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 53Court 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.…
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CaseChat Overview and Summary
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.
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