Carr (a pseudonym) v The King

The appeal before the Full Court of the Supreme Court of South Australia concerned Mr Carr, the appellant, who was convicted of indecent assault. The complainant testified about three occasions of indecent assault. Mr Carr did not object to the admission of evidence relating to the first two occasions and did not complain about its admission on appeal. The sole ground of appeal was that the trial judge failed to direct the jury in accordance with section 34R of the *Evidence Act 1929* (SA). The Director of Public Prosecutions conceded the failure to direct but contended that the proviso to section 34R should apply, arguing that no substantial miscarriage of justice had occurred.

The legal issue before the Full Court was whether the trial judge's failure to direct the jury on the permissible and impermissible uses of the evidence of the first two occasions constituted a miscarriage of justice. This required the Court to consider whether, despite the conceded misdirection, the jury would have inevitably returned the same verdict, or whether the error was so material that the conviction could not stand. The Court had to determine if the prejudicial effect of the evidence, if misused by the jury, outweighed its probative value in a way that undermined the fairness of the trial.

The Court accepted that the jury might have used the evidence of the first two occasions to enhance the credibility and reliability of the complainant's testimony. However, the Court found the conceded error of law to be material. The absence of directions mandated by section 34R meant the jury was not guided on how to properly use the probative substance of the earlier occasions or how to disregard their inherently prejudicial effect. The Court reasoned that such directions are crucial to ensure juries understand the permissible and impermissible uses of such evidence, particularly in cases involving serious offences, to prevent unfair prejudice against an accused who benefits from the presumption of innocence. Consequently, the Court could not be satisfied that the jury's verdict was not influenced by prejudicial reasoning and, therefore, could not be satisfied beyond reasonable doubt that the offence was proved. The appeal was allowed, the conviction was set aside, and a new trial was ordered.