Sidhu (a pseudonym) v The King

Case [2025] SASCA 26

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SIDHU (A PSEUDONYM) v THE KING

[2025] SASCA 26

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)

20 March 2025

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - IMPROPER ADMISSION

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

Appeal against conviction.

The appellant was convicted of one count of indecent assault and one count of rape. The complainant and her husband were members of the Sikh community. On the prosecution case, the appellant was also a member of the Sikh community and held a privileged position in the complainant’s and her husband’s eyes. The prosecution alleged that on 30 July 2020, the appellant attended at the complainant’s house when she was home by herself. The appellant placed his hands on the complainant’s breasts. The appellant then pushed the complainant onto a bed and had sexual intercourse with her without her consent.

The issues arising on appeal included:

1.whether the judge erred in admitting evidence that the appellant was viewed as a ‘god’ or ‘saint’ or ‘God walking in human form’ in the Sikh community, including disputed instances where he was alleged to have abused his power (‘the status evidence’) (Ground 1);

2.whether the judge erred in failing to direct the jury pursuant to s 34R of the Evidence Act 1929 (SA) (‘Evidence Act’), or otherwise, about the status evidence (Ground 2);

3.whether the judge erred in his directions concerning the permissible and impermissible uses of evidence of the appellant’s good character (Ground 3).

Held (per Livesey P and Bleby JA, Doyle JA agreeing) allowing the appeal, setting aside the conviction and remitting the matter for retrial:

1.Having regard to the prosecution’s focus on the appellant’s abuse of power, the status evidence, including the evidence of instances of the appellant abusing his power, was relevant to the nature of the relationship between the appellant and the complainant. The judge did not err in admitting this evidence.

2.The status evidence was evidence of discreditable conduct. The judge erred in failing to direct the jury pursuant to s 34R of the Evidence Act in respect of this evidence.

Held (per Livesey P and Bleby JA):

3.The judge erred in directing the jury in respect of evidence of the appellant’s good character.

Held (per Doyle JA, dissenting):

4.The judge’s reference to the appellant's status and abuse of power did not detract from his directions as to good character such as to found an additional ground for this Court’s intervention.

Criminal Law Consolidation Act 1935 (SA) ss 48, 56; Evidence Act 1929 (SA) ss 34P, 34R; Criminal Procedure Act 1921 (SA) s 158(2), referred to.
JGS v The Queen [2020] SASCFC 48;

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Sidhu (a pseudonym) v The King [2025] SASCA 26
Case
[2025] SASCA 26
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CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Sidhu (a pseudonym), for an offence. The complainant alleged that the appellant, who held a position of spiritual leadership within the Sikh community, had abused his status to commit the offence. The prosecution case relied significantly on the complainant's credibility and the appellant's alleged misuse of his authority.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge's directions to the jury regarding the use of evidence, specifically concerning the appellant's status and alleged abuse of power, constituted a miscarriage of justice. The Court was required to determine if these directions, in their context and delivery, may have improperly influenced the jury's assessment of the evidence, particularly in relation to the complainant's credibility and the appellant's culpability.

The Court reasoned that the trial judge's directions, while initially following a standard model, ultimately detracted from and undermined the appropriate direction by relating the evidence directly to the prosecution's case that the appellant used his status to offend. This, the Court found, created a risk that the jury might perceive the direction as an encouragement to use evidence of the appellant's character or conduct adversely against him. Consequently, the Court concluded that this misdirection caused a miscarriage of justice. Applying the principles from cases such as *Boyle (A Pseudonym) v The Queen* and *Kalbasi v Western Australia*, the Court determined that given the reliance on the complainant's credibility and the nature of the error, it could not be satisfied that guilt had been proved beyond reasonable doubt, thus precluding the application of the proviso.

The appeal was allowed, the conviction was set aside, and the matter was remitted for retrial.

Orders

Orders of the court

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Background

Background to the litigation

The appellant abandoned Ground 5 just prior to the appeal hearing. It is not necessary to address every ground. For the reasons that follow, the appeal must be allowed, the conviction set aside, and the matter remitted for retrial. Background The complainant and her husband were both members of the Sikh community in Adelaide. The complainant’s evidence was that she first met the appellant in 2018 through her involvement in the Sikh community in Alice Springs. She was born into the Sikh faith. Her husband, formerly Hindu, converted to the Sikh faith. The complainant gave evidence that she and her husband moved to Adelaide in 2019, at least partly for their spiritual welfare and the welfare of their children. The complainant and her husband had discussions with the appellant about moving to Adelaide. These discussions also influenced their decision. The complainant gave evidence that she continued to be influenced by the appellant after moving to Adelaide, given his role in prayers and other religious activity. The appellant owned a property at Waterloo Corner, northwest of Adelaide. When the complainant and her husband moved to Adelaide, they rented a room at the property. The appellant visited the complex often and stayed overnight about once a week. Other members of the Sikh community also lived at the property. Sikh prayers, singing and other religious activity took place at the complex. The complainant and her husband did not have jobs when they arrived in Adelaide but they both worked at the property, cooking and doing maintenance work. In May 2020, the complainant and her husband moved to a house in Parafield Gardens. The appellant’s status within the Sikh community and what was alleged to be his abuse of this status, assumed significance on the prosecution case. The complainant and her husband gave evidence that the appellant was a spiritual leader in the community. The complainant described him as a ‘kind of a priest of the community, he is the leader, spiritual leader of the group’. The complainant explained that her husband told her that the appellant was a ‘god walking in human form’. She also gave evidence that the appellant referred to himself as a leader of the Sikh people. The complainant gave evidence that she observed the appellant to be ‘very angry at people, authoritative, bossy and also using swearing language’. She thought he was ‘angry and unpredictable’ and had a bad influence on her husband’s behaviour. Six months prior to the offending, the complainant became pregnant to her husband. This displeased the appellant. The complainant gave evidence that the appellant had on one occasion reacted angrily to her, in relation to her inability to work. When she ‘strictly’ repeated her doctor’s advice in connection with her pregnancy, he stopped. After the complainant and her husband moved to Parafield Gardens, the appellant visited the complainant at her family home. He occasionally went for walks with her, alone. The complainant’s husband was aware of these occasions. On these walks, the appellant often gave the complainant spiritual advice. On one occasion, this related to dreams she said she had in which they had been married and had hugged.

Evidence

Evidence Before The Court

The complainant gave evidence of two telephone calls she had with the appellant in the weeks following the offending. She said she confronted the appellant about what had happened and how it made her feel. She said the appellant apologised to her in vague terms and said it would be beneficial for her spiritual journey. The second of those conversations occurred on 15 August 2020, shortly after the complainant’s husband returned from work.The evidence of initial complaint The complainant gave evidence that, on the evening of 15 August, she spoke with her husband about the appellant and became upset. She explained the background to the appellant’s visit but could not tell her husband everything. The following day, she spoke with her husband further and told him that the appellant had forced her to have intercourse without her consent. She used the Punjabi word ‘zabardasti’ which meant, in that context, that the appellant had forcefully dishonoured her in a sexual way. Earlier in giving evidence, the complainant had said that the appellant’s status had impacted on her willingness to speak to her husband about the appellant. The complainant’s husband, BS, gave evidence that was broadly consistent with that of the complainant. He gave evidence of the initial complaint made to him by the complainant on 15 and 16 August 2020. He said that the complainant had become angry with him on the evening of 15 August. The complainant made reference to the spiritual guidance of the appellant as causing BS to scold their children. When BS asked why the complainant was being disrespectful towards the appellant, the complainant said she was going through a severe mental stress and would commit suicide. She started crying and said that she could not talk in front of the children. BS said that the complainant had a shower for about 40 minutes and came out of the bathroom still crying. After the children had gone to bed, she reminded BS of the doubts she had previously expressed about the appellant. She told him that the appellant had come to their home on a previous Friday when she was home alone. She told him that when the appellant had come for a cup of tea, he held her hand and told her that they had a love affair in a past life. She recounted that she told the appellant that it was a sin but that the appellant had insisted and took her to the bedroom physically, forcibly. The complainant used the word ‘zabardasti’[1] which BS said meant ‘forcefully took her’. BS clarified that on 15 August, the complainant had only told him that the appellant had come to the house, held her hand, and taken her into the bedroom. The following day, she had told him the appellant had ‘forcefully taken’ her. [1] Transcribed in this instance as ‘jabardasti’.The trial The central issue at the trial was whether the alleged acts occurred. The defence case was that the complainant could not be accepted as a credible or reliable witness as her account was undermined by inconsistencies, omissions, exaggerated expressions and conduct which was inconsistent with her account.

Decision

Reasons for decision

The first two paragraphs of the judge’s directions are unremarkable. As the respondent submitted, they followed the model direction in the Criminal Trials Bench Book. However, the judge then related this evidence directly to the prosecution case that the appellant used his status to offend by abusing his power. This not only detracted from the (appropriate) direction but also undermined it. In context of its delivery, there was a risk that this direction would be seen by the jury as an encouragement as to how to use the good character evidence, that is, adversely to the appellant. In our view, this direction caused a miscarriage of justice. We would grant leave to appeal on this ground and, subject to application of the proviso, allow the appeal on this ground also.Conclusion It is not necessary to address the other grounds of appeal. Our conclusions on Grounds 2 and 3 require the appeal to be allowed unless the Court is satisfied that no substantial miscarriage of justice has actually occurred.[12] In Boyle (a Pseudonym) v The Queen, this Court said:[13]The significance of the advantages of a trial court in finding facts in cases turning on an assessment of the credibility and reliability of witness evidence are well understood in applying the proviso. Decisions relating to the proviso recognise that, in cases which turn on issues of contested credibility and where the error or irregularity precludes the appellate court from giving any significant weight to the jury’s verdict, the appellate court cannot be satisfied that guilt has been proved regardless of the apparent strength of the prosecution case. That is, the natural limitations of proceeding on the record may preclude a conclusion that guilt was proved beyond reasonable doubt.[14] In Kalbasi v Western Australia,[15] Kiefel CJ, Bell, Keane and Gordon JJ noted that in “cases which turn on issues of contested credibility”, an appellate court may be prevented “from being able to assess whether guilt was proved to the criminal standard”.[16](Footnotes in original)[12] Criminal Procedure Act 1921 (SA) s 158(2).[13] Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [145].[14] Castle v The Queen (2016) 259 CLR 449 at [68]; Collins v The Queen (2018) 265 CLR 178 at [36]‑[37]; GBF v The Queen (2020) 271 CLR 537.[15] Kalbasi v Western Australia (2018) 264 CLR 62.[16] Kalbasi v Western Australia (2018) 264 CLR 62 at [15]. The prosecution case relied heavily on the credibility of the complainant. This Court cannot assess whether guilt was proved notwithstanding the established miscarriages of justice. We allow the appeal, set aside the conviction and order that the matter be remitted for retrial. S DOYLE JA: I agree with Livesey P and Bleby JA that the appeal should be allowed on Ground 2. I agree with their reasons for concluding that the trial judge erred in failing to give directions as to the permissible and impermissible use of the evidence of discreditable conduct under s 34R of the Evidence Act. In a case where the prosecution case relied upon evidence of not merely the appellant’s status as a spiritual leader or advisor but also his abuse of that status, those directions were required. I also agree with their Honours’ reasons for declining to apply the proviso.

Ratio Decidendi

Legal Principle Established

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