JAYDEN FERGUSSON v THE KING [2024] SASCA 63

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BARKLAY) DCCRM-22-373 Appellant: JAYDEN FERGUSSON Counsel: MR W MICKAN - Solicitor: SHAW & HENDERSON Respondent: THE KING Counsel: MR D PETRACCARO SC WITH MR G DUDZINSKI - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/12/2023 File No/s: SCCRM-23-017785 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. FERGUSSON v THE KING [2024] SASCA 63 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David) 22 May 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO- INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES This is a conviction appeal. The appellant was charged with the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Following a trial by Judge alone, the appellant was found guilty of the offence. The offending allegedly occurred between 19 December 2019 and 23 February 2021. At that time, the appellant was between 21 and 23 years of age, and the complainant was between 11 and 13 years of age. The appellant is the older brother of the complainant. -- 1 of 22 -- Most of the particularised acts were alleged to have occurred at the complainant’s home in Morphett Vale. Whilst the appellant did not live at the home, he would regularly stay there on weekends and on his own account, would often sleep the night in the complainant’s bedroom. The prosecution adduced evidence of an initial complaint to the complainant 's best friend and an elaboration to her brother. The appellant participated in a record of interview with police in May 2021, wherein he denied the allegations. It was an agreed fact that the appellant has no prior convictions. The appellant gave evidence in his own defence at trial and called good character evidence from two witnesses. The appellant sought permission to appeal on three grounds relating to: first, the trial Judge’s use of the complainant’s distress when elaborating on her complaint to her brother; second, the trial Judge’s use of text messages sent by the complainant's mother to the appellant to rebut recent invention; and third, the trial Judge’s use of evidence that the appellant regularly slept in the complainant’s bed to prove that he was sexually attracted to her when it was only relied on by the prosecution as evidence of his opportunity to commit the alleged unlawful sexual acts. Held, by the Court, granting permission to appeal on Grounds 1 and 2, allowing the appeal, setting aside the conviction and ordering a new trial. 1. The evidence of the complainant’s distress was not sufficiently temporally or causally connected to the alleged sexual offending to be admissible to support the complainant’s credibility, generally. The trial Judge's misuse of the evidence involved an error of law. 2. The trial Judge’s use of the text messages to rebut an imputation of recent invention put by defence counsel to the complainant was an error of law. It involved an impermissible testimonial use of text messages. There was in fact no admissible evidence before the trial Judge capable of rebutting the allegation of recent invention. Furthermore, the trial Judge did not put either party on notice that he intended to use the evidence for this purpose. Thus, there was a breach of procedural fairness. 3. The evidence that the appellant regularly slept in the complainant’s bed was discreditable conduct and engaged s 34P. The evidence was admissible under s 34P(2)(a) to prove that the appellant had opportunity to commit the alleged unlawful sexual acts. However, it was not admissible under s 34P(2)(b) for a propensity purpose. Given that the appeal must be allowed on Grounds 1 and 2, it is not necessary to decide whether the trial Judge impermissibly used the evidence for a propensity purpose, or whether there was a breach of procedural fairness. 4. It is not appropriate in the circumstances of this case to apply the proviso. It cannot be said there was no substantial miscarriage of justice. Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34P(2)(a) and (b), 34R, referred to. Nominal Defendants v Clements [1960] HCA 39; (1960) 104 CLR 476; R v Baltensberger [2004] SASC 392; (2004) 90 SASR 129; R v Flannery [1969] VR 586; R v Green [2001] SASC 25; R v Pahuja (No 2) [1989] SASC 1434; (1989) 50 SASR 551; R v Schlaefer (1984) 37 SASR 207; Sadler v The King [2023] SASCA 63, applied. Flora v The Queen (2013) 233 A Crim R 320; Nimely v The King [2023] VSCA 20; Paull v The Queen [2021] VSCA 339; R v Bristow [2020] SASCFC 91; R v Byczko (No 2) (1977) 17 SASR 460; R v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56; R v Dhir [2019] SASCFC 55; R v El Rifai [2012] SASCFC 98; R v Meyer [2007] VSCA 115; R v Mitrovic [1999] SASC 478; R v Munro [2005] VSCA 260; R v Rogers [2008] VSCA 125; Seccull v The King [2022] VSCA 219, considered. -- 2 of 22 -- FERGUSSON v THE KING [2024] SASCA 63 Court of Appeal – Criminal: Livesey P, Doyle and David JJA 1 THE COURT: Following a trial without a jury, the appellant was found guilty of the offence of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The offending allegedly occurred between 19 December 2019 and 23 February 2021. The appellant was between 21 and 23 years of age, and the complainant was between 11 and 13 years of age at the time of the offending. The appellant is the older brother of the complainant. 2 The prosecution case was that the appellant committed various sexual acts with or upon the complainant including touching her on the bottom, breasts and vagina, inserting his finger into her vagina, and on one occasion, placing her hand on his penis. Most of the particularised acts were alleged to have occurred at the complainant’s home in Morphett Vale. Whilst the appellant did not live at the home, he would regularly stay there on weekends and on his own account, would often sleep in the complainant’s bedroom. 3 During the trial, the complainant disclosed, apparently for the first time, that the appellant had engaged in unlawful sexual acts with her on New Year’s Eve, 2020 at the home of her best friend. 4 The prosecution adduced evidence of an initial complaint made to her best friend, and an elaboration made to her brother towards the end of February 2021. The complainant’s brother gave evidence of the complainant’s distressed appearance during the relevant conversation with him. 5 The appellant was interviewed by police in May 2021 wherein he denied the allegations. 6 The appellant gave evidence in his own defence that he did not commit any sexual acts upon or with the complainant. Defence counsel challenged the reliability and credibility of her evidence. It was an agreed fact that he has no prior convictions. The appellant also called good character evidence from two witnesses. 7 The appellant sought permission to appeal on three grounds relating to: first, the trial Judge’s use of the complainant’s distress when elaborating on her complaint to her brother; second, the trial Judge’s use of text messages sent by the complainant’s mother to the appellant to rebut recent invention by the complainant of the alleged unlawful sexual acts on New Year’s Eve at her best friend’s home; and third, the trial Judge’s use of evidence that the appellant regularly slept in the complainant’s bed to prove that he was sexually attracted to her when it was only relied on by the prosecution as evidence of his opportunity to commit the alleged unlawful sexual acts. -- 3 of 22 -- [2024] SASCA 63 The Court 2 8 At the conclusion of the appeal hearing, the Court was satisfied that appeal grounds l and 2 must succeed. Accordingly, we granted permission to appeal against conviction and allowed the appeal; set aside the convictions; and ordered that there be a new trial. These are our reasons for those orders. Ground 1 – distress evidence 9 The appellant complained that the trial Judge erred in using the evidence to support the complainant’s credibility. 10 In order to properly outline the issues raised by this ground of appeal, it is necessary to detail the relevant parts of the complainant’s evidence as to her conversation with her brother and his observations of her distressed appearance. 11 As outlined earlier, the appellant’s alleged offending occurred between late December 2019 and February 2021. The complainant was imprecise in her evidence as to when the last sexual act occurred, but she believed it occurred in 2021 at her grandmother’s house. 12 The complainant gave evidence that she first disclosed the offending to her best friend in late 2020 (perhaps November or December). She said she also spoke to her brother about the alleged offending in February 2021. As to the circumstances in which she disclosed the offending to her brother, the complainant said that she had been fighting with her mother. As a result, she left home and consumed a ‘bunch of pills trying to overdose’. She then walked to her best friend’s house, who became concerned about her and called her mother. The complainant’s mother and her brother collected her in a car from her best friend’s house and they travelled to their home. 13 After they arrived home, the complainant’s mother went inside. The complainant and her brother remained in the car. The complainant said that she then disclosed to her brother that the appellant ‘had been touching her for a while’. She said: A I just stayed in the car, like in silence, and then mum ended up walking out, [the complainant’s brother] came into the back seat and started talking to me, like trying to ask why, and stuff, and I ended up telling him that [the appellant] had been touching me for like months now. And I was just struggling with school, and I didn't want to live, and I just told him all of that, and he gave me a hug, and I think we just went back inside. Q You've said something about [the appellant], I know this is difficult, but can you remember the exact words that you used, what did you tell [the complainant’s brother] about [the appellant]. A I don't remember. I wouldn't have told him in detail, so I would have just said '[the appellant] was touching me'. … -- 4 of 22 -- [2024] SASCA 63 The Court 3 Q Apart from what you've already told his Honour, do you remember anything else about what you told [the complainant’s brother] about [the appellant]. A No. 14 The complainant’s brother also gave evidence about this conversation. He said that the complainant did not want to tell him what was wrong and he ‘had to keep like persisting to try and like figure out what was wrong because she had been acting like this for four months, five months and [I] had to end up going like climbing into the back seat and like giving her a hug and like letting her know that she can tell [me] like how bad it is, like, even if it was like [my] uncle or kind of thing she can tell [me] and then she just said that it was [the appellant]’. 15 The complainant’s brother said that he spoke with the complainant for about 40 minutes. He said that she did not tell him straight away what had happened; it took time and direct questions for him to elicit what had occurred. He gave the following evidence: Q I was asking you about exactly what [the complainant] told you that [the appellant] had done to her. If you could tell us in your best memory possible and using the exact words if you can. A Yeah, that was what I was just talking about was like in the bedroom only she said because that was I was asking like 'Is this just happening in the bedroom?', and she said 'No, it's not just in the bedroom either' like she said how it even happened in the lounge room as well even when like because I asked is everyone asleep when it happens or are we even home when it happens and she said 'Mum was literally walking around one time like in the lounge room' and yes, like that was the only time as from what I know that it happened during the day, but the other times I think happened all during the night like when he thought she was asleep. Q Did she tell you what he did to her in the lounge room. A Yeah, she said that because she had like slept in the lounge room that night and then like [the appellant] ended up going in the lounge room later and she said that his arm was like on her back at first and then eventually like started creeping down to her arse to the point where he was like basically fingering her and at that point mum was literally like walking from her room like into the kitchen and stuff which goes straight through the lounge room where they would have been. And yeah, she said something about thinking how mum knew, but I don't know but yeah. Q Did she tell you any more details about what happened in the lounge room. A No, not really. Q You mentioned about the bedroom, is that correct, what did she tell you about the bedroom. A That it would, like it would always happen when like she was like nearly asleep or what she thinks as he maybe he thought she was asleep and it would always just start slowly and become more from there, like because she thought like the cuddling was not weird at first so she was like okay with that and then it would like extend further -- 5 of 22 -- [2024] SASCA 63 The Court 4 to things she wasn't okay with and that was just like things like touching her tits or whatever like obvious things. 16 The complainant’s brother also gave evidence that he asked her ‘what the most like that has happened’ to which she replied: ‘just his dick being on her arse stuff and grabbing her tits and her just not being comfortable with it all’. He said that the complainant told him it ‘happened all the time’ when she was in her bedroom. She told him that it started happening about a week after his birthday (19 June) and that it happened whenever the appellant was over, or most of the time he was over. 17 Relevantly, the complainant’s brother described her presentation when she elaborated on the sexual offending. He said: She was like shrivelling up from how much she was crying, like it was - you couldn't even hear what she was saying from - it's like that point of crying like when you can't even breathe kind of thing, like you're struggling to breathe but you're trying to talk at the same time. It was like really hard to hear what she was saying for the first 15, 20 minutes until she's calmed down a little bit. 18 The complainant’s brother said that after the conversation finished, he went inside. He thought the complainant may have gone into her bedroom. He went into his room and ‘broke down crying for the rest of the next few days’. 19 When dealing with the evidence of complaint, the trial Judge set out the evidence of the complainant’s elaboration in similar terms. 20 The trial Judge then made the following finding: I found [the complainant’s brother’s] evidence about the complaint to be convincing. The fact that he had to sit with [the complainant] for some time before she said anything, that he prodded her for detail, his evidence that he initially thought it may have been an uncle or her father, all had the ring of truth about it. [His] description of the distress he observed on [the complainant] as she complained to him and his response (he cried for the next few days) was compelling. 21 Later in his reasons for verdict, the trial Judge, with respect, correctly identified that the evidence of complaint can provide evidence of consistency of conduct. His Honour found that her complaint to her best friend and brother ‘enhances [the complainant’s] account as it demonstrates conduct that is consistent with [the appellant] touching [the complainant] on her breasts, buttocks and vagina.’ 22 The trial Judge then addressed the evidence of the complainant’s distress and said: I turn to [the complainant’s brother’s] evidence of the complaint. I found [his] evidence compelling. He gave evidence that [the complainant] was ‘shrivelling up from how much she was crying’ as she was complaining to him; she was crying so hard that she was ‘struggling to breathe’. [His] evidence that he cried in his bedroom for the next few days -- 6 of 22 -- [2024] SASCA 63 The Court 5 after the complaint was made, leaves me in no doubt as to the credibility of his evidence on that topic. I accept that [the complainant] was genuinely distressed as she complained to [her brother] and the measure of that distress was powerfully described by [him]. [The complainant’s] distress is circumstantial evidence that supports [her] credibility. Here, I direct myself that distress evidence is only relevant to whether the complainant has acted in a consistent manner. It is not evidence that independently supports any unlawful sexual act. I have considered whether the distress was feigned or whether it arose from such other cause. To that end, I have considered whether [the complainant’s] distress was attributed to her being in trouble with her mother due to her overdose attempt, and/or her running away from home, and/or her mother admonishing her. In my view, in light of her detailed description of events to [the complainant’s brother] (as powerfully described by [him]), together with how the complaint was made, I do not consider her distress is explicable on any other basis, other than the subject matter. I accept that [the complainant] did complain to [her brother] in the circumstances and in the terms he described. I am satisfied that the complaint was referrable to the unlawful sexual acts in [the complainant’s] bedroom and in the loungeroom at the Kenneth Road property. The complaint to [her brother] explains how the offending came to light and established consistency of conduct and in that way buttresses her credibility. It is not evidence of the truth of what occurred. 23 It is evident that the trial Judge accepted that the complainant disclosed the offending to her brother in the terms described by him (about which there was no real dispute at trial). His Honour was satisfied that the conversation was referable to the particularised unlawful sexual acts the subject of the charge and the evidence was relevant to explain how the offending came to light. His Honour was also satisfied that the evidence revealed a consistency of conduct which bolstered the complainant’s credibility. 24 As to the evidence of distress, the trial Judge found that the complainant was genuinely distressed when she complained to her brother and that his description of her distress was ‘powerful’. His Honour found that the complainant’s distress was relevant as a piece of circumstantial evidence that supported her credibility. His Honour determined that the evidence was only relevant to the question of whether the complainant acted in a consistent manner, and it was not evidence that was capable of independently supporting any unlawful sexual act. His Honour considered whether there could be some other explanation for her distress and found that it was only explicable on the basis of the alleged offending, and thus relevant in support of her credibility. 25 The appellant contended that the trial Judge erred by using the evidence of the complainant’s distress as circumstantial evidence which supported her credibility as to the alleged offending. The appellant submitted that his observations of the complainant’s distress were not made sufficiently contemporaneously to the alleged offending to be used in support of her credibility. For the respondent, it was contended that the complainant’s distress was part and parcel of the complaint evidence, and that his Honour was entitled to use the -- 7 of 22 -- [2024] SASCA 63 The Court 6 evidence of distress as relevant to the complainant’s credibility given it was so interconnected with the complaint evidence. 26 In a trial of a sexual offence, evidence of a person’s observations of a complainant’s distressed appearance following an alleged offence can be admissible for two purposes. First, it may be admissible to show consistency of conduct on the part of the complainant. This is because there is a general expectation that a victim of a sexual offence will exhibit signs of distress following the commission of the offence. Therefore, observations of a complainant’s distressed appearance may be considered consistent with an alleged victim’s account that a sexual offence occurred. In this way, evidence of distress is relevant to support a complainant’s credibility.1 Second, evidence of distress may, in some cases, be used as independently supportive of guilt.2 27 The admissibility of evidence of distress does not extend to include a narrative account given by a complainant from which distress may be inferred.3 28 At a time when a trial Judge was required to warn a jury that it was unsafe to convict on the uncorroborated testimony of an alleged victim of a sexual offence, evidence of distress was considered capable of amounting to corroboration (that is, independent evidence that confirmed the testimony of a complainant in a material particular). For distress to be corroborative of a complainant’s account, it could not be reasonably explicable on any basis other than the commission of the offence the subject of the charge. The fact there was another possible explanation for the distress did not deprive the evidence of its admissibility.4 However, once admitted, evidence of a complainant’s distressed appearance could only be used as corroboration if it was only reasonably explicable on the basis of the alleged sexual assault having occurred. 29 As King CJ explained in R v Schlaefer:5 The essence of the notion of corroboration is confirmation from an independent source of the story of the person to be corroborated. There is an incongruity with this essential notion in regarding actions or emotional manifestations emanating from the person to be corroborated as capable of corroborating him. Such actions and manifestations may be contrived or simulated. The considerations which have led to the rule requiring a warning as to the need for corroboration of a complainant's story apply equally to the complainant's actions and emotional manifestations. If a sexual allegation may be fabricated out of hidden motives, so may actions and emotional manifestations which are consistent with it. If a sexual allegation is the result of a disordered imagination, the accompanying actions and appearances are likely to be consistent with the event having occurred as imagined. Evidence of appearances of distress and the complainant's actions may have importance as 1 R v Baltsenberger (2004) 90 SASR 129; R v Green [2001] SASC 25 at [145]. 2 R v Dhir [2019] SASCFC 55 at [61] per Kourakis CJ. 3 R v Bristow [2020] SASCFC 91 at [82] per Kourakis CJ; Seccull v The King [2022] VSCA 219 at [40] per Priest AP citing R v Meyer [2007] VSCA 115 at [9] per Nettle JA (Vincent and Redlich JJA agreeing). 4 R v Dhir [2019] SASCFC 55 at [68] per Kourakis CJ, citing R v Mitrovic [1999] SASC 478 at [27] per Duggan J. 5 (1984) 37 SASR 207 at 215-217. -- 8 of 22 -- [2024] SASCA 63 The Court 7 being consistent or inconsistent with the allegations, just as before the intervention of the legislature the words of complaint were admissible on that basis. But a complaint was never capable of amounting to corroboration, however spontaneous it might appear, precisely because it emanated from the complainant. For the same reason I think that the courts must exercise particular caution as to the circumstances in which evidence of apparent distress and accompanying actions may be treated as corroborative. I suppose that most false complaints of sexual assault, whether fabricated or imagined, would be accompanied by some manifestations of distress. To allow such manifestations to be treated as corroborative, other than in exceptional and compelling circumstances, must have the effect of eroding seriously the rule as to corroboration in sexual cases. … The role of the trial judge is to determine whether the evidence is capable in law of amounting to corroboration. He must rule whether it is reasonably open to the jury to find that the independently observed signs of distress are consistent only with having been caused by the alleged sexual assault and are not consistent also with having been caused by other events which may reasonably have occurred or by an imagined sexual assault or by simulation. If it is reasonably open to the jury to draw that inference, the evidence should be left as capable of amounting to corroboration. If not, to so leave it to the jury would be appealable error. In R v Flannery,6 the Victorian Court of Appeal held: In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distress condition. 30 Following the enactment of s 34L(5) of the Evidence Act 1929 (SA) (‘the Evidence Act’) which abolished the common law requirement that the jury must be warned that it is unsafe to convict on a complainant’s uncorroborated evidence, observations of a complainant’s distress has been characterised as a species of circumstantial evidence that may independently support the commission of an alleged sexual offence.7 Evidence of the distressed condition of a complainant may be admissible as evidence supportive of the commission of the offence if it is reasonably open to infer that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.8 Such evidence has, however, always been received with some caution.9 31 Evidence of observations made of a complainant’s distress shortly after an alleged offence has also been equated to post-offence conduct (albeit, on the part 6 [1969] VR 586 at 591 per the Court (Winneke CJ, Pape and Starke JJ). 7 Flora v The Queen (2013) 233 A Crim R 320. 8 Paull v The Queen [2021] VSCA 339 at [42] per Priest, Kaye and Niall JJA; R v Flora (2013) 233 A Crim R 320 at [69]; R v Munro [2005] VSCA 260 at [49] per Nettle JA; Seccull v The King [2022] VSCA 219 at [30] per Priest AP; Nimely v The King [2023] VSCA 20 at [26] per Priest, Taylor and Kaye JJA. 9 R v Byczko (No 2) (1977) 17 SASR 460 at 462; Seccull v The King [2022] VSCA 219 per Priest AP at [30] citing Paull v The Queen [2021] VSCA 339 at [40]. -- 9 of 22 -- [2024] SASCA 63 The Court 8 of the victim) which is to be governed by the same rules that apply to post-offence conduct of the accused.10 Accordingly, to be admissible as circumstantial evidence, there must be a causal connection between the distressed condition of the complainant and the alleged sexual offence;11 and the evidence of distress can only be used for that purpose if the trier of fact is satisfied that all other competing explanations for the distress have been excluded. 12 In addition, the force of that piece of evidence needs to be considered against the totality of the evidence as a whole. Thus, the trier of fact must not consider the circumstantial evidence of distress in isolation, but against the evidence as a whole in determining whether it is explicable only by reason of the alleged offence having occurred.13 32 Whilst a person’s observations of the distressed condition of a complainant in a sexual case is capable of being used as independent evidence supportive of guilt, the circumstances in which it could be used for that purpose will be relatively rare and confined to those cases where the evidence of distress is unequivocal, causally linked to the alleged offending, incapable of other explanation and observed immediately after the alleged offence. A warning about the limited weight of such evidence will usually be required. 33 In the present case, the trial Judge used the evidence of the complainant’s distress as relevant only to her credibility. His Honour explicitly stated that it was ‘not evidence that independently supports any unlawful sexual act’. 34 In R v Green14 (‘Green’) Olsson J referred to R v Pahuja (No 2)15 and held that evidence of distress may be admissible as evidence of consistency of behaviour on the basis that a complainant’s distress observed immediately after an alleged offence can be seen to be consistent with the allegation made by the complainant of a sexual offence. 35 In R v Baltensberger16 (‘Baltsenberger’) the Court of Criminal Appeal considered the issue of distress in the context of a challenge to the directions given by the trial judge. In that matter, the appellant was found guilty of five counts of rape. The complainant had attended various nightclubs, and after leaving the last night club and whilst intoxicated, was picked up from a city street by the appellant driving a vehicle. They had never met before. It was alleged that the incidents of rape occurred from about 7.30am that morning and over the course of the following hours. The appellant dropped her off in the city later that day at about 1pm. Evidence was adduced from family members and the police as to their observations of the complainant’s distressed appearance shortly after she parted from the 10 Flora v The Queen (2013) 233 A Crim R 320 at [72] per the Court (Redlich, Weinberg and Coghlan JJA). 11 R v Dhir [2019] SASCFC 55 at [71] per Kourakis CJ; R v Rogers [2008] VSCA 125 at [18]-[20] per Nettle J; see also Flora v The Queen (2013) 233 A Crim R 320. 12 R v Rogers [2008] VSCA 125 at [18]-[20] per Nettle J. 13 R v Flora (2013) 233 A Crim R 320 at [82] per the Court (Redlich, Weinberg and Coghlan JJA). 14 R v Green [2001] SASC 25 at [145]. 15 See generally R v Pahuja (No 2) [1989] SASC 1434; (1989) 50 SASR 551. 16 [2004] SASC 392; (2004) 90 SASR 129. -- 10 of 22 -- [2024] SASCA 63 The Court 9 appellant. The trial Judge referred to the evidence of distress as relevant to the complainant’s credibility as ‘you would expect that a person who has been through the ordeal [the complainant] claims she had been through would be upset.’ 36 On appeal, it was contended that the trial Judge erred by failing to direct the jury to consider the possibility that the complainant’s distress might have been attributable to something other than the commission of the offences. 37 In considering this ground of appeal, Gray J said:17 Similarly, evidence of the complainant’s distressed state immediately after an alleged offence is admissible for the limited purpose of evidencing consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It may be used as evidence relevant to a complainant’s credibility; however, it cannot be used as evidence of guilt. As observed in Pahuja (No 2), evidence of complaint and distress is not probative but may assist a jury in determining the credibility of the complainant. In the case of R v Knight, referred to by Olsson J in R v Green, the court warned against over-emphasising the probative value of evidence of distress, reiterating that evidence of distress will normally only be admissible as evidence of consistency of behaviour. 38 The appeal was allowed inter alia on the basis that the trial Judge did not correctly address the issue of intoxication in the context of his directions on distress. It is clear from the authorities of Green and Baltsenberger that for the evidence of a complainant’s distressed condition to be admissible for the purpose of showing consistency of conduct, the observations of the complainant’s distressed appearance must occur shortly after the alleged sexual offence. Logically that must be so as the force of such evidence lies in the general expectation that sexual offending will ordinarily result in a complainant suffering from, and exhibiting, signs of distress. Thus, for the evidence to have any probative force there must be a temporal and causal connection between the alleged sexual offence and the evidence of distress. 39 The question of whether there is such a causal connection will depend on several factors including, but not limited to, the age of the complainant, the relationship between the offender and the complainant, whether the complainant would be expected to exhibit signs of distress in the circumstances of the alleged offending, the elapse of time between the alleged offending and the observations made of the complainant’s distress, and the nature or extent of that distress. The admissibility of the evidence, and the ultimate use which can be made of it by a trier of fact, will obviously be fact sensitive and vary from case to case. 40 It is also important to acknowledge that the law relating to distress has not developed in the same way as the law concerning evidence of complaint, bearing in mind that the common law concerning recent complaint has been abrogated by s 34M, which abolished the need for recency or spontaneity in the complaint. 17 R v Baltensperger [2004] SASC 392; (2004) 90 SASR 129 at [55]. -- 11 of 22 -- [2024] SASCA 63 The Court 10 41 In the present case, the complainant’s distress occurred some considerable time after the alleged sexual offending. The complainant’s evidence was imprecise as to when the last sexual act occurred except that it took place at her grandmother’s house after New Year’s Eve, 2020. The complainant’s brother’s observations of her distress were not made until late February 2021, which could have been up to two months later. Given the time that had elapsed after the alleged offending, it was not sufficient that the complainant’s distress arose when she recounted the alleged sexual abuse; there needed to be a temporal connection between her distress and the occurrence of the charged offence itself for it to be capable of evincing consistency of conduct. 42 The lack of a sufficiently close temporal connection between the complainant’s distress and the alleged sexual offending meant that it was not permissible to use the evidence of her distress of itself (and separate from the complaint) as evidence of consistency of conduct relevant to bolster her credibility. 43 That is not to say that the evidence of the complainant’s demeanour, or the way in which she elaborated on her complaint, including her distressed appearance, was not relevant and admissible for other purposes. The trial judge was entitled to take into account the evidence of her demeanour when assessing the credibility and reliability of the complaint evidence.18 The observations by the complainant’s brother as to her demeanour when she elaborated on her complaint were an integral part of his narrative as to the relevant conversation. It explained the length of time over which the conversation took place, and the circumstances in which he effectively elicited the details from her. The complainant’s distressed demeanour was also capable of providing an explanation for the generality of her account of the allegations. 44 It should be noted that in this case, the terms of the complainant’s disclosure to her brother was largely consistent with her evidence in court about the alleged unlawful sexual acts. In other cases, evidence of a complainant’s distressed demeanour while disclosing the allegations for the first time may provide an explanation for any inconsistencies between the initial complaint, and his or her evidence in court. It may also explain why the initial complaint may not contain as complete an account of the alleged offending as the complainant’s evidence in court. 45 In this case, the evidence of the complainant’s demeanour was relevant to the trial Judge’s assessment of the complaint evidence and whether it could be used as evidence of consistency of conduct. However, this is a distinct use from the way in which his Honour deployed the evidence of distress. His Honour used the evidence of the complainant’s distress, at the time of elaborating on her complaint to her brother, as evidence directly supportive of her credibility more generally, including, it would seem, as to the alleged offending. Given that the complainant’s 18 R v El Rifai [2012] SASCFC 98 at [91] per (David J); See also Seccull v The King [2022] VSCA 219 at [87]-[89] per Niall JA and Kidd AJA. -- 12 of 22 -- [2024] SASCA 63 The Court 11 distress was not observed at a time temporal to the alleged offending, this was not a permissible use of the evidence. His Honour erred in finding that the distress evidence had, of itself, a sufficient causal and temporal connection to the alleged offending, to be capable of directly bolstering the complainant’s credibility in this more general way. 46 The appellant also complained under this ground of appeal that the trial Judge erred in using the evidence of the complainant’s brother’s ‘distress’ to support his credibility, and by extension the credibility of the complainant. The evidence of the complainant’s brother’s reaction to the complainant’s disclosures was self-serving and irrelevant to any issue in dispute. However, defence counsel did not object to the admissibility of the evidence, and in any event, there was no challenge to his account of what the complainant purportedly disclosed to him. It is unfortunate that the trial Judge referred to this evidence as supporting the brother’s credibility. Significantly, however, his Honour did not explicitly or implicitly use the evidence of his reaction to the complainant’s disclosures to bolster the complainant’s credibility. In those circumstances, we are not satisfied that the trial Judge’s error was material to the verdict he ultimately reached. 47 We uphold this ground of appeal on the basis that the trial Judge’s use of the evidence of the complainant’s distress involved an error of law, and in any event gave rise to miscarriage of justice. Ground 2 – recent invention 48 The appellant complained that the trial Judge erred by using two text messages sent by the complainant’s mother to the appellant to infer that the complainant had earlier disclosed the unlawful sexual acts which allegedly occurred on New Year’s Eve to rebut an allegation that she fabricated this alleged sexual incident whilst giving evidence. The appellant contended that the use of the text messages constituted an inadmissible hearsay use, and, in any event, the evidence could not answer the allegation of recent invention. 49 By way of background, the prosecution tendered two audio-visual records of interview undertaken with the complainant mother. They were admitted pursuant to s 13BA of the Evidence Act. The first interview was recorded on 6 May 2021, when the complainant was 13 years of age, and the second interview was recorded on 29 January 2022, when she was 14 years of age. 50 The complainant gave sworn evidence at the trial. In cross-examination, defence counsel asked her about an occasion on New Year’s Eve when she ran away from home and went to her best friend’s home. The complainant gave evidence on this topic. She agreed that once she arrived at her best friend’s home, she contacted the appellant because she was upset, and he then joined her there. When it was suggested to the complainant that her best friend was in fact not there that afternoon, she said, ‘yeah, she wasn’t ‘cos I remember stuff happening.’ She clarified what she meant by ‘stuff happening’ as follows: -- 13 of 22 -- [2024] SASCA 63 The Court 12 Q. When you say you remember 'stuff happening' what do you mean. A. [The appellant] ended up getting into bed with me and like cuddling and massaging my arse and I think he tried to finger me and I may have got up or he left or something. Q. Is that on New Year's Eve. A. Yes. Q. At [her best friend’s] house. A. Yep. Q. … have you ever said that to anyone before today in the witness box. A. I don't think so. Q. And is that a memory that's just come back to you. A. I've had it for a while. Q. So you've never told anyone. A. Yep. Am I allowed a break whenever I want? … Q. So [the complainant], I was just asking some questions about New Year's Eve 2020. You said you had a memory of [the appellant] sexually abusing you on that night. A. Yes. Q. Do you agree that when you had your first recorded interview A. I didn't say anything. Q. You didn't say anything about that. A. Yeah. Q. And then when you had your second recorded interview you didn't say anything about that. A. No. Q. Then when you had your first briefing at the offices of the DPP you didn't say anything about that. A. Yeah. Q. When you had your second proofing at the offices of the DPP - A. The first time I said it was today here, yes. Q. You've given statements about this matter very recently, haven't you. -- 14 of 22 -- [2024] SASCA 63 The Court 13 A. Yeah. Q. And they are not mentioned in any of those statements either, are they. A. No. Q. Can you say why you didn't mention that at any of those times. A. There's a lot of other stuff to be thinking about. Q. It's not the case that it didn't happen and that's why you didn't mention it. You disagree with that. A. Yes, I disagree. 51 Defence counsel, in his closing address, submitted that the alleged sexual incident on New Years Eve was first raised by the complainant in cross-examination and was a ‘recent invention’. Defence counsel emphasised that the complainant said that her account was not the product of recently revived memories, and she had always remembered the incident. It was submitted that ‘the only logical inference is that they were being invented in the witness box’. Defence counsel relied upon this recent invention to challenge the complainant’s credibility and reliability. 52 The prosecutor agreed that the complainant’s evidence of the incident ‘came out for the first time in evidence’ but submitted that the evidence should not adversely affect the veracity of the complainant’s evidence given her explanation that ‘there was a lot of other stuff to think about’ and this occasion involved offending which was of a similar nature to the other alleged incidents. Furthermore, the prosecutor noted that complainant’s evidence that she was alone with the appellant on this occasion was supported by the evidence of her best friend and indeed, the appellant’s account in his police interview. The prosecutor did not challenge the defence submission that she disclosed the New Year’s Eve incident for the first time while giving evidence. 53 The trial Judge dealt with the evidence, and the challenge to the complainant’s credibility and reliability in the following way: In relation to the occasion on New Year’s Eve, having regard to the text messages sent between [the complainant’s mother] and [the appellant], I am of the view that it is clear that [the complainant] had told her mother, prior to attending the police station, that something had occurred on New Year’s Eve at [her best friend’s] house. That specific allegation was made on 11 March 2021. It is for that reason, I reject counsel’s suggestion that what [the complainant] said occurred on New Years Eve 2020 was a recent invention. I make clear that I have not relied on the text messages sent to [the appellant] about what occurred for the truth of what is contained in the messages, namely, that he ‘fingered’ his sister on New Years Eve 2020. I have considered what, if any impact the failure to mention the offending on New Years Eve in [the complainant’s] police interviews has on her credibility and reliability. I am of the view, that [the complainant] was always a reluctant witness, not because she was not telling the truth, but because she did not want to implicate her brother. It is not surprising that she did not set out every single occasion that [the appellant] sexually -- 15 of 22 -- [2024] SASCA 63 The Court 14 abused her. The other reasonable explanation is that she thought she had said enough, or when she spoke with the police she forgot about the time at [her best friend’s] house. 54 In relation to the text messages, there were two relevant messages from the complainant’s mother to the appellant. First, on 4 March 2021 the complainant’s mother sent a message to the appellant, which included the assertion ‘how disgusting [she] had told me some things you did to her, going to … [the complainant’s best friend’s] house you got no shame and getting her [drunk] so you can do things to her’. Second, on 11 March 2021, the appellant sent a message to the complainant’s mother which said: ‘Can you tell me what I did. I don’t remember.’ She then responded by sending a second text message which said: ‘Are you fuckin serious, you want me to tell you what she told us. You [put] your finger inside her while you thought she was asleep. You got her drunk you touch her titties. Disgusting.’ 55 The text messages outlined above were tendered, with other messages, on the prosecution case to establish that the appellant’s failure to respond to the messages amounted to an implied admission by silence. Defence counsel had unsuccessfully sought their exclusion. The trial Judge admitted the evidence but ultimately declined to use the text messages for that purpose on the basis that they did ‘not sufficiently disclose the allegations to be able to draw any inference from the failure to respond.’ 56 As set out earlier, the complainant gave evidence that she first disclosed the unlawful sexual acts which allegedly occurred on New Year’s Eve at her best friend’s house under cross-examination. She was not re-examined on the topic. When the complainant’s mother was subsequently called as a witness, she gave limited evidence about the text messages, presumably as they were adduced only to prove an implied admission, and not for the truth of the assertions contained therein. 57 The complainant’s mother was questioned about the text message sent on 4 March 2021 as follows: Q. What was your reason for sending that message to [the appellant]. A. Because he sent something to [the complainant] on his phone to her phone and that's why I wrote 'If you think saying sorry is good enough' because he wrote saying 'I'm sorry', just like plain 'I'm sorry' and that was it and she's like 'Mum, look what he wrote. What's he sorry for?' And I'm like 'Um I wonder' because he didn't write anything else. It was just that. Q. Was your message in response to that message. A. To that, correct. 58 The complainant’s mother was not asked any questions whatsoever by either counsel about the text message she sent to the appellant on 11 March 2021. -- 16 of 22 -- [2024] SASCA 63 The Court 15 59 There was no evidence from the complainant’s mother that the complainant had disclosed the New Years Eve incident to her. Moreover, as set out earlier, the complainant’s evidence was that the first time she had spoken about this incident was during her evidence at trial and while under cross-examination and contrary to any inference that she had earlier disclosed the incident to her mother or anyone else. 60 It is well established that evidence of a prior consistent statement by a witness is hearsay evidence and inadmissible for a testimonial purpose; that is, it is inadmissible to establish the truth of the assertion contained therein. Generally, a prior consistent statement is not admissible to bolster the credit of a witness, nor indeed, to restore the credit of a witness. However, there is an exception to this rule against the admission of prior consistent statements. If a witness’s credit is challenged on the basis that his or her evidence is invented at a time after the alleged incident, a statement by the witness to the same effect as his or her impugned account, if made contemporaneously with the alleged incident, or at a time sufficiently early to be inconsistent with the suggestion that the witness’s evidence is a late invention, is admissible for the limited purpose of refuting an allegation of recent invention or an allegation of fabrication subsequent to the alleged incident. 61 In Nominal Defendants v Clements,19 Windeyer J considered that there are two kinds of imputations that, if sufficiently clearly made, would permit the admission of a prior consistent statement. Relevantly, the first is where it is alleged that the evidence of a witness was invented at, or after a particular point in time. Windeyer J explained:20 It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken. There must have been an imputation clearly made, and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events but is recounting the story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. 62 Of course, the evidence adduced to rebut an allegation of recent invention must itself be admissible. 63 In the present case, the trial Judge used the two text messages sent by the complainant’s mother to the appellant to infer that the complainant had disclosed the unlawful sexual acts which allegedly occurred on New Year’s Eve to her, and at a time prior to 11 March 2021 (and therefore before giving evidence at trial). 64 It was common ground between the parties at trial, and on appeal, that defence counsel put to the complainant that she had invented the allegation while 19 [1960] HCA 39; (1960) 104 CLR 476 at 494. 20 Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 495 per Windeyer J. -- 17 of 22 -- [2024] SASCA 63 The Court 16 under cross-examination. Given the parties’ concession to that effect, we are prepared to proceed on the basis that defence counsel put an imputation of recent invention to the complainant, although we consider it finely balanced that he in fact did so. It is also to be accepted that the allegation was ‘not unequivocally disclaimed’ by defence counsel. To the contrary, he made a submission of recent invention during his closing address. 65 In those circumstances, it was open for the prosecution to seek to refute the imputation of recent invention. However, that could only be done by evidence which was of itself admissible as probative of the allegation being made prior to the time at which it was said to have been invented. In this case, the prosecution did not adduce any admissible evidence capable of rebutting the imputation of recent invention. While the text messages from the complainant’s mother to the appellant were tendered for a non-hearsay purpose (that is, to establish an admission by silence) and properly admitted into evidence for that purpose, they were not admissible for a testimonial purpose. There was no evidence from the complainant’s mother to the effect that the complainant had told her that the appellant had sexually touched her on New Years Eve at the home of her best friend. In addition, the complainant’s mother gave no evidence whatsoever about the text message sent on 11 March 2021, nor did she affirm or adopt the assertions contained therein. Furthermore, as set out earlier, the complainant’s evidence on this topic was to the contrary – she said that the first time she disclosed these allegations was in cross-examination. 66 In his reasons for verdict, the trial Judge relied upon the text message sent on 11 March 2021 for a testimonial purpose, namely, to prove the truth of the complainant’s mother’s assertion that the complainant ‘told me some things you did to her, going to [her best friend’s] house you got no shame and getting her drunk so you can do things to her’. His Honour then relied upon the truth of the assertion that the complainant had disclosed the relevant unlawful sexual incident to rebut an allegation of recent invention, and to reject the concomitant challenge to the complainant’s credibility. This was an impermissible hearsay use of the evidence. There was in fact no admissible evidence capable of rebutting the allegation of recent invention. 67 For those reasons, we are satisfied that the trial Judge’s use of the text messages involved an error of law, and occasioned a miscarriage of justice. The evidence was not admissible to rebut the imputation of recent invention. 68 There is also force in the appellant’s contention that he was denied procedural fairness. As discussed, the prosecution did not rely on the text messages to rebut the allegation of recent invention. There was no re-examination of the complainant, nor was there any evidence adduced from the complainant’s mother to that effect. Whilst the imputation of recent invention was addressed by both counsel during their closing submissions, the topic of the relevance of the text messages to rebut recent invention was not raised at all by counsel or the trial Judge at that time. The first reference to the text messages being used for this purpose -- 18 of 22 -- [2024] SASCA 63 The Court 17 was in his Honour’s reasons for verdict. In those circumstances, defence counsel was denied the opportunity to put submissions as to the capacity of the evidence to refute the allegation. Bearing in mind the reliance placed by defence counsel on the allegation of recent invention to impugn the complainant’s credibility, and given her credibility was crucial to the central issue in dispute of whether the unlawful sexual acts occurred, his Honour was obliged to put defence counsel on notice of his intention to use the evidence to rebut recent invention. The failure to do so resulted in a procedural unfairness to the appellant and a miscarriage of justice. Ground 3 – propensity reasoning 69 The appellant complained that the trial Judge erroneously used the evidence that the appellant regularly slept in the complainant’s bed to support her account that he was sexually attracted to her. The appellant contended that the premise underpinning his Honour’s reasoning employed propensity reasoning and thus engaged s 34P(2)(b) of the Evidence Act. The appellant’s complaint under this ground of appeal has three limbs: first, that the evidence was not admissible for a propensity purpose; second, his Honour erred in failing to give the mandatory direction required pursuant to s 34R; and third, there was a breach of procedural fairness. 70 There was no dispute at trial that when the appellant stayed overnight at his family’s home, he would often sleep in the complainant’s bed. The prosecution sought to rely on this evidence to establish that the appellant had opportunity to offend against her. 71 In his reasons for verdict, the trial Judge accepted the evidence of the complainant’s mother and her brother as to their observations of the appellant in bed with the complainant. There was no dispute, on the defence case, that there were numerous occasions when the appellant slept in the complainant’s bed. Relevantly, his Honour made the following findings in relation to that evidence: [The appellant] did not need to sleep with his sister in her bed. At one stage, there was a mattress set up in the loungeroom, and when that was thrown out, [the appellant] had his swag. If he had forgotten to bring that, there was the couch. The repetition of [the appellant] sleeping in her bed when he did not need to, circumstantially supports [the complainant’s] account that [the appellant] was regularly touching her sexually while in her bed. Notwithstanding that they are siblings, regularly sleeping with a 12-year-old girl when [the appellant] was 20 years of age is inherently unusual. On the odd occasion, it might be explicable, but in my view, the fact that [the appellant] regularly slept in his sister’s bed is consistent with [the complainant’s] account that [the appellant] was sexually attracted to her. 72 There are two relevant aspects to the trial Judge’s findings: first, that the appellant slept in the complainant’s bed when he did not need to do so; and second, the fact he did so is consistent with the complainant’s account that the appellant -- 19 of 22 -- [2024] SASCA 63 The Court 18 was sexually attracted to her. The appellant contended that by reasoning in that way, his Honour impermissibly used the evidence for a propensity use. 73 In considering this ground of appeal, the first issue to determine is whether the conduct in question is discreditable conduct. In Sadler v The King,21 Doyle JA explained that discreditable conduct ‘connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly on the offender’. The terms of s 34P(1) make clear that the section is not confined to conduct that constitutes a criminal offence.22 However, the conduct must be of ‘a level of seriousness or consequence that it might cause a jury … to engage in some form of impermissible ‘bad person’ reasoning’.23 The respondent contended that given there was a familial connection between the appellant and the complainant, the relevant conduct of them sharing a bed in the family home is not discreditable conduct. 74 We do not agree. It may not be discreditable in the abstract, but in the context in which it was raised in the present case it was plainly discreditable conduct. The trial Judge did not refer to the conduct in neutral terms as two siblings sharing a bed. Rather, his Honour characterised the relevant conduct as the appellant repetitively and unnecessarily sleeping in the complainant’s bed and considered that the conduct was consistent with the complainant’s account that he was sexually attracted to her. To our mind, it is plain that conduct involving an adult man repetitively sleeping in the bed of a 12-year-old girl, albeit his sister, without any need to do so and consistent with a sexual attraction to her, constitutes ‘discreditable conduct’ for the purposes of s 34P. 75 The next issue to consider is whether the trial Judge relied upon the evidence of the sleeping arrangements for a propensity use. As outlined earlier, the prosecutor adduced the evidence only to establish the appellant’s opportunity to commit the offence, and as part of the prosecution case that the complainant’s mother and her brother had each independently observed the appellant in bed with her and sleeping in a position consistent with her account. At trial, the prosecutor disavowed any reliance on the evidence for a propensity purpose. 76 The appellant contended that the trial Judge’s findings that the evidence of the appellant’s sleeping arrangements was consistent with the complainant’s account that he was sexually attracted to her relied upon the evidence for a propensity use. That is, his Honour relied on the evidence of the sleeping arrangements to find that the appellant was sexually attracted to the complainant; and used that finding as relevant to a fact in issue, namely, to prove that the appellant engaged in the particularised unlawful sexual acts with her. 77 Evidence of discreditable conduct, whether it be of uncharged sexual acts or other conduct that does not constitute a criminal offence, may be capable of 21 Sadler v The King [2023] SASCA 63 at [27]. 22 Sadler v The King [2023] SASCA 63 at [27] per Doyle JA. 23 Sadler v The King [2023] SASCA 63 at [27] per Doyle JA. -- 20 of 22 -- [2024] SASCA 63 The Court 19 establishing the existence of a sexual attraction by the appellant to the complainant, and a willingness to act upon it, which may render more probable the commission of the charged offences.24 Pursuant to s 34P(2)(b), evidence admitted for a permissible purpose that relies on a particular propensity or disposition of the defendant, as circumstantial evidence of a fact in issue, is only admissible if the evidence has strong probative value having regard to the particular issue or issues arising at the trial. The fact of itself that evidence of uncharged acts or evidence of discreditable conduct is given by a complainant does not mean that it lacks significant probative value.25 78 In the present case, the evidence of the appellant’s repeated acts of sleeping in the complainant’s bed (which was supported by the evidence of the complainant’s mother and brother, as well as the appellant’s admissions in his police interview) was capable of demonstrating his sexual attraction to her. However, it did not have strong probative value in establishing a willingness by the appellant to act on this sexual attraction to the complainant. It was not admissible for a propensity purpose under s 34P(2)(b) of the Evidence Act. 79 The evidence was clearly admissible under s 34P(2)(a) for a non-propensity purpose for the reasons advanced by the prosecutor at trial. It was relevant and admissible to establish the appellant had the opportunity to commit the unlawful sexual acts. 80 The question remains whether the trial Judge used the evidence for a propensity purpose. While it is true that his Honour said ‘the fact that [the appellant] regularly slept in his sister’s bed is consistent with [the complainant’s] account that [the appellant] was sexually attracted to her’, we consider that his Honour did not intend to convey that he used the evidence of the sleeping arrangements as directly probative of the appellant having a sexual interest in the complainant. Rather, we consider that his Honour was attempting to convey, albeit imprecisely, that he considered the appellant’s proven acts of regularly sleeping in the complainant’s bed was consistent with her account of the offending. Indeed, the complainant only suggested that the appellant ‘was sexually attracted to her’, by reference to his commission of the particularised unlawful sexual acts upon her. We are fortified in this conclusion by the following matters: there was no notice filed by the prosecution to adduce propensity evidence under s 34P(4); the prosecutor did not advance a propensity use of the evidence; nor were there any submissions to that effect made to his Honour during legal argument or the closing addresses; and his Honour did not refer to the relevant legislative provisions in his reasons for verdict. 81 Ultimately, it is not necessary to finally decide this point, nor the aligned issue of whether the appellant was afforded procedural fairness, in respect of any 24 R v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56 at [49] per the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). 25 R v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56 at [51] per the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). -- 21 of 22 -- [2024] SASCA 63 The Court 20 propensity use that may have been made of that evidence, as the appeal must be allowed on appeal grounds 1 and 2. It is enough to make clear that the impugned evidence of the sleeping arrangements was not admissible under s 34P(2)(b) for a propensity purpose, and given our conclusion that the evidence constituted discreditable conduct and engaged s 34P(2), a direction as to the impermissible use of the evidence was required under s 34R. Proviso 82 In the circumstances of this case, we would not apply the proviso. The evidence of distress was erroneously used by the trial Judge to bolster the credibility of the complainant. The evidence of the text messages were inadmissible for a testimonial purpose and yet they were used to restore the complainant’s credibility after defence counsel put an imputation of recent invention. In addition, there was no admissible evidence capable of refuting the imputation of recent invention. The prosecution case relied entirely on the complainant’s evidence. Given the challenges to the credibility of the complainant, it is not possible to assess whether guilt was proved beyond reasonable doubt, and it cannot be said no substantial miscarriage of justice has actually occurred. 83 For these reasons, we would not apply the proviso. Orders 1. Permission to appeal against conviction is granted. 2. The appeal is allowed. 3. The conviction is set aside and a new trial is ordered. -- 22 of 22 --