Nelson (a pseudonym) v The King

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.