Castle (a pseudonym) v The King

Case [2025] SASCA 10

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CASTLE (A PSEUDONYM) v THE KING

[2025] SASCA 10

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson)

5 February 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

Following a trial without a jury, the appellant was convicted of two counts of unlawful sexual intercourse, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA).

The complainant is the appellant’s niece and god-daughter. At the time of the charged offending, she was 13 years of age.

The prosecution case was that on two separate occasions, in 2011, the appellant had sexual intercourse with the complainant by forcing her to perform an act of fellatio on him. The prosecution also alleged that the appellant sent the complainant messages containing photos of his penis via a Facebook Messenger account in 2013. ('the penis images').

The appellant advanced four grounds of appeal. The first three grounds of appeal relate to the trial Judge’s treatment of the evidence of the penis images and seeks to impugn the adequacy of the trial Judge’s reasons in that regard (ground 1); complains that there was an error of law by reason of a failure to comply with s 34R of the Evidence Act 1929 (SA) (ground 2); and contends that the trial Judge’s reasoning did not, in fact, support her ultimate conclusion (ground 3). The appellant also complains that the prosecutor's comments, that two prosecution witnesses had ‘nothing to gain’, and that the defence witness’s evidence was self-serving, resulted in a miscarriage of justice (ground 4).

HELD, by the Court, granting permission to appeal on grounds 1, 2 and 3, refusing permission to appeal on ground 4, allowing the appeal on ground 2 and ordering a re-trial:

In relation to grounds 1 and 3, the trial Judge provided adequate reasons as to the basis upon which she did not use the evidence of the penis images in the manner sought by the prosecution.

As to ground 2, the trial Judge’s factual finding that the appellant sent the complainant the penis images was a highly prejudicial finding. In the absence of a mandatory direction (pursuant to s 34R) as to the impermissible use of the evidence the Court cannot be satisfied that the trial Judge’s reasoning as to the credibility and reliability of the complainant’s evidence was not influenced by the evidence of discreditable conduct. It is not…

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Castle (a pseudonym) v The King [2025] SASCA 10
Case
[2025] SASCA 10
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by a defendant, identified pseudonymously as Castle, against a conviction in the District Court. The appeal raised issues regarding the admissibility and use of evidence of discreditable conduct during the trial.

The central legal issues before the appellate court were whether the trial judge had properly directed the jury concerning the use of evidence of the defendant's discreditable conduct, and whether any misdirection or non-direction amounted to a miscarriage of justice. Specifically, the court had to consider the application of sections 34P and 34R of the Evidence Act, which govern the admissibility and use of such evidence, particularly in relation to preventing the jury from using it to infer guilt based on the defendant's character ("bad person reasoning").

The appellate court reasoned that compliance with section 34R of the Evidence Act requires a trial judge to clearly identify and explain the permissible and impermissible uses of discreditable conduct evidence, ensuring the fact-finder understands these distinctions. The court found that the trial judge's directions in this instance were insufficient to prevent the jury from potentially using the evidence for an impermissible purpose. Consequently, the court concluded that there was a risk of a miscarriage of justice.

The court granted permission to appeal on grounds 1, 2, and 3, but refused permission on ground 4. The appeal was allowed on ground 2, and the matter was remitted to the District Court for a re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Sections 34P and 34R relevantly provide:34P—Evidence of discreditable conduct(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b)is inadmissible for that purpose (impermissible use); and(c)subject to subsection (2), is inadmissible for any other purpose.(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.…34R—Trial directions(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly. Where evidence of discreditable conduct is admitted, a trial judge is obliged pursuant to s 34R to give directions which ‘identify and explain’ the purpose for which the evidence may, and may not, be used. The permissible uses are those which satisfy the requirements of s 34P(2). The impermissible uses include the use identified in s 34P(1)(a) of the Evidence Act, namely that the evidence of discreditable conduct cannot be used to suggest that the defendant is more likely to have committed the charged offence because he or she has engaged in discreditable conduct often referred to as ‘bad person reasoning’. It is well established that a determination of whether there has been compliance with s 34R(1) requires a consideration of the issues and forensic contest in any given case.[2] As explained by Lovell J (as his Honour then was) in JGS v The Queen:[3]… Ultimately, when considering the adequacy of the directions given, the issue is whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.[2] Perara-Cathcart v The Queen (2017) 260 CLR 595 at 51-56 (Kiefel, Bell and Keane JJ); R v C, CA [2013] SASCFC 137 at [96]; JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Peek and Bampton JJ agreeing).[3] JGS v The Queen [2020] SASCFC 48 at [97].

Decision

Reasons for decision

In those circumstances, we are satisfied that the trial Judge has not been deflected by the prosecutor’s submissions about the witnesses’ independence or interest in the outcome of the proceedings from her task of deciding whether the prosecution had proved its case beyond reasonable doubt. There was no perceptible risk of a miscarriage of justice, and we refuse permission to appeal on this ground. Conclusion We grant permission to appeal on grounds 1, 2 and 3; refuse permission on ground 4; allow the appeal on ground 2; remit the matter to the District Court and order a re-trial.

Ratio Decidendi

Legal Principle Established

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