ETHAN SEAN HILLIARD v THE KING [2025] SASCA 91

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-21-1097 Appellant: ETHAN SEAN HILLIARD Counsel: MR S HENCHLIFFE KC - Solicitor: EVANS TESTA BARRISTERS & SOLICITORS Respondent: THE KING Counsel: MR K DRAPER WITH MS S HENNIGS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 20/05/2025, 17/06/2025 File No/s: SCCRM-24-041171 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. HILLIARD v THE KING [2025] SASCA 91 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 21 August 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT Appeal against conviction. The appellant was found guilty of two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA). The prosecution case was that the appellant committed the three offences against the complainant in following her 18th birthday party at her unit in Elizabeth North. Count 1 alleged that the appellant inserted an anal plug into the complainant’s anus while she was asleep. Count 2 alleged the appellant commenced penile vaginal intercourse with the complainant while she was asleep. Count 3 alleged that he continued to engage in sexual intercourse with the complainant after she had woken up and said ‘no’. The appellant was found not guilty of Count 1 but guilty of Counts 2 and 3. The appellant raised several grounds of appeal, including whether: -- 1 of 25 -- 1. the judge erred in his directions about the evidence of the complainant’s distress; 3. the judge erred in his directions about the possible effect of the complainant’s intoxication on her credibility and reliability; 4. Counts 2 and 3 of the information together alleged only a single offence, and his conviction on both constituted a miscarriage of justice; 5. the judge’s direction that the jury could find the second element of Counts 1 and 2 proved on the basis that the complainant did not consent to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice; 6. the judge’s direction that the jury could find the third element of Counts 1 and 2 proved on the basis that the appellant knew the complainant was not consenting to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice; 7. the judge’s directions about proof of the third element of Counts 1 and 2, with respect to whether the appellant knew the complainant was not consenting because of her intoxication, were unclear and caused a miscarriage of justice; and 8. the judge’s failure to direct the jury that before the appellant could be convicted of any of the counts, the prosecution must prove not only that the appellant had committed the acts of sexual intercourse but that he had done so consciously and voluntarily and not whilst he was asleep, or otherwise unconscious, caused a miscarriage of justice. The appellant abandoned Ground 2 at the hearing. It is not necessary to address each of the grounds of appeal. Held (by the Court) granting permission to appeal and allowing the appeal: 1. The fact that Counts 2 and 3 charged the appellant in respect of the same offence impermissibly breached the principle against double jeopardy and caused a miscarriage of justice. The conviction of the appellant twice for the same offence was a fundamental irregularity such that the appellant’s convictions on both counts must be quashed (Ground 4). 2. The error does not allow for the preference of one count over the other. The Court cannot amend the information to remove one count and maintain the conviction on the other count. 3. In these circumstances, the Court quashes the convictions, amends the information by deleting Count 3 and amending Count 2 to cure the defect and remits the matter for retrial. Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Procedure Act 1921 (SA) ss 102, 158, 160, 181; Crimes Act 1900 (NSW) ss 33, 102; Criminal Appeal Act 1912 (NSW) ss 6, 7, 8, referred to. R v Murphy (1988) 52 SASR 186; Pearce v The Queen (1998) 194 CLR 610; Green v United States (1957) 355 US 184; Chia Gee v Martin (1905) 3 CLR 649; Li Wan Quai v Christie (1906) 3 CLR 1125; Wemyss v Hopkins (1875) LR 10 QB 378; Walsh v Tattersall (1996) 188 CLR 77; R v Khouzame and Saliba (1999) 108 A Crim R 170; Wellington v Police (2009) 105 SASR 215; R v Yankovski (2007) 17 VR 315; Ilich v The Queen [2021] SASCA 45; Wright v Police [2008] SASC 216; Robey v SA Police (1993) 18 MVR 121; Ireland v Police [2005] SASC 202; Brawn v The King [2025] HCA 20; Huxley v The Queen [2023] HCA 40; Weiss v The Queen (2005) 224 CLR 300; Kalbasi v Western Australia (2018) 264 CLR 62; Hofer v The Queen (2021) 274 CLR 351; Wilde v The Queen (1988) 164 CLR 365; Baini v The Queen (2012) 246 CLR 469; WJG v The Queen [2020] SASCFC 56; Spies v The Queen (2000) 201 CLR 603; Garrett v The Queen (1977) 139 CLR 437; NH & Ors v DPP (SA) (2016) 260 CLR 546; R v A2 (2019) 269 CLR 507; Maher v The Queen (1987) 163 CLR 221; Gilham v The Queen [2012] NSWCCA 131, considered. -- 2 of 25 -- HILLIARD v THE KING [2025] SASCA 91 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: The appellant was tried by jury on an information alleging three counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The three offences were alleged to have been committed against the complainant on 17 July 2020 in Elizabeth North. The prosecution case for Count 1 was that the appellant inserted an anal plug into the complainant’s anus while she was asleep. In relation to Count 2, the prosecution case was that the appellant commenced penile vaginal intercourse with the complainant, still while she was asleep. Count 3 alleged that the appellant had continued to engage in sexual intercourse with the complainant after she had woken up and after she had said ‘no’. 2 The jury found the appellant not guilty of Count 1. They found him guilty of Counts 2 and 3. The appellant has appealed against his convictions on several grounds. Broadly, the issues raised by the Notice of Appeal are whether: • the trial judge erred in his directions about the evidence of the complainant’s distress (Ground 1); • the trial judge erred in his directions about the possible effect of the complainant’s intoxication on her credibility and reliability (Ground 3); • Counts 2 and 3 of the information together alleged only a single offence, and his conviction on both constituted a miscarriage of justice (Ground 4); • the trial judge’s direction that the jury could find the second element of Counts 1 and 2 proved on the basis that RT did not consent to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice (Ground 5); • the trial judge’s direction that the jury could find the third element of Counts 1 and 2 proved on the basis that the appellant knew the complainant was not consenting to those acts of sexual intercourse, because of her intoxication, caused a miscarriage of justice (Ground 6); • the trial judge’s directions about proof of the third element of Counts 1 and 2, with respect to whether the appellant knew the complainant was not consenting because of her intoxication, were unclear and caused a miscarriage of justice (Ground 7); and • the trial judge’s failure to direct the jury that before the appellant could be convicted of any of the counts, the prosecution must prove not only that the appellant had committed the acts of sexual intercourse but that he had done -- 3 of 25 -- [2025] SASCA 91 The Court 2 so consciously and voluntarily and not whilst he was asleep, or otherwise unconscious, caused a miscarriage of justice (Ground 8). 3 The appellant abandoned Ground 2 at the hearing. 4 Following the hearing of the appeal on 20 May 2025, this Court invited the appellant to apply for bail. On 22 May 2025, a judge of this Court granted the appellant bail. 5 On 22 May 2025, the Court invited the parties to provide further written submissions relating to Ground 4 of the appeal. The parties did so and on 17 June 2025, the Court heard further submissions and reserved judgment. 6 For the reasons that follow, we allow the appeal and remit the matter for retrial. It is not necessary to address all grounds of appeal. Background 7 The prosecution case was that the appellant raped the complainant after the complainant’s 18th birthday party, at her unit in Elizabeth North, on 16 July 2020. The appellant was 20 years old, and the complainant was 18. Four people attended the party: the appellant, the complainant, Zara Dowsett and Shayne Phelan (‘the group of four’). They all consumed alcohol. The complainant, Ms Dowsett and Mr Phelan gave evidence at the trial. The prosecution also tendered evidence of the appellant’s interview with police on 17 July 2020. 8 The complainant and Ms Dowsett became drunk. Mr Phelan also became intoxicated but to a lesser degree than the complainant and Ms Dowsett. The appellant consumed some alcohol, but there was little evidence as to his state of intoxication. During the night, the four walked to a nearby park and then returned to the unit. They eventually went to bed and to sleep. Evidence of Mr Phelan 9 At the time of the party, Mr Phelan was in a relationship with Ms Dowsett. The group of four started drinking at the complainant’s unit. By about 9:30pm, Ms Dowsett and the complainant had about seven drinks each. Mr Phelan, the complainant and Ms Dowsett were drunk when they all went for a walk to the park. Mr Phelan said he stopped drinking at about 9:30pm. 10 Mr Phelan gave evidence that there were a few ‘sexual innuendoes’ as they walked to the park. He said that there were ‘quite a couple of sexually charged comments’ throughout the night. The complainant asked how big their penises were. She also grabbed at their penises at the park. There was a kissing game on the walk to and from the park. When they saw a car, they would kiss the person next to them. Mr Phelan was next to Ms Dowsett. The appellant was next to the complainant. Mr Phelan saw the complainant kiss the appellant twice during the walk. He described this as a ‘peck on the cheek’. Mr Phelan said the complainant ‘basically almost passed out’ at the park. He described the complainant and -- 4 of 25 -- [2025] SASCA 91 The Court 3 Ms Dowsett as being ‘sprawled out on the ground’ for the majority of the time they were at the park. 11 On the way back to the unit, Mr Phelan said the complainant made some comments about a threesome or foursome. 12 Everyone was tired when they returned to the unit. Ms Dowsett and the complainant had a shower together. One of them opened the shower curtain and they flashed Mr Phelan and the appellant. They exited the shower and dressed. Soon after this, Ms Dowsett started to throw up in the toilet. The appellant got a bucket for the complainant. The group of four sat in the bathroom and toilet for about 10 to 15 minutes. 13 About two hours after everyone was in bed, Ms Dowsett and the complainant tried to sleep in the same bed. Mr Phelan said they ‘bash[ed] into a wall and knock[ed] out a power point socket’. He asked Ms Dowsett to come out because they could not take care of each other given their level of intoxication. Ms Dowsett went into the loungeroom. Mr Phelan stayed up for another hour or two to ensure Ms Dowsett did not throw up in her sleep. 14 Mr Phelan left the complainant in her bedroom. He asked the appellant to check on her to ensure she was okay. He last saw the complainant in her room at about 1:30am or 2:00am. At that time, the appellant was in her room. This was the last that Mr Phelan saw of the appellant that night. He eventually fell asleep in the loungeroom with Ms Dowsett at around 3:30am or 4:00am. 15 Mr Phelan awoke at about 9:50am the next morning. Everyone was chatting and ‘feeling sorry’ for themselves. Mr Phelan gave evidence that everyone was ‘very seedy’. Mr Phelan left the unit shortly after. Evidence of the complainant 16 The complainant first met the appellant at high school. He had been in a higher year. She reconnected with him in 2020. The complainant said she held the party as she wanted to try alcohol for the first time. 17 On 16 July 2020, the complainant went with Ms Dowsett to get dinner at KFC. The appellant picked the two of them up and drove them to Dan Murphys to buy drinks. Mr Phelan was with them. The complainant said that after she had been to KFC with Ms Dowsett, but before the appellant picked them up, they went across the road from KFC to BWS and purchased a pack of Somersby apple cider. 18 After leaving Dan Murphy’s, they went back to the complainant’s unit. At the unit, the complainant drank different alcoholic drinks. When asked in examination if she had ever tried alcohol previously, she initially said she didn’t remember. After the prosecutor rephrased the question, the complainant said that she had consumed alcohol before that night. -- 5 of 25 -- [2025] SASCA 91 The Court 4 19 The group of four walked to the park. The complainant’s legs were wobbly, and she was struggling to stand. She was not able to walk by herself at that time. They played on the swings at the park. The complainant said she and Ms Dowsett slid down a hill on their bums. 20 When the group returned from the park, the complainant and Ms Dowsett had a shower together as they were dirty from the mud. She said that her nightie and knickers were handed to her, and she put them on. The complainant was then sitting on the floor in the bathroom with a bucket in case she threw up. She could not remember how long she was there or whether she threw up. 21 The next thing the complainant remembered was waking up in bed, on a mattress in her room. She said she woke, on her back, with the appellant on top of her. The appellant was having sex with her. His penis was in her vagina. She said she had no clothes on, and her bottom was in pain. A butt plug was in her anus. The appellant continued to have sex with her as he pulled the butt plug out. She gave evidence that she said the word ‘no’ more than once because she wanted him to stop. She didn’t know if that was before or after the butt plug was removed. After she said no, the appellant continued to have sex with her. She said ‘no’ four times. The appellant shushed her and didn’t stop. She could not remember how long sex continued after that or when it stopped. 22 The next thing the complainant remembered was waking up in her bed. She described that she felt gross. The appellant was next to her. She got up and had a shower. She messaged Ms Dowsett on Snapchat and then went back to bed. The appellant was still on the bed. She fell asleep again. 23 The complainant woke up in the early morning and had another shower. She then woke Ms Dowsett, who was asleep next to Mr Phelan on a mattress in the loungeroom. She asked Ms Dowsett to check her messages. She told Ms Dowsett, ‘[the appellant] had sex with me while I was drunk’. Ms Dowsett said that was rape. 24 The complainant contacted the police later that day and was taken to the Royal Adelaide Hospital for an examination. A doctor took some details from her, asked her what happened, and took some swabs. 25 The complainant gave evidence that the appellant had driven her and Ms Dowsett to a sex shop the day before the party. She purchased a butt plug. At home she took it out of the box and looked at it. She could not remember what she did with the butt plug after taking it out of the box. 26 The complainant accepted in cross examination that she had big gaps in her memory of the night of the party. She could not remember a kissing game at the park, asking Mr Phelan or the appellant how big their penises were, or grabbing at the appellant’s crotch. She could not remember any suggestion of a threesome or foursome. -- 6 of 25 -- [2025] SASCA 91 The Court 5 27 The complainant did not know if any other sexual activity occurred. She could not remember any kissing on the mouth, any cunnilingus or whether she told the doctor on 17 July 2020 that these sexual activities had occurred. 28 Towards the end of cross examination, the complainant agreed with defence counsel’s suggestion that she didn’t really remember anything at all about having sex. However, she said that she did remember some things and she did not agree with the suggestion that she was ‘looking back and trying to figure out why she had sex with the appellant’. Evidence of Ms Dowsett 29 Ms Dowsett gave evidence that she had more than 10 drinks. She was unable to remember anything until about 1:00am the next morning. She could not recall leaving the unit after she got there. The next thing Ms Dowsett remembered was throwing up in the complainant’s bathroom. She remembered a brief moment where the complainant was tripping over things in her hallway because she was also ‘incredibly drunk’. Her next recollection was being put on a blow-up mattress in the complainant’s living room. 30 The next morning, she went into the complainant’s bedroom. The complainant was alone. The complainant asked her if she had checked her phone. Ms Dowsett checked her Snapchat messages from the complainant but was unable to understand them. She asked the complainant what they were about. Ms Dowsett could not fully recall the conversation. She said that the complainant was ‘incredibly nervous and upset’. She was ‘fidgeting’ and looked ‘visibly upset’. Ms Dowsett said, ‘she had tears in her eyes and she has a certain body language, so she was, like, scratching her arm and picking at her hairs to show that she was stressed out and upset’. Ms Dowsett gave evidence that the complainant told her ‘I said no, I said no’. She asked the complainant what she meant. Ms Dowsett said the complainant responded but she could not recall any further conversation between them that day. The appellant’s interview with police 31 The appellant was asked to attend the Elizabeth Police Station on the night of 17 July 2020. He was interviewed at the station. He confirmed in his interview that he had been at the party with the complainant, Ms Dowsett and Mr Phelan the night before. He said they had been drinking, listening to music and went for a walk. The complainant and Ms Dowsett had started to get sick, and he and Mr Phelan had to look after them. He said that he had been on the same bed as the complainant. He told the police officer that throughout the night the complainant and Ms Dowsett had been sexually touching him and Mr Phelan because they were drunk. 32 The interviewer put to the appellant the complainant’s allegation that she had woken up to the appellant having sex with her and that she told him to stop. He said, ‘um I don’t recall that I um probably like blacked out or something because -- 7 of 25 -- [2025] SASCA 91 The Court 6 I was asleep’. The appellant initially said in the interview that he did ‘not really’ recall if he had sex with the complainant. He then told the police officer that he did not recall having sex with her at all. 33 The officer asked the appellant whether it could have happened. The appellant replied, ‘Probably yeah throughout the night she was I said pretty much both of them were sexually touching me and [Mr Phelan] but she was touching us, [the complainant] was touching both of us the most, like she would come to us grab our dicks and all that.’ When questioned whether anything happened while they were in bed, the appellant replied, ‘we were trying to sleep she kept like sexually touching me and all that and I don’t remember what happened afterwards as I was asleep’. He said the complainant’s sexual touching was ‘grabbing and fondling’. She moved his hand to her breast and ‘downstairs and upstairs to play around’. He said he was so tired he fell asleep and didn’t really remember that much. 34 When asked again if he remembered having sex with the complainant at any stage during that evening, he said, ‘Not really because I was like that tired and probably had not or had enough alcohol to not remember much at certain times’. 35 The appellant said the complainant had previously told him that she had numerous sex toys and that she kept them in her side drawer. A couple of days earlier, the complainant had wanted him to take her to a sex shop in Gawler. He said that he saw the anal plug lying on the floor in the morning and guessed that she might have used it during the night while he was asleep, but he was not sure. 36 At the conclusion of the interview, the appellant was asked again whether he had done any of what the complainant alleged. He said, ‘Not that I can recall … I can’t recall any of that, or doing any of those sexual acts to her’. Other evidence 37 Police searched the complainant’s unit on 17 July 2020 and seized a sexual aid (the anal plug) which was tendered at trial. 38 A statement of agreed facts was tendered at the trial. It included the results of the DNA testing of swabs taken from the complainant’s labia and vagina and the appellant’s penis. 39 The complainant was examined on 17 July 2020 at 8:45pm. The doctor obtained a brief history of the complainant’s allegations. This included that the appellant had performed cunnilingus on the complainant and had kissed her on the mouth. Forensic examination showed sperm to be present in the tests relating to the high vaginal, low vaginal and labial swabs, confirming the presence of semen. The labial swab indicated the presence of saliva. DNA testing showed extremely strong support for the proposition that the appellant was a contributor to DNA detected on the low vaginal and labial swabs. There was extremely strong support -- 8 of 25 -- [2025] SASCA 91 The Court 7 for the proposition that the complainant was a contributor to DNA detected on the swabs of the appellant’s penis. The defence case 40 The appellant did not give evidence at trial. The defence case was that the complainant was a willing participant in the events that occurred, that she was sober enough to engage in it and that the two of them had consensual sex. Defence counsel submitted that the alleged sequence of events was very unlikely to have occurred without active participation of the complainant. Defence counsel invited the jury to infer that the complainant had later reconstructed events and come to the view that she had said no, and that she was asleep, because she was unable to remember things. 41 As noted earlier, the jury found the appellant not guilty of the first count of rape (which particularised insertion of the anal plug into the complainant’s anus), but guilty of the second and third counts. The appeal Whether Counts 2 and 3 charged the same offence twice (Ground 4) 42 It is convenient to start with Ground 4. Counts 2 and 3 particularised the charges of rape as follows: Second Count … [The appellant] on the 17th day of July 2020 at Elizabeth North, 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 [the complainant] was not so consenting. Third Count … [The appellant] on the 17th day of July 2020 at Elizabeth North, 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 [the complainant] was not consenting. 43 The slight difference in wording of the counts reflects the fact that Count 2 concerned the appellant commencing sexual intercourse with the complainant while she was asleep and that Count 3 concerned the appellant continuing the act of sexual intercourse with the complainant, following the initial act of penetration the subject of Count 2, after the complainant said ‘no’. 44 Section 48(1) of the CLCA relevantly defines the offence of rape as follows: 48—Rape -- 9 of 25 -- [2025] SASCA 91 The Court 8 (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). 45 The CLCA defines ‘sexual intercourse’ as follows: sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving— (a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or (b) fellatio; or (c) cunnilingus, and includes a continuation of such activity; 46 The appellant did not challenge the formulation of the charges at or before trial. Nonetheless, on appeal, he submitted that the conduct identified by Counts 2 and 3 involved the same continuing act of penetration. There only being one act, there could only be one offence and one conviction for that act. 47 The appellant relied, in this regard, on R v Murphy.1 In that case, the appellant had been charged with rape and unlawful sexual intercourse. He pleaded guilty to unlawful sexual intercourse and the trial proceeded on the rape charge. The appellant was found guilty. On appeal, he complained that the lesser verdict of indecent assault had not been left to the jury. This was on the view of the evidence that sexual penetration had occurred initially with the consent of the complainant but was then withdrawn. 48 Justice White held that it would have been an abuse of process for the appellant to require this as he had already pleaded guilty to unlawful sexual intercourse. Justice Cox, however, considered that the asserted factual basis was sufficient to constitute rape in any event. He said:2 In my opinion, the sexual intercourse that was the foundation of the charge of rape upon which the appellant was tried was a continuing act. It began with his penetration of N’s body and ended with his withdrawal. It follows in my judgment that, if the appellant, when he penetrated N, erroneously believed that she was consenting, and if soon afterwards he realised that he was mistaken about that but nevertheless continued having intercourse with her, he was by his deliberate act of continuance guilty of rape. 1 (1988) 52 SASR 186. 2 R v Murphy (1988) 52 SASR 186 at 201. -- 10 of 25 -- [2025] SASCA 91 The Court 9 49 At that time, neither the definition of rape nor of sexual intercourse included the express specification of continuation of the activity to be included within the definition. Justice Cox’s analysis was based on the recognition that sexual intercourse is a continuing act. It followed that the offence of rape could be made out at any point during the intercourse if the second and third elements of the offence only became established part-way through (such as by the withdrawal of consent). 50 The amendments to the definitions have long since made that understanding commonplace. In this case, however, the appellant relied on this passage in Cox J’s reasons for a different proposition, namely that where the foundation of the charge of rape is a continuing act, there can only be one offence attaching to that act. 51 The respondent, by contrast, submitted that the charging of the two counts of rape was an appropriate approach that reflected the totality of the appellant’s criminality. Section 102(1) of the Criminal Procedure Act 1921 (SA) (‘CPA’) provides that charges for two or more offences may be joined in the same information if they are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character. The respondent invoked Pearce v The Queen3 in support of the appropriateness of so charging in this case:4 The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some other improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately. (Footnotes omitted) 52 In Pearce, the accused was charged with maliciously inflicting grievous bodily harm within intent to do the victim grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW) and with breaking and entering the dwelling house of the victim and while therein, inflicting grievous bodily harm on him, contrary to s 110 of the same Act. The Court recognised that the elements of the offences overlapped but were not identical. The first offence required specific intent, while the second did not. The latter required the physical element of breaking and entering.5 53 As is the case with the South Australian legislation, there was no legislative provision addressing this potential question of double jeopardy. The Court adopted 3 (1998) 194 CLR 610. 4 Pearce v The Queen (1998) 194 CLR 610 at [31] (McHugh, Hayne and Callinan JJ). 5 Pearce v The Queen (1998) 194 CLR 610 at [7] (McHugh, Hayne and Callinan JJ). -- 11 of 25 -- [2025] SASCA 91 The Court 10 the rationale for the principle against double jeopardy which had been stated by Black J in Green v United States:6 The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 54 The appellant in Pearce, while accepting that there were different elements to the offence, argued that the principle protected him from being convicted of different offences in respect of the same or substantially the same set of facts. He had not had an opportunity to enter a plea in bar and the Court did not examine the potential consequences of him not taking an opportunity to do so. It proceeded simply to consider when a plea in bar would be available on account of infringement of the rule against double jeopardy. 55 It is not necessary to rehearse the Court’s consideration of the question. There are some important observations to be made from the analysis, however. The plurality referred to the judgments of Griffith CJ in Chia Gee v Martin7 and Li Wan Quai v Christie.8 A close examination of these authorities suggested, in the view of the plurality, that the necessary inquiry was not about what witnesses would be called and what they could say about the events, but:9 … about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. Further, when it is said that it is enough if the offences are “substantially” the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration. (Emphasis in original) 56 The Court explained that earlier authority, which had been thought to support the proposition that a plea in bar was available when a person was charged with different offences arising out of the same facts, did not do so.10 Rather, the availability of a plea in bar was confined to cases in which the elements of the 6 (1957) 355 US 184 at 187-188. 7 (1905) 3 CLR 649. 8 (1906) 3 CLR 1125. 9 Pearce v The Queen (1998) 194 CLR 610 at [20]-[21]. 10 Pearce v The Queen (1998) 194 CLR 610 at [24], referring to Wemyss v Hopkins (1875) LR 10 QB 378. -- 12 of 25 -- [2025] SASCA 91 The Court 11 offence were identical or in which all the elements of one offence were wholly included in the other.11 57 This focus on the identity or subsuming of the elements of the offence creates a relatively narrow scope for operation of the double jeopardy rule in the present context. The respondent nonetheless submitted that there was a degree of practical judgment to be exercised. In this regard, counsel relied on statements as to when a single charge is not to be regarded as duplicitous for disclosing more than one offence within the charge.12 58 R v Khouzame and Saliba13 concerned a complaint of duplicity where several acts of penetration in the course of the one encounter with the accused were alleged but incorporated into a single count of aggravated sexual assault. Justice Kirby identified several advantages to charging the separate offences separately:14 Here, if separate counts had been charged, each accused may have been prepared to plead guilty to certain charges, but not others. The Crown, depending upon the concessions made, may have accepted such pleas in satisfaction of the indictment. Specificity, in short, may ultimately contribute to efficiency. There are also the advantages, identified by Gaudron and McHugh JJ in respect of sentence. Plainly, the trial judge would have been assisted by knowing whether the jury had regarded each act of sexual intercourse as non-consensual. If, contrary to the trial judge’s surmise, the jury believed that some, but not all, such acts were non-consensual, his Honour’s assumption (and the sentences imposed upon the basis of that assumption) was unfair to the accused. Finally, the charges preferred should accurately reflect the criminality of the conduct alleged. It is plainly worse to have non-consensual sexual intercourse three times, as alleged against these appellants, than once. 59 The offending alleged in that case constituted three quite separate acts of penetration comprising a course of conduct. They could not be characterised as a continuous activity.15 They were separate and distinct. The charge against each accused was held to be bad for duplicity. 60 The duplicity cases present the other side of the problem to that arising in the present case.16 The complaint here is that only one offence was ever disclosed. The inquiry is not simply whether it would be duplicitous to charge only one offence incorporating all the allegations of fact, but whether, in accordance with the reasoning in Pearce v The Queen,17 that was what was required. 11 Pearce v The Queen (1998) 194 CLR 610 at [24]. 12 Walsh v Tattersall (1996) 188 CLR 77 at [6]. 13 (1999) 108 A Crim R 170. 14 R v Khouzame and Saliba (1999) 108 A Crim R 170 at [61]-[63]. 15 R v Khouzame and Saliba (1999) 108 A Crim R 170 at [82]. 16 See, e.g., Wellington v Police (2009) 105 SASR 215. 17 (1998) 194 CLR 610. -- 13 of 25 -- [2025] SASCA 91 The Court 12 61 The respondent accepted that there was ‘overlap’ between the counts but submitted that there was ‘a clear temporal severance relevant to the appellant’s culpability with respect to intent’. On Count 2 (as with Count 1), the prosecution relied on two pathways to guilt. The first was that the complainant was asleep and could not consent, and the appellant knew or was recklessly indifferent to that fact. Alternatively, if the jury did not accept that the complainant was asleep, the prosecution alleged that she was otherwise intoxicated to the point of being unable freely and voluntarily to consent to the acts, and the appellant knew or was recklessly indifferent to that fact. 62 With respect to Count 3, however, the prosecution disavowed reckless indifference on the part of the appellant. Its case was that the appellant knew that the complainant was not consenting. 63 The respondent submitted that by laying two counts, the Court did not need to grapple with the differences in intent alleged with respect to each. Thus in respect of Count 2, the appellant’s case was that the jury should reject the complainant’s evidence that she was asleep and submitted that elements of her pre-offence conduct were indicative of her capacity to give consent. As to Count 3, the appellant’s case was that the jury should not accept the complainant’s account beyond reasonable doubt. 64 The respondent accepted that it was possible to have charged a single count, but these matters demonstrated that there was no error in not doing so. 65 We are not persuaded that the respondent’s answer addressed the apparent difficulty adequately. Neither are we persuaded that the question of the appropriate charge or charges was merely a matter of practicality. Whether only one offence was disclosed in the course of conduct alleged depends on the elements of the offence. 66 The first question is how properly to characterise the actus reus of the offending. Since R v Murphy, the relevant definitions have been clarified to include in the definitions of sexual intercourse and rape, not just the act of penetration, but the continuing of the activity. That reflects expressly the interpretation given by Cox J. It addresses the situation where consent is withdrawn during sexual intercourse. However, it also reinforces Cox J’s observation that an act of sexual intercourse, from penetration to withdrawal, is one single act, be it momentary or prolonged. Any other reading of the definition would be productive of unworkable uncertainty. 67 The difficulty with the respondent’s submission lies in the attempt to divide up a single continuing act of penetration by reference to the evidence on which the prosecution relied in proving the third element of the offence in Counts 2 and 3, respectively. The information described the third element in each count as ‘knowing or being recklessly indifferent to the fact [the complainant] was not consenting’. To take up the reasoning in Pearce, it was sufficient in each case to -- 14 of 25 -- [2025] SASCA 91 The Court 13 show that the appellant was recklessly indifferent to the complainant’s lack of consent. 68 The respondent’s reliance on its ability to prove different mental states of the appellant at different points of time during the single act of sexual intercourse focused on the evidence that the complainant was first asleep, and then woke and said no. However, that is precisely what the Court in Pearce warned against. The prosecution relied on what the witnesses might (and did) say, not on the elements of the offence. To restrict the mental element in Count 3 to ‘knowing’ was to focus on what the evidence was capable of demonstrating at a particular point in time during the single act of sexual intercourse. However, that evidential focus elides the fact that this was a single act, throughout which, on the prosecution case: • the appellant engaged one an act of sexual intercourse; • with a complainant who did not consent to the sexual intercourse; and • the appellant knew, or was recklessly indifferent to, the fact that the complainant did not so consent. 69 The mere fact that the prosecution might prove different mental states of the appellant at different points of time during the single act of sexual intercourse did not turn the act into two offences. It was not necessary18 for the prosecution to prove the higher state of ‘knowledge’ after the complainant said ‘no’. The evidence was that throughout one act of sexual intercourse, the complainant was asleep, woke and protested. This was all evidence in support of the third element of the offence of rape, that the appellant knew or was recklessly indifferent to the fact that the complainant did not consent to the act of sexual intercourse. 70 This conclusion is consistent with authority that has held that a single charge of rape, alleging penetration when the complainant was asleep, and a continuation after the complainant told the accused to stop, is not bad for latent duplicity. In R v Yankovski, Chernov JA held:19 The two “incidents”, so characterised by the applicant, were but part of the one penetration of the complainant and, as the jury found, there was absence of consent from the complainant as to that. The situation here is, in this respect, materially different from that which occurred in each of the cases to which reference has been made. Here, there were no two discrete penetrations/offences. As was pointed out in argument by Vincent JA, if in the course of sexual intercourse the offender stops momentarily and then continues, the continued sexual intercourse does not constitute a new penetration. On the jury’s finding, there was but one continuing penetration and it was in the course of it that the applicant was told by the complainant to stop but he “kept going”. And assuming that the offender had the requisite intent during the penetration, it is irrelevant at what point or points during that period the various jurors considered there was lack of consent. Thus, lack of consent could have been found to exist at the point the applicant commenced his offending act when the complainant was asleep. It could also have been concluded, additionally or in the 18 Pearce v The Queen (1998) 194 CLR 610 at [20]. 19 R v Yankovski (2007) 17 VR 315 at [23] (Chernov JA, Vincent and Redlich JJA agreeing). -- 15 of 25 -- [2025] SASCA 91 The Court 14 alternative, that there was lack of consent when the complainant asked the applicant to stop but he nevertheless continued. And it is irrelevant for present purposes at what point in time the various members of the jury considered that there was absence of consent, providing they were unanimous in the conclusion that during that act of penetration there was absence of consent prior to its termination. 71 This case illustrates that a single charge encompassing the whole of the allegations would not have been bad for duplicity. That only takes the matter so far. For the reasons appearing above, we hold that the information, by charging the appellant with Counts 2 and 3, impermissibly breached the principle against double jeopardy. Counts 2 and 3 did not disclose separate offences. 72 In circumstances where this issue was not raised before or at trial, the potential consequences of this conclusion taxed the parties and the Court. The parties’ positions evolved with respect to both what the immediate legal effect of this conclusion would be, and what statutory facility was available to address that effect. The consequence of finding a breach of the principle against double jeopardy 73 The appellant’s initial position was that his conviction on Count 2 raised a plea in bar of autrefois convict to Count 3. However, following an invitation from the Court for further submissions, he retreated from this position. That was understandable, as the fundamental vice lay not in the conviction on Count 3, but in the charging of both Counts 2 and 3. While Count 3 appeared after Count 2 on the information, the difficulty lay in the fact that both were charged. There does not appear to be any reason to prefer Count 2 as good, and then simply to dispose, in some way, of Count 3. 74 The appropriate approach requires interrogation of the error. While it may seem a fine distinction, the error lay in the fact that both counts were charged, rather than the fact that one was charged in addition to the other. It was the fact of the two counts that breached the principle against double jeopardy. The appellant should not have been required to answer the information in that form. 75 It would follow that the information, insofar as it charged Counts 2 and 3, caused a miscarriage of justice. On its face, that would suggest that the only option open to this Court, in the first instance, is to quash the convictions. However, that prima facie conclusion requires further consideration. So too does the course then open to this Court if it were to quash the convictions. 76 The respondent submitted that if only one offence was disclosed, this did not require both convictions to be set aside and a new trial ordered. Rather, the respondent applied, on this alternative basis, to amend the information pursuant to s 181 of the CPA. Section 181 provides: 181—Charges (1) An information is not invalid because of a defect of substance or of form. -- 16 of 25 -- [2025] SASCA 91 The Court 15 (2) A court may— (a) amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or (b) dismiss an information if the defect cannot appropriately be cured by amendment. 77 The respondent submitted that if it had been an error to charge the two counts on the information, this was a defect capable of being cured by amendment on an application pursuant to s 181. In Ilich v The Queen,20 this Court held that an information can be amended on appeal:21 Section 181 does not refer to the “trial”. Nonetheless, we do not find that is of any particular moment. On the face of it, and as with s 128, it is capable of applying at any stage of criminal proceedings, subject of course to there being no substantial prejudice caused. That is consistent with authorities such as Wright v Police, where the Court recognised that s 181 could be employed to permit an amendment during the course of an appeal in circumstances where there was no prejudice to the appellant.22 (Footnote in original) 78 The respondent submitted that the defect in the information could be cured by ‘removing’ Count 3 and maintaining Count 2 to encompass the facts originally charged in both counts. This submission was on the basis that it could not be said that the appellant had been substantially prejudiced by the defect, as there was no suggestion that the appellant had not been properly put in jeopardy for the alleged conduct itself. 79 While there is a degree of force in the respondent’s submission, it requires testing against the statutory regime. First, we accept that the Court can amend the information on appeal. Secondly, in circumstances where the appellant was found guilty on both Counts 2 and 3, there is a superficial attraction to a resolution that incorporates the findings of the jury into a single count. 80 However, the respondent’s submission does not address the gravamen of the difficulty. The miscarriage of justice lay in the exposure of the appellant from the outset to two charges in respect of the same offence. It would be insufficient simply to amend the information in circumstances where the appellant has been convicted of both charges. The convictions must be addressed. Even on the respondent’s submission, it would be necessary to quash the conviction on Count 3. That then raises the Court’s power under s 158(3) of the CPA: 20 [2021] SASCA 45. 21 Ilich v The Queen [2021] SASCA 45 at [71]. 22 Wright v Police [2008] SASC 216, [29] (Anderson J), citing Robey v SA Police (1993) 18 MVR 121, 123 and Ireland v Police [2005] SASC 202, [13], [23] (Gray J). -- 17 of 25 -- [2025] SASCA 91 The Court 16 (3) Subject to the special provisions of this Act, the Court of Appeal will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. 81 Section 158(3) is presupposed by s 158(2), which provides that the Court may dismiss the ground of appeal if it considers that no substantial miscarriage of justice has occurred. The respondent’s application for the Court to amend the information was premised, to some degree, on a submission that no substantial miscarriage of justice had actually occurred. That is to say, this was an appropriate case to apply the proviso and then amend the information to cure the defect. 82 This raised the question of whether the error identified amounted to a ‘fundamental irregularity’. The Court sought further submissions on this point. 83 In Brawn v The King,23 the High Court confirmed that if an error or irregularity was ‘fundamental’ in the sense discussed in the authorities, there will be a miscarriage of justice and no occasion to address the proviso.24 Thus, for example, in Huxley v The Queen, the plurality explained:25 Sometimes a misdirection on a matter of law will prevent the application of the proviso because it will be so serious that it will be a substantial miscarriage of justice irrespective of whether it might have affected the outcome of the trial. Sometimes it will not. Not every error of law, however trivial, will give rise to a substantial miscarriage of justice.26 If there has been a misdirection or other error of law, the question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.27 (Footnotes in original) 84 The respondent pointed out that there is no rigid formula to determine whether an error is a fundamental error. Counsel noted various formulations that have been deployed in the authorities, such as an error ‘that goes to the root of the proceedings’,28 a serious breach of the presuppositions of the trial’29 or a ‘serious departure from the prescribed processes for trial’.30 Counsel submitted, however, that in circumstances where the CPA contained a practical remedy for addressing charging errors, the error in this case could not be said to be fundamental. 85 The respondent pointed, by way of illustration, to ss 160(1) and (2) of the CPA: 23 [2025] HCA 20; (2025) 199 ALJR 872. 24 Brawn v The King [2025] HCA 20; (2025) 199 ALJR 872 at [9]. 25 Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62 at [40]. 26 Weiss v The Queen (2005) 224 CLR 300 at [18]-[19]; Kalbasi v Western Australia (2018) 264 CLR 62 at 69-70 [12]; Hofer v The Queen (2021) 274 CLR 351 at [41], [106], [116], [123], [130]. 27 Kalbasi v Western Australia (2018) 264 CLR 62 at [57]. 28 Wilde v The Queen (1988) 164 CLR 365 at 373. 29 Weiss v The Queen (2005) 224 CLR 300 at [46]. 30 Baini v The Queen (2012) 246 CLR 469 at [26]. -- 18 of 25 -- [2025] SASCA 91 The Court 17 160—Powers of Court in special cases (1) If it appears to the Court of Appeal that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such other sentence in substitution or as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted. (2) Where an appellant has been convicted of an offence and the jury could, on the information, have found the appellant guilty of some other offence and, on the finding of the jury, it appears to the Court of Appeal that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. 86 The respondent did not invoke s 160 as applicable in this case. However, it pointed to the decision of the Court of Criminal Appeal in WJG v The Queen,31 where s 160(2) had been used on appeal to transfer a verdict of guilty in respect of an offence that was not known to law at the time to the correct statutory alternative.32 Thus in Spies v The Queen,33 the High Court said of the equivalent provision in New South Wales, s 7(2) of the Criminal Appeal Act 1912 (NSW):34 The power conferred by s 7(2) and its counterparts in other jurisdictions is a very useful one which, in appropriate cases, will result in the saving of time and expense and avoid the inconvenience and worry of victims and witnesses having to testify once again before a jury. … However, once the court finds that the jury must have been satisfied of the facts constituting the other offence, there is no reason why the power under s 7(2) should be used sparingly. The need for caution is directed to the issue whether it really does appear that the jury were so satisfied. In some cases, it may be that, even though the court is so satisfied, the legal error may have put the appellant at some forensic, as opposed to legal, disadvantage. In such a case, it would be proper not to substitute a verdict. (Footnote omitted) 87 The respondent did not suggest that it was open to use s 160(2) in this case. There was no question of substituting a verdict. Rather, counsel submitted that this statutory facility illustrated that the error of laying an erroneous count did not amount to a fundamental error. Section 181 then provided the appropriate facility of amendment that allowed correction in a case such as the present. 88 We do not accept this submission. Even on the respondent’s alternative case, the conviction for Count 3 cannot stand. However, Count 3 cannot be substituted 31 [2020] SASCFC 56. 32 WJG v The Queen [2020] SASCFC 56 at [33]ff. 33 (2000) 201 CLR 603. 34 Spies v The Queen (2000) 201 CLR 603 at [47]-[48]. -- 19 of 25 -- [2025] SASCA 91 The Court 18 with another count. The nature of the error has resulted in the appellant being convicted twice for the same offence. Even on the respondent’s argument, it is not enough simply to amend the information so as to ‘remove’ Count 3. The conviction must be quashed. There is no available statutory facility that performs a function like that in s 160(2). Indeed, it is difficult to see that there could be. 89 The principle against double jeopardy is a fundamental tenet of the criminal process. Where a person has been convicted twice for the same offence, we cannot see that this is anything other than a fundamental irregularity. It is of no account that the convictions represent the jury’s determination of guilt on each aspect of the evidence (that the complainant had been asleep and had then woken and protested). The very fact that the two convictions cannot stand together is sufficient to show that the error is fundamental. The facility of amending an information, even on appeal, cannot address this by itself. 90 Furthermore, the nature of the error does not allow a preference for one count over the other. That is to say, there is no principled reason why, for example, the conviction on Count 2 should be allowed to stand and the conviction on Count 3 quashed. The existence of each rendered the other an abuse. That conclusion can be stated as a matter of principle. It is not necessary to consider the prejudice that each count may have imposed on the other by its existence or by the separate treatment of certain aspects of the evidence in support of one count or the other. 91 Having said that, there are also obvious practical difficulties. To take an example, assume that this Court were to quash only Count 3. Section 158(3) of the CPA requires that the Court must either direct a judgment and verdict of acquittal or direct a new trial. The Court could not direct a new trial on Count 3. To direct an acquittal on Count 3, on the other hand, while maintaining the conviction on Count 2, would be arbitrary at best. 92 Then, if the appellant were successful on any of his other grounds of appeal in respect of Count 2, that Count would be remitted for retrial. However, the appellant would then have the benefit of an acquittal on Count 3, which could not be called into question. The evidence relating to the complainant waking up and saying, ‘no’ could not be led.35 93 These observations do no more than illustrate certain practical implications of the point of principle that there is no basis for preferring one count over the other when the breach of the double jeopardy principle is occasioned by the existence of both. The fact that Counts 2 and 3 both charged the appellant in respect of the same offence requires the convictions on both to be quashed. 94 That is not the end of the matter, however. The appellant submitted that the necessary consequence was that acquittals on both counts should follow. The Court’s powers on appeal are entirely statutory.36 The binary choice presented by 35 Garrett v The Queen (1977) 139 CLR 437. 36 NH & Ors v DPP (SA) (2016) 260 CLR 546 at [54]-[56]; [85]. -- 20 of 25 -- [2025] SASCA 91 The Court 19 s 158(3) is to acquit or direct a new trial. Obviously enough, this Court could not direct a new trial on Counts 2 and 3. 95 In R v A2,37 the High Court considered the comparable New South Wales provisions, ss 6(2) and 8(1) of the Criminal Appeal Act 1912 (NSW). In response to a submission that it was open simply to quash the convictions and make no further order, the Kiefel CJ and Keane J observed that the statutory scheme was such that s 6(2) required an order for entry of acquittal, unless the power to order a retrial in s 8(1) was exercised.38 They held that it was not open to construe these sections as permitting anything other than an acquittal or an order for retrial.39 96 In so holding, their Honours addressed cases where orders were made simply quashing the conviction. In Maher v The Queen,40 a jury returned a verdict of guilty on a count in an indictment (Count 20) in respect of which it had not been sworn to try. The Court considered that the failure to comply with the relevant provisions of the Jury Act and the Code ‘may render a trial a nullity’, or at the very least involved ‘such a miscarriage of justice as to require the conviction to be set aside’.41 It concluded:42 The need for an order for a new trial of the applicant on the present indictment depends on the validity of the addition of count 20. As there was no power to order or permit count 20 to be added to the indictment, there should be no order for a new trial on that indictment. The prosecuting authorities may be advised to present a new indictment charging the offence alleged in count 20. Neither the verdict of the jury nor the order now pronounced determines any issues which would arise on a plea to an indictment framed in the same terms as count 20. 97 In R v A2, Kiefel CJ and Keane J explained Maher, and other cases to like effect, as standing for the proposition ‘that there is no need to enter a verdict of acquittal where it has been held that the trial itself is a nullity, or where the indictment is invalid’.43 That did not address the position in that case, and a binary statutory choice was required to be made. 98 Justice Edelman held that even where a trial was a nullity, a verdict of acquittal was not meaningless. The trial is a ‘real event’, and the recorded conviction was a fact providing a sufficient basis for an appeal. A recorded acquittal was equally meaningful.44 It also carried the protection of a future plea of autrefois acquit.45 However, Edelman J also considered that there was no barrier to ordering a new trial in the event of a trial being a ‘nullity’:46 37 (2019) 269 CLR 507. 38 R v A2 & Ors (2019) 269 CLR 507 at [76]. 39 R v A2 & Ors (2019) 269 CLR 507 at [83]. 40 (1987) 163 CLR 221. 41 Maher v The Queen (1987) 163 CLR 221 at 233. 42 Maher v The Queen (1987) 163 CLR 221 at 234. 43 R v A2 & Ors (2019) 269 CLR 507 at [79]. 44 R v A2 & Ors (2019) 269 CLR 507 at [183]. 45 R v A2 & Ors (2019) 269 CLR 507 at [184]. 46 R v A2 & Ors (2019) 269 CLR 507 at [185]. -- 21 of 25 -- [2025] SASCA 91 The Court 20 It is also neither meaningless nor senseless for an order for a new trial to be made even if the first trial might be described as a “nullity”. The power in s 8(1) for the Court of Criminal Appeal to order a new trial “in such manner as it thinks fit” might require particular orders to be made such as that the trial be on a new indictment or before a different judge. 99 Section 158(3) of the CPA does not attach the words, ‘in such manner as it thinks fit’ to the power to direct a new trial. However, at this point, it is necessary to return to s 181 of the CPA. Section 181 provides that ‘an information is not invalid because of a defect of substance or of form’. Section 181(2) then empowers the Court (including, as discussed above, on appeal), to ‘amend an information to cure a defect of substance or form’. However, that power does not extend to where ‘the defendant has been substantially prejudiced by the defect’. 100 Section 181(1) would appear to address any contention that the information, insofar as it charged Counts 2 and 3, was invalid or a nullity. The possibility of quashing the convictions and making no further order does not then arise, if it ever could. We are left with the binary choice of directing acquittals or directing a new trial. 101 In this regard, however, it would nonetheless appear to be open to the Court, pursuant to s 181(2), to amend the information consequent on the quashing of both convictions. This is not what the respondent submitted the Court should do, but for the reasons given above, we have rejected the submission that the Court can simply amend the information and ‘remove’ Count 3. 102 The only potential statutory barrier to amending the information to allege a single count that incorporates all the facts as alleged by the prosecution is where the defendant has been substantially prejudiced by the defect. There is one identifiable element of prejudice. This is that the appellant having been acquitted on Count 1, the prosecution may not now call that acquittal into question. However, that acquittal suggests that the jury found aspects of the complainant’s evidence to be unreliable. On a retrial, those aspects of unreliability would not be available, on the prosecution case, to aid in impugning the balance of the complainant’s evidence. 103 While this constitutes a prejudice of sorts, we are not satisfied that it constitutes a substantial prejudice. First, notwithstanding the acquittal on Count 1, the jury were prepared to convict on Counts 2 and 3. Secondly, if the appellant regarded this aspect of the complainant’s allegations to be of real forensic moment in his favour, it would be open to him to cross-examine them back in. That would require a forensic judgment that he may be unlikely to take. However, even accepting that prospect, we do not conclude that this would leave the appellant substantially prejudiced by the course that had gone before. 104 Once it is established that it is open to this Court to amend the information, whether to direct an acquittal or retrial is to be assessed in accordance with ordinary principle. Generally, where a conviction has been set aside but there is -- 22 of 25 -- [2025] SASCA 91 The Court 21 evidence to support the charge, the Court should order a retrial.47 In Gilham v The Queen,48 the New South Wales Court of Criminal Appeal indicated the various factors informing where the interests of justice lie as including:49 • the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349); • the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J)); • the strength of the Crown case (Anderson at 453); • the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350); • the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453); • whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or “patch up” a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]); • the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350); • whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J)); • the expense and length of a further trial (Reid at 350); • whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367-68 (King CJ)); and • whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]). 47 Spies v The Queen (2000) 201 CLR 603 at [104]. 48 [2012] NSWCCA 131. 49 Gilham v The Queen [2012] NSWCCA 131 at [649]. -- 23 of 25 -- [2025] SASCA 91 The Court 22 105 In arguing that this Court should enter acquittals, the appellant emphasised the impact of the acquittal on Count 1, discussed above. For the reasons given above, we give that factor some, but not decisive, weight. The appellant also emphasised weaknesses in the prosecution case, pointing to issues of reliability that attended on the complainant’s evidence, including lengthy gaps in her memory about the events of the night and the following morning. Further, this Court has released the appellant on bail pending determination of the appeal, the appellant having served part of his sentence. 106 Against these factors, the charge is serious. While there are issues of unreliability of the complainant’s account, the evidence of intoxication was also relevant to her ability to consent voluntarily and freely. The gaps in the complainant’s recollection work both ways. The forensic evidence was corroborative of penetration. 107 The appellant has served just over three months of a four-year sentence. A retrial, while inevitably delaying matters to some degree, will not extend the length of time from the alleged offence unduly. There is no basis for thinking that the prosecution could supplement its case in any way that is significantly different from the case it ran originally. 108 In our view, the interests of justice favour directing a new trial. In the circumstances of this case, it is appropriate that the Court quash the convictions, amend the information to cure the defect presented by the charging of both Counts 2 and 3, and direct that the matter be remitted for retrial. 109 It is not necessary to determine the remaining grounds of appeal. However, it should not be thought that this Court is thereby endorsing the directions that were challenged on the appeal. Conclusion 110 We order as follows: 1. The appeal is allowed. 2. The convictions on Counts 2 and 3 are quashed. 3. Pursuant to s 181(2) of the CPA, the information is amended by deleting Count 3, and amending Count 2 such that it reads: Second Count Statement of Offence Rape. (Section 48 of the Criminal Law Consolidation Act, 1935). Particulars of Offence -- 24 of 25 -- [2025] SASCA 91 The Court 23 Ethan Sean Hilliard on the 17th day of July 2020 at Elizabeth North, 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 [the complainant] was not so consenting. 4. There is to be a new trial on the Second Count on the information as amended. 111 For the sake of clarity, we reiterate that the information as amended is capable of incorporating all allegations of fact that the prosecution indicated were incorporated in the former Counts 2 and 3. -- 25 of 25 --