PATRICK BANNAH v THE KING [2025] SASCA 89

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE ALEXANDRIDES) DCCRM-22-760 Appellant: PATRICK BANNAH Counsel: MR J WILSON - Solicitor: CALDICOTT + ISAACS LAWYERS Appellant: JONATHAN ZAHINDA Counsel: MR A CULSHAW WITH MS T JOHANSON - Solicitor: DANNI STEPHENS LEGAL Respondent: THE KING Counsel: MR M HINTON WITH MS G HARRIS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/05/2024 File No/s: SCCRM-23-043332; SCCRM-23-043310 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. BANNAH v THE KING; ZAHINDA v THE KING [2025] SASCA 89 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson) 21 August 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS Appeals against conviction. The appellants were tried by jury on the same Information. The alleged offending occurred at a party which both appellants attended. The offending was alleged to have occurred against the -- 1 of 28 -- same complainant. The prosecution did not allege that there was a connection between the appellants offending beyond these general factors. They were found guilty of one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”). Bannah was also found guilty of attempted rape contrary to ss 48(1) and 270A of the CLCA. Zahinda was also found guilty of, dissuade or attempt to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3)(a) of the CLCA. At trial, the complainant purported to identify Bannah, but did not identify Zahinda. However, Zahinda was identified by another witness, Ms Jomah. The complainant’s credibility and reliability were in issue in both cases. The main grounds of appeal were: • the verdict of the jury was unreasonable having regard to the evidence (Bannah Ground 1); • there was an error of law, or alternatively, a miscarriage of justice, by reason of the joinder of the trials (Bannah Ground 4 and Zahinda Ground 6); • the judge’s directions as to the credibility and reliability of the complainant were inadequate (Bannah Ground 5); • there was a miscarriage of justice occasioned by the admission of the contents of the complainant’s conversation with Matha following the alleged offence (Bannah Ground 6); • the directions on the topic of initial complaint were inadequate (Zahinda Ground 8). Held (by the Court), allowing Zahinda’s appeal on Ground 8 and remitting his matter for retrial, and allowing Bannah’s appeal on Ground 1, setting aside his conviction and entering a verdict of not guilty: 1. The trial Judge directed the jury to have regard to the credibility and reliability of the complainant and Ms Jomah on a global basis. In doing so, the judge permitted inadmissible material to be admitted in both cases. 2. Bannah did not obtain any forensic advantage by reason of the joint trial. His trial was seriously compromised by the joinder, which resulted in a miscarriage of justice. It is not necessary to determine whether Zahinda suffered a miscarriage of justice by reason of the joinder. 4. After reviewing the evidence, the Court considers there is a reasonable doubt as to Bannah's guilt. The advantage they jury had in hearing the evidence is not capable of resolving that doubt and Bannah is entitled to an acquittal. 5. The trial Judge’s directions regarding the complaint evidence were inadequate. Evidence of the complainant’s initial complaint against Bannah, and its subsequent elaboration, was not admissible against Zahinda. The admission of this evidence occasioned a miscarriage of justice. Criminal Law Consolidation Act 1935 (SA) ss 48(1), 244(3)(a), 270A; Criminal Procedure Act 1921 (SA) ss 102, 158(1), referred to. Boyle v The Queen (2022) 299 A Crim R 92; Burgoyne v The King [2024] SASCA 143; Dansie v The Queen (2022) 274 CLR 651; Destanovic v The Queen (2015) 49 VR 276; Fennell v The Queen (2019) 93 ALJR 1219; Lukaj v The King [2022] SASCA 135; M v The Queen (1994) 181 CLR 487; McNamara v The King (2023) 280 CLR 201; MFA v The Queen (2002) 213 CLR 606; Mundy v The King [2023] SASCA 59; R v Assim [1966] 2 QB 249; R v Belford (2011) 208 A Crim R 256; R v Demirok [1976] VR 244; R v Glover (1987) 46 SASR 310; R v Harbach (1973) 6 SASR 427; R v Henry [2008] NSWCCA 248; R v Hogan (1990) 159 LSJS 297; R v ZT (2025) 99 ALJR 676; R v Rigney (1975) 12 SASR 30; SKA v The Queen (2011) 243 CLR 400; Subramaniam v Public Prosecutor [1956] 1 WLR 965; Talbot v The Queen [2019] SASCFC 112; Walton v The Queen (1989) 166 CLR 283; Webb v The Queen (1994) 181 CLR 41, applied. -- 2 of 28 -- BANNAH v THE KING; ZAHINDA v THE KING [2025] SASCA 89 Court of Appeal—Criminal: Lovell and David JJA and Nicholson AJA 1 THE COURT: The appellants, Bannah and Zahinda, were charged on the same Information for alleged sexual offending against the complainant, AK, the offending occurring at a party that both appellants attended. Bannah’s alleged offending occurred some hours before Zahinda’s alleged offending. The prosecution did not allege that there was any connection between each appellant’s alleged offending other than it involved AK and occurred during the party. That is, there was no allegation of joint enterprise or that either appellant aided or abetted the other’s offending. 2 AK purported to identify Bannah. AK did not purport to identify Zahinda; he was identified as the offender by the witness Ms Jomah. However, AK’s credibility and reliability were in issue in both cases. At trial, counsel for the appellants argued that the identification evidence was unreliable, and therefore the jury could not be satisfied beyond reasonable doubt that the appellants were the offenders. The appellants were both found guilty of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”).1 Bannah was also found guilty of attempted rape contrary to ss 48(1) and 270A of the CLCA.2 Zahinda was also charged with, and found guilty of, dissuade or attempt to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3)(a) of the CLCA.3 3 The appellants appeal their convictions on numerous grounds which contend, inter alia, that the appellants should have been tried separately, the trial Judge failed to give proper directions on the question of the credibility and reliability of AK’s evidence; the trial Judge failed to give proper directions in relation to the complaint evidence; the trial Judge failed to give adequate directions in relation to the identification evidence; in relation to Bannah, the verdict was unreasonable and/or cannot be supported having regard to the evidence. Circumstances of the offending 4 On 31 October 2020, the appellants attended the birthday party of a witness, Ms Jomah, at an Airbnb in Adelaide. AK, aged 15 at the time, was also invited to attend the party. Upon her arrival, AK consumed alcohol and cannabis quickly becoming intoxicated, and on her own evidence, significantly so. This was the first occasion she had consumed either alcohol or cannabis. 1 Counts 1 and 5 on the District Court Information DCCRM-22-760. 2 Count 3 on the District Court Information DCCRM-22-760. 3 Count 7 on the District Court Information DCCRM-22-760. -- 3 of 28 -- [2025] SASCA 89 The Court 2 5 While the party was said to be a “girls sleepover”, some males eventually attended. There was some dispute at trial about who had been invited. Estimates varied, but it appears that up to 10 or more males may have attended the party. 6 At trial, the prosecution alleged that during the party, AK and a male sat together talking at the dining room table. AK did not know this person but later identified him as “Con-C-Coin$”. Bannah is a musician who performs under the name Con-C-Coin$. AK described the male at the table to be wearing a long-sleeve shirt, which she later identified as white, with a sleeve rolled up revealing a tattoo on his forearm bearing script. At trial, the tattoo was also referred to as a “sleeve tattoo”. AK also said that the male was wearing a “newsboy” hat. 7 Later in the evening, AK, due to her intoxicated state, was in a bedroom, identified at trial as “bedroom 2”. She said that guests came in and out of the bedroom. Eventually a male entered the bedroom, turned off the light, and got into bed next to her. At this time, there was only one other person in the room, a female called Hareina, who was also in the bed next to AK. The male allegedly committed the offences of rape and attempted rape. AK said that although she did not see the male’s face, she could say it was the same person she had been speaking to at the dining room table earlier in the evening. She said she could make the identification from the male’s tattoo, his general build, his shirt and his newsboy hat. Later the next morning, AK accessed Bannah’s Instagram page, observed photographs of him and identified him as the offender. 8 After the male left bedroom 2, Ms Jomah came into the room and took AK into another bedroom, identified at trial as “bedroom 1”. AK gave evidence that she fell asleep in that bedroom, although her next memory is being back in bedroom 2. AK felt her pants being aggressively pulled down and she was touched around the vagina. AK was on her stomach and was unable to identify the alleged offender. Ms Jomah, who knew Zahinda, entered the room while the offending was occurring. She yelled at him to stop which he did. Ms Jomah gave evidence that she recognised Zahinda as the offender. 9 It was agreed that on 23 November 2021, Zahinda sent AK the following message via Instagram: Hey [AK], Look girl.. I understand you must be confused about what your doing. Its okay I can assure you that I DID NOT RAPE YOU because that’s just not in me and never will be. So its sad that this is what its come to. I could go to jail up to 12 years for this whether Im innocent or not. Ive been in a dark place for months because of this, cant sleep sometimes just the thought that my life could be taken away from me in a few weeks time. Especially because I just started getting my life together. Look all I really want you some you in that you really think about what your doing. You don’t have to do this even though your friends/family have been trying to convince you. Its not worth it [AK] Please drop the charges. But please don’t take this as a threat. Im sure you understand what Im saying 10 Despite the prosecution not alleging that there was any connection between the appellants offending they were jointly tried before a jury. Bannah was found guilty of the offences of rape and attempted rape. Zahinda was found guilty of rape -- 4 of 28 -- [2025] SASCA 89 The Court 3 and also of the charge of dissuade or attempt to prevent or dissuade a witness from attending at judicial proceedings. Grounds of appeal 11 Bannah appeals on the following grounds: 1. The verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Particulars: 1.1 There was insufficient evidence to identify [Bannah] as the person who committed the actus reus. 2. There was a miscarriage of justice occasioned by the inadequacy of the learned trial judge’s directions on the issue of identification. 3. The learned trial judge erred in law by misdirecting the jury on the circumstances in which a person is taken not to have freely and voluntarily agreed to sexual activity set out in s 46(3)(d) of the Criminal Law Consolidation Act 1935 (SA), and in particular by failing to direct the jury that the necessary state of intoxication is the point of being incapable of freely and voluntarily agreeing to the activity (as opposed to being intoxicated at all). 4. There was an error of law or in the alternative a miscarriage of justice by reason of the trial of the appellant proceeding jointly with the trial of the co-accused. 5. A miscarriage of justice was occasioned by the inadequacy of the trial judge’s directions as to the credibility and reliability of the complainant. 6. The trial judge erred in admitting evidence of the police identification procedure conducted with the complainant. 7. There was a miscarriage of justice occasioned by the admission of the contents of the complainant’s conversation with Matha following the alleged offence. 7.1 In the alternative, there was a miscarriage of justice occasioned by the inadequacy of the trial judge’s directions as to the permissible and impermissible use(s) of the complainant’s evidence regarding her conversation with Matha following the alleged offence. 12 Zahinda appeals on the following grounds:4 Ground 2: There was a miscarriage of justice occasioned as against the [appellant] Zahinda by reason of the unsafe guilty verdict against his co-accused Bannah, which infects the verdict against Zahinda as it demonstrates that either or both: a) the jury was not reasonable; and/or 4 Grounds 1 and 5 were abandoned in an amended Notice of Appeal. -- 5 of 28 -- [2025] SASCA 89 The Court 4 b) the jury did not adequately comprehend the learned trial judge’s directions on the question of identification (assuming the sufficiency of those directions). Ground 3: There was a miscarriage of justice occasioned by the inadequacy of the learned trial judge’s directions on the issue of identification. Ground 4: The learned trial judge erred in law by misdirecting the jury on the circumstances in which a person is taken not to have freely and voluntarily agreed to sexual activity set out in s 46(3)(d) of the Criminal Law Consolidation Act, and in particular by failing to direct the jury that the necessary state of intoxication is the point of being incapable of freely and voluntarily agreeing to the activity (as opposed to being intoxicated at all: see summing up pages 15 and 17-18). Ground 6: There was a miscarriage of justice occasioned as against the [appellant] [Zahinda] by the trial proceeding as a joint trial with the co-accused [Bannah]. Ground 7: There was a miscarriage of justice occasioned by the misdirection and the inadequacy of the learned trial judge’s directions on the issue of cross admissibility of the evidence against Bannah and the [appellant]. Ground 8: The learned trial judge erred, or in the alternative there was a miscarriage of justice occasioned, by the inadequacy of the directions on the topic of initial complaint. Particulars: The evidence of the initial complaint was admissible only against the [appellant] Bannah (and not against the [appellant] Zahinda), as to which see T191. The learned trial judge was required to but did not direct the jury that the initial complaint evidence was not admissible against Zahinda and had to be disregarded in the case against him. 13 While there is considerable overlap between the grounds of the appellants, it is convenient to deal with the grounds as follows: • joinder of trials (Bannah’s Ground 4 and Zahinda’s Ground 6); • cross-admissibility of evidence (Bannah’s Ground 5 and Zahinda’s Ground 7); • admission of complaint evidence (Bannah’s Ground 7 and Zahinda’s Ground 8); and • unreasonable verdict (Bannah’s Ground 1). -- 6 of 28 -- [2025] SASCA 89 The Court 5 14 It will be unnecessary to consider the other grounds of appeal. Joinder of trials: Ground 4 (Bannah) and Ground 6 (Zahinda) 15 It is convenient to deal with this ground first. Discussion of this ground involves questions of the cross-admissibility of evidence and the admissibility of the complaint evidence. 16 It was common ground on appeal that the appellants were charged on the same Information with sexual offending against AK, in circumstances where the prosecution did not suggest that either appellant was connected in any way with the offending alleged against the other. That is, the two appellants were not jointly charged with the same offence, were not charged with offences arising out of the same incident and were not charged with assisting each other in any way. In fact, at trial there was no evidence that the appellants even knew each other. 17 Unlike joinder of charges,5 there is no statutory authority covering joinder of accused; justification for joinder of accused is found in the common law. 18 On the question of joinder of accused, the English Court of Appeal in R v Assim (“Assim”) observed:6 As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can be properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases. 19 The decision in Assim was discussed by Bray CJ in R v Rigney.7 Whilst expressing reservations about the decision, Bray CJ considered it should be followed. 20 Joinder of accused is not limited to cases where the allegation is that the accused acted “in concert”. In R v Hogan, Mulligan J observed:8 To justify the joinder of the accused in the information, it must appear that the matters which constitute the individual offences are so related, whether in time or by other factors, that the interests of justice are best served by their being tried together. It is not limited to cases of offenders acting in concert. Obviously the judgment as to whether the joinder passes such a test must be made on the material available at the time the question is considered. Also it is made clear in Assim that each case must be determined upon the 5 Criminal Procedure Act 1921 (SA) s 102. 6 R v Assim [1966] 2 QB 249, 261. 7 (1975) 12 SASR 30. 8 R v Hogan (1990) 159 LSJS 297, 308. -- 7 of 28 -- [2025] SASCA 89 The Court 6 circumstances which are shown to exist and the categories of cases where joinder of offenders is permissible are not closed. (emphasis added) 21 The English Court of Appeal in Assim determined that questions of joinder are “matters of practice” which criminal courts have the inherent power “both to formulate … [their] own rules and to vary them in the light of current experience and the needs of justice”.9 As joinder of accused is a matter of practice, any error in joinder may amount to an irregularity but does not go to jurisdiction. An accused who is jointly charged may apply for a separate trial. The appellant Bannah’s submissions 22 Bannah submitted that the joinder of his charges on the same Information as Zahinda’s charges led to a miscarriage of justice as the joinder deprived him of a fair trial. 23 Bannah submitted there was a clear risk of irremediable prejudice to him in the trials being heard together. While identification in a general sense was the issue in both matters, the evidence produced in each case was substantially different. The allegation against Zahinda was that he was “recognised” as the offender by Ms Jomah. Recognition was not an issue in his case. 24 Bannah submitted the trial Judge directed the jury that, when considering the evidence against him, they could have regard to AK’s credibility and reliability arising from their consideration of the evidence in relation to the charges against Zahinda. That is, the trial Judge directed the jury that they could have regard to the credibility and reliability of AK’s evidence on a global basis and not be simply restricted to the evidence admissible only against him. 25 The same issue arose in relation to the evidence of Ms Jomah. Ms Jomah gave evidence that directly implicated Zahinda. She also gave admissible but contested evidence in Bannah’s case. The trial Judge also directed the jury that they could approach her credibility and reliability on a global basis. 26 Bannah accepted that there was some common evidence admissible against both he and Zahinda. For example, background evidence about who attended the party at the Airbnb, what time persons arrived and left and how much alcohol was consumed by persons at the party was common and admissible in both cases. However, the alleged circumstances surrounding the offences were not cross-admissible between he and Zahinda. It was not permissible for the jury to use credibility and reliability findings regarding AK and Ms Jomah in relation to one appellant when considering the case against the other. 9 R v Assim [1966] 2 QB 249, 258. -- 8 of 28 -- [2025] SASCA 89 The Court 7 27 While he did not make an application for separate trials, Bannah submitted that he derived no forensic advantage in the matters being heard together. 28 Bannah also submitted that the joinder of the trial of both appellants was “invalid” as a matter of law. No authority was cited to support the submission that the joinder was “invalid”. The appellant Zahinda’s submissions 29 Zahinda submitted that it was not open for the two appellants to be charged on the same Information, and therefore his convictions should be quashed. He accepted that he did not make an application for a separate trial. 30 On appeal, Zahinda largely adopted the submissions made on Bannah’s behalf. However, he accepted that at trial he relied upon inconsistencies in AK’s evidence in relation to her identification of Bannah. That is, Zahinda accepted that he enjoyed some forensic advantage in having the two matters heard together. 31 However, Zahinda submitted, the trial Judge’s directions on how the jury were to consider the evidence against each appellant separately were inadequate. Further, the trial Judge’s directions on the complaint evidence failed to distinguish between the appellants. Evidence of complaint against Bannah was impermissibly left as evidence in the case against Zahinda. That is, the complaint evidence was left “globally”. Respondent’s submissions 32 The respondent submitted that the charges were properly joined on the Information and was therefore not invalid. It is always open at common law for the prosecution to join accused on an Information. The remedy for either appellant at trial was to apply for severance leading to separate trials. Neither counsel for the appellants applied for severance at trial. 33 The respondent submitted that there was sufficient commonality between the two sets of offending meaning AK avoided the trauma of giving the common evidence twice. The interests of justice were best served by a joint trial. 34 On appeal the respondent accepted that the risk of inconsistent verdicts did not arise. However, the respondent submitted, both appellants enjoyed the forensic advantage of having AK and Ms Jomah’s credibility and reliability assessed on a global basis. That is, it was a forensic decision of counsel to not apply for separate trials and therefore there was no miscarriage of justice. Discussion 35 The authorities dealing with joinder of accused generally involve the prosecution alleging that two or more accused were acting “in concert”. The principles in relation to such cases are well settled. -- 9 of 28 -- [2025] SASCA 89 The Court 8 36 The starting point is that participants in the same incident alleged to have been of a criminal nature, or to have resulted in, or have included, the commission of criminal offences, ought to be tried together. In order for the jury to discern the truth of the matter, “it is generally highly desirable that the jury should have before it the respective accounts and explanations which are given by all the alleged criminal participants in the incident”.10 When each accused is seeking to cast the blame onto the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it.11 37 Other important reasons of principle and policy include the avoidance of inconsistent verdicts,12 the delay in the administration of justice, the increased public expense, and the increased trauma and inconvenience to witnesses, associated with the conduct of separate trials.13 38 A court presented with a joint indictment may sever the indictment by ordering separate trials of any one or more charges against any one or more accused where it is satisfied that the overall interests of justice affirmatively require that course to be taken.14 39 An accused who is jointly tried with a co-offender(s) is entitled to have his or her guilt determined solely on the basis of the evidence admissible in his or her trial. An accused is not to be convicted by a “side wind” through evidence that bolsters the credibility of a key prosecution witness but forms no part of the prosecution case against that accused.15 40 However, the fact that a jury sitting on a joint trial might be exposed to evidence that is inadmissible against one accused is not necessarily a reason to order separate trials. The existence of some risk of forensic prejudice to an accused arising from the admission of evidence adverse to one or more co-accused becoming known to the jury which would not be known to separate juries in separate trials of each co-accused is inherent in any joint trial. That problem is not of itself inconsistent with the overall interests of justice supporting the conduct or continuation of the joint trial. Prejudice to a co-accused will not result in the ordering of a separate trial if it is amenable to nullification by judicial direction to the jury.16 10 R v Glover (1987) 46 SASR 310, 312 (King CJ); McNamara v The King (2023) 280 CLR 201 at [40] (Gageler CJ, Gleeson and Jagot JJ). 11 R v Harbach (1973) 6 SASR 427, 433 (Bray CJ, Mitchell and Sangster JJ); R v Belford (2011) 208 A Crim R 256. 12 Webb v The Queen (1994) 181 CLR 41, 89 (Toohey J). 13 McNamara v The King (2023) 280 CLR 201 at [40] (Gageler CJ, Gleeson and Jagot JJ); R v Demirok [1976] VR 244, 254. 14 McNamara v The King (2023) 280 CLR 201 at [41] (Gageler CJ, Gleeson and Jagot JJ). 15 Destanovic v The Queen (2015) 49 VR 276 at [130] (Weinberg and Beach JJA). 16 McNamara v The King (2023) 280 CLR 201 at [42] (Gageler CJ, Gleeson and Jagot JJ) citing R v Henry [2008] NSWCCA 248 at [12]. -- 10 of 28 -- [2025] SASCA 89 The Court 9 41 The strong reasons of principle and policy mentioned earlier might not prevail against countervailing considerations in every case and cannot prevail against the fundamental right of an accused to a fair trial. A court should order separate trials where the evidence admissible against a co-accused is so prejudicial to the other accused that the prejudice cannot be cured by an appropriate direction to the jury. In such circumstances, the accused could not obtain a fair trial.17 The ultimate question is whether the trial itself would be rendered unfair giving rise to a miscarriage of justice. 42 As the Court stated in Assim, it is “the interests of justice as a whole that must be the governing factor and that among those interests are those of the accused”.18 43 Turning to the question of joinder of accused where there is no allegation of the accused acting in concert, many of the strong reasons of principle and policy are not relevant. For example, where the accused are not acting in concert, a cut-throat defence will not arise. Self-evidently, there is also no possibility of inconsistent verdicts. The increased public expense and the trauma and inconvenience to witnesses associated with the conduct of separate trials remain matters to be considered. 44 Here, no application was made for separate trials. Despite the failure of counsel to apply for separate trials, the issue on appeal is whether the joint trial has produced a miscarriage of justice in the sense of depriving either or both of the appellants of a fair trial. 45 Turning to the facts of this matter, it is necessary to consider the basis for joining the two appellants on the same Information where there was no suggestion that, in any of the offending, they were acting “in concert”. On appeal, the respondent submitted that the main reason for joining the appellants on the same Information was to ensure AK only gave evidence on a single occasion and further, that one trial would save the expense and inconvenience of the background evidence, which was largely undisputed, having to be given twice. 46 The offending, while separate, occurred at the same party, although some hours apart. We accept that separate trials would have meant the general background evidence about the party would be required to be given twice. The background evidence at trial was not contested and consisted of general information about why the party was held, the fact that alcohol and cannabis was consumed, as well as general information about the number of persons in attendance. Given AK, early in the evening, became intoxicated and unwell, much of the evidence was given by the independent witness Ms Jomah. If separate trials were conducted, AK would have to give her evidence about the background, limited though it was, twice. If separate trials were conducted, AK, although 17 Lukaj v The King [2022] SASCA 135 at [39]; Talbot v The Queen [2019] SASCFC 112 at [64] (Stanley J); R v Glover (1987) 46 SASR 310, 312 (King CJ); McNamara v The King (2023) 280 CLR 201 at [40]-[41] (Gageler CJ, Gleeson and Jagot JJ). 18 R v Assim [1966] 2 QB 249, 262. -- 11 of 28 -- [2025] SASCA 89 The Court 10 attending court twice, would only have to give the evidence of each alleged assault once. 47 There was a basis, although in our view, a weak one, for joining the two appellants on the one Information. That is, it was not wrong to do so but that does not make the decision correct. As the political philosopher Thomas Paine once said, “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right”.19 Having both appellants joined on the one Information, where there was no suggestion of them acting in concert, inevitably led to difficulties for the trial Judge when instructing the jury on the issue of the credibility of AK (amongst other issues). 48 While identity was the issue at trial for both appellants, the respective defences were qualitatively different. 49 The credibility of AK was the only issue in Bannah’s case. AK purported to identify Bannah only from a tattoo on his arm, his general build and the clothes that he wore. Bannah’s defence was that AK’s identification was weak, unreliable and could not amount to proof beyond a reasonable doubt. The credibility of AK in Zahinda’s case, while important on the question of whether a sexual assault was committed, was not relevant on the question of identity as she did not purport to identify Zahinda. Zahinda was identified, indeed recognised, by the witness Ms Jomah. 50 The trial Judge correctly directed the jury that both appellants were entitled to have their cases considered separately in light of the evidence which applied to the particular appellant. He further directed the jury that the evidence directly implicating one appellant was not relevant to the evidence implicating the other. The trial Judge then directed the jury that this direction related “to principally the identification evidence”. No complaint was made about these orthodox directions. 51 The trial Judge, on the question of the credibility and reliability of AK, gave the following direction: It is also relevant on both cases to consider any evidence that affects the credibility and reliability of the complainant and Miss Jomah including intoxication and any prior inconsistent statements or omissions that they have made. Any evidence that affects the credibility and reliability can be considered with respect to the evidence about the other accused. But only to the extent that it affects or relates to their credibility and reliability; that is the substance of the evidence is not relevant. It is just a question of whether it has caused you to make an assessment, perhaps a negative assessment, about their credibility and reliability. (emphasis added) 52 The trial Judge directed the jury to have regard to the credibility and reliability of AK and Ms Jomah’s evidence on a global basis. No doubt in giving 19 Thomas Paine, Common Sense (Dover Publications, 1997). -- 12 of 28 -- [2025] SASCA 89 The Court 11 that direction he was influenced by the way in which Zahinda conducted his case. The prosecution had also sought to use the combined effect of AK and Ms Jomah’s evidence to support their credibility and reliability. No counsel objected to the trial Judge’s direction. 53 An accused is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him or her is admissible evidence and that he or she is not exposed to prejudice by the introduction of material which is irrelevant or, in some situations, only marginally relevant. By directing that the jury could have regard to their assessment of AK and Ms Jomah’s credibility and reliability on a global basis, the trial Judge permitted, without objection, inadmissible material to be admitted in both cases. 54 As discussed earlier, where charges arise out of the same event, separate trials may still be appropriate where the evidence to be led against one accused is significantly different from that to be led against another. In joint trials involving the tender of evidence admissible against one co-accused but not the other, some prejudice to one or other accused is almost inevitable. The fact that a jury sitting on a joint trial might be exposed to evidence that is inadmissible against one accused is not necessarily a reason to order separate trials. 55 However, in this matter there was no compelling basis for a joint trial. There was no possibility of a cut-throat defence nor a possibility of inconsistent verdicts. That there would be difficulties in instructing a jury to consider the credibility and reliability of AK and Ms Jomah separately in each case is obvious. 56 At trial, inconsistencies in AK’s evidence against Bannah had the potential to benefit Zahinda. The same can be said for inconsistencies in Ms Jomah’s evidence. However, there was no obvious benefit to Bannah in having his trial heard at the same time as Zahinda. AK did not identify Zahinda. Indeed, there were clear disadvantages in Bannah having his case heard together with the charges against Zahinda. 57 The respondent submitted that there was no ground of appeal alleging counsel were incompetent. The respondent submitted that this Court, when considering the question of whether joinder has led to a miscarriage of justice, should find that counsel at trial had made a forensic decision to proceed with the trials together and thus the appellants should be bound by their respective counsel’s decision. 58 That submission resonates soundly against Zahinda, but not so against Bannah. There is nothing in the way in which counsel for Bannah conducted the case, either in the evidence or in closing address, that suggests counsel attempted to gain some advantage from any evidence admissible in Zahinda’s case. 59 As already mentioned, it was common ground that no application for separate trials was made to the trial Judge. The question on appeal is whether the joinder -- 13 of 28 -- [2025] SASCA 89 The Court 12 of the two appellants on the Information, in the circumstances of the case, led to an unfair trial resulting in a miscarriage of justice. The question of whether the failure to make an application for separate trials is fatal to this ground of appeal also arises. 60 In Burgoyne v The King, I observed (Doyle JA agreeing) that:20 The task for this Court is to consider whether there has been a miscarriage of justice. Where a decision or decisions taken by counsel contribute to a defect or irregularity in the trial, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration. Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment. The test whether the course taken by counsel is explicable on the basis that it resulted or could have resulted in a forensic advantage is an objective one. As Gleeson CJ observed in Nudd v The Queen, it is the fairness of the process that is in question, not the wisdom of counsel. (citations omitted) 61 We are unable to discern any reason why Bannah would want to have his trial heard at the same time as Zahinda; there is simply no benefit in him doing so and the prejudice to him is manifest. 62 The jury may have accepted Ms Jomah’s evidence about recognising Zahinda to support the contested evidence she gave against Bannah. The fact that AK did not identify Zahinda was said by the prosecutor to support her credibility when assessing her identification of Bannah. 63 There is, however, a further complication. Zahinda was separately charged with one count of dissuade or attempt to prevent or dissuade a witness from attending at judicial proceedings (Count 7). Zahinda did not dispute that he sent an email to AK. The contents of the email clearly supported the prosecution’s allegation that he was attempting to dissuade AK from attending court to give evidence against him. 64 On Count 7, the trial Judge directed the jury that the count only related to Zahinda. He also directed the jury that they must not “reason that that of itself was evidence of his guilt of the other crimes with which he has been charged”. The trial Judge directed the jury that: As a matter of logic, it does not follow that because he intentionally did something to attempt to dissuade a witness from giving evidence, if indeed to you that proven, he is guilty of other offences. A person innocent of any charges may engage in such conduct for other reasons including for fear of being wrongly convicted. 65 The directions are orthodox as far as they go but they do not address the problem of the cross-admissibility of the evidence between Count 7 and the other 20 Burgoyne v The King [2024] SASCA 143 at [63]. -- 14 of 28 -- [2025] SASCA 89 The Court 13 charges against Zahinda. The sending of the email was post-offence conduct that may have been relevant to Counts 5 and 6. As the trial Judge directed, this was not of itself evidence of guilt. It was, however, arguably a piece of circumstantial evidence the jury may have had regard to when considering the other charges, or, at the very least, the jury may have reasoned so; no direction about that was sought or given about this issue. 66 No complaint was made on appeal about the directions, or lack of directions, on Count 7. However, the evidence on Count 7 had a direct impact on the credibility of Ms Jomah’s evidence. The jury, when considering whether Ms Jomah’s evidence was credible and reliable, may well have had regard to Zahinda’s post-offence conduct in sending the email. It had the potential to support her evidence. Although AK did not purport to identify Zahinda, the evidence admitted on Count 7 clearly supported her evidence about the sexual acts allegedly committed by Zahinda. Her credibility and reliability on that issue, on the trial Judge’s directions, could be used in the case against Bannah. Ms Jomah’s evidence in Zahinda’s case clearly supported the credibility and reliability of AK's evidence of the circumstances of the alleged rape in Zahinda’s case although AK did not purport to identify her offender. This was a matter, on the trial Judge’s directions that the jury could take into account when considering the case against Bannah. 67 When considering the question of the difficulties in the charges being joined on the same Information, it is necessary to consider the issue of the complaint evidence. At trial, the prosecution led from AK two occasions when she made a complaint about what occurred at the party. 68 AK said that the party was on Saturday night. On the following Monday at school, she told two friends, Safa and Jasmin, that she had been sexually assaulted by Con-C-Coin$. She did not say much about it as she was not “in the right state of mind to talk about it in much detail”. It was common ground that she did not say anything to her friends about the alleged sexual assault by Zahinda. Clearly, this initial complaint was not admissible against Zahinda. It could not be used to assist the jury in assessing the credibility of AK. 69 Some months later, AK told her mother that she had been sexually assaulted at Ms Jomah’s party by two people. AK’s mother confirmed that account. She said AK told her: ‘On Joy's 18th birthday party, I was sexually assaulted by two guys’. I froze where I was standing because it was not what I was expecting to hear. Then she said, I ask her about ‘Why?’. She said ‘Mum I was scared to tell you because drugs was involved. I tried weed for the first time’ and [the complainant] told me ‘I tried alcohol for the first time. And that night I got sexually assaulted by two men’ and she described the other guy. She said ‘One had tattoo over the arm and the other one, after the sexual assault with the second one, there was blood on the bedsheet’. 70 This is an elaboration of the first complaint against Bannah and the initial complaint against Zahinda. -- 15 of 28 -- [2025] SASCA 89 The Court 14 71 The trial Judge’s directions on the complaint evidence were orthodox but his Honour only briefly touched on the evidence. The trial Judge drew no distinction between the complaint evidence against Bannah and that admissible against Zahinda. The trial Judge’s directions only generally related to the use that could be made of the complaint evidence. Consistent with his direction that the credibility and reliability of AK should be considered on a global basis, the trial Judge did not direct the jury that the evidence of the initial complaint against Bannah was not evidence in the case against Zahinda, or that the initial complaint against Zahinda was not evidence in the case against Bannah. 72 The prosecutor in his address emphasised that AK had been consistent as she had identified to her mother that she had been assaulted by two males. The jury may well have reasoned in that way. The inadmissible evidence of the complaint against Zahinda became evidence against Bannah. The initial complaint and elaboration evidence in the case against Bannah became evidence in the case against Zahinda. 73 A joint trial is not, and is not intended to be, a perfect replica of the separate trials which would otherwise have taken place. There is often a risk of credit enhancement of a common witness during a joint trial. 74 However, the risks identified above were, or should have been, apparent before the trial commenced. Once the joint trial commenced, it was always going to be difficult, if not impossible, for the trial Judge to fashion a direction that a jury could be expected to understand or follow, avoiding the difficulty of credibility enhancement of AK and Ms Jomah’s evidence. Indeed, the trial Judge, understandably given the manner in which the trial was conducted, did not attempt to do so. 75 The question to be determined on appeal is whether the joint trial was unfair leading to a miscarriage of justice. 76 In the case of Bannah, the position is clear. Bannah did not obtain any forensic advantage in having his case heard simultaneously with Zahinda; rather, his trial was seriously compromised by the joinder. Had an application been made for a separate trial, it is inevitable that it would be granted. In our view there was no compelling reason for joinder of the appellants on the Information in any event and the prejudice to Bannah is obvious. 77 Leaving aside for the moment the global credibility issue, there was always the danger with a joint trial that the jury may consider, despite there being no evidence, that the two appellants being at the same party knew each other and had, in some way, communicated with each other about AK’s vulnerability. 78 As already mentioned, it was common ground that Bannah’s counsel did not make an application for a separate trial nor did counsel object to the global directions on credibility. We have been unable to determine a forensic reason for -- 16 of 28 -- [2025] SASCA 89 The Court 15 not seeking a separate trial. However, the failure to seek a separate trial so plainly affected the result of the trial that a miscarriage of justice has occurred even if the decision involved a forensic choice or judgment. 79 In our view, the joint trial led to Bannah receiving an unfair trial amounting to a miscarriage of justice. 80 In the circumstances, we allow Bannah’s appeal on this ground. 81 The decision is more difficult in regard to Zahinda’s ground of appeal. Counsel at trial clearly took advantage of the global credibility directions. There is a sound basis for the decision taken by Zahinda’s counsel. 82 We do not need to finally resolve this ground of appeal in Zahinda’s appeal as we allow his appeal on his Ground 8, namely the inadequacy of the directions on the complaint evidence discussed earlier. Unreasonable verdict or cannot be supported having regard to the evidence: Grounds 1, 6 and 7 (Bannah) 83 In Ground 1, Bannah contends that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.21 It is necessary to consider Grounds 6 and 7 when determining Ground 1. Legal principles 84 The principles that apply where a complaint is made that a verdict is unreasonable are well settled. In M v The Queen (“M”), the majority of the High Court stated:22 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted) 85 The decision in M was unanimously affirmed in MFA v The Queen (“MFA”)23 and in SKA v The Queen.24 In MFA, it was noted that the reference to “unsafe or unsatisfactory” in M is “equivalent to the statutory formula referring to the 21 Criminal Procedure Act 1921 (SA) s 158(1). 22 M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ). 23 (2002) 213 CLR 606. 24 (2011) 243 CLR 400. -- 17 of 28 -- [2025] SASCA 89 The Court 16 impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’”.25 86 The Court must make an independent assessment of the evidence both as to its sufficiency and its quality. As the High Court observed in Dansie v The Queen:26 … the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”. The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated: “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 occurred [on the unreasonable verdict ground]. 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 a 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (citations omitted; emphasis added) 25 MFA v The Queen (2002) 213 CLR 606 at [58] (McHugh, Gummow and Kirby JJ). 26 (2022) 274 CLR 651 at [7]-[9]. -- 18 of 28 -- [2025] SASCA 89 The Court 17 87 The High Court went on to observe:27 The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”. 88 On appeal, the relevant question does not involve deciding whether the appellate court’s reasoning to the holding of a reasonable doubt depends on an assessment of what the jury heard or saw. The relevant question is whether the nature of the reasonable doubt that the appellate court holds is one that is capable of being resolved by the appellant court making full allowance for the jury’s advantage in seeing and hearing the evidence.28 89 When an appeal court is considering the nature and quality of the evidence, the High Court in Fennell v The Queen observed:29 Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. (citations omitted; emphasis added) Evidence of AK and Ms Jomah 90 As discussed earlier, AK was invited to Ms Jomah’s 18th birthday party which was held in an Airbnb in Adelaide. The party was meant to be a “girls sleepover”, although it is possible that some males were invited. People came and went during the course of the night. Exactly how many people attended was unclear. Estimates varied, but it appears that up to 10 or more males may have 27 (2022) 274 CLR 651 at [12]. 28 R v ZT (2025) 99 ALJR 676 at [53] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ). 29 Fennell v The Queen (2019) 93 ALJR 1219 at [81]. -- 19 of 28 -- [2025] SASCA 89 The Court 18 attended during the course of the evening. The attendees at the party were of African descent. The Airbnb had two bedrooms, one of which had an ensuite bathroom. This bedroom, which during the trial was referred to as bedroom 1, was Ms Jomah’s bedroom and AK intended to sleep there. 91 AK said that there were about six to eight girls in attendance. Some of the girls were drinking and smoking cannabis. AK said she had a couple of mouthfuls of Hennesey (brandy) and a “couple of puffs” of cannabis. She had not tried alcohol or cannabis before this evening. The combination of alcohol and cannabis made her feel dizzy and unsteady. At trial, AK conceded that she may have had more alcohol but could not remember. AK conceded that there were parts of the evening that she could not remember and that there were gaps in her memory. She conceded that during the evening, she continued to feel dizzy and had trouble standing and walking. 92 After she had tried the cannabis, AK said that some males arrived at the party. She did not see them arrive, but she spoke to one while sitting at the dining room table. This person she later identified as Bannah. AK described this person as having brown skin, was from Liberia, aged in his mid-20s and was wearing a “newsboy” style hat. He was wearing a long sleeve shirt, but one sleeve was rolled up exposing a “script writing” tattoo on his forearm. AK said that he was wearing dark coloured pants. She later stated in cross-examination that he was wearing a white shirt. 93 AK said she was tidying up the kitchen when a male called Mr Lopez noticed she was unsteady on her feet and suggested she should sit down. She went with Mr Lopez to what was described at trial as bedroom 2. She said she fell off the bed more than once and that people were coming in and out of the room. She was lying on the bed with another girl named Hareina. Mr Lopez left the room. 94 It was after Mr Lopez left that the male with the sleeve tattoo came into the bedroom, turned off the light and climbed into bed behind her. AK alleged he sexually assaulted her. The male then got up, turned the light on and left. She saw that he was wearing the same shirt, same newsboy hat and had the same tattoo. AK remembered Ms Jomah taking her to bedroom 1. 95 AK’s evidence about her state of sobriety needs to be assessed in the context of Ms Jomah’s evidence. While AK conceded that there were gaps in her memory that night due to her intoxication, Ms Jomah’s evidence gives context to that evidence. Ms Jomah gave clear evidence that AK was significantly affected by alcohol and/or drugs. 96 Ms Jomah stated that a number of people, both males and females, some who were invited and some who were not, arrived at the party around 8-9pm. By this time, she could tell AK had been drinking as she could smell alcohol on her breath. She described AK as a “bit tipsy”. Ms Jomah said she took AK to her bedroom, -- 20 of 28 -- [2025] SASCA 89 The Court 19 bedroom 1, and got her to lie down. At that time, Ms Jomah said AK could walk reasonably well. When Ms Jomah left bedroom 1, AK was lying on the bed. 97 At around 10-11pm, Ms Jomah thought the party had “started to get out of hand”. There were more people attending that she had invited. They were drinking alcohol and smoking cannabis. 98 Ms Jomah checked on AK and said she was still lying on the bed in bedroom 1. Later, she saw AK in bedroom 2. At that time, there were other people in bedroom 2. There were three other females and two males; Bannah was one of the males. All were sitting on the bed. AK was noticeably intoxicated. Ms Jomah said she took AK back to bedroom 1; she said she had to basically carry AK who was unable to walk properly. 99 Later, Ms Jomah saw AK back in bedroom 2 despite her having been left in bedroom 1. She was with the same group of people as before including Bannah. Again, Ms Jomah took AK back to bedroom 1. Ms Jomah described AK as drunk. In fact, she was so drunk AK could not remember the password for her mobile phone. Ms Jomah took AK’s mobile phone and put it in a drawer. Ms Jomah left the room. 100 The next time Ms Jomah saw AK was the incident where she identified Zahinda in bedroom 2. 101 Ms Jomah’s evidence is important for two reasons. First, it is clear from her evidence that AK was significantly intoxicated. While AK was only 15 and not experienced with drinking alcohol and smoking cannabis, she must have consumed more alcohol (or drugs) than she remembers. Consistent with her level of intoxication was her concession that there are parts of the evening which she simply does not remember. 102 The second important part of Ms Jomah’s evidence is that she saw Bannah in bedroom 2 with AK twice, but in the presence of at least four other people. There was no suggestion on either occasion that anything sexual occurred. Remarkably, AK has no recollection of either event. That is, on Ms Jomah’s evidence, Bannah was sitting on the bed in bedroom 2, conversing with other persons who were on the bed including AK, and AK has no recollection of that occurring. Importantly, AK remembers Ms Jomah taking her to bedroom 1 but only after AK was allegedly sexually assaulted and Bannah had left the room. However, Ms Jomah’s evidence is that she took AK to bedroom 1 twice and on both occasions Bannah was in there with other people. Her evidence is in stark contrast to AK’s evidence. 103 It is possible, but in my view highly unlikely, that Bannah, after having sexually assaulted AK and leaving the room, then returned, sat down and spoke to others in the room including AK when Ms Jomah walked in. Ms Jomah’s evidence raises the obvious possibility that AK’s evidence is, in part at least, a confabulation -- 21 of 28 -- [2025] SASCA 89 The Court 20 due to her intoxicated state which has led to her memory being distorted. AK admitted to having gaps in her memory. 104 Ms Jomah’s evidence about Bannah being in bedroom 2 was contested but she remained steadfast in her evidence. Whether or not Bannah was one of the two males in the room, Ms Jomah’s evidence was that AK was sitting on the bed talking with five other people and that this occurred on two occasions. 105 Ms Jomah’s evidence that Bannah was in the room when she took AK to bedroom 1 is totally inconsistent with AK having just been sexually assaulted by Bannah. Ms Jomah’s evidence casts significant doubt on AK’s recollection of the sequence of events. 106 AK has no recollection of being placed in bedroom 1 on three occasions or how she got from bedroom 1 back to bedroom 2 on each occasion. This points to a very significant level of intoxication. Identification of Bannah 107 The prosecution witness Mr Lopez gave evidence that he attended the party with Bannah. Mr Lopez said Bannah was wearing a green jacket with a black top underneath, black pants and green Nike shoes. He took photographs of Bannah at the party, a photograph was tendered at trial (Exhibit D9). The photograph shows Bannah wearing the clothes as described by Mr Lopez. The hat worn by Bannah in the photograph is not a newsboy hat. AK was adamant that her assailant was wearing a newsboy hat and a white shirt. Ms Jomah confirmed in her evidence that Bannah, at the party, was wearing the clothes shown in Exhibit D9. 108 Turning to the evidence of identification, AK said she spoke to a friend, Matha, the next morning. Matha was not called as a witness during the trial. The prosecution led the content of the conversation. AK said that she asked Matha who the male with the script tattoo was, and Matha told her the performing name “Con-C-Coin$”. At trial, no objection was taken to this evidence. AK searched that name on Instagram and found Bannah’s profile. Her evidence was that she recognised photographs on his profile as being the “guy with the tattoo sleeve”. In one photograph that she saw, Bannah was wearing a newsboy hat. While the photographs she observed on the Instagram page were not available at trial, a more recent photo of Bannah was produced (Exhibit D6). This photograph showed Bannah’s sleeve tattoo and him wearing a newsboy hat. AK said that the hat and tattoo in Exhibit D6 were the same as she had seen in the Instagram photographs. 109 In our opinion, the content of the conversation AK had with Matha should not have been led. AK’s conversation was not complaint evidence; there was no reference in the conversation to Bannah or indeed anybody having committed any offence. In the prosecution case, the relevant fact in issue was that AK accessed the Instagram account of Con-C-Coin$ and purported to identify Bannah from the photographs. How she came to access the account was not a fact in issue. -- 22 of 28 -- [2025] SASCA 89 The Court 21 110 The starting point for analysis is the oft quoted passage from Subramaniam v Public Prosecutor, where the Court observed:30 Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. 111 In Walton v The Queen, Mason CJ stated that the “hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement”.31 112 As already stated, the fact that AK had a conversation with Matha that led to her viewing Bannah’s Instagram page was relevant and admissible on the prosecution case. As such, the conversation with Matha, if the content of the conversation is not led for a testimonial purpose, may be admissible. There are often cases where the actual content of the conversation is of little moment. That is not this case. The content of AK’s conversation with Matha was a species of identification evidence even if that was not the prosecutor’s intention in leading the evidence. 113 Here the content of the conversation clearly breached the “rule against narrative” statements. 114 As this Court observed in Boyle v The Queen:32 In general terms, a party may not call evidence supporting the credibility of a witness called by that party. To put that another way, a witness may not be asked in evidence in chief whether he or she has made a statement, outside of the court hearing, consistent with their present testimony. It is sometimes called the ‘rule against narrative’ or ‘the rule against self-corroboration’. The witness cannot narrate such a statement if it was oral or refer to it if it was in writing and other witnesses may not be called to prove it. This rule exists independently of the rule against hearsay. 115 In Mundy v The King, this Court observed:33 … Out-of-court narrative statements have an alluring and beguiling quality while possessing no logical relevance. The effect this type of evidence may have on a jury should not be underestimated. The statement made by Butler shows a consistency of thought, but the difficulty is that the statement comes from the same source as the relevant evidence, namely himself. As Thomas J observed in R v Connolly (No 2), “[A] witness may not lift himself by his own bootstraps to enhance his credit”. 30 [1956] 1 WLR 965, 970. 31 Walton v The Queen (1989) 166 CLR 283, 288. 32 (2022) 299 A Crim R 92 at [27]. 33 [2023] SASCA 59 at [55]. -- 23 of 28 -- [2025] SASCA 89 The Court 22 Having, in some form, said the same thing does not generally carry a witness’s credibility any further. A jury however may consider that it does so. (citations omitted) 116 Self-evidently, there was a sequence of events leading to AK accessing the Con-C-Coin$ Instagram account. But the simple existence of that narrative does not make it admissible, and certainly not admissible for its truth. The common approach to evidence such as this would have been to have adduced from AK that she spoke to Matha and, as a result of that conversation, she accessed the Instagram account. That would have proved the fact in issue and avoided the breach of the rule against narrative statements. The problem with the content of the conversation being led is that it inevitably had the potential to boost AK’s credibility on the question of her identification of the offender as having a script tattoo. It could not be led for that purpose. While in the abstract the trial Judge could have directed the jury on the permissible and impermissible uses of such evidence, it was highly prejudicial to Bannah and should not have been admitted. However, no such application was made, nor any directions sought, as to how the jury should use or not use the evidence. 117 On appeal, Bannah now complains about the admission of the evidence and the lack of directions (Ground 7). While there is merit in his argument, Bannah is generally bound by the decisions made by his counsel. Given we allow his appeal on Ground 1, it is unnecessary for me to finally decide whether the admission of the evidence led to a miscarriage of justice. 118 Returning to the identification evidence, AK stated that in February 2021, she attended a wake and saw Bannah. She did not speak with him but recognised his face. 119 On 15 September 2021, AK participated in a photographic identification procedure at a police station. She was shown an album containing seven photographs of the faces of seven different males. AK selected the photograph of Bannah. She said the person she selected was “the sleeved tattoo guy which [sic] is known as Con-C-Coin$”. Under cross-examination, AK said that she was identifying the person she had seen in the Instagram photographs and who she had remembered from the night. She said she was looking for the script tattoo she had seen on the Instagram page and from what she remembered from the night. 120 The police identification procedure was of little, if any, probative value as AK’s answer demonstrates she was really identifying the person she had seen in the Instagram post. While she added in cross-examination that she was identifying the person who assaulted her on the night, the displacement effect was manifestly operative. As she did not see the face of her attacker during the event, the photographic identification of his face during the police procedure was clearly flawed. -- 24 of 28 -- [2025] SASCA 89 The Court 23 121 At some point that same year, at a baby shower, AK recognised Bannah again; she could not recall whether this was before or after the police identification procedure took place. The appellant Bannah’s submissions 122 Counsel for Bannah submitted that the totality of evidence was insufficient to sustain the jury’s guilty verdict. The contention was that the evidence led by the prosecution lacked the capacity to prove the appellant’s identity beyond reasonable doubt. 123 Importantly, there were no eyewitnesses to the offending called at trial. Further, the offender was a stranger to AK. There was also evidence that AK had gaps in her memory throughout the evening; she was feeling the effects of cannabis and alcohol, and was lightheaded, nauseous and dizzy. 124 Counsel for Bannah drew particular attention to the lack of evidence adduced at trial about the other party guests. There were other males of African appearance at the party who AK did not know, and she could not recall what those males were wearing. Another prosecution witness, Mr Lopez, attended the party, and he estimated there to have been approximately 10 males of African appearance. Ms Jomah’s evidence was that there were approximately six males at the party in total, but the only males of African appearance who she knew prior to the party were Bannah and Zahinda. No evidence was adduced at trial as to the clothing of those unknown males of African appearance, with the exception of one male wearing a black turtleneck. 125 Bannah submitted that AK’s description as to what the offender was wearing was inconsistent with the photograph of Bannah at the party. Exhibit D9 depicted him in clothing which was, in counsel for Bannah’s submission, materially different to that which AK described the offender to be wearing. Ms Jomah confirmed that the photograph showed the appellant in the lobby of the building where the party was held, and that the clothing in the photograph was what Bannah was wearing during the party. AK specifically confirmed that the man who sexually assaulted her was not wearing the clothing Bannah is wearing in the photograph taken in the lobby. 126 When entering the bedroom, the offender turned the bedroom light off; the offending occurred in the dark. AK was lying down in the bedroom where the alleged offending occurred, facing away from the door when the male entered the room and lay behind her. The offender was behind AK for the duration of the offending, and she could not see his face or body. There was another female in the bedroom at the time the offender entered and committed the offending. AK had limited time in those circumstances to identify the assailant. 127 Counsel for Bannah also submitted that the identification of the appellant via Instagram carried no, or very limited, weight. AK accessed Bannah’s Instagram -- 25 of 28 -- [2025] SASCA 89 The Court 24 profile (and only Bannah’s Instagram profile) after asking Matha who the male at the party with the script tattoo was. 128 Further, counsel for Bannah submitted that the police identification procedure was of no evidentiary weight. AK had not seen the face of the offender that had entered the bedroom, and therefore she was selecting the male she had seen on Instagram rather than someone who she had seen committing the offending. Counsel for Bannah argued that the displacement effect would have been operative during the police identification procedure. Respondent’s submissions 129 The respondent submitted that AK’s evidence, if accepted, was sufficient to reasonably identify Bannah as the offender. The respondent referred to several pieces of evidence including that AK had spoken to someone with a sleeve tattoo at some point during the party. It was not in dispute that Bannah was present at the party, and the respondent submitted there was no evidence of any other males at the party having a sleeve tattoo. 130 We reject this last submission. The only evidence on the topic of whether other people at the party had tattoos was given by Mr Lopez; he said he did not know and there may have been some. The absence of evidence on this topic cannot be used as evidence of absence. 131 AK’s evidence was that she was lying in bed when she saw the “sleeve tattoo guy” enter the room (while the light was on). The respondent also submitted that the description of the offender’s clothing proffered by AK was not significantly different to that which Bannah was wearing in the photograph (Exhibit D9). It was therefore open to the jury to be satisfied beyond reasonable doubt that Bannah was the offender. Discussion 132 It was not disputed at trial that Bannah was at the party. It was open to the jury to conclude that AK may have spoken to Bannah that night and therefore have seen his sleeve or script tattoo. 133 While AK’s identification of Bannah has probative value, the weight of its probative value is lessened by the way in which it was made. By accessing Bannah’s Instagram page and viewing his photographs, self-evidently there was no selection. That viewing the Instagram photographs may have displaced her memory of events occurring that night may be inferred from her insistence that Bannah was wearing a newsboy hat that evening. The evidence at trial demonstrated clearly that he was not, but it is likely he was wearing a newsboy hat in his Instagram photographs. 134 However, the weakness in the identification lies not in her recognising Bannah as having been at the party, but whether he was the person who sexually assaulted her. -- 26 of 28 -- [2025] SASCA 89 The Court 25 135 AK was undoubtedly affected significantly by alcohol and drugs. She was so intoxicated that there are large gaps in her memory. Her evidence is at odds with Ms Jomah’s about events that occurred in bedroom 2. Having been placed twice in bedroom 1, AK returned twice to bedroom 2, events of which she has absolutely no memory. AK has no memory of Bannah being with her and at least four other people in bedroom 2 when Ms Jomah came into the room. AK remembers Ms Jomah, after she had been sexually assaulted, taking her to bedroom 1. But as discussed earlier, if Ms Jomah’s evidence is correct, on both occasions when Ms Jomah took AK from bedroom 2 to bedroom 1, Bannah was in bedroom 2 with other people. If it was not Bannah in the room, there were at least two other males and three females in the room, an event for which AK has no recollection. The strong possibility that AK is confabulating arises on Ms Jomah’s evidence. 136 There are also the difficulties with AK’s evidence about what the offender was wearing. She was adamant that the offender was wearing a white shirt and a newsboy hat. The evidence of Ms Jomah and Mr Lopez, bolstered by the photograph taken that evening, establish that Bannah was wearing a green jacket, black shirt and was wearing a baseball hat not a newsboy hat. This was not, as submitted by the respondent, a simple mistake. Having been shown Exhibit D9 depicting what Bannah was wearing that evening, AK specifically denied that the offender was wearing such clothing. 137 We have conducted a review of the evidence and made an independent assessment of the evidence. AK’s identification of Bannah as the offender, by the end of the evidence, was that she recognised the assailant’s build, tattoo and clothing. She was wrong about the clothing and the general build was so vague a description as to have little probative value. 138 The combination of AK’s significant intoxication and impaired and/or lack of memory, the conflict in her evidence with Ms Jomah’s and the irreconcilable evidence of what the offender was wearing with what Bannah was known to be wearing, leave me in considerable doubt about whether Bannah is guilty of the offending alleged. In our view, the evidence was not sufficient in its nature and quality to eliminate any reasonable doubt that Bannah is guilty of the offences. 139 The question then arises as to whether the jury’s advantage in seeing and hearing the evidence is capable of resolving that doubt. 140 The jury in this matter assessed the credibility and reliability of AK and Ms Jomah, in the case against Bannah, taking into account inadmissible evidence. Their advantage to that extent is tainted. 141 However, ignoring that issue and after making full allowance for the jury’s advantage in seeing and hearing the evidence, we consider there is a significant possibility that an innocent person has been convicted. That is, we consider that on the evidence it was not open for the jury to be satisfied beyond a reasonable doubt of the charges. That is, we do not consider that the reasonable doubt we hold is -- 27 of 28 -- [2025] SASCA 89 The Court 26 capable of being resolved after making full allowance for the jury’s advantages in seeing and hearing the evidence. 142 We allow this ground of appeal. We set aside the convictions on Counts 1 and 3 and substitute verdicts of not guilty. Complaint evidence: Ground 8 (Zahinda) 143 As discussed earlier, the trial Judge’s directions on the question of complaint evidence were inadequate. Evidence of AK’s complaint against Bannah, and its subsequent elaboration, was admitted against Zahinda. The evidence was not admissible. 144 The admission of the evidence has led to a miscarriage of justice. As the admission of the evidence went directly to the issue of the credibility of AK the proviso has no application. 145 We allow this ground of appeal. 146 In the circumstances it is unnecessary to decide the other grounds of appeal. Orders 1. As against Bannah, the appeal is allowed, the convictions on Counts 1 and 3 are set aside and the verdicts of acquittal entered. 2. As against Zahinda, the appeal is allowed, the convictions on Counts 5 and 7 are set aside and the charges remitted to the District Court for a retrial. -- 28 of 28 --