MSP v The Queen

The appeal concerned MSP, the appellant, and The Queen, the respondent, before the Full Court of the Supreme Court of South Australia. The dispute arose from the appellant's conviction for a sexual offence. The central issue on appeal was whether the trial judge had misdirected the jury regarding the admissibility and use of evidence relating to a complaint made by the complainant.

The legal issues before the Court were whether the trial judge had erred in her directions to the jury concerning the evidence of the complainant's complaint, specifically in relation to the application of section 34M of the *Evidence Act 1929* (SA). This section governs the admissibility and use of complaint evidence in sexual offence trials, abolishing the common law rule and providing specific directions that must be given to the jury. The Court was required to determine if the judge's directions adequately informed the jury of the limited purpose for which complaint evidence could be considered, and whether the evidence itself was properly characterised and presented.

The Court allowed the appeal, finding that the trial judge's directions regarding the complaint evidence were insufficient. The judge had referred to several instances of disclosure by the complainant, including to a half-sister, her mother, a social worker, and Families SA. While section 34M(3) permits evidence of an initial complaint and its elaboration, subsection (4) mandates specific directions to the jury. These directions must clarify that the evidence is admitted to inform how the allegation came to light and as evidence of the complainant's consistency of conduct, but not as evidence of the truth of the allegations. The Court concluded that the judge's directions did not adequately convey these limitations, potentially leading the jury to misuse the complaint evidence.

Consequently, the Full Court ordered a re-trial.