R v Fischer (No 2) - [2013] SADC 14

District Court of South Australia
(Criminal)
R v FISCHER & ORS (No 2)
[2013] SADC 14
Reasons of His Honour Judge Slattery (ex tempore)
6 November 2012
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - RELEVANCE - JOINT TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - EMBARRASSMENT OR PREJUDICE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CHARACTER AND PREVIOUS CONVICTIONS - ADMISSIBILITY IN CROSS-EXAMINATION - ACCUSED GIVING EVIDENCE AGAINST CO-ACCUSED
Notice of intention by defendants Fischer and Wilkey to adduce evidence of discreditable conduct filed against co-accused Hankins.
Defendants Fischer and Wilkey sought to adduce discreditable conduct evidence about Hankins of three types;
a. That the accused NEIL HANKINS was a dealer of methylamphetamine prior to and at the time of the offending the subject of the charge.
b. That the defendant purchased methylamphetamine from NEIL HANKINS for at least a year prior to his arrest.
c. That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.
For the following purposes;
d. To establish that NEIL HANKINS had an interest in the drug methyl amphetamine, so as to rebut any suggestion of an innocent association with that drug when arrested on 23 July 2011.
e. To rebut the suggestion that the defendant was in fact in possession of the drugs.
f. To show that the relationship between the defendant and NEIL HANKINS was one of an ongoing purchaser and dealer of the drug methylamphetamine.
Application by co-accused Hankins for severance of the trial of the charges laid against him under section 34T of the Evidence Act because of the deleterious effect of the discreditable conduct evidence under s34P of the Evidence Act sought to be led against him by Fischer and Wilkey.
Held: Court refuses to allow the co-accused Fischer and Wilkey to lead evidence of prior convictions of Hankins because its prejudicial effect well exceeds the probative value of that evidence. However, the types of evidence sought to be led under a. and b. is admissible and probative evidence that may be led in the ordinary course, and the permissible use of that evidence substantially outweighs any prejudicial effect on the co-accused. There was no real possibility that the co-accused would be prejudiced by that evidence.
Section 34T application by Hankins for severance refused. None of the bases in s 34T(d), (e) or (f) were made out.
Evidence Act 1929 (SA) s18(1)(d)(iv), s34O, s34P, s34Q, s34R, s34T , referred to.
Lowery v R [1973] 3 All ER 662 [1974] AC 85 ; R v Nieterink (1999) 76 SASR 56 , applied.
R v Hissey (1973) 6 SASR 280 ; R v Beserick (1993) 30 NSWLR 510 ; R v Randall [2004] 1 All ER ; Gipp v The Queen (1998) 194 CLR 106 ; BBH v The Queen [2012] HCA 9 ; Shepherd v The Queen (1990) 170 CLR 573 ; HML v The Queen, SV v The Queen and OAE v The Queen [2008] 235 CLR 334 ; R v Sadler [2008] VSCA 198 ; Pfennig v R (1995) 182 CLR 461 ; Wilson v The Queen (1970) 123 CLR 334, discussed.
R v H, T [2010] SASCFC 24 ; R v Ellis [2010] SASC 118 ; R v S, PC [2009] SASC 38, considered.

R v FISCHER & ORS (No 2)
[2013] SADC 14
RULING (No. 2)

Subsequent to the delivery of my reasons which now constitute judgment number 1 in this matter,[1] the Court received two notices under s34P(4) of the Evidence Act: one from the solicitors for the co-accused Shane Ronald Fischer, and one from the solicitors for the co-accused Paula Marie Wilkey. The documents are in identical terms. They read:
[1] [2012] SADC 186
NOTICE OF INTENTION BY A DEFENDANT TO ADDUCE EVIDENCE OF DISCREDITABLE CONDUCT
Evidence Act s 34 P (4)
To: The Director of Public Prosecutions
And to: NEIL HANKINS
The Defendant SHANE RONALD FISCHER gives notice of the intention of the defendant at the trial to seek to adduce evidence of discreditable conduct of NEIL HANKINS. .
Particulars
1. The nature of the discreditable conduct is
As to the drugs:
a. That the accused NEIL HANKINS was a dealer of methyl-amphetamine prior to and at the time of the offending the subject of the charge.
b. That the defendant purchased methylamphetamine from NEIL HANKINS for at least a year prior to his arrest.
c. That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.
2. The witnesses from whom the evidence is to be lead whether in examination in chief or cross examination are:
a. Defendant
b. NEIL HANKINS
c. Paula Maria Wilkey
3. The uses of the evidence which are said to be permissible pursuant to s 34 P are:
a. To establish that NEIL HANKINS had an interest in the drug methyl amphetamine, so as to rebut any suggestion of an innocent association with that drug when arrested on 23 July 2011.
b. To rebut the suggestion that the defendant was in fact in possession of the drugs.
c. To show that the relationship between the defendant and NEIL HANKINS was one of an ongoing purchaser and dealer of the drug methylamphetamine.
And:
NOTICE OF INTENTION BY A DEFENDANT TO ADDUCE EVIDENCE OF DISCREDITABLE CONDUCT
Evidence Act s 34 P (4)
To: The Director of Public Prosecutions
And to: NEIL HANKINS
The Defendant PAULA MARIA WILKEY gives notice of the intention of the defendant at the trial to seek to adduce evidence of discreditable conduct of NEIL HANKINS.
Particulars
The nature of the discreditable conduct is
As to the drugs:
That the accused NEIL HANKINS was a dealer of methyl-amphetamine prior to and at the time of the offending the subject of the charge.
That the defendant purchased methylamphetamine from NEIL HANKINS on an ongoing basis for approximately 12 months prior to her arrest.
That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.
The witnesses from whom the evidence is to be lead whether in examination in chief or cross examination are:
PAULA MARIA WILKEY
NEIL HANKINS
The uses of the evidence which are said to be permissible pursuant to s 34 P are:
To establish that NEIL HANKINS had an interest in the drug methyl amphetamine, so as to rebut any suggestion of an innocent association with that drug when arrested on 23 July 2011.
To rebut the suggestion that the defendant was in fact in possession of the drugs.
To show the nature of the relationship between the defendant and NEIL HANKINS
Both of the notices (and for convenience sake I refer now only to the notice of Fischer but my comments relate to the notices issued by both co-accused Fischer and Wilkey) are dated 7 November 2012. The hearing of the Rule 9 application brought by Hankins commenced on 5 November 2012. At no time during that hearing and despite invitations from me on two occasions, did counsel for Fischer and Wilkey indicate that they had any application or that they would be presenting a notice under s34P of the Evidence Act 1929.
It is first necessary to analyse the content of the notices. It is apparent that sub-paragraphs 1(a) and 1(b) may be grouped together and may be understood to be matters within the admissible evidence in the matter. So much was conceded by counsel for Fischer and counsel for Wilkey. Conversely, sub-paragraph 1(c) may be identified as conduct tending to propensity. In argument, counsel for Fischer and counsel for Wilkey agreed with the delineation that I have above described.
Counsel for Fischer and Wilkey also agreed with the position that I put to them that the evidence relating to sub-paragraphs 1(a) and (b) are matters within the admissible evidentiary trail in this action and are to be contrasted with evidence that may be sought to be led in relation to paragraph 1(c).
On 7 November 2012, I asked for an explanation from counsel for Fischer and counsel for Wilkey about why the notice was issued so late. I am mindful of the content of s34P(4).[2] The view I formed was that no reasonable notice had been given to the co-accused Hankins (or to the prosecutor) of the intention of Fischer and Wilkey to adduce evidence of discreditable conduct against him. In asking those questions, I was mindful of the power that I had under s34P(5) and what may be the circumstances of this case, that would cause me to decide to dispense with the requirements in s34P(4).
[2] (4) subject to subsection (5), a party seeking to adduce evidence 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 requirements in subsection (4)
The explanations proffered to me by counsel for Fischer and counsel for Wilkey amounted to a suggestion that although matters had been considered earlier, it was not until, in the case of Fischer, the rejection by me of the Rule 9 application made by Hankins that a final decision was made to give the s34P(4) notice to Hankins. Counsel for Wilkey informed me that it was not until the evening of 8 November 2012 that he received instructions to deliver the notice.
In my view, the explanations proffered by Fischer and Wilkey concerning the timing of the delivery of the notice were unsatisfactory. I questioned both counsel closely, about the failure to give reasonable notice bearing in mind that the voir dire hearing commenced on the morning of 5 November 2012. Neither counsel could inform me of anything that had changed in the positions of their clients from prior to or from the moment of the commencement of the voir dire hearing.
There were other reasons why I found the position to be entirely unsatisfactory. Counsel for the co-accused Hankins had argued the whole of the Rule 9 application in the context of the interconnection between the notice filed by him in respect of Wilkey and Fischer, the notice filed by the Director and the content of the material relied upon the Director to prove the case against each of them. An issue that concerned me was whether there was a prospect of real prejudice that may be suffered by the co-accused Hankins in the circumstances as they obtained here because of some new matter that may arise in the consideration of the evidentiary matters referred to in the notice at the time that it was argued. At that time I would already have disposed of the accused Hankin’s application for severance. Arguably, counsel for Hankins may have taken a different view or perhaps taken a different tactical approach in argument in relation to his Rule 9 application. Notwithstanding that this matter was not pressed with any force by counsel for Hankins, in my view it identified a possible weakness that a party could, as a matter of opportunism lodge a s34P Evidence Act notice at a time that suited it where, as here, a co-accused’s application had been determined.
Another matter that informed my dissatisfaction with the situation was the inconsistency between the content of the notice delivered by Wilkey and the recorded evidence in an interview given by Wilkey to the police. For reasons best known to her, Wilkey claimed in her police interview to be a drug dealer who was attending the home of Hankins to do a drug deal (inferentially with Fischer). This seems to be a remarkable story.
The effect of the lodgement of the two further notices under s34P(4) by the co-accused Fischer and Wilkey was that the accused Hankins renewed his application for separate trials and on this occasion based his application upon s34T of the Evidence Act.
In the context of this further application by Hankins, it is now necessary for me to consider afresh the scheme of the Evidence Act as it now exists and to consider the intersection of ss18, 34O, 34P, 34R, 34S and s34T of the Evidence Act as they relate to this matter and to the application by Hankins for severance under s34T of the Evidence Act.
The content of the s34P notice itself is divided into two parts, the first being relevant admissible material in any event. In my view, and no contrary position was put by any counsel for the prosecution or any of the accused, relevant evidence that the defendants Wilkey and Fischer purchased methylamphetamine from Neil Hankins for at least a year prior to his arrest, is admissible evidence both in respect of the charge against Fischer and Wilkey, and in respect of the charge against Hankins. That being so, (and putting aside the inconsistency of that position with the version of events given by Wilkey to the police) there arises for the first time what is commonly called a “cut throat defence”. That matter was raised in Court for the first time on the morning of 7 November 2012. A cut throat defence may be identified, as occurring amongst co-accused, in which each attempts to point to the bad character and conduct of the other defendant and the trial Judge must exercise a discretion in relation to the admission of such evidence. Such evidence will be led to show that it is more likely that the other accused committed the crime charged.
Under s18(1)(d)(iv), a person who is charged and called as a witness shall not be asked and if asked should not be required to answer any question tending to show that he has committed or being convicted of or being charged with any offence other than that where with he is then charged or is of bad character, unless he is giving evidence against any other person charged with the same offence.
This is the statutory formulation of the cut throat defence. I was informed from the bar table that each of the co-accused intended to give evidence against the other and so, in terms of admissibility, it was possible for each of those co-accused to be asked questions tending to show that each of them have committed or have been convicted of or been charged with other offences apart from the offence charged.
In an earlier judgment[3] I identified that s18 of the Evidence Act was raised and considered in the Rule 9 application brought by Hankins. It was argued that the content and meaning of s18 was a reason to separate/sever the charges against the co-accused. I did not accept that submission because I found, in the main, the content of the sub-section was, the antitheses of the submissions made by Hankins: see s18(1)(d)(i)-(iv).
[3] [2012] SADC 186
In order for one co-accused to question another second co-accused on the issues and topics covered under s18(1)(d) of the Evidence Act, it is first necessary to obtain the permission of the Court which must consider issues of relevance as well as prejudicial and probative effect.
Although s18 Evidence Act is the statutory formulation of the “cut throat defence” rules, that rule has a long history within the common law.
In R v Randall [2004] 1 All ER, the House of Lords considered the history and application of the cut throat defence. In the Randall case, the defendant and a co-accused were tried together on a charge of murder and each raised a cut throat defence. They gave evidence against each other and each put forward a different version of the events about the infliction of the injuries on the deceased which later proved to be fatal. Each of them therefore lost the equivalent of the statutory protection against being asked questions tending to show that he had committed or been convicted of or been charged with any offence, or was of bad character.
One of the defendants was convicted of manslaughter and the other co-accused was acquitted. The convicted defendant appealed contending that the evidence of the co-accused’s bad character was relevant to the issue of who, between the two accused, had been more likely to have inflicted serious violence on the deceased and the Judge had accordingly misdirected the jury. The direction given by the Judge was that the jury should regard the bad character of the co-accused as relevant only to his credibility and stated that his convictions and character were irrelevant to the likelihood of his having attacked the deceased. The factual position was that the acquitted co-accused had a bad record with convictions for theft and nine separate convictions for burglary, the most recent being for the burglary of a dwelling house committed by a gang in which the co-accused had been armed with a screw driver and one of the burglars had threatened the occupier with a hammer. As well, the co-accused admitted in cross examination that at the date of the killing, he was on the run from the police in connection with an armed robbery.
The issue before the House of Lords was whether the evidence of the co-accused’s propensity to use and threaten violence which had been placed before the jury, was relevant to the issue of whether he was the defendant who committed the attack on the deceased.
The House of Lords held that as a fundamental principle, it was not normally relevant to enquire into an accused’s previous character and particularly to ask questions which tended to show that he had previously committed some criminal offence. However, where there was a cut throat defence, the antecedent history of the co-accused was relevant not only in relation to the truthfulness of his evidence but also because of the imbalance between that history and the antecedent history of the defendant convicted tended to show that the version of events put forward by one was more probable than that put forward by the other. The issue before the House of Lords was where two accused were jointly charged with a crime and each blames the other for its commission, may one accused rely on the criminal propensity of the others.
After considering the facts, Lord Steyn who delivered the judgment of the House of Lords, identified the relevant rules in relation to questions of evidence between co-accused. He held[4] that the discretionary power to exclude relevant evidence which is tendered by the prosecution if its prejudicial effect outweighs its probative value does not apply to the position as between co-accused. Lord Steyn held that in a joint criminal trial, a Judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused. Later in the judgment,[5] Lord Steyn addressed the question of the rules requiring a Judge, in appropriate cases to direct a jury that if the good character of an accused is relevant not only to credibility but also to the likelihood that he would commit the offence, why then should the bad character in the form of a propensity to violence of a co-accused always be irrelevant.
[4] At [18]
[5] At [25]
Lord Steyn held[6] that the answer to the relevant question was that it was relevant and regard must be had to the Privy Council decision in Lowery v R.[7] This was a decision of the Privy Council on appeal from the Supreme Court of Victoria. A young girl was sadistically murdered. Lowery and King, the two accused, were present when she was murdered. The crime was committed by one or the other or by both acting in concert. Each accused adduced evidence of the unlikelihood that he could have committed the murder. Lowery emphasised his good character and said that because of his fear of King, he had been unable to prevent the murder. King said that he had been under the influence of drugs and had been powerless to prevent Lowery from killing the girl. Despite Lowery’s objection, counsel for the King was allowed to call the evidence of a psychologist as to their respective personalities and on that evidence, to invite the jury to conclude that it was less probable that King was the killer.
[6] At [27]
[7] [1973] 3 All ER 662 [1974] AC 85 (Lowery)

They were both convicted and Lowery unsuccessfully appealed to the Supreme Court of Victoria on the ground that, inter alia, the psychologist’s advice ought not to have been admitted. The Privy Council decided that the evidence of the psychologist was relevant in support of King’s case to show that his version of the facts was more probable than that put forward by the appellant.[8] Lord Steyn held[9] that Lowery is high authority for the proposition that evidence of a co-accused’s propensity may be relevant and this proposition was demonstrated by the passage in the judgment of the Privy Council:-[10]
“In reference to this matter the Court of Criminal Appeal said and in their Lordship’s view rightly said:
“It is however established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show the accused has a disposition or propensity or is the sort of person likely to commit the crime charged…”
And further:
“It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by the accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person.”
[8] At [28]
[9] At [29]
[10] See at 671-672
Later in the judgment[11] Lord Steyn addressed the question: if a Judge is required, in appropriate cases to direct a jury that the good character of an accused is relevant not only to credibility but also to the likelihood that he would commit the offence the question, why then should the bad character in the form of propensity to violence of a co-accused always be irrelevant.
[11] At [25]
Lord Steyn held[12] that:
“for the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial Judge to direct the jury to ignore the evidence when considering the case against the co-accused. Justice does not require that a direction be given. Moreover, such a direction would needlessly perplex jury.”
[12] At [35]
Lowery constitutes the law of Australia and the decision is consistent with principle and a facilitative approach to the interpretation of s18 of the Evidence Act.
Evidence Act: Part 3, Division 3 – Admissibility of evidence showing discreditable conduct or disposition.
Division three of part three of the Evidence Act came into operation on 1 June 2012. It consists of six separate sections (s34O-s34T inclusive).
The application of the division is covered under s34O which reads as follows:
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.
Common law rules of admissibility are excluded except to the extent of the operation of s18 of the Evidence Act and in circumstances where evidence of the character reputation, conduct or disposition of a person is a fact in issue in a criminal trial.
S34P Evidence Act reads as follows:
“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 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).
It is clear from the wording of s34P(1) that discreditable conduct (which is not defined) may include any conduct including uncharged acts. It will include propensity evidence and it will include any evidence purporting to show that an accused has a tendency to commit a criminal offence.
Such evidence is called discreditable conduct evidence. Under s34P(1), that evidence may not be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in the conduct (an impermissible use) unless that evidence may be admitted under s34P(2).
S34P(2) is an exception provision; it has two sub-paragraphs (a) and (b) which operate conjunctively where evidence is sought to be led for a permissible use that “…relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue…” The sub-section provides that evidence may not be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in the conduct and that is inadmissible for any purpose subject only to subsection (2).
Subsection (2) provides that discreditable conduct evidence may be admitted for a use other than the impermissible use if and only if 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 under s34P(2)(b) where evidence is admitted for a permissible use but that evidence relies upon a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue then the evidence has a strong probative value having regard to the particular issue or issues arising at trial.
In the event that admissible evidence is sought to be admitted but not on the basis that the permissible use relies upon a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue then it is necessary for a trial Judge to be satisfied (before that evidence may go to the jury) that the probative value of the evidence must substantially outweighs any prejudicial effect it may have on the defendant.
I have mentioned earlier in this judgment the usual common law tests in relation to determining probative value. Ordinarily, at common law, it was necessary for the probative value of evidence to outweigh any prejudicial effect that it had upon a defendant.
Whether that test was satisfied was a matter for judgment and depended upon the circumstances of the particular case and upon the evidence before the Court. For those reasons it was both unsafe and unnecessary to reduce the test to some form of measurement, empirical or otherwise of the comparative effect for the weight of the evidence.
That approach is essential to the administration of justice in the interests of an accused. In the application of principle, there will always be cases where the assessment of the amount by which the probative value of evidence must outweigh its prejudicial effect will vary according to the issue before the Court, the circumstances of the case, the interest of justice and all the issues taken into account in the exercise of the discretion.
Where evidence is to be admitted for a permissible use that relies on a particular propensity as circumstantial evidence of a fact in issue, then the evidence must have a strong probative value having regard to the particular issue or issues arising in the trial. The probative value must substantially outweigh the prejudicial effect but the evidence must also have the additional quality of having a strong probative value.
The inclusion of the expression “substantially” and “strong probative” within the two subparagraphs to the subsection do not easily lend themselves to definition. In my opinion, because they are in the nature of exceptions creating the permissible use, they should not be quantified in a percentage or other way. They are matters for the trial Judge in the application of principle.
When a decision is to be made about whether probative value substantially outweighs prejudicial effect, a trial Judge is required under s34P(3) to have regard to whether a 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 been used for that purpose.
In my view, in order to properly address the content and operation of s34P of the Evidence Act, it is necessary first to canvass in some detail and to have a thorough grasp and understanding of the common law rules.
“Discreditable conduct” used in the section is not a new form of expression. It is the “rubric” expression often used to describe significantly varying types of conduct and circumstances. Where it is frequently used in common law jurisdictions, it is known as the “similar fact rule”. The learned author of the Australian edition of Cross on Evidence[13] (Cross) says the following:-
“The terminology “similar fact rule” is doubly misleading because it describes the exclusionary rule in a phrase more apt to describe one of the principal exceptions to it and because it suggests a unifying factor between the situations in this area which they do not necessarily possess. It is being said that there is one satisfactory term for evidence admitted despite its disclosure of offences other than those charged. “It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. These categories are not exhaustive and are not necessarily exclusive”. The terminology is nevertheless deeply engrained. It is used here to connote that part of the law of evidence concerned with the rule which prevents a party, usually the prosecutor, from leading in chief evidence showing the discreditable disposition (the propensity to act, think or feel in a particular way) of the other, usually the accused as derived from the discreditable acts, record, possessions, or reputation of the latter… such evidence is believed to be very influential in its effect upon a jury. It is likely both to help prove the guilt of the accused and to prejudiced the jury. The prosecution justifiably seeks its inclusion for the express purpose and the defence equally justifiably seeks exclusion for the latter reason. (citations omitted)
[13] Cross on Evidence, 8^th ed J. D Heydon (a Justice of the High Court of Australia) at page 708
Thus the importance of the rule is very clear and ordinarily needs little explanation. As the learned author of Cross identifies, the evidence may be assumed to be influential upon a jury to help prove guilt of an accused and to prejudice the jury[14](my emphasis).
[14] Ibid
It is an exclusionary rule[15] based upon concepts of fairness (unfairness) to an accused. Courts, in the exercise of discretion, exclude evidence because of its prejudicial effect: because its probative value is not sufficient to outweigh that prejudicial effect.
[15] Ibid at 709
There must be something about the probative quality of the evidence. Various adverbs have been used: sufficiently (probative), highly (probative) or, more often, a combination such as sufficiently highly (probative). These are comparative terms but their importance is that there must be some quality of the (“propensity”) evidence that takes it beyond merely probative when compared to its prejudicial effect. It serves no purpose to attempt to compare the meanings of these adverbial terms. Their effect and meaning depend upon the relevant circumstances of the case but it is necessary in these circumstances to continually recall that the exercise here is the application of principle, not merely the exercise of a discretion. That is, with respect, the approach adumbrated in the structure and operation of s34P. I will return to that matter later.
As a fundamental proposition at common law, mere propensity evidence is inadmissible. At common law, in order for any propensity evidence to be admissible, it must demonstrate a disposition (of an accused) to behave in a certain way or to establish guilt for another reason. The High Court has, in the relevant circumstances of the factual matters there under consideration, held in respect of one form of propensity evidence as follow:-
“It will not be admitted unless it has sufficient probative force to outweigh or transcend its prejudicial effect and it will not do this unless there is no rational view of the evidence consistent with the innocence of the accused in the context of the prosecution case”[16]
[16] Pfennig v R (1995) 182 CLR 461, 484-5, 528
The no rational view test and the requirement of proof beyond reasonable doubt means that at common law any facts to be proved by the prosecution, in the process of proving that the situation was not consistent with any other rational conclusion of guilt, must also be proved beyond reasonable doubt.
The learned author of Cross summarises the position thus:-[17]
“In summary, where the prosecution wishes to lead evidence of the accused’s bad character or possession of discreditable materials, it must meet the following requirements:-
(1)   The evidence must be relevant to an issue. If it is not relevant it will be excluded for that reason.
(2)   The evil or criminal disposition or propensity of the accused is not itself an issue at the trial – notwithstanding its possible relevance as a matter of logic or common experience. Therefore, proof of that disposition or propensity without more will be excluded.
(3)   If the evidence is relevant to an issue either because the disposition or propensity is in the circumstances relevant or because the evidence is otherwise relevant but incidentally reveals the evil or criminal disposition or propensity of the accused, it will be excluded unless it has a high degree[18] of probative force. The evidence will be inadmissible if there is a rational view of the evidence consistent with the innocence of the accused. Where this evidence is admitted, it will be necessary for the Judge to instruct the jury carefully as to the proper use which may be made of it. (my emphasis)
(4)   Further, the evidence may be excluded by the trial Judge in the exercise of the general discretion to reject admissible evidence the probative value of which is insufficient having regard to its prejudicial effect. (my emphasis)
[17] [2105] at page 731
[18] Cf s34P(2)(a) and the use of the expressions “…substantially outweighs…”
Obviously enough, there will be a correlation between the level of prejudice and the cogency of evidence. The probative value of the similar fact evidence must have a “…high degree of probative force…”. This notion is described in a number of ways, none of which are any more helpful than the other. In all things, it is necessary to assess the probative force of the evidence, usually in terms of cogency, (ie. what is its quality), inferential effect (what is the strength of the inferences naturally arising) and relevance (to the facts in issue).
In turn, the prejudicial effect must be considered and in the present circumstances it is necessary to bear in mind the immediate tension between the natural overlap that will occur in the mind of any ordinary observer between the logical force of the collocation and convergence of facts and circumstances on the one hand, and the tendency to convict because of the fact of the discreditable conduct on the other.
However, the exclusionary rule is not universally defined in the decision of the High Court in Pfennig. In order to make good that proposition, it is necessary to consider the decision of the Full Court of the Supreme Court of South Australia in R v Nieterink[19] and the judgment of Doyle CJ commencing at 57.
[19] (1999) 76 SASR 56
The appellant was convicted on four counts of unlawful sexual intercourse, one count of indecent assault and one count of gross indecency. At trial, evidence was admitted, over objection, of the appellant’s uncharged sexual misconduct towards the victim comprising some ten further acts of sexual misconduct. This was led as “relationship” or “background” evidence. On appeal, the appellant argued that such evidence was wrongly admitted or, in the alternative, that the trial Judge’s directions to the jury in respect of the use of this evidence were inadequate. Other matters were raised in the appeal but I will focus only upon the evidentiary issues as described above.
After identifying the relevant factual material, the directions given to the jury and the summary of evidence, the Chief Justice said as follows[20]:-
[20] [31] et seq
“[31] The High Court has considered on a number of occasions the admissibility of evidence that discloses the commission by an accused of offences other than those with which the accused is charged. It is not necessary to consider all of those decisions.
[32] The decisions establish what can be called an exclusionary rule or presumption. It is not easy to state that rule or presumption in precise terms. It may be that there is no precise rule or presumption, and that the High Court is dealing with a general principle that has a number of different applications. For present purposes it suffices to refer to the following statement of principle by Mason CJ, Deane and Dawson JJ in Pfennig v The Queen (1995) 182 CLR 461 at 475. They refer to:
" ... the general principle that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried."
It is to be noted that that statement of principle refers both to the nature of the evidence (evidence disclosing criminal acts) and to its use (reasoning from conduct or character that the accused committed the offence).
[33] There is no single term that conveniently and accurately identifies the type of evidence, or content of the evidence, that is caught by this principle. As their Honours said at the very beginning of their reasons (at 464-465):
"There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense."
[34] Although I refer to an exclusionary principle, as the passage just cited indicates, evidence that falls within the exclusionary principle may nevertheless be admitted. It is admitted only if it meets a stringent test. In Pfennig their Honours said (at 481-482):
"In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged."
Their Honours said that the criterion of admissibility had been stated by Mason CJ, Wilson and Gaudron 11 in Hoch v The Queen (1988) 165 CLR 292 at 295. They made the point that evidence that is caught by the exclusionary principle can be highly prejudicial. They said (at 482):
" ... the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused."
They went on to state the principle governing admissibility of evidence that falls within the exclusionary principle (at 482-483) as follows:
"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle." (Footnotes omitted.)
[35] However, there are a number of cases in which courts of appeal have upheld the admission of evidence that discloses the commission of other offences, or that discloses at least discreditable conduct, on a basis that suggests that the evidence was not seen as subject to this exclusionary principle.

Doyle CJ then gave consideration to the decision of Wilson v The Queen.[21] This was a case of an allegation of the accused having murdered his wife and his defence was of an accidental discharge of a firearm. He denied that he had fired the gun at all and gave a possible explanation for the discharge of the firearm. The accused was convicted of the offence. Evidence was led of the quarrels between the accused and the deceased in which the deceased had stated to the accused that she knew he wanted to kill her. The High Court dismissed the appeal and held[22] that the relations between the deceased and the accused were relevant to the question of whether the accused had fired the gun and that no other question remained. Barwick CJ held that evidence of the current relationship[23] between the accused and his wife was relevant and admissible without having to pass the test that would apply if it were being used to establish systematic conduct or to negative acts. The evidence was admissible not to prove a general criminal disposition but to show the nature of the relationship in a manner that bore directly on the question of guilt.
[21] (1970) 123 CLR 334
[22] Barwick CJ at 338
[23] At 337
The relevance and admissibility of the impugned evidence appears to have been determined on the basis that it formed part of the circumstances of the offence and it would be relied upon to determine the guilt of the accused.
Doyle CJ also discussed the decision of the Full Court of the Supreme Court of South Australia in R v Hissey.[24] The deceased was a woman living with the accused and she had died from the effect of a blow to the abdomen. The accused denied inflicting the blow or being present when the blow was inflicted. The prosecution led evidence to prove that on previous occasions the accused had used violence towards the deceased and made threats to her. The Full Court held that the evidence was admissible and not caught by the exclusionary principle. It held:-
“Evidence of this nature is not to be led as evidence of bad character or of a tendency to use violence on the part of the appellant. Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the appellant and the deceased (Wilson v The Queen).[25] We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living… when evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime…”
[24] (1973) 6 SASR 280
[25] Supra
The comments made above in relation to Wilson are apposite. The evidence was admitted to prove both the intent of the accused as well as the fact of the crime. In this case, it appears that by a process of logical reasoning and the whole of the relevant and admissible factual circumstances, the jury were entitled to make a finding of the guilt of the accused.
In Nieterink, Doyle CJ also discussed the decision of Hunt CJ at common law in the New South Wales Court in R v Beserick.[26] That decision is authority for the proposition that the exclusionary evidence rule does not always apply when the relevant evidence discloses the commission of an offence other than that charged. It would apply only if the evidence was tendered as propensity evidence or similar fact evidence or improbability evidence. It did not apply to evidence tendered to prove a fact in issue otherwise than by showing a propensity to commit an offence or merely by showing the commission of another offence (at 519-520).
[26] (1993) 30 NSWLR 510
In most of these cases, the evidence of uncharged acts are evidence of acts from which the jury might reason that the accused has a propensity to commit the crime with which the accused is charged (Doyle CJ at page 64) or is likely to commit a crime.
The evidence is not admitted on that basis but only on the basis that it is evidence which discloses a particular mode or manner of committing a crime from which mode or manner one could infer that the crime in question was committed (Doyle CJ at page 65). That evidence places the charged acts in their context in order to assist the jury to better understand what would otherwise appear to be surprising or unlikely conduct by the victim “in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian. In some of the cases the evidence has been evidence of a relationship which was important simply because it was relevant for the jury to know whether the accused and the victim were on good terms or not.” (Doyle CJ at page 65)
At paragraphs [41]-[42] of his decision, Doyle CJ summarises the uses to which uncharged acts may be put in cases involving sexual offences committed against young persons:
“[41] In most of these cases, the evidence of uncharged acts is evidence of acts from which the jury might reason that the accused has a propensity to commit the crime with which the accused is charged, or is likely to commit such a crime. On the other hand, the evidence has not been admitted on that basis. In particular, it has not been admitted on the basis that it is evidence which discloses a particular mode or manner of committing a crime, from which mode or manner one could infer that the crime in question was committed. Nor was it evidence of the type admitted in some cases, where the evidence is of uncharged acts relating to the person who is not the victim of the crime charged, and making it less likely that the victim of the crime charged has fabricated his or her evidence. The evidence is, as the judgments state, evidence which places the charged acts in their context, and which might assist the jury in better understanding what would otherwise appear to be surprising or unlikely conduct by the victim, in particular in submitting to criminal conduct or in failing to complain of it, often the relevant failure being a failure to complain to a parent or guardian. In some of the cases the evidence has been evidence of a relationship which was important simply because it was relevant for the jury to know whether the accused and the victim were on good terms or not.
[42] In the present case, as is common in cases involving sexual offences committed against young persons, the evidence of the uncharged acts had several potential uses.
[43] First of all, the evidence may be relevant because without it the jury could hardly understand the context in which the alleged offences occurred. As in this case, evidence of uncharged acts will often include evidence of acts that preceded the commission of the first offence charged. This evidence may disclose a course of events leading up to the first charged incident, which enables the jury to understand that the incident did not, as it were, "come out of the blue". The evidence will also sometimes explain how the victim might have come to submit to the acts the subject of the first charge. Without the evidence, it would probably seem incredible to the jury that the victim would have submitted to what would seem an isolated act, and likewise it might seem incredible to the jury that the accused would suddenly have committed the first crime charged. The evidence of uncharged acts may also disclose a series of incidents that make it believable or understandable that the victim might not have complained about the incidents charged until much later in the piece, if at all. They may show a pattern of behaviour under which the accused has achieved the submission of the victim. The evidence may establish a pattern of guilt on the part of the child, that could also explain the submission and silence of the child. The evidence in the present case was relevant on these bases.”
Doyle CJ also criticised the nomenclature used by counsel in Courts in relation to this type of evidence. He was not in favour of the use of the term “relationship” evidence because it could imply a line of reasoning that the uncharged incidents disclose a mere propensity to offend in relation to the victim which could be used to infer guilt or to disclose a pattern of conduct.
The Chief Justice also found that the use of term “background” is also undesirable although it was less dangerous than the term “relationship”.[27] His Honour found the term “background” was undesirable because it fails to identify the precise manner in which it is suggested that the evidence of uncharged acts can be used, that is, it could be looked at without any further guidance.
[27] At [46] et seq
His Honour held[28] that evidence of uncharged criminal acts is admissible even though it does not meet the test stated in Pfennig if the evidence is admitted and used to put in context (and the use of the term “context” is to be preferred to the use of the term “relationship” or “background”) the evidence of the offences charged. It is not used to support a line of reasoning that involves inferring from the fact and nature of the uncharged acts that the accused is likely to be the offender (as in an identity) or committed the crime in question (as in a similar fact case).
[28] At [48]-[49]
Doyle CJ then surveyed the relevant High Court authority and in particular, criticised the approach of Gaudron J in Gipp v The Queen[29] but only on the basis the admissibility of the evidence to explain lack of surprise or failure to complain will not usually depend on the manner in which the defence case is being conducted. The Chief Justice considered that the decision of the High Court in Gipp was significant in respect of the topic of admissibility of evidence of criminal conduct. His Honour held as follows:-
“[68] It is impossible to conclude that the entry of a nolle prosequi in respect of counts 1 and 2 unfairly prejudiced the appellant or that the inconsistencies in respect of the dates make the convictions on the remaining counts unsafe or unsatisfactory. It is unsurprising that the complainant confused the exact dates of events which took place years before when she was very young and which were, so she alleged, only two of many incidents occurring over a long period. The complainant said in evidence, "It was a long time, this is like nine, ten years ago. I said I wasn't sure on my dates. I had to go through with the police prosecutor to work out dates." It was open to a reasonable jury to find that her confusion - inconsistencies, if you like - did not prevent them from believing her account of the remaining charges as credible.”
[29] (1998) 194 CLR 106
Finally, Doyle CJ concluded as follows:-
“[75] My conclusion from my consideration of the reasons of the various members of the High Court in BRS and in Gipp is that most members of the Court have, at various stages, accepted the admissibility of evidence of uncharged criminal conduct, independently of the operation of the exclusionary principle. It is not easy to extract clear and precise statements of principle, because, as is so often the case with issues that arise in connection with the law of evidence, the application of the principle in the particular case depends very much upon the manner in which the evidence is used in the particular case. Nevertheless, I am satisfied that the principles stated in Hoch and Pfennig, which I have called the exclusionary principle, do not govern exclusively the admission of evidence of uncharged criminal acts.”
In 2008, the High Court published its decision in HML v The Queen, SV v The Queen and OAE v The Queen.[30] Because of the difficulty with drawing a ratio from each of the decisions, I have focused my attention upon the question of the standard of proof in relation to uncharged acts. Before doing so, it may be first noted that the Court was of the view that the Pfennig test is limited only to the assessment of the probative value of evidence about propensity and was a test of admissibility of evidence depending upon whether the evidence of propensity reached a certain level or standard of probative value. These principles were particularly discussed in the decision of the Court in OAE v The Queen. In particular, Justices Gummow, Kirby and Hayne, in a joint judgment and in general agreement with the separate decision of Gleeson CJ, Crennan J and Kiefel J found that the Pfennig test governs the admission of evidence that will reveal an accused person’s commission of discreditable acts other than those that are the subject of the charges tried.
[30] [2008] 235 CLR 334
In a rejection, in part, of the comments by Doyle CJ in Nieterink, Justices Gummow J, Kirby J and Hayne J held that admissibility of such evidence is not to be determined by asking whether that evidence will put evidence about the charges being tried in context or by asking whether it describes or proves the relationship between the complainant and the accused. The determinative question was whether there was a reasonable view of the similar fact evidence which is consistent with innocence.[31] In particular, it is to be noted that at paragraph 106 of the judgment, Hayne J held as follows:-
“[106] Admissibility of evidence of other sexual acts directed at the complainant by the accused, which are not acts the subject of charges being tried, is to be determined by applying the test stated in Pfennig v The Queen. It is not to be determined by asking whether the evidence in question will put evidence about the charges being tried in context or by asking whether it describes or proves the relationship between the complainant and the accused.” (Citations omitted)
[31] See Hayne J at [106], [107], [108], [109]
In commenting upon the decision in Nieterink, Justice Hayne held as follows[32]:-
“[164] Three of the four uses identified in Nieterink as permissible uses of the evidence (context, confidence to offend and explanation for delay in complaint) take their chief significance from their use in assessing the coherence and credibility of the complainant’s evidence. If those were the only uses to which the evidence could be put, it may be doubted that it would be admissible. Each of those three uses, if they were the only ones to which the evidence could be put, might be said to deal only with collateral issues that should not be explored at trial.”
[32] At paragraph [164]
In conclusion, Hayne J held as follows[33]:-
“[169] In the end however, the admissibility of the evidence of sexual conduct other than that charged turns on the fact that the evidence shows conduct other than the charges being tried, that is illegal, or at least discreditable to the accused. It is because the evidence reveals illegal or discreditable conduct of the accused on occasions other than those giving rise to the charges, and is tendered, at least in part, as proof of a step in reasoning towards guilt, that the question of its admissibility is to be resolved by applying the test stated in Pfennig.”
[33] At paragraph [169]
Turning then to the second aspect of the HML decision, the Court made observations about the standard of proof of uncharged acts. Again there was a variation of opinions.
Gleeson CJ was of the view that it was unnecessary for separate directions by a trial Judge because it was a matter that was an indispensible step in the reasoning towards guilt. Conversely, Gummow, Hayne and Kirby JJ held that because the evidence is admitted[34] to establish a step in the proof of the prosecution case then two matters are to be identified: if the evidence does not have sufficient probative value it is not admissible and must be rejected. If it is admissible, then it only may be used if it is proved beyond reasonable doubt. Kiefel J expressed the view similar to the plurality and held that ordinarily the evidence would have to be proved beyond reasonable doubt.
[34] Being evidence of other discreditable or criminal conduct
It is therefore necessary to attempt to draw a ratio from the decision in HML v The Queen.
The decision of the High Court in HML was considered by the Court of Appeal of Victoria in R v Sadler [2008] VSCA 198 (14 October 2008). The facts of the matter briefly were that the accused was charged with rape and common law assault of the complainant. In the course of the cross examination of the complainant, the accused’s counsel was cross examining on the complainant’s credit and sought leave to cross examine on the complainant’s sexual activities as a prostitute and her drug taking. The issue for the Court of Appeal was whether the trial Judge erred in preventing defence counsel from cross examining the complainant as to the consumption of heroin and prostitution at the time of the alleged offences. On a second matter, the Court of Appeal was asked to decide whether the trial Judge had erred in failing to direct a jury that before they could use the evidence of uncharged acts as a step in the process of reasoning, they needed to be satisfied that those acts had been proved beyond reasonable doubt.
The Court of Appeal held that the trial Judge erred in refusing to allow the defence counsel to cross examine the complainant on her heroin addiction prior to arriving in Melbourne and whilst in Melbourne. The accused and the complainant had been in South Australia and travelled back to Melbourne to live. The Court of Appeal also held that the trial Judge erred in refusing to permit cross examination as to whether the complainant was working as a prostitute during periods to which counts on the presentment related. That is because the answers that the complainant may have given if examined about those matters could have made a difference to the jury’s decision. The Court also held that it was not a case in which it would be appropriate to apply the proviso since the assessment of the complainant’s reliability as a witness was critical:-
“…to the jury’s verdict and without the questions about her addiction or work as a prostitute being asked and answered, it is impossible to say what the effect would be…”[35]
[35] At [73]
Importantly, after a long discussion about whether HML applies to the admissibility of evidence of uncharged acts in Victoria[36] the Court (Justice Dodds-Streeton delivered the judgment of the Court) analysed in detail[37] the factual matters, logic and reasoning of the High Court in the HML decision. The Court of Appeal held as follows:-
[36] Commencing at [48]
[37] Between [49]-[58]
[59] …we respectfully understand the ratio of the decision (in HML) to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.
[60] Despite the strength of the judgments of Kirby and Hayne JJ (and thus of Gummow J) and the observations of Heydon J, as to the need for uncharged sexual acts to be proved beyond reasonable doubt in jurisdictions where Pfennig provides the criteria for admissibility, the majority of judges in HML did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt.
[61] We further observe that two members of the majority (Kirby and Heydon JJ) expressly limited the decision in HML to jurisdictions in which Pfennig is still the law and, on one view of Hayne J’s reasoning, his Honour’s conclusion was similarly limited. If we may say so with respect, it appears more likely that his Honour’s reasoning was intended to apply to all Australian jurisdictions. But even if that is so, as a matter of stare desisis we consider that the ratio of the decision must still be understood as limited to Pfennig jurisdictions.
[62] With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial Judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the Judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant’s evidence as to the uncharged acts and as to the charged acts.
[63] If so, it follows that the standard of proof applicable to uncharged acts and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML.
[64]
[65] Now because of the limited ratio of HML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to it use) we consider that there was one critical difference. Pending further guidance from the High Court, a Judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in the process of reasoning to guilt to warrant particular mention and, therefore, the Judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.
[66] We do not consider that the same applies to uncharged acts of a non-sexual nature. Apart from jurisdictions in which Pfennig still applies, nothing which was said in HML appears to us to question existing laws to the purpose for which evidence of uncharged acts of a non-sexual nature may be tendered, or as to the direction to which a trial Judge should give to the jury concerning the use to which may be made of such evidence and the standard to which such uncharged acts must be proved.
[67] It follows in our view that, until and unless the High Court says otherwise, in the case of uncharged non-sexual acts a Judge is not required to give a separate direction about the standard of proof applicable to that evidence unless the Judge perceives there is a real risk of the jury using that evidence as an important step in the process of reasoning to guilt. In that event, the jury should be directed that they should not rely on the evidence for that purpose unless satisfied of its truth beyond reasonable doubt. Where no such risk is perceived, no such direction about the standard of proof of the uncharged non-sexual acts need to be given”

The Court of Criminal Appeal of South Australia has had cause to consider the application of the decision in HML v The Queen on a number of occasions. I refer in particular to R v H, T [2010] SASCFC 24 (24 August 2010); R v S, PC [2009] SASC 38.
Perhaps the most complete discussion is to be found within the Court of Criminal Appeal decision in R v Ellis [2010] SASC 118 (27 April 2010). The issue for consideration in that matter was the question of cross admissibility of evidence but I refer in particular to the discussion in the decision of Justice Sulan at paragraph [33] et seq. I also refer to the detailed discussion of Justice Kourakis at paragraph [96]-[104] inclusive.
The High Court has very recently had further cause to consider this area of the law. I refer to the decision of BBH v The Queen [2012] HCA 9 (28 March 2012). In this decision, the High Court split of 4:3. French CJ, Gummow J and Hayne J were the dissentients. The majority judgments were those of Heydon, Crennan, Kiefel and Bell JJ.
The relevant facts of the matter were that on 25 January 2006 an indictment was presented against the accused alleging a number of sexual offences in breach of the Queensland Criminal Code in relation to his daughter who was called the complainant. The offences were alleged to have been committed at different times between when the complainant was 4 years of age and 16 years of age. The indictment contained 12 counts of maintaining an unlawful sexual relationship with the complainant between 3 July 1989 and 31 March 1999, 6 counts of unlawful and indecent dealing when the complainant was under 14 and under 16 years of age, 4 counts of unlawfully procuring the complainant to do an indecent act when the complainant was under the age of 12.
The accused was convicted and sentenced to 10 years imprisonment on each count to be served concurrently. An appeal to the Court of Appeal of Queensland was dismissed and three years later the accused applied to the High Court for special leave to appeal. That application for special leave to appeal was referred to an enlarged bench of the High Court by Order of Gummow, Crennan and Bell JJ.
The application was concerned with the reception at trial of evidence given by the applicant’s youngest son concerning an uncharged incident involving the applicant and the complainant, which the son said he had observed some time in 1994 or 1995 at which time the son was about 10 or 11 years of age. The son gave evidence of an observation he made of an event occurring between the complainant and the accused inside the caravan in which the family was staying.[38]
[38] The event involved the complainant kneeling on a bed in the caravan, her underwear had been removed and was around her ankles and the accused’s face was adjacent and close to her bare bottom.
The son made a statement to the police in 2005 but then volunteered to the applicant that what he saw was consistent with the applicant looking for an ant bite or a bee sting and that he saw nothing untoward about the incident. The complainant did not recall the incident which did not follow the pattern of conduct of which she gave evidence and the applicant denied that it ever occurred.
The issue for the High Court was that the son’s evidence was admitted over objection as propensity evidence tending to show a guilty passion between the accused and the complainant. The dissenting Judges held that the evidence should not have been admitted because it was equivocal. In particular, it could only achieve relevance by a process of reasoning conferring significance upon it by reference to direct evidence of the conduct it was adduced to prove. The logic in relation to its admission was therefore circular.
The decision of the High Court in Pfennig was not put to the Judge at first instance or to the Court of Appeal. The Justices of the High Court made comments in relation to Pfennig and HML. Justice Hayne[39] said the following:-
“[68] This Court's decision in Pfennig, especially in the light of its earlier decisions… must be read as recognising that the supposed categories of exception are derived from a more fundamental principle: that the evidence of other discreditable conduct of an accused is admissible only if the evidence has particular probative value (or "cogency" or "particular relevance" or "strength"). And Pfennig requires that this more fundamental principle be applied to determine whether evidence of an accused's other conduct may be admitted. That is, Pfennig decided that other discreditable conduct by the accused is admissible – has sufficient probative value – only where the evidence, if accepted, bears no reasonable explanation other than the inculpation of the accused in the offence charged. This, not whether the evidence falls into some supposed category of subject matter, is the question for decision.
[69] What was said in Pfennig depended upon the basic considerations that have been identified. Because that is so, neither the circumstances in which Pfennig is to be applied nor the proper application of the principles established in Pfenning can be understood without reference to the fundamental considerations.
[70] Evidence that shows that the accused is a bad person, has committed other crimes or has a disposition or propensity to commit crimes of the kind charged is generally not admissible. It is not admissible because it is not sufficiently relevant to – that is of sufficient probative value in establishing – any issue being tried. The logical connection between the demonstration that the accused is a bad person, has committed other crimes or has a propensity or disposition to commit crimes of the type charged and the conclusion that the accused did commit the offence that is charged is judged to be too weak either to meet the test to relevance or to have sufficient probative value to justify its admissions. And because the connection is weak, the evidence may be misused. It may be misused by giving it undue weight; that is, its prejudicial value is greater than its probative value.
[71] The common law recognised, long ago, that the force of the proverb: “give a dog an ill name, and hang him”. Hence the basic rule relating to similar fact evidence that evidence of other discreditable conduct is not admissible if it shows only that the accused has a propensity or a disposition to commit crime or a crime of the kind charged. But, as has been said, evidence of other discreditable conduct by an accused may have a particular probative value or cogency. And Pfennig identifies that latter class of evidence as evidence which, if accepted, bears no reasonable explanation other than that the inculpation of the accused in the offence charged.”
[39] At [68] et seq
In relation to the High Court decision in HML v The Queen, his Honour said:-
“[76] In HML v The Queen, this Court divided in opinion about the basis or bases upon which evidence of uncharged acts was admissible and how such evidence could be used by a jury. The Court also divided in opinion about whether the jury should be told not to act on evidence of other discreditable conduct by the accused unless satisfied beyond reasonable doubt that the accused had engaged in that conduct.
[77] When a complainant gives evidence that the accused committed sexual offences against the complainant other than those which are the subject of the charges being tried, that evidence may aptly be described as evidence of the relationship that existed between the accused and the complainant; it may aptly be described as evidence that puts the complainant’s evidence about the charged acts in its “proper context”. But if the evidence is admitted, it is admitted because, if accepted by the Tribunal of fact, it bears no reasonable explanation other than the inculpation of the accused in the offence or offences charged. The evidence of uncharged acts bears no reasonable explanation other than inculpation because, if accepted, it shows that the accused had a sexual interest in the complainant upon which the accused acted.
In the majority, Heydon J decided the matter on the basis of relevance and the admissibility of evidence.[40]At [89] his Honour held:-
“It would be inconsistent with these approaches to require as a test for relevance a condition that there be a capacity to prove the fact asserted beyond reasonable doubt at the stage when the admissibility of an item of evidence is under consideration.
[90] Further a test of that kind appears inconsistent with the principle that an individual item of circumstantial evidence need not be established beyond reasonable doubt unless it is an indispensible intermediate step in the reasoning process towards inference of guilt. Why should a favourable decision on the relevance of evidence depend on its capacity to prove a fact asserted to beyond reasonable doubt when a favourable decision as to its weight does not have to satisfy that standard?”
[40] See generally at paragraphs [88]-[89] of his Honour’s judgment
Heydon J decided the matter on the question of the admissibility of the evidence of the son and the fact that the prosecution did not elicit the innocent explanation which the son gave to the police many years after the event. His Honour held [95] that it was understandable that the son gave the explanation to the police when he was 20 years old, out of concern to protect his father and said:-
[97] Several things could have happened to W's evidence in chief. The jury could have disbelieved it. Or the jury, with or without the aid of what W said in cross-examination, could have characterised the conduct he narrated innocently. Or the jury could have accepted the evidence in chief and not the evidence given in cross-examination. The possibility that evidence will be disbelieved cannot render it irrelevant, for all items of testimony are open to disbelief, and the process of deciding to disbelieve it often depends on taking into account all the evidence. A great deal of similar fact evidence tendered by the prosecution is denied by the accused, but the possibility that eventually it will be disbelieved does not prevent its reception as relevant.
Justice Heydon dealt with the decision in Pfennig at [106] et seq and rejected the submission that the Pfennig test required that the trial Judge proceed on the basis that the son’s evidence including under cross examination would be accepted as true. His Honour decided the matter on the basis that the proper question is whether the evidence which the prosecution tendered would be admissible. His Honour found that the son’s evidence in chief answered that question and this evidence the Pfennig test required to be accepted as true. Therefore, once it was admitted, it remained before the jury whatever the son said in cross examination, unless some application was made to remove it from the jury. No application was made. Ultimately, his Honour rejected the submissions based upon the Pfennig test because as he held at [110], the Pfennig test determines the admissibility of what the prosecution tendered and that is unaffected by qualifications in cross examination.
Justices Crennan and Kiefel delivered a joint judgment. Their Honours addressed the test in Pfennig at paragraphs [130] et seq. Their Honours identified that the applicant’s argument on his application for special leave focused upon the probative quality of the evidence of the son, standing alone and that, the relevant tests as enunciated in Pfennig, Phillips and HML determined the particular probative quality that evidence of propensity must have for it to be admissible.
At paragraph [131] their Honours said as follows:-
[131] The test in Pfennig operates to exclude otherwise relevant evidence. It applies to evidence of the accused’s propensity. In Roach v The Queen 242 CLR 610 at [622], the test in Pfennig was said to proceed upon the basis that the propensity evidence in question was a necessary step in reasoning to guilt and to require a trial Judge:-
“when determining whether the evidence of propensity is to be admitted before the jury, to apply the standard which the jury must eventually apply. The Judge must ask whether there is a rational view of the propensity evidence seen in the setting of the prosecution case, which is consistent with the accused’s innocence. If the Judge so concludes, the evidence ought not to be admitted.”
To this statement it is necessary to add that the test in Pfennig is applied by a trial Judge upon certain assumptions, namely, that the propensity or similar fact evidence is true and that the prosecution case as revealed in evidence already given at trial or depositions of witnesses later to be called, may be accepted by the jury.
[132] The rantionale for the test in Pfennig is the concern that evidence which demonstrates an accused’s propensity might be used by a jury to reason to guilt in circumstances where the evidence is of little real probative force. Because such evidence, of its nature, is highly prejudicial, Pfennig requires that the evidence have sufficiently strong probative force to make it just to admit the evidence despite its prejudicial effect.”
[133] …the test in Pfennig may be thought not to apply so readily to many other cases, particularly cases involving a long history of alleged sexual abuse where the prosecution case is principally, if not solely, founded upon the evidence of the complainant.”
At paragraph [153], their Honours held that a finding of sexual interest held by an accused’s father towards his daughter is evidence of the accused’s motive or propensity to engage in sexual acts with the daughter and that it might be employed by a jury in propensity reasoning towards guilt. In a case such as this little, if any distinction may be drawn between motive and propensity.
At paragraph [154], their Honours posed the following question:-
“[154] The question then is how the test stated in Pfennig and referred to in Roach is to be applied. How is the enquiry as to whether there is a rational view of the circumstantial evidence that is consistent with the innocence of the accused to be addressed.
Their Honours adopted the view expressed in Pfennig and confirmed in Roach that propensity evidence must be viewed in the context of the whole of the prosecution case. In that process the prosecution case and the propensity evidence must be taken as accepted by the jury. So that, when taken together, that is the propensity evidence with all of the other evidence, there would be the elimination of any reasonable doubt which might be left by the other evidence.
Their Honours then reaffirmed the distinction between the decisions of the High Court in Pfennig and in Shepherd v The Queen[41]. The distinction was made on the basis that Pfennig applies to evidence of propensity and their Honours held as follows:-
[164] The strong probative force spoken of in Pfennig in connection with propensity evidence is its force as propensity evidence and in propensity reasoning. Pfennig is not directed to the question whether evidence is probative of propensity. Logically that question is anterior to the application of the test in Pfennig. (my emphasis)
[165] Shepherd recognises that there may be findings on intermediate facts which constitute links in a chain of reasoning towards an inference of guilt or facts which prove the facts which are the basis of that inference. In such cases it will be necessary to consider the weight or probative force of individual circumstances when put together in proof of the intermediate fact. A proven circumstance is not to be considered in isolation (Shepherd v The Queen (1990) 170 CLR 573 at [579], [581]-[589]).
[41] (1990) 170 CLR 573 (Shepherd).
Evidence Act: Part 3 Division 3
Earlier in this judgment, I have set out the content of Part 3 Division 3 of the Evidence Act 1929. I have already addressed s34O(2)(a) and the operation of s18 of the Evidence Act. I will not repeat those comments.
The operation of s34O(2)(b) requires comment. The evidence to be led (of the character, reputation or disposition) must relate to the person as a fact in issue. In my view, this means that the evidence is to be approached differently than, for example, evidence to be led under s34P(2)(b). The evidence covered by s34O(2) relating as it must to the particular characteristic of a person as a fact in issue, is limited to evidence of disposition, for example of a person as an habitual criminal. On the view that I have formed, the content of s34O(2)(b) means that such evidence is to be treated differently to the evidence covered under s34P. I now turn to that section.
The chapeau of s34P(1) reads as follows:-
“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)…”
In my view the chapeau of the subsection discloses that it is directed generally to that evidence discussed above that falls within the description of evidence of discreditable conduct. The issue is the operation of a section to delineate between discreditable conduct evidence, the prejudicial effect which does not outweigh its probative effect. A secondary question is whether and if so how in such a determination, the operation of the subsection is informed by the common law rules previously identified.
The balance of s34P(1) consists of exclusionary sub-paragraphs. S34P(1)(a) is an absolute prohibition in respect of any use of discreditable conduct evidence to suggest that the defendant is more likely to have committed the offence because he or she engaged in discreditable conduct.
It is a formulation of the common law rules that are, in turn, consistent with the structure of the sub-section. So also s34P(1)(b) makes that evidence inadmissible for that purpose. (my emphasis) That is the impermissible use of that evidence and the provision is consistent with the established common law rules.
The question then remains whether the evidence may be admissible for another purpose. That is covered by s34P(1)(b) which states that outside of the operation of s34P(2), the evidence is inadmissible for any other purpose.
Therefore, it is necessary to ascertain whether the subject evidence is admissible for any other purpose.
That is covered by s34P(2). It is necessary to set out in full the chapeau of that sub-section and it reads:-
“…(2) discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if:…”
The wording of the chapeau of sub-section s34P(2) complements the drafting of sub-section s34P(1); there is no qualification to what is an impermissible use of such evidence. There is only the possibility of consideration of the admissibility of evidence (other than the evidence which is inadmissible for s34P(1)) for another purpose (my emphasis).
Under sub-subparagraphs of s34P(2)(a), evidence may be admitted for a use called the permissible use if and only if a Judge is satisfied that the probative value of the evidence admitted for a permissible use (and therefore not for an impermissible use) substantially outweighs any prejudicial effect it may have on the defendant. This notion is to an extent consistent with previously developed common law principles in relation to the concept of probative value and prejudicial effect. There is a deliberate use of the comparative adverb “substantially” to qualify the participle “outweighs”. This is a form of expression that has found use in the common law. Self evidently, it raises a higher threshold of satisfaction to be achieved by the probative value when compared to the prejudicial effect.
It is to be observed that the conjunctive “and” is used at the end of subparagraph s34P(2)(a). It is necessary to analyse closely the contents of the second sub-subparagraph. It reads:
“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” (my emphasis).

The words “in the case of…” refers to the nature and use for which the evidence may be admitted; it being for a permissible use and the evidence relying on a particular propensity or disposition.
In my view this sub-subparagraph (s34P(2)(b)) is directed at the issues discussed by Doyle CJ in R v Nieterink.[42] Such evidence relies on the particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue. Such evidence must “…have strong probative value having regard to the particular issue or issues arising at trial…”
[42] Supra
I will not repeat here the discussion of Doyle CJ concerning such evidence being used to explain, for example, context which, in turn assists a jury to properly comprehend the circumstances of particular offending.
S34P(3) reads as follows:-
“(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.”
S34P(4) governs when a particular notice must be given and requires that reasonable notice in writing must be given to each party in accordance with the rules of Court. The Court may, if it thinks fit, dispense with the requirement in subsection (4): see s34P(5).
As it is not necessary for current purposes, I will not address s34Q.
Under s34R, a Judge is required to identify and explain the purpose for which the evidence may or may not be used.[43] Under s34R(2) it is necessary for the jury (or a Judge sitting alone), when reasoning to a finding of guilt, and using discreditable conduct evidence admitted under s34P, to require those facts that are admitted into evidence to be proved beyond reasonable doubt. This resolves the dichotomy of views expressed by the members of the High Court in HML.
[43] cf Shepherd
Turning then, in light of the whole of that history, to the issue before this Court it is necessary to discuss the content of s34T of the Evidence Act.
S34T of the Evidence Act reads as follows:-
“34T – Severance
Where
(a)    Two or more defendants are charged in the same information; and
(b)   A party proposes to adduce discreditable conduct evidence; and
(c)    A defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information
The court, when considering the application must give strong weight to a real possibility that the applicant may be prejudiced by:-
(d)   Evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e)    Evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f) The applicant’s inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of s34P.
Although trite, relevant evidence is admissible. In BBH v The Queen,[44] Heydon J addressed the question of relevance and admissibility. At paragraph [88] et seq his Honour said the following:-
[44] Supra.
“[88]James Fitzjames Stephen… defined relevant as:-
“the word relevant means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other.”
Speaking about the jury’s role at the end of the trial, Wigmore remarked that the measure of reasonable doubt need not be applied to the specific detailed facts, but only to the whole issue. In similar vein, speaking of the earlier stage when admissibility is ruled on he also said:
"admissibility signifies that the particular fact is relevant, and something more – that it has also satisfied all the auxiliary tests and extrinsic policies. Yet it does not signify that the particular fact has demonstrated or proved the proposition to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence… admissibility falls short of proof or demonstration. This is due partly to the circumstance that, in our system, the tribunal has traditionally been a divided one, so that the rule of law, uttered by the judge, merely declares what is sufficient to go to the jury and the jury ultimately decides upon the total effect that we call proof. But chiefly the distinction is due to the circumstance that each evidential fact is offered separately and the quality of complete demonstration could therefore never be expected of it. Since the production of evidence takes time, and since one piece of evidence must precede another, the rules of admissibility, if there are to be any at all, can have nothing to do with the inquiry of whether certain evidence effects complete proof."
And in United States v Madera the Fifth Circuit Court of Appeals said:
“evidence need not be conclusive of a material issue in order to be admitted.” There is also authority against the applicant’s assumptions in this Court and elsewhere in Australia” (Citations omitted)
At paragraph [97] of the same judgment, his Honour also said as follows:-
“[97]… the possibility that evidence will be disbelieved cannot render it irrelevant, for all items of testimony are open to disbelief, and the process of deciding to disbelieve it often depends on taking into account all the evidence. A great deal of similar fact evidence tendered by the prosecution is denied by the accused, but the possibility that eventually it will be disbelieved does not prevent its reception as relevant. As W A N Wells said:
“an item of evidence whose relevance is in dispute may validly be held to be relevant notwithstanding that, upon an appraisal of the entire body of evidence in this case, it is found to carry no weight at all, and is discarded.”
S34T is a new provision concerning the consideration of an application for separate trials by a co-defendant where one party proposes to adduce discreditable conduct evidence against another party (in this instance usually one defendant against another co-defendant). In judgment number 1 in this action, I have set out a summary of the common law tests applicable in respect of an application for separate trials. I will not repeat them here.[45]
[45] [2012] SADC 186 at [63]
In my opinion, subparagraphs s34T(d)(e) and (f) require the Court to make an assessment of the whole of the nature of the evidence. This means that the Court must make an assessment of where, in light of the facts required to be proved, does the evidence stand and what then is its overall effect.
It is in that background that this section may be considered although it must be noted that the reference in s34T Evidence Act to s34P Evidence Act means that the interpretation of s34T is not in any strict sense to be limited by what may have been the general common law approach to separation of trials. But in my view, the common law principles will still inform considerations under the sections.
S34T requires the Court to give strong weight to a real possibility that the applicant for separation may be prejudiced by the matter set out in s34T(e)-(f) inclusive.
This expression is more than a comparative term. It requires the trial Judge to identify a real possibility of the prejudice. That is, it cannot be a merely fanciful or marginal possibility. It appears also to mean more than that, on balance, there is a possibility of prejudice.
And the assessment of the real possibility must be made on the evidence before the trial Judge at the time of the application. It must be presumed that Parliament was aware that often these decisions are made in circumstances where the appreciation of the trial Judge of the relevant facts of the whole matter and their weight is, to an extent, limited.
The assessment of the real possibility is also made in the context that generally, in most cases involving co-accused, there is some level of prejudice suffered by one co-accused by association with one or another or all of the other co-accused.
In my view, this is an important feature of the drafting method. What is required is a real possibility of prejudice. There is no comparative adjective used to describe the prejudice.
The question arises of whether it is “prejudice” that may be considered outside of the usual protection afforded to a co-accused by directions that may be given by a trial Judge in the usual way or whether those protections are to be put aside in the particular context of the issues under consideration for s34T application. That is not a matter for further consideration here.
Finally, in the context of this part of s34T, the trial Judge is required to give strong weight to that real possibility of prejudice. The use of the adjective “strong” means that the trial Judge is still engaged in a balancing exercise but in that respect is required to be more mindful of the position of the applicant co-accused.
In my opinion, it is apparent that this requirement means that the interests of the co-accused, in context, are to be addressed differently than as may have occurred under the balancing exercise required under the application of the common law rules. Greater emphasis will be focused upon the particular interests of the applicant and less emphasis placed upon the protections that may be afforded by proper directions about one co-accused amongst several. To that extent, less focus may be placed upon general considerations including public policy issues.
In light of my decision in this matter, it is unnecessary for me to consider those matters further. I therefore turn to consider whether, in light of the content of the co-accused’s discreditable conduct notice, there is any basis to suggest prejudice may be suffered by the applicant Hankins. In order to answer that question, it is necessary to consider the operation of subparagraphs (d), (e) and (f) of s34T as well as the operation of s18 of the Evidence Act.
Dealing first with s18 Evidence Act: notwithstanding the wording of s18 Evidence Act, in order for one co-accused to ask questions of another “… tending to show that he has committed or being convicted of or being charged with any offence other than that with which he is then charged or is of bad character…” it is necessary to obtain the leave of the Court. In considering the question of leave, the Court will consider questions of relevance and prejudicial and probative effect.
The operation of s18 Evidence Act is preserved by s34O Evidence Act and s18 operates in a different context and within the prescriptive provisions set out in s18(1)(d)(i)-(iv). That said, the overall effect is, if leave is granted, to allow one co-accused to elicit and prove against another co-accused what may ordinarily be described as discreditable conduct but within the terms and prescriptive requirements of that section.
I then turn to consider the operation of s34T(d)-(f) inclusive of the Evidence Act.
Considering first s34T(f); the evidence that would be admissible but for the operation of s34P would be that evidence in respect of which a prohibition operates, namely that evidence which falls within s34P(1)(a). This is because s34P(1)(a) establishes the benchmark for what is an impermissible use of evidence that may otherwise satisfy the test of relevance and therefore admissibility as above described.
If the use of the evidence is an impermissible use, then the evidence is inadmissible for a s34P(1)(a) use. The question is whether the discreditable conduct evidence could be used for a purpose, other than the impermissible purpose (s34P(1)(b) and (c)) and it would be admissible evidence for s34P of the Act.
Consistent with the structure of s34P and the antecedent common law rules, the other evidence that is admissible but for s34P would be that evidence which though it is discreditable conduct evidence, such evidence would not be led for an impermissible use and that such discreditable conduct evidence is able to satisfy the test of having a probative value which substantially outweighs the prejudicial effect it may have on the accused.
This aspect of the operation of s34T(f) would suggest that the test of admissibility established by the use of the adverb “substantially” in s34P(2)(a) may have elevated the barrier to admissibility of otherwise relevant and admissible evidence.
The apparent intention of the drafting of s34T(f) is to require the Court to balance the effect of one party having the capacity to bring evidence of discreditable conduct against one co-accused in circumstances where that co-accused does not have the ability to bring any discreditable conduct evidence against the co-accused who proposes to adduce the discreditable conduct evidence. This balancing exercise will turn on questions of fact.
I have already set out above the content of s34T(d). In this case, the prosecutor has not proposed to adduce evidence against another defendant which is not admissible against the applicant. In my view, the questions for consideration by me is whether the evidence proposed to be led by the prosecution as discreditable conduct evidence or as other evidence does not contravene s34P(1) or alternatively, fits within that type of evidence as described in Shepherd. In respect of evidence for which the prosecution may ask for a Shepherd direction, the prosecution will ask the jury to make findings on intermediate facts which constitute a chain of reasoning towards an inference of guilt[46] or facts which prove the facts that are the basis of that inference.[47]The jury will be asked to consider the weight of the probative force of individual circumstances when put together in proof of the intermediate fact.[48] As Justices Crennan and Kiefel held in BBH v The Queen:[49]
“A proven circumstance is not to be considered in isolation.”
[46] Shepherd v The Queen (1990) 170 CLR 573 at 581 per Dawson J.
[47] Ibid.
[48] Ibid at page 581.
[49] Supra at page 165.
Similar but slightly different considerations apply in respect of s34T(e). Where the issue is what is the possibility of prejudice to the applicant of evidence proposed to be adduced by another defendant which is not admissible against the applicant. In that background it is necessary to consider the context of the notices delivered by the co-accused. As that circumstance does not arise in this case, it is unnecessary for me to consider that matter further here. That circumstance will arise in this case in the event that the other defendant leads evidence which creates a sufficient prejudice against this applicant. In the absence of a concrete example it is difficult to be any more precise about that matter. No doubt, this provision is directed at evidence led by a co-accused that actually or inferentially “…ropes in…” the applicant accused. That evidence would be identified in the discreditable conduct notice (s34T(b) Evidence Act).
The other defendants have given notice of their intention to lead discreditable conduct evidence against the applicant as I have described above. That evidence is as follows:-
“To: The Director of Public Prosecutions
And to: NEIL HANKINS
The Defendant SHANE RONALD FISCHER gives notice of the intention of the defendant at the trial seek to adduce evidence of discreditable conduct of NEIL HANKINS.
Particulars
1. The nature of the discreditable conduct is
As to drugs:
a.That the accused NEIL HANKINS was a dealer of methylamphetamine prior to and at the time of the offending the subject of the charge.
b.That the defendant purchased methylamphetamine from NEIL HANKINS for at least a year prior to his arrest.
c.That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.”
And:-
“To: The Director of Public Prosecutions
And to: NEIL HANKINS
The Defendant PAULA MARIA WILKEY gives notice of the intention of the defendant at the trial seek to adduce evidence of discreditable conduct of NEIL HANKINS.
Particulars
1. The nature of the discreditable conduct is
As to the drugs:
a.That the accused NEIL HANKINS was a dealer of methylamphetamine prior to and at the time of the offending the subject of the charge.
b.That the defendant purchased methylamphetamine from NEIL HANKINS on an ongoing basis for approximately 12 months prior to her arrest.
c.That the accused NEIL HANKINS has convictions for manufacturing and trafficking in the drug methylamphetamine.”
The purpose for which that evidence is said to be led is identified by both the co-defendants as follows:-
“3. The uses of the evidence which are said to be permissible pursuant to s34P are:
a.   To establish that NEIL HANKINS had an interest in the drug methylamphetamine, so as to rebut any suggestion of an innocent association with that drug when arrested on 23 July 2011.
b.   To rebut the suggestion that the defendant was in fact in possession of the drugs.
c.   To show that the relationship between the defendant and NEIL HANKINS was one of an ongoing purchaser and dealer of the drug methylamphetamine.”
None of these purposes fall within the prohibition of s34P(1) as an impermissible use. The question is whether that evidence may be admitted for a permissible use.[50] The evidence that is sought to be led as disclosing a particular propensity or disposition of the applicant as circumstantial evidence of a fact in issue, must satisfy the test that it substantially outweighs the prejudicial effect that it has on the applicant and that it has strong probative value in respect of the issues at trial.
[50] S34P(2)(a) or (b).
Assuming the satisfaction of that test, I must give strong weight to the real possibility that the applicant would be prejudiced by the receipt of that evidence at the trial.
One complication here is in the case of Wilkey. There is an inconsistency between the content of Wilkey’s discreditable conduct notice and the factual version of events given to the police by Wilkey. I have already indicated that in my view, the factual version of events given to the police by Wilkey appears to be fanciful. For present purposes, I will assume that Wilkey’s version of events to be given at trial in her evidence is that which is reflected in the discreditable conduct notice.
The evidence proposed to be led by the co-accused in respect of 1(a) and 1(b) of the Notice will be led because such evidence constitutes links in the chain of reasoning towards an inference of the guilt of Hankins (or facts which prove the facts which are the basis of that inference). It has the quality of strong probative value because it constitutes links in the chain of inferences that lead to the explanation of Wilkey and Fischer being at the applicant’s premises on that day namely, to purchase drugs from their (alleged) supplier, Hankins.
That permissible use, in my opinion, substantially outweighs any prejudicial effect it may have on the applicant. Similarly, in my opinion, there is no real possibility that the applicant will be prejudiced by that evidence.
Conversely, in respect of 1(c), the evidence sought to be led by the co-accused of the discreditable conduct of the applicant is sought to be led for three identified uses, all of which are directed towards the association of the applicant with the drug methylamphetamine, his possession of methylamphetamine and the purpose that at the relevant time for the co-defendants being at the premises, namely to purchase the drug from him.
The evidence sought to be led under paragraph 1(c), if led by the prosecutor, would create a real possibility that the applicant would be prejudiced. Different to that position, the evidence here is sought to be led by the co-accused.
I have previously made a delineation between particulars 1(a), and (b) and 1(c) of the co-accused’s notices. That is because, in the view that I have formed, the evidence to be led in relation to 1(c) that the accused Hankins has convictions for manufacturing and trafficking in the drug methlyamphetamine, will only be led by the co-accused to suggest that the defendant is more likely to have committed the offence. Notwithstanding the wording of s18 of the Evidence Act, the Court still requires that its permission be given if a party wishes to lead evidence or cross examine a co-accused on such matters. Also, the Court will refuse permission to a co-accused to cross examine on such matters unless they are both relevant (that is to the issues of whether the co-accused committed the offence, the credit of the co-accused) and where its probative value outweighs its prejudicial effect. In one form or another, these tests are generally applicable to each of the placita within subparagraph s18(1)(d).

The applicant Hankins has failed in his attempt to lead discreditable conduct evidence against the other co-accused. The result is that the applicant is, as I am presently advised, not intending to lead any evidence against his co-accused as may be contemplated under s18(1)(d) of the Evidence Act.
This evidence does not constitute evidence proposed to be led by the prosecutor. There is no suggestion of the applicant’s inability to adduce with respect to another defendant’s relevant evidence that would be admissible but for the operation of s34P. However, in my view, this evidence does not have sufficient probative value to outweigh its prejudicial effect because, in light of other admissible evidence to be put to the jury, it only has effect as mere propensity evidence. Although relevant in the sense above discussed, in the exercise of my discretion I would disallow the co-accused from leading in evidence or cross examining upon the matters described in 1(c).
In that case, and in light of my findings in relation to the nature of the evidence described in 1(a) and 1(b), it is no longer necessary to give further consideration to the application of Hankins under s34T as there is no further basis for that application.
In the result, it is my view that the applicant Hankin’s application under s34T must be dismissed.