Allan v The King

Case [2025] SASCA 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ALLAN v THE KING

[2025] SASCA 54

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

22 May 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF GENERAL CONDUCT OF TRIAL

Appeal against conviction.

The appellant was found guilty of two counts of aggravated robbery, one count of theft, one count of assault and one count of possessing a firearm without a licence. The prosecution case was that the appellant committed a series of offences at three pharmacies. The prosecution relied on circumstantial evidence to prove the appellant was the assailant on each occasion and that he possessed a firearm. It was alleged that this firearm was used in two of the incursions at the pharmacies.

The appellant raised two interrelated issues on appeal:

•whether the judge erred in giving directions to the effect that evidence in support of each count was cross-admissible in respect of every other count (Ground 1); and

•whether the judge’s directions in relation to all counts were inadequate and occasioned a miscarriage of justice (Ground 3).

Ground 2 was abandoned prior to the hearing.

Held (by the Court) granting permission to appeal but dismissing the appeal:

1.Having regard to the real issues at trial and the fact the defence at trial sought no more than a general direction against propensity reasoning, leave to appeal on Ground 1 is refused.

2.The directions adequately discharged the trial judge’s obligations under s 34R of the Evidence Act 1929 (SA) to identify and explain the permissible and impermissible uses of the evidence, having regard to the real issues at the trial.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 134, 137; Firearms Act 2015 (SA) s 9(1); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Armstrong (1990) 54 SASR 207; R v Copeland [2010] SASCFC 11; Sutton v The Queen (1984) 152 CLR 528; R v C, CA [2013] SASCFC 137; McRoberts v The King [2024] SASCA 92; Alford v Magee (1952) 85 CLR 437; Perara-Cathcart v The Queen (2017) 260 CLR 595; Huynh v The Queen (2013) 87 ALJR 434; JGS v The Queen [2020] SASCFC 48; R v Tran [2017] SASCFC 99; Rezaei v The King [2024] SASCA 150; R v Dhir (2019) 133 SASR 452, considered.

ALLAN v THE KING
[2025] SASCA 54

Court of Appeal – Criminal:    Livesey P, Bleby and David JJA

  1. THE COURT:   This is an appeal against conviction. On 15 February 2024, a jury in the District Court of South Australia found the appellant guilty of:

    ·two counts of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Counts…

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Allan v The King [2025] SASCA 54
Case
[2025] SASCA 54
Decision Date

CaseChat Overview and Summary

The appeal concerned the appellant, Allan, who was convicted of two counts of robbery. The dispute arose from the trial judge's directions to the jury regarding the use of evidence of discreditable conduct, specifically in relation to the similarities between the two alleged robberies. The appeal was heard by Livesey P, Bleby and David JJ.

The primary legal issue before the court was whether the trial judge had adequately directed the jury on the permissible use of evidence relating to the similarities between the two counts of robbery. The appellant argued that the judge failed to identify these similarities and differences, and crucially, did not sufficiently constrain the jury's use of this evidence to prevent them from engaging in impermissible propensity reasoning, thereby creating an appreciable risk of unfair prejudice.

The Court of Appeal considered section 34P of the Evidence Act 1929 (SA), which governs the admissibility and use of discreditable conduct evidence. The Court noted that for evidence to be admitted for a permissible use, its probative value must outweigh its prejudicial effect, and where this use relies on propensity or disposition, the evidence must have strong probative value. The Court applied the principles from *R v C*, emphasizing that the assessment of similarity should focus on whether the accounts are so similar that independent fabrication is improbable, rather than merely counting points of resemblance. The Court found that while the judge's directions could have been more explicit in detailing the similarities and differences, the overall charge to the jury, when read as a whole, did not create an appreciable risk of impermissible propensity reasoning.

The Court granted leave to appeal on Ground 3, which related to the misdirection and non-direction concerning the use of discreditable conduct evidence. However, despite granting leave, the Court ultimately dismissed the appeal, upholding the conviction. Leave to appeal on Ground 1 was refused.

Orders

Orders of the court

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Background

Background to the litigation

The appellant abandoned Ground 2 prior to the hearing. The particulars to Ground 3 complain that the judge did not identify the similarities and differences in the links between the counts and did not constrain the permissible use of the discreditable conduct evidence such that there was an appreciable risk the jury would engage in impermissible propensity reasoning. BackgroundCount 1: Trinity Medical Centre On the morning of 31 October 2021, Mr Casson was working at the Trinity Medical Centre pharmacy as the pharmacist in charge. A man walked into the store just after it had opened at 10:00 am. The man approached the counter where Mr Casson was filling a script and demanded that Mr Casson give him the money in the till. He then raised and pointed the barrel of a gun at Mr Casson’s head. A customer, Mr Carpentieri, gave evidence that the gun appeared ‘army green’ and half a metre in length. This described appearance was similar to that of the firearm seized from within a silver Commodore at the appellant’s address on 5 November 2021. The man told Mr Casson to open the till and ‘don’t touch any other buttons’. The man indicated that he only wanted the notes and not the coins. When Mr Casson opened the till, the man looked in and said, ‘Is that all?’ Mr Casson explained they had only just opened. The man then asked for Mr Casson’s wallet. Mr Casson gave the male the cash from his wallet, which he put, with the other cash, in a black vinyl bag. The man left the store, fleeing towards Waterloo Corner Road. Another witness, Ms Enoka, filmed the man fleeing the scene. On the prosecution case, this was consistent with the man heading towards Waterloo Corner Road. The witnesses described the man to be about six foot tall, Caucasian and in a grey or brown ‘hoodie’ and long pants. This clothing was similar to clothing worn by the appellant in photographs on his mobile phone. The man’s face was covered by a red cloth that had some type of pattern in it. Mr Casson gave evidence that the visible part of the gun barrel was black. The gun was covered with a red and white striped tea towel. At the approximate time the robbery was committed, the appellant’s phone was connected to the Salisbury North cell tower. The Trinity Medical Centre is within an approximately one-kilometre radius of this tower. The appellant’s partner at the time of the offending, Ms Platt, gave evidence for the prosecution. She said that she picked the appellant up on that day between 10:00 am and 11:00 am from Waterloo Corner Road. They went to a Smokemart. CCTV from the Smokemart was obtained and tendered at the trial which showed the appellant wearing slightly different clothing from that captured on CCTV at the Trinity Medical Centre. CCTV at 122 McKenzie Road captured the appellant returning to his home address carrying a similar bag to the one that was alleged to have been used at the robbery. Count 2: Ingle Farm National Pharmacy On 2 November 2021, Ms Petek was the store attendant at the National Pharmacy in Ingle Farm. She was the sole witness in relation to Count 2. At about 4:00 pm, a man entered the store and walked straight to the counter. He handed her a plastic supermarket bag and demanded cash. Ms Petek took the money out of the till and placed it in the bag. She asked the man whether he wanted the coins. He said, ‘just give me that [bag]’. He told her not to press anything until he was out of the store. He then left the store.

Evidence

Evidence Before The Court

Since these cases, Parliament has enacted s 34P of the Evidence Act 1929 (SA) (‘Evidence Act’) which provides, 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.(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. The threshold test for admissibility of similarity of account reasoning under s 34P(2)(a) is now simply that the probative value of the evidence outweighs its prejudicial effect. In R v C, CA,[10] Kourakis CJ explained the probative value of similarity of account reasoning in this context:[11]The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender.…The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complainants might be expected if the complainants for reasons, conscious or sub‑conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged. [10] [2013] SASCFC 137.[11] R v C, CA [2013] SASCFC 137 at [61]-[65].

Decision

Reasons for decision

We grant leave to appeal on Ground 3 but dismiss the appeal. Conclusion We refuse leave to appeal on Ground 1. We grant leave to appeal on Ground 3. We dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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