Donald (a pseudonym) v The King

[2024] SASCA 121

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DONALD (A PSEUDONYM) v THE KING

[2024] SASCA 121

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice McDonald and the Honourable Auxiliary Justice Hall)

17 October 2024

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE

CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY

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

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 - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

This is an appeal against conviction.

After a trial by judge alone, the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, JM, was the granddaughter of the appellant’s wife and was aged between eight and 13 years old at the time of the offence.

The appellant was acquitted of a second count of a similar nature in respect of JM’s sister.

JM was born on 31 August 2001.  During her childhood JM and her younger siblings would visit the appellant’s house with their mother and father.  The appellant had a shed at the back of his property where the children would go and play games.  JM would often be alone with the appellant in the shed.

When JM was aged 18 or 19 she spoke to her mother, JLM, about the abuse. The prosecution relied on this telephone conversation as evidence of an initial complaint.  The account of the conversation given by JM in her evidence differed from the account given by JLM.  The appellant relied on this, and other alleged inconsistencies, in support of the defence case that the trial Judge could not be satisfied beyond reasonable doubt of the credibility and reliability of JM regarding the sexual abuse; that evidence being critical to the prosecution case. 

The prosecution also relied on evidence of two uncharged acts which occurred when JM was between 17 and 19 years old.  The first uncharged act was a conversation in which the appellant told JM that he had received an inheritance and that if she continued doing what she was doing with him, he would give her half of that inheritance.  The second uncharged act was that the appellant sent JM a photograph of his penis and requested that she send him an intimate photograph of herself in return.

The appellant appeals on two grounds.

Ground 1 contends that a miscarriage of justice resulted from the trial Judge’s inadequate and…