Romance Scam: The evidence that defined the trial

I'm Sarah Konoski, and I've got a special episode of Conversations to share.

Kathleen Folbeck telling her own story.

For two decades, Kathleen was locked up in prison, wrongly convicted of the deaths of her four children, until friendship and science set her free.

I'm in prison accused of murdering my children.

I didn't physically do it, but carried something that did.

Hear my interview with Kathleen Folbeek right now on the ABC Listen app: ABC Listen, Podcasts, radio, news, music, and more.

Arrested at a Japanese airport with two kilos of meth and put on trial.

How Donna Nelson's trip to meet a man she was planning to marry turned into a nightmare.

I'm Stephen Stockwell.

Welcome to the case of the romance scam.

Since her arrest in early January 2023, Donna Nelson and her family have been living a nightmare.

Two kilograms of methamphetamine were found in the lining of a suitcase that she took to Japan.

Her family has always maintained she was conned into traveling into Asia by a man met online two years prior.

The innocent victim of a love scammer.

It just seems like a bad dream.

I've never

thought

that she would have ever been involved in this.

In just a week, Donna Nelson will be learning if she will be allowed to return home to Australia.

In our last episode, we met Donna.

We heard about the man she was going to meet, Kelly, and about the suitcase one of his associates dropped off at her hotel before she flew into Japan.

We then heard how at a Tokyo airport, they found two kilos of methamphetamine hidden in the lining of that suitcase.

While prosecutors say she was smuggling drugs, her family says she was the victim victim of an ornate romance scam.

In this episode, we're going to take you inside the Japanese justice system and hear about the romance scam story that was presented to court.

Helping us tell this story is Olivia Rousseau from Australian Story, who spent time with Donna's family and followed them during this trial, as well as the ABC's North Asia correspondent James Oten, who has been following this story in Tokyo since it broke in 2023.

James, in our last episode, you spoke about how strict the Japanese legal system is and also how reserved and prohibitive the culture in Japan can be.

I mean how did you end up getting wind of this story in the first place?

Ah well this actually occurred in Australian media I believe if I recall correctly.

At the time I was in Australia so

you know initially I guess there was an assumption that okay this person's been charged just quickly get on the phone to the police or the prosecutors in Japan confirm the charges.

Ordinarily in Australia someone can't be held for that long, unless we're talking perhaps stuff like terrorism, but someone can't be held for that long.

So it's a pretty quick procedure.

And the police, my experience, has been working in Victoria.

I imagine it's pretty much the same everywhere.

And I've worked in the Northern Territory.

But when there is a high-profile case like this, the police will confirm some charges pretty quickly.

The day after, you'll get what is called a committal mention, where the accused person will front court, and it can be a pretty short hearing, but basically, the charges are openly discussed to the magistrate or judge and then

there is maybe some facts that might be agreed and they'll talk about does a person get bailed at least you know the basics of what's occurring

but in Japan that's not the case at all so the first mission I took the responsibility of trying to confirm what was happening on the Japanese end while our journalists in the Perth newsroom where Donna Nelson's family is from they tried to speak with the family.

Yeah, and what could you find out?

Not much.

Not much at all.

And

this is a frustrating point because, like I said, first of all, she wasn't charged straight away and they did hold her for...

I don't know if it was a full three weeks off the top of my head, but it was close to those three weeks that I mentioned earlier.

And you call the police and they just told us

up front, we are not going to talk to you, we're not going to tell you.

And we called the prosecutors as well.

And at this stage, you don't expect the police to tell you a lot, but you do expect them to say, we have arrested a, you know, a woman from Australia of this age, you know, and you know, pending inquiries, something, especially, I guess, after the days, it's quite unfamiliar for us to have someone held for so long for the for drugs charges without any charges being laid.

So that in itself is unusual.

But then what was even further unusual is when she finally was charged and how that information was given to the local media who handled the local courtroom.

This is a press club.

Japan is very much structured in press club format where you have, let's say, a gaggle of journalists who are attached to a specific department or in this case a courtroom and they kind of get spoon-fed this information.

Now they'd given a press release to their press club.

So some local Japanese media had published a short article.

So typically, as any journalist would, you call up the courtroom or the prosecutors and say, can I also have that press release?

I just want to confirm the charges here.

And the answer was, no, you're not part of the press club.

We're not going to give you that charge sheet.

We're not going to give you the press release.

And we were quite...

furious because it's like this should just be public information.

All you're doing is confirming the charges, which you've already confirmed to local media.

There's no question about who we are.

You know who we are, but because we're not part of your press club, you're not giving it to us.

We want you to speak to your manager.

And

to about four hours later, then they said, okay, we'll give you the press release.

And that at least confirmed the charges.

And with us for this episode is Olivia Rousseau, a producer from Australian Story who traveled to Japan for the trial, got to know Donna's family very, very well.

And Olivia, I mean, you know, Donna's family during this time are incredibly worried, right?

They've got a tracking app on her phone, so they're kind of following her movements.

And over this period, it's just been stuck at the airport.

They couldn't get information.

I mean, how long was it until they heard anything?

Oh, it was, I think, it was three days where her daughters heard nothing.

And for a family who spoke several times a day, and they didn't just put a tracking app on her phone for the trip.

They had tracking apps on each other all the time.

They knew where each other were all the time.

They were that classic over-communicators.

Nothing happened without everyone knowing.

So, you know, the last thing they hear from mum is, I've landed, brrrr, it's cold.

And they all sent silly emojis to each other.

And then complete silence.

And the girls start talking to each other.

I think she landed about six in the morning.

By two in the afternoon, they're saying,

have you heard anything?

And Ash particularly is starting to get very worried.

But it takes three days before they get a call from the embassy saying she's been arrested and during this time they think she's dead.

They have no idea.

Ash says she knew that it was something to do with Kelly but there is no way under any circumstance their mother would not contact them for three days let alone one day.

So their minds are gone to the worst possible place and I wouldn't say that it's a relief when they find out that she's been arrested but

at least she was alive.

But yeah, Crystal, her eldest daughter, has said that they were were, those three days were the worst days of her life.

What we do know what was happening at that moment is Donna has spoken to the authorities there after they found the drugs in her bag, and she's essentially told them the whole story about

who Kelly is, why she's come, where the bag came from, and so on.

One of the issues that you hear about this case is how things are translated.

And this is always a difficult issue that lawyers warn many people about when you're just speaking to authorities.

You have to be careful, and you know, she wouldn't have been granted a lawyer straight away, that's not how it works here.

But in this circumstance, she, from what we heard in the court proceeding, is trying to be honest and open because she feels that she's done nothing wrong, and so she's trying to be helpful with the authorities.

But then things are just getting mistranslated.

So, for instance, just things like when she, when they're going through messages of her, you know, things

you know, the word horny is turned into anxious or the size, quote, size of the bag is turned into the contents of the bag and the,

you know, the quote particular suitcase becomes the quote special suitcase.

So what the lawyers, what her lawyers did argue is that they're trying to kind of push her into a

you know, neat little guilty case that they can prosecute quickly and effectively and move on.

Right.

Okay.

So, I mean,

what happens now?

You've confirmed the charges with the Japanese police.

You've had your, I need to speak to the manager moment, and you kind of have broken through this opaque Japanese system.

I mean, what happens to Donna at this point?

I mean, can you talk to her or does she just disappear?

She disappears.

And not just for me, for her family as well.

And Olivia can talk more about this.

But like I mentioned, the Australian system has various procedures that are open with the odd exception, but it's open and you have all these committal mentions where they give updates about the case.

Now presuming the person doesn't plead guilty, you hear updates throughout the case, then there's what's called a committal hearing, which is almost like a mini trial, where they

present the facts and evidence to a magistrate.

and then they will decide is there enough information here, is there enough evidence here to then go to trial?

And then if the answer is yes, then you know months later or years later you'll have a trial in front of a jury, which we all know about.

But the important part is it's all open to the public, to the families, to the media.

There is transparency.

Here there's none of that.

So when they've decided to charge her, that's it.

She disappears from my radar.

I can't speak to her.

There's no updates about what's happening with the case.

And I

believe during this whole time, the only person she could speak to was her lawyer.

James is right.

It's like and that's part of I think what Human Rights Watch called the hostage justice system.

They put in place a communication ban for Donna and they do this, I think James, is it across the board for pre-trial everyone charged, but I'm not sure if it is for particular crimes or not.

But she's only allowed to speak to her lawyer.

She was allowed to speak to DFAT and to a prison chaplain.

She wasn't allowed to speak to anyone in the prison.

She was only allowed out of a cell for half an hour a day and she couldn't talk to anyone.

And if she did speak, she was supposed to speak in Japanese, but she doesn't speak Japanese.

She had no telephone calls, no

television, nothing.

And so she's basically in solitary this whole time.

and she doesn't know what her family, she can't write letters to her family even, and they can't write letters to her.

So DFAT this entire time would go and visit every now and then or her lawyers would go and visit and just pass on information to the family.

So they were just getting these scraps about their mother.

And, you know, understandably, that's incredibly traumatic because,

you know, she's a single mother of five girls, women,

and they're stuck there not really knowing how she is or not able to communicate with her properly.

So it was the communication ban seems to be extraordinarily cruel part of the system, especially because, as the girl said, we can't compromise the case.

We're not involved in any way.

She's just our mother.

You know, it really is this sort of denial of basic human rights of contact and communication and exposure to other humans.

Yeah, and we've spoken about, I mean, how restrictive her conditions in a Japanese prison were at this time between being charged and appearing in court.

I mean, Olivia, what sort of legal representation did she have access to, you know, during this time to prepare to defend herself from these charges?

Donna was given access to legal aid at first, and according to her daughters,

legal aid were just trying to convince her to plead guilty and

take the charges and weren't really supporting her plea of innocence.

And eventually and they, you know, it's a big thing to try and get money and

get a lawyer in another country and her daughters don't have experience with any of this.

So it took them quite a while until they actually hired a lawyer and they were the lawyers she ended up going to court with.

So they initially went to court with this brand new legal team and had to ask for an adjournment so the legal team could get across all the information.

They had to translate hundreds and hundreds and hundreds of text messages from English to Japanese.

They had to, you know, they had a lot of work to do.

So that left Donna.

for more,

a few more months, stuck incommunicado, not able to talk to anyone, not able to write to her family, none of that.

she had to do more time.

So it was 22 months in the end before she eventually went to trial from when she was arrested.

James, in Australia, our courts are these grand buildings in kind of sort of public squares almost in various parts of the capital cities that they're based in and even in the regional centres where we have courts.

I mean Japan is so much more condensed.

Can you describe the building and the court that Donna's case was eventually heard in after those 22 months?

Yeah, I don't want to have a swipe at Tokyo here, but buildings here can be pretty unremarkable.

They're functional, but unremarkable in appearance.

The inside of the courtroom, though, isn't as small as people may imagine.

It was a...

First of all, I guess the biggest difference is that the...

jury system here is quite different.

So in Australia, you'll have a judge and they sit nice and high on this big, imposing mahogany bench

and then you have the jury to the side if it is a trial and there will be you know dozen or so people sitting onto the side and you've got this big gap space obviously to accommodate the jury then both sides of the legal argument the prosecutor the defence and the judge this is a little bit smaller and a few rows of chairs but you know there's still some elements that make it look like a traditional courtroom even though the buildings here are all you know only a few decades old and rather unremarkable looking office kind of buildings.

The inside does look more like a traditional courthouse.

The appeal court, which we'll get on to later, that actually looked very unremarkable.

That was a very squished kind of windowless room.

But fundamentally, a big fundamental difference between Australia and Japan is that it isn't a normal jury system that we have.

It's called a lay judge system, where there are six members of the jury or civilians and three judges.

And

that cohort is responsible for determining guilt or not guilty so they all sit up at the front so there's a panel of six there's a panel of nine people you're staring at not just one judge

I mean a courtroom is an intimidating enough place with one person sitting at the front of the room you know to have a panel of nine people who you know you're talking to who are going to be making a decision on your future would be incredibly overwhelming, especially being in

a foreign system to the one that you're used to.

James, can you take us through kind of what was argued here?

Donna Nelson is pleading not guilty.

She's saying she's been conned, she's been scanned by Kelly and bringing these drugs into the country.

When this is being heard in front of that room, in that room, what are the key points from the defense to try and defend her from those charges?

And what are the key points from the prosecution to try and show that she had done this?

Well, I guess, first of all, going through the trial itself, we've talked a lot about the differences between the Japanese justice system before the trial being very opaque, but the trial itself did feel largely familiar to what I've seen both in my time in Melbourne and Northern Territory.

You have witnesses, you have

you know evidence tendered, you have TV screens showing documents and everyone gets questioned by lawyers and by prosecutors.

So that all felt very familiar to me and essentially as we've established what Donna's lawyers are trying to argue throughout this time is that she was completely and utterly head over heels in love with this person and the idea that you know love is not just blind but in this case love was absolutely blinding that she had no idea that she was caught up in something malicious and they've used all these text messages as I've mentioned two years of text messages where they've engaged in what seems online boyfriend girlfriend type discussions and talking about their future life together.

They've brought up the daughter Ashley, as we've mentioned before.

But what the prosecution is trying to do is just essentially poke holes.

Raise enough doubt that she must have known something was suspicious and that's, it appears to be the benchmark to get her a guilty plea.

That's what the prosecutors were pushing.

Essentially, you must have known.

Your story is so suspicious.

This whole scenario around Kelly is so suspicious.

You must have known something was wrong.

And essentially what the court here, what the prosecutors had to prove wasn't necessarily that she knew the drugs were there or she was deliberately taking part in this drug trafficking ring, but rather that she was recklessly negligent.

That, you know, ultimately, and this goes across the board anywhere in the world, a lot of drug smugglers say they were duped.

And the only person who truly knows what Donna was thinking is Donna herself.

So what the court here is essentially trying to do is

look at the evidence and say, can we prove that, you know, she must have known something or that what she's saying doesn't make sense, her argument doesn't stack up.

And that's essentially what the prosecution were trying to argue and point out.

So if I can just give some examples.

You know,

the question with, you know, Ashley giving evidence.

Now, Ashley, as we've established, was the suspicious one, the one who did have some concerns and doubts, as opposed to the other daughters who were absolutely enthralled that their mum had finally found love.

And that's something that obviously the prosecutors grabbed on to.

The prosecutors grabbed on to the fact that Donna Nelson had not ticked the arrivals card correctly.

That when it says, are you taking anyone else's items?

And she ticked no, they've said, you've lied.

That is a lie.

You know that something weird is going on.

You've lied there.

And just the idea of taking a bag, they're saying, well, there's two kilos of drugs in this bag.

How can you honestly say that you didn't notice a two-kilo shift?

Now, of course, her lawyers say, well, this is incredibly well hidden in an unfamiliar bag.

But all the prosecution appeared to be doing is trying to poke holes.

And again, like I've said before, the only person who truly knows what was going through Donna's mind throughout this entire two-year online relationship that she had was herself.

But what the prosecution here is trying to do is prove not that she necessarily knew the drugs there, but that she was negligent.

In other words, ignorance is not an excuse.

Whereas her defense trying to show that she absolutely is a victim in all this and had zero idea, not 1% doubt, not 5%, not 50% doubt.

She had zero doubt that she was coming here to meet someone she intended to marry and she'd done her due diligence.

She had done her due diligence by opening the bag, by looking at the possessions.

There was two years of text messages between these two, and not a single phrase or sentence that looked like a code word for drugs, let alone actually discussing drugs.

Not a peep.

And so they've tried to tell the lay judges here and the judges that she had no idea what she was involved in, none.

Therefore, she's innocent.

And Olivia you travelled to Japan with the family for the trial and what were they hoping to achieve by being there, by being in the room during that?

Oh primarily I think the girls just wanted to be breathe the same air that their mother was breathing you know like really fundamentally they were so excited about being able to see their mum and have their mum see them.

It was heartbreaking.

They were terrified of whether or not they'd be able to control their reaction when they walked into the courtroom.

They decided as a group that they weren't going to cry, that they weren't going to show emotion, they were going to show the judges that they were upstanding

daughters who loved their mum and they were saying everything we do, everything we seem will reflect on our mum.

You know,

that was really what they were there for, was for them, for themselves and for their mum.

And Olivia, you know, the family is there to be in that same room as her, you know, to see her, to be able to, you know, actually talk to her for the first time in, you know, years at this point, over a year at this point.

But I guess along this way, they've been communicating with lawyers and they have been quite involved in kind of strategising the defence, like trying to help plan that, talk through it, work through it all in the lead up to this trial, right?

Yeah, to a certain extent.

Like Ashley, pretty much Ashley alone was doing the communication with the lawyers and talking to them and suggesting things.

The lawyers even came out to Perth and met the family and they wanted to see where Donna was from.

So the family had a lot of confidence in the lawyers as

having a good picture of Donna and where she came from.

Ashley is just incredibly resourceful.

had talked to other people who had run similar cases or been in similar situations and she was told about this expert witness, Monica Whittie, who's actually, I think she's the head of software systems and cybersecurity at a university in Australia,

especially the human factors in cybersecurity.

And she'd been an expert witness for around 10 cases, internationally, similar cases.

And Ash was putting people like Monica forward, saying, you know, maybe you should get this woman, maybe you should get this person.

And the lawyers decided that the route they wanted to take was to have, to humanise Donna,

but also to show that

how

credulous Kelly was.

They decided to call Ashley herself as apart from,

the witnesses that were called were two customs agents and Ashley, and that was it.

And Ashley's testimony,

the idea was that they were going to say, here's this daughter who doubts so much, she even sends articles about love scams to her mother.

Yet, when she speaks to this man, he even wins her over.

That's how compelling

his lies are.

That's how good he is at making people believe his scams.

And, you know, James and I can talk about how spectacularly we think that backfired.

But

that was their strategy going in.

So Ashley was there to tell her story

about how she was suspicious

all along.

But then after speaking to Kelly in that one phone call, how she turned around and said to her mum, no, I think he genuinely cares about you, mum.

I also remember, you know, we heard before that

by bringing Ashley to give evidence that the idea was to show that even Ashley herself could be duped by this man known as Kelly.

And so when you see this text message to Donna saying warning romance scams,

please be careful.

And she sent it to Kelly, you know, the prosecution have grabbed onside and say, see, you did know.

You know, this is enough here to show that you knew that these things happened as well.

So really, what the prosecution are doing is grabbing onto whatever they can just to raise enough doubt and confusion.

Now, of course, as Olivia made before in the earlier episode, the difference here is that romance scams are typically about sending money to people, not trafficking drugs.

And that's what this article was about.

But the prosecution don't really care for that.

They're just saying, see, you are vaguely aware.

You know, you're lying to your daughter about why you're going overseas.

You've got this romance scam article sent to you.

You're lying on your customs forms.

There's too much here that's not adding up.

So therefore, that's their strategy.

Create the doubt to get the guilty verdict.

Yeah.

James, how long does a trial like this take in Japan?

I mean, you know, you'll see long trials in Australia with lots of evidence, really complicated

cases to explore going over the course of weeks.

What sort of timeline were we looking at for Donna's trial in Japan?

The court case went for less than two weeks and that wasn't every day.

The first week was certainly every day but the second week wasn't.

So if I remember correctly the summary of all the evidence was basically on a Wednesday.

So it started on a Monday, ran the full week and then by the next Wednesday we were in there for the final day.

And then the verdict and the sentence is done together.

Perhaps very Japanese efficient

but in Australia typically you would get the jury saying guilty or not guilty and then if it is guilty they'll adjourn again.

A few weeks later the judge then would hand down his or her findings and between that period if it is depending on the crime, you might even hear victim impact statements as well to help feed into the judge's decisions about whether or not to give a heavier or lighter sentence.

This is is all very quick, quickly done.

So less than two weeks for the evidence and a summary, and then it was only a couple of weeks later, thereabouts, when we got the verdict and the sentence all wrapped up.

Yeah, and I mean, Olivia, you were there for the trial, you were there with the family during all of this, and you knew the odds going in.

I mean, we spoke at the start of this episode.

Japan has a 99% conviction rate.

The family know this as well.

You sit through the trial over the course of these two weeks.

How were you and how was the family feeling at the end of that?

Were you maybe more hopeful than you were expecting?

Yes.

Call me human, but you know, at the beginning,

I was clearly told by lawyers and people in the know that she had Buckley's chance of being found innocent, and it was a 99% conviction rate.

And every time I spoke to the girls, they were like, Well, she's going to be that 1%.

She's going to, you know, buck the odds.

And I was like, oh, no, this is going to be a hard fall.

but after sitting in court and watching the judges and seeing the argument unfold like the the defence kind of leaned a lot on proving she didn't knowingly do this she was innocent she was caught up in a love scam and it seemed pretty quickly that the prosecution accepted that she was caught up in a love scam and that she hadn't knowingly done this.

So, you know, at times there were judges who looked emotional, you know, wiped their eyes, were clearly moved by parts of Donna's testimony, or people talking about Donna's impact in the community and the work she'd done for other people.

So I couldn't help but feel like maybe,

maybe,

you know, they know she didn't do it.

But what I didn't know was that that wasn't the end of the story, whether or not she'd done it.

In our next episode, we're going to go back into that room in Japan to find out how the judges rule in the case of the romance scam, what Donna Nelson's future holds.

Be back in your feed on Tuesday next week.

And as I mentioned at the start of this pod, you know, there's a very big day coming up for Donna Nelson.

That'll be in a week.

It'll determine whether or not she is able to return to Australia.

So yeah, keep listening.

We're going to follow this as it unfolds in real time.

If you have any questions about this, please get in touch, theksov at abc.net.au.

We'd love hearing from you.

We're planning a special QA episode with Olivia and James and are really looking forward to hearing from you and answering your questions.

So yeah, please get in touch with us, theksov at abc.net.au.

Also, make sure you grab yourself yourself the ABC listen app.

It is the best way to listen to the case of.

But if you are using something else, please just leave us a rating and a review because it makes it so much easier for other people to find this pod and hear the story of Donna Nelson.

The case of the romance scam is produced by ABC Audio Studios and ABC News.

It's reported by James Odin and Olivia Rousseau.

It's presented by me, Stephen Stockwell.

Our executive producer is Claire Rawlinson and this episode was produced on the land of the Gadigal and Wurundjeri people.

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