Bannah v The King; Zahinda v The King

Case [2025] SASCA 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BANNAH v THE KING; ZAHINDA v THE KING

[2025] SASCA 89

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Nicholson)

21 August 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS

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 - GENERALLY

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

Appeals against conviction.

The appellants were tried by jury on the same Information. The alleged offending occurred at a party which both appellants attended. The offending was alleged to have occurred against the same complainant. The prosecution did not allege that there was a connection between the appellants offending beyond these general factors. They were found guilty of one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”). Bannah was also found guilty of attempted rape contrary to ss 48(1) and 270A of the CLCA. Zahinda was also found guilty of, dissuade or attempt to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3)(a) of the CLCA. At trial, the complainant purported to identify Bannah, but did not identify Zahinda. However, Zahinda was identified by another witness, Ms Jomah. The complainant’s credibility and reliability were in issue in both cases.

The main grounds of appeal were:

•the verdict of the jury was unreasonable having regard to the evidence (Bannah Ground 1);

•there was an error of law, or alternatively, a miscarriage of justice, by reason of the joinder of the trials (Bannah Ground 4 and Zahinda Ground 6);

•the judge’s directions as to the credibility and reliability of the complainant were inadequate (Bannah Ground 5);

•there was a miscarriage of justice occasioned by the admission of the contents of the complainant’s conversation with Matha following the alleged offence (Bannah Ground 6);

•the directions on the topic of initial complaint were inadequate (Zahinda Ground 8).

Held (by the Court), allowing Zahinda’s appeal on Ground 8 and remitting his matter for retrial, and allowing Bannah’s appeal on Ground 1, setting aside his conviction and entering a verdict of not guilty:

1.The trial Judge directed the jury to have regard to the credibility and reliability of the complainant and Ms Jomah on a global basis. In doing so, the judge permitted inadmissible material to be admitted in both cases.

2.Bannah did not obtain any forensic advantage by reason of the joint trial. His…

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Bannah v The King; Zahinda v The King [2025] SASCA 89
Case
[2025] SASCA 89
Decision Date

CaseChat Overview and Summary

This matter concerned appeals by Bannah and Zahinda against their convictions. The central dispute revolved around the trial judge's directions to the jury regarding the credibility and reliability of key prosecution witnesses, AK and Ms Jomah, in a joint trial. The Court of Appeal considered whether these directions, and the conduct of the joint trial itself, had led to a miscarriage of justice.

The legal issues before the Court of Appeal included whether the trial judge erred in directing the jury to consider the credibility and reliability of AK and Ms Jomah on a global basis, thereby potentially admitting inadmissible material against one or both accused. The court also had to determine if the joint trial was appropriate in the circumstances, given the potential for prejudice and the nature of the evidence led against each accused.

The Court of Appeal reasoned that the trial judge's direction to consider the witnesses' credibility and reliability on a global basis, even without objection from counsel, effectively permitted inadmissible material to be considered by the jury in relation to both accused. The court found that while joint trials can be appropriate, in this instance, there was no compelling basis for such a trial, as there was no possibility of a cut-throat defence or inconsistent verdicts. The court highlighted that the direction, by allowing the jury to assess the witnesses' credibility globally, failed to adequately separate the evidence relevant to each accused, leading to a potential miscarriage of justice.

The Court of Appeal allowed the appeals, quashed the convictions, and ordered new trials for both Bannah and Zahinda.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial Judge, on the question of the credibility and reliability of AK, gave the following direction:It is also relevant on both cases to consider any evidence that affects the credibility and reliability of the complainant and Miss Jomah including intoxication and any prior inconsistent statements or omissions that they have made. Any evidence that affects the credibility and reliability can be considered with respect to the evidence about the other accused. But only to the extent that it affects or relates to their credibility and reliability; that is the substance of the evidence is not relevant. It is just a question of whether it has caused you to make an assessment, perhaps a negative assessment, about their credibility and reliability.(emphasis added) The trial Judge directed the jury to have regard to the credibility and reliability of AK and Ms Jomah’s evidence on a global basis. No doubt in giving that direction he was influenced by the way in which Zahinda conducted his case. The prosecution had also sought to use the combined effect of AK and Ms Jomah’s evidence to support their credibility and reliability. No counsel objected to the trial Judge’s direction. An accused is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him or her is admissible evidence and that he or she is not exposed to prejudice by the introduction of material which is irrelevant or, in some situations, only marginally relevant. By directing that the jury could have regard to their assessment of AK and Ms Jomah’s credibility and reliability on a global basis, the trial Judge permitted, without objection, inadmissible material to be admitted in both cases. As discussed earlier, where charges arise out of the same event, separate trials may still be appropriate where the evidence to be led against one accused is significantly different from that to be led against another. In joint trials involving the tender of evidence admissible against one co-accused but not the other, some prejudice to one or other accused is almost inevitable. The fact that a jury sitting on a joint trial might be exposed to evidence that is inadmissible against one accused is not necessarily a reason to order separate trials. However, in this matter there was no compelling basis for a joint trial. There was no possibility of a cut-throat defence nor a possibility of inconsistent verdicts. That there would be difficulties in instructing a jury to consider the credibility and reliability of AK and Ms Jomah separately in each case is obvious. At trial, inconsistencies in AK’s evidence against Bannah had the potential to benefit Zahinda. The same can be said for inconsistencies in Ms Jomah’s evidence. However, there was no obvious benefit to Bannah in having his trial heard at the same time as Zahinda. AK did not identify Zahinda. Indeed, there were clear disadvantages in Bannah having his case heard together with the charges against Zahinda.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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