R v Garner; R v Webb

The Director of Public Prosecutions appealed the acquittals of the respondents, Garner and Webb, in the District Court of South Australia. The appeal concerning Garner related to the Trial Judge's exclusion of expert evidence concerning the criminal activities and culture of violence of the Rebels motorcycle club. The appeal concerning Webb concerned the Trial Judge's finding that the evidence presented did not, as a matter of law, establish the offence charged or the alternative statutory offence.

The central legal issues before the Court were whether the Trial Judge erred in excluding the expert evidence in Garner's case, and whether the Trial Judge correctly determined that there was no case to answer for Webb on the charges of attempting to dissuade a witness or attempting to pervert the course of justice. The Court was required to consider the admissibility of propensity and tendency evidence under the Evidence Act 1929 (SA), particularly in relation to s 34P, and the application of legal principles established in cases such as *R v Hamnett*.

In relation to Garner, the Court found that the Trial Judge erred in her application of well-understood principles regarding the admissibility of evidence. While the Trial Judge had concerns about the reliability of prosecution witnesses, the exclusion of the expert evidence was deemed an error. However, the Court noted that the prejudicial effect of the evidence was not as high as the Trial Judge found, and that similar prejudice arose in Webb's case. For Webb, the Court held that the Trial Judge erred in concluding there was no case to answer, misapplying *R v Hamnett* and considering irrelevant factors. The Court determined that there were strong public policy reasons to grant permission to appeal and allow the appeal.

Consequently, permission to appeal was granted in both matters. The appeal in Garner's case was dismissed, with the Court content to explain the error without interfering with the verdict. However, the appeal in Webb's case was allowed, the acquittal was set aside, and the matter was remitted to the District Court for retrial before a different judge.