BALDWIN (A PSEUDONYM) v THE KING [2026] SASCA 68

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR AUXILIARY JUDGE BARRETT) [2025] SADC 104 Applicant: BALDWIN (A PSEUDONYM) Counsel: MR J WILSON - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MS S AGNEW AND MS A BITMEAD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/06/2026 File No/s: SCCRM-25-034906 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BALDWIN (A PSEUDONYM) v THE KING [2026] SASCA 68 Judgment of the Court of Appeal (ex tempore) (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle) 18 June 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL GRANTED CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY Application for permission to appeal against findings that the objective elements of three offences are established against the defendant. The applicant was found unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). He elected to be tried by judge alone on the objective elements of two offences of maintaining an unlawful sexual relationship contrary to s 50(1) of the CLCA, and one offence of rape, contrary to s 48(1) of the CLCA. The complainants were the applicant’s stepdaughters. The prosecution case was that the applicant sexually abused the complainant HT between January 1981 and February 1986, when HT was aged between 11 and 16, and that the applicant raped HT in the back of his car when she was 18. The prosecution further alleged that the applicant had sexually abused the complainant AD between January 1981 and September 1989, when AD was aged between eight and 17. -- 1 of 6 -- AD gave evidence at trial of an occasion at nighttime when she overheard a conversation between the applicant and her mother during which the applicant expressed his concern about having sexualised dreams about the complaints (‘the dream evidence’). The appeal raises the following issues. • whether the trial judge’s reliance on the dream evidence in circumstances where he had indicated that he would not rely on that evidence occasioned a miscarriage of justice (Ground 3); and • whether the dream evidence was admissible (Ground 3.1). Held (by the Court), granting permission to appeal and allowing the appeal on Grounds 3 and 3.1, and remitting the matter for retrial in accordance with s 269M B of the CLCA: 1. The judge gave weight to the dream evidence after indicating that he would not rely on it. This occasioned a miscarriage of justice. There was a realistic possibility that the judge’s assessment of credit and the verdict may have been impacted had the applicant been given the opportunity to make submissions on the dream evidence. 2. The non-propensity use articulated by the prosecution at trial, that the dream evidence explained the surrounding circumstances so as to make the offending less improbable, incorporated a propensity use, being to show that the applicant had a sexual interest in one or both of the complainants. 3. The probative value contended for on appeal, as evidence of a conversation indicating the applicant’s level of concern about his dreams, relied on the same propensity use. 4. The dream evidence, as an admission of a subconscious thought process, was highly prejudicial. Any probative value was clearly outweighed by the prejudicial effect of the evidence. The dream evidence was not admissible. Criminal Law Consolidation Act 1935 (SA) ss 48(1), 50(1), 269H, 269M B, 269Y(3), 269Y(4)(c); Evidence Act 1929 (SA) s 34P(2)(b), referred to. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; MDM v The Queen (2020) 136 SASR 360; Stead v State Government Insurance Commission (1986) 161 CLR 141; R v Garner (2021) 140 SASR 454, considered. -- 2 of 6 -- BALDWIN (A PSEUDONYM) v THE KING [2026] SASCA 68 Court of Appeal – Criminal: S Doyle, Bleby and B Doyle JJA 1 THE COURT (ex tempore): This is an application for permission to appeal against findings that the applicant had committed the objective elements of two offences of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and one offence of rape, contrary to s 48(1) of the CLCA.1 The applicant was found unfit to stand trial pursuant to s 269H of the CLCA. He elected to be tried by judge alone on the objective elements of the offence. The application for permission to appeal is brought pursuant to ss 269Y(3) and (4)(c) of the CLCA. 2 The Notice of Appeal raises three grounds of appeal. The Director has conceded that there has been a miscarriage of justice as identified in Ground 3, in that the judge relied on certain evidence (‘the dream evidence’) in circumstances where he had indicated that he would not do so. The Director also concedes that the error was material and that it would be inappropriate to rely on the proviso. 3 The concession was properly made. In the circumstances, and for the brief reasons that follow, it is not necessary to address Grounds 1 and 2. The decision that the objective elements of the three offences are established must be set aside and remitted to the District Court for retrial. 4 It is sufficient, for these purposes, to identify the error and the basis for the concession. However, the applicant has also sought permission to appeal on a further ground, proposed Ground 3.1, challenging the admissibility of the dream evidence. It is necessary to address that challenge also. Background 5 The complainants were the applicant’s stepdaughters. The prosecution case was that the applicant had sexually abused the complainant HT between January 1981 and February 1986, when HT was aged between 11 and 16 (Count 1), and that the applicant raped HT in the back of his car when she was 18 and had returned to Adelaide to visit family (Count 2). The prosecution further alleged that the applicant had sexually abused the complainant AD between January 1981 and September 1989, when AD was aged between eight and 17. Failure of natural justice: the dream evidence (Ground 3) 6 AD gave evidence of an occasion at nighttime when she, HT, their mother and the applicant went to the greyhound track at Regency Park. The complainants and their mother went to bingo there. It was getting late, so the complainants went to the car. They had sausages and were putting them in their mouths to look like penises. The applicant came to the car, saw what they were doing, and yelled at 1 [2025] SADC 104. -- 3 of 6 -- [2026] SASCA 68 The Court 2 them. They all went home. AD then gave the following evidence (the dream evidence): So I was in my room, which is the [AD] and [HT] room, and I heard him say to my mum that ‘I’m having dreams about the girls’, and my mum said to him ‘That’s okay’. And he said ‘No, inappropriate ones’, and she replied with ‘That’s okay, we’ll speak to the captain of the local Salvation Army and get you some help’… 7 Following AD’s evidence, the prosecutor raised this evidence with the trial judge, indicating that on reflection he did not ask that the judge use that evidence for any purpose, and that he did not rely on it in any way. The judge indicated that he had come to the same conclusion and that he would put it out of his mind. 8 Neither counsel referred to the dream evidence in addresses. 9 The judge did, however, set out the effect of the dream evidence in his reasons for verdict.2 He then said:3 In my view, that is a credible account by AD. It is unusual and nuanced. It is capable of demonstrating that the accused had a sexual interest in both girls. It might also demonstrate a degree of complicity by the mother. However, I give it only slight weight. Even if it demonstrates a sexual interest in the girls, it does not demonstrate a tendency to act upon that interest. In any event, the utterance by the accused is capable of alternative interpretations. 10 The Director conceded that this passage demonstrated that the judge gave weight to evidence that he had indicated he would not rely on, thereby denying the applicant an opportunity to make submissions on that evidence. The judge used the evidence to support the credibility and reliability of both complainants. The Director accepted that there was a realistic possibility that if the applicant had made submissions on the topic, it could have impacted on the judge’s assessment of the complainants’ credit and the verdict. 11 As already indicated, the concession was appropriately made. Where there is a denial of procedural fairness by failing to put a party on notice of a fact or issue, the court may readily infer that if the party had been put on notice, they may have addressed it by way of evidence or submissions, and the decision-maker would have approached these with an open mind.4 12 The error was material. This was not a case for application of the proviso. We grant permission to appeal and allow the appeal on this ground. 2 [2025] SADC 104 at [214]. 3 [2025] SADC 104 at [215]. 4 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). See also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145–146 (Mason, Wilson, Brennan, Deane and Dawson JJ); MDM v The Queen (2020) 136 SASR 360 at [2] (Kourakis CJ), [99] (Peek J). -- 4 of 6 -- [2026] SASCA 68 The Court 3 The admissibility of the dream evidence (Ground 3.1) 13 The defence at trial objected to admission of the dream evidence. The prosecution at trial sought to justify its admission on the following basis: The use we seek to make of this evidence is a non-propensity use and it’s to explain the surrounding circumstances where evidence of the offence might otherwise present as inexplicable or improbable, and that’s because of the parental relationship. That kind of relationship makes the commission of the offences relatively improbable. However, this evidence that we say, on the prosecution case, is sexualised dreams, goes to rebutting that inference. 14 Defence counsel objected to admission of the dream evidence on the basis that to use a person’s articulation of their dreams in a subconscious state as probative of their sexual desires sets ‘a potentially dangerous precedent’. He submitted (contrary to the prosecution submission) that the prosecution was attempting to deploy the evidence for a propensity use that attracted the higher requirement in s 34P(2)(b) of the Evidence Act 1929 (SA) of having ‘strong probative value’. That use was as evidence that the applicant had a sexual interest in one or both of the complainants. 15 The judge admitted the dream evidence (describing it as the evidence of the overheard conversation). He indicated that he would deliver his reasons in his judgment. However, his reasons in respect of this evidence were limited to the passages recounted earlier. 16 On the appeal, the respondent submitted that it was not the evidence of the dreams themselves that was relied on but the conversation the applicant had about the dreams. The conversation showed that he was concerned about the dreams to the point that he required assistance in relation to them. The respondent’s written submissions do not articulate clearly the relevance, that is, the probative value, of the applicant’s concern about his dreams.5 17 At trial, the prosecution described the relevance of the evidence as explaining the surrounding circumstances that made the offending less improbable. However, the prosecution was clear that the evidence that had this probative value was the evidence of the sexualised dreams. The prosecution did not draw the distinction now made, that it was the evidence of the conversation, and not the dreams themselves. This, the respondent submitted, was relevant to whether the charged offending occurred. 18 The non-propensity use articulated by the prosecution at trial was to explain the ‘surrounding circumstances’ that answered the improbability of a person in engaging in sexual abuse of a child in their parental care. We have some trouble in understanding this as a standalone use that does not incorporate the propensity use that we have already articulated. 5 R v Garner (2021) 140 SASR 454 at [24] (Kelly P, Lovell and Bleby JJA). -- 5 of 6 -- [2026] SASCA 68 The Court 4 19 In any event, as an admission of a subconscious thought process, in respect of which there was (understandably) no expert interpretive evidence, the dream evidence was highly prejudicial. In our view, the probative value articulated at trial, insofar as we are able to understand it, was in any event outweighed by the prejudicial effect of the evidence. 20 That leaves the probative value now contended for on the appeal, that is, the probative value of the evidence of a conversation as indicating the applicant’s level of concern about his dreams. For the reasons already indicated, we have some difficulty understanding the forensic relevance of the applicant’s expression of concern that he was having sexualised dreams to the probability of him having committed the charged acts. As we understand the submission, and as counsel for the respondent confirmed in the course of oral submissions on the appeal, this amounted to a conscious admission by the applicant of having an inappropriate sexual desire, thus engaging s 34P(2)(b) of the Evidence Act. 21 For the reasons we have already given, any probative value that the respondent has identified is clearly outweighed by the prejudicial effect of the evidence which, in the final analysis, relies on an admission by the applicant of a subconscious thought process. 22 In our view, the dream evidence was inadmissible. While this ground is not strictly necessary to decide in order to dispose of the appeal, in circumstances where the prosecution has defended its admissibility, it appears necessary to state the conclusion. We would allow the appeal on Ground 3.1. Conclusion 23 We grant permission to appeal and allow the appeal. We set aside the trial judge’s verdicts on the objective elements of the offences and remit the matter for retrial in accordance with s 269M B of the CLCA. -- 6 of 6 --