Brant v The King

The appellant, Brant, appealed to the Supreme Court of South Australia against his conviction for sexual offences against his stepdaughter. The appeal concerned the admissibility of two pieces of evidence: a comment made by the appellant about a woman in a pornographic film being the complainant, and an alleged telephone call from the appellant to the complainant asking if her intended conversation with her mother was about what he had done to her.

The primary legal issues before the Court were whether the trial judge erred in admitting the evidence of the pornography comment and the alleged telephone call. Specifically, regarding the pornography comment, the Court had to determine if it constituted "discreditable conduct" under section 34P of the Evidence Act 1929 (SA) and, if so, whether its probative value outweighed its prejudicial effect. For the alleged telephone call, the Court considered its admissibility in the context of the appellant's right to silence and the potential for it to be unfairly prejudicial.

The Court found that the pornography comment was indeed evidence of discreditable conduct under section 34P of the Evidence Act. It reasoned that the context in which the comment was made – to the complainant's ex-husband while watching pornography, and concerning his partner's daughter – rendered it discreditable. Consequently, for the evidence to be admissible, the trial judge was required to be satisfied that its probative value, for a permissible use, outweighed any prejudicial effect. The Court concluded that the trial judge erred in admitting this evidence without adequately undertaking this balancing exercise. Similarly, the Court found that the alleged telephone call was also inadmissible, as it carried a significant risk of unfair prejudice and was not sufficiently probative to warrant its admission, particularly given the appellant's exercise of his right to silence.

The Court allowed the appeal on these grounds, quashed the conviction, and ordered a new trial.