Allison (a pseudonym) v The King; R v Allison (a pseudonym) - [2025] SASCA 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ALLISON (A PSEUDONYM) v THE KING; R v ALLISON (A PSEUDONYM)
[2025] SASCA 33
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David)
28 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The respondent was charged with five counts of sexual offences against his three stepchildren, KD, AT and ISD, all of whom were under the age of 14 at the time of the offending.
The sexual offending allegedly occurred against a background of violence committed against the complainants and their mother, PT, while the respondent was living with them, between 2012 and 2017.
Following a trial by a Judge sitting without a jury, the respondent was convicted of two counts of unlawful sexual intercourse with a person under the age of 14 contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) ('the CLCA') against ISD (counts 4 and 5).
The respondent was acquitted of two counts of maintaining an unlawful sexual relationship with a child contrary to s 50 of the CLCA, against KD and AT (counts 1 and 3) and one count of aggravated assault contrary to s 20(3) of the CLCA against KD (count 2).
With a reduction of time served in custody and on home detention bail, and pursuant to s 26 of the Sentencing Act 2017 (SA), the Judge imposed a head sentence of 11 years and 13 days' imprisonment and fixed a non-parole period of eight years, seven months and 20 days.
The prosecution case relied substantially on similarity of account or improbability reasoning between the three complainants. There was no challenge to the admissibility of all the complainant's evidence on each of the charge(s) relating to each complainant, excluding count 2.
It was the defence case that the evidence of each complainant was not sufficiently credible or reliable to rely on beyond reasonable doubt, and any similarities in the complainants' accounts were attributable to collusion or contamination.
The Director of Public Prosecutions (SA) ('the Director') appeals against the acquittals on counts 1 and 3. The Director's sole ground of appeal complains that the Judge erred at law by failing to engage with similarity of account or improbability reasoning and did not properly consider whether any doubt entertained in respect of the complainants could be resolved by improbability reasoning.
The respondent appeals against his convictions on counts 4 and 5.
The respondent complains that the Judge failed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] SASCA 33
Decision Date: 28 March 2025

CaseChat Overview and Summary

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Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, we grant permission and allow the Director’s appeal against the acquittals and remit the matter to the District Court for re-trial, dismiss the respondent’s appeal against conviction, and allow the respondent’s appeal against sentence and re-sentence the respondent. Overview of the evidence The respondent was charged with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) in relation to KD (count 1) and AT (count 3). In respect of ISD, the respondent was charged with two counts of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the CLCA (counts 4 and 5). The respondent was also charged with one count of aggravated assault contrary to s 20(3) of the CLCA in relation to KD (count 2). As mentioned, the respondent was acquitted of counts 1, 2 and 3 but convicted of counts 4 and 5. Before turning to consider the appeal against the acquittals, and the appeal against the convictions, it is necessary to provide a summary of the evidence relating to the charges. KD KD was born on 10 August 2007. The offending was alleged to have occurred between 10 August 2012 and 26 September 2017, when KD was aged between five and 10 years old. The evidence of KD was adduced by way of oral testimony and in the form of audio-visual records. He was 13 and 14 years old at the time of participating in the interviews and 15 years old at the time of giving evidence. KD gave evidence that the respondent committed various sexual acts against him and in his presence. Those acts included the respondent showing him pornography and masturbating in his presence; an occasion of forced fellatio during which he felt like he was choking and recalled spitting out semen; and repeated attempts by the respondent to have penile/anal sexual intercourse with him. KD said the respondent would pull him from his bed and take him to the couch in the lounge room where he would remove KD’s clothing. KD said that he would use ‘self-defence’ on the respondent but on at least one occasion, the respondent penetrated KD’s anus with his penis. KD gave evidence of three specific occasions that the respondent sexually abused him against a background of other alleged sexual acts. KD described the first incident as having occurred when he was five years old, and about six months after his mother started a relationship with the respondent. He said it occurred at the ‘Bombay Street house’. KD said the respondent forced him to ‘suck [his] penis’ and threatened to kill him if he did not do so. KD said that he had been asleep when the respondent woke him up and told him to go into the lounge room. There, the respondent ‘rammed’ the back of his head and made him suck his penis. KD said that he spat out sperm and ran back to his room. The last occasion involved the respondent penetrating KD’s anus with his penis. This incident occurred again at the Bombay Street house when KD was aged nine or 10 years. The respondent woke him up at midnight, hit his head on the side of the bed and told him to be quiet. The respondent then made him go to the lounge room and swung him onto the couch. The respondent played pornography on the television, started masturbating and then pinned KD down and placed his penis in KD’s anus. KD said it was painful, he started to cry and then his mother woke up and the respondent stopped. KD said that he then ran into his room, jumped out of the window and lay on the trampoline, which was in the front yard of the house.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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