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[2025] HCA 49
appellant. Appeal allowed. The relevant Court of Appeal orders were set aside, Tsalkos's appeal to that Court against conviction was dismissed, and his application for leave to appeal against sentence was...
The High Court held that the jury could consider AB's distress alongside what she told her mother, as possible circumstantial support for the allegation that the offending occurred. The possibility that AB was upset for another reason did not make the evidence irrelevant. The trial judge left causation and weight to the jury, and did not direct them to treat the evidence as independent corroboration. The prosecutor's use of “independent evidence” did not change that conclusion in context. The convictions were restored, while the sentence appeal application was returned to the Victorian Court of Appeal.
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2,684 words · generated 03/10/2026
The High Court of Australia decided The King v Tsalkos on 3 December 2025. All seven Justices identified in the judgment delivered the reasons. The appeal concerned the use and treatment of evidence that AB appeared very distressed while telling her mother at hospital that she had been raped. The central question was whether the jury had been invited to use that evidence as improper “independent support” for AB's account, producing a substantial miscarriage of justice.
2 cited instruments linked from this judgment.
Tsalkos had been convicted by a jury of two kidnapping charges, two rape charges with aggravating circumstances, and four charges relating to procuring or inciting gross indecency with JJ, who was under 16 at the time ([1]). The alleged offences took place in 1987. The prosecution case was that Tsalkos picked up AB and JJ in St Kilda, falsely represented that he was a policeman, and drove them to locations where he committed the sexual offences. AB and JJ were 16 and 15 years old respectively ([11]).
AB and JJ went to a friend's house after the alleged events and told him that they had been raped. They were later taken to hospital. AB's mother attended, and testified that AB was “very very distressed” when she entered the cubicle. AB's mother said AB told her that a man had raped both her and JJ and threatened them with a knife ([12]). Tsalkos gave evidence that the sexual activity had been consensual. His case included alternative explanations for AB's distress, including her concern that her mother might discover she had been working as a prostitute or that she had lied, or might lie, to police about how she came to be in St Kilda ([13]).
The trial judge told the jury it could consider AB's distress as indirect or circumstantial evidence supporting the prosecution case that AB did not consent. But the judge also made the causal question explicit: the jury had to decide whether AB was distressed because she had been raped or for another reason. The jury could not use the evidence as indirect support for the charges unless satisfied that the distress was caused by the alleged sexual offending. If that connection were found, the jury had to evaluate the evidence's weight ([16]).
The Victorian Court of Appeal majority held that this caused a substantial miscarriage of justice and ordered a new trial. Its reasoning treated the distress as “intractably neutral” because other explanations were possible, and concluded that it was not open to the jury to find the required connection between the distress and the alleged offences ([19]-[20]). Niall JA dissented, reasoning that the directions did not invite the jury to treat the evidence as independent corroboration and that it was open to the jury to use the distress evidence ([21]).
The High Court allowed the King's appeal. It set aside the orders that had disturbed the convictions, dismissed Tsalkos's appeal against conviction, and remitted his application for leave to appeal against sentence to the Victorian Court of Appeal ([36]-[37]).
The Court treated R v Churchill (a pseudonym), decided after the Court of Appeal's judgment, as controlling on the relevant questions ([5]-[10]). Churchill had established that evidence of a complainant's distress when making a pre-trial complaint is ordinarily relevant under s 55 of the Evidence Act 2008 (Vic), and consequently admissible under s 56, where it could rationally affect the assessment of whether the offending occurred ([7]). Depending on the evidence, it may bear on the complainant's credit, the occurrence of the alleged offending, or both. For use as indirect evidence of offending, the jury must be able to find a causal connection between the distress and the alleged offending ([7]).
First, the Court held that the distress could not sensibly be separated from the complaint during which it was observed. The mother's evidence was about AB's distress “at the time” she told her mother that she had been raped, rather than an observation divorced from the complaint ([12], [24]). Relevance and possible use had to be assessed by considering the evidence together with other evidence, including what AB said. The Court rejected the submission that Churchill did not apply because the distress preceded the complaint: the account of the evidence showed that the distress was observed while the complaint was being made ([24]).
Second, the Court rejected the Court of Appeal majority's focus on whether the distress was “independent support”. That language reflected a historical corroboration rule which required evidence used to corroborate a complainant's testimony to be independent of that testimony. Churchill had identified that rule as abolished in Victoria by the Evidence Act and Jury Directions Act ([10], [25]). Tsalkos therefore could not succeed merely by arguing that the mother's observations were not independent corroboration. The High Court explained that “independent” can mean different things, including evidence originating from a separate witness, but whether distress evidence is independent in either sense is generally irrelevant to its admissibility and use ([27]).
Third, the Court rejected the view that alternative possible causes rendered the distress evidence “intractably neutral”. Section 55 asks whether the evidence, if accepted, could rationally affect the probability of a fact in issue. It does not require that the evidence have only one possible explanation. The possibility that AB was distressed for another reason was relevant to the jury's assessment, but did not itself defeat relevance ([26]). Because the distress accompanied her complaint, and the jury could assess the combined evidence, it was open to use the distress as circumstantial evidence if the jury found the causal connection ([24], [26]).
Fourth, the High Court considered the judge's directions in context. The judge did not tell the jury that the distress proved the allegation. Rather, the judge left it to the jury to decide whether the distress resulted from the alleged offending or another cause, and to assess its weight if the necessary connection was found ([16]). The High Court held that this was consistent with Churchill and did not occasion a substantial miscarriage of justice ([28]).
The Court also rejected the respondent's alternative arguments. On s 137, it explained that the evidence had to be assessed at its highest and in the context of the accompanying statements. On that approach, it had substantial probative value. The asserted prejudice depended on the mistaken proposition that the evidence could not be used as evidence of the offending. The judge's directions about circumstantial evidence guarded against misuse ([29]-[32]).
Finally, the prosecutor's use of the phrase “independent evidence” did not alter the result. In context, it was better read as describing evidence given by AB's mother rather than AB herself. The judge's directions did not suggest that it was independent corroboration like an eyewitness account of the alleged offending. The Court also noted that no concern about that phrase was raised during the relevant discussions at trial ([34]-[35]).
The judgment explains Tsalkos against the background of Churchill, which had been decided after the Victorian Court of Appeal judgment under appeal. Churchill rejected the proposition that trial judges were required to warn juries that distress evidence generally carries little weight, or that such evidence was inherently unreliable. It also held that the jury ordinarily determines whether to accept distress evidence and what weight to give it, subject to any case-specific direction justified by “substantial and compelling reasons” under the Jury Directions Act 2015 (Vic) ([8]-[9]).
Churchill also concluded that Victorian evidence and jury-direction legislation had displaced five historical common law evidentiary rules of general application. These included the general corroboration warning for complainants in sexual offence cases, the rule requiring proof beyond reasonable doubt of indispensable intermediate facts in circumstantial cases, restrictions arising from the hearsay rule on using prior representations for the truth of their contents, the exclusionary rule for prior consistent statements, and the general obligation to give warnings about classes of evidence said to be potentially unreliable ([10]).
Tsalkos applies that legal setting to a particular jury direction. It rejects an approach that reintroduces the former corroboration analysis by calling the distress “independent” or by demanding that it be separated from the complaint. The relevant inquiry is instead whether the evidence, considered in context, could rationally affect the probability of a fact in issue, and whether the jury could find the necessary causal connection ([24]-[27]).
The judgment does not purport to decide that distress evidence must be accepted, or that it necessarily proves offending. It leaves acceptance, causal attribution, and weight to the jury, within the limits of the directions and the evidence in the particular trial ([16], [27]). Nor does it state that all distress evidence will always be admissible regardless of context. Its reasoning applies the statutory relevance test to the evidence described in this case and relies on Churchill's account of the ordinary position.
At [24], the Court says that assessment of relevance and possible use “must involve a consideration of that evidence's effect when taken with other evidence.” In plain English, evidence should not be artificially isolated from the surrounding events. Here, the mother's observation of distress occurred while AB was making a complaint, so the complaint's content mattered in assessing what the distress could show.
At [26], the Court states that the possibility of “another explanation for the distress evidence” does not mean the s 55 relevance test is unsatisfied. The practical point is that evidence can be relevant even if it admits of competing interpretations. A possible alternative explanation may affect how persuasive the evidence is, but does not automatically prevent the jury from considering it.
At [27], the Court explains that whether distress evidence is “independent” in either of the discussed senses is “generally irrelevant” to admissibility and use. In plain English, the law does not require this evidence to be a separate, independent confirmation of the complainant's testimony before the jury may consider it as circumstantial evidence.
At [28], the Court concludes that the trial judge's directions were consistent with Churchill and caused no substantial miscarriage of justice. The key feature was that the jury was not told to assume a causal link. It had to decide whether distress was due to alleged offending or another cause, and, if the link were found, determine the evidence's weight.
At [32], the Court says that for s 137 the evidence is taken “at its highest” and considered in the context of the accompanying statements. This means the statutory balance should not be conducted by stripping away the complaint that accompanied the distress or by applying the former rule that such evidence carried little weight. The Court concluded that the evidence had substantial probative value in that context.
At [34], the Court addresses the prosecutor's phrase “independent evidence”. The phrase could be ambiguous, but the better reading was that it referred to evidence being given by AB's mother. The directions did not turn it into a claim of independent corroboration comparable to an eyewitness account.
Tsalkos is most directly relevant where a complainant is described as distressed while making a pre-trial complaint about alleged offending, and the prosecution seeks to rely on that distress as indirect or circumstantial evidence. The judgment's facts involved a contemporaneous complaint to a family member at a hospital, evidence from that family member about visible distress, and a trial dispute about whether the distress was caused by the alleged offending or by other matters ([12]-[16]).
The decision is particularly relevant when the accused points to alternative explanations for the complainant's distress. Tsalkos says that competing explanations do not, without more, remove relevance under s 55. The jury's task is to evaluate the evidence and decide whether a causal connection exists, in light of all the evidence ([16], [26]-[27]).
It also applies where parties use terms such as “independent evidence”, “corroboration”, “indirect evidence” or “circumstantial evidence” to describe complaint-related distress. The judgment warns against treating these terms as interchangeable. Indirect or circumstantial evidence does not have to be independent corroboration, and the use of the word “independent” does not necessarily convey a legally impermissible invitation. The context of the prosecutor's submission and the judge's directions matters ([19], [25], [27], [34]).
The judgment does not establish that a jury must use distress evidence, that distress by itself establishes an offence, or that a causal connection is presumed. It says that the jury may use it as indirect evidence if the evidence and reasoning permit a causal connection to be found. The jury remains responsible for deciding whether to accept it and what weight it carries ([9], [16], [27]).
The judgment identifies no decisions by later courts applying or distinguishing Tsalkos. Its date is 3 December 2025, and the text provided concerns the High Court's own application of Churchill and the appeal from the Victorian Court of Appeal. It would therefore be unsupported to describe any later judicial treatment on the basis of this source alone.
What the judgment does record is the treatment of Churchill within Tsalkos. The High Court applies Churchill's propositions to the particular evidence, rejects the Court of Appeal majority's contrary reasoning, and holds that the directions were consistent with Churchill ([5]-[10], [23]-[28]). The Court describes the Court of Appeal's focus on independence and its treatment of the distress as “intractably neutral” as inconsistent with Churchill ([23]-[27]).
The judgment also cites Shepherd v The Queen, Festa v The Queen and Evans v The Queen for propositions about considering all evidence and assessing evidence in the context of other evidence ([24]). Washer v Western Australia is cited for the s 55 relevance test ([26]), while HML v The Queen is cited in relation to assessing probative effect alongside the complaint ([26]). R v Dennis Bauer and Steven Moore are cited in the discussion of the s 137 assessment and the risk of misuse ([32]). The judgment does not state that these cases establish later treatment of Tsalkos; they are authorities the Court used in reaching its decision.
The judgment leaves the application of the principles to different evidentiary settings open. It decides that the mother's evidence in this trial was capable of supporting the occurrence of the alleged offending, because the distress accompanied AB's complaint and could be evaluated with its content ([24], [26]). It does not specify how the relevance analysis would apply where the distress was observed at a different time, where the complaint's content was not proved, or where the evidence did not permit the same contextual assessment.
The causal question remains fact-specific. The jury had to decide whether AB's distress was caused by the alleged sexual offending or by another reason ([16]). Tsalkos establishes that the existence of alternative explanations does not automatically make the evidence irrelevant, but does not prescribe how a jury must resolve competing explanations in every case. It does not remove the need to assess the evidence and any directions in the context of the trial as a whole.
The judgment also does not give a comprehensive account of when “substantial and compelling reasons” might justify a particular direction about distress evidence. Its discussion of that threshold comes from Churchill, including the statement that the generic circumstance that evidence belongs to the class of pre-trial distress evidence is not, alone, such a reason ([8]). The case before the Court concerned a direction allowing the jury to consider the evidence, not a case-specific request for a warning that it was unreliable or carried little weight.
Finally, the decision does not resolve every possible s 137 issue involving distress evidence. It addresses the argument advanced in this appeal, on the evidence described, and concludes that its probative value was substantial when assessed at its highest and in context, while the judge's directions addressed the identified risk of misuse ([29]-[32]). Other records and directions could raise different questions.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
THE KING APPELLANT
AND
THEODOROS TSALKOS RESPONDENT
The King v Tsalkos
[2025] HCA 49
Date of Hearing: 17 October 2025
Date of Judgment: 3 December 2025
M64/2025
ORDER
Appeal allowed.
Set aside orders 2, 3, 4 and 5 made by the Court of Appeal of the Supreme Court of Victoria on 19 December 2024 and, in lieu thereof, order that the respondent's appeal to that Court against conviction be dismissed.
Remit the respondent's application for leave to appeal against sentence to the Court of Appeal of the Supreme Court of Victoria for determination.
On appeal from the Supreme Court of Victoria
Representation
B F Kissane KC with S C Clancy for the appellant (instructed by Office of Public Prosecutions (Vic))
T Kassimatis KC with G F Connelly SC for the respondent (instructed by Papa Hughes Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The King v Tsalkos
Criminal practice – Directions to jury – Distress evidence – Where respondent found guilty of offences against two complainants – Where evidence of pre-trial distress when one complainant made complaint – Where trial judge gave directions in relation to evidence of complainant's distress – Whether trial judge's directions invited jury to use distress evidence as independent support for complainant's account – Whether directions occasioned substantial miscarriage of justice – Whether Court of Appeal's reasoning contrary to R v Churchill (a pseudonym) (2025) 99 ALJR 719; 422 ALR 265 – Whether evidence inadmissible under s 137 of Evidence Act 2008 (Vic) – Whether miscarriage of justice because prosecutor described distress evidence as "independent evidence".
Words and phrases – "alleged offending", "capable of supporting", "causal connection", "circumstantial evidence", "corroboration", "credit", "direction", "distress evidence", "hearsay rule", "historical evidentiary rules", "independent evidence", "indirect evidence", "pre-trial distress evidence", "probative value", "sexual offence", "substantial and compelling reasons", "substantial miscarriage of justice", "unfair prejudice", "unreliable", "weight".
Evidence Act 2008 (Vic), ss 55, 56, 66, 137.
Jury Directions Act 2015 (Vic), ss 12, 15, 16, 31, 32.
GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. After a trial in the County Court of Victoria, the respondent was found guilty by a jury of two charges of kidnapping1 and two charges of rape with aggravating circumstances2 of two female complainants, AB and JJ. The respondent was also found guilty of four charges of procuring or inciting the commission of an act of gross indecency with a person under the age of 16 years,3 each committed against JJ. AB and JJ were 16 years and 15 years of age respectively at the time of the offences. The respondent was sentenced to a substantial term of imprisonment.
The respondent applied for leave to appeal against his conviction4 and sentence.5 The Court of Appeal of the Supreme Court of Victoria relevantly granted the respondent leave to appeal against his conviction, allowed his appeal, set aside his convictions and ordered a new trial. A majority of the Court of Appeal (Emerton P, McLeish and Boyce JJA, and Priest JA; Niall JA dissenting) found that a substantial miscarriage of justice6 was occasioned because the trial judge's directions supposedly invited the jury to use evidence that AB was distressed at the time she complained about the alleged offences to her mother as "independent support" for AB's account in circumstances where, according to the majority, it was not open to the jury to find the requisite causal link between the distress and the events complained of.7
As will be explained, the reasoning of the majority of the Court of Appeal in upholding this ground was inconsistent with the subsequent decision of this Court in R v Churchill (a pseudonym).8 Contrary to the conclusion of the majority, AB's mother's evidence that AB was distressed at the time AB complained to her was capable of supporting the occurrence of the alleged offending. Further, contrary to the conclusion of the majority, the trial judge's directions did not invite the jury to treat the evidence as "independent support" for AB's evidence in the sense of being independent evidence corroborative of AB's testimony. Additional complaints raised by the respondent in this Court to the effect that a substantial miscarriage of justice was occasioned by either or both the failure of the trial judge to exclude the evidence of distress under s 137 of the (Vic) or the failure of the trial judge to correct a submission made by the prosecutor in the prosecutor's closing address that the evidence of distress was "independent evidence" should also be rejected.
Reasons in Churchill were published after the Court of Appeal's judgment the subject of this appeal. In Churchill, this Court upheld an appeal from a differently constituted Court of Appeal of the Supreme Court of Victoria, which had found that a substantial miscarriage of justice was occasioned by a trial judge's failure to direct a jury about the need to be satisfied that there was a rational causal link between the distress of the complainant and the alleged offending, and to warn the jury that distress evidence "generally carries little weight".9 This Court found that no such direction was required.10 The relevant evidence in Churchill was to the effect that the complainant in that case became distressed when telling her mother that she had previously been sexually assaulted.11
Churchill is authority for three relevant propositions.
First, in a trial of a sexual offence in Victoria, evidence that a complainant was distressed at the time of making a pre‑trial complaint is ordinarily relevant under s 55 of the Evidence Act and consequently admissible under s 56 to prove that the offending occurred.12 The evidence is relevant on either or both of two bases: namely, that if accepted the evidence could enhance the credit of the complainant if the jury were to find a causal connection between the distress and the making of the complaint, and that the evidence could support the occurrence of the alleged offending if the jury were to find a causal connection between the distress and the alleged offending.13 On either basis, the evidence could rationally, indirectly affect the assessment of the probability of the existence of a fact in issue, namely whether the offending occurred.14
Second, absent substantial and compelling reasons for doing so in a particular case,15 trial judges in Victoria are not required or permitted to give a direction to the effect that evidence that a complainant was distressed at the time of making a pre‑trial complaint is unreliable or carries little weight. Such evidence is not "evidence of a kind that may be unreliable" within the meaning of s 31 of the (Vic) and consequently the does not permit a prosecutor or defence counsel to request a direction to the effect that such evidence is unreliable. In the absence of such a request, a trial judge is not permitted to direct a jury to that effect unless the trial judge considers there are "substantial and compelling reasons for doing so" in a particular case. The "generic circumstance" that the evidence is of a kind or within the class of pre‑trial distress evidence on the part of a complainant "could not alone constitute substantial and compelling reasons".
The events the subject of the charges against the respondent occurred in 1987. AB and JJ were soliciting for sex work on a street in St Kilda. It was alleged that at around 2.30am on 7 May 1987 the respondent invited AB and JJ into his car and then falsely told them that he was a policeman who would "bust" them for prostitution. He drove them to two different locations where he committed the sexual assaults and acts of gross indecency. He returned them to St Kilda just before 6:00am. AB and JJ went to their friend's house and told him they had been raped. The police were called but before they arrived AB and JJ agreed to tell the police that they had been hitchhiking before they were picked up and raped. In her evidence AB said that she was scared about how her mother would react if her mother learned that AB was soliciting for sex work.
Later that morning, AB and JJ were taken to the hospital for a medical examination. AB's mother attended the hospital. AB accepted that it was likely that she spoke with her mother but could not recall doing so. Without objection, AB's mother gave evidence that she walked into the cubicle at the hospital and saw AB on the bed "very very distressed". AB's mother was asked if she had any conversation with AB "at that time". AB's mother said that she did and that AB "told me that she'd been raped, she was with a friend and they had got into a car with a man and he had raped both of them and that they were very frightened and because he threatened them and he had a knife". AB's mother told the jury that AB "was just very very upset and very emotional ... but she wasn't yelling or screaming or anything like that ... I knew she was very very upset".
The respondent gave evidence at trial that he engaged in consensual sexual activity with AB and JJ. His case was that there were other reasons as to why AB might have been distressed, including that she was concealing from her mother that she had been engaging in sex work, or that she had lied or was going to lie to the police about not having been engaged in sex work.
Prior to the closing addresses and in the absence of the jury, the trial judge advised the prosecutor and trial counsel for the respondent that her Honour would direct the jury that the prosecution invited them to use the evidence of AB's mother about AB's distress as "indirect evidence or circumstantial evidence that supports its case that [AB] did not consent to ... sexual penetration". Her Honour also indicated that she would direct the jury that it was for the jury to decide whether AB's "distress was because she had been raped or for some other reason". Counsel for the respondent did not oppose that direction but advised that he would suggest to the jury other reasons for AB's distress. The trial judge agreed to incorporate counsel's submission into the direction.
In his closing address, the prosecutor described AB's mother's observations of distress as "independent evidence" that supported AB's account of the offending as follows:
"Now, it's going to be pointed out to you that this complaint, despite me suggesting it stands against any sort of recent invention, a lie told, because it's consistent over time doesn't include saying that she was a prostitute. ... All you're really getting is the evidence of a conversation where [AB] said something to her mother. It’s consistent but it’s not independent evidence.
But her mother's observation of the distress that [AB] was experiencing at the time is independent evidence. And that shows that provided you're satisfied that there was a causal connection between the way [AB] was upset in that hospital bed the morning after and the alleged offending, well, you can use your common experience that recounting a stressful experience is accompanied by outward signs of distress.
[AB] told you about her naivete at age 16, about her fears for the relationship with her mother if she found out what she had been doing and how close in time it was to the alleged kidnapping and rape, just a matter of hours. You could be satisfied that [AB] was upset, as observed by her mother, because of what she'd experienced and that is independent evidence that supports her." (emphasis added)
"If you find that [AB] was distressed soon after the alleged offence – and [her mother's] evidence was – about that was not disputed – the prosecution invites you to use this as indirect evidence; that is, circumstantial evidence that supports its case that [AB] did not consent to the sexual penetration with the accused. The defence of course dispute this and they say, well, there might be other reasons that she was upset. She might have been upset because she was lying about the fact that – or either lying – either was going to lie, or had already lied to the police about the fact she was not working as a prostitute and how she came to be in St Kilda, knowing that that was something she said on oath, or was under penalty of perjury. So she might have been upset about that or that her mother, generally, might have found out that she was working as a prostitute.
So that is what the defence say, so it is for you to assess those arguments. It is up to you to decide whether [AB's] distress was because she had been raped, or for some other reason, and what you make of the arguments of counsel. Obviously, you cannot use it as indirect evidence supporting the charges unless you are satisfied that she was distressed because of the alleged sexual offending, and not for some other reason. If you do find that causal connection it is for you to evaluate the weight of the evidence; that is, the extent to which it helps you decide the issues in this case, and in doing this you will use your common sense."
The respondent sought leave to appeal against his convictions and sentence to the Court of Appeal. The respondent raised two grounds of appeal against his conviction. Ground 1 of the proposed appeal against conviction alleged that a substantial miscarriage of justice occurred because: (a) "the jury was invited to use [evidence of AB's] distress on 7 May 1987 as independent support for her account" ("ground 1(a)"); and (b) "the jury was not warned that evidence of distress is a species of [evidence] that carries little weight" ("ground 1(b)").30 Emerton P, McLeish and Boyce JJA upheld ground 1(a), considered it unnecessary to address ground 1(b) and rejected the other ground.31 Priest JA upheld both aspects of ground 1 and upheld the other ground.32 Niall JA rejected both grounds and addressed the application for leave to appeal against sentence.33
In upholding ground 1(a), Emerton P, McLeish and Boyce JJA treated the terms "independent", "indirect" and "circumstantial" evidence interchangeably,34 and distinguished between evidence of distress adduced as a circumstance in which a complaint is made35 on the one hand and evidence of distress adduced as "independent (or circumstantial) evidence of the offending alleged" on the other.36 Their Honours found that, for the latter to be admissible as independent, indirect or circumstantial evidence of the offending, "the connection between the distress and the events alleged must be direct, that is, unmediated by (or independent of) the representations constituting the complaint".37 That test was said not to be satisfied because, having regard to the possibility that AB's distress was "caused by her fear or shame that her mother would find out that she and JJ had been out on the streets ... for a number of days working as prostitutes",38 the evidence was "intractably neutral as to its causal connection with the alleged offending".
The notice of appeal to this Court raises one ground of appeal: that the Court of Appeal erred in finding that the trial judge erred in directing the jury that it could use evidence of AB's distress when making a complaint of being raped as indirect evidence that supported the prosecution case that AB did not consent to sexual penetration with the respondent. As framed, this ground addresses ground 1(a) as it was understood and upheld by the majority of the Court of Appeal. As noted, ground 1(b) was not addressed by a majority of the Court of Appeal and, in any event, it is self‑evidently inconsistent with Churchill.44
So far as the reasoning of the majority of the Court of Appeal concerned ground 1(a), four related errors in that reasoning follow from Churchill.
First, it was erroneous to separate AB's distress from the content of her complaint in assessing the admissibility and use of the evidence given by AB's mother of what transpired at the hospital. Just as the jury must consider all the evidence,45 an assessment of the relevance of evidence and its possible uses must involve a consideration of that evidence's effect when taken with other evidence.46 AB's distress was an aspect of her complaint in telling her mother what happened to her.47 Thus the evidence of AB's distress was admissible for the purposes identified in Churchill: namely, not only as evidence relevant to credit but also as (indirect) proof that the offending occurred.48 In this Court, the respondent submitted that the reasoning in Churchill was not engaged because the evidence of AB's distress given by her mother involved an observation of distress prior to the making of the complaint. This submission must be rejected. As the above description makes clear, AB's mother described AB's distress "at the time" AB complained about being raped.49
Second, the focus of the majority of the Court of Appeal upon whether the evidence of AB's distress at the time she was recounting the alleged offending to her mother provided "independent support" for AB's account was misplaced.50 That approach reflects one of the historical evidentiary rules identified in as having been abolished: namely, that to be evidence in corroboration of the testimony of the complainant in the context of a sexual offence the evidence must be "independent" of the testimony of the complainant. Under that superseded evidentiary rule, evidence of distress could only be considered to be "independent" and thus corroborative if there was a causal connection rationally open to be drawn by the jury between the alleged offence and the complainant's distress and that connection could not be established if the evidence was "of an equivocal nature".
Section 137 of the Evidence Act provides that, "[i]n a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused".
In this Court, the respondent sought to maintain the orders setting aside his conviction and ordering a new trial on the basis of the following statement by Priest JA to the effect that the use of the distress evidence as evidence of the offending engaged s 137:57
"If, in a case like the present, the state of the evidence is such that the jury, acting rationally, could not exclude the reasonable possibility that the complainant's distress may have been caused by factors other than the alleged offending, then the distress evidence cannot go in proof of a fact in issue, and thus cannot be said to be relevant. To permit the evidence to go to the jury would be to permit the jury potentially to apply speculative 'reasoning' in proof of guilt. Moreover, on any view, the probative value of the evidence would be slight, and would be outweighed by the risk of unfair prejudice — that is, the risk that the jury would misuse the evidence —thereby engaging s 137 of the [Evidence] Act."
Emerton P, McLeish and Boyce JJA agreed with Priest JA, stating that, if the distress evidence were to be admitted where there were competing explanations for the cause of the distress "in play", then the "probative value of AB's distress as independent evidence would be slight, and would be outweighed by the danger of unfair prejudice, thereby engaging s 137 of the Evidence Act".58
No application was made to the trial judge under s 137 of the Evidence Act to exclude the evidence of AB's mother to the extent that it related to AB's distress while AB told her mother she was raped. If such an application had been made, then it would have to have been rejected. In applying s 137, the reasoning of the majority of the Court of Appeal attributes little probative value to the distress evidence by disassociating that evidence from AB's complaint and then applying the superseded historical evidentiary rule that required that juries be directed to give such evidence little weight. However, in applying s 137, the evidence is to be taken at its highest and in the context of the accompanying statements made to AB's mother.59 In light of Churchill, that evidence had substantial probative value for the purposes of applying s 137. Similarly, the prejudice identified by Priest JA, being the potential misuse of the evidence,60 proceeds from the misconception rejected in Churchill that it could not be used as evidence of the offending. Otherwise, any potential misuse of the evidence was guarded against by the trial judge's directions concerning indirect and circumstantial evidence.61
In this Court, the respondent further submitted that a substantial miscarriage of justice was occasioned by the fact that, in the prosecutor's closing address to the jury, the prosecutor described the distress evidence as "independent evidence". It was contended that the prosecutor invited the jury to treat the evidence of AB's mother about AB's distress as independent corroboration of AB's account and the failure of the trial judge to correct that invitation in the prosecutor's closing address occasioned a substantial miscarriage of justice. The respondent argued that this contention was captured by ground 1(a) as raised in the Court of Appeal; ie, that ground should be read as stating that the "jury was invited [by the prosecutor] to use the complainant's distress on 7 May 1987 as independent support for her account".62 The respondent submitted that the Court of Appeal addressed ground 1(a) on that basis. However, it is clear that the Court of Appeal addressed ground 1(a) on the basis that it was the trial judge's directions (not the prosecutor's closing address) that invited the jury to use the distress evidence in that way.
In any event, the submission should be rejected. To describe evidence as "independent" in this context can be ambiguous. The better reading of the prosecutor's address is that the prosecutor's description of the evidence given by AB's mother of AB's distress as "independent" was a reference to that evidence being adduced through AB's mother, not through AB. Nonetheless, whatever the prosecutor intended to convey by referring to the observations of AB's mother as "independent" evidence, it cannot be accepted that a jury, unburdened by any knowledge of the superseded historical evidentiary rule as to corroboration identified in Churchill, would somehow take that description as a reference to independent corroboration of AB's account akin to that which might have been given by an eyewitness to the offending. Nothing in the trial judge's directions conveyed any such suggestion or conveyed that the prosecutor made any submission to that effect. The fact that, throughout the discussions between the trial judge and counsel prior to addresses, after the addresses and after the trial judge's summing up, no concern was raised about this aspect of the prosecutor's address supports the conclusion that the prosecutor's closing address did not convey an invitation to the jury to treat that evidence as having an evidentiary character that it did not possess.
The respondent's further submission must be rejected.
The appeal must be allowed. The orders of the Court of Appeal must be set aside and the respondent's appeal to that Court against his conviction must be dismissed. The proceedings are to be remitted to the Court of Appeal for the determination of the respondent's application for leave to appeal against his sentence.
Accordingly, the orders of the Court are:
Appeal allowed.
Set aside orders 2, 3, 4 and 5 made by the Court of Appeal of the Supreme Court of Victoria on 19 December 2024 and, in lieu thereof, order that the respondent's appeal to that Court against conviction be dismissed.
Remit the respondent's application for leave to appeal against sentence to the Court of Appeal of the Supreme Court of Victoria for determination.
Crimes Act 1958 (Vic), s 63A. ↩
At the time of the offending, a common law offence. See also Crimes Act, s 45. ↩
Crimes Act, s 50(1)(b). ↩
Criminal Procedure Act 2009 (Vic), s 274. ↩
Criminal Procedure Act, s 278. ↩
Criminal Procedure Act, s 276(1)(c). ↩
Tsalkos v The King [2024] VSCA 324 at [65], [75]. ↩
(2025) 99 ALJR 719; 422 ALR 265. ↩
R v Churchill (a pseudonym) (2025) 99 ALJR 719 at 724 [20]; 422 ALR 265 at 270. ↩
Churchill (2025) 99 ALJR 719 at 721 [1], 725 [27]; 422 ALR 265 at 266, 271-272. ↩
Churchill (2025) 99 ALJR 719 at 722 [6]-[10]; 422 ALR 265 at 267-268. ↩
Churchill (2025) 99 ALJR 719 at 721 [3], 725 [27]-[29]; 422 ALR 265 at 267, 271-272. ↩
The King
Tsalkos [2025] HCA 49
(2025) 99 ALJR 719
(1919) 27 CLR 13
(2024) 281 CLR 18
(1999) 196 CLR 297
(1990) 170 CLR 573
(1984) 153 CLR 521
(2001) 208 CLR 593
(2007) 235 CLR 521
(2007) 234 CLR 492
(2008) 235 CLR 334
(2018) 266 CLR 56
(2024) 98 ALJR 1119
Appeal allowed. The relevant Court of Appeal orders were set aside, Tsalkos's appeal to that Court against conviction was dismissed, and his application for leave to appeal against sentence was remitted to the Victorian Court of Appeal for determination ([37]).
Accordingly, the appeal must be allowed, the respondent's convictions restored and the respondent's application for leave to appeal against his sentence remitted to the Court of Appeal.
Third, where evidence that a complainant was distressed at the time of making a pre‑trial complaint is admitted as indirect (or circumstantial) evidence of the offending conduct, it is for the jury to determine whether to accept that evidence and the weight to be given to that evidence.21 In the absence of a particular direction that is warranted by the existence of "substantial and compelling reasons for doing so" in a particular case,22 the use of such evidence as indirect or circumstantial evidence can be addressed by appropriate general directions as to the drawing of conclusions and the distinction between direct and circumstantial evidence.23
In so deciding, Churchill concluded that the Evidence Act and the Jury Directions Act, either individually or in combination, abolished five "historical common law evidentiary rules of general application" in Victoria,24 namely: the rule that a jury should be warned that it is dangerous to convict an accused on the uncorroborated testimony of a complainant unless satisfied of the truth and accuracy of that testimony after "careful scrutiny";25 the rule that in a circumstantial case intermediate facts indispensable to a conclusion of guilty had to be proved beyond reasonable doubt and a jury directed accordingly;26 the hearsay rule by which evidence of a pre‑trial representation was not permitted to be relied on as evidence of the existence of any fact asserted or implied by the representation;27 the rule which, subject to exceptions, excluded evidence of a prior consistent statement to bolster the credit of a witness;28 and the general common law rule obliging trial judges to draw to the jury's attention various features of evidence that "judicial experience" had shown to give rise to the significant possibility that the evidence is unreliable for reasons which may not be evident to the jury, to explain how those features affect the reliability of the evidence and to warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.29
Emerton P, McLeish and Boyce JJA concluded that a substantial miscarriage of justice occurred "because the jury was invited to use AB's distress as independent support for her account in circumstances where it was simply not open to the jury to find the requisite causal link between the distress and the events complained of".40 Priest JA's reasoning on this issue was not relevantly different from that of Emerton P, McLeish and Boyce JJA.41
In dissent, Niall JA held that, when the trial judge's directions were read as a whole, the jury was not invited to treat the distress evidence as independent corroboration of AB's account.42 His Honour also considered that, in any event, while there were other possible causes for AB's distress, it was open to the jury to use AB's distress as evidence of the alleged offending.43
Third, the majority's description of the distress evidence as "intractably neutral" does not reflect a proper application of s 55 of the Evidence Act. Instead, it reflects the application of the superseded historical evidentiary rule just noted. Section 55(1) merely provides that evidence is relevant where the evidence, if accepted, "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". The circumstance that there could be another explanation for the distress evidence does not mean that the test of relevance in s 55 is not satisfied. Instead, consideration must be given to whether there is a process of reasoning by which the evidence could rationally affect the assessment of the probabilities.53 In circumstances where the complaint of rape was accompanied by evidence of distress and the probative effect of the distress evidence was to be considered having regard to the content of the complaint,54 the test of relevance in s 55 was satisfied.
Fourth, as Niall JA found, the trial judge's directions did not invite "the jury to treat the distress evidence as independent corroboration" of AB's account.55 Once any requirement for corroboration is put aside, it is potentially misleading to treat indirect or circumstantial evidence as synonymous with "independent" evidence. Two pieces of evidence can be "independent" in the sense that each emanates from a different and unrelated source, such as two separate eyewitnesses to an offence. Evidence such as that given by AB's mother can also be characterised as "independent" if it is adduced from a separate source to the testimony of the witness who was distressed, even though, as Niall JA observed, "[d]istress evidence always [ultimately] emanates from the complainant".56 In light of Churchill it suffices to note that whether or not distress evidence is "independent" in either sense is generally irrelevant to an assessment of the evidence's admissibility and use.
In the end result, the trial judge's directions to the jury were consistent with Churchill. Those directions did not occasion a substantial miscarriage of justice. It follows that the sole ground of appeal must be upheld.
Churchill (2025) 99 ALJR 719 at 721 [3], 725 [27]-[29]; 422 ALR 265 at 267, 271-272. ↩
Churchill (2025) 99 ALJR 719 at 721 [3], 725 [27]-[29]; 422 ALR 265 at 267, 271-272. ↩
Jury Directions Act 2015 (Vic), s 16(1). ↩
Churchill (2025) 99 ALJR 719 at 721 [1], 721-722 [4], 726 [36]; 422 ALR 265 at 266, 267, 274. ↩
Churchill (2025) 99 ALJR 719 at 721-722 [4], 725 [31]; 422 ALR 265 at 267, 272. ↩
Jury Directions Act, ss 12, 32; Churchill (2025) 99 ALJR 719 at 721-722 [4], 726 [36]; 422 ALR 265 at 267, 274. ↩
Jury Directions Act, ss 15, 16; Churchill (2025) 99 ALJR 719 at 721-722 [4], 725-726 [32]-[36]; 422 ALR 265 at 267, 272-274. ↩
Churchill (2025) 99 ALJR 719 at 726 [36]; 422 ALR 265 at 274. ↩
Churchill (2025) 99 ALJR 719 at 721-722 [4]; 422 ALR 265 at 267. ↩
Jury Directions Act, s 16(1). ↩
Churchill (2025) 99 ALJR 719 at 721-722 [4], 726-727 [37]; 422 ALR 265 at 267, 274. ↩
Churchill (2025) 99 ALJR 719 at 727 [42]; 422 ALR 265 at 275. ↩
Churchill (2025) 99 ALJR 719 at 727-728 [43], 728-729 [49]; 422 ALR 265 at 275, 276-277, quoting Hargan v The King (1919) 27 CLR 13 at 20. ↩
Churchill (2025) 99 ALJR 719 at 728 [45], 729 [50]; 422 ALR 265 at 276, 277. See also Director of Public Prosecutions v Benjamin Roder (a pseudonym) (2024) 281 CLR 18 at 29-30 [16]-[17] ↩
Churchill (2025) 99 ALJR 719 at 728 [46], 729 [51]; 422 ALR 265 at 276, 277. ↩
Churchill (2025) 99 ALJR 719 at 729 [52]; 422 ALR 265 at 277-278. See also Papakosmas v The Queen (1999) 196 CLR 297. ↩
Churchill (2025) 99 ALJR 719 at 728 [47], 729-730 [53]; 422 ALR 265 at 276, 278. ↩
Tsalkos [2024] VSCA 324 at [5]. ↩
Tsalkos [2024] VSCA 324 at [3], [51], [64]. ↩
Tsalkos [2024] VSCA 324 at [178]-[179], [186]. ↩
Tsalkos [2024] VSCA 324 at [281]-[282], [289], [320], [323]-[379]. ↩
Tsalkos [2024] VSCA 324 at [9]. ↩
Tsalkos [2024] VSCA 324 at [14]. ↩
Tsalkos [2024] VSCA 324 at [15]. ↩
Tsalkos [2024] VSCA 324 at [15]. ↩
Tsalkos [2024] VSCA 324 at [30]. ↩
Tsalkos [2024] VSCA 324 at [50]. ↩
Tsalkos [2024] VSCA 324 at [65]. ↩
Tsalkos [2024] VSCA 324 at [66]-[68], [143]-[146]. ↩
Tsalkos [2024] VSCA 324 at [281]. ↩
Tsalkos [2024] VSCA 324 at [282]-[285]. ↩
Churchill (2025) 99 ALJR 719 at 728 [47], 729-730 [53]; 422 ALR 265 at 276, 278. ↩
Shepherd v The Queen (1990) 170 CLR 573 at 580, quoting Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535-536. ↩
Festa v The Queen (2001) 208 CLR 593 at 599 [14]; Evans v The Queen (2007) 235 CLR 521 at 568 [177]. ↩
Evidence Act 2008 (Vic), s 66(1), (2)(a), (2)(b)(i), (2)(b)(ii). See also Churchill (2025) 99 ALJR 719 at 729 [52]; 422 ALR 265 at 277-278. ↩
Churchill (2025) 99 ALJR 719 at 721 [3]; 422 ALR 265 at 267. ↩
See above at [2], [3], [12]. ↩
Tsalkos [2024] VSCA 324 at [33], [51]. ↩
Churchill (2025) 99 ALJR 719 at 727-728 [43]; 422 ALR 265 at 275. ↩
Churchill (2025) 99 ALJR 719 at 728 [44]; 422 ALR 265 at 275-276, quoting R v Flannery [1969] VR 586 at 592. ↩
Washer v Western Australia (2007) 234 CLR 492 at 497-498 [5]. ↩
HML v The Queen (2008) 235 CLR 334 at 352 [6]. ↩
Tsalkos [2024] VSCA 324 at [281]. ↩
Tsalkos [2024] VSCA 324 at [264]. ↩
Tsalkos [2024] VSCA 324 at [164]; see also at [178]. ↩
Tsalkos [2024] VSCA 324 at [30]. ↩
R v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 at 91-92 [69]. ↩
See Steven Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at 1128 [33]; 419 ALR 169 at 179. ↩
Moore (2024) 98 ALJR 1119 at 1129 [39]; 419 ALR 169 at 180-181. ↩
Tsalkos [2024] VSCA 324 at [5]. ↩