitted telling numerous lies about the offending. The judge considered these matters were relevant to his credibility, but did not engage in consciousness of guilt reasoning.37 61 The complainant’s evidence concerning the complaint was as follows: A At first, I didn’t explain her everything, I just said that he took me to his room and had sex. And she asked – I don’t remember exactly the details, but she just said ‘Just call the police’ and, yeah, that’s it. That’s all I remember. Q Did you tell her anything in relation to what had happened that morning. A I think I did explain it to her. I said he was laughing and he was again accusing me. He brought the thrush thing again. Yeah, these are all the things I told her. Q Did you tell her any of the details of what he had done to you that morning. A Not that day. Exactly I didn't tell her what happened, but I explained her little bits and pieces. Q What did you say. A It's, it happened three-and-a-half years ago. I exactly don't know what I said to her, but I remember sharing it with her that whatever happened last night, I was not comfortable and I'm scared that this will happen again. Q What did you do. A After talking to her? Q Yes. A She told me to make a call and I said 'I cannot make a call because [the appellant] has access to the phone calls' and because I have called police before, once he was very aggressive towards [one of the children] and I called the police and the police said 'It's a family matter. That's just the way of disciplining children' and they left. After that incident, [the appellant] was like, he said - 37 Reasons [460]-[472]. -- 17 of 27 -- [2026] SASCA 29 The Court 16 A * He said like 'What they can do?' So in Punjabi, we just make, like, funny word of 'police', so, yeah. A He just made fun of - A * Represent the, like in a funny way of police, what can they do. A And after that incident, like, I was a little bit scared that I'm going to make fun of myself if I called police. I didn't know about the word 'sexual assault' at all. I only got to know when police came in the house, I tried explaining them things and they told me to go to get checked. They sent me somewhere or it mentioned sexual assault victims. That's when I actually realised that I have been through this and I didn't even realise that this is a big thing, like it's - I forgot where I started. Q Did you call the police or did Puneet. A I did not call the police. I said to Puneet 'I'm not going to call the police, I'm going to make fun of myself again because nothing's going to happen'. Q Did Puneet call the police. A She called the police for me. Q And did the police then arrive at your house. A Yes. 62 Whilst the complainant did not claim a clear memory of precisely what she had said to PK, to the extent she recalled saying that the appellant took her to his room, this is not inconsistent with either the complainant’s trial account or the CCTV footage. 63 The witness PK said that she received a call from the complainant around ‘8ish’ in the morning. The complainant was crying and just crying for a while, prompting PK to ask ‘[w]hat happened you are scaring me … tell me what happened’. PK’s evidence continued: A … and then after a few minutes she started telling me what happened last night and in the morning as well she told me like two incidents. Q Was she speaking in English or Punjabi. A Punjabi. Q What words did she use, sorry, in English. A English okay. Q What did she say. Q She told me last night when she was sleeping in her like in the kids' bedroom, and [the appellant] came in the kids' bedroom and he forcefully took her outside the living room and from the living room, and she didn't want to go with him and he forcefully took her to the bedroom and then had sex with her against her will and in -- 18 of 27 -- [2026] SASCA 29 The Court 17 the morning like the 21st, in the morning, he came back where the kids were sleeping and [the complainant] were sleeping and started touching [her] inappropriately, and yeah. Q Did she say anything else about that incident in the morning. A It was in front of kids, it was very uncomfortable for her. He was trying to touch her breast and under the underpants as well. Kids could see everything so basically she can't take it because in front of kids, this kind of things started happening so she was crying so badly like she was very scared, like I could feel that she was very scared. Q Now, you've said just in relation to the previous note, she said - this is in English you've given your evidence - that she told you that he forcefully took her; do you recall now what words she used to describe that in Punjabi. A Yep. Q You do remember the words. You have to answer the question. A I have to speak in Punjabi for that? Q You do remember the words in Punjabi. A I think yeah. Should I say it? Q Q. What words in Punjabi, very, very slowly keeping in mind that the stenographer or the person typing needs to type it down, what words did she use. A Like m-e-n-u and then space, and then Dhake, that means D-h-a-k-e and then space, and then nal le gya, 'so he forcefully took me'. Q That's your translation of that phrase, I won't even try and say it. A Mm-hmm. Q After she told you those things, did you call the police. A Yes, I did. 64 In cross-examination, PK agreed to having told police that the complainant told her that she had been dragged out of the bedroom. That cross-examination was evidently based upon a statement given by PK which also provided the foundation for cross-examination of the complainant in connection with count 2. 65 In the course of that cross-examination, the appellant’s counsel asked the complainant whether she had told PK that the appellant had dragged her out from the bedroom into the lounge room. She responded ‘not this way’. She said he did not drag her. Counsel and the complainant were at cross-purposes during the cross-examination but the better reading of the exchange is that the complainant was not agreeing that she had reported the matter to PK in that way. 66 It was then put to the complainant that there was a little game they would play quite often, involving the appellant romantically picking her up, taking her -- 19 of 27 -- [2026] SASCA 29 The Court 18 into the bedroom, and having consensual sex; effectively by way of foreplay. She was adamant they had ‘never done foreplay’. She was asked about whether in Bollywood movies men were often depicted romantically picking up a woman, putting her on their shoulder and taking them to the bedroom. She said: A That was not the case here. I would have loved that but this was not the case. Q You say you would have loved it. What about when you and he for example were getting on so well after you got together after you had separated. Did it take place then. A He has never done this to me. We have lived 13 years together. He has never ever done this to me in a romantic way, no. Q But you do agree it features quite often in Bollywood movies, doesn’t it. A Yes. Q It is a cultural thing, isn’t it. A No. 67 The complainant was shown part of the CCTV footage of the incident in the kitchen and she was asked whether she had bent over slightly to make it easier for him to pick up. She disagreed and pointed out that she was resisting. It was suggested that this was just ‘mucking around beforehand … it was all a bit of a joke’; she said it was not a joke for her. When asked if she tried physically to resist him, she said she pinched him and tried to scratch him on the arms and said ‘put me down’. The pinching was when he was taking her to the bedroom on his shoulders. She agreed that she could not see this in the CCTV footage. 68 Returning to the essence of ground 2, the appellant submits that whereas PK’s evidence was that the appellant had forcefully taken her out of the bedroom, the complainant in her evidence said that she had voluntarily left the bedroom. He contends that this was a significant inconsistency that undermined the complainant’s credibility or reliability, and that the judge erred in concluding that the evidence of complaint was consistent with the complainant’s account concerning counts 2 and 3, and supported that version of events.38 69 Dealing first with the judge’s conclusion, it is apparent from earlier passages that the conclusion was intended to embrace both consistency of conduct and consistency with the allegations concerning counts 2 and 3. There can be no doubt about the former proposition. As to the latter, the judge’s conclusion should be understood as meaning that, assessed wholistically, the complaint evidence was on balance consistent with the detail of the complainant’s evidence at trial. It was not being suggested that there was perfect consistency. The judge’s earlier recitation of the bodies of evidence reveals that the judge was alive to the fact that the complainant’s trial evidence about how she left the bedroom was different to PK’s 38 Reasons [434]. -- 20 of 27 -- [2026] SASCA 29 The Court 19 recollection of what she had been told by the complainant and then relayed to police. 70 In assessing the significance of that difference, a number of matters of context are relevant. First, PK recalls the complainant being upset. Secondly, the complainant did not accept that she had said to PK that she had been dragged from the bedroom (as distinct from forcibly removed from the kitchen). Thirdly, the complainant’s version of events was not that she happily came into the kitchen at the appellant’s request. He had been pinching her feet. She had said several times she did not want to come with him, and did so because of a concern about the children. Of course, on her account, she had been sexually assaulted by him on previous occasions. It is therefore something of an overstatement to suggest that, on her trial account, she ‘voluntarily left the bedroom’. The contrast between her trial account and PK’s recollection of her complaint as to this aspect of the interactions is not so stark. That is relevant to a consideration of whether PK may have been mistaken in her recollection (either because she initially misunderstood what the complainant, in an emotional state, was saying, or because she later became confused about what had been said). It is also relevant to the possibility that the complaint may have been made in terms which were inaccurate but not so as to cast more general doubt on the credibility or reliability of the account. 71 In the end, the inconsistency is not so stark that it undermines the judge’s general observation that the complaint evidence reflected both consistency of conduct and consistency as to the details of counts 2 and 3. There was not a perfect consistency. It may even be said that there was an apparent discrepancy about one aspect, but PK’s recollection was otherwise consistent with the complainant’s account and, in a relevant respect, consistent with the CCTV footage. On our review of that footage, the sudden movements that precede the complainant being hoisted onto the appellant’s shoulder are not consistent with romantic roleplay or a playfight. The complainant seems to have been seeking to evade the appellant, and resisting him, immediately prior to being lifted onto his shoulder. Of course, standing alone, that evidence would not sustain a conviction. But it did not stand alone. Its function was to corroborate an important part of the complainant’s account. Ground 3 72 In advancing the ground that the verdicts were unreasonable or could not be supported having regard to the evidence, there were two broad contentions made. The first was that there were inconsistencies relating to the facts in issue, as well as with respect to more peripheral matters, the cumulative effect of which was that the judge was bound to experience a reasonable doubt as to the complainant’s account in respect of the three counts. The second was that even accepting the complainant’s evidence there remained a reasonable doubt as to whether the appellant engaged in the charged conduct knowing of, or being recklessly indifferent as to, the absence of consent. -- 21 of 27 -- [2026] SASCA 29 The Court 20 Inconsistencies relating to the subject matter of the counts 73 The appellant identified five inconsistencies that he submitted undermined the complainant’s evidence about each of the three counts. (1) Asserted inconsistency in relation to consent in relation to count 1 74 The appellant submitted that whereas the complainant told police she had consented to sexual intercourse but withdrawn that consent during intercourse, her evidence in court was that she did not consent to intercourse prior to penetration. 75 As the discussion under appeal ground 1 indicates, this overstates the position. The complainant’s statement to police was equivocal with respect to the question of consent at the commencement of the sexual activity. Her conclusory statement that she ‘gave in’ is not necessarily synonymous with consent within the meaning of sub-ss 46(2) and 46(3), particularly against the background of the relationship she had described. 76 Indeed, when the complainant was being cross-examined on this issue in a way that assumed she had told police she had initially consented, the trial judge made that very point, and requested that the cross-examiner be more specific in his questions about what she had said to police. 77 When this was attended to, the complainant agreed that she had not said in so many words to police that, before there was any penetration, she had stated to the appellant that she did not want to have sex with him. When it was put to her that this was because her evidence in court that she had said this to the appellant was a lie, she disagreed. In the course of the questioning on the topic the complainant said that she may not have used the word ‘sex’ because she was not comfortable at that time, and that she remembered saying in Punjabi to the appellant that she did not want to do anything with him ‘before it all started’.39 78 The question whether the complainant’s trial evidence meaningfully differed from her statement, and if so why, was a matter to be considered as part of an overall assessment of the credibility and reliability of the complainant, but it may be debated whether there truly was any inconsistency. If there was, it was not so significant that, standing alone, it gave rise to an ineradicable doubt. (2) Failure to mention count 1 in first statement to police 79 The appellant submits that the complainant did not mention the events the subject of count 1 in her statement to police on 29 September 2021, and did so for the first time in a further statement on 24 December 2021. 80 The 29 September 2021 statement was prepared following the complainant’s first discussion with police on 24 September 2021. As the respondent submits, it is not surprising that the focus of discussion was the events of 23 and 24 September 39 Reasons [139]. -- 22 of 27 -- [2026] SASCA 29 The Court 21 2021. Those were the events the complainant had relayed to PK and which led to PK’s report to police. 81 Moreover, when the complainant was cross-examined about the asserted failure to mention the events of 28 August 2021, and it was suggested that it was not mentioned because it was made up after the event, the judge raised, in the absence of the complainant, whether that was a fair proposition in light of paragraph [8] of the statement of 29 September 2021.40 In that paragraph, in the context of explaining the events the subject of count 2, the complainant said: I realized where this was going and didn’t know what to do. In the past there have been many occasions where he has used his physical strength to forcefully have sex with me and when I refuse or resist it had ended up in a bad way for me, by getting hurt. I shall provide a statement at a later date about these instances of forced sex. I realized that this was how this was going to end. I did not have anyone in the house to help and I did not want to get hurt. 82 When cross-examined further by reference to that statement, the complainant explained that the process of giving statements had been affected by her child minding and work commitments, resulting in her giving her statement in ‘little parts’. That was corroborated by Investigating Officer Ashwin Menon. 83 The complainant was squarely challenged in relation to this issue and she denied that she was being dishonest. In response to the suggestion that, if it had really occurred, she would have been anxious promptly to raise the August offending with police, she explained that by the time she was speaking to police ‘he was already away from us’. That was not an implausible explanation. 84 In the circumstances, the fact that the events of 28 August 2021 were not the subject of specific disclosure to the police until December 2021 was not highly significant. Standing alone, it did not require a reasonable doubt to be experienced about whether count 1 occurred. (3) Inconsistency between complaint and trial account regarding count 2 85 This contention has been addressed under appeal ground 2. Such inconsistency as there may have been was not, standing alone, of any great significance. (4) Pinching first mentioned in cross-examination 86 The appellant highlights that this detail was first mentioned in cross- examination. It is true that it was not in the complainant’s statements and is not visible in the CCTV footage. As a matter of detail, it is not particularly surprising or concerning that it might not be included in statements to police, and might only be raised when the suggestion is being made that she was consenting to being carried on the appellant’s shoulder. The CCTV footage is equivocal; pinching or 40 Each of the complainants’ statements was tendered as part of Exhibit P16. -- 23 of 27 -- [2026] SASCA 29 The Court 22 scratching might have occurred out of frame or in a way that is not apparent by reason of the angle of the camera. 87 The broader context should not be overlooked, namely, that the CCTV footage materially corroborates the complainant’s account. Whilst rejection of the appellant’s sworn evidence did not entail proof of the offending, it may be noted that the CCTV footage gave the lie to his account to police on 24 September 2021 that she had willingly jumped on his back and had been piggy-backed down to the bedroom. (5) Nature of touching involved in count 3 88 The appellant submitted that whereas in her evidence in court, the complainant said he was pushing his hand towards her vagina, her statement of 15 October 2021 was to the effect he touched her vagina, and her statement of 29 December 2021 did not include that detail or include reference to her vagina. 89 As the respondent has submitted, the particulars of count 3 do not allege that the appellant touched her vagina. The discrepancy between her 15 October 2021 evidence and her evidence in court was raised and answered in cross-examination in the following exchange: Q Why did you tell them that if he had not touched your vagina, why did you tell the police officer that. A English is not my first language and him touching, putting his hand in my bottom, trying to and touch my vagina, was the same thing. I said he touched my vagina, my bad – I said that but he was not able to touch it that day, I stopped it before he could do so. 90 The significance of this issue was a matter for consideration by the trial judge, like the other matters that have been addressed under this ground. There is no doubt the judge was alive to the issue.41 The judge had to make an assessment of that explanation in light of her assessment of the complainant’s evidence as a whole, and her performance as a witness. The judge was impressed by the complainant as a witness and accepted her evidence as related to the charged conduct beyond reasonable doubt. 91 Neither the matter presently under consideration, nor the other matters, alone or in combination, were of a kind that required the judge to entertain a reasonable doubt as to the appellant’s guilt. Peripheral inconsistencies 92 The appellant made submissions about four concededly peripheral matters. 93 The first concerned the complainant’s evidence to the effect that the appellant used to twist her arm such that she had attended the doctors to get her wrist 41 Reasons [161]. -- 24 of 27 -- [2026] SASCA 29 The Court 23 checked. The appellant contends that the medical records suggest she hurt her arm by lifting heavy things at her place of work. However, the records do not demonstrate that the complainant attributed any wrist injury to her work. They are consistent with the complainant having said simply that the injury was made worse by having to lift things at work. The mere fact that the complainant did not positively disclose twisting of her arm by her husband to a medical practitioner, before she (or rather PK) had made any complaint to police, is not of itself surprising. 94 The second concerned what was said to be the complainant’s unsatisfactory evidence that cameras were installed at the home to spy on her when other evidence showed they were installed before she returned to the residence. However, as the respondent has submitted, there is evidence to suggest that the cameras were installed at a time when it was under contemplation she would be returning. The complainant explained that when she noticed and queried the cameras the appellant attributed them to a security concern. She did not believe that to be the true reason because she had never been aware of such concerns. Her evidence about the reason for the cameras was therefore nothing more than her supposition or belief. Whether she was right or wrong, it was not so obviously baseless that it reflected materially on her credibility. 95 The appellant made a separate submission the ultimate effect of which was that the complainant had understated her understanding of what would be visible or recorded by the cameras, when in fact she had known what would be recorded on the cameras and intended to ‘set up’ the appellant in respect of count 2. As the respondent submits, a review of the footage suggests that any contention that the appellant’s conduct as depicted on the evening of 23 September 2021 was intentionally procured by the complainant so as to appear incriminating is far- fetched. 96 The fourth issue raised in this context was said to be the questionable veracity of the photographs of bruising of the complainant arising from the events the subject of count 1. The photographs were provided by the complainant to police on 24 December 2021 at the time she gave a statement about the 28 August 2021 offending. Those photographs were received into evidence.42 97 The timing of the provision of the photographs is consistent with the timing of the disclosure of count 1 and, for reasons earlier explained, there was an explanation given for that timing. During the trial, when an issue arose about whether copies of the photographs may still be accessible to the complainant, there was an adjournment during which she obtained them from the ‘cloud’ and it emerged that metadata associated with the photographs showed that they were taken on 29 August 2021 in the early afternoon. Whilst it was conceded through a witness that metadata can theoretically be manipulated, the circumstances of this 42 Exhibit P4. -- 25 of 27 -- [2026] SASCA 29 The Court 24 case, and the way in which the metadata came to light, suggest that to be a remote possibility. 98 The possibility of manipulation was not one which alone or in combination with the other three matters required the trier of fact to experience a reasonable doubt about the appellant’s guilt. 99 Another matter raised by the appellant may be disposed of here. The appellant submitted that the complainant possibly had a motive to lie, being that she ‘had a new man in her life’. There was no acceptable evidence of this proposition, although there is no doubt the appellant levelled this accusation from time to time. The limited DNA evidence did not justify a conclusion that the complainant had been having an affair. 100 The appellant pointed to the fact that a police officer had made a record to the effect ‘states got thrush because of multiple partners’. However, that officer’s evidence on oath was that she recalled the complainant saying the appellant was blackmailing her by saying that she had multiple partners which had caused the thrush. The complainant herself denied having had multiple partners. The judge did not consider it a reasonable possibility that the complainant was having an affair.43 There is no sufficient reason to doubt that conclusion. Other evidence 101 In assessing all these matters together, it is also necessary to have regard to the evidence which was capable of corroborating the complainant’s account and negativing the reasonable possibility that the appellant’s account was accurate. In that regard, the evidence of PK and the complainant’s mother was considered by the trial judge to be corroborative of aspects of the complainant’s history of the relationship between her and the appellant. The CCTV footage was destructive of the appellant’s account, or at least demonstrated that his original statement was a lie. In circumstances where the judge found the complainant to be an impressive witness, and where the possibility of having manipulated metadata associated with the photographs of bruising may be seen as remote, those photographs were also corroborative of her account. 102 In all the circumstances there was nothing that required the conclusion that there was a reasonable doubt about the credibility and reliability of the complainant’s account of the offending. A necessary doubt as to the appellant’s state of mind? 103 The appellant denied the sexual interactions the subject of counts 1 and 3. With respect to count 2, consent was in issue. The appellant bore no onus in relation to the absence of consent or his state of mind. As the judge observed, the 43 Reasons [481], [487]. -- 26 of 27 -- [2026] SASCA 29 The Court 25 rejection of his evidence as a reasonable possibility did not relieve the prosecution of the obligation to establish all elements of the offending beyond doubt.44 104 However, once the complainant’s account was accepted as credible and reliable, the basis for inferring that the appellant knew or was recklessly indifferent as to the absence of her consent to sexual intercourse as alleged by counts 1 and 2 became compelling. In the case of count 1, there was nothing in the appellant’s evidence that could really assist him, because he denied that the incident occurred. 105 In respect of count 1, the intercourse occurred shortly after a loud argument that had prompted a phone call from the complainant’s mother. The complainant said to the appellant she was not going to do anything with the complainant that night. The bruising shown by the photographs is also relevant. 106 In respect of count 2, the complainant was by this time sleeping in a different room. She said she did not want to come with the appellant out of that room. The complainant said that she sought to resist him in the kitchen before he picked her up and carried her to the bedroom. She pinched and scratched him and remonstrated verbally. The CCTV footage supports part of that account. Against that background, and in view of the more specific evidence given, the fact that she may have assisted in inserting his penis into her vagina, and acquiesced in kissing, does not give rise to an ineradicable doubt as to his knowledge or reckless indifference to her lack of consent. 107 Count 3 must be assessed in light of the complainant’s evidence about what occurred the previous night, and having regard to the unlikelihood that the appellant could believe the complainant to be consenting to sexual touching whilst in bed with their children. In any event, her evidence is she made statements to him that were clearly to the effect she was not consenting. 108 Once it is accepted that it was open to accept the complainant’s evidence as credible and reliable, there is nothing about the case that requires this Court, or required the judge, to entertain a reasonable doubt about whether the appellant knew or was recklessly indifferent that consent was absent. Disposition 109 To the extent necessary, the appellant should be granted permission to appeal, but the appeal must be dismissed. 44 Reasons [499]. -- 27 of 27 --