Allan v The King

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.