JOSHUA KAI MCNULTY v THE KING [2025] SASCA 118

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BARKLAY) DCCRM-23-007862 Appellant: JOSHUA KAI MCNULTY Counsel: MR A TOKLEY KC WITH MR C HAEBICH - Solicitor: MATTHEWS LAWYERS Respondent: THE KING Counsel: MS T COSTI WITH MS A O'SULLIVAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/05/2025 File No/s: SCCRM-24-035095 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. MCNULTY v THE KING [2025] SASCA 118 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David) 16 October 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT This is an appeal against conviction. Following a trial by jury, the appellant was convicted of one count of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and two counts of rape, contrary to s 48(1) of the CLCA. -- 1 of 19 -- The complainant met the appellant at a hotel on the evening of 20 August 2022. They socialised with one another and consumed several alcoholic drinks. They left the hotel together in the early hours of the morning and travelled to the complainant's home. The complainant had no recollection of leaving the hotel or returning to her home. Her first recollection was lying in her bed, naked, with the appellant beside her. She checked her phone and the time was 5:30am. It is alleged that over the course of that morning, the appellant engaged in sexual intercourse with the complainant, without her consent, on two separate occasions. When the complainant woke up and realised the appellant was engaging in the first charged act of sexual intercourse with her, she resisted. In response, the appellant punched the complainant to the nose with a clenched fist (Count 1). The complainant's account of the assault was supported by medical evidence and observations of the injury to her nose, as well as photographs. The appellant allegedly continued to have sexual intercourse with her (Count 2). The complainant received a telephone call at 10:41am which she did not answer. Shortly after this telephone call, the appellant again engaged in sexual intercourse with her (Count 3). By this stage, the complainant had become fearful of the appellant and did not attempt to stop him when he again engaged in sexual intercourse with her. The appellant now appeals his convictions on two grounds: first, that there has been a miscarriage of justice (Ground 1); and secondly, that his convictions are unreasonable and cannot be supported by the evidence (Ground 2). As to Ground 1, the appellant complains there has been a miscarriage of justice by reason of the following: 1. the admission of evidence of the complainant’s statement to a friend, HC, that the appellant ‘punched’ her and the trial Judge’s directions about the limited use to be made of that evidence (Ground 1(a)); 2. the admission of evidence of bruises to the complainant’s body and the trial Judge’s directions on the topic of the injuries (Ground 1(b)); 3. the prosecutor’s submissions in his closing address which purportedly reversed the onus of proof and, as a result of the trial Judge's inadequate directions (Ground 1(c)). Held, per the Court, granting permission to appeal but dismissing the appeal: 1. As to Ground 1(a), the evidence of the complainant's out of court statement was admissible and the trial Judge adequately instructed the jury as to the impermissible use of the evidence. 2. As to Ground 1(b), the independent evidence of the bruises to the complainant’s body was capable of supporting her account as to how the appellant forcefully had sexual intercourse with her. 3. As to Ground 1(c), the trial Judge’s directions as to the prosecutor’s address, and the burden of proof, removed any risk of a miscarriage of justice caused by the prosecutor’s submissions as to the bruising. 4. There was no miscarriage of justice. 5. As to Ground 2, the complainant’s account was not inherently implausible such that it must have given rise to a doubt in the mind of the jury. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of all three offences. Criminal Law Consolidation Act 1935 (SA) ss 20(4), 48(1); Evidence Act 1929 (SA) s 34M, referred to. Anderson (A Pseudonym) v The King [2024] SASCA 36; M v The Queen (1994) 181 CLR 487; Pell v R (2020) 268 CLR 123; R v Moores (2017) 128 SASR 340; R v Usher (2014) 119 SASR 22 , considered. -- 2 of 19 -- MCNULTY v THE KING [2025] SASCA 118 Court of Appeal – Criminal: Livesey P and Doyle and David JJA 1 THE COURT: Following a trial by jury, the appellant was convicted of one count of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and two counts of rape, contrary to s 48(1) of the CLCA. 2 The complainant met the appellant at a hotel on the evening of 20 August 2022. They socialised with one another and consumed several alcoholic drinks. They left the hotel together in the early hours of the morning and travelled to the complainant's home. The complainant had no recollection of leaving the hotel or returning to her home. Her first recollection was lying in her bed, naked, with the appellant beside her. She checked her phone and the time was 5:30am. 3 The complainant gave evidence that over the course of that morning the appellant engaged in sexual intercourse with her, without her consent, on two separate occasions. 4 The complainant gave evidence that she woke up and realised that the appellant was engaging in the first charged act of sexual intercourse, whereupon she resisted. In response, the appellant punched the complainant to the nose with a clenched fist (Count 1). The complainant's account of the assault was supported by medical evidence and observations of the injury to her nose, as well as photographs. 5 The appellant allegedly continued to have sexual intercourse with her (Count 2). 6 The complainant received a telephone call at 10:41am which she did not answer. Shortly after this telephone call, the appellant again engaged in sexual intercourse with her (Count 3). By this stage, the complainant had become fearful of the appellant and did not attempt to stop him when he again engaged in sexual intercourse with her. 7 The complainant made an initial complaint that she had been raped to her friend, HC, later that morning. She then reported the allegations to the police. During the evening, the complainant was medically examined. 8 The appellant did not give or call any evidence at trial. 9 The issues at trial were whether the prosecution had proved, beyond reasonable doubt, that the appellant punched the complainant, and her lack of consent to the two acts of sexual intercourse. There was no dispute that the appellant had sexual intercourse with the complainant. Rather, defence counsel put to the complainant that the appellant had not punched her, and the two acts of sexual intercourse were consensual. -- 3 of 19 -- [2025] SASCA 118 The Court 2 10 The appellant now appeals his convictions on two grounds: first, that there has been a miscarriage of justice (Ground 1); and secondly, that his convictions are unreasonable and cannot be supported by the evidence (Ground 2). These appeal grounds raise the following issues: 1. whether there has been a miscarriage of justice occasioned by the admission of evidence of the complainant’s statement to a friend, HC, that the appellant ‘punched’ her and the trial Judge’s directions about the limited use to be made of that evidence (Ground 1(a)); 2. whether there has been a miscarriage of justice occasioned by the admission of evidence of bruises to the complainant’s body and the trial Judge’s directions on the topic of the injuries (Ground 1(b)); 3. whether the prosecutor’s submissions in his closing address called on the jury to speculate in a manner which reversed the onus of proof and, if so, whether the trial Judge’s directions were adequate to ameliorate any risk of impermissible reasoning (Ground 1(c)); and 4. whether, on an independent review of the evidence, the jury must have had a doubt that the complainant did not consent to engaging in sexual intercourse with the appellant, and he knew, or was recklessly indifferent to that fact (Ground 2). 11 For the reasons which follow, we grant permission to appeal on both grounds but dismiss the appeal. Given there is an unreasonable verdict ground, it is necessary to outline the main features of the evidence at trial. The evidence at trial 12 The prosecution relied primarily on the complainant’s evidence as to the relevant events. 13 The complainant gave evidence that she and two friends attended the Gully Hotel at about 9:30pm on 20 August 2022. The appellant approached her during the evening, and they engaged in conversation. Over the course of the evening, the complainant consumed a number of alcoholic drinks. She was also taking prescribed medication, Gabapentin, which she said could ‘intensify the effects of alcohol’. No other evidence was led by the prosecution in relation to the effects of alcohol combined with Gabapentin. 14 There was evidence adduced as to CCTV footage1 of events at the Gully Hotel which depicted the appellant and the complainant kissing. The complainant had no memory of this interaction with the appellant. Nor did she have any memory of events after about 12:30am, when one of her friends left the hotel. 1 Trial Exhibit P2. -- 4 of 19 -- [2025] SASCA 118 The Court 3 15 There was independent evidence that the complainant paid for an Uber which left the Gully Hotel at about 2:27am. 16 There was also evidence that there were two phone calls from the appellant’s phone to the complainant’s phone at 4:53am. It was put to the complainant that the appellant had made the calls to help her locate her phone, but she could not recall that having happened. 17 The first memory the complainant had after being at the hotel was waking to find herself naked and in bed with the appellant. She said she was ‘shocked and disorientated’, and that her vagina felt sore. The complainant thought it was possible that she had engaged in sexual intercourse with the appellant prior to that time, although she had no recollection of doing so. She said that the appellant was awake. She checked her mobile telephone which indicated it was 5:30am. 18 The complainant said her next recollection was that the appellant was positioned on top of her and holding her by the upper part of both arms, just below the shoulder. She said that the appellant’s penis was inside her vagina, and he was engaging in sexual intercourse with her. She was unable to recall what, if anything, occurred between her checking her mobile telephone and the appellant positioning himself on top of her. In cross-examination, the complainant said the appellant was on top of her ‘not long after [she] had checked [her] phone’. 19 The complainant gave evidence that at some point she pushed him with her left hand and said: ‘You need to relax, stop’. In response, he told her to ‘Shut up you little slut’. Then, using his right hand, the appellant punched her to the ‘front’ of her nose with a closed fist (Count 1). She said that the appellant continued to engage in sexual intercourse with her (Count 2). She estimated that the sexual intercourse lasted for about an hour. She said that the appellant kept laughing and calling her a ‘bitch’ and ‘slut’, that he was acting ‘quite strange’, and she was scared. The complainant was unsure whether the appellant ejaculated. 20 The complainant gave evidence that she received a call from her friend HC when the appellant was on top of her, but not engaging in sexual intercourse with her. She gave evidence that she did not answer the phone call because the appellant slammed his hand down on her phone and said, ‘Fuck off, [HC], you bitch’. 21 There was independent evidence that the complainant received a missed phone call from HC at 10:41am.2 22 The complainant said that following the missed phone call, the appellant positioned himself on top of her and engaged in sexual intercourse with her (Count 3). On this occasion, the complainant remained silent throughout the sexual intercourse, as she was scared as ‘he had punched [her] in the face, and [she] felt 2 Trial Exhibit P3. -- 5 of 19 -- [2025] SASCA 118 The Court 4 like he was being very erratic and non-predictable’. The sexual intercourse came to an end as the appellant ejaculated. 23 The complainant said that she went to the bathroom and sent a text message to her sister-in-law. That message was sent at 10:59am and read: ‘I need an escape call! Call me and say you were meant to be here 10 mins ago. Hurry up!! Xx’. 24 Her sister-in-law responded by text, and then telephoned her (as requested) asking her where she was and reminded her that she was late and needed to be somewhere. The complainant put the phone call on speaker so that the appellant could hear her conversation with her sister-in-law, hoping that this would prompt the appellant to leave. 25 Following the alleged assault and sexual assaults, the complainant explained that she was fearful of the appellant and was concerned for her safety. She said she was too frightened to ask him to leave. She said she tried to remain calm by acquiescing in his request for access to her phone (to access her social media account). She told him she had to leave and headed to her vehicle in an attempt to do so, but he followed her. She asked him if he needed her to take him anywhere and he asked her to take him home, which she did. 26 The appellant took a video of her as she drove him home.3 On the defence case, this video depicts her smiling and behaving in a manner inconsistent with her account as to the alleged offending. 27 There was evidence that later that day, the appellant sent a text message to the complainant at 1:11pm stating: ‘The real question – did you actually arrive safely?’ This was a reference to the complainant lightly colliding with another vehicle when she drove the appellant home. 28 As to the evidence of initial complaint, the complainant gave evidence that after she returned home, she telephoned her friend, HC, who drove to the complainant’s home and then took the complainant to HC’s home. 29 The complainant’s conversations with HC, over the course of that day, are the subject of appeal Ground 1(a). 30 Later that day, the complainant attended the Holden Hill Police Station and reported the matter to police. There, crime scene investigators took photographs of the complainant’s face. 4 Brevet Sergeant Matthews observed a red area across the bridge of her nose. The complainant also attended the Yarrow Place Rape and 3 Trial Exhibit P1. 4 Trial Exhibit P3, Tab 2, pp 1-3. -- 6 of 19 -- [2025] SASCA 118 The Court 5 Sexual Assault Service that evening and underwent a forensic examination. Photographs were taken of injuries to the complainant’s face and body.5 31 On 24 August 2024, at 8:20am, Brevet Sergeant Van Der Wielen observed swelling and faint yellow-brown bruising to the bridge of the complainant’s nose and left eye area. She took some further photographs of the injury and bruising to the complainant’s nose.6 32 The admissibility of evidence as to the bruising to the complainant’s body is the subject of appeal Ground 1(b). 33 As mentioned earlier, the appellant did not give evidence nor call any evidence at trial. The defence case was that the prosecution had not disproved the appellant believed that the complainant was consenting to the sexual intercourse, and therefore, he did not know nor was he aware that she was not consenting. 34 Defence counsel emphasised that the complainant’s behaviour, both before and after the alleged rapes, supported the defence case: before leaving the Gully Hotel she was seen kissing the appellant; they travelled to the complainant’s home together; and she dropped the appellant back at his home the following morning, after the alleged rapes. Defence counsel also emphasised that there was a period of approximately four or five hours between 12:30am and 5:30am, and several hours between 5:30am and 10:40am, for which the complainant was unable to account. In those circumstances, defence counsel contended she was an unreliable witness, and her evidence could not be relied on to prove the prosecution case. 35 As to the bruising identified on the complainant’s body, defence counsel submitted that the bruises were non-specific, and unable to be dated such that the prosecution had not excluded that they were caused in a way other than as alleged by the complainant. 36 In addition, defence counsel submitted that the appellant’s behaviour, in telephoning her the following day and sharing his information with her, supported his case that he believed she was consenting to sexual intercourse with him. 37 Ultimately, defence counsel submitted that by reason of the unsatisfactory state of the evidence, the jury could not be satisfied beyond reasonable doubt of any of the charges. Appeal grounds 38 The grounds of appeal (as amended) are particularised as follows: 1. There has been a miscarriage of justice by: 5 Trial Exhibit P4. 6 Trial Exhibit P3, Tab 3. -- 7 of 19 -- [2025] SASCA 118 The Court 6 a. The admission of, then the directions given in relation to, hearsay evidence in relation to the assault; b. The admission of, and the omission of directions given in relation to, evidence of bruising on the complainant’s body not arising from the charged acts; c. Insufficient directions being given to negate the prosecutor’s submissions that amounted to a reversal of the onus of proof. 2. The convictions are unreasonable and not supported in the evidence by reason of inconsistencies, discrepancies, and other inadequacies in the complainant’s evidence and the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. a. The complainant accepted that she possibly had intercourse with the [appellant] before 5:30am but could not recall the same. b. The complainant gave inconsistent evidence as to when the first rape was alleged to have occurred, whether shortly after 5:30am or sometime before 10:40am. c. The complainant was either unable to or could not recall what happened between the first alleged rape and the second alleged rape and approximately 4 to 5 hours was unaccounted for by the complainant. d. The complainant was unable to recall facts or things that must have occurred because objective evidence such as drinking glasses shown in photos of the alleged crime scene supported the version of events said to have occurred by defence counsel. Ground 1(a) – the complaint evidence 39 Under this particular of the first ground of appeal, the appellant complains that the evidence of the complainant’s statement to HC (at the complainant’s home) that the appellant punched her was inadmissible; and admission of the evidence resulted in a miscarriage of justice. 40 The appellant also separately contends that the trial Judge’s directions as to the impermissible use of the evidence were inadequate because of the failure to explicitly state that the evidence could not be used by the jury when considering the complainant’s credibility on Count 3. 41 As outlined earlier, there was evidence of a series of conversations between the complainant and HC as to the alleged offending. The entire series of conversations related to their interactions, but only the final conversation was adduced as evidence of initial complaint. 42 The first conversation involved a telephone call made by the complainant to HC shortly after the complainant dropped the appellant home. At the time of that call, HC was out with her partner and children. The complainant said she told HC: ‘something bad’s happened and that [she] was hurt’. HC gave evidence to the same effect. -- 8 of 19 -- [2025] SASCA 118 The Court 7 43 Next, the complainant said that HC (and her family) came to her home and collected her. In evidence, the complainant said that she spoke with HC, but she did not recount the content of that conversation. HC said that the complainant was highly distressed. In response to a question about the demeanour of the complainant, HC said that the complainant told her that ‘he punched me’. 44 HC then took the complainant to HC’s home. When there, the complainant disclosed the alleged sexual offending to HC. Only this conversation was adduced as evidence of an ‘initial complaint’. The complainant gave evidence that she told HC that something bad had happened and that she was hurt. HC then asked her what had happened and if she had been hit and the complainant responded: 'Yes, but it was a lot worse'. She said she told HC that she had been raped. The complainant could not recall the exact words she used. 45 HC gave evidence that when they arrived at HC’s home and her partner took their children away, the complainant started crying and said that ‘he raped me’. 46 All the above evidence, as to the series of conversations between the complainant and HC, were led by the prosecution without objection. 47 At the conclusion of the case for the prosecution, the trial Judge raised the topic of the evidence of initial complaint. After a discussion with the parties, his Honour ruled that the conversation at the complainant's house when she said that ‘he punched me’ was not admissible as evidence of initial complaint as it was not referable to a sexual offence. 48 During his summing up, the trial Judge gave comprehensive directions in relation to the evidence of initial complaint. His Honour instructed the jury that the relevant evidence of initial complaint was the complainant's statement to HC, at HC’s house, to the effect of, ‘I have been raped’. His Honour set out the permissible uses of that evidence in relation to the sexual offences (Counts 2 and 3). His Honour said: [The complainant] gave evidence that, when she got back to [HC’s] house, she told her that she had been raped, or said words to that effect. [HC] said, in effect, the same thing; that after they got home, having collected [the complainant] from her house, [the complainant] complained to her about what had happened. She said she was crying and said ‘I have been raped’. You heard that, not long after that, [the complainant] was taken to the police station and the matter was reported to the police. I need to give you a legal direction as to the way in which you may use the complaint evidence and how you may not use it. In effect, you can only use the complaint evidence for a limited purpose, or purposes. First, the evidence allows you to understand how the allegations first came to light, so it explains that to you. Second, the evidence allows you to consider the degree to which [the complainant] has acted consistently with what she says occurred to her; that is, to what extent did -- 9 of 19 -- [2025] SASCA 118 The Court 8 [the complainant] complain about the offending at a time that you would expect her to and to what extent has [the complainant’s] account remained consistent from when she first reported these allegations. This is sometimes called ‘consistency of conduct’ and ‘consistency of account’. 49 Next, the jury were directed that they could have regard to the complainant's distress at the time of making her initial complaint when assessing whether her evidence demonstrated consistency of conduct. 50 As to the impermissible use of the evidence, the trial Judge instructed the jury that they could not use the evidence of initial complaint as evidence of the truth of its content. His Honour said: But, just to underline the way you cannot use it, you cannot use this evidence to demonstrate the truth of what is alleged. So to decide the truth of what occurred, you must rely on [the complainant’s] firsthand evidence in court. This is probably the most important thing about this direction: just because she complained that she had been raped, does not prove, and cannot be relied on as proof that she was. 51 Relevantly, the trial Judge then explicitly directed the jury that the complainant’s evidence that ‘he punched me’ was not relevant as evidence of consistency of conduct when assessing the complainant’s credibility, as it did not relate to a sexual offence. His Honour also explicitly directed the jury the evidence was not relevant to the offence of assault causing harm (Count 1). His Honour instructed the jury that the only limited use of the evidence was to ‘explain the chronology of things’. His Honour said: Following on from that, I direct you to ignore [HC’s] evidence that, when [HC] first arrived at [the complainant’s] house to collect her, that [the complainant] kept saying that ‘he punched me’. You will recall that evidence. Being punched is not an allegation about a sexual offence and, in those circumstances you may not use what she said to [HC] about being punched as evidence that may support her credibility in relation to count 1 or count 2. As I say, the general rule is that just because you tell someone something happened does not mean it did happen and cannot be used for that purpose, nor does it make someone’s account more credible because they told someone if it is not a sexual offence. So, for that reason, I direct you to ignore the evidence for that purpose. So you have no regard to it for the purposes of assessing her evidence in relation to the assault charge. The only limited use of that evidence, that is that [the complainant] told [HC] that she had been hit, is that it may explain why [HC] decided to take [the complainant] back to her house because of her presentation, she was upset and what she said. So you will recall that [HC] said that [the complainant] said a guy punched her in the face and she was crying and she was not making sense and that, because of that, she said she would take her back home. So that is the only limited use of that evidence, that is to explain the chronology of things and that is the extent of it. I repeat though, that it provides no evidence as to the commission of any offence and is not evidence that you can use to support [the complainant’s] credibility. -- 10 of 19 -- [2025] SASCA 118 The Court 9 52 The appellant’s complaints in relation to the evidence of initial complaint, and the legal directions mentioned, are two-fold. First, that the evidence was not admissible as part of the narrative or ‘to explain the chronology of things’ and its admission was productive of a miscarriage of justice; and secondly, that the directions as to the impermissible use of the evidence were inadequate because the trial Judge failed to instruct the jury that they could not use the evidence when assessing the complainant’s credibility on Count 3. 53 We do not agree. While it is well settled that evidence of an initial complaint under s 34M of the Evidence Act 1929 (SA) must be referable to a charged sexual offence,7 the impugned statement ‘he punched me’ was not led as evidence of an initial complaint.8 The trial Judge’s directions made plain that it was only the complainant’s latter statement ‘I have been raped’ which the jury could use to demonstrate consistency of conduct, and only with respect to the sexual offences. His Honour explicitly directed the jury that the evidence of initial complaint, and all of the evidence of the conversations between the complainant and HC, were not relevant when assessing the complainant’s credibility on the first count. 54 However, the impugned evidence was relevant and admissible for the limited purpose for which it was adduced, namely as part of the complainant’s narrative as to her behaviour following the alleged rape and to explain the chronology of events leading up to the initial complaint. Her statement ‘he punched me’ was capable of providing some explanation as to why HC decided to take the complainant back to her home. It also put the terms of the initial complaint in their complete context. At HC’s home, HC asked the complainant if she had been hit, and the complainant responded by saying, ‘yes, but it was a lot worse' and then disclosed that she had been raped. Without the earlier conversation, the way HC elicited the complaint might have seemed unusual or, indeed, unlikely. 55 Notwithstanding the impugned evidence was admitted for a limited purpose, we consider it would have been preferable had the prosecutor simply adduced HC’s observations of the complainant’s distress and injury at the complainant’s house without leading evidence of the content of her statement ‘he punched me’.9 However, the careful and comprehensive directions given by the trial Judge effectively neutralised the impermissible use (and prejudicial effect) of the evidence. 56 Contrary to the appellant's submission, we do not consider that the trial Judge failed to direct the jury that the complainant’s evidence ‘he punched me’ was not relevant on the issue of the complainant’s credibility on Count 3. His Honour 7 R v Usher (2014) 119 SASR 22 at [46] (Kourakis CJ). 8 For the reasons which follow, it is not necessary to consider whether this evidence might have been admissible as complaint evidence on the basis that it was inextricably linked with the allegation of sexual offending, analogously with R v Moores (2017) 128 SASR 340 at [79]-[80] (Blue J, Vanstone and Doyle JJ agreeing). 9 In a manner similar to the approach suggested in Anderson (A Pseudonym) v The King [2024] SASCA 36 at [99]-[100] (Livesey P, Doyle and Bleby JJA). -- 11 of 19 -- [2025] SASCA 118 The Court 10 directed the jury to ignore this evidence when assessing the complainant’s credibility, as it did not involve an allegation relating to a sexual offence. His Honour reiterated the general rule that a previous consistent statement which does not relate to a sexual offence cannot be used in support of a person’s credibility. Moreover, his Honour instructed the jury in clear terms that the statement ‘provides no evidence as to the commission of any offence and is not evidence that you can use to support [the complainant’s] credibility’. 57 While it is to be accepted that the trial Judge highlighted the evidence was inadmissible in relation to Counts 1 and 2, that was obviously by reason of the temporal connection between those acts, and the consequential heightened risk of impermissible reasoning in relation to Count 2. However, taking into account the whole of the legal directions on this topic, we are satisfied his Honour adequately instructed the jury as to the impermissible use of the evidence with respect to all counts. 58 There was no error in the trial Judge's approach either to the admissibility or directions in relation to the impugned evidence. Ground 1(b) – the evidence of the bruising 59 During the course of the trial, defence counsel objected to the prosecution leading evidence from Dr Pedler as to observations and photographs of bruising to various parts of the complainant’s body. By this stage, the prosecutor had already adduced limited evidence from the complainant as to an injury to her face and the mechanism by which the appellant inflicted the first alleged rape. The prosecutor had also tendered photographs taken by crime scene investigators of bruising to the complainant’s face. 60 After hearing legal argument from both parties, the trial Judge excluded the evidence of bruising to the complainant’s legs, but permitted the prosecution to lead evidence as to the following injuries observed (and photographed) during the medical examination: • Injury marked number 10 - a red bruise to the bridge of the complainant's nose;10 • Injury marked number 2 - two faint purple/blue bruises to the complainant's upper left forearm;11 • Injury marked number 3 - a brown/red bruise to the back the complainant's right forearm;12 10 Trial Exhibit P4, page 1 (images 21, 22 and 23). 11 Trial Exhibit P4, page 2 (images 5, 6 and 7). 12 Trial Exhibit P4, page 3 (images 8, 9 and 10). -- 12 of 19 -- [2025] SASCA 118 The Court 11 • Injury marked number 11 - a bruise to the complainant's right upper back.13 61 Defence counsel objected to the admission of injury 11, but otherwise conceded that there was an evidential foundation for injuries 2, 3 and 10. The trial Judge ruled that the injury 11 was admissible given its proximity to injury 3. 62 Contrary to the appellant’s written submissions, the evidence of injury 2 was not excluded by the trial Judge. His Honour simply misspoke when he included injury 2 in the list of exclusions but immediately corrected himself after enquiry by the prosecutor.14 The rest of the trial, including during the evidence of Dr Pedler and the addresses of counsel, was conducted by both parties on the basis that injury 2 was admitted by his Honour. 63 There was no dispute at the trial, nor on this appeal, that the evidence of the bruising to the complainant’s nose was relevant and admissible. The complainant gave evidence that she was punched to the nose during the first alleged rape, and this resulted in a red mark to the bridge of her nose, which developed into a bruise. She also gave evidence that she did not have any bruising to her face or body prior to attending the Gully Hotel on 20 August 2022. Her evidence of the nose injury was supported by the following evidence: • the observation of HC on the afternoon of 21 August 2022 that the complainant’s nose was red; • the observations of Brevet Sergeant Matthews’ on 21 August 2022 at 3:15pm of a red area across the bridge of the complainant’s nose, and photographs of the injury. • the observations of Ms Tracey Markham’s (a nurse) during the forensic examination conducted on 21 August 2022 between 9:25pm and 11:25pm of a visible red mark or bruise on the bridge of the nose, and photographs of the injury; and • the observations of Brevet Sergeant Van Der Wielen’s on 24 August 2022 of swelling and faint yellow-brown bruising to the bridge of the complainant's nose and her left eye, and photographs of the injury. 64 The appellant now contends that the evidence of bruising to the complainant’s upper left arm (injury 2), upper right arm (injury 3) and her back 13 Trial Exhibit P4, page 3 (images 24, 25 and 26). 14 Alternatively, rather than the Judge misspeaking, it may be that the Judge said that he intended to exclude bruise ‘1 times 2’ but this was mis-transcribed. This explanation is supported by the fact that bruise 1 appeared in the relevant exhibit as two bruises and was described as bruise ‘1 x 2’. -- 13 of 19 -- [2025] SASCA 118 The Court 12 (injury 11) were inadmissible as they were not referable to the alleged offending, and the admission of the evidence was productive of a miscarriage of justice. 65 The appellant’s contention ignores the complainant’s evidence as to the mechanism by which both sexual offences took place. As to the bruising to the complainant's upper arms (injuries 2 and 3), while the complainant was not asked any questions about whether she had any injuries to her arms, she gave evidence that during the first act of sexual intercourse, the appellant held her down by her upper arms. Dr Pedler gave evidence that injuries 2 and 3 could have been caused by someone holding a person's arms but accepted that she could not rule out other possible causes for the bruising she observed on the complainant’s arms. No evidence was elicited from Dr Pedler as to the possible causes of bruising to the complainant’s back (injury 11). 66 The complainant’s evidence as to the mechanism by which the first rape was inflicted, combined with the medical evidence from Dr Pedler, provided an evidentiary basis for the admission of the evidence (and photographs) of the bruising to the complainant’s arms. The evidence of bruising was consistent with, and provided some support for, the complainant’s account as to Count 2. 67 As to the bruising to the right outer side of the back (injury 11), this was near the bruises on the upper arms (injuries 2 and 3) and, in the context of the complainant's evidence that the appellant pinned her to the bed by holding her upper arms (whilst she was on her back), the evidence was properly admitted. While there were other possible causes for the bruising to the complainant’s arms and back, the evidence was nonetheless capable of supporting her account as to how the appellant forcefully had sexual intercourse with her. 68 The admission of this evidence was not productive of a miscarriage of justice. Ground 1(c) – reversal of the onus of proof 69 Under this appeal ground, the appellant complains that the reference by the prosecutor in his closing address to the absence of any other evidence of possible causes of bruising to the complainant’s nose and body had the effect of reversing the onus of proof. 70 In his closing address to the jury, the prosecutor made two related submissions about the evidence of the bruises. He said: We heard the evidence of Dr Pedler. That injury is consistent with being punched in the face. That is the uncontradicted expert evidence in this case. Now, Dr Pedler can’t exclude other possible mechanisms. She said bruising requires or is most commonly caused from blunt force trauma. But in this trial we don’t have any other evidence of possible alternative explanations. None. The only evidence we have that could have caused the bruising is the punch, what [the complainant] told us, and what I suggest is supported by the uncontradicted evidence of [HC] and Dr Pedler and the agreed evidence of Brevet Sergeant Matthews. -- 14 of 19 -- [2025] SASCA 118 The Court 13 … Again, [the complainant’s] account is the only evidence in this trial that explains the bruising. There’s no other evidence anywhere. That sort of independent, objective evidence in relation to the assault is crucial because it doesn’t just come from [the complainant], and that act of assault immediately prior to the intercourse, if you find that it happened, is a clear indication that this was not consensual sex. (emphasis added) 71 As to the prosecutor’s submissions, the trial Judge said: At one point, [the prosecutor] said that there was no other evidence anywhere as to the cause of those injuries. Now, that was probably not intentional, but it was an inappropriate submission in the sense that there were other alternative explanations for the injuries and Dr Pedler admitted as much. Further, to the extent that the submission suggested that there was some obligation on the defence to provide an explanation or an alternative explanation for those injuries, I direct that you cannot reason in that way. 72 While the appellant accepts that the trial Judge attempted to correct the prosecutor’s error in his closing address, he submits that the jury were not directed, in specific terms, that the appellant bore no onus to prove any such possible alternative explanation, or to present contradicting evidence to rule out other causes for the bruises on the complainant’s face or body. Accordingly, the appellant submits there was a miscarriage of justice. 73 We consider that the trial Judge’s directions ameliorated any risk of impermissible reasoning by the jury. His Honour made clear that the appellant bore no obligation to provide an alternative explanation for the complainant’s bruising. Bearing in mind that his Honour also gave thorough and orthodox directions as to the burden of proof, there was no risk that the jury would have reasoned impermissibly by reversing the onus of proof when considering the evidence of the bruises. 74 As to the appellant's related complaint that the trial Judge's directions with respect to the absence of challenge by defence counsel to Dr Pedler's evidence reinforced an erroneous approach generated by the prosecutor's address, this contention mischaracterises this portion of his Honour’s summing up. Before summarising Dr Pedler’s evidence, his Honour gave the jury orthodox directions as to the correct approach to assessing expert evidence. At the conclusion of those directions, his Honour said: Ultimately, after giving that evidence careful consideration, you do not have to accept the evidence of any witness, including an expert witness. So just because they are an expert does not mean you have to accept everything that they have said, if you do not think it is reasonable. -- 15 of 19 -- [2025] SASCA 118 The Court 14 Having said that, in this case, you might think that the expert opinion of Dr Pedler was not challenged in any way and that what is in dispute is the inferences that can be drawn from her evidence and the balance of the evidence in this case. (emphasis added) 75 At this point, the trial Judge was simply emphasising that Dr Pedler’s evidence was not in dispute but, rather, the parties contested what inferences were open to be drawn from the evidence. 76 On the defence case, the evidence of the injuries was inconclusive, and of limited relevance, given that Dr Pedler could not exclude other causes for the injuries. When the trial Judge proceeded to summarise Dr Pedler’s evidence, he highlighted this aspect of her evidence. His Honour also emphasised this evidence when summarising defence counsel’s closing address. 77 When considered as a whole, we are satisfied that the trial Judge’s directions as to the prosecutor’s address, and the burden of proof, removed any risk of a miscarriage of justice caused by the prosecutor’s submissions as to the bruising. 78 We grant permission but dismiss this ground of appeal. Ground 2 – unreasonable verdicts 79 The appellant complains that the convictions are unreasonable and a jury acting reasonably ought to have experienced a reasonable doubt. In making this submission, the appellant relies on the following aspects of the complainant’s evidence: • The complainant was unable to account for a period of time between her first recollection at 5:30am (prior to Count 1) and 10:59am when she sent the text message to her sister-in-law after the second incident of rape (Count 3). • The complainant was unable to recall any of the evening from about 12:30am at the Gully Hotel up to 5:30am (including kissing the appellant at the hotel, taking an Uber with the appellant to her home, and possibly engaging in sexual intercourse with him prior to 5:30am). • The complainant’s evidence of receiving a closed fist punch to the face connecting with her nose was inconsistent with the photographic evidence of the apparent bruising to the complainant’s face. • The complainant’s behaviour after the alleged offending was inconsistent with her account. -- 16 of 19 -- [2025] SASCA 118 The Court 15 80 The test to be applied in determining whether a jury verdict is unreasonable or cannot be supported by the evidence was outlined by the High Court in M v The Queen:15 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 wither 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. 81 When undertaking the task of determining whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, the appeal court must have regard to the jury’s advantage of directly observing and hearing the complainant’s evidence. 82 As the High Court explained in Pell v R:16 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citations omitted) 83 Upon an assessment of the whole of the record, we are satisfied that it was open to the jury to find each of the three offences proved beyond reasonable doubt. After having regard to the whole of the evidence and bearing in mind the appellant’s criticisms of the complainant’s evidence, we have reached that conclusion for the following reasons. 84 There was material support for the complainant’s account that the appellant punched her to the nose. The assault underpinned the prosecution case as to the complainant’s lack of consent and the appellant’s state of mind. As outlined above, this evidence included: HC’s observation on the afternoon of 21 August 2022 that the complainant’s nose was red; the observations by Brevet Sergeant Matthews on the afternoon of 21 August 2022 of an injury to the nose; the observations by Ms Markham during the forensic examination conducted on the evening of 21 August 2022 of an injury to the nose; and the observations by Brevet Sergeant Van Der Wielen on the morning of 24 August 2022 of swelling and bruising to the bridge of the nose. There were also photographs taken by police on 15 (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ). 16 (2020) 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). -- 17 of 19 -- [2025] SASCA 118 The Court 16 21 August 2022 and 24 August 2022 depicting redness and bruising to the bridge of the complainant's nose. 85 To the extent that the appellant now submits that the alleged nose injury is inconsistent with the photographic evidence of the apparent bruising to the complainant’s face, the photographs do not stand alone but must be considered in the context of the various observations made of the injury. The photographs do not materially undermine the combined force of that evidence. 86 The appellant made a related submission to the effect that there was an irreconcilable inconsistency in the complainant’s evidence as to the timing of the sexual intercourse the subject of Count 2. This submission should be rejected as it is predicated upon an artificial view of the complainant’s evidence. It is true that the complainant described waking at 5:30am and then next recalled the appellant having sexual intercourse with her; that she thought the sexual intercourse lasted about an hour; and that the sexual intercourse was interrupted by the missed call from HC at 10:41am. However, this evidence can be reconciled on the basis that the complainant at all times acknowledged that there were gaps in her memory, which is hardly surprising given her intoxication the previous evening and the traumatic nature of the events that morning. It was entirely plausible, and certainly open to the jury to accept that the complainant had lost track of time at some point in the narrative. Acceptance of this did not require doubt about the credibility or reliability of her allegation of violent and sexual offending against her. 87 It is also true that the complainant was unable to recall any of the evening from about 12:30am when she was at the Gully Hotel, until about 5:30am when she woke and checked the time on her phone. However, again, the complainant readily conceded that there were gaps in her memory, and proffered that she may have had consensual sexual intercourse with the appellant after returning home from the Gully Hotel and before checking her phone at 5:30am. Nonetheless, her evidence was clear that when the appellant was on top of her having sexual intercourse with her, she told him to stop whereupon he verbally abused her and punched her to the nose. On her account, it was open to the jury to find that from that point on she was not consenting to sexual intercourse; and the appellant knew or was recklessly indifferent to her lack of consent. As outlined above, there was independent support for her evidence that the appellant punched her to the face. 88 In relation to the submission that the complainant’s behaviour after the alleged offending was inconsistent with her allegations, the complainant gave various explanations for her conduct following the offending. She explained that she was trying to placate the appellant as she was fearful that he would hurt her again. When assessing how a victim of sexual assault is expected to behave following a sexual assault, courts must exercise caution to avoid imposing stereotypical expectations which do not always conform with the varying individual responses which may be made to alleged sexual offending. Bearing in mind the whole of the complainant’s evidence as to her response to the alleged offending, and in particular her explanation for driving the appellant home, we are -- 18 of 19 -- [2025] SASCA 118 The Court 17 satisfied that her account was not inherently implausible such that it must have given rise to a doubt in the mind of the jury. 89 Upon an independent review of the whole of the evidence having regard to the jury’s advantage of having seen and heard the complainant give evidence, and notwithstanding the appellant’s criticisms of the complainant’s credibility and reliability as a witness, we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of all three offences. This was not a case where the jury must, as distinct from might, have entertained a doubt as to the appellant’s guilt. 90 For those reasons, we grant permission but dismiss this ground of appeal. Orders We grant permission but dismiss the appeal. -- 19 of 19 --