Nelson (a pseudonym) v The King

Case [2025] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

NELSON (A PSEUDONYM) v THE KING

[2025] SASCA 79

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)

17 July 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - RES GESTAE - STATEMENTS

Appeal against conviction.

Following a trial by judge alone, the appellant was convicted of two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of aggravated assault contrary to s 20(1) of the CLCA. The complainants were the appellant’s twin stepdaughters.

The appellant appealed his conviction on grounds alleging that the judge:

•erred in his use of the evidence of distress of the complainants (ground 1);

•failed to properly direct himself in relation to the evidence of the appellant’s good character (ground 4);

•failed to provide adequate reasons (ground 5);

•failed to properly direct himself in relation to the permissible and impermissible uses of the evidence of discreditable conduct (ground 6); and

•erred in his use of the similarities and dissimilarities in the complainants’ evidence (grounds 5.8 and 7).

Held, per the Court (Kourakis CJ, S Doyle and David JJA agreeing), dismissing grounds 4, 5, 6 and 7:

1.There was no error in the judge directing himself that the evidence of good character ‘may’ (as opposed to ‘does’) (i) make it more likely that the appellant committed the offences charged, and (ii) assist in assessing the appellant’s credibility.

2.The challenges to the judge’s reasoning, including in respect of the similarities and dissimilarities in the complainants’ accounts, have not been made out.

3.The judge gave himself the directions in relation to discreditable conduct required by s 34R of the Evidence Act 1929 (SA).

Held, per S Doyle and David JJA, upholding ground 1 and allowing the appeal:

4.The judge erred in using evidence of the complainants’ distress as circumstantially probative of the appellant’s guilt of the alleged offending.

5.As the evidence of the complainants’ distress was part and parcel of their initial complaints its only permissible use was for consistency or credibility, and not circumstantial proof of the alleged offending.

6.Alternatively, and in any event, because (i) the prosecutor did not contend for, or the judge otherwise foreshadow, this circumstantial use, and (ii) the judge used it without addressing the matters which might have explained or affected the weight of the evidence, there was a miscarriage of justice.

Held, per Kourakis CJ (dissenting), dismissing ground 1:

7.The evidence of the complainants’ distress was relevant and admissible for a circumstantial use.

8.It was not argued, and not a ground…

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Nelson (a pseudonym) v The King [2025] SASCA 79
Case
[2025] SASCA 79
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, identified pseudonymously as Nelson, for maintaining an unlawful sexual relationship with two children, MK and AK, between 2003 and 2009. The prosecution's case relied on the evidence of MK and AK detailing various acts of sexual misconduct. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, S Doyle, and David JJ.

The central legal issues before the court revolved around the admissibility and use of evidence relating to complaints made by the complainants, and the directions given by the trial judge concerning this evidence. Specifically, the court considered whether the trial judge had properly directed himself in accordance with section 34R(1) of the *Evidence Act 1929* (SA) regarding the use of such complaints, and whether the evidence of the complainants' distress, both at the time of making initial complaints and in relation to specific incidents, was correctly admitted and used for credibility and circumstantial purposes.

The court found that while the trial judge had largely complied with the requirements of section 34R(1), there were two immaterial respects in which the directions were not given. More significantly, the court determined that a miscarriage of justice had occurred. This conclusion was reached after considering the centrality of the complainants' credit to the proof of the alleged offending. The court was unable to satisfy itself that the charges had been proved beyond a reasonable doubt, particularly in light of the evidence of distress and the nature of the complaints made.

Consequently, the Full Court allowed the appeal, set aside the verdicts of guilty, and ordered a retrial. The court declined to apply the proviso to section 25(1) of the *Criminal Appeal Rules 1925* (SA), finding it inappropriate given the fundamental issues with the proof of the charges.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss ground 6. The Judge gave himself the directions required by s 34R(1) of the Evidence 1929 (SA), except in two immaterial respects.Summary of Evidence The prosecution case was that the appellant maintained an unlawful sexual relationship with MK and AK, between 2003 and 2009 when the girls were aged about 6 to 12 years old. MK and AK gave evidence of frequent unlawful sexual conduct including touching and sexual penetration. MK gave an account of a particular occasion which occurred just before friends of the appellant arrived for a poker night. The appellant was drunk and went upstairs to the master bedroom. When MK went upstairs to go to bed, the appellant confronted her aggressively and told her to undress. She escaped through the ensuite which opened on to a hallway. MK testified that she then went downstairs and told her mother, DS, about that incident. MK testified that DS brushed the accusation off but the next morning made MK apologise to the appellant for making the allegation. In her evidence, DS recalled MK coming down from her room on the occasion of the poker night. She appeared really distressed. According to DS, MK said that the accused had pushed her and held her down on the bed of her bedroom but no sexual offending was alleged. DS tried to calm MK down suggesting that the appellant had gone into the wrong bedroom because he was drunk. DS testified that she did not discuss the matter with the appellant. MK gave evidence that she first complained of the appellant’s sexual offending to her partner NS when she was 19 years old, approximately seven years after the sexual offending had ceased. MK and NS were drinking at a hotel when she sighted the appellant. Mk described the “appellant sitting in the shadows” seemingly looking at her. She was unsettled leading to her drinking too much. When MK became visibly upset she and NS left the hotel. MK’s evidence was that on their arrival home, NS asked her if the appellant had ever touched her, and she replied ‘yes’. She was crying at the time and vomited. In cross examination she testified that her nausea was not only caused by the alcohol she had drunk. MS’s testimony is inconsistent with the possibility that her distress was caused by her intoxication alone. MS testified that she gave NS a ‘brief overview’ of the appellant’s conduct but did not disclose that there had been penetration. MK testified that she later sent AK a text about the matter and that later again they both reported the appellant’s abuse to Bravehearts and then the police. The text was sent on 18 June 2019 and the report to Braveheart was made on 27 January 2021. MK’s chronology of those events was inconsistent in some respects with the dates of the text message and the report to Bravehearts. NS gave a similar account of the nature and circumstances of the complaint made to him on that night. However, he testified that MK only recounted details of the offending in a conversation several months later. In that subsequent conversation, MK told him about an occasion in the car coming back from the appellant’s shack and about his conduct on the poker night. She also confided that the appellant had ejaculated onto her. NS testified that MK told him that the appellant had used some ‘immature’ or ‘childish’ terminology when referring to his ejaculate. NS also testified that MK told him that there had not been any penetration. In her evidence, MK described penetration of the vulva only.

Decision

Reasons for decision

We conclude by noting that in addition to the evidence of the complainants’ distress in the context of their initial complaints to their respective boyfriends, there was also evidence of MK’s distress on another occasion. This related to an occasion referred to as ‘the poker night incident’, and mentioned by the Chief Justice in his reasons. MK’s mother gave evidence of observing MK in a distressed state immediately following that incident. Because of the immediacy of that observed distress to the alleged instance of offending, and the fact that no complaint or narrative from MK was required to establish the requisite causal connection, we see no difficulty with the judge’s reliance upon this evidence of distress for both a credibility use and circumstantial use. The evidence of this distress was similar to the evidence of distress in paragraph (a) of our hypothetical. In any event, as the judge’s use of this evidence has not been challenged on appeal, there is no need for us to address it further. Conclusion Having concluded that there was a miscarriage of justice, we observe that this is not an appropriate case in which to apply the proviso. Given the centrality of the complainants’ credit to proof of the alleged offending, this Court is not in a position to satisfy itself that the three charges were proved beyond a reasonable doubt. For these reasons, we would allow the appeal on ground 1, set aside the verdicts of guilty, and order that there be a retrial.

Ratio Decidendi

Legal Principle Established

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