Barnes (a pseudonym) v The King - [2025] SASCA 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BARNES (A PSEUDONYM) v THE KING
[2025] SASCA 53
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice Bleby)
22 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
Appeal against conviction.

Following a trial by jury, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA).
The grounds relate to the trial Judge’s treatment of the evidence of the appellant’s angry temperament (Grounds 1 to 3), and the evidence that the appellant sent an image of his penis to a woman (Grounds 4 and 5). The appellant also complains that his cross-examination by the prosecutor resulted in a miscarriage of justice (Ground 7).
Held, by S Doyle JA (Kourakis CJ and Bleby JA agreeing), granting permission to appeal, but dismissing the appeal:
1.The failure to give directions as to the evidence of the appellant’s angry temperament did not result in a miscarriage of justice because the evidence was not evidence of discreditable conduct pursuant to s 34P of the Evidence Act 1929 (SA).
2.The directions given to the jury in relation to the evidence that the appellant sent an image of his penis to a woman were adequate in that they sufficiently identified the permissible and impermissible uses of the evidence in compliance with s 34R of the Evidence Act 1929 (SA).
3.The cross-examination of the appellant did not give rise to any risk of the jury entertaining an inference of recent invention by reason of defence counsel failing to put matters to the prosecution witnesses, and did not result in a miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(2)(b), 34R, referred to.
Hofer v The Queen (2021) 274 CLR 351; Kane (a pseudonym) v The King [2024] SASCA 70; R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17; Sadler v The King [2023] SASCA 63; Sidhu (a pseudonym) v The King [2025] SASCA 26, considered.

BARNES (A PSEUDONYM) v THE KING
[2025] SASCA 53
Court of Appeal – Criminal: Kourakis CJ, S Doyle and Bleby JJA

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Doyle JA.
I wish only to add an observation on the meaning of discreditable conduct for the purposes of s 34P(1) of the Evidence Act 1929 (SA). The words are not defined and carry their ordinary meaning.…

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.

Continue reading Barnes (a pseudonym) v The King

Details

AGLC: Barnes (a pseudonym) v The King [2025] SASCA 53
Case: [2025] SASCA 53
Decision Date: 22 May 2025

CaseChat Overview and Summary

The appeal concerned the appellant, identified pseudonymously as Barnes, who was convicted of sexual offences against a child. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, S Doyle and Bleby JJ. The central dispute revolved around the trial judge's summing up to the jury, particularly concerning the admissibility and use of evidence relating to the appellant's temperament.

The legal issues before the Court were whether the trial judge erred in her directions to the jury regarding evidence of the appellant's temperament, and whether this failure constituted a miscarriage of justice. Specifically, the Court considered whether evidence of the appellant's angry temperament amounted to "discreditable conduct" under section 34P of the *Evidence Act 1929* (SA), and if so, whether the judge's failure to provide specific directions on its permissible use, as contemplated by section 34R of the *Evidence Act*, led to an impermissible "bad person" reasoning by the jury.

The Court reasoned that evidence of the appellant's temperament was relevant to the credibility of a complainant's evidence, particularly her perception of the appellant as an angry man. However, the Court distinguished this case from others where evidence of aggressive or manipulative behaviour was deemed "discreditable conduct" due to the context of abusing power. In the present case, the evidence of the appellant's angry temperament, while including one notable incident, was not of sufficient seriousness or accompanied by violent or inappropriate behaviour to create a substantial risk of the jury engaging in impermissible "bad person" reasoning without specific directions. Therefore, the Court concluded that the impugned evidence was not evidence of discreditable conduct for the purposes of the Act, and the trial judge's directions, while not expressly identifying the purpose of the evidence, did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In her summing up, the judge reminded the jury of the evidence of JMB, MM and JSMB referred to above. However, she did not expressly identify the purpose for which this evidence had been received. She did not give any directions as to its permissible or impermissible use, whether as contemplated by s 34R of the Evidence Act or otherwise.Not evidence of discreditable conduct The evidence of the appellant’s temperament was relevant. Given JMB’s evidence that she did not complain earlier because she was scared of the appellant, and perceived him to be an angry man, it was relevant to the general credibility and reliability of her evidence. Insofar as it came from witnesses other than JMB, the evidence did not expressly, or in terms, address instances of angry behaviour in JMB’s presence. However, the evidence that he regularly acted in such a way was nevertheless circumstantially supportive of JMB’s evidence as to her perception of the appellant. In considering the admissibility of this evidence, it is relevant to consider whether it was evidence of ‘discreditable conduct’ for the purposes of s 34P of the Evidence Act. In Sadler v The King,[1] I offered the following summary of the types of evidence contemplated by this label: The Evidence Act does not define ‘discreditable conduct’, although the terms of s 34P(1) make it clear that it is not confined to conduct which constitutes a criminal offence. Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible ‘bad person’ reasoning.[1] Sadler v The King [2023] SASCA 63 at [27]. Applying this passage in Sidhu (a pseudonym) v The King,[2] this Court recently held that evidence that the defendant had repeatedly acted in an angry, aggressive and manipulative manner was evidence of discreditable conduct. However, in so concluding, the Court emphasised that this behaviour involved the defendant spiritual leader abusing his power vis-à-vis one of his followers, and occurred in a context where the alleged sexual offending involved an abuse of that power. As the Court observed, evidence of a person acting in an angry way would not ordinarily be evidence of discreditable conduct.[3][2] Sidhu (a pseudonym) v The King [2025] SASCA 26 (Sidhu) at [30]-[53] (Livesey P and Bleby JA), [65] (S Doyle JA).[3] Sidhu at [46] (Livesey P and Bleby JA). There is no equivalent context in the present case. The impugned evidence was confined to general evidence to the effect that the appellant had an angry temperament. Whilst the evidence included an instance which involved a relatively dramatic reaction to an incident at a McDonald’s restaurant, it did not suggest that the defendant was prone to acting in a particularly extreme or dramatic manner. Nor did it involve any suggestion that the appellant’s anger was accompanied by any violent or other inappropriate behaviour. In the circumstances, the impugned evidence was not of behaviour of a sufficient level of seriousness to generate a risk that the jury would, without instruction, engage in ‘bad person’ reasoning. It was not evidence of discreditable conduct.No error or miscarriage

Decision

Reasons for decision

The appellant has not established any miscarriage of justice. Conclusion Permission having already been granted on Ground 7, I would grant permission to appeal on the balance of the grounds that were ultimately pressed (being Grounds 1 to 5). However, I would dismiss the appeal. BLEBY JA: I would dismiss the appeal for the reasons given by S Doyle JA.

Ratio Decidendi

Legal Principle Established

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