SIDHU (A PSEUDONYM) v THE KING [2025] SASCA 26

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-21-650 Appellant: SIDHU (A PSEUDONYM) Counsel: MR R WILLIAMS SC WITH MR N GRIFFIN - Solicitor: CALDICOTT + ISSACS LAWYERS Respondent: THE KING Counsel: MR W SCOBIE WITH MR R GULLIVER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/12/2024 File No/s: SCCRM-24-013527 A 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. 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); -- 1 of 18 -- 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; R v Nieterink (1999) 76 SASR 56; Sadler v The King [2023] SASCA 63; R v Trimboli (1979) 21 SASR 577; Boyle (a Pseudonym) v The Queen (2022) 299 A Crim R 92; Castle v The Queen (2016) 259 CLR 449; Collins v The Queen (2018) 265 CLR 178; GBF v The Queen (2020) 271 CLR 537; Kalbasi v Western Australia (2018) 264 CLR 62, considered. -- 2 of 18 -- SIDHU (A PSEUDONYM) v THE KING [2025] SASCA 26 Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA 1 LIVESEY P and BLEBY JA: On 26 March 2024, a jury unanimously found the appellant guilty of one count of indecent assault (Count 1) and one count of rape (Count 2) contrary to ss 56 and 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The prosecution case was that on 30 July 2020, the appellant attended the complainant’s house when she was home by herself. The appellant placed his hands on the complainant’s breasts. This was the subject of Count 1. The appellant then pushed the complainant onto a bed and had sexual intercourse with her without her consent. This was the subject of Count 2. The issues arising on appeal are, broadly: • 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); • 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); • whether the judge erred in his directions concerning the permissible and impermissible uses of evidence of the appellant’s good character (Ground 3); • whether the judge erred in admitting evidence that impermissibly bolstered the complaint’s evidence (Ground 4); • whether a miscarriage of justice was occasioned by the judge’s failure to adequately direct the jury as to the use of this bolstering evidence (Ground 6); • whether a miscarriage of justice was occasioned by the judge’s endorsement of the respondent’s invitation to the jury to use particular aspects of the complainant’s evidence (Ground 7); • whether the judge erred in directing the jury that there was an ‘absence of any motive to lie’ (Ground 8); • whether the judge erred in his directions relating to prior inconsistencies (Ground 9); and • whether the judge erred in his directions on the topic of initial complaint (Ground 10). -- 3 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 2 2 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 3 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. 4 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. 5 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. 6 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. 7 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. -- 4 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 3 8 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. 9 On the prosecution case, the appellant held a privileged position in the eyes of the complainant and her husband. The complainant held a view that some of the appellant’s behaviours, including his use of profanities, were inconsistent with that status. In this context, on the prosecution case, the offending was an instance of the appellant abusing his high status. The charged acts 10 The prosecution case was that both charged acts occurred on 30 July 2020, when the appellant visited the complainant’s home at Parafield Gardens in the afternoon. The appellant had invited himself to the house while the complainant was alone. He telephoned ahead, 15 to 30 minutes prior to his arrival. The complainant rushed to prepare snacks for him. She did not tell her husband she was being visited by the appellant, though she was in contact with her husband. 11 Once the appellant arrived, they sat on the lounge. The appellant held the complainant’s hand. She told him this was not right. The appellant then told her that they needed to fulfill a relationship from a past life. The complainant alleged the appellant then took her hand and led her toward the bedroom. The appellant, facing the complainant, began to hug her and rub her back. The appellant then placed both of his hands on the complainant’s breasts, underneath her bra. This was the subject of Count 1. 12 The complainant said that she then sat on the bed while the appellant went to the bathroom. When he returned from the bathroom, he pushed her onto the bed on her back. He rolled her onto her side. The appellant pulled the complainant’s pants and underwear down, before inserting his penis into her vagina, from behind. The complainant gave evidence that she screamed for him to stop, but he did not. This was the subject of Count 2. The appellant then told her, ‘Everything happens for a reason’ and that they knew each other from a ‘past life’. Subsequent events 13 The complainant said that following the offending she had to collect her daughter from school. She did not drive, so had to order a taxi. She accepted in cross examination that the first person she called to arrange for her daughter to be collected and brought back to the house was the appellant. She gave evidence that after the appellant left her bedroom, he said that he would call her husband to check whether he could pick their daughter up. The complainant’s husband gave evidence that he did receive a telephone call from the appellant. As the appellant -- 5 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 4 was not an approved person who could collect the complainant’s daughter from school, the complainant called a taxi. 14 While waiting for the taxi, the complainant had a brief interaction with a former resident of the complainant’s house, who had attended to see if any mail had been left. The former resident drove the appellant to collect her daughter. The complainant cancelled the taxi on the way. 15 The former resident gave evidence that the complainant looked ‘anxious’, ‘wasn’t smiling’ and she had an ‘intuition … that … she’s a bit upset’. The complainant was pacing up and down and spoke about being late to pick up her child. The prosecution relied on this evidence as indicative of the complainant’s distress. The complainant gave evidence that she was worried because she was running late to collect her daughter from school by that time and she was trying to stay composed. 16 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 17 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. 18 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. 19 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 -- 6 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 5 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. The trial 20 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. 21 The complainant was cross-examined about several suggested omissions and inconsistencies in her evidence. The appellant’s counsel put emphasis on what was contended to be implausibility in the physical description of the offending by the complainant. The complainant provided explanations for aspects of her evidence that were said to be inconsistent, including that speaking about the offending was traumatic and that she was ‘in a bad state of mind’. She apologised for not being able to recount precisely the series of events and explained this was the result of the traumatic events on her state of mind and wellbeing. She reiterated in cross-examination that she was giving evidence to the best of her memory. In the context of suggestions that aspects of her evidence were not true, the complainant said the event was ‘the most traumatic time of my life’ and something she could not forget. 22 The appellant called three witnesses who all denied that the appellant had any particular leadership status within the Sikh community. The witnesses acknowledged that the appellant was well respected by members of that community. The appeal Admission of and directions with respect to the ‘status evidence’ (Grounds 1 and 2) 23 Ground 1 complains that the judge erred in admitting evidence that the appellant was viewed as a ‘god’ or ‘saint’ or ‘God walking in human form’ within in the community to which he, the complainant and her husband belonged. This evidence included instances where the appellant was alleged to have abused the power that he held by virtue of his high status, which was disputed. Ground 2 complains that this evidence constituted discreditable conduct evidence, and that 1 Transcribed in this instance as ‘jabardasti’. -- 7 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 6 the judge was required to give a direction under s 34R of the Evidence Act but did not do so. 24 Sections 34P and 34R of the Evidence Act provide, relevantly: 34P—Evidence of discreditable conduct (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial. … 34R—Trial directions (1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used. … 25 The asserted relevance of the ‘status’ evidence was to establish the power imbalance that existed between the appellant and the complainant. The appellant had objected to this evidence on the basis that even if he was a leader in the community, which he disputed, the evidence risked inviting impermissible reasoning. This was that he was a person more likely to have committed sexual offences because of a sense of omnipotence or entitlement and a belief that he could act with impunity. 26 It is helpful to set out exactly how the defence articulated the objection at trial. The prosecution had agreed not to lead evidence that described the appellant as the leader of a cult. Defence counsel explained: -- 8 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 7 So it’s not that we’re going to challenge that he didn’t hold a position in the community as in being a senior and respected person. We take issue with obviously the cult which is not being led. But what flows from that is the saint and God. They are prejudicial and they would – there’s an inference, a dangerous inference that flows from that, that because he’s been described as a God and a saint, in essence he's – can act with impunity. That in itself would be somehow supportive of the complaint. It is unnecessary to say that he’s a saint or a God in that respect because apart from the fact that he is a senior figure within the community, what goes beyond that is prejudicial. 27 Defence counsel went on to make it clear that the asserted prejudice arose from the characterisation of the appellant as a saint or a god, in that this characterisation was sufficient to impute bad character. 28 The trial judge ruled in the following terms: The accused says that the connotation of that evidence and descriptions in contemporary times is a negative one and prejudicial to the accused as the jury may reason a person described as such may be more likely to commit this alleged offending of indecent assault and rape. The accused accepts evidence of his community leadership relevant to the Sikh community is relevant and admissible. The evidence of reference to the accused as a saint or God goes to the reverence in which he was held by the complainant and her family, whether there was a power imbalance and to explain any delay in the complainant’s initial complaint two weeks after this alleged offending to her husband. I am not satisfied that the negative connotation contended arises. The context of the evidence is the accused’s alleged leadership of a Sikh temple and the spiritual status that he holds as a consequence and particularly with the complainant, her husband and her family. I refuse that application to exclude. I will hear the parties later in this trial as to whether that description is evidence of discreditable conduct although my preliminary view is it is not or whether any particular direction is appropriate in respect of that evidence. 29 The prosecution opened by saying to the jury that ‘this trial is about power and its abuse’. The prosecution case was pitched squarely on the premise that: … the accused abused his influential role as a spiritual leader by pursuing his own sexual needs at any cost. 30 As counsel acknowledged on the appeal, the objection was directed to the evidence of the appellant’s status, not any particular action he had engaged in consequent upon that status. However, on the appeal, the appellant extended the complaint to evidence of instances of the appellant being manipulative and abusing that status. That evidence of the complainant, as summarised by the appellant on appeal, was: a. That he would first be “influential”, but once she began living at the Waterloo Corner complex, she found him “very angry at people, authoritative, bossy.” -- 9 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 8 b. That he objected to her pregnancy and ridiculed her and her husband for having another baby when their accommodation status was precarious; c. That he yelled and growl[ed] at the complainant, ordering her to perform tasks while pregnant which were strictly forbidden by the complainant’s doctor and which were, in her mind, tantamount to a direction to ‘kill the baby’; d. That he was “angry”, “aggressive” and “swearing” in a way that caused her to remark that the conduct “doesn’t match the character [of a spiritual leader]”; e. That he was “unpredictable”; “angry and then inspiring”; f. That he would act in a threatening manner and expected the complainant to be submissive; g. That he would preach that women are to serve; h. That he was a bad influence on her own husband’s attitude and behaviours, including toward women. 31 Counsel submitted on the appeal that the significance of this evidence and the dangers of its misuse were required to be assessed in light of the whole prosecution case. That is, the offending was a further example of the appellant abusing his spiritual status. In this context, the body of evidence tending to suggest that the appellant was a manipulative man who abused his status was, the appellant submitted, discreditable conduct within the meaning of s 34P of the Evidence Act. 32 That this was discreditable conduct evidence was reinforced, in the appellant’s submission, by the prosecution’s closing address on the topic: In my submission the accused’s swearing, yelling and aggressive behaviour at Waterloo, which [the complainant] described, was part and parcel of the power which he held over his religious organisation and the local Sikh community. And an example of that was when he admonished [the complainant] for being pregnant and being unable to work to his satisfaction. So [you] might think that the accused was able to use position and engaged in such behaviour to control and influence other members of the Sikh community. … You might think that the accused’s conduct and his role as a spiritual leader and his generally positive reputation … allowed him to pursue his sexual interest in [the complainant], and that this is plausible in these circumstances in the dynamic that existed between her, her husband and the accused. And that’s despite [the complainant] being married … and her pregnancy at the time. 33 At the hearing of the appeal, counsel placed considerable weight on the evidence that he submitted comprised instances of the appellant abusing his status, rather than the evidence of status itself. Those examples of misuse of his position allowed the jury to reason, unless they were warned against doing so, that he was a manipulative man who was more likely to force himself on someone under the guise of, or being emboldened by, his status. 34 In this regard, counsel accepted that evidence that the appellant was held in reverence, or even held a god-like status, would not be objectionable without more. -- 10 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 9 That did, however, appear to be the focus of the objection to the evidence at trial. In that regard, it is relevant to note the observations of the Court of Criminal Appeal in JGS v The Queen2 about evidence that the appellant in that case was at the ‘apex’ of a closed group and held a status by which his thoughts were regarded as ‘pure and trusted’. Women in the group were instructed about being a ‘good female’ by reference to how they should dress and behave round men, that is, deferentially.3 The Court said with respect to the application of s 34P to this evidence:4 It is not necessary for evidence to disclose the alleged commission of an offence before s 34P is engaged. However, the evidence of the different, and what one might call unusual, nature of the Group did not mean it was evidence of discreditable conduct. It was, simply put, a different and unusual lifestyle. Leaving aside the allegations in this matter it was not suggested that the Group, or any member of the Group, acted unlawfully. The Group had existed for many years prior to this alleged offending and indeed conducted projects in various states. The Trial Judge made findings as to the structure and lifestyle of the Group but did not suggest, nor does a fair reading of his reasons suggest, that the lifestyle and structure of the Group, was in itself, discreditable. It is correct to observe that the Trial Judge placed importance on the structure of the Group and the appellant’s role as being at the “apex” of the Group. Evidence that the appellant travelled “first class” when travelling overseas and that his children attended private schools (paid for by the pooling of funds) does not, of itself, demonstrate discreditable conduct. Such conduct was not hidden from the other members of the Group and, by inference at least, they must have accepted it. It was relevant to the question of where the appellant “ranked” within the Group demonstrated by the fact that he appeared to have privileges others did not. The significance of the evidence, however, as the Trial Judge observed, was that the structure and lifestyle of the Group enabled the appellant to manipulate the complainant as she alleged. The evidence was clearly admissible, as the prosecutor stated in opening, to place in context the complainant’s evidence and to establish, if accepted, a reason for how the appellant could have a young girl attend his bedroom without raising concerns by the complainant’s parents or other members of the Group. 35 In the present case, by contrast, the appellant emphasised (on appeal at least) that the evidence focused on the character and tendencies of the appellant to abuse and manipulate his position vis-à-vis the appellant as circumstantial support for the charged conduct. He submitted that this was not a case where the evidence was capable of showing the relationship between the appellant and the complainant or the context in which the offending occurred. 36 In R v Nieterink,5 Doyle CJ said of the admissibility of evidence of uncharged criminal conduct: In most of these cases, the evidence of uncharged acts is evidence of acts from which the jury might reason that the accused has a propensity to commit the crime with which the accused is charged, or is likely to commit such a crime. On the other hand, the evidence has not been admitted on that basis. In particular, it has not been admitted on the basis that 2 [2020] SASCFC 48. 3 JGS v The Queen [2020] SASCFC 48 at [19]-[21]. 4 JGS v The Queen [2020] SASCFC 48 at [101]-[102]. 5 (1999) 76 SASR 56. -- 11 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 10 it is evidence which discloses a particular mode or manner of committing a crime, from which mode or manner one could infer that the crime in question was committed. Nor was it evidence of the type admitted in some cases, where the evidence is of uncharged acts relating to the person who is not the victim of the crime charged, and making it less likely that the victim of the crime charged has fabricated his or her evidence. The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better understanding what would otherwise appear to be surprising or unlikely conduct by the victim, in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian. In some of the cases the evidence has been evidence of a relationship which was important simply because it was relevant for the jury to know whether the accused and the victim were on good terms or not. 37 Doyle CJ gave examples of potential uses of such evidence, such as assisting in understanding the context in which the alleged offences occurred or to explain how a victim might have come to submit to certain acts. Another example was to show a pattern of behaviour of the defendant to achieve the victim’s submission.6 38 In the present case, the appellant submitted that the ‘status evidence’, which included the evidence of what were said to be his manipulative acts, did not have comparable relevance. The respondent, by contrast, submitted that it was relevant to show the status that the appellant held in the community and of the opportunity it thereby gave the appellant to commit the offences. 39 The argument on appeal merged into a debate about whether the evidence was evidence of discreditable conduct. This, it seems, was a consequence of the appellant’s acceptance on appeal, at least, that the ‘pure’ status evidence was admissible. 40 The respondent submitted that the evidence of what was said to be abusive conduct did not rise to the requisite level of seriousness or consequence, in the circumstances of the trial, to be characterised as discreditable conduct evidence. That was especially so given the complainant’s evidence that she had continued to meet with the appellant, including at home, and to go on walks with him. When she explained her concerns about the effect on her health, during pregnancy, of the tasks the appellant gave her, he accepted her explanation. 41 In Sadler v The King, Doyle JA explained:7 The Evidence Act does not define ‘discreditable conduct’, although the terms of s 34P(1) make it clear that it is not confined to conduct which constitutes a criminal offence. Speaking generally, and without intending to be definitive, discreditable conduct connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant. However, bearing in mind the context in which the term is used in s 34P, it connotes conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible ‘bad person’ reasoning. 6 R v Nieterink (1999) 76 SASR 56 at [42]-[44]. 7 Sadler v The King [2023] SASCA 63 at [27]. -- 12 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 11 42 The evidence of the reverence in which the appellant was held was relevant to establishing the nature of the relationship between the appellant and the complainant. The evidence of the various interactions between the appellant and the complainant, which the appellant characterised as discreditable conduct evidence was similarly relevant to show the contextual nature of the relationship between them. That relationship was very much bound up with the community dynamics and the respective roles that each had in that community. 43 Counsel at trial requested a direction pursuant to s 34R that focused, in the first instance, on the evidence of the appellant’s status. However, his request for a direction extended beyond this: In my respectful submission, the way I approach this is I look at the words 'discreditable conduct' and I look at what is the conduct that may discredit the accused and, in my respectful submission, it all goes down, as your Honour says, it's the assessment of the evidence that's being led and the purpose for which it's being led and in this scenario the purpose and the manner isn't that he's just a spiritual figure, that's it, it's that he's used his spiritual figure, he's used his status as a means of power and so, to my way, is that it's not just a title that he was a teacher, it's the use of the teacher. And I think it's in that regard that it requires your Honour's direction to say, assume for a moment that a teacher hadn't used his status as a teacher, then that would not necessarily require the discreditable conduct, but if the use of the teacher has been put by the prosecution to have the power imbalance and to abuse that trust, then the position must be that the mere fact that he was a teacher shouldn't be used, that's how it's being used and only if the jury are satisfied about that. 44 It might be inferred from this passage that the request for a direction, based on the evidence of the appellant’s status, depended on the incorporation of the evidence that, in the appellant’s submission, tended to show that the appellant had abused his status as a spiritual figure or teacher. However, it is not entirely clear. When the Court returned to the topic, the discussion proceeded on the apparent premise that the request was based on the mere status of the appellant being discreditable conduct insofar as it created a power imbalance, when it was alleged that he had used that status to commit the offending. The further evidence of the appellant having been angry and bossy and otherwise engaging in the non-offending conduct listed above, does not appear to have featured in submissions. 45 The judge did not give a direction pursuant to s 34R. In circumstances where the request for a direction was, in terms, directed to the evidence of the appellant’s status only, rather than evidence of non-offending instances of what was submitted on appeal to be him abusing that status, that was understandable. 46 Evidence of a person swearing, behaving angrily or in a bossy manner will not ordinarily be evidence of discreditable conduct. The context of the trial will always matter. However, the prosecution announced its case to be about the abuse of power. It led evidence of instances of behaviour that the appellant characterised on appeal, at least, as capable of being seen as abuses of power towards the -- 13 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 12 complainant. It was those instances that were said to inform the relationship between the appellant and the complainant. 47 Counsel for the appellant objected, at the commencement of the trial, to parts of this evidence. He expressly did not object to the complainant’s statement that the appellant ‘would use swearing language’. However, he objected to the complainant’s statement that the appellant ‘would be very aggressive’. That objection was made on the basis that ‘aggressive’ could have a number of connotations. In the absence of any suggestion as to what the complainant meant by that, counsel complained that the statement, without clarification, was highly prejudicial and amounted to evidence of discreditable conduct. 48 The prosecutor clarified that he would not lead evidence of violence or physical aggression on the part of the complainant at other times. That appears to have resolved the objection to admissibility. 49 It is necessary to have regard to the context in which this evidence was presented and the contest over the forensic use of the appellant’s status. We have had regard to the objection that was taken at the outset and the scope of the request for a s 34R direction, which appears to have focused on the mere ‘status’ evidence. When viewed in the abstract, it may be difficult to conclude that this evidence could be said to be ‘conduct of a level of seriousness or consequence that it might cause a jury (in the absence of instruction from the trial judge) to engage in some form of impermissible ‘bad person’ reasoning’.8 50 However, the import of this evidence cannot be divorced from the way in which the prosecution cast its case at the trial. From the outset, the prosecution said that this was a case about the abuse of power. This evidence, led to show the contextual relationship between the appellant and complainant, was evidence of an unequal power relationship that had the capacity to be viewed as carrying elements of abuse and manipulation. The prosecution pursued this theme vigorously in its closing address. In that context, this evidence carried the very risk identified by Doyle JA in Sadler v The King.9 51 That is not to say that evidence of this nature will always amount to discreditable conduct. This case presents as an example of the importance of the context in which the evidence is adduced. The prosecution opening and closing put into issue the appellant’s status within a small community that shared the same religion. By describing him as a ‘saint’ or ‘god’ who wielded influence, the prosecution hoped to explain the influence, if not manipulation, wielded by the appellant in his dealings with the complainant and, to an extent, her husband. On the prosecution case, it helped to explain how the appellant came to be alone with the complainant and engage in the alleged offending. 8 Sadler v The King [2023] SASCA 63 at [27]. 9 [2023] SASCA 63 at [27]. -- 14 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 13 52 Although the word ‘cult’ was not used, no doubt advisedly, the concentration on what was said by the prosecution to be the appellant’s abuse of power raised the risk of prejudicial reasoning. That risk arose in connection with instances of the appellant’s behaviour, and it also arose in connection with the alleged offending. On the prosecution case, the appellant abused his position of power in a way which was, at the least, both wrongful and repugnant. 53 Having regard to the focus of the prosecution, we are satisfied that this evidence, which was relevant to establishing the nature of the relationship between the appellant and the complainant, amounted to evidence of discreditable conduct. Whilst the judge’s refusal to give the direction in the terms sought was understandable, given the way that application was expressed, the contextual framework meant that the failure to give a direction under s 34R was nonetheless an error of law. 54 We would grant leave to appeal on Ground 1 but would dismiss that ground. The complaint in Ground 2 was a complaint of an error of law. Subject to application of the proviso, we would allow the appeal on Ground 2. Whether the judge erred in his directions concerning the permissible and impermissible uses of evidence of the appellant’s good character (Ground 3) 55 The appellant called three witnesses who gave evidence to the effect that he was not a spiritual leader, did not have an elevated status in the community and was not bossy or angry. The evidence extended to saying that the appellant was well respected in the community, was humble and supportive, kind and helpful, and had good qualities. 56 The prosecutor, in closing, said that good people were capable of doing bad things. He submitted that the appellant had used his respected status to create an opportunity to offend. 57 The judge gave the following direction: You heard evidence from three defence witnesses. They said [the appellant] was respected in the community, was humble and kind. That evidence is relevant to the probability he committed these offences. The defence argues [the appellant] is a person of good character and so is less likely to have committed these offences as it is not in his nature. The good character of [the appellant] does not mean you must find him not guilty even if you accept he is of good character. You may accept other evidence that leads you to conclude beyond reasonable doubt he is guilty. Sometimes a person who was previously of good character is found to have committed a crime for the first time. The prosecution said [the appellant] used his status to offend by abusing his power. Mr Kalali asked you to accept the evidence of the three defence witnesses who had known [the appellant] for a long time who said he was not a spiritual leader. -- 15 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 14 58 The appellant complained that the third paragraph of this direction watered down the direction on good character evidence so heavily as to undermine it entirely. He submitted that following the direction immediately with a reminder of the prosecution case effectively encouraged the jury to use the good character evidence adversely to him, that is, to reason that it made it more likely that he had committed the offences. 59 The appellant relied on R v Trimboli, where the trial judge had given a good character direction as follows:10 Then of course the accused also called witnesses as to his character and you bear that in mind. There is a strange thing about it. Very often Indian hemp growers are people who have never offended against the law before and they are good people. But you have heard that character evidence and you bear that in mind. 60 The Court in that case said that this watered down the value of the direction and encouraged the jury to attach less importance to the good character evidence than it was entitled to receive. It gave the jury no assistance as to how it was to use the good character evidence. The very direction undermined the efficacy of the evidence.11 61 Similarly, the appellant submitted that here, the trial judge had framed the good character evidence direction in a manner that permitted the jury to attach less importance to it. The direction tended to support the prosecution submission that the appellant had abused his status in order to offend. 62 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 63 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 10 R v Trimboli (1979) 21 SASR 577 at 580. 11 R v Trimboli (1979) 21 SASR 577 at 580; 587-588. 12 Criminal Procedure Act 1921 (SA) s 158(2). 13 Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92 at [145]. -- 16 of 18 -- [2025] SASCA 26 Livesey P and Bleby JA 15 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) 64 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. 65 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. 66 I have reached a different conclusion to their Honours in relation to Ground 3, which involves a complaint of a miscarriage of justice flowing from the judge’s directions in relation to the evidence of the appellant’s good character. 67 As explained in the joint reasons, the judge gave orthodox directions in relation to the use that might be made of the evidence of the appellant’s good character. No criticism is made of those directions. The appellant’s complaint relates to his Honour following those directions with a statement that the prosecution case was that the appellant ‘used his status to offend by abusing his power’. 68 I accept that this reference to the prosecution case was somewhat blunt, and would have been better accompanied by some description of the use the prosecution sought to make of its allegation of abuse of power. The failure to do so tends to underscore the significance of the trial judge’s failure to give directions in accordance with s 34R in relation to this evidence. 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]. -- 17 of 18 -- [2025] SASCA 26 S Doyle JA 16 69 However, I do not think that this reference was such as to inappropriately undermine the directions given by the judge in relation to the evidence of the appellant’s good character. Whilst the appellant complains that this reference to the prosecution case immediately followed the directions as to the evidence of good character, I regard this complaint as misplaced. Insofar as the defence case of good character and the prosecution case of abuse of power both involved consideration of the appellant’s role in his religious community as a spiritual leader and advisor, there was a logical connection between the two issues. This connection justified the collocation of the directions as to good character and abuse of power. I do not accept that it was inappropriate, or gave rise to any miscarriage, to direct the jury in terms that ensured that they considered the evidence of good character in the context of the evidence of the appellant abusing his status and power. That evidence was capable of diminishing the weight to be attached to the appellant’s good character. 70 Again, whilst the blunt or stark nature of the reference to the prosecution case underscores the significance of the error the subject of Ground 2, I do not think it undermined or detracted from the good character directions so as to found an additional ground for this Court’s intervention. 71 Like Livesey P and Bleby JA, I do not consider it necessary to address the balance of the complaints raised on appeal. 72 I would allow the appeal, set aside the convictions and order that the matter be remitted for retrial. -- 18 of 18 --