MDM v The Queen - [2020] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
MDM v THE QUEEN
[2020] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
3 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
Appeal against conviction and sentence.
The appellant, MDM, was charged with two counts of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA), as to two complainants, KMA and RAM (Counts 1 and 3), and one count of indecent assault contrary to s 56 of the CLCA (Count 2). The alleged offending occurred between 1990 and 1999 when both KMA and RAM were persons under the age of 17 years.
On 19 November 2019, after a trial by Judge alone in the District Court, MDM was acquitted of Count 2 and convicted on Counts 1 and 3. He now appeals on the following grounds:
1. The Judge erred in using the complainants’ evidence for propensity purposes when the evidence was not tendered for that purpose, and in so doing failed to afford the appellant procedural fairness.
2. The Judge erred in finding the evidence of each complainant cross-admissible against the other (Counts 1 and 3).
3. The Judge erred in finding that there was a “relationship” between the defendant and the complainant, and the Judge misdirected himself as to what was required to establish a relationship, and as to what was required to establish that, or alternatively failed to find that, the defendant maintained such a relationship.
4. The Judge erred in law by failing to give reasons for verdict that adequately explained the process of reasoning to guilt and, in the alternative, the reasoning was inadequate so as to give rise to a miscarriage of justice.
Held per Kourakis CJ (Kelly J agreeing) granting permission to appeal, allowing the appeal and ordering a re-trial:
1. The trial Judge denied the appellant an opportunity to make submissions against the admission, and on the weight, of the testimony of KMA and RAM as to the offending against each of them as propensity evidence in the prosecution case against the other, after the prosecution had eschewed reliance on any such use.
2. It is not strictly necessary to decide whether the evidence of each of the complainants was admissible under s 34P(2)(b) of the Evidence Act 1929 (SA).
3. To be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence does not necessarily require a greater degree of similarity than is required for propensity evidence.
4. There is no doubt that the appellant maintained a de facto familial, and a residential, relationship with KMA and RAM.
5. The proviso cannot be applied in circumstances in which procedural fairness has been denied on a forensic issue of substance and in a case in which the similarity of account evidence has been erroneously evaluated.
Held per Peek J (Kourakis CJ and Kelly J agreeing) granting permission to appeal, allowing the appeal and ordering a re-trial:
1. The Judge misdirected himself as to the test for cross-admissibility under s 34P(2)(a) of the Evidence Act 1929 (SA) (the Act). This is a serious error of law, unless one were to be satisfied that it were a mere typographical error; and in the present circumstances it is impossible to be so satisfied. However, since the evidence of the complainants was cross-admissible on an improbability/coincidence reasoning basis under s 34P(2)(a) of the Act, it follows that the making out of this second contention would not, taken by itself, have led to a successful appeal. Evidence Act 1929 (SA) s 34P referred.
2. The Judge misdirected himself as to the way in which similarity of account evidence should be approached. Evidence Act 1929 (SA) s 34P referred. The Queen v C, CA [2013] SASC 137; DES v The Queen [2020] SASCFC 32 discussed.
3. There were breaches of s 34Q and s 34R of the Act by the Judge. Evidence Act 1929 (SA) ss 34P, 34Q and 34R referred. The Queen v C, CA [2013] SASC 137 discussed; Perera-Cathcart v The Queen (2017) 260 CLR 595 considered.
4. Permission to appeal is refused on the proposed ground that the Judge erred in finding that the appellant maintained a relationship with the complainant on Count 3. The Queen v M, DV (2019) 133 SASR 470; R v Mann [2020] SASCFC 69 discussed.
5. The verdicts, convictions and sentence on Counts 1 and 3 are set aside, and are to be re-tried by a different District Court Judge sitting alone.
Held per Peek J granting permission to appeal, allowing the appeal and ordering a re-trial:
1. In apparently treating the evidence of the two complainants as cross-admissible under s 34P(2)(b) of the Act, the Judge failed to afford procedural fairness to the defendant in that he did not have the opportunity to submit against that course or on the weight of the evidence, the prosecutor having disavowed reliance upon s 34P(2)(b). Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1995 (NSW) ss 97, 97A; Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW); Evidence Act 1929 (SA) s 34P referred. R v Maiolo (No 2) (2013) 117 SASR 1; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; McPhillamy v The Queen (2018) 92 ALJR 1045; R v Fleming; R v Maher (2017) 129 SASR 27; Ribbon v The Queen (2019) 134 SASR 328 discussed; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 61 ALJR 1; R v Dawson-Ryan (2009) 104 SASR 571; The Queen v C, CA [2013] SASC 137 considered.
2. While the evidence of the two complainants was cross-admissible under s 34P(2)(a) of the Act, it is strongly arguable that it was not cross-admissible under s 34P(2)(b) in that the probative value of the evidence did not satisfy the combination of conditions to admissibility in s 34P(2)(a), s 34P(2)(b) and s 34P(3). Evidence Act 1929 (SA) s 34P; Evidence Act 1995 (NSW) ss 97, 97A, 98; Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) referred. Saoud v The Queen (2014) 87 NSWLR 481; Hughes v The Queen (2017) 263 CLR 338; The Queen v C, CA [2013] SASC 137; The Queen v C, CN (2013) 117 SASR 64; BNM v The Queen [2020] SASCFC 10; R v Wickers (2019) 134 SASR 504; R v Jones (2018) 131 SASR 532; The Queen v MJJ (2013) 117 SASR 81; R v Roberts (2019) 134 SASR 483; Ribbon v The Queen (2019) 134 SASR 328; Hoch v The Queen (1988) 165 CLR 292 discussed; The Queen v MJJ (2013) 117 SASR 81; R v Bonython-Wright (2013) 117 SASR 410; R v Wickers (2019) 134 SASR 504 considered.
Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34O, 34P, 34Q, 34R, 34S; Evidence Act 1995 (NSW) ss 97, 97A, 98; Evidence Act 1995 (Cth) s 97; Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), referred to.
BBH v The Queen (2012) 245 CLR 499; BNM v The Queen [2020] SASCFC 10; DES v The Queen [2020] SASCFC 32; DL v The Queen (2018) 266 CLR 1; Hoch v The Queen (1988) 165 CLR 292; Hughes v The Queen (2017) 263 CLR 338; McPhillamy v The Queen (2018) 92 ALJR 1045; Pfennig v The Queen (1995) 182 CLR 461; Ribbon v The Queen (2019) 134 SASR 328; R v Fleming; R v Maher (2017) 129 SASR 27; R v Maiolo (No 2) (2013) 117 SASR 1; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Bonython-Wright (2013) 117 SASR 410; R v Jones (2018) 131 SASR 532; R v Mann [2020] SASCFC 69; R v Roberts (2019) 134 SASR 483; R v Wickers (2019) 134 SASR 504; Saoud v The Queen (2014) 87 NSWLR 481; The Queen v C, CA [2013] SASC 137; The Queen v C, CN (2013) 117 SASR 64; The Queen v M, DV (2019) 133 SASR 470; The Queen v MJJ (2013) 117 SASR 81; The Queen v M, MD [2019] SADC 173, discussed.
De Jesus v The Queen (1986) 61 ALJR 1; IMM v The Queen (2016) 257 CLR 300; Perera-Cathcart v The Queen (2017) 260 CLR 595; R v Bonython-Wright (2013) 117 SASR 410; R v Dawson-Ryan (2009) 104 SASR 571; R v Wickers (2019) 134 SASR 504; Sutton v The Queen (1984) 152 CLR 528; The Queen v C, CA [2013] SASC 137; The Queen v MJJ (2013) 117 SASR 81, considered.

MDM v THE QUEEN
[2020] SASCFC 80
Court of Criminal Appeal: Kourakis CJ, Kelly and Peek JJ

KOURAKIS CJ: I would join in the orders proposed by Peek J for the following reasons.
I would allow the appeal on Ground 1 because the trial Judge denied the appellant an opportunity to make submissions against the admission, and on the weight, of the testimony of KMA and RAM as to the offending against each of them as propensity evidence in the prosecution case against the other, after the prosecution had eschewed reliance on any such use. I acknowledge that there is some ambiguity in the Judge’s reasons as to the evidence on which he relied to reach his verdicts. However, as a general proposition it should be accepted that a verdict is based on the entirety of the relevant and admissible evidence. In this case, it is plain that the Judge accepted that the evidence of each of the complainants disclosed a propensity to commit the charged offences. The paragraphs of the Judge’s reasons, which the Director contends show that the evidence found to be cross-admissible was not used, do not clearly state that the evidence was put to one side. Indeed, it is difficult to understand why the Judge would have grappled with the admissibility of the evidence for that purpose if he had found it unnecessary to resort to it and had determined to ignore it. Moreover, I agree with the observation of Peek J that ‘it is impossible to eliminate the real possibility that the evidence of KMA did have a real effect on Judge’s consideration of the evidence of RAM (and vice versa)’.
It is important to observe here that the admissibility of evidence is a question of law. It is open to this Court to confirm, or set aside as erroneous, the Judge’s ruling that the evidence was admissible for a propensity purpose. However, the course taken by the Judge also denied the appellant an opportunity to make submissions on its weight and, in particular, on the question of whether it was capable of removing any doubt which the Judge may have entertained on the testimony of the complainants alone. It is for that reason that there must be a retrial.
I next deal with the separate contentions put by the appellant on Ground 2. I start by observing that it is not strictly necessary to decide whether the evidence of each of the complainants was admissible under s 34P(2)(b) of the Evidence Act 1929 (SA) (the Evidence Act), because the appeal must be allowed and a retrial ordered on Ground 1 for the failure to accord procedural fairness. It is unlikely that the use of the evidence for propensity purposes will again arise, given the prosecution’s disavowal at the trial and on appeal of any reliance on propensity reasoning. Moreover, the cross‑admissibility of the testimonies of the complainants for propensity purposes only arises if the evidence of each complainant is first accepted as credible and generally reliable. Only then could the testimony of each of them be used circumstantially as propensity evidence in the prosecution of the offending against the other. To allow the use of their evidence in that way, it is sufficient that it be accepted as credible. It is not necessary to go further and to find the offending against one or other of them is proved beyond reasonable doubt, when evidence of a relevant propensity is but one item of a body of circumstantial evidence because, as such, it is not an indispensable step in reaching a guilty verdict. Nonetheless, a two-staged approach to the assessment of the complainants’ evidence, in which the evidence of one is relied on after an initially favourable, but not conclusive, assessment of her evidence, involves great subtlety of reasoning. It is difficult enough for a Judge, to say nothing of the complexity of the direction which would need to be given to a jury. It is an exercise which might have utility when there is independent evidence strongly corroborating the testimony of only one of several complainants. So too, as Peek J observes, when there are many complainants. This case does not fall within either of those examples. Finally, the more important permissible use of the evidence in a case like this is improbability reasoning, that is to say, the evaluation of the improbability of RAM and KMA independently concocting a story of similar criminal offending by the same man. It is that reasoning, to which I will return below, which both enhances the credibility and reliability of each complainant, and ultimately may support a finding beyond reasonable doubt of the commission of the offences.
The High Court authorities referred to in the judgment of Peek J, Hughes v The Queen,[1] R v Bauer,[2] and McPhillamy v The Queen (McPhillamy),[3] all deal with the admission of tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) (the NSW Act). Section 97 provides:
[1] (2017) 263 CLR 338.
[2] (2018) 266 CLR 56.
[3] (2018) 92 ALJR 1045.
97The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a)the evidence is adduced in accordance with any directions made by the court under section 100, or
(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note. The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
Section 97A was recently inserted by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the Tendency and Coincidence Amendment Act), which was assented to on 10 June 2020 and commenced on 1 July 2020. Section 97A provides:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)—
(a)     tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),
(b)     tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account—
(a)     the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act),
(b)     the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred,
(c)     the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act,
(d)     the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act,
(e)     the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,
(f)     the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features,
(g)     the level of generality of the tendency to which the tendency evidence relates.
(6)In this section—
child means a person under 18 years of age.
child sexual offence means each of the following offences (however described and regardless of when it occurred)—
(a)     an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or
(b)     an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or
(c)     an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b),
but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
The probative value of tendency or coincidence evidence depends on the extent to which it affects the probability of the fact in issue on which it bears. Section 97A reflects the judgment of the Parliament of New South Wales, that evidence of a sexual interest, whether acted on or not, in children, is strongly probative as tendency evidence. Its enactment may well affect the result in cases like McPhillamy.
Be that as it may, it is necessary for the courts of this State to maintain their focus on the terms of s 34P of the Evidence Act. The evaluation of the probative value of discreditable conduct evidence for the purpose of that section is, of course, fact and issue sensitive. However, speaking generally, evidence of sexual proclivity is relevant in the trial of an offence apparently committed for a sexual purpose. Adult, heterosexual or homosexual, orientation is common enough for evidence of it to be unnecessary. However, that is not so for paedophilic inclinations in cases of sexual offending against children. Indeed, it is not uncommon for persons convicted of sexual offences against children, in a family or residential context, to be in an adult sexual relationship. Moreover, a complainant’s evidence is often impugned as unreliable by reason of his or her immature cognitive development at the time of the offending. Evidence of a paedophilic proclivity strongly rebuts inherent doubts of that kind which might otherwise afflict a complaint of child sexual abuse, particularly if the accused’s sexual preferences are not known, or appear to be adult orientated.

However, to be admissible as evidence of propensity the discreditable conduct evidence must be more than relevant. It must overcome the threshold required of both subparagraph (a) and (b) of s 34P(2) of the Evidence Act. It must be both strongly probative and substantially outweigh the prejudicial effect of the evidence. I so held in R v MJJ; R v CJN,[4] R v Bonython‑Wright[5] and R v C, CA.[6] Kelly J expressed the same view in R v Wickers.[7]
[4] (2013) 117 SASR 81 at [13]-[17].
[5] (2013) 117 SASR 410 at [41], [44].
[6] [2013] SASCFC 137 at [79].
[7] (2019) 134 SASR 504 at [114]-[117]. The question whether both thresholds need to be met was commented on parenthetically in R v Jones (2018) 131 SASR 532. The observations in that case of Nicholson J (at [35]) were made in obiter. My concurrence with his Honour’s reasons did not manifest any change in view on my part.
In applying those threshold conditions for admissibility, it cannot be assumed that a person’s sexual instincts, as ingrained as they commonly are, will never change, or that he or she will act on them whenever it is possible to do so. For the evidence to be strongly probative it is necessary to identify common features which are capable of linking the offences and demonstrating a tendency to offend in the way, and in circumstances of the kind, alleged.
The details of the offending recounted by KMA and RAM are set out in the judgment of Peek J. They are broadly similar. They were committed within a span of a decade, from the first offence against KMA to the last against RAM, with an interruption of four years between the two series. In the intervening period the appellant was not in a familial relationship. It is a significant feature of the offending that it was committed at night when KMA and RAM appeared to be asleep and no‑one else in the house was awake. The mode of offending, and its timing, suggests that the appellant acted on his sexual interest in young girls when he had easy access to their bedrooms, and at a time, and in a way, which minimised the risk of complaint from his victims and the risk of discovery by others. The offences were also committed in a period during which the appellant’s capacity for self‑control was likely to be impaired by his heavy alcohol use. Those combined circumstances provide a strongly arguable case for the cross-admissibility of the evidence for propensity purposes.[8] Of course, the consideration mandated by s 34P(3) of the Evidence Act, as Peek J observes, is important in this respect. The similarities must be such as to sufficiently distinguish a particular proclivity of the kind I have just adumbrated from a more general sexual interest in children in order for the probative value of the evidence to substantially outweigh its prejudicial effect. However, as I earlier observed, it is not necessary to finally decide that question, and in any event, the stronger foundation for the cross-admissibility of the evidence is as similarity of account evidence. The use of the evidence for that purpose also has greater practical utility. It is to that use which I will now turn.
[8] Hughes v The Queen (2017) 263 CLR 338 at [58].
Staying with the Uniform Evidence Act provisions for comparative purposes, s 98 of the NSW Act deals with the use of similarity in evidence of events to disprove coincidence as follows:
98The coincidence rule
(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
(1A)To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
(2)Subsection (1) (a) does not apply if—
(a)     the evidence is adduced in accordance with any directions made by the court under section 100, or
(b)     the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
Subsection (1A) was also enacted by the Tendency and Coincidence Amendment Act. On its face, the recent addition of subsection (1A) now expressly permits the use of evidence described in the judgments of this Court, on the application of s 34P of the Evidence Act, as similarity of account evidence.
In this State, the evidence of complainants in multiple victim cases has often been held to be cross-admissible because of the improbability of complainants giving similar accounts of offending by the same person unless their accounts were true. The admissibility of the evidence on that basis has been facilitated by the statutory abrogation of the common law rule of evidence, first stated in Hoch v The Queen,[9] which had required the trial Judge to exclude the possibility of concoction before admitting the evidence of one of a number of complainants in the case against the accused on offending against another complainant. This Court has not held that the degree of similarity required to give similarity of account evidence sufficient probative value to substantially outweigh its prejudicial effect extends to the degree of similarity required to show an identity in modus operandi.[10] It is not possible to make such a general statement. The reasoning in both is analogous but not identical. The former reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred; the latter concerns the improbability of two different offenders committing offences in a very similar way. The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability. For those reasons, I do not accept that, to be sufficiently probative to substantially outweigh its prejudicial effect, similar account evidence necessarily requires a greater degree of similarity than is required for propensity evidence.
[9] (1988) 165 CLR 292.
[10] R v C,CA [2013] SASCFC 137 at [65]; R v Bonython-Wright (2013) 117 SASR 410 at [48]-[51].
The issue on the appellant’s trial was whether the evidence of KMA and RAM was sufficiently reliable to prove the offences. An important aspect of that issue was whether it was a mere coincidence that two young, pre‑teenage girls in his care as a de facto parent at different times should independently concoct or imagine accounts that:
·they were sexually abused in broadly similar ways when they were a similar age;
·the perpetrator was the appellant; and
·by-and-large the offending occurred during clandestine night-time visits to their beds.
In the absence of any evidence of another reason for the close similarities in their evidence, it was highly improbable that KMA and RAM would happen independently to imagine or fabricate those accounts about the accused. Moreover, improbability reasoning is so markedly different from any form of bad person reasoning that the consideration mandated by s 34P(3) of the Evidence Act is more easily satisfied. The probative value of the evidence of each of them, in the case against the accused relating to the other, therefore substantially outweighed any prejudicial effect of their evidence.
The second, third and fourth contentions put in support of Ground 2 are made out for the reasons given by Peek J.
On Ground 3, there is no doubt that the appellant maintained a de‑facto familial, and a residential, relationship with KMA and RAM. I refer to my reasons in R v Mann.[11]
[11] [2020] SASCFC 69.
The proviso cannot be applied in circumstances in which procedural fairness has been denied on a forensic issue of substance and in a case in which the similarity of account evidence has been erroneously evaluated
KELLY J: I would join in the orders proposed by Peek J for the reasons given by the Chief Justice.
PEEK J: Appeal against conviction and sentence.
Introduction
The appellant, Mr MDM (MDM) was charged on Information with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[MDM] at Pinery, between the 1^st day of June 1990 and the 30^th day of November 1992, maintained an unlawful sexual relationship with [KMA], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [KMA], namely:
(a)     touching her on the vagina on more than one occasion; and
(b)     penetrating her labia majora on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[MDM] between the 1^st day of April 1994 and 24 April 1994 at Mansfield Park, indecently assaulted [KMA] by touching her on the buttocks.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[MDM] at Enfield, between the 15^th day of December 1996 and the 9^th day of August 1999, maintained an unlawful sexual relationship with [RAM], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [RAM], namely:
(a)     touching her on the vagina on more than one occasion; and
(b)     inserting a finger into her vagina on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
MDM was tried by a Judge alone in the District Court. On 19 November 2019, he was acquitted of Count 2 and convicted on Counts 1 and 3. He was later sentenced to 16 years imprisonment with a non-parole period of 12 years, nine months, and 19 days (backdated to 19 November 2019 when he was taken into custody). He now appeals against the convictions on the following grounds:[12]
[12] Permission to appeal has been granted on Grounds 1 and 2. Permission to appeal is sought on Grounds 3 and 4.
(1)The learned trial judge erred in using the complainants’ evidence for propensity purposes when the evidence was not tendered for that purpose, and in so doing failed to afford the appellant procedural fairness, and contravened ss 34Q and 34R of the Evidence Act 1929 (SA).
(2)The judge erred in finding the evidence of each complainant cross-admissible against the other (Counts 1 and 3).
(3)The judge erred in finding that there was a “relationship” between the defendant and the complainant that was in addition to proof of the commission of multiple unlawful sexual acts (Count 3), and the judge misdirected himself as to what was required to establish a relationship, and misdirected himself as to what was required to establish that, or alternatively failed to find that, the defendant maintained such a relationship.
(4)The judge erred in law by failing to give reasons for verdict that adequately explained the process of reasoning to guilt, and in particular, failed:
(i)    to expose the extent of his reliance upon evidence found to be cross-admissible as between the counts;
(ii)     to explain the basis upon which the judge found the complaint evidence to be consistent with KMA’s testimony notwithstanding that he apparently preferred JDM’s evidence of the terms of the complaint;
(iii)    to explain the basis upon which he rejected the reasonable possibility of collusion between the complainants;
and, in the alternative, the reasoning on these matters was inadequate so as to give rise to a miscarriage of justice.
For the reasons that follow, I would allow the appeal against conviction and order a re-trial of Counts 1 and 3 in the District Court.[13]
[13] There is an appeal against that sentence but it is not necessary to consider it.
Since the trial was by Judge alone, there is a deal of overlap and intertwining as between Grounds 1, 2 and 4 but it is not necessary to deal with all of the alternative strands put forward by the appellant. This judgment is structured as follows:
Part A:      Background and overview of the evidence
Part B: Division 3 of the Evidence Act 1929 (SA)
Part C:      A trilogy of High Court cases (Hughes, Bauer and McPhillamy)
Part D:      Ground 1 of appeal – Procedural fairness
Part E:      Ground 2 of appeal – Cross-admissibility of evidence
Part F:      Ground 4 of appeal – Failure to give adequate reasons
Part G:      Ground 3 of appeal – “Maintaining a relationship”
PART A: BACKGROUND AND OVERVIEW OF THE EVIDENCE
MDM was born on 18 April 1964 and is a son of Mr HHM (HHM) who has had several children from more than one marriage. He is related to each complainant in the ways that appear below.
Count 1 relates to the first complainant (KMA) who was born on 16 October 1982 and was the daughter of Ms JDM (JDM). JDM later commenced a relationship with MDM and they commenced living together in 1983; they were married on 6 December 1986. Later, they had a male child (DM). They lived in a house in Kilburn (the Kilburn property) until purchasing a house in Pinery (the Pinery property) on 12 July 1990. The offending in Count 1 is alleged to have occurred between 1 June 1990 and 30 November 1992 at the Pinery property. Evidence was given that KMA complained to JDM about that alleged conduct in April 1992. In November 1992, JDM and KMA left the Pinery property. MDM and JDM separated, and later divorced, when KMA was 13 or 14 years old. In April 1994, JDM, KMA and DM moved to Tasmania.
Count 2 (of which MDM was acquitted) also concerned KMA. Sometime after KMA complained to JDM in April 1992, MDM moved from the Pinery property to live with Mr IR (IR) who resided in Mansfield Park, and when KMA was about 12 years old she visited IR and MDM there. In Count 2, it is alleged that during that visit MDM put his hand down the back of KMA’s pants and underwear and touched her on the bottom.
Dealing very briefly with Count 2, there were inconsistencies between the accounts of KMA and IR, including whether KMA was standing or sitting on MDM’s lap at the time. Indeed, IR stated that he saw nothing like KMA alleged occurred but only that KMA started to panic and run around, telling MDM to get away from her, and request to be taken to her grandmother’s house. During the car ride, KMA told IR that MDM touched her between her legs. It is unclear exactly what she meant, but IR interpreted this as meaning MDM touched KMA on her vagina. The trial Judge accepted IR to be a witness of truth, and that on the evidence before him there was doubt that the act charged occurred. His Honour was not satisfied that there was an assault committed as charged in Count 2 and MDM was therefore acquitted of Count 2.
Count 3 concerns the second complainant (RAM) who was born on 15 December 1987 and is the daughter of HHM and Ms DB (DB). (Since MDM is a son of HHM, it follows that RAM and MDM are half-siblings). The family relocated from Victoria to South Australia when RAM was about five years old. When RAM was seven years old, HHM and DB separated. Later, MDM and DB commenced a relationship and MDM moved in with DB and her daughter RAM at DB’s house in Enfield (the Enfield property). The offending in Count 3 is alleged to have occurred between 15 December 1996 and 9 August 1999 at the Enfield property. Evidence was given that in 1999 RAM complained about that alleged conduct to DB and that DB evicted MDM from the property. DB and RAM then relocated to a house in Blair Athol (the Blair Athol property). The relationship between MDM and DB later resumed but it ended in final separation when RAM was about 15 years old. In 2007, MDM married his current wife Ms RMM (RMM); KMA attended the wedding.
A table setting out relationships between persons of interest appears thus:[14]
[14] Adapted from Judge Slattery’s judgment.

Abbreviation

Descriptor

Mr MDM

The appellant; son of HHM; step-father of Ms KMA; half-brother and step-father of Ms RAM.

Mr HHM

Father of Mr MDM and Ms RAM (within two different relationships).

Ms DB

Mother of Ms RAM; a former partner of Mr HHM; also a former partner of the appellant.

Ms JDM

Mother of Ms KMA and Mr DM; ex-wife of the appellant.

Ms KMA

First complainant; daughter of Ms JDM; step-daughter of the appellant.

Ms RAM

Second complainant; daughter of Ms DB and Mr HHM; half-sister and step-daughter of the appellant.

Mr DM

Half-brother of Ms KMA; son of Ms JDM and the appellant.

Ms RMM

Current wife of the appellant.

A summary of the evidence of KMA

Abbreviation	Descriptor
Mr MDM	The appellant; son of HHM; step-father of Ms KMA; half-brother and step-father of Ms RAM.
Mr HHM	Father of Mr MDM and Ms RAM (within two different relationships).
Ms DB	Mother of Ms RAM; a former partner of Mr HHM; also a former partner of the appellant.
Ms JDM	Mother of Ms KMA and Mr DM; ex-wife of the appellant.
Ms KMA	First complainant; daughter of Ms JDM; step-daughter of the appellant.
Ms RAM	Second complainant; daughter of Ms DB and Mr HHM; half-sister and step-daughter of the appellant.
Mr DM	Half-brother of Ms KMA; son of Ms JDM and the appellant.
Ms RMM	Current wife of the appellant.

A summary of the evidence given by KMA which was relied upon by the prosecution is as follows.
MDM initially lived with KMA, JDM and DM in the Kilburn property, before relocating to the Pinery property when KMA was about eight or nine years of age. KMA described MDM as being like a father figure during this time, and stated that she continued to have a relationship with him, and called him ‘Dad’ up until a few years ago prior to the trial. She recalled her parents getting into verbal and physical fights and drinking. She described MDM as “being drunk a lot”.
KMA could not recall exactly how many times MDM touched her inappropriately while she resided at the Pinery property. She gave evidence that it was more than once, and believed it may have been more than five times, but could only distinctly recall three specific occasions. It is apparent that each instance occurred at night, but there were identifiable sources of light that enabled KMA to see MDM.
On the first specific occasion, KMA stated that she was asleep and awoke to see MDM kneeling or crouching beside her bed. She stated that he had his hands down beneath her blanket and underwear, with his fingers “in my vagina, not up inside my vaginal cavity, but just in – just in my lips and he was rubbing, rubbing around”. She described herself, at the time, as being in the foetal position. She could not recall what she was wearing – although she later said in cross-examination that she was wearing a nightgown – or the time of year. On this occasion, she remembered her bedside tables being together, against a wall, and with nothing on them. She further detailed the smell of MDM, remembering he smelled of weed (cannabis), dirty or dusty from his workplace (the Pea and Grain Factory), and of alcohol.

As to the second specific occasion, she recalled waking and seeing MDM walk towards her bed. KMA could not recall whether there were any toys on her bedside tables, but noted that this occurred after the tables had been moved to a position to either side of her bed. She did not recall what she was wearing, but described her nightwear more generally.
As to the third specific occasion, KMA recalled ‘My Little Pony’ toys on her bedside table. These toys held some significance for her. When KMA was nine years old, MDM had won about $600 on a radio show, ‘Beat the Bomb’. A portion of the money was spent on the toys, which KMA remembered selecting in the store. She recalled waking to find MDM crouched by her bed, but not yet touching her. The touching then occurred in circumstances similar to the other two incidents.[15]
[15] I note in passing that both at trial and on appeal there was a considerable challenge to the evidence of KMA on the basis that the evidence was chronologically inconsistent with the evidence of JDM who stated that the ‘My Little Pony’ toys were present at the Kilburn property, and the agreed fact that the radio station held no records as to when the competition was won. In the circumstances, it is not necessary to pursue this matter further.
It is unclear precisely when, in relation to these three specific instances, the other conduct that KMA described more generally occurred. She recalled that on one occasion she heard MDM unzip his pants. She remembered another occasion when she was wearing track pants under her nightgown, and while she was lying on her back MDM pulled her, moving her hips; and he put his hand down the side of her leg. She could not recall whether MDM touched her on her vagina on that occasion as everything “starts to be blurry”. She further stated that there was an occasion of indecent touching when she was wearing a nightgown, and a further occasion of indecent touching when she was wearing a full set of pyjamas. She stated that whenever MDM touched her vagina, it was always in “the same way”.
The first person KMA told about MDM touching her was her mother, JDM. It was towards the end of the family’s time at the Pinery property, at night, when KMA went into her mother’s bedroom and sat in bed next to her. While she could not recall the specific details, she distinctly remembered telling JDM that MDM touched her. According to KMA, JDM’s response was to call her a “fucken liar”, and ask, “why would you lie about something like that?”.
JDM stated in her evidence that KMA, when describing what had occurred to her, had said at the time “Daddy, please stop” or “Daddy, please don’t”. This is inconsistent with KMA’s evidence that she kept her eyes closed, and did not say anything.
It was when KMA was 14 years old and staying with MDM and DB at the Enfield property that she first heard about RAM making an allegation against MDM; this was on an occasion when DB recounted in her presence (and in the absence of RAM) that RAM had alleged that MDM had sexually abused her. KMA did not learn of any specific details of what the abuse entailed, either then, or some years later when she spoke to RAM herself about it. KMA gave evidence that during their most recent conversation they discussed the broad fact that they had both been sexually abused by MDM but did not discuss particular details.
A summary of the evidence of RAM
A summary of the evidence given by RAM which was relied upon by the prosecution is as follows.
RAM stated that although MDM could be described as a father figure, there was not much of a connection between them, as he “was drunk a lot”. She recalled MDM drinking to the point of intoxication every night.
RAM stated that MDM touched her indecently “probably at least 30-plus times”, starting when she was eight or nine years old. Although she could not recall with absolute certainty the frequency of these events, she stated that the frequency of the indecent touching increased over time. It comprised MDM putting his hand down her shorts, or up inside the leg of her shorts and touching her vagina. Sometimes he would rub the outside of her vagina; often he would rub her clitoris; and there were times he would insert a finger into her vaginal canal. Occasionally, he would also touch her breasts. RAM could recall eight or nine occasions when MDM touched her breasts on the outside of her clothing, but he would also always end up touching her vagina. Sometimes, she would cough and MDM would go away, other times this was not enough to deter him. The touching would have only lasted a few minutes, after which MDM would “generally just stumble back into his own bedroom”.
When the indecent touching started, RAM was sleeping in the room next to her mother’s room with the door open. RAM described a pattern of recurring conduct. She would be asleep in bed and wake upon hearing her mother’s bedroom door open, see lights come on, and the toilet flush. She assumed MDM had risen in the middle of the night to use the bathroom. After the toilet flushed, MDM would look into RAM’s room. The indecent touching stopped in 1999.
RAM also recounted that MDM smelt of “stale beer and cigarettes”. She also stated in cross-examination that he smelt like “a bag of split peas that had been drinking and smoking” from his work at the Pea and Grain Factory.
RAM stated that during some occasions of indecent touching she believed MDM was rubbing himself under his jeans at the same time as touching her. On one such occasion, she was sleeping in the top bunk in her room – in the hope of avoiding MDM’s conduct – and opened her eyes and saw MDM’s hand down the front of his jeans while he touched her on the vagina. She also recalled on that occasion that she was wearing her regular pyjamas, including a pair of white and pink pyjama shorts with a pink tie-up drawstring at the front; she believed that incident occurred in the warmer months as she was sleeping with a sheet from the cupboard.
RAM could not recall a time when MDM came into her room and did not touch her. There would have also been “four or five occasions” when MDM came into her bedroom, and urinated in the wardrobe, before proceeding to touch her. She also recalled a time when she believed that MDM urinated in her bed when she was not home, and a further occasion when he urinated in a linen closet.
RAM gave evidence of an occasion when MDM touched her when she was sleeping on the couch in the lounge room, when KMA and her boyfriend were sleeping on a mattress on the floor. She believed this occurred about Easter holiday time, when she was about 10 years old, and KMA was 15 or 16 years old. RAM stated that after going to bed she decided to sleep on the couch to prevent MDM from touching her, but she later awoke to find MDM touching her on her vaginal area on the outside of her pants. She recognised MDM’s smell of stale beer and his brand of tobacco, ‘White Ox’. She shifted and pressed the front side of her body against the couch to stop MDM. He waited a while before putting his hands up inside the leg of her shorts to touch her vagina from behind; touching her clitoris and putting his finger up her vaginal canal. This lasted for a minute or two. MDM stopped when RAM stirred.
RAM gave evidence of another occasion when she was sleeping on the bottom bunk in her bedroom, wearing her regular pyjamas. She described the incident as occurring in the warmer months, as she was wearing shorts and had only a sheet on her bed. She recalled waking to find MDM crouched over and touching her vagina, with the same smell of alcohol and cigarettes. She remembered MDM inserting his finger into her vagina when she woke up. This was the first time this had occurred, and it lasted for two or three minutes. She also stated that MDM had his hand touching his pants on the outside and at one point putting his hand down the front of his pants, which she saw when she briefly opened her eyes a couple of times. RAM recalled this incident on the bottom bunk happening before the one on the couch, and that it was between those two incidents that the incident on the top bunk occurred.
When RAM was in year 6, in 1999, she told someone at her school that MDM had been touching her, and the police and Child Protection Services became involved. RAM and her brother, DM, moved in with her Dad, HHM, and her mother, DB, who evicted MDM from the Enfield property. The family then moved to the Blair Athol property. However, after about a month to six weeks MDM moved back in, but he never touched RAM again.
MDM and DB permanently separated when RAM was 15 years old. She later lived with MDM and his new wife, RMM, when she was 17 to 18 years old as she had nowhere else to go.
RAM stated that she had conversations with KMA (who is RAM’s step-niece) about MDM, but never about the specific details of their allegations. RAM also gave evidence that, when she was seven or eight years old, she recalled overhearing adults saying that MDM had put his hand down KMA’s nappy when she was a baby. RAM confirmed in cross-examination that she had not spoken to KMA about the allegations, as she was told it would be better if the two did not discuss it, and so they did not do so.
PART B: DIVISION 3 OF THE EVIDENCE ACT 1929 (SA)
South Australia has not enacted the Uniform Evidence Law or adopted the Evidence Act 1995 (Cth) and the common law principles of the law of evidence applied here until 1 June 2012. However, the decision of the High Court in Pfennig v The Queen[16] occasioned legislative action in a number of Australian jurisdictions. In South Australia the Evidence Act 1929 (SA) (the Act) was amended by the enactment of Division 3: “Admissibility of evidence showing discreditable conduct or disposition” which commenced on 1 June 2012 and provided that its provisions prevailed over common law evidence rules to the extent of any inconsistency.[17] It relevantly provides as follows:
[16] (1995) 182 CLR 461.
[17] Sections 34O to 34T were enacted by the Evidence (Discreditable Conduct) Amendment Act 2011 (SA). Prior to that, the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Act 2008 (SA) had enacted amendments concerning joinder, severance and cross-admissibility in cases of sexual charges involving more than one complainant. These changes had come into effect on 23 November 2008 but were superseded or absorbed by the later amendment.
Division 3—Admissibility of evidence showing discreditable conduct or disposition
34O—Application of Division
(1) This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2) This Division does not apply to—
(a)      evidence adduced pursuant to section 18; or
(b)     evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
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 substantially 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.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
34S—Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b) the evidence may be the result of collusion or concoction.
The law in South Australia prior to 1 June 2012 and subsequent developments
In R v Maiolo (No 2) (Maiolo),[18] there appears a summary of the development of the common law up to 1 June 2012 entitled “From Makin to Pfennig at a gallop”. I will not repeat that here.
[18] (2013) 117 SASR 1, 14-17.
The effects of the enactment of Division 3 of the Evidence Act 1929 (SA)
Some of the effects of the enactment of Division 3 of the Act are as referred to in the following passage in the judgment of Vanstone J in The Queen v MJJ (with which I respectfully agree):[19]
[242] Section 34P(2) divides discreditable evidence into two categories. Section 34P(2)(a) deals with non propensity uses. Examples of these uses are seen in cases such as Wilson v The Queen (1970) 123 CLR 334 (evidence of marital discord prior to wife’s death by firearm); R v Tucker (1984) 36 SASR 135 (proof of theft of firearm later used to shoot victim as evidence of premeditation); R v Nieterink (1999) 76 SASR 56 (proof of uncharged acts of sexual nature not used to prove sexual interest). This last has often been referred to as relationship evidence. It introduces what I see as a requirement more demanding than the common law, namely that the probative value of the evidence “substantially outweighs any prejudicial effect”. Formerly, such evidence was admissible, but fell to be excluded as a matter of discretion if its prejudicial effect was adjudged to outweigh its probative value.
[243] Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest and such that to exclude the evidence would be “an affront to common sense”: Boardman at 456 per Lord Cross of Chelsea; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 at 320 per the court.
[244] In my opinion the changes made by ss 34P, 34Q, 34R and 34S may be briefly stated as follows:
1. The test for admissibility established in Hoch that propensity evidence, if accepted, bear no reasonable explanation other than the inculpation of the accused person and the offence charged no longer applies – see s 34S(a);
2. The possibility of collusion or concoction by the witnesses attesting to the similar events is no longer a ground for exclusion – see s 34S(b);
3. The exclusionary rule which formerly regulated the admission of propensity or disposition evidence is now extended so that it applies to discreditable evidence introduced for non propensity purposes – see s 34P(2)(a). For such evidence to be admissible the judge must now be satisfied that the probative value of such evidence “substantially outweighs any prejudicial effect it may have on the defendant”;
4. The criterion for admission of evidence tendered to demonstrate a particular propensity or disposition is now that the evidence has “strong probative value having regard to the particular issue or issues arising at trial” – see s 34P(2)(b).
[19] (2013) 117 SASR 81, 139-140.
PART C: A TRILOGY OF HIGH COURT CASES (HUGHES, BAUER AND McPHILLAMY)
While there are significant differences between Division 3 of the Act, which governs admissibility in this State, and the Uniform Evidence Law, there is some correspondence as between “improbability reasoning” and “propensity reasoning” (addressed in s 34P(2)(a) and (b)), on the one hand, and “coincidence reasoning” and “tendency reasoning”, respectively, as referred to under the Uniform Evidence Law, on the other. It is inevitable that decisions of the High Court as to the latter will have some influence on the approach to be taken in South Australia.
An important trilogy of High Court cases relevant to the present case is that of Hughes v The Queen (Hughes),[20] R v Bauer (a pseudonym) (Bauer)[21] and McPhillamy v The Queen (McPhillamy).[22] While chronologically second, it is convenient to refer first to Bauer for reasons that become apparent.
[20] (2017) 263 CLR 338.
[21] (2018) 266 CLR 56.
[22] (2018) 92 ALJR 1045.
R v Bauer: A defendant’s sexual attraction to a single complainant
To revert briefly to the historical analysis in Maiolo, it had there been stated:[23]
[67] In summary, it would seem that the trend of decisions of the High Court, and particularly the recent decision in BBH, may make more frequent the tender of uncharged acts as “sexual attraction evidence”, which is a form of propensity evidence rather than “relationship evidence” in the sense used in such cases as Nieterink. In South Australia, any such tender by the prosecution must be assessed by reference to the test of “strong probative value” which is now required by s 34P(2)(b) of the Evidence Act to satisfy the exclusionary principle which applies to propensity evidence. [Footnotes omitted; Emphasis added]
[23] (2013) 117 SASR 1, 26.
The decisional trend concerning the “sexual attraction” rationale exemplified in the then recent decision of the High Court in BBH v The Queen[24] did continue, culminating in the joint judgment of the seven present members of the High Court in Bauer. The correct approach to evidence of sexual attraction in single complainant cases was there adumbrated thus:[25]
[47] … The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
[48] Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
[49] As the trial judge in substance observed, it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.
…
[50] Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
[51] The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the “very high probative value” of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. [Footnotes omitted; Emphasis added]
[24] (2012) 245 CLR 499.
[25] Bauer (2018) 266 CLR 56, 81-83.

I will not consider further the matter of sexual attraction to a single complainant since it is not disputed in the present case that on Count 1 all of the evidence of alleged sexual offending against KMA was admissible on a sexual attraction basis qua Count 1; and on Count 2 all of the evidence of alleged sexual offending against RAM was admissible on a sexual attraction basis qua Count 2.
Rather, what is involved here is a question of cross-admissibility of evidence led on Count 1 when considering whether Count 2 is proven; and vice versa a question of cross-admissibility of evidence led on Count 2 when considering whether Count 1 is proven (the cross-admissibility issue). I now turn to that issue.
Cross-admissibility in sexual cases involving multiple complainants
The joinder of sexual charges is presently governed by s 102(6) of the Criminal Procedure Act 1921 (SA). Section 102 relevantly provides:
102 – Joinder and separation of charges
(1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.
…
(5)     A court may direct that—
(a)     charges contained in a single information be dealt with in separate proceedings; or
(b)     charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).
(6) Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
…
(9) In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B or 72 of the Criminal Law Consolidation Act 1935; or
(b)     an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a corresponding previous enactment; or
(d)     an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
If, as here, there are only two complainants and their evidence is not cross-admissible, a defendant is very likely to be successful in an application for severance in accordance with s 102(6). Thus in Maiolo it was stated:[26]
[126] A number of decisions of the High Court, originating with the decision in Sutton, clearly decide that where a number of sexual offences are charged on the one Information in relation to different complainants, the general rule is that they should not be tried together if the evidence on one count is not admissible on another count. Thus, Gibbs CJ in Sutton stated:
Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v Boardman [1975] AC 421, at pp 442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v Boardman [1975] AC 421, at p 459, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts.
[127] De Jesus v The Queen and Hoch are later decisions of the High Court to the same effect. It is the position, as both the prosecutor at trial and the judge accepted, that the above approach to severance remains applicable and that will be so at any re-trial conducted under the new provisions of the Evidence Act. [Footnotes omitted]
[26] (2013) 117 SASR 1, 42-43. The observations of logic and fairness in the decisions of the High Court in Sutton v The Queen (1984) 152 CLR 528, 540-541 (Brennan J), 561-563 (Dawson J) and De Jesus v The Queen (1986) 61 ALJR 1, 8-10 (Dawson J) still have force and lead to severance of charges against different complainants when cross-admissibility is not established in accordance with s 102(6)(b) of the Criminal Procedure Act 1921 (SA).
In Bauer, the repeated careful references to “a single complainant sexual offences case” as being the matter under consideration confirm that such a case stands on a very different footing to cases involving multiple complainants and the consequential cross-admissibility issue with which we are presently concerned. However, the Court in Bauer did state (in reference to the discussion in Hughes of the cross-admissibility issue):[27]
[57] The conclusion of the majority in Hughes that particular features of the offending imbued the subject tendency evidence with significant probative value reflected the process of probability reasoning that applies to cases where an accused is charged with a number of sexual offences committed against a multiplicity of complainants. …
[58] In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
[59] Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants. It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence. [Footnotes omitted; Emphasis added]
[27] (2018) 266 CLR 56, 86-88.
In Bauer, the Court did not further analyse what precisely is meant by the words (in emphasis above) “some feature of or about the offending which links the two together” or “some common feature of or about the offending” when considering cross-admissibility; as I say, the Court had no need to do so having regard to the fact that Bauer was a single complainant case. However, the cross-admissibility issue is of importance in the present case. It was considered by the High Court in both Hughes (although in the different legislative context of the Uniform Evidence Law) and in McPhillamy discussed below.
The decision of the High Court in Hughes v The Queen – “tendency evidence”
The decision of the High Court in Hughes concerned “tendency evidence” rather than “coincidence evidence” in the Uniform Evidence Law. The particular facts in Hughes are most important. There were 11 counts charging offences against some five female complainants (JP, SH, AK, EE and SM), all between six and 15 years old at the time of the offending. The prosecution sought to prove that the defendant had a tendency/propensity to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk. They did so by calling all five complainants but also a further six females (AA, BB and VOD who were domestic acquaintances of the defendant; and LJ, CS and VR who were business acquaintances of the defendant), all of whom gave evidence of uncharged offence of the same general type committed against them over the same time frame as the charges against the five complainants.[28] The defendant was convicted of 10 of the 11 charges, being convictions of offences against four of the five complainants.[29] All of the complainants and other witnesses knew him and were readily able to identify him.
[28] As well as the report of the High Court decision, I draw upon the decision of the NSW Court of Criminal Appeal in Hughes v The Queen (2015) 93 NSWLR 474 which is more detailed concerning some aspects of the facts.
[29] The acquittal concerned EE who was aged 15 at the relevant time (the oldest of complainants) and as to whom there was only that one charge.
The majority of the Court in Hughes stated:[30]
[39] Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
[30] (2017) 263 CLR 338, 355-356 (Kiefel CJ, Bell, Keane and Edelman JJ).
The majority later formulated the critical question going to admissibility in Hughes as being whether a jury would be unlikely to accept the crime occurred in the manner a particular complainant described if they were restricted to a consideration of that complainant’s evidence alone. Thus, their Honours stated:[31]
[59] Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.
[60] The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience. [Emphasis added]
[31] Ibid 361-362.
The test for admissibility of tendency evidence under s 97(1)(b) of the Evidence Act 1995 (NSW) was whether the evidence “could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent”.[32] As noted elsewhere herein, this is a significantly lower bar to admissibility than that in Division 3 of the Act. However, as to the strength of the evidence in the case of Hughes itself, the majority observed:[33]
[41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
[32] Ibid 348 [16]. See IMM v The Queen (2016) 257 CLR 300, 314 [46] (French CJ, Kiefel, Bell and Keane JJ).
[33] (2017) 263 CLR 338, 356-357. See further at pages 371-372 [90]-[93]. This assessment as to probative value was later applied and endorsed by the High Court in McPhillamy (2018) 92 ALJR 1045, 1051 [32].
The decision of the High Court in McPhillamy v The Queen
The recent decision of the High Court in McPhillamy (the third of the trilogy) confirms that the facts in Hughes had been very important.
In McPhillamy the facts were as follows. The appellant was tried in the District Court of New South Wales on six counts of sexual offences against A alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996 in the public toilets of the St Michael and St John’s Cathedral, Bathurst; at the time, A was an 11-year-old altar boy under the supervision of the appellant, an acolyte. The appellant denied the allegations.
At issue was the admissibility of the evidence of B and C that a decade before the alleged offending against A, the appellant had committed acts of sexual misconduct with them (which facts were undisputed by the appellant) and was received as tendency evidence (over the objection of the appellant). The plurality summarised the evidence thus:[34]
[6] “B” and “C” each gave evidence that he was a boarder at St Stanislaus’ College, Bathurst (“the College”) in 1985. Each had turned 13 in that year. At the time, the appellant was an assistant housemaster at the College. “B” said that on an occasion when he was homesick and upset he had gone to the appellant’s bedroom. The appellant cuddled him and this progressed to him rubbing “B”’s genitals. On a second occasion, the appellant approached “B” as “B” stood naked by his locker after showering. The appellant “grabbed both my arse cheeks and tried to, you know, separate them so to speak”. This did not last long because “B” “gave him a mouthful”. “B” later received a caning for swearing at the appellant.
[7] “C” gave evidence of an occasion when he too had been homesick and upset and had visited the appellant in the appellant’s room. The appellant massaged “C”’s shoulders and back. The massage progressed to the groin area and in the course of it, the appellant touched “C”’s genitals. On a subsequent occasion, the appellant massaged “C”, who was again feeling homesick. On this occasion “C” fell asleep on the appellant’s bed and woke to find the appellant kneeling beside him with his head near “C”’s groin. “C” felt a sensation of wetness around his penis. He got up and left the room. About a week later, the appellant apologised, saying that he had done the wrong thing and that he could be in a lot of trouble for it.
[34] McPhillamy (2018) 92 ALJR 1045 (Kiefel CJ, Bell, Keane and Nettle JJ).
The NSW Court of Criminal Appeal (by majority) dismissed the appeal, being divided on the question of whether the evidence of B and C had significant probative value.[35] However, the High Court unanimously allowed the further appeal. The plurality stated:[36]
[27] Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to “B”’s and “C”’s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against “A”.
…
[30] … It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with “B” and “C” is relevant to proof that he committed the offences alleged by “A”, but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
[35] Evidence Act 1995 (NSW) s 97(1)(b).
[36] McPhillamy (2018) 92 ALJR 1045 (Kiefel CJ, Bell, Keane and Nettle JJ).
While the passage of a decade undoubtedly was important to the decision, it is nevertheless also important to note the passage in the plurality judgment immediately following which deals with the requirement of some feature of the other sexual misconduct and the alleged offending which serves to link the two together[37] thus:[38]
[31] Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant’s tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over “A”, an altar boy, when the two were at the Cathedral for services in 1995‑1996. The evidence does not suggest that “A” was vulnerable in the way that “B” and “C” were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with “A”’s account that the appellant followed him into a public toilet and molested him.
[32] “B”’s and “C”’s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against “A” to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against “B” and “C” ten years before, in different circumstances, and without any evidence other than “A”’s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that “A” alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act. This conclusion makes it unnecessary to address the submissions respecting s 101(2) of that Act.
[37] In Bauer (2018) 266 CLR 56, a single complainant case, the Court had referred to this requirement at page 87 [58] but had found it unnecessary to analyse the matter further.
[38] McPhillamy (2018) 92 ALJR 1045 (Kiefel CJ, Bell, Keane and Nettle JJ).

For propensity/tendency evidence to be admissible, it must be “similar” rather than “dissimilar” to the primary evidence adduced in direct proof of the count. As Basten JA observed in Saoud v The Queen:[56]
[44] Sixthly, “tendency” evidence will usually depend upon establishing similarities in a course of conduct, even though the section does not refer (by contrast with s 98) to elements of similarity. That inference is inevitable, because that which is excluded is evidence that a person has or had a tendency to act in a particular way, or to have a particular state of mind. Evidence of conduct having that effect will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case.
[56] (2014) 87 NSWLR 481, 491.
A point made in Hughes is that a high level of similarity of action is no longer required in all cases of admissible tendency evidence. But, as there accepted by the Court, the degree of similarity required will depend on all of the circumstances of a given case; and in some situations (for example the identification of the offender by way of modus operandi), a high level of similarity is still required.
In the circumstances of the present case, it is highly likely that the prosecutor’s decision to abandon s 34P(2)(b) admissibility is to be explained by her perception (albeit belated) that the high bar to admissibility posed by the cumulative effect of the conditions precedent in s 34P(2)(a) and (b), together with the application of s 34P(3), meant that s 34P(3) reasoning was not available. These matters are discussed below.
Basic differences between improbability (or coincidence) reasoning and propensity (or tendency) reasoning
In the decision of this Court in The Queen v C, CA, Kourakis CJ (with whom Anderson and Nicholson JJ agreed) noted that the structure of s 34P is based upon a distinction between impermissible and permissible uses of evidence:[57]
[76] The mischief to which s 34P(3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use. The uses referred to are forms of reasoning. Section 34P of the Evidence Act prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that bare fact alone, more likely than not to have committed the offence. Put another way, it is impermissible to reason that a person who has engaged in any form of discreditable conduct is likely to have a predisposition to commit the crime charged whether or not, as a matter of human experience, there is any probative connection between the conduct and the crime by way of predisposition or proclivity. I will refer to the impermissible reasoning as “bad person” reasoning.
[77] The permissible forms of reasoning allowed by s 34P of the Evidence Act are, speaking broadly, twofold. First, if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence as an item of circumstantial evidence indicating guilt. … [Footnotes omitted]
[57] [2013] SASCFC 137.
Pausing for a moment, his Honour here refers to s 34P(2)(b) and what is called “propensity” (or “tendency”) reasoning. His Honour then proceeds to address a second and different form of reasoning (that referred to in s 34P(2)(a)), which is called “improbability” (or “coincidence”) reasoning thus:[58]
[77] … The second form of reasoning is improbability reasoning which has a probative force independent of any proclivity. The improbability can arise from a wide range of circumstances and in many different ways. Common examples include “cauliflower ear” similarity in modus operandi, coincidental presence or involvement in the place or circumstances of the crime for which an innocent explanation is improbable, and the improbability of complainants independently fabricating similar accounts. [Footnotes omitted; Emphasis added]
[58] Ibid.
I will consider this matter of improbability below in connexion with the appellant’s third contention.
The different conditions to admissibility in s 34P(2)(a) and s 34P(2)(b) of the Evidence Act 1929 (SA)
All applications for the admission of discreditable conduct evidence must first pass the test in s 34P(2)(a). This requires not only that the Judge be satisfied that “the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant”, but also (by dint of s 34P(3)) that 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”.
And, if the particular discreditable conduct evidence is being tendered “for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue”, then s 34P(2)(b) also requires that an additional requirement of admissibility must be satisfied, namely that “the evidence has strong probative value having regard to the particular issue or issues arising at trial”. This is confirmed by the conjunctive “and” at the end of s 34P(2)(a). Of course, s 34P(3) also applies to the admission of such evidence because, as referred to above, it is engaged by s 34P(2)(a) which must be satisfied as a condition to the admissibility of all discreditable conduct evidence (whether or not involving a propensity or disposition use).This was the view of White J in The Queen v C, CN where his Honour stated:[59]
[16] In all cases in which the evidence of discreditable conduct may have a permissible use, it is to be admitted “if, and only if” the trial judge is satisfied that its probative value “substantially outweighs” any prejudicial effect (subs 2(a)). If the permissible use (or one of the permissible uses) for which the evidence is sought to be admitted relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue, the trial judge must in addition be satisfied that the evidence has “strong probative value” having regard to the particular issue or issues arising at trial (subs 2(b)). When determining whether the probative value of the proposed evidence outweighs any prejudicial effect, a trial judge “must have regard to” the extent to which the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any possibility of the evidence being used in that impermissible way (subs 3).
[59] (2013) 117 SASR 64, 69 (Peek J concurring; Blue J also concurring subject to two unrelated matters).
This was also the view of Doyle J in BNM v The Queen.[60] His Honour said:[61]
[54] The relevance, and potential admissibility, in cases involving allegations of drug trafficking, of evidence of an interest or involvement in the business of drug trading has been recognised in numerous authorities. The evidence has been held to be probative of both the fact of possession and the purpose of any possession. While it has been said that the use of such evidence does not necessarily involve propensity reasoning, the prevailing view is that it involves reasoning that is “either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant.”
[55] In my view, particularly in circumstances where the evidence is of past involvement in the business of drug trading (as opposed to evidence merely of present involvement in that business by dint of drug trading accoutrements found at the time of the subject offending), it is appropriate to recognise the element of propensity reasoning in the use sought to be made of the evidence, and to approach its admissibility under s 34P on that basis. It follows that the evidence will only be admissible if it satisfies both limbs of s 34P(2); that is, the probative value of the evidence “substantially outweighs” any prejudicial effect it may have on the defendant (s 34P(2)(a)), and the evidence has a “strong probative value” (s 34P(2)(b)).
[56] Of course, in considering the admissibility of the evidence, the Court must also, under s 34P(3), have regard to whether the permissible particular propensity use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible bare or general propensity use identified in s 34P(1) so as to remove any appreciable risk of the evidence being used for that purpose. [Footnotes omitted]
[60] [2020] SASCFC 10 (Peek J and David AJ agreeing).
[61] Ibid.
This was also the view of Kelly J in R v Wickers,[62] where her Honour held in a central passage that each of the threshold tests in s 34P(2)(a) and s 34P(2)(b) must be met:[63]
[114] The conduct of the appellant in relation to each of the complainants did, in all of the circumstances, possess the requisite high degree of probative value to render it admissible under the provisions of s 34P(2)(a) of the Evidence Act. …
…
[116] In my view, the evidence also passed the threshold test for admission as evidence of propensity under s 34P(2)(b) of the Evidence Act. As the High Court relevantly observed in Hughes v The Queen, while similarities in conduct or in circumstances are relevant to whether propensity evidence has significant probative value, similarity is not a precondition to its admissibility. Proof of a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.
[117] Even though those remarks were made in the course of analysing s 97 of the Evidence Act 1995 (NSW), which is not identical with the provisions of s 34P of the Evidence Act 1929 (SA), nevertheless, the differences between the two pieces of legislation are not important for present purposes. In South Australia, the test for admission of propensity evidence, pursuant to s 34P, is whether the evidence has strong probative value. The New South Wales test for the admission of tendency evidence is whether the court thinks that the evidence has significant probative value. In New South Wales, before tendency evidence can be admitted in criminal proceedings, the probative value of the evidence must substantially outweigh any prejudicial effect that it may have on the accused, whereas in South Australia, that is the first threshold which must be passed before considering whether the evidence has the requisite strong probative value. [Footnotes omitted; Emphasis added]
[62] (2019) 134 SASR 504.
[63] Ibid. Kourakis CJ and Hinton J both agreed with Kelly J. However, I note that in the earlier decision of this Court in R v Jones (2018) 131 SASR 532, their Honours had agreed with the judgment of Nicholson J wherein his Honour had said at paragraph [35], in obiter that “… where the evidence is to be admitted pursuant to paragraph (b) of subsection 34P(2) … there is no requirement to observe subsection 34P(3). The only requirement is that ‘the evidence has strong probative value having regard to the particular issue or issues arising at trial’. …”. However, with the greatest respect, I cannot agree with Nicholson J on this occasion. It may well be that their Honours had not noticed that particular obiter remark and intended to agree with the judgment as a whole.
Thus, s 34P(2)(b) imposes a particularly high hurdle to admissibility for discreditable conduct evidence that is to be “admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue”. This a higher hurdle that that imposed by the Uniform Evidence Law (and there is nothing wrong with that). As Vanstone J observed in The Queen v MJJ:[64]
[243] Propensity or disposition evidence is dealt with in s 34P(2)(b). I would assess the qualitative requirement there provided as being comparable to the common law as it stood prior to Hoch v The Queen (1988) 165 CLR 292. The degree of probative force required at common law has been described as “a really material bearing on the issues to be decided”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 439 per Lord Morris of Borth-y-Gest and such that to exclude the evidence would be “an affront to common sense”: Boardman at 456 per Lord Cross of Chelsea; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 303 at 320 per the court.
[64] (2013) 117 SASR 81, 139. This passage appears above within a longer passage, but is worth repeating.
The application of s 34P(3) of the Evidence Act 1929 (SA)
This Court has held that s 34P(3) presents a further obstacle to the reception of evidence under s 34P. In the decision of this Court in The Queen v C, CA, Kourakis CJ (with whom Anderson and Nicholson JJ agreed) stated:[65]
[79] In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct. Violent conduct, sexual or otherwise, committed over the course of a particular relationship will often be strongly probative of a proclivity to commit that kind of crime whenever the opportunity arises because, as a matter of human experience, there are some such relationships in which conduct of that kind is compulsively repeated. For that reason evidence of that kind has long been held to have a probative force which outweighs its prejudicial effect and therefore to be admissible. However, as the facts and decision in Phillips v The Queen illustrate, when the discreditable conduct is more random, not arising within relationships of a particular kind, it may suggest, at most, no more than that the accused is a bad person, which is of no probative weight at all. Dishonest conduct and prior involvement in the drug trade are other examples of discreditable conduct which, although revealing the accused to be a bad person, are less likely to support an inference that the accused has an innate tendency or disposition which can support a permissible form of reasoning. Of course, even in conduct of that kind the temporal and other circumstantial connections between the discreditable conduct and the offence charged may show that they are both aspects of an ongoing single criminal enterprise. Persons who embark upon a criminal enterprise are generally motivated to maintain it. As Doyle CJ observed in R v Long and McDonnell, the reasoning is “either a form of propensity reasoning or is so close to it that the distinction becomes insignificant”. [Footnotes omitted]
[65] [2013] SASCFC 137.
There is some more recent discussion in the decision of this Court in R v Roberts.[66] Kourakis CJ there stated:[67]
[9] It was of course important to have full regard to the mandatory consideration prescribed by s 34P(3) of the Evidence Act 1929 (SA). The risk of misuses of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning. The relevance, and permissible use, of a history of domestic violence is to demonstrate the nature of the relationship; is it characterised by empathy or antipathy? In most cases, that use is apparent to, and easily comprehended by, lay jurors and readily distinguishable from propensity reasoning. There may be some cases in which the violence is so frequent, injurious and longstanding that it is admissible pursuant to s 34P(2)(b) for a propensity purpose. In other cases, even if not admissible for that purpose the evidence may be such as to raise a risk that it will be so used. Section 34P(3) may then have an important part to play, but that was not the evidence in this trial.
[66] (2019) 134 SASR 483.
[67] Ibid 486-487.
And Peek J (Hughes J agreeing) there stated:[68]
[82] … Although the prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar. …
[83] … It is quite evident from the transcript that the judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all; but at a re-trial the question of the application of s 34P(3) may be not unimportant.
[68] Ibid 503.
Reference may also be made to the decision of this Court in Ribbon v The Queen where it was stated:[69]
[235] … Section 34P requires the prosecution to delineate very clearly the precise purpose for which the evidence of discreditable conduct is to be led (first in a Notice and then in submissions before the judge if the evidence is objected to); further, the prosecution must justify its admission having regard to s 34P(1), (2) and (3). …
[236] … [A]lthough the judge in Covert Recordings Ruling Three purported to admit evidence by dint of s 34P, stressing that it “is highly probative and substantially outweighs the prejudicial effect if any”, his Honour does not appear to identify what the permissible use was suggested to be. He certainly never gave the jury any directions at all concerning permissible uses or impermissible uses, or any other direction as required to be given under s 34R; and nor did he address s 34P(3) which would have a high degree of relevance in such circumstances. …
[69] (2019) 134 SASR 328, 413 (Peek J, Parker and Doyle JJ agreeing).
Conclusion as to the first contention
I consider that the evidence of the complainants was cross-admissible on an improbability/coincidence reasoning basis under s 34P(2)(a) of the Act.
I also consider that it is strongly arguable that the prosecutor came to the right decision in opting not to rely for admissibility on s 34P(2)(b) of the Act.
As a matter of legal theory, it might be said one could look at the evidence of one of the complainants quite separately from that of the other; accept it beyond reasonable doubt; and then find it to establish a relevant propensity which could then be used in assessing the evidence of the other complainant (the legal theory).
However, I consider that such a process would be quite unsafe in the present circumstances. This case is very different to that of Hughes where the combination of 11 female witnesses testifying directly as to similar behaviour did indeed present a powerful and understandable prosecution case that a relevant propensity was established. However here, the evidence of each of KMA and RAM, respectively, was quite uncorroborated and neither was markedly stronger than the other. The mental gymnastics required to put the legal theory in practice would be too much for a fact finder; and would also lead to a genuine grievance for a defendant who was convicted on the basis of such an artificial process.
In short, I consider that it is strongly arguable that s 34P(2)(b) of the Act, when correctly construed, would not permit cross-admissibility for the purpose of implementation of the legal theory for the following cumulative reasons.
First, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to that legal theory could not substantially outweigh the prejudicial effect it may have on the defendant (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(a) of the Act); and

Secondly, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to the legal theory could not have strong probative value having regard to the particular issue arising (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(b) of the Act); and
Thirdly, that in determining the above questions, it is not possible “to remove any appreciable risk” of the evidence being used for the impermissible use of suggesting that the defendant is more likely to have committed the offence because he has engaged in discreditable conduct (s 34P(3) of the Act).
The second contention: The trial Judge misdirected himself as to the test for cross-admissibility under s 34P(2)(a)
The question under s 34P(2)(a) was whether the Judge was “satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant”. Instead, his Honour only found: “I conclude that the probative value outweighs its prejudicial effect”.[70] The Judge has clearly addressed the wrong test.
[70] The Queen v M, MD [2019] SADC 173, [162].
This is not a mere question of semantics. It must be taken to be a serious error of law unless one were to be satisfied that the Judge had in fact applied the correct test and that only mere typographical error had occurred. In the present circumstances it is impossible to be so satisfied.
The Director again rightly conceded that the Judge did not apply the correct test of whether the probative value substantially outweighed the prejudicial effect; and again contended that no substantial miscarriage of justice had occurred because the Judge accepted the evidence of each complainant entirely without reference to the evidence of the other. However, that contention has been rejected above at paragraph [99] and does not avail the Director.
However, as stated above, I consider that the evidence of the complainants was cross-admissible on an improbability/coincidence reasoning basis under s 34P(2)(a) of the Act. It therefore follows that the making out of this second contention would not, taken by itself, have led to a successful appeal. However, since it is clear that a re-trial is necessitated for the other reasons herein, it is not necessary to pursue this aspect of the matter further.
The third contention: The trial Judge misdirected himself as to the way that the test should be applied
The Judge referred to the following matters that could constitute similarities of account: MDM touched the complainants when they were (or appeared to be) sleeping; he touched the complainants on top of and underneath their underwear on their vaginas, on occasion penetrating their vagina with his finger; and that he may have been touching his penis at the same time.[71]
[71] The evidence as to this matter is limited. RAM stated that she once saw MDM rubbing himself under his jeans, but the evidence of KMA went no higher than stating that she once heard MDM unzip his pants.
However, despite having referred to the judgment of Kourakis CJ in The Queen v C, CA (passages from which are reproduced below), the trial Judge also included the following matters that plainly should not have been included:[72] the relationship between the complainants and MDM; their age; their gender; and the smell of alcohol on MDM.[73]
[72] The Queen v M, MD [2019] SADC 173, [155]-[156].
[73] It was common ground that the appellant was, during the period of the charges, habitually intoxicated.
As made clear in passages from The Queen v C, CA below, the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail. In referring to the extraneous matters referred to above, his Honour was really relying upon matters appearing in a list of asserted similarities supplied by the prosecutor at a time when she had been pressing for admissibility under s 34P(2)(b) as well as s 34P(2)(a). That position later changed, but unfortunately the list did not; and the Judge continued to rely on all of such matters,[74] thus again indicating that he had in fact adopted s 34P(2)(b) reasoning to that extent. The Director conceded that this was so.
[74] As noted above, the Judge stated at paragraph [155]: “In the case at bar, there are a number of common features of the misconduct of the accused between counts 1 and 3. The similarities between the complainants' evidence are set out in paragraph 50 of the Prosecution Outline in relation to Application for Separate Trials. I accept this summary is an accurate portrayal of the law and facts”.
In the section of the judgment of Kourakis CJ in The Queen v C, CA reproduced above at paragraph [104], his Honour noted that the structure of s 34P is based upon a distinction between impermissible and permissible uses of evidence. His Honour there referred to a subset of “improbability reasoning” (improbability of complainants independently fabricating similar accounts) which is also referred to by his Honour as “similarity of account evidence” thus:[75]
[57] The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury. [Footnotes omitted]
[75] The Queen v C, CA [2013] SASCFC 137.
His Honour went on to say, regarding the admissibility of such evidence:[76]
[61] 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. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations. [Emphasis added]
[76] Ibid.
His Honour later added:[77]
[65] 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 complaints 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.
[77] Ibid.
Of critical importance to the present case, Kourakis CJ emphasised that reliance upon similarities as between the complainants (including: their age, their lack of a father figure, their common acquaintance with the accused’s foster son KC,[78] and their accompaniment of the accused on outings) were of no relevance to “similarity of account evidence”. Thus, his Honour concluded:[79]
[93] The Judge did not expressly identify the coincidence or other rational explanations to which she was referring in the first of the above-cited passages from the summing up. Nor did the Judge tell the jury how the cross-admissible evidence tended to disprove coincidence or exclude other rational explanations. The Judge’s directions did not explain to the jury that the probative value of the complainants’ accounts went to the issue of whether they had independently, but coincidentally, fabricated or imagined highly similar accounts. Indeed, the similarities I have numbered (1)-(4) have no relevance for the purpose of a similarity of account reasoning. They did not make it less probable that the complainants had independently come to make false complaints against the appellant. On the contrary, it could be argued that those common features might explain how they independently came to make false complaints of the kind made. Indeed, those similarities were, by and large, admitted. There was no issue as to their falsity or accuracy.
[94] Similarities (5) to (9) do manifest a similarity of accounts which supports the cross-admissibility of the evidence for the purposes of excluding the hypothesis of independent concoction for the reasons I have already identified. The way in which the prosecutor and the Judge framed similarities (5) and (6) alludes to the appellant grooming the boys to later satisfy his sexual desire and similarities (7) to (9) show a sexual proclivity of the kind to which I referred to above. However, the Judge’s directions failed to differentiate at all between these two quite different bases for cross-admissibility. By and large, the Judge’s directions on the cross-admissible uses of the evidence are based on propensity reasoning from the particular sexual proclivity of the appellant which the jury might be satisfied by the evidence relating to any one of the complainants but, as I earlier observed, that reasoning is not explicitly set out. [Emphasis added]
[78] Whom, on the prosecution case, the accused had “fostered” so as to spend time with the complainants.
[79] The Queen v C, CA [2013] SASCFC 137.
More recently, in DES v The Queen,[80] this Court endorsed those principles, again emphasising that the focus must be on the similarity between the complainants’ allegations, rather than the complainants’ characteristics.[81]
[80] [2020] SASCFC 32.
[81] Ibid [70].
For all of the above reasons, the third contention is made out.
The fourth contention: Breaches of sections 34Q and 34R of the Evidence Act 1929 (SA)
Fourthly, the appellant contended that breaches of ss 34Q and 34R of the Act had occurred. Those provisions are as follows:
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1)If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2)If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
In the present case, a consequence of the trial Judge’s holdings referred to above, is that s 34Q was breached (although not deliberately) in that even if the complainants’ evidence was cross-admissible under s 34P(2)(a), his Honour erred in using it for propensity reasoning under s 34P(2)(b).
As to s 34R, in The Queen v C, CA, Kourakis CJ (with whom Anderson and Nicholson JJ agreed) said of s 34R:[82]
[96] Section 34R of the Evidence Act obliges judges to explain the purpose for which discreditable conduct evidence “may, or may not, be used”. An explanation of the permissible use or uses is as important as an admonishment against impermissible use because without the former the risk that the jury will lapse into the latter use is much increased. In the absence of an explicit explanation of the different reasoning processes involved, references to an underlying unity or a pattern do not provide the instruction required by the statute. Without that instruction, merely recounting a list of similarities is of no assistance. I would hold that the Judge has erred in law in failing to give a direction which satisfies s 34R of the Evidence Act. It is not possible to apply the proviso to an error of this kind which must have affected the jury’s assessment of the credit of the complainants.
[82] [2013] SASCFC 137. There have been a number of subsequent discussions of this provision by this Court. For an important discussion by the High Court, see Perera-Cathcart v The Queen (2017) 260 CLR 595.
Obviously, a requirement “to explain the purpose for which discreditable conduct evidence may, or may not, be used” is a requirement to correctly do so. Here, as noted above, the trial Judge gave incorrect directions: first, in that he stated that the discreditable conduct evidence could be used to generate s 34P(2)(b) reasoning; and secondly, in that he misdirected himself as to how to apply s 34P(2)(a) reasoning in the present circumstances. The fourth contention is made out.
Conclusion as to Ground 2 of appeal
For all of the above reasons, Ground 2 of appeal is made out.
PART F: GROUND 4 OF APPEAL – FAILURE TO GIVE ADEQUATE REASONS
In this case, primary grounds of appeal assert that the Judge’s reasons positively demonstrated error such as to constitute substantial miscarriage of justice. The proposed Ground 4 consists of two contentions alternative to the above primary grounds.
The first contention is in effect that the reasons for judgment are so confused in critical areas that the reasons do not exclude the real possibility that the Judge reasoned incorrectly such as to amount to a miscarriage of justice. I can understand that there may be utility in having such a ground as a fall-back position, but having regard to the success of the appeal on the primary grounds I see little point in pursuing this aspect further.
The second contention is that the Judge failed to make clear his process of reasoning as to the resolution of several discrete factual issues. A matter of degree is here involved. As was said by the plurality in DL v The Queen:[83]
[33] … Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a signiﬁcant factual or evidential dispute that is a necessary step to the ﬁnal conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their signiﬁcance to the course of the trial. [Footnotes omitted]
[83] (2018) 266 CLR 1, 12-13 (Kiefel CJ, Keane and Edelman JJ).
While some of these complaints may have merit, there is little point in dwelling on them. However, I should make clear that the Judge’s reasons here should not be treated as some form of template at the re-trial. The re-trial must be heard entirely afresh and it will be for the parties to make their submissions afresh, including as to disputed factual matters. It will be for the new trial Judge to furnish adequate reasons as to his or her resolutions of such matters.
I would grant permission to appeal on proposed Ground 4 of appeal, but I do not consider that it is necessary to consider it further.
PART G: GROUND 3 OF APPEAL – “MAINTAINING A RELATIONSHIP”
Having regard to the precepts formulated in the decisions of this Court in The Queen v M, DV[84] and that of R v Mann[85] (delivered very recently), it is sufficient to say that if one assumes (for the purposes of argument only) a valid finding that the alleged sexual offending in Counts 1 and 3 occurred, then the element of “maintaining a relationship” was established beyond reasonable doubt on the basis of that finding and other undisputed evidence at trial. A further exposition is not required here.
[84] (2019) 133 SASR 470.
[85] [2020] SASCFC 69.
I accept the appellant’s submission that there were some infelicities in the Judge’s reasons (such as the statement that “the accused maintained an unlawful sexual relationship with RAM by engaging in two or more unlawful sexual acts with or towards her”),[86] although other passages may indicate that the Judge proceeded correctly. It is not necessary to consider such matters further having regard to the success of the primary grounds above. I would refuse permission to appeal on proposed Ground 3 of appeal.
[86] The Queen v M, MD [2019] SADC 173, [250].
The proviso
The Director did not contend that the proviso should be applied if the Court were to reject his contention, founded on paragraph [149] of the Judge’s reasons, that his Honour had placed no weight on cross-admissibility when coming to a decision that the appellant was guilty of the charges. I have rejected that contention and it is clear that the proviso should not be applied.
Disposition of the appeal
I would allow the appeal and make the following orders.
1. The appeal is allowed.
2.Permission to appeal is granted as to Ground 4 of appeal and refused as to proposed Ground 3 of appeal.
3.The verdicts, convictions and sentence on Counts 1 and 3 of the Information are set aside.
4.Counts 1 and 3 of the Information are to be re-tried by a different District Court Judge sitting alone.