R v Fleming; R v Maher

The prosecution sought leave to appeal against verdicts of acquittal in the Supreme Court of South Australia. The appeal concerned the trial judge's refusal to admit evidence of a prior robbery incident involving the defendants, Mr Fleming and Mr Maher, and a different victim, Mr Hodgson, which occurred shortly before the incident in question. The prosecution contended that this evidence was relevant to establishing the defendants' common purpose and guilty knowledge in relation to the death of Mr Collins, which occurred during an altercation near a railway station.

The central legal issue before the Full Court was whether the trial judge erred in law by excluding the evidence of the Hodgson robbery. Specifically, the court had to determine if this evidence was admissible under the Evidence Act 1929 (SA), particularly in light of common law principles governing the admissibility of evidence of discreditable conduct, such as the "single transaction" rule derived from cases like *O’Leary v The King*. The prosecution argued that the Hodgson robbery was part of a connected series of events, forming a single transaction with the incident involving Mr Collins, and thus directly probative of the facts in issue.

The Full Court, applying the reasoning of the trial judge, held that the evidence of the Hodgson robbery was not admissible. The court found that while the two incidents were proximate in time and place, there was a "meaningful separation" between them. Crucially, the victims were different, and there was no evidence of a continuum of events, pattern of behaviour, or rampage connecting the two incidents to form a single transaction. The court distinguished the present case from *O’Leary v The King* and similar cases where multiple incidents, common players, and a clear pattern of behaviour supported the notion of a single transaction. The court concluded that the Hodgson robbery evidence was relevant only for propensity reasoning, which was precluded by the Evidence Act, and did not possess the strong probative value required for admissibility under the relevant provisions.

Consequently, the Full Court dismissed the prosecution's application for leave to appeal, upholding the trial judge's decision to exclude the evidence of the Hodgson robbery.