SA Court of Appeal quashes conviction over the ‘rule against narrative’
In McClelland v The King [2025] SASCA 87, the South Australian Court of Appeal overturned a rape conviction after finding an out-of-court narrative statement inadmissible. They further found that a failure to direct the jury was a miscarriage of justice as it left ‘obvious risks’ that the jury would ‘misuse the conversation’, to either bolster the complainant’s credibility (the ‘bolster rule’), or as evidence of uncharged acts.
Background
The accused, Mr McClelland, had been in a relationship with the complainant. The prosecution alleged that on 28 December 2019 in Leigh Creek, he had sexual intercourse with her while she was asleep, without consent.
The complainant also gave evidence of other occasions where she said she woke up to the accused engaging in sexual activity with her. These were not charged offences but were introduced as “uncharged acts” to show a pattern of behaviour.
A jury found Mr McClelland guilty of rape in 2024. He appealed.
The Main Subject of Appeal
The appeal raised a number of issues, but the key one was:
Evidence of a conversation with a cousin (MI)
The relevant piece of evidence was that before the alleged rape, the complainant had a conversation with her cousin where she’d asked whether waking up to her partner having sex with her would “count as rape.”
The evidence had been admitted for the limited purpose of “the state of mind of the complainant, particularly her understanding of the moral wrongness and what was happening, because it goes to explaining, one, why she didn’t complain to police earlier and two, why she’s stayed in that relationship against the background of these repeated uncharged acts.” [para 28].
The Court of Appeal identified the relevant rule as the ‘rule against narrative’ or ‘ the rule against self-corroboration’ and applied Boyle v The Queen [2022] SASCA 50.
The Court of Appeal (Justices Bleby, David and Stanley) held:
The conversation with the cousin (MI) should not have been admitted. At para 46: “While we are satisfied that the complainant’s evidence of her state of mind at the time of the uncharged acts was relevant to explain why she stayed with the appellant at the time, we do not think that the evidence of the conversation with MI was admissible.”
The lack of proper directions meant there was a miscarriage of justice. At para 51-55:
“this opened the door to boosting the credibility of the complainant’s account”
“there was a real risk that the jury would use that evidence as complaint evidence relating to the uncharged acts”
“there was an obvious risk…that the jury would infer that …it was more likely that the uncharged acts had occurred.”
“there was a risk that the jury would misuse the conversation as evidence of the truth of the statement embedded in the question, that is, that she woke to her partner having sex with her”
“it would nonetheless still have been necessary for the trial judge to direct the jury carefully about the relevance, and the impermissible uses, of the evidence”
The appeal was allowed, the conviction quashed, and the matter sent back for a retrial.
Source: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCA/2025/87.html