Romance Scam: Donna's path home

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How a failed appeal could open the door for Donna Nelson to return to Australia.

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.

Last week, Donna Nelson's appeal failed.

She had been trying to quash her drug trafficking conviction, but to no end.

In this episode, we're going to unpack the outcome, hear how her family reacted, and explore some of the other opportunities Donna has to return home.

And to do this, I'm joined for this episode by North Asia correspondent James Oten.

James, welcome.

Thank you.

Good to be back.

And also Olivia Rousseau from Australian Story, who has made a wonderful documentary following Donna through this process.

Olivia, so good to have you with us as well.

Thanks, Dougie.

Olivia, I want to start this episode with you.

Last week we heard from James about how Donna reacted to the appeal being handed down or being dismissed basically.

How have Donna's daughters reacted to this news?

It's been varied.

I think four of her daughters who were over there were kind of holding out hope along with Donna.

Donna was very positive.

She's sort of been able to

keep her head up and be optimistic and I think they were hoping for the best.

But Ashley, who is a lot more pragmatic and has been dealing with the lawyers throughout,

she knew that them throwing out the expert evidence basically meant that they didn't have an appeal case.

So she sort of knew, I guess she reserved a little bit of hope, but she sort of knew that it was unlikely that there would be a good result from the appeal.

So I don't think she was surprised.

Yeah, and James, you know, there are a couple of the daughters who have travelled over to Japan to actually be there for the decision being handed down.

Obviously, it hasn't gone the way that they were expecting.

And we spoke last week about some of the hope that they were holding out, you know, that Olivia's just told us about as well.

What was it like, you know, being outside the court, you know, watching them react, seeing them kind of processing all of this?

Well, it didn't take long before the judge confirmed their fears that the case was being dismissed.

It was pretty much straight away one of the first things that the judge said.

Donna walked into the room, saw her family mouthed, I love you to her family, and then she quickly showed her emotion and crying and then trying to hold back tears, but her voice was clearly quivering as she introduced herself to the court, as is expected and is required.

Judge quickly said that the appeal is dismissed and then went through their reasonings.

There was certainly like a big sigh, I guess, disappointment

from her family.

I think as the judge went through the reasonings, you got, of course, there was sadness from the family, but I also sensed a great deal of frustration and anger because the judge was very dismissive of all the arguments that Donna's legal team had put forward, in particular the idea that Donna herself was completely and utterly fooled, that she could not have known the drugs were there.

because that's how these scams work.

And then the judge, in his summary of why the case is being dismissed has pretty much backed up the entire first trials ruling, which is she must have had suspicions, she must have had doubts.

That was frustrating for the family to hear.

Perhaps even more frustrating when the judge has pushed the point

that when Donna was given $1,200, which was to buy winter clothing and help her out while she was in Laos, the judge has said that equates to the money you're being paid to be a mule.

So, in other words, the judge is saying you were bought out for $1,200.

Right.

That was an incredibly offensive thing for the family to hear.

And I mean, you know, one of the things we spoke about a lot in our episodes last week was, you know, the evidence that basically wasn't accepted in this appeal.

That is the evidence from the love scam expert pointing out how ornate these schemes are.

I mean, as soon as that was knocked out, was this basically over?

I I don't see how they could have won.

The lawyers outside the court, when I asked them when the evidence was dismissed, does this mean your case is over?

They said, no, it's not over because while the judge has denied the

new evidence, the judge cannot deny the summary that the defence has put forward.

And in that summary, it outlines all these arguments, including the idea of how highly complex and sophisticated these scams are.

The problem for me is that you're putting forward an argument that essentially without evidence that's being accepted.

I don't know how that can ever actually work.

Olivia, how frustrated are the family?

I mean, are they annoyed with the way that this is proceeded or are they kind of accepting that this is the justice system that they were trying to work within and they weren't able to be successful this time?

Look, I think they're incredibly annoyed, but

possibly, you know, I know Ashley feels very frustrated with the lawyers for

not putting that evidence forward in the first trial.

And as James said, as soon as it was thrown out, even though, yes, they'd had the summary and they'd had to look at all their evidence,

I knew, and Ashley herself, that there was very little chance that things would go in a good direction because it was all based on that.

And that is the evidence that should have been.

played in the trial in place of this strange tactic of having Ashley give evidence about how even she believed Kelly, you know, when it was just a really bizarre kind of roundabout way of trying to construct an argument that this guy was a great deceiver instead of just having someone who actually talks about the science of this kind of manipulation.

So it was a lost opportunity, yeah.

I think as well, you know,

when you hear from an expert, that gives your argument credibility.

It's not just kind of ideas and feelings and stuff.

This is saying we have have proven that there are plenty of drug mules just like Donna Nelson who are completely caught up in these scams.

So it's not just a one-off, that there are plenty of others.

I mean, James, have you been able to ask the lawyers about any of this, get their read on why it unfolded in this way?

Yeah, I mean, look, the...

The key question here is why wasn't the expert used in the first trial?

Because it gives credibility or further credibility to the idea that Donna was completely duped.

Now, I did speak to another legal team just for their advice on how these things play out.

Someone who's not involved in Donna's case, but they did kind of criticize the idea of not including the expert in the trial, saying that you have to prove unavoidable circumstances for why that evidence wasn't used in the trial.

And when you're dealing with experts, that's a pretty high bar to make.

You know, experts are generally available.

Rhea Nishida, who's the lawyer for Donna Nelson, she has then responded to that criticism.

And she said, first of all, they were very limited in the witnesses they could call forward for the trial, the number of witnesses.

So it really came down to the crunch of which daughter do you bring forward?

Because she says we were only allowed to bring one daughter forward.

So she's brought Ashley forward.

And the idea, of course, as Olivia's gone through previously, was that Ashley was the person who herself was a bit skeptical of this Kelly, but even Kelly won her over to really kind of prove the point or argue the point that Kelly was a master manipulator here.

So that's what she said in defense of that.

They were very limited in who they could bring forward in the initial trial.

They couldn't have all these people like you might have perhaps in Australia.

So they've made an executive call to bring Ashley as the witness.

And she said, it's pretty hard to get the courts to listen to experts

and to accept their evidence in this case.

For this particular case, I don't know about other experts, but for this particular case, this particular evidence, she says, pretty high benchmark for them to accept it.

So they've made a call in the initial trial to focus on the daughters over the expert.

I mean, we've spent a lot of time talking about Donna's situation in Japan, but James, over the weekend, you published a story about Chikahonda.

Now, this is a Japanese woman who says she was tricked into bringing drugs into Australia.

So almost the kind of, it's the same scenario, but just, you know, reverse, reversed roles, I suppose.

That was a while ago.

But there seem to be so many similarities between Chica's case and Donna's case, right?

Yeah, I wanted to tell this story because I'd been asked a lot about what would happen in reverse.

So if Adonna Nelson was coming to Australia in that situation, would she also be found guilty?

Now, first of all, I'm not saying whether or not she would have been found guilty.

The systems are different, although there are lots of similarities.

But one of the key similarities is the idea of being grossly negligent or willfully blind.

You can't

do something and say, oh, I didn't know, if you've shown you've been completely negligent and you failed to do your due diligence, essentially.

And that is what has caught Donna Nelson out.

They've not said you deliberately took the drugs, but rather you were negligent in your responsibilities.

So, Chickahonda, the story starts in 1992.

Now, there's there's a man, Yoshio Katsuno.

He's been given these tickets to Australia.

So he's corralled his group of travelers, which included his brothers as well.

And his brother's girlfriend was going to go.

She was offered the ticket, but she couldn't.

So the brother's girlfriend friend, they worked at the bar together, at a bar together, is Chikahonda.

So she's accepted the ticket instead.

And she'd always wanted to go to Australia.

She'd previously missed out on another trip, so she was head over heels at the opportunity to go.

And in the 1990s, 1990s, Australia was really hot stuff from the Japanese perspective.

It was really the number one destination for many Japanese tourists.

So she's accepted this ticket and put her faith in this Yoshio Katsuno.

It's not a stranger, like there are connections there to come to Australia.

It involves a stopover in Malaysia.

Now during this overnight stopover in Malaysia, they've all put their bags in this car.

They've gone up to a restaurant.

And while they're eating at the restaurant, they're told, oh no, the van with our bags, it's been stolen.

Well, later that day, you know, hey, Presto, they've found the bags.

They found the van, but they tell

the traveling party, allegedly, that, sorry, we found your bags, your stuff's there, but the bags were completely destroyed.

They've been cut open.

They're not usable.

So instead, we've given you these other bags.

The problem really kicked in when they've flown from Malaysia to Australia.

Obviously, what happened next was incredibly distressing for Chikahonda and that is between four bags, so there's Chica and three other tourists, are found with eight and a half kilograms of pure heroin in false bottoms of their suitcases.

Now all of these tourists, Chica included, have given evidence to police.

Chica says a bit like what happened with Donna

that She just wanted to tell them the truth and she thought if I just tell them everything if I'm honest with them, there's no lawyer here, but it doesn't matter.

I'll just tell them everything that's happened.

They'll understand and I can go home.

Of course, that's not how these things go.

Chicahonda was sentenced to 15 years jail with 10 and a half years minimum.

A big hefty sentence for Chicago.

Yeah, I mean, so many similarities between Donna's story and kind of incredible to hear how this plays out.

the other way around, right?

So

what does this kind of show us or teach us about the justice system?

It really boils down to a question of, you know, where do you draw the line when we are dealing with negligence?

Of course, if you can prove to the court that this person was actively part of the drug trafficking kind of syndicate, then of course, you know, you've committed a crime.

And for instance, with Donna and with Chica, there's no messages there that shows that she was actively part.

or actively engaging with this kind of criminal drug trafficking syndicate.

So the next part of it is also then comes down to negligence

and where you draw the line on that.

With both Chika and Donna, no one 100% knows what they were thinking at these specific key moments besides those two individuals.

And the court is going to then try and make a determination on what they think the person was doing and thinking.

And now, obviously, people then form their views about whether or not they think they got it right.

for both Chikahonda and Donna Nelson.

So that's just a really complicated area.

But secondly, it comes down to the issue of deterrence.

If you believe that these people completely had no idea about what they were being caught up in, what is the benefit of sending them to jail?

And for that question, I did ask a criminologist associate professor, Natalie Gately from Edith Cowan University, who goes into the point about why the justice system works the way it does and really argues that we need to change it.

So those who are genuinely genuinely duped by these scams, that deterrence is not the solution.

The purpose of imprisonment is to punish, deter other people and rehabilitate.

Now you

look at those cases, you're not going to rehabilitate them because they didn't know they were doing anything wrong.

They didn't knowingly break the law and they don't have a drug problem themselves.

We're punishing them for something that they didn't knowingly do.

So we're punishing them for being negligent and not looking at something when psychologically we know that.

The only thing left is deterrence.

So yes, we can deter other people, but that's other people.

So the whole principles of punishment and imprisonment don't work in these cases.

And that's why I think, you know, there's no point in punishing them as such.

It's Associate Professor Natalie Gately.

I mean, James, Chigahonda ended up serving 10 and a half years in a Melbourne prison.

So there wasn't really much of a concession made there.

I mean, 15 years was the total sentence.

So I guess there's, you know, it's a little shorter.

If we're looking at these as examples, does that mean that we're now going to see Donna serving her kind of full six-year sentence in Japan?

Donna Nelson and her family have a very tough decision to make over the next week and a half, and that is whether or not to appeal.

We've heard previously with the family that they've been actively exploring the idea of a prisoner transfer, which would get her to Australia.

That is usually quite a lengthy and complicated process.

It's not something that typically happens in a few weeks or months.

We've heard from the family that they've even gone all the way as high to the foreign minister's office and we even had a message of support from the WA Premier actually just a few days ago.

But if they want to pursue that option, you can't do that while there's an appeal underway.

So between last year, December last year until now, there officially anyway, has been really no progress on the idea of a prisoner transfer to Australia because there's been an appeal underway.

So you can't lodge the paperwork, in other words.

If they appeal, then you've got to wait out, well, what's the chances of us succeeding?

Because every month that that appeal process is going,

that's a month that the paperwork for a prisoner transfer is not.

being processed here in Japan.

It's a really tough call.

Yeah.

Olivia, do you have any insight into kind of what the family's thinking at this stage if they try another appeal or if they start making kind of those more direct representations to the government for the prisoner transfer?

Yeah, I spoke to Ashley on Friday and

Donna's lawyer was still pushing for an appeal to the Supreme Court.

And Ashley asked her what the odds were of an appeal succeeding in the Supreme Court.

And the lawyer said 0.03%

were successful.

And she was still recommending that they go ahead with one, which

Ash was hoping that that would be communicated to her mother.

Because, you know, again, she can't call her mum.

She can't send her mum emails.

It has to go through other people.

So that's incredibly low odds.

And they do have time to still decide on that.

But I believe that after Crystal went and visited her mum

on Friday, that...

Donna had said enough time had been wasted and that she'd like to explore the prisoner transfer option.

So that's, look, that's not a hard and fast decision, but that's what was communicated to me at the time.

And I believe that yesterday,

DFAT in Tokyo were meeting with Donna to have a discussion.

So I guess if that's the route she'd be going, she'd be lodging those papers now to try and follow it up.

But when I spoke to DFAT when the Australian story episode went to air, they said it could take

years,

like several years, if it was accepted at all.

Now, I think that the family is a bit more optimistic, and I think the messaging that they're getting is that there might be a better chance.

And even if it's symbolic, the WA state premier saying he's behind it and they're meeting with the Foreign Minister.

I definitely think it's something that the government will be pushing for now.

Yeah.

Has the Australian government been pretty responsive throughout this process?

Yeah, I think they have been.

Like the ambassador, Justin Hayhurst, did go to the first day of the trial, and I believe he was at the verdict too, James.

Is that right?

Yeah, he's been at the appeal.

Yeah, and the original verdict.

And it's pretty unusual, I think, for an ambassador to turn up to a trial like that.

And they did have a representative from the embassy taking notes.

the entire time.

So they have been supportive.

They have been there for the family.

They have been visiting Donna in prison and providing reports of her situation to family.

But, you know, as James said, there's a limit to what they can do because they had to wait until the trial was over and then the appeal was over before they could actually step in and start actively

doing anything in terms of trying to get Donna home to Australia.

Yeah, yeah, yeah.

And it is a delicate dance because you can't have, regardless of what the people in the embassy or the foreign minister or anyone else may think, you know, they've got to...

respect the Japanese judicial system, you know, at least publicly.

They can't go trashing any decisions or anything like that.

So it's a delicate dance of showing support for her and regardless of what individuals may be believing about the case, they have to kind of do that kind of idea of we respect what is happening here and we'll try and work within the system to have it better for you.

But there would be very much also a,

you know, don't over promise and under deliver because that's terrible if you give false hope like that.

Yeah, absolutely.

The court system is kind of one one world that, you know, we're exploring here.

I mean, the diplomatic world, the way these conversations happen is a completely different thing, really.

And so can't imagine the

sensitivities around some of those conversations.

James, when we're looking at how much time Donna has left, I mean, she's been sentenced to six years.

She was arrested at the start of 2023.

You know, how does this play out from here?

Has she had any concessions for TimeServe?

What is she still looking at?

Basically, a release date in the late 2020s at this stage.

Yeah, so I did the maths and that's never a good thing.

My mathematical skills aren't the strongest.

But so Donna Nelson was sentenced to six years jail and this is last year, December last year.

And there was time served, which was taken as credit, but not all of it.

And this time again, we've had an extra 240 days given as credit.

That's on top of the initial time credit.

So she's been given 670 days credit of her six years.

Again, here's my maths.

Bear with me.

But I believe that means she's out in early 2029.

Yeah, okay.

So, you know, there's still, I guess, a long road for Donna Nelson ahead.

I mean, you know, if there's a prisoner transfer that goes through, I imagine that she would continue to serve her time just in an Australian prison.

I mean, Olivia, is there any benefit to being here rather than in a Japanese prison?

There's a massive benefit to being here.

The conditions in a prison here would be very different.

I imagine that Donna would be in minimum security.

She'd be in a women's prison, probably in Perth, where her family could visit her.

She could have physical contact with them.

She would have access to other people speaking English.

She wouldn't be in solitary.

Yeah, it would be profoundly better for her to be in Australia because the conditions in prison are still pretty bad for her.

At the moment, she's in a prison which she she says is better than the one she was in previously in Chiba.

She was brought there for the appeal but once this 14-day period of deciding whether they're going to appeal again is over, the process will start to transfer her to a women's prison in Tokyo, which she feels is not going to be as good.

But you know, she's still in solitary.

She's still not mixing with any other prisoners.

She said she started to be able to speak to some of the guards.

in the prison she's in now.

So she said literally, physically, she feels like her voice is coming

I think James will remember from the first trial, her voice, you know,

it was quite quiet

and it took her a while to get going.

But yeah, she literally hasn't been speaking to people very much.

Yeah, yeah, yeah.

And I mean, you know, the other thing to kind of keep in mind in the difference in the prisons as well, I know in Australia, there are cultural concessions that are made for First Nations prisoners.

Donna is a First Nations woman.

And, I mean, I can't imagine that those kind of concessions are in place in a Japanese prison, right?

Yeah, absolutely.

Absolutely.

You know, in every way,

it would just be better for her to serve out her sentence here.

Yeah, absolutely.

Olivia Rousseau from Australian Story, thank you so much for joining us for this episode.

It's a pleasure.

Thank you.

And the ABC's North Asia correspondent, James Oten, thank you for being here as well.

My pleasure.

Thanks for having me.

We're going to be back in your feed with a full Q ⁇ A episode with James and Olivia that'll be dropping on Thursday.

So make sure you grab yourself the ABC Listen app because it's the best way to listen to the case of.

And if you have any questions, please send them through so we can answer them.

The caseov at abc.net.au is the place you can get in touch with us.

There are a bunch of wonderful questions through already.

People asking about the conditions that Donna is in in prison, what she's allowed access to, all of that.

Questions about the artwork that we've seen coming out, very different styles to the art you'll see from an Australian trial compared to Donna's in Japan.

And then all sorts of other little details around what efforts were made to track down Kelly and the like.

So, we'll get to all of them on Thursday.

And yeah, if you have any other questions, please get in touch.

The case of abc.net.au.

You know full well that the ABC Listen app is the best place to listen to this pod.

But if you are using another podcast provider, I suppose,

please leave us a rating and a review.

It makes it so much easier for other people to find us.

And for a story like Donna's, I think it's one that more people need to hear.

So if you can do that, that helps spread the word a little bit as well.

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

This series is reported by James Oten and Olivia Rousseau and presented by me, Stephen Stockwell.

Supervising producer for this episode is Tamar Cranswick, and our executive producer is Claire Rawlinson.

This episode was produced on the land of the Gadigal and Wurundjeri people.

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