R v Fleming; R v Maher

[2017] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FLEMING; R v MAHER

[2017] SASCFC 135

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Hinton)

19 October 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF GUILTY KNOWLEDGE

Application by the Director of Public Prosecutions for permission to appeal against acquittals of murder after trial by Judge alone.

The two respondents were charged with murder contrary to either s 12A or s 11 of the Criminal Law Consolidation Act 1935. They were acquitted at a trial by Judge alone. The prosecution case was that between 2.00 and 2.30am on 29 October 2014, while the respondents were making their way from the Woodville railway station to Mr Fleming’s accommodation in Ottoway, they had an altercation with the deceased; Mr Maher placed the deceased in a headlock, which resulted in the compression of his neck and caused his death (the subject incident). It was alleged that at the time of the subject incident, the respondents were engaged in the common purpose of robbing the deceased.

The Director asserted that the Judge erred in refusing to admit evidence that the respondents had pleaded guilty in the Magistrates Court to a charge of robbery of a different person approximately two hours before the subject incident, in a different location, while the respondents were on their way to Ottoway (the robbery incident). The Director contended that this was admissible for a “permissible purpose” under s 34P(2)(a) of the Evidence Act 1929, namely as evidence of a connected series of events such as to constitute a single transaction (which included the subject incident), and as evincing the respondents’ states of mind at the time of the subject incident, within the principle adumbrated in O’Leary v The King (1946) 73 CLR 566.

Held per Peek J, Nicholson & Hinton JJ agreeing (refusing permission to appeal):

(1)     The trial Judge properly addressed the correct considerations relevant to the admissibility of the evidence of the robbery incident; the course of excluding that evidence was properly open to him. No error of law or principle is demonstrated.

Held per Peek J (Nicholson J agreeing):

(1)     The peculiar facts of O’Leary are to be viewed as one continuous “transaction” of which the murder of the deceased by someone was an integral part; all parts of that transaction need to be considered, lest important facts be unintelligible.

(2) In assessing admissibility under s 34P(2)(a) in the present case, the robbery incident and the subject incident could only constitute a continuous transaction or connected series of events if it were to be assumed that the respondents were guilty of the subject charge. To so reason is to employ impermissible bootstraps reasoning.

Held per Hinton J (Nicholson J agreeing):

(1)     The O’Leary principle requires an appreciation of the total transaction in order to consider the likelihood of a particular participant conducting themselves in a certain way in the course of the transaction, and the likelihood that he or she possessed a particular mental state at that time. It does not involve consideration of what one isolated incident tells the trier of fact about another incident.

Criminal Law Consolidation Act 1935 ss 11, 12A; Evidence Act 1929 s 34P, referred to.
O'Leary v The King (1946) 73 CLR 566; (1946) SASR 175; Makin v Attorney-General (NSW) [1894] AC 57; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; R v Voke (1823) 168 ER 934, discussed.
R v Heidt (1976) 14 SASR 574; R v Rearden (1864) 176 ER 473; R v Cobden (1862) 176 ER 381; Wilson v The Queen (1970) 123 CLR 334; KRM v The Queen (2001) 206 CLR 221; R v Roach (2011) 242 CLR 610; R v Hiller (2007) 228 CLR 618; Harriman v The Queen (1989) 167 CLR 590; The Queen v MJJ; The Queen v CJN (2013) 117 SASR 81; The Queen v C, CA [2013] SASCFC 137; Police v Rosales [2017] SASC 118, considered.

R v FLEMING; R v MAHER
[2017] SASCFC 135

Court of Criminal Appeal:  Peek, Nicholson and Hinton JJ

PEEK J.

Introduction

1. The two respondents were jointly charged with two alternative offences of murder concerning the death of Mr Collins at Hanson Road Woodville in the early hours of 29 October 2014 (the subject incident).  They were tried by Judge alone and acquitted.  The Information is as follows:

   Tyson Mark Fleming and Arley Lee Maher are charged with the following offences:

   First Count

   Statement of Offence

   Murder. (Section 12A of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Tyson Mark Fleming and Arley Lee Maher on the 29^th day of October 2014 at Woodville North, committed an intentional act of violence whilst acting in the course or furtherance of an offence, namely aggravated robbery and thus caused the death of Frederick Clemmeth Collins.

   Second Count

   Statement of Offence

   Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Tyson Mark Fleming and Arley Lee Maher on the 29^th day of October 2014 at Woodville North, murdered Frederick Clemmeth Collins.

2. The prosecution now apply for permission to appeal against the verdicts of acquittal on the basis that the Judge erred in law in refusing to admit a body of evidence tendered by the prosecution concerning a robbery by the defendants of a different person, Mr Hodgson, at a different place, shortly before the subject incident (the Hodgson robbery incident).  

   An overview of the main facts and trial issues

3. An overview of the main facts and trial issues is provided by the Judge thus:[1]

   [4]     The prosecution case is that the defendants alighted from a train at Woodville railway station at about 12.30 am on 29 October 2014.  They intended to walk to an address in Ottoway, where Mr Fleming was staying at the time.  The most direct route to this address was along Hanson Road.  After leaving the station, and at some point between about 2.00 am and 2.30 am, the defendants were involved in an altercation with Mr Collins near the corner of Thirteenth Ave and Hanson Road.  It is not clear how the defendants travelled from the Woodville railway station to this location.  They were on foot, but the evidence on the voir dire does not reveal which route the defendants took.  There is also some evidence to suggest that they might have been given a lift to a point on Hanson Road.  If they had travelled by the main roads from the Woodville railway station to the corner of Hanson Road and Thirteenth Avenue, the distance was approximately 2.6 km.

   [5]     Mr Collins died either during the course of the altercation, or shortly thereafter.  On the prosecution case, the act that caused the death of Mr Collins was a headlock applied by Mr Maher, resulting in the compression of Mr Collins’ neck. 

   [6]     It is alleged that the defendants were engaged in a common purpose.  For the purposes of the charge of statutory murder it is alleged that the common purpose involved robbing Mr Collins, with the fatal headlock being an act of violence in the course of that robbery.

   [7]     In support of the allegation of robbery, the prosecution relies upon Mr Collins being found naked from the waist down, with no wallet, money or credit cards located on his person or in his jeans (which, together with his shoes and other items of his clothing, were located adjacent to his body).  Various cards in the name of Mr Collins were located in a nearby park. 

   [8]     The defendants do not deny that they became involved in a physical altercation with Mr Collins.  However, they deny that their actions caused Mr Collins’ death.  They also deny that they inflicted acts of violence in the course of, or in furtherance of, an aggravated robbery.  While the prosecution intends to lead DNA evidence connecting the defendants to one of the cards of Mr Collins located in the park, there is no concession that Mr Collins was robbed by the defendants.  Further, even assuming that it is established that the defendants robbed Mr Collins, there is an issue for the purposes of statutory murder whether the causative act of violence occurred in furtherance of the robbery, or [the robbery] was merely an afterthought to the altercation.

   [9]     In summary, the issues at trial will include whether Mr Collins was robbed, the identity of the person or persons who robbed Mr Collins, and if it was the defendants who robbed Mr Collins, whether the altercation occurred in the course of the robbery or with the robbery as a mere afterthought. 

   [1] [2017] SASC 16.

   The proposed Hodgson robbery incident evidence

4. The evidence sought to be tendered by the prosecution of the robbery of the person Hodgson was summarised by the Judge thus:[2]

   [10]    In support of the allegation that the defendants were engaged in a robbery of Mr Collins when the causative act of violence was inflicted, the prosecution gave notice of its intention to adduce evidence of a robbery of a Mr Hodgson on Woodville Road (the Hodgson robbery).  Mr Hodgson had alighted from the same train as the defendants at about 12.30 am on 29 October 2014, and the robbery occurred soon thereafter.  The defendants pleaded guilty to this offence of robbery in the Magistrates Court.

   …

   [17]    The effect of Mr Hodgson’s proposed evidence is that he alighted from a train at the Woodville railway station at about 12.30 am on 29 October 2014.  He had a brief discussion on the platform with two men (on the prosecution case, the defendants).

   [18]    Soon after leaving the platform and the company of these men one of them called out to him.  Mr Hodgson walked back to the two men whereupon one of them (whom Mr Hodgson refers to as the first male and whom I infer from his description is Mr Fleming) told him they were going to rob him and to give them anything valuable he had in the backpack he was carrying.  When Mr Hodgson declined to hand anything over the first male took Mr Hodgson’s wallet from his pocket.  After a brief exchange the first male returned his wallet, but kept Mr Hodgson’s driver’s licence that he had taken from the wallet.

   [19]    The males then demanded that Mr Hodgson give them his backpack.  Mr Hodgson gave them a bottle of rum from his backpack but refused to give them the backpack.  The first male then took Mr Hodgson’s phone from his pocket and began fighting with Mr Hodgson in an apparent attempt to take his backpack.  The first male punched him in the face.  Mr Hodgson fought back for a while, but when it appeared to him that the second male was about to join in the fight, he managed to break free and run away.

   [2] Ibid.

   The prosecution position at trial

5. At trial, the prosecution effectively made two submissions.  The first was essentially that there is a freestanding R v O’Leary[3] inclusionary doctrine which here governs the question of admission of the evidence of the Hodgson robbery incident.  The second associated submission was that the Hodgson robbery incident showed that the defendants each had a state of mind “to rob if the opportunity presented itself” and that the evidence was admissible on the basis that (having regard to the times and locations of the two incidents), it was likely that that state of mind was continuously held over the time encompassing both the Hodgson robbery incident and the subject incident.

   [3] (1946) 73 CLR 566.

6. However, as the following exchange between the Judge and the prosecutor at trial illustrates, those two matters were really two facets of the one inquiry:

   HIS HONOUR:     If I’m focusing on that issue of whether there was a robbery on foot at the time of the altercation as opposed to robbery as an afterthought, that state of mind is relevant to that.  Do you accept that O’Leary requires that in order for that evidence of the Hodgson robbery to be relevant to a state of mind, it has to be part of a connected series of events or a single transaction?

   MR LONGSON:   Yes.

   HIS HONOUR:     The difficulty I’m having at the moment is seeing O’Leary, it seems to me, whether something is part of a single transaction depends upon a range of different factors.  One would be proximity in time.  One would be physical proximity but there also seemed to be more qualitative factors such as an overlap between the people involved or some ongoing connection or continuum between the events and perhaps the number of the events and other than the physical proximity here, temporal proximity and the fact that the two defendants were together on both occasions, is there anything else you can point to to give the two events the label of a single transaction or a continuum as opposed to being two sequential events?

   MR LONGSON:   No, I can’t your Honour.  I’m not going to stand here and try and extract something from nothing.

7. The Judge accurately summarised the prosecution approach thus:

   [20]    As mentioned, the prosecution contends that evidence of the Hodgson robbery is relevant as evidence of a connected series of events constituting one transaction, and hence as evidence of the defendants’ states of mind at the time of their altercation with Mr Collins.

   [21]    The two incidents are said to be connected by reason of them both involving the two defendants, and occurring within a relatively close temporal and physical proximity, and during the course of the defendants’ journey from the Woodville railway station to the house in Ottoway where Mr Fleming was staying.  It is said that by reason of this connection the Hodgson robbery is probative of a state of mind on the part of the defendants that continued through to the altercation with Mr Collins.  The relevant state of mind was said to be an intention or preparedness to engage in robbery.

   The prosecution approach on the application for permission to appeal

8. The prosecution’s approach on the application to this Court is summarised in overview in their outline of argument in this Court thus:

   5.     The prosecution had sought to adduce evidence of the Hodgson robbery as evidence of a connected series of events constituting one transaction, and thereby as relevant to the respondents’ state of mind at the time of the altercation with Mr Collins, in accordance with the principle in O’Leary v The King.[4] To that end, the evidence was sought to be admitted for a permissible purpose under s 34P(2)(a) of the Evidence Act 1929 (SA).

   [4] (1946) 73 CLR 566.

9. Quite properly, the prosecution did not attempt to resile from the considered forensic decision they had taken before the Judge to specifically eschew reliance on admissibility on a propensity reasoning basis under s 34P(2)(b) of the Evidence Act 1929 (the Act).  It was thus unnecessary for the Judge, and for this Court, to consider whether evidence of the Hodgson robbery incident was (prima facie) admissible on a propensity basis and, if it was, whether its admission into evidence was nevertheless prevented by dint of s 34P(2)(b), the requirement for such evidence to have “strong probative value having regard to the particular issue or issues arising at trial”.

   The Judge’s reasoning and conclusions

10. After considering at some depth the decision in O’Leary, and a number of later decisions referred to by counsel, the Judge reasoned to a number of conclusions in the passage comprising paragraphs [55] to [66] of his judgment.  Although I will later refer to several topics discussed within this passage, such matters are inter-related historically, conceptually and factually and it is important that this passage be read as a whole.  It is as follows:

    [55]    The rationale for the admission of the evidence of previous incidents of violence in O’Leary v The King appears to have been that because the evidence related to incidents forming part of the one transaction it was therefore directly probative of the facts in issue.  It was probative of the defendant’s state of mind or attitude during the relevant course of events and was not merely some past state of mind from which a disposition or propensity might be inferred. Understood in this way, the evidence did not depend upon propensity reasoning for its relevance.  The relevance of the evidence did not involve using past conduct as circumstantial evidence from which it might be inferred that it was likely that the defendant acted in a certain way on a separate later occasion.  Rather, the basis for admitting the evidence was that it was evidence of the circumstances surrounding the very matter in issue; it formed part of the res gestae. 

    [56]    When understood in this way, it seems to me that the O’Leary principle is a relatively narrow one.  While the issue will ultimately be one of fact and degree, to be determined by reference to the particular evidence and matters in issue in a given case, it will not ordinarily be sufficient to bring evidence within the O’Leary principle that there is merely a temporal or physical proximity between the subject conduct and the discreditable conduct.

    [57]    In R v Heidt, for example, the subject conduct and the discreditable conduct were proximate in location and time (about 10 minutes apart).  However, Bray CJ held that there was nevertheless a meaningful separation between the incidents such that the discreditable conduct did not form part of one transaction. 

    [58]    Sometimes the additional feature necessary to warrant the conclusion that the discreditable conduct and subject conduct form part of a connected series of events constituting a single transaction will consist of the number of discreditable incidents, or the commonality of the players in the incidents.  The number of discreditable incidents was a significant factor in cases such as O’Leary v The King and R v Player.  In O’Leary v The King, the number of earlier incidents together with the common setting and players were relevant to the majority’s conclusion that there was one connected series of events.  In R v Player, the number of proximate incidents warranted a conclusion that there was a single transaction in the nature of a rampage of aggressive and destructive conduct.  Put another way, a single transaction may consist of a pattern of discreditable behaviour of which the subject incident forms part.  The greater the proximity in time and place, the greater the number of events, and the greater the commonality between the various incidents and the people involved, the more aptly will the conduct be described as a course of conduct, pattern of behaviour or continuum of conduct constituting one transaction. 

    [59]    While not a definitive test for the existence of a single transaction, it is also often useful to consider, as various members of the High Court did in O’Leary v The King, whether the evidence of the subject conduct would be unintelligible, or at least artificial, without the inclusion of the discreditable conduct.  That said, in considering this issue, the Court must be careful not to assume that the subject conduct carries the quality or character that the evidence of discreditable conduct is said to be probative of.  Nor is it sufficient for this purpose merely that the discreditable conduct forms part of the relevant narrative. 

    [60]    In this case, while the two incidents were relatively close in time (about two hours) and place (about 2.6 km), there was nevertheless a meaningful separation between the two incidents.  While the defendants were both involved in the two incidents, the victims of the incidents were different.  There is no evidence to suggest any other altercations or robberies in the period between the two incidents.  It cannot be said that there was a continuum of events, let alone a pattern of behaviour or rampage.  There was only one earlier robbery.  Even if two robberies might suffice to establish a pattern of behaviour (and I do not think this would be sufficient) the prosecution cannot rely upon the subject incident as a robbery by the defendants when that is the very issue sought to be proved with the assistance of the evidence of discreditable conduct.  To do so would be to permit the prosecution to pull itself up by its own bootstraps.

    [61]    It is true that both events occurred during the defendants’ journey from Woodville railway station to the Ottoway address where Mr Fleming was staying.  But I do not consider that the mere ability to attach this label to the two incidents provides the necessary connection between the two events to constitute them a single transaction.

    [62]    Nor in my view can it be said that it will not be possible to obtain a real appreciation of the events surrounding the subject incident in this case without evidence of the Hodgson robbery; or that the Hodgson robbery formed such an integral part of the subject incident that the evidence of the latter would be unreal and not very intelligible without evidence of the former.

    [63]    For these reasons, I do not accept that evidence of the Hodgson robbery falls within the O’Leary principle.  O’Leary v The King was of course determined in accordance with, and is a statement of an aspect of, the common law principles governing the admissibility of evidence of discreditable conduct. While the admissibility of the evidence of the Hodgson robbery in these proceedings must be determined by reference to s 34P of the Evidence Act, the common law continues to be of assistance in applying that section.  In particular, evidence falling within the O’Leary principle would ordinarily be admissible under s 34P(2)(a), being evidence led for a permissible purpose that does not depend upon propensity reasoning and in respect of which its probative value substantially outweighs its prejudicial effect. My conclusion that the evidence of the Hodgson incident does not fall within the O’Leary principle means that it is not admissible on this basis under s 34P(2)(a).

    [64] No other basis upon which the evidence might be admissible has been suggested. As the victims of the two incidents were different it was not, and could not have been, suggested that the evidence was admissible as evidence of the relationship between the defendants and the victim under s 34P(2)(a). Nor was it suggested that there was any striking similarity or underlying unity between the two incidents sufficient to render the evidence of the Hodgson robbery admissible as similar fact propensity evidence under s 34P(2)(b).

    [65]    In the absence of a sufficient connection between the Hodgson robbery and the subject incident to constitute them part of the one transaction within the O’Leary principle, the evidence of the Hodgson robbery is relevant only for the mere or bare propensity use precluded by s 34P(1). Even if the proximity in time and place of the two incidents renders the former potentially relevant as disclosing a “particular propensity or disposition” under s 34P(2)(b), I do not consider that the evidence has the requisite “strong probative value” having regard to the matters in issue at trial.

    [66]    For these reasons, I exclude the evidence of the Hodgson robbery sought to be adduced by the prosecution.

1. With respect, this was a correct and sufficient resolution of the matter, given the way that the argument was presented to his Honour.  However, in the light of some of the prosecution contentions made on the application, I think it necessary to say a little more about the following matters.  First, the facts in O’Leary and the approach of the High Court in that case.  Secondly, the common law landscape as at the time of O’Leary in 1946.  Thirdly, the matter of res gestae. Fourthly, the advent of South Australian statutory regulation (including s 34P of the Evidence Act 1929).  I now turn to those matters.

   The facts in O’Leary v The King and the approach of the High Court there

2. The facts in O’Leary are stated in the Commonwealth Law Reports[5] (the CLR report) in similar terms to the statement of facts at the beginning of the report of the case in the South Australian State Reports[6] (the SASR report).  However, I will refer to some matters of importance that are expounded upon in a little more detail in the SASR report (which factual material was, of course, before the High Court).

   [5]    O’Leary v The King (1946) 73 CLR 566, 557-569.

   [6] (1946) SASR 175, 175-177.

3. First, both the SASR report[7] and the CLR report[8] emphasise the apparent savagery of the attack in referring to the inflicted injuries thus:[9]

   The evidence of the terrible injuries to Ballard’s head and the burns on his body coupled with the medical evidence showed that he had been savagely attacked by some person with the intention of doing him grievous bodily harm; and that after the wounds had been inflicted a fire was deliberately lit on the clothing he was wearing.  The nature and situation of the wounds and the circumstances disclosed with regard to the burns excluded the possibility of either kind of injury having been self-inflicted.

   [7] (1946) SASR 175, 176-177.

   [8]    O’Leary v The King (1946) 73 CLR 566, 557-569.

   [9]    O’Leary v The King (1946) 73 CLR 566, 557-569. In fact, there was a further ground of appeal before the Court of Criminal Appeal asserting undue prejudice arising from the tender of photographs of the injuries and burns when there was already oral evidence of those matters. The Court of Criminal Appeal recognised the “much more vivid impression that the photographs would create” but declined to interfere with the trial Judges exercise of discretion in admitting them. (1946) SASR 175, 185.

4. Secondly, the various assaults on intoxicated persons by O’Leary throughout the relevant period were brutal and in keeping with the sorts of injuries later inflicted upon the deceased.  Thus the CLR report states:[10]

   Several witnesses gave evidence that during the evening of the Saturday in question O’Leary: (a) punched one Ernest Alfred Hollywood about the head with heavy blows, knocked him down and continued to punch him while he was on the floor of his cubicle; (b) grabbed one Francis Fergus O’Toole by the throat and threatened “to do” him; (c) struck and knocked over one Brian Alfred Kimber and then, whilst wearing “military” boots, kicked Kimber in the body and in the head; and (d) abused and threatened to assault and shoot three other persons.  All the persons so assaulted or threatened were fellow employees of O’Leary’s and the evidence showed that at the time of the assaults upon them Hollywood, O’Toole and Kimber were very much under the influence of intoxicating liquor.

   [10]  O’Leary v The King (1946) 73 CLR 566, 568-569.

5. Thirdly, the various assaults on intoxicated persons by O’Leary throughout the relevant period were almost entirely unprovoked.[11]

   [11] Ibid, 569.

6. Fourthly, the SASR report notes that, “(f)rom evidence which is beyond dispute, it appears that [the deceased] was an inoffensive man and unlikely to offer provocation to anyone”.[12]

   [12] (1946) SASR 175, 177. A very similar passage appears in the CLR report.

7. Fifthly, although the deceased was not observed being seriously assaulted prior to the unwitnessed brutal assault that caused his death, Mr O’Leary did aim a blow at the deceased during the course of the day, but it was intercepted by another witness and it appears that Mr O’Leary did not press an attack further at that time.[13]

   [13] (1946) 73 CLR 566, 582.

8. The last, but perhaps most important matter, is this.  Although O’Leary is sometimes described as involving “an orgy” (in the sense of a number of men drinking heavily over an extended period), it is important to note that, as was emphasised in the SASR report, Mr O’Leary was the only person who was seen to be assaulting other persons:[14]

   As already pointed out there was a continuity during a period of some hours of the appellant’s conduct of drinking and violence or threats of it.  If some “special feature” marking out the accused is needed, it is to be found here as there were no others acting in a similar manner.  And if there must be a course of business, course of conduct, or general scheme or design, the evidence undoubtedly shows it.  To put it in another way where there is shown to be a group of people, one of whom it is indicated must have done a certain act, the carrying out of which has been established, and the question is, which one of the available group is responsible, then the probative force of the fact that one of the group has been doing acts, or has shown a tendency or inclination to do acts of similarity at or about the material time, must be a factor in ascertaining the identity of the actor.  Conduct sufficiently proximate to label one of the group has a definite logical portent and goes beyond mere indication of bad character.                 (Emphasis added)

   [14] (1946) SASR 175, 183.

9. Although this important factual matter is not explicitly stated in the CLR summary of facts, Williams J noted in his judgment:

   The fact that the appellant alone of all these inhabitants was in the course of the orgy committing acts of violence and threatening violence must have in these circumstances probative value as making it logically probable that he was the man who assaulted Ballard.    (Emphasis added)

10. Dr Louat, counsel for the applicant in the High Court, challenged the admissibility of the observed assaults (the challenged evidence).  He also submitted that the verdict should be set aside for various reasons including that: “There was nothing in the evidence to exclude opportunity on the part of any one of a number of men who were associated with the camp.  The applicant had no motive to attack the deceased.”[15]

    [15] (1946) 73 CLR 566, 570.

11. However, the stance taken by the majority Justices (with some differences of emphasis) was that the challenged evidence was admissible for the very reason that it addressed defence arguments such as that other persons had equal opportunity to murder the deceased and that the defendant had not demonstrated motive to do so.  Thus, Williams J stated:[16]

    In my opinion this evidence was rightly admitted.  It is not merely evidence that the appellant was a violent man who was likely to commit the crime, in which case it would have been inadmissible.  It is evidence of certain significant incidents which took place in a series of connected occurrences which commenced with the drunken orgy on the sixth of July and concluded with Ballard’s death in the early morning of the seventh.  The murder occurred in an isolated camp, so that it is highly probable that it was committed by one of the inhabitants.  The fact that the appellant alone of all these inhabitants was in the course of the orgy committing acts of violence and threatening violence must have in these circumstances probative value as making it logically probable that he was the man who assaulted Ballard.  It is therefore evidence of facts relevant to prove the main fact that is to say the identity of the assailant and as such, as indicated in the cases cited by my brother Dixon, is admissible on ordinary principles.                    (Emphasis added)

    [16] (1946) 73 CLR 566, 581-582.

12. In similar vein, Rich J stated:[17]

    … it forms part of the circumstances of the crime, including the drunken condition of the prisoner, how he reached that condition, how long it continued and how, while in that condition, he was behaving.  His violence, the fact that he exhibited this violence on slight or no provocation, and all the circumstances, form inseparable features of a transaction consisting of connected events.

    [17] (1946) 73 CLR 566, 576.

13. The approach of Latham CJ was essentially the same.  His Honour stated:[18]

    All the assaults in question were incidents of a drunken orgy on the same day, begun at Penola, continued at Kalangadoo and at the camp where the man lived.  Evidence that the accused had been drinking during the day and evening of 6th July and early hours of 7^th July was admissible to show the probability that he would attack another man in a fit of drunken fury.  Evidence that, on the day and the night of the killing of Ballard, he actually attacked particular fellow employees without cause is also evidence which goes to show the probability that he would attack some other fellow employee.  Such evidence puts the act of attacking Ballard in a setting which makes it possible for the jury to obtain a real appreciation of the events of the day and the night.  It is evidence of “facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.”—per Dixon J in Martin v Osborne.  Upon this ground I am of opinion that the evidence was admissible.

    [18] (1946) 73 CLR 566, 575.

14. Before leaving the matter of the facts in O’Leary, I should mention that the conclusion by the Judge in the present case at paragraph [60] that here there was “a meaningful separation” was not an assumed step in his reasoning which dictated an ultimate conclusion; rather it was simply part of the evidence leading to his Honour’s conclusion, in much the same way as Bray CJ observed in Heidt:[19]

    I think these are separate episodes with different actors.  It cannot be said that the episode with Harrison could not be truly understood isolated from the episode with the police or that the first without the second could only be presented as an unreal and not very intelligible event.  The two episodes were like two successive scenes of a play with the curtain dropped between them, falling on the exit of Harrison and his colleagues and rising on the entry of the police.

    [19] (1976) 14 SASR 574, 580.

    Facts “unintelligible” without the challenged evidence

15. It seems to me that the often made statement that the case of O’Leary was decided on the basis that “the facts were unintelligible without the challenged evidence” is best understood in the following way.  The peculiar facts of O’Leary (including the continuous drinking of the men and the concurrent unprovoked assaulting by the defendant alone throughout the period up to and including the deceased’s death) were to be viewed as one continuous “transaction”, of which the murder of the deceased by someone was an integral part; and that all parts of that transaction needed to be considered, lest important facts be unintelligible.  As appears from the factual survey above, important parts of the transaction included that:

    -the vicious nature of the observed assaults by the defendant, in almost all cases, exhibited little or no objective reason for him to assault the victims who were then disabled through their intoxication;

    -as the defendant became the more intoxicated, his assaultive behaviour was increasing rather than diminishing;

    -no other persons were assaulting others; and

    -the deceased was a particularly inoffensive person and there was no objective or apparent reason to assault or kill him; he was therefore likely to have been killed by a person who was then in the process of violently assaulting persons in the immediate vicinity with no objective motive.

16. It was against the above background that Sir Owen Dixon expounded the “transaction approach”.  His Honour stated:[20]

    The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct.  Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.  The prisoner’s generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide.  Examples of the admission of evidence of connected incidents of one transaction will be found in R v Cobden; R v Voke; R v Rearden, and as to this case see per Cussen J in R v Herbert.  In my opinion, for the reasons given, evidence of his conduct was admissible for the purpose stated.     

    (Emphasis added)

    [20] (1946) 73 CLR 566, 577.

17. Starke J considered that the evidence was admissible on a different basis.[21]  McTiernan J considered that the evidence was not admissible on any basis.

    [21] (1946) 73 CLR 566, 576-577. Starke J disagreed with the plurality view and stated at 576: “The assaults tendered and admitted were not, I think, so closely connected with the crime charged as to form part of one chain of facts: they were committed at various intervals during the day and night. If this be the proposition relied upon by the Chief Justice I dissent from its application to this case.”

    Nevertheless, Starke J’s collection of the salient evidence is helpful.  His Honour stated at 576: “… there are specific features in this case connecting the prisoner with the crime charged.  I shall refer to them generally.  The prisoner and other persons were engaged in a drunken orgy; the prisoner was violently assaulting several of these persons at various times of the day; he was present in the neighbourhood of the cubicle in which the dead man was found; the dead man was injured by blows from a bottle and the prisoner had in his possession shortly before the body of the dead man was found a bottle – by which the injuries sustained by the deceased might have been inflicted.  In addition, there was found close to the cubicle in which the dead man was found the prisoner’s pull-over.  All these facts are specific features which connect the prisoner with the crime charged.”

    The common law landscape as at the time of O’Leary in 1946

18. Fifty years prior to O’Leary, Lord Herschell LC had held in Makin:[22]

    It is undoubtedly not competent for the prosecution to adduce evidence tending to shew 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.  On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

    [22]   Makin v Attorney-General (NSW) [1894] AC 57, 65.

19. Of this statement of principle, it has been said:[23]

    [31]    … although one may perceive a tension between his Lordship’s two propositions, the effect of the overall pronouncement was to posit a general rule of exclusion to which there might be various exceptions.  It is sometimes said that such exceptions were delineated by factual classes or categories (with the inference being that the approach was a relatively crude one).  There may be an element of truth in this analysis, but the mere incantation of a label and a plausible argument in support was never sufficient to ensure admissibility.  The courts bore the force of the general exclusionary edict strongly in mind and the admission of exceptions was just that: exceptional.  When one looks at the facts of some of the famous cases decided by reference to the Makin principles such as Makin itself (the baby farmers), R v Smith[24] (brides in the bath); R v Straffen[25] (the distinctive psychopathic strangler) and R v Ball[26] (the incestuous siblings), one uniformly finds evidence possessing really strong probative force.

    [32]    In my view, this is no accident.  The courts required that before an exception was to be admitted it had to possess a justification for admission other than reliance upon a disposition or propensity of the accused and in fact, if not always in express analysis, the courts required this justification to have strong probative force.  Of course, another debate here looms as to whether some of the cases said to possess justification for admissibility other than via propensity were, as a matter of logical analysis, cases of propensity by another name.  It may be so, but again I do not participate in the debate, except to say this.  In my view, the answer, or part of the answer, to a number of the questions raised by commentators is that there is an important distinction between a general propensity (to commit crimes or to commit crimes of the same general kind) on the one hand and a propensity to commit a highly specific type of crime on the other hand.  The exclusionary rule was certainly concerned to guard against the former kind of general propensity.  As for the latter kind, it may well be that a case such as Straffen would now be so classified as involving a highly specific propensity - but the result of the admissibility inquiry would be the same.

    [23]   R v Maiolo (No 2) (2013) 117 SASR 1, 14-15 (Peek J with whom Kourakis CJ and Stanley J agreed).

    [24] (1915) 1 Cr App R 229.

    [25] [1952] 2 QB 911.

    [26] [1911] AC 47.

20. Reverting to O’Leary, of the three early English decisions (each preceding Makin) referred to by Sir Owen Dixon, two concerned prior conduct by the defendant toward the alleged victim of the charge before the Court.  Thus in R v Voke,[27] on a charge that the defendant shot the victim, a prior shooting by the accused at the same victim was admitted.  And in R v Rearden,[28] on a charge that the defendant raped the ten year old victim, evidence of prior rapes of the same victim by the accused was admitted.  The third decision, R v Cobden,[29] was different in that it was an intermingling case.  Multiple defendants were charged with having broken into a particular railway station and evidence of successive breakings that same night by the same defendants into three other surrounding railway stations on the same line were admitted on the basis that various of the defendants were found in possession of jemmies which matched the marks left on various of the premises and that stolen property from the various stations was found on various of the defendants (the total of the stolen property having been divided such that each robber did not get a share of property from each of the robberies).[30]

    [27] (1823) 168 ER 934.

    [28] (1864) 176 ER 473.

    [29] (1862) 176 ER 381.

    [30] (1862) 176 ER 381. Thus Bramwell B stated: “I think that evidence of the acts of the prisoners during the same night is admissible, in order to explain why none of the property taken from Nether Whitacre was found upon one of the prisoners. If it is proved that he was in possession of other property stolen from another station on the same night, that, with other circumstances, might be evidence that all the men had been engaged in each burglary, and that the third man had received his share of the booty wholly from what was taken from the other stations. The events of that night relating to these burglaries, are so intermixed that it is impossible to separate them.”

1. Both before and after O’Leary, the importance of what is now referred to as “relationship evidence” has been recognised, (albeit in sometimes differing language).  Thus in 1970 in the seminal decision in Wilson v The Queen, Menzies J (with whom Walsh and McTiernan JJ agreed) stated:[31]

   Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused.  Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust?  It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her.  The evidence is admissible not because the wife’s statements were casually connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance.  To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.  Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.

   [31] (1970) 123 CLR 334, 344.

2. When close attention is paid to the facts in O’Leary (decided only 24 years before Wilson), it may well be said that O’Leary is best explained as depending on the “relationship” between the defendant (on the one hand) and each of the finite group of co-workers including the victim (on the other hand), in circumstances where the defendant was continually assaulting various of them, virtually unprovoked and at random, until such time as the victim was assaulted (and killed).  McHugh J approached O’Leary in that way in KRM v The Queen where his Honour stated:[32]

   But one of the best known examples of these categories of evidence is “relationship evidence” – evidence which explains the nature of the relationship between the accused and the complainant and which often tends to show that the accused is guilty of the offence charged.  Thus, in O’Leary v The King, evidence was admitted that, on the day and early evening of the killing, the accused, the victim and others had taken part in a “drunken orgy” at a bush camp and that, during the drinking, the accused had assaulted or threatened to assault persons other than the victim.  Although the evidence showed violent and criminal conduct on the part of the accused, this Court held that it was admissible.  Dixon J said that “[w]ithout evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event”.  In holding that the evidence was admissible, Latham CJ, Dixon and Williams JJ said that it was admissible because it was “relevant” or “logically probable” or went “to show the probability” that the accused was the killer.  They did not require the evidence to be consistent with no rational view other than the guilt of the accused.  Similarly, in Wilson v The Queen, this Court held that statements made by the victim in the presence of the accused on two occasions were admissible although they indicated that the victim knew that the accused intended to kill her for her money.  The evidence was admissible to show the mutual enmity between the parties and to negate the accused’s explanation that the shooting of the victim was accidental.  In R v Garner, where the accused was charged with assault, evidence of uncharged assaults extending over several months was admitted because “it was a connected series of events”.

   [32] (2001) 206 CLR 221, 229-230.

3. A distinct parallel may easily be seen between the words of Sir Owen Dixon in O’Leary (the actual murder charged “could only be presented as an unreal and not very intelligible event” if isolated from the challenged evidence) with a now well accepted rationale for the admission of prior sexual offending by the defendant against the alleged victim of the subject charge of sexual offending.  Thus in R v Roach,[33] the plurality judgment (French CJ, Hayne, Crennan and Kiefel JJ) noted that the trial Judge admitted the evidence “…on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful incident.  The evidence of the incident charged would otherwise appear to be given in a vacuum …” (my emphasis).  Their Honours further stated:[34]

   [42]    … the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence.  The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged.  It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge.  It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury.  (Emphasis added; footnotes omitted)

   [33] (2011) 242 CLR 610.

   [34]   Roach v The Queen (2011) 242 CLR 610, 624. See also in R v Nieterink (1999) 76 SASR 56 where Doyle CJ had earlier stated at page 65: “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.” (Emphasis added)

   The dangers of bootstraps reasoning

4. In the present case the Judge, at paragraphs [59] and [60] of his judgment, correctly warned of the dangers of bootstraps reasoning.  With respect, the prosecution submission that it was sought “to adduce evidence of the Hodgson robbery as evidence of a connected series of events constituting one transaction …” contains advanced, if not germinated, seeds of bootstraps reasoning.

5. If an item of evidence of discreditable conduct by an accused is admitted by the Judge, no doubt that item will ultimately need to be weighed by the jury in the way referred to in R v Hillier, where the plurality stated:[35]

   [46]    It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances.[36]  It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

   [35] (2007) 228 CLR 618, 637 (Gummow, Hayne and Crennan JJ).

   [36] See, for example, Martin v Osborne (1936) 55 CLR 367, 375; Plomp v The Queen (1963) 110 CLR 234, 243 (Dixon CJ).

6. However, it is important to bear in mind that the anterior question of the admissibility of that evidence of discreditable conduct is governed by the relevant test stipulated by common law or applicable statute. Here, the prosecution assert admissibility pursuant to s 34P(2)(a) only. Accordingly, the test of admissibility is laid down by both s 34P(2)(a) and s 34P(3); both constitute legal conditions to be fulfilled rather than discretions to be exercised.

7. As to the condition in s 34P(2)(a) that “the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect”, one must be particularly careful not to adopt bootstraps reasoning in a case such as the present. That danger must also be seen and avoided when considering the condition in s 34P(3) that “the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose”.

8. Put simply – and perhaps not as well as the Judge here put it - the Hodgson robbery incident and the subject incident could only constitute “a connected series of events” or “one transaction” (in the sense in which such terms were used by Dixon J in O’Leary), if a “connected series of events” or “transaction” could be demonstrated without assuming that the accused was guilty of the subject charge.

9. To illustrate, in O’Leary it could be said that the continuous drinking of the men (including the accused) together with the concurrent unprovoked assaulting, by the defendant alone, throughout the period up to and including the deceased’s death could be viewed as a “connected series of events” or “transaction” irrespective of whether the accused killed the victim.  That was the ultimate question to be answered; but in adjudicating upon admissibility, the Court did not assume an answer adverse to the defendant.

10. However, in the present case the position is quite different.  The Hodgson robbery incident and the subject incident could only ever constitute “a connected series of events” or “one transaction” (in the sense in which such terms were used by Dixon J in O’Leary), if it is assumed that the accused was guilty of the subject charge.  Without that linkage, there is simply no “connected series of events” or “transaction”; they are disparate events, with the Hodgson robbery incident demonstrating mere propensity alone.

11. The recognition of this danger of bootstraps reasoning in the context of evidence of discreditable conduct is by no means new.  As an example, the vice of bootstrap reasoning was closely considered by three of the Justices in Perry v The Queen.[37]  Thus Brennan J there stated:[38]

    But no inference that Mr Duncan had ingested arsenic could safely be drawn from the facts proved.  The symptoms he exhibited might well have been due to other causes.  The suspicion that his symptoms were caused by arsenical poisoning arises in part – as the Crown conceded – from the fact that Mr Perry suffered from chronic arsenical poisoning.  But the mere ingestion of arsenic by Mr Perry could throw no light upon the cause of Duncan’s symptoms unless it be assumed that the arsenic ingested by Mr Perry had been administered to him by Mrs Perry.  That assumption cannot be made; administration of arsenic by Mrs Perry is the fact in issue which the evidence relating to Duncan’s symptoms is tendered to prove.  To seek to prove a fact in issue by a chain of reasoning which assumes the truth of that fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts.

    [37] (1982) 150 CLR 580 (Gibbs CJ at 589-590; Brennan J at 612; Murphy J at 594-595). And see R v Thompson (1988-89) 169 CLR 1 (Mason CJ and Dawson J at 17; and Deane J at 32).

    [38] (1982) 150 CLR 580, 612.

12. Later, in Sutton v The Queen, Brennan J addressed some remarks made by Wells J in the Court of Criminal Appeal in R v Sutton and stated:[39]

    Though it is right to determine the admissibility of a piece of similar fact evidence by reference to the whole of the body of proof, it is wrong to regard the body of proof as encompassing the guilt of the accused – the very issue which is to be proved by inference from the facts directly proved or provable in evidence.  Gibbs C.J. said in Perry (1982) 150 CLR, at pp 589-590:

    In other words, it was necessary to assume the guilt of the applicant of the offences of which she was charged in order to render admissible the evidence regarding the death of Duncan.  Such a line of reasoning is obviously objectionable.

    [39] (1984) 152 CLR 528, 549.

13. Brennan J then referred to his own words in Perry and continued:

    Although Wells J. accepted the latter proposition in terms, his Honour said:

    … it is possible to pose many cases in which the primary facts proved include facts that may, of themselves, be colourless or amount to matter of bare suspicion only, and yet it would be manifestly opposed to principle to exclude evidence of them … on the ground that (per Gibbs CJ) it is ‘necessary to assume the guilt of the (accused) to render (the impugned evidence) admissible’.

    Later, in a passage following the passage cited above (1984) 152 CLR at p 550, his Honour said:

    Given, then, that a criminal offence C is to be proved, and that there have been received in aid of proof similar fact transactions P, Q, R, and S, there is no reason why, for example, P should not be used to confirm Q; P and Q (so confirmed) to confirm R; R (so confirmed) and P and Q to confirm S, and P, Q, R, and S, to assist in the proof of C, which, in turn (viewed in the totality of the case), confirms P, Q, R, and S.  In such a case, striking similarities between P and Q may include one factor that is only weakly proved in Q but strongly proved in P.  P may thus reinforce the factor in Q, and the two (including Q so reinforced) act in aid of proof in the balance of the case.  To assert the validity of such a proposition is to do no more than apply to the facts the elements of inductive reasoning.  (at p551)

    If his Honour is merely describing the consistency which must exist between the body of proof and the jury’s verdict “where a charge has been satisfactorily made out” (the phrase introducing this passage), this passage does not relate to admissibility; accordingly, it would not be to the point to repeat that the cogency of evidence (P, Q, R and S) tendered to assist in the proof of a further fact (C) cannot be affected by treating the further fact as though it were part of the body of proof.  But if his Honour is saying that it is a legitimate means of inductive reasoning to find that the cogency of evidence to prove a further fact is enhanced by having regard "in the totality of the case" to the further fact, I cannot agree: the further fact is simply not part of the evidence in the case.  When the inference of guilt is properly drawn it is, of course, supported by the primary facts established in the admitted evidence, but one cannot attribute cogency to evidence tendered to establish a primary fact by assuming that the fact has been proved.  If proof of the fact is assumed in order to give cogency to similar fact evidence and thereby to make it admissible to prove the same fact, there is an impermissible circularity in reasoning of the kind which led to the rejection of Mr Duncan’s symptoms in Perry (1982) 150 CLR, at pp 589, 595, 612. The Court of Criminal Appeal’s difficulty in perceiving the circularity inherent in admitting that evidence in Perry need not detain us, for our present concern is not with the facts of that case but with the general application of the principles which the judgments express.

    It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact.  That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence.  When the Crown seeks to tender similar fact evidence as the foundation for inferring a fact to be proved in a trial, it is erroneous to assume the truth of the fact to be proved in determining the cogency of the evidence.  That is a proposition of general application; it is not limited to the facts of Perry or to cases bearing a close factual similarity to it.  That proposition does not preclude reference to direct evidence of the fact to be proved in determining the cogency of similar fact evidence.  Similar fact evidence tending to confirm the existence or occurrence of such a fact may be confirmed by direct evidence of the same fact.   (Emphasis added)

    The matter of res gestae

14. Interestingly, although the decision in O’Leary has, on occasions, been analysed in terms of res gestae – and here the Judge did use that term at paragraph [55] – it is notable that in the O’Leary High Court judgments themselves, the term res gestae is only ever used just once, and that was by Starke J in rebuffing a prosecution submission that the doctrine applied.

15. In my view, if the terminology of res gestae has real value, it is in the context of an analysis of the admissibility (and status) of statements made during, or closely proximate to, a subject event; it is certainly in this context that most analysis by the courts and commentators takes place.  However, that issue does not arise here.

16. Sometimes the term res gestae has been used in a broader context of acts said to be part of, or connected to, the subject act under consideration by the court and it is here that much uncertainty, together with some perhaps arid debate, may be encountered.  There is a respectable body of opinion in favour of not using the term in this context at all.[40]  Messrs Aronson, Hunter and Weinberg explained thus:[41]

    It would seem that one of the main reasons for confusion about the doctrine has been the failure of the courts to recognise the limited circumstances which call for its application.  There is no point in calling in aid an inclusionary rule unless there is some exclusionary rule which would otherwise operate to prevent the evidence from being led.  The most fundamental precept of the law of evidence is that all evidence which is sufficiently relevant is admissible, in the absence of any exclusionary rule.  Yet evidence which is clearly not the subject of any particular exclusionary rule, and which is relevant, is often labelled res gestae by the courts.

    [40]   Chronological examples are: Professor Julius Stone “Res gestae Reagitata” (1939) 55 LQR 66 particularly at 71-73; Pollock-Holmes Letters vol 2 (Cambridge: CUP, 1942) particularly at pages 284 to 285; Wigmore on Evidence Chadbourn Revision (Boston, 1976); WAN Wells Evidence and Advocacy (Butterworths 1988) including at pages 97 to 98 and at various places in the dreaded “Appendix”; Aronson, Hunter and Weinberg, Litigation: Evidence and Procedure (4^th ed, 1988), pp 1045-1046; S Odgers “Res gestae regurgitated” (1989) UNSWLJ 262.

    [41]   Aronson, Hunter and Weinberg, Litigation: Evidence and Procedure (4^th ed, 1988), pp 1045-1046.

17. I note that in 1939, Professor Julius Stone, in the context of cases such as R v Voke[42] (to which Sir Owen Dixon was to later refer in O’Leary), stated in his seminal article “Res gestae Reagitata”:[43]

    Perhaps the reductio ad absurdum of this use of the res gesta to cover facts simply relevant in themselves, is to be seen in Phipson’s indiscriminate inclusion in his section on the res gesta of many cases which are nothing more nor less than decisions on the rule relating to the admissibility of similar fact evidence.  The writer has shown elsewhere[44] that this branch of the law centres entirely around the question of relevance through propensity or otherwise.  It is quite natural therefore that a conception of res gesta which covers relevant facts should also include this kind of relevant fact.  Could anything, however, be less conducive to sound principle than to attempt to make the res gesta a repository for such far-flung problems?

    [42] (1823) 168 ER 934 as referred to by Sir Owen Dixon in O’Leary.

    [43]   (1939) 55 LQR 66, 73.  (Not to be confused with S Odgers “Res gestae regurgitated” (1989) UNSWLJ 262).

    [44]   Professor Stone here refers to his previous article “Exclusion of Similar Fact Evidence: England” (1933) 46 Harvard LR 954.  It is, perhaps, to digress but his statement there at pages 983-984 has not, I think, since been improved upon:

    “There is a human paradox here which logical formulation cannot resolve.  In a trial for an unpleasant crime, evidence must be excluded which indicates that the prisoner is more likely than most men to have committed it, but evidence must be admitted which tends to show that no man but the prisoner, who is known to have done these things before, could have committed it.  There is a point in the ascending scale of probability when it is so near to certainty, that it is absurd to shy at the admission of the prejudicial evidence.

    Where that point must be fixed cannot be stated in general terms.  It varies with the nature of each class of offense, with the crimes within each class, and with the peculiar facts of each case – the strength of the independent evidence, the specific weakness which the similar fact evidence is admitted to remedy, the strength of the similar fact evidence itself.  This wide divergence explains the failure of all attempts to create categories of admissibility.  Mitigation of the evil must be sought in other directions.”

1. The trial Judge held:[66]

   In this case, while the two incidents were relatively close in time (about two hours) and place (about 2.6 km), there was nevertheless a meaningful separation between the two incidents. While the defendants were both involved in the two incidents, the victims of the incidents were different. There is no evidence to suggest any other altercations or robberies in the period between the two incidents. It cannot be said that there was a continuum of events, let alone a pattern of behaviour or rampage. There was only one earlier robbery. Even if two robberies might suffice to establish a pattern of behaviour (and I do not think this would be sufficient) the prosecution cannot rely upon the subject incident as a robbery by the defendants when that is the very issue sought to be proved with the assistance of the evidence of discreditable conduct. To do so would be to permit the prosecution to pull itself up by its own bootstraps.

   It is true that both events occurred during the defendants’ journey from Woodville railway station to the Ottoway address where Mr Fleming was staying. But I do not consider that the mere ability to attach this label to the two incidents provides the necessary connection between the two events to constitute them a single transaction.

   Nor in my view can it be said that it will not be possible to obtain a real appreciation of the events surrounding the subject incident in this case without evidence of the Hodgson robbery; or that the Hodgson robbery formed such an integral part of the subject incident that the evidence of the latter would be unreal and not very intelligible without evidence of the former.

   For these reasons, I do not accept that evidence of the Hodgson robbery falls within the O’Leary principle. O’Leary v The King was of course determined in accordance with, and is a statement of an aspect of, the common law principles governing the admissibility of evidence of discreditable conduct. While the admissibility of the evidence of the Hodgson robbery in these proceedings must be determined by reference to s 34P of the Evidence Act, the common law continues to be of assistance in applying that section. In particular, evidence falling within the O’Leary principle would ordinarily be admissible under s 34P(2)(a), being evidence led for a permissible purpose that does not depend upon propensity reasoning and in respect of which its probative value substantially outweighs its prejudicial effect. My conclusion that the evidence of the Hodgson incident does not fall within the O’Leary principle means that it is not admissible on this basis under s 34P(2)(a).

   No other basis upon which the evidence might be admissible has been suggested. As the victims of the two incidents were different it was not, and could not have been, suggested that the evidence was admissible as evidence of the relationship between the defendants and the victim under s 34P(2)(a). Nor was it suggested that there was any striking similarity or underlying unity between the two incidents sufficient to render the evidence of the Hodgson robbery admissible as similar fact propensity evidence under s 34P(2)(b).

   In the absence of a sufficient connection between the Hodgson robbery and the subject incident to constitute them part of the one transaction within the O’Leary principle, the evidence of the Hodgson robbery is relevant only for the mere or bare propensity use precluded by s 34P(1). Even if the proximity in time and place of the two incidents renders the former potentially relevant as disclosing a “particular propensity or disposition” under s 34P(2)(b), I do not consider that the evidence has the requisite “strong probative value” having regard to the matters in issue at trial.

   For these reasons, I exclude the evidence of the Hodgson robbery sought to be adduced by the prosecution.

   [66]   R v Maher; R v Fleming [2017] SASC 16 at [60]-[66].

2. I agree.

3. The applicant submitted that the Judge had erred in his characterisation of the content and nature of the transaction by reference to such factors as timing, location, identity of victims and an absence of any pattern.  Rather, it was submitted, whether there was the requisite connection and thus one transaction was to be viewed through the prism of the question in issue.  In this case the question was “how the factual matrix and issue in contest might bear on the transaction independently of the bare facts of timing, location and victim.”  This submission tended to slide into one to the effect that the state of mind of the accused as at the time of the altercation with Mr Collins should be viewed in a context of the state of mind demonstrated in the robbery of Mr Hodgson.  That is, how the accused conducted themselves in the course of robbing Mr Hodgson informs how they conducted themselves in the altercation with Mr Collins.  So stated such approach is to reason from past conduct.  However, the beachhead from which the O’Leary process of reasoning embarks is not past conduct, but a course of conduct that continues.  In my view, the Judge’s reasons demonstrate a search for factors that establish the necessary connection such that the Hodgson robbery and the altercation with Mr Collins may be said to be different components of one transaction.  It is from an appreciation of the total transaction, defined by an objective common sense appreciation of all the circumstances (including but not limited to factors such as timing, location and identity of victims), that one may then descend to consider the likelihood of a particular participant conducting themselves in a certain way in the course of the transaction and the likelihood that he or she possessed a particular mental state at that time.  In the same way the totality of the transaction permits a true understanding or appreciation of the particular act that forms a component of it.  Intelligibility then is not a matter of what one isolated incident tells the trier of a fact about another incident.  Rather, invoking the O’Leary process of reasoning, intelligibility is the product of a consideration of the whole informing an understanding of a component of that whole.

4. In my view, the trial Judge was right to rule as he did.  There is a distinct absence of evidence connecting the Hodgson robbery to the altercation with Mr Collins save that the accused were involved.  What did happen in the intervening one and a half to two hours in the course of a trip at least of 2.6km that provides the necessary link?  The mere fact of a wallet taken in each instance does not allow the link determining that this was one transaction.  I do not consider it reasonably arguable that the trial Judge has erred.  I would dismiss the application.