R v Fleming; R v Maher - [2017] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v FLEMING; R v MAHER
Criminal Trial by Judge Alone
[2017] SASC 16
Judgment of The Honourable Justice Doyle
16 February 2017
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
The defendants are charged with murder. The Information alleges murder under s 12A of the Criminal Law Consolidation Act 1935 (SA) (statutory murder), or in the alternative under s 11 of that Act (common law murder).
The defendants disembarked 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. At some point between about 2.00 am and 2.30 am, the defendants were involved in an altercation with the deceased near the corner of Thirteenth Avenue and Hanson Road. The deceased’s body was subsequently found at that location.
The particulars of the charge of statutory murder are that on 29 October 2014, at Woodville North, the defendants committed an intentional act of violence while acting in the course of or furtherance of an offence, namely aggravated robbery, and thus caused the death of the deceased. It is alleged that the defendants were engaged in a joint enterprise or common purpose to rob Mr Collins when the altercation occurred and the headlock was applied. The defendants denied any such common purpose. While not conceding that they robbed the deceased, they also contended that it was reasonably possible that any such robbery was an afterthought to the altercation, rather than part of a common purpose.
In support of its allegation that the defendants were engaged in a robbery of the deceased, the prosecution sought to adduce evidence of a robbery of a Mr Hodgson on Woodville Road. Mr Hodgson had alighted from the same train as the defendants on 29 October 2014, and the robbery occurred soon thereafter. The defendants pleaded guilty to this offence of robbery in the Magistrates Court. The prosecution accepted that the evidence of the robbery is evidence of discreditable conduct, and is inadmissible for any propensity purpose. However the prosecution contended that the evidence is admissible as evidence of a connected series of events which should be considered as one transaction, and hence evidence of the defendants’ states of mind at the time of the altercation the subject of the present proceeding.
Held per Doyle J:
1. The evidence of the robbery of Mr Hodgson did not have a sufficient connection with the subject altercation to constitute part of one series of connected events, or one transaction, within the principle in O’Leary v The Queen (1946) 73 CLR 566.
2. In the absence of such a connection, the evidence of the Hodgson robbery is relevant only for the mere or bare propensity use precluded by s 34P(1) of the Evidence Act 1929 (SA). The evidence does not have the requisite “strong probative value” having regard to the matters in issue at the trial.
3. The evidence of the Hodgson robbery is excluded.
Criminal Law Consolidation Act 1935 (SA) s 11, s 12A; Evidence Act 1929 (SA) s 34P, referred to.
O’Leary v The King (1946) 73 CLR 566; R v Heidt (1976) 14 SASR 574; R v Hocking [1988] 1 Qd R 582; R v Adam (1999) 106 A Crim R 510; R v Player (2000) 217 ALR 578; Samadi v The Queen (2008) 192 A Crim R 251, considered.

R v FLEMING; R v MAHER
[2017] SASC 16
Criminal

DOYLE J: The defendants, Mr Tyson Fleming and Mr Arley Maher, are charged with the murder of Mr Frederick Collins. The Information alleges murder under s 12A of the Criminal Law Consolidation Act 1935 (SA) (statutory murder), or in the alternative under s 11 of that Act (common law murder).
Following a voir dire, I ruled inadmissible evidence that the prosecution intended to adduce in relation to an earlier robbery of a Mr Hodgson by the defendants. These are my reasons for that ruling.
Background
The particulars of the charge of statutory murder are that on 29 October 2014, at Woodville North, the defendants committed an intentional act of violence whilst acting in the course of or furtherance of an offence, namely aggravated robbery and thus caused the death of Mr Collins. The particulars of the charge of common law murder are that on 29 October 2014 at Woodville North, the defendants murdered Mr Collins.
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.
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.
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.
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.
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 was merely an afterthought to the altercation.
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.
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.
Legal framework
The prosecution accepts that the evidence of the Hodgson robbery is evidence of discreditable conduct for the purposes of s 34P of the Evidence Act 1929 (SA), and thus cannot be used to suggest that the defendants are more likely to have committed the offence because they engaged in discreditable conduct, and is inadmissible for that purpose (the “impermissible use” under s 34P(1)(b)).
However, the prosecution contends that the evidence of the Hodgson robbery is admissible as evidence of a connected series of events which should be considered as one transaction and hence evidence of the defendants’ states of mind at the time of the altercation. Used in this way, the evidence is said to be relevant to the issue of whether it was the defendants who robbed Mr Collins, and whether the causative act of violence was inflicted in the course of a robbery of Mr Collins.
This foreshadowed use of the evidence is said to be a “permissible use” for the purposes of s 34P(2) of the Evidence Act, with the result that the evidence of the Hodgson robbery is admissible as long as the Court is satisfied under s 34P(2)(a) that the probative value of the evidence “substantially outweighs any prejudicial effect” it may have on the defendants. Under s 34P(3), the Court must also be satisfied that the permissible use 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.
The prosecution contends that the permissible use identified does not rely on a “particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue” under s 34P(2)(b), with the result that it is not a precondition to the admissibility of the evidence that it have “strong probative value”.
It is convenient to commence by summarising the evidence of the Hodgson robbery that the prosecution intend to adduce, before then considering the relevance and admissibility of that evidence.
Evidence of the Hodgson robbery
The prosecution intend to lead evidence from Mr Hodgson as to the circumstances of his robbery by the defendants.
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).
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.
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.
Relevance of the Hodgson robbery
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.
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.
In support of this head of relevance, the prosecution relies upon the decision of the High Court in O’Leary v The King.[1]For reasons I shall explain, I do not consider that the two incidents in this case are connected events constituting one transaction in the sense contemplated by the Court in O’Leary v The King. Further, in circumstances where the incidents are not connected events constituting one transaction, I do not consider that evidence of the earlier incident is probative of the defendants’ state of mind as at the time of the later incident, at least not without engaging in propensity reasoning.
The O’Leary principle
[1] O’Leary v The King (1946) 73 CLR 566.
In O’Leary v The King, the defendant and the victim, together with several fellow employees at a timber mill camp, took part in a drunken orgy which continued from Saturday morning through to late Saturday night. In the early hours of Sunday morning, the victim was found dead. He had been struck on the head eight or nine times with a bottle. Kerosene had then been poured on him, and his clothes set alight. At trial, evidence was admitted of several earlier incidents of unprovoked violence by the defendant during the course of the orgy. The evidence was that he had repeatedly punched one other employee, grabbed a second employee by the throat and threatened him, hit and kicked a third employee multiple times, and abused and threatened to assault or shoot three further employees.
The trial judge admitted the evidence of these earlier incidents on the basis that by reason of them involving unprovoked attacks upon drunk and defenceless victims, and involving injuries predominately to the victims’ heads, face or throats, they thereby possessed similarities disclosing more than a general disposition to violence or bad character. On the trial judge’s reasoning, the evidence of the earlier incidents was admissible as similar fact evidence. The defendant was convicted of murder.
On the application for special leave to appeal, the High Court rejected this basis of admissibility. However, a majority of the Court held that the evidence was admissible on an alternative basis, and so dismissed the application.
Latham CJ explained:[2]
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 6^th 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.” Upon this ground I am of opinion that the evidence was admissible.
[2] O’Leary v The King (1946) 73 CLR 566 at 575 (omitting citations).
His Honour later referred to earlier acts of violence being “part of one course of behaviour on the day and night of the crime”.[3]
[3] O’Leary v The King (1946) 73 CLR 566 at 575.
Rich J reasoned similarly, holding that evidence of the earlier incidents of violence was admissible:[4]
… on the ground that 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.
[4] O’Leary v The King (1946) 73 CLR 566 at 576.
Dixon J described the evidence of the earlier incidents as admissible both by reason of those incidents forming part of a connected course of conduct or transaction, and as relevant to the defendant’s mind and attitude. His Honour explained:[5]
In my opinion the evidence objected to was admissible, because, from the time on Saturday 6^th July when the prisoner and the party with him came under the influence of drink right up to the conclusion of the scene in the early hours of the following Sunday morning in the presence of the deceased’s body lying in front of the huts, a connected series of events occurred which should be considered as one transaction. The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder.
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.
[5] O’Leary v The King (1946) 73 CLR 566 at 577-578.
Williams J also held that the evidence of the earlier incidents was admissible on account of them being part of “a series of connected occurrences”.[6]
[6] O’Leary v The King (1946) 73 CLR 566 at 582.
Starke J joined with the majority in dismissing the application for special leave to appeal, but in doing so upheld the trial judge’s similar fact reasoning, and rejected Latham CJ’s conclusion that the various incidents were so closely connected as to form one chain of facts which could not be excluded without rendering the evidence unintelligible. In his Honour’s view, the earlier incidents did not form part of the res gestae; they were committed at various intervals during the night and day.
McTiernan J dissented, holding that the evidence of the earlier incidents was mere propensity evidence, and inadmissible.
O’Leary v The King has been considered and applied in a number of subsequent authorities. However, those authorities appear to involve differing views as to what is necessary in order to establish that other incidents of discreditable conduct form part of one transaction or a series of connected events, and hence as to the breadth of the O’Leary principle.
The Full Court of the Supreme Court of South Australia took a relatively narrow view of the principle in R v Heidt.[7] The defendant in that case was charged with assault occasioning actual bodily harm. The prosecution case was that the defendant refused to leave premises where he had been employed, and that when a security officer attempted to remove him, he struck the security officer. Police arrived a few minutes later, and after discussions between the defendant and the police lasting about 10 minutes, the defendant resisted the police officers when they also attempted to remove him.
[7] R v Heidt (1976) 14 SASR 574.

The defendant’s defence was self-defence. His counsel objected to evidence of the incident involving the police on the basis that it was mere propensity evidence and inadmissible. The prosecution contended, and the trial judge accepted, that the evidence was admissible either as part of the res gestae or as tending to throw light upon the defendant’s state of mind at the time of the alleged assault.
The Full Court allowed the appeal. Bray CJ explained:[8]
I do not regard the principle acted on in O'Leary's case as applicable to the present case. In O'Leary's case there was going on a sort of continuous and confused orgy. Here there was a clear separation in time and circumstance between the scuffle with Harrison and the other security officers and the scuffle with the police. The time which elapsed between the two episodes is not clear. However, Harrison put the interval between the end of the struggle concerned and the arrival of the police at three to four minutes and he then says that the police talked to the appellant for about ten minutes before attempting to remove him. 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.
The prejudicial nature of the evidence is obvious; it could clearly be used to show a disposition to resist by force removal from the premises, though, as I have said, a post-disposition rather than a predisposition. I do not think that it was admissible as part of the res gestae.
[8] R v Heidt (1976) 14 SASR 574 at 580 (omitting citations).
Bray CJ then proceeded to consider whether the evidence might have been admissible as probative of the state of mind of the defendant at the time of the earlier incident, namely a determination to resist by force any attempt to remove him from the premises. His Honour reasoned that while the evidence may have been technically admissible on this basis to rebut a defence of accident, the prosecution had no reason to believe such a defence would be raised; and the probative value of the evidence was so slight compared with its prejudicial effect that the trial judge might properly have exercised his discretion to exclude it.[9]
[9] R v Heidt (1976) 14 SASR 574 at 583.
In R v Hocking[10] the defendant was convicted of attempting to strike a person in a police vehicle with a projectile, namely a bullet, with intent to prevent his lawful arrest. It was not disputed that shortly after 1.00 am the defendant twice discharged a shotgun in the direction of a police car. However, an issue at trial was whether the defendant intended to strike one of the police officers, or merely to disable the police vehicle. The prosecution led evidence of an altercation and brawl involving the defendant which took place a couple of hours earlier (at about 11.00 pm) at the Mansfield Hotel, and resulted in him being ejected from that hotel. There was also evidence that the defendant and another went and stole three shotguns and some ammunition and were returning to the hotel when they were intercepted by the police.
[10] R v Hocking [1988] 1 Qd R 582.
The Queensland Court of Appeal allowed the appeal on the basis that the trial judge erred in directing the jury that the evidence of what occurred at the Mansfield Hotel at about 11.00 pm was relevant to or probative of the appellant’s state of mind at the time he fired the shots in the general direction of the police vehicles. The Court held that the evidence was inadmissible.
Williams J (with whom Kelly SPJ and Ryan J agreed) rejected the prosecution contention that the evidence was admissible under the O’Leary principle. His Honour explained:[11]
There can be, of course, no challenge to the correctness of the decision in O’Leary, and the principle therein formulated; indeed this Court has, on at least two occasions, specifically applied O’Leary (R. v. O’Regan [1961] Qd. R. 78 and O’Malley). But one must not lose sight of the fact that all of the judges who were parties to the decision in O’Leary recognised that there had to be something exceptional about the evidence which took it beyond evidence of mere disposition. The limited applicability of the decision in O’Leary is amply demonstrated by the reasoning of the Full Court of South Australia in R. v. Heidt (1976) 14 S.A.S.R. 574 and the New South Wales Court of Criminal Appeal in Ciesielski.
The Crown contended that this case was squarely covered by the decision of this Court in O’Malley, but in my view a careful reading of that decision indicates significant points of distinction. In O’Malley the complainant, the accused, and other men were drinking in a hotel for some time together before they left in a motor vehicle. Shortly after the group left the hotel the assault occurred which gave rise to the charge. Evidence was admitted of various incidents which occurred at the hotel involving aggression on the part of the accused, though some incidents were not in the presence of the complainant. In delivering the judgment of the court Lucas J. said at 230–231:
“The events of the evening seem to me to constitute one connected transaction just as much as did the various assaults of which evidence was given in O’Leary v. The King. The difficulty is of course to know where to start; evidence cannot properly be given of an accused person’s activities during the few days which precede the date of the alleged offence, but when, as here, an assault is said to have taken place shortly after departure from a hotel at which the assailant and the victim had been drinking in company, evidence of what had taken place at the hotel during the previous hour or so is, in my opinion, admissible on the principle stated, even though some of the events narrated may have taken place out of the presence of the complainant.”
As that learned judge later observed (at 232), the evidence could be used by the jury to afford some explanation of the accused’s later conduct. What in my view emerges from a consideration of O’Malley is that there was such a coincidence of personnel, time, and place as to make what occurred in the hotel and later when the assault occurred part of “one connected transaction”.
[11] R v Hocking [1988] 1 Qd R 582 at 590.
After referring to R v Heidt, Williams J explained why the evidence of the 11.00 pm incident was mere propensity evidence and inadmissible:[12]
The aggression and violence at the time of the alleged offences was not then being directed towards persons who were involved in the earlier incidents at the hotel; what occurred after the police commenced pursuit were “separate episodes with different actors”. If I may continue with the analogy formulated by Bray C.J.; here the two episodes were like separate acts in a play separated by a significant interval.
To invite the jury to consider the events involving aggression and violence at the Mansfield Hotel at the earlier point of time when considering state of mind or intention at the time the shots were fired, was no more and no less than inviting them to infer from the appellant’s general disposition to violence on the night in question an actual and specific intention of intending to strike the police officers when the guns were discharged. The exhortation by the learned trial judge that they ought not reason in that way was, in the context of the whole summing-up, inconsistent with the specific direction given as to the use they could make of the evidence.
The Crown also contended, at least on appeal, that the evidence of what occurred at the earlier point of time at the Mansfield Hotel was admissible as part of the historical narrative. It follows from what I have just said that, in my view, the events giving rise to the charges in question can be fully and completely understood without reference to the earlier episodes. What happened earlier was in no material way connected with what happened at the material times, nor does the facts that such an episode took place at an earlier point of time materially contribute to the better understanding of the incidents giving rise to these charges. Whilst in a broad or historical sense there is some connection between the earlier and later events, the earlier events have no probative effect when one is considering the charges in question but the evidence relating to the earlier events (particularly the ear biting incident) are likely to have a highly prejudicial effect. If it was sought to admit the evidence of the earlier episode on the ground that it formed part of the historical narrative then, in my view, the evidence should be rejected on the ground that it has little or no probative effect but is highly prejudicial to the fair trial of the appellant.
[12] R v Hocking [1988] 1 Qd R 582 at 592.
In R v Adam,[13] the New South Wales Court of Criminal Appeal considered the O’Leary principle. The defendant was found guilty of maliciously inflicting grievous bodily harm to an off-duty police officer (Mr Carty). There were two phases of the attack on Mr Carty in a hotel car park. The first was when he was surrounded by a group of men and stabbed in the chest. Subsequently a second group emerged from the hotel and continued the attack. The prosecution alleged that the defendant was one of the group in the second phase of the attack and was guilty either by reason of his own acts in assaulting Mr Carty or by having acted in concert with others in the second phase of the attack.
[13] R v Adam (1999) 106 A Crim R 510.
One of the grounds of complaint on appeal was that the trial judge failed to direct the jury not to engage in propensity reasoning based on the defendant’s hostile actions in the hotel in arguing with, and staring at, a Mr Oshana shortly prior to the first phase of the attack. The prosecution contention at trial was that this earlier incident of hostility formed an integral part of a transaction consisting of connected events, including both phases of the attack on Mr Carty. Evidence of this incident was thus admissible under the O’Leary principle as relevant to the attitude and state of mind of the defendant at the time of the alleged offence.[14]
[14] R v Adam (1999) 106 A Crim R 510 at [20].
The Court accepted the existence, and potential application, of the principle relied upon by the prosecution:[15]
If evidence of the appellant staring at Dennis Oshana was an integral part of a connected series of events happening on the night of 18 April 1997, which included the assaulting of David Carty and which could not be truly understood without reference to the evidence (that is, if the evidence came within the O'Leary principle) or if the evidence of the appellant staring at Dennis Oshana was evidence of conduct by the appellant at a time sufficiently proximate to the time of the alleged assaulting of David Carty to permit an inference to be drawn that the appellant had the same continuing state of mind at the time of the alleged assaulting of David Carty as he had at the time of the staring, then such evidence would not, in our opinion, be tendency evidence within Pt 36.
[15] R v Adam (1999) 106 A Crim R 510 at [27].
In elaborating upon the O’Leary principle, and distinguishing it from propensity reasoning, the Court explained:[16]
Evidence of conduct by an accused person that falls within the O’Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person “in the past” or evidence tending to show that he has a particular “disposition” or “propensity” or “inclination” and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required).
[16] R v Adam (1999) 106 A Crim R 510 at [30].
However, the Court went on to doubt whether the evidence of the earlier hostile conduct in that case would have been admissible under the O’Leary principle. Ultimately the Court did not consider it necessary to determine whether the prosecution was in reality seeking to make propensity use of the evidence of earlier hostility. It was enough to dispose of the relevant ground of appeal that the trial judge had directed the jury that the earlier incident “really is of no moment in this trial.”[17]
[17] R v Adam (1999) 106 A Crim R 510 at [31].
In R v Player,[18] the New South Wales Court of Criminal Appeal upheld the trial judge’s reliance upon the O’Leary principle in admitting evidence of discreditable conduct. The defendant was charged with malicious damage. It was alleged that he smashed a shop window. The prosecution led evidence over objection that the defendant was seen about the same time in an aggressive and intoxicated state, kicking over two rubbish bins and smashing a sign. In the Court of Criminal Appeal the defendant challenged the admissibility of this evidence on the basis that it was mere propensity evidence.
[18] R v Player (2000) 217 ALR 578.
Smart AJ (with whom Priestley JA and Foster AJA agreed) explained the relevance and use of the evidence relied upon by the Crown in the following terms:[19]
The Crown pointed out that to prove the offence the prosecution had to establish that the appellant, in breaking the window, acted maliciously. The challenged evidence was evidence of conduct by the appellant evincing a particular state of mind at a time so close to the commission of the offence as to permit an inference that the same state of mind was in existence at such commission.
Put another way, the aggressive state of mind which did not baulk at damaging or attempting to damage the sign and the bins was but a continuation of the state of mind when the window was broken and some Pepsi Cola bottles were removed and placed (or thrown) in the gutter outside the fruit market. The incidents were very close in time. The evidence was admissible to establish the appellant's state of mind at the time the window was broken.
The Crown also contended that the smashing of the window by the appellant was part of a transaction consisting of connected events. The “transaction” was a rampage. It was alleged that the appellant, after leaving the hotel in a drunken state embarked upon a course of aggressive and destructive conduct. It was submitted that without the challenged evidence the conduct which constituted the offence charged could not be truly understood and, isolated from it, could only be represented as an unreal and not very intelligible event. The impugned evidence put the conduct which constituted the offence charged into context.
[19] R v Player (2000) 217 ALR 578 at [11]-[13].
Smart AJ referred to the reasons of Dixon J in O’Leary v The King,[20] and the explanation of the principle in that case in R v Adam,[21] adding that he would follow R v Adam. His Honour concluded:[22]
This resolves the admissibility point. The smashing of the window was part of the same connected series of events, namely “a drunken, aggressive and destructive rampage in the early hours of Saturday morning”. The material in question was admissible.
[20] O’Leary v The King (1946) 73 CLR 566 at 577-578.
[21] R v Adam (1999) 106 A Crim R 510.
[22] R v Player (2000) 217 ALR 578 at [17].
The prosecution in this case rely upon the application of the O’Leary principle in Samadi v The Queen.[23] The two defendants in that case were jointly tried on 12 counts of administering a stupefying drug (clonazepam) with intent to steal, arising out of six incidents involving 12 separate complainants. They were convicted. On appeal, they submitted that the trial judge erred in admitting evidence as to the events constituting the second incident (count 4) on the trial of the first incident (counts 1 to 3) on the basis the two incidents were one transaction within the O’Leary principle.
[23] Samadi v The Queen (2008) 192 A Crim R 251.
The first and second incidents both occurred on the evening of 13 October 2004. The first involved the defendants socialising with two women and a man at the Pontoon Bar at Darling Harbour from about 8.30 pm. After one of the accused bought the women and man drinks, one of the women began to feel drowsy, but said nothing. At about midnight, one of the defendants suggested they move to another location to continue drinking. However, soon after leaving the Pontoon Bar, the defendants parted company with the two women and the man. The women and man ended up passing out at the man’s hotel room, and felt unwell, disoriented and hungover the next day, notwithstanding that the amount of alcohol each had drunk would not have been sufficient to produce that degree of symptoms.
The second incident occurred at around midnight on the same night, and hence almost immediately following the first incident. The male victim of this incident had been out drinking and was walking near the Pontoon Bar on his way home. The defendants approached him, engaged him in conversation, and ended up joining him at his home for some drinks. The victim at one point noticed that his drink appeared cloudy. He soon lost consciousness, and when he woke the next morning discovered that some of his property had been stolen.
At trial, the Crown relied upon the evidence in relation to the second incident as probative of the defendants having administered the drug clonazepam in the first incident, and having done so with an intention to steal.
Beazley JA (with whom Hislop and Price JJ agreed) considered O’Leary v The King, R v Adam and R v Player. Her Honour accepted the Crown submission that the evidence was admissible in accordance with the principle in O’Leary v The King, on the basis that both incidents constituted a connected chain of events involving the same two offenders at around midnight and in the vicinity of the Pontoon Bar, with the second incident beginning almost immediately upon the cessation of the first incident. Her Honour added that had the jury been instructed that the evidence of the second incident was not part of the same overall circumstances, the first incident would have been “an unreal and not very intelligible event” in the sense that phrase was used in O’Leary v The King.[24]
Application of the O’Leary principle
[24] Samadi v The Queen (2008) 192 A Crim R 251 at [62]-[63].
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.
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.

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.
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.
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.
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.