MDM v The Queen

The appellant, MDM, appealed his conviction for sexual offences against two complainants, KMA and RAM, in the Supreme Court of South Australia. The appeal concerned the admissibility of tendency evidence and the proper application of provisions relating to the joinder and severance of charges involving multiple complainants in sexual offence proceedings.

The legal issues before the court included whether the trial judge erred in admitting tendency evidence under section 97A of the Evidence Act 1929 (SA), which governs the admissibility of tendency evidence in proceedings involving child sexual offences. The court also considered the application of section 102(6) of the Criminal Procedure Act 1921 (SA), which dictates that counts involving different alleged victims in sexual offence proceedings should generally be tried separately unless the evidence relating to one count is admissible in relation to the other. The appellant also raised grounds concerning procedural fairness and the adequacy of the trial judge's reasons.

The court analysed the principles established in a trilogy of High Court cases (Hughes, Bauer, and McPhillamy) concerning the admissibility and probative value of tendency evidence in sexual offence cases. It reiterated that for tendency evidence to have significant probative value, it must not only support the tendency alleged but also make the facts constituting the charged offence more likely. The court emphasised the importance of considering the extent to which the evidence supports the tendency and the extent to which the tendency makes the offence more probable, particularly when the issue is whether the offence was committed rather than the identity of the offender. The court also confirmed that the general rule under section 102(6) of the Criminal Procedure Act 1921 (SA) is that charges involving different complainants should not be tried together if the evidence on one count is not admissible on another, a principle that remains applicable even with recent legislative changes.

The court allowed the appeal, quashed the convictions, and ordered a new trial. This outcome was primarily due to the misdirection regarding the admissibility and use of tendency evidence, and the failure to properly apply the severance provisions of the Criminal Procedure Act 1921 (SA).