R v Geoffrey (a pseudonym) - [2024] SASCA 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v GEOFFREY (A PSEUDONYM)
[2024] SASCA 40
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
4 April 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - OTHER CASES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The accused is charged with two counts of unlawful sexual intercourse with a person under 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and one count of indecent assault, contrary to s 56(1) of the CLCA.
Before the jury was empanelled, the trial judge ruled that text messages from the accused to the complainant, his 16-year-old step-daughter, sent between eight months and a year after the alleged offending comprised discreditable conduct but were not admissible pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA) (Evidence Act).
The trial judge also ruled that text messages and a conversation between the accused and the complainant in which she told him that she had revealed his offending to her psychologist, who was going to make a mandatory report, were protected communications pursuant to s 67E of the Evidence Act and could not be adduced by the prosecution. Following these communications, later that day the accused made admissions to his wife, the mother of the complainant, and then to police after attempting suicide.
The Director of Public Prosecutions (SA) applied for permission to appeal these interlocutory rulings pursuant to s 157 of the Criminal Procedure Act 1921 (SA) (CPA). After the application was made, the trial judge adjourned the trial.
HELD (the Court), assuming these rulings were interlocutory judgments, permission to appeal should be refused:
1.An adjournment which ensured the loss of the trial date should not have been sought or granted. A short adjournment over the course of an afternoon or perhaps a day, as originally envisaged, was sufficient. It is in the public interest, as well as in the interests of the accused and the complainant, that criminal proceedings involving serious charges, once commenced, be heard expeditiously and not be unduly fragmented or delayed, [2]-[6]. Observations made about the s 157 CPA application procedure, [24]-[33].
2.Whilst these rulings were made in the course of the prosecution of serious charges, they are far from determinative of the outcome of the prosecution. And, most importantly, they are open to be reconsidered by the trial judge. In connection with the second ruling, it was relevant though not decisive that the Director was taking a different approach to s 67E of the Evidence Act compared with the approach taken before the trial judge. It is not in the interests of justice that permission to appeal be granted, [8], [74], [88]-[93].
3.Where the Director fails to establish that the relevant decisions are “interlocutory judgments”, or that permission to appeal should be granted, it will not generally be necessary to reach any concluded view about the merits of the proposed appeals, [56].
4.The messages the subject of the first ruling were capable of demonstrating that the accused had an inappropriate sexual interest in the complainant, at least at the time they were sent. It is not obvious that the trial judge was wrong to conclude that, in the particular circumstances of this case, proof of a sexual interest in the complainant an appreciable period of time after the alleged offending did not have “strong probative value” concerning the alleged offending as s 34P(2)(b) required, [73].
5.Although argument concerning the second ruling proceeded before the trial judge on the basis that s 67E applied to the excluded evidence, it is not immediately obvious that statements made by a complainant to an accused about what she had earlier said to a psychologist could properly be regarded as communications made in a therapeutic context, and were therefore protected communications, [77]-[83].

6. Observations made about the ruling in R v Marshall [2023] SASCA 105, [11]-[23].
Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) s 157; Evidence Act 1929 (SA) ss 13BA, 34M, 34P, 67D, 67E and 67F; Evidence Act 1995 (NSW) ss 97 and 101(2); Sentencing Act 2017 (SA), referred to.
Anderson (A Pseudonym) v The King [2024] SASCA 36; Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90; Bell v The King [2023] SASCA 86; Breen v Williams (1996) 186 CLR 71; Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22; Director of Public Prosecutions v Paulino (2017) 54 VR 109; DPP (VIC) v Paulino (2017) 54 VR 109; Edwards v The Queen (1993) 178 CLR 193; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120; Giersch v Pennicott (1977) 15 SASR 300; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; HML v The Queen (2008) 235 CLR 334; Holder v Lewis [2003] SASC 397; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Johnson v The Queen (2018) 266 CLR 106; Koschier v R [2024] NSWCCA 24; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Mann v R [2023] NSWCCA 256; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; Obeid v The Queen (2016) 90 ALJR 447; Phillips v The Queen (2006) 225 CLR 303; Police v Dorizzi (2002) 84 SASR 416; Police v Dunstall (2015) 256 CLR 403; R v A2 (2019) 269 CLR 507; R v Bahrami (2020) 137 SASR 327; R v Beaumont [2023] SASCA 128; R v BEC [2023] QCA 154; R v Elliott (1996) 185 CLR 250; R v Garner; R v Webb [2021] SASCA 68; R v Marshall [2023] SASCA 105; R v Melrose (1987) 30 A Crim R 332; R v Pacitti [2022] SASCA 108; R v Power (1996) 87 A Crim R 407; R v R, GJ (2009) 105 SASR 506; R v Riley [2020] NSWCCA 283; R v Rolfe (2021) 273 CLR 413; Sankey v Whitlam (1978) 142 CLR 1; Shapowloff v Dunn [1973] 2 NSWLR 468; Slape v The Queen [2022] SASCA 91; Swaffield v The Queen (1998) 192 CLR 159; Taylor v The Queen [2020] NSWCCA 335; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; The Queen v Elliott (1996) 185 CLR 250; TL v The King (2022) 275 CLR 83; Wainohu v New South Wales (2011) 243 CLR 181; Warren v Coombes (1979) 142 CLR 531; WCM v Western Australia [2015] WASCA 55; Willingham v The Queen (2022) 295 A Crim R 262; Yates v Wilson (1989) 168 CLR 338, considered.

R v GEOFFREY (A PSEUDONYM)
[2024] SASCA 40
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT:
Introduction

This is an application by the Director of Public Prosecutions (SA) (the Director) for permission to pursue an interlocutory appeal pursuant to s 157 of the Criminal Procedure Act 1921 (SA) (the CPA).
Initially, the application came on urgently. On the morning of 5 March 2024, counsel for the Director contacted the President’s chambers to enquire about the potential for an expedited hearing of an application for permission to appeal in the Court of Appeal. The Court was advised that the previous day, during the course of a trial in the District Court before the jury was empanelled, the trial judge had delivered a ruling that certain evidence was inadmissible. The ruling addressed the admissibility of evidence pursuant to s 34P(2), as well as whether the Crown should be granted permission to adduce evidence pursuant to s 67F of the Evidence Act 1929 (SA) (the EvidenceAct).
After being advised that the matter was likely to be mentioned before the trial judge later that day and before the trial resumed the following morning, the Court told the parties that it was prepared to hear the Director’s application for permission to appeal later that day at 2.15 pm on 5 March 2024.
However, before the matter was called on before the Court of Appeal, the Court was told that the trial had already been adjourned to a directions hearing on 15 April 2024. The Court was told that the adjournment was granted because the permission hearing was listed before the Court of Appeal.
That is regrettable. Realistically, this six-day jury trial can, even with priority, only be re-listed toward the end of this year. Merely because the Director seeks permission to appeal does not mean that permission will be granted, still less that the appeal will succeed. Indeed, even if permission was granted and the appeal allowed, an adjournment may not have been necessary. An adjournment which ensured the loss of the trial date should not have been sought or granted. A short adjournment over the course of an afternoon or perhaps a day, as originally envisaged, was sufficient.
Entertaining a Director’s interlocutory appeal must be seen as an exception to the ordinary course that criminal proceedings, once commenced, continue to verdict.[1] In R v Rolfe the High Court described the fragmentation of criminal proceedings as “highly undesirable”.[2] It is in the public interest, as well as in the interests of the accused and the complainant, that criminal proceedings involving serious charges, once commenced, be heard expeditiously and not be unduly fragmented or delayed.
[1]     R v Marshall [2023] SASCA 105, [96] (Livesey P, David JA and Kimber AJA), citing Sankey v Whitlam (1978) 142 CLR 1, 26 (Gibbs ACJ), in turn citing Shapowloff v Dunn [1973] 2 NSWLR 468, 470 (Jacobs P, as he then was). See also WCM v Western Australia [2015] WASCA 55, [11].
[2]     R v Rolfe (2021) 273 CLR 413, [32]. See Sankey v Whitlam (1978) 142 CLR 1; Yates v Wilson (1989) 168 CLR 338; R v Elliott (1996) 185 CLR 250; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120; and Obeid v The Queen (2016) 90 ALJR 447.
Disposition of the application for permission under s 157 of the CPA
Permission can only be granted if this Court is satisfied that what is sought to be appealed is an “interlocutory judgment” and permission to appeal should be granted under either of the two limbs of s 157(3) of the CPA.
On the question of permission to appeal these rulings, and assuming that the rulings are interlocutory judgments, whether the Director has arguable appeal points is not decisive. More must be shown. Whilst these rulings were made in the course of the prosecution of serious charges, they are far from determinative of the outcome of the prosecution. And, most importantly, they are open to be reconsidered by the trial judge:[3]
In both civil and criminal litigation, interlocutory decisions relating to matters of practice and procedure can be revisited where there is a material change in relevant circumstances, such as where it is shown that the facts are different than what was earlier put before the court. In other cases, the court may simply reflect on its ruling and change course. For these and other reasons, there is a marked reluctance to entertain appeals against interlocutory decisions concerning matters of evidence, practice and procedure.[4]
[3] R v Marshall [2023] SASCA 105, [97] (Livesey P, David JA and Kimber AJA), where the new right of appeal was described as “important”.
[4] See Director of Public Prosecutions v Paulino (2017) 54 VR 109, [7] (Weinberg JA, with whom Ferguson JA agreed); Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[23] (Livesey P and Bleby JA).
It is not in the interests of justice to entertain these appeals and permission to appeal should be refused.
These reasons are set out as follows:
Disposition of the application for permission under s 157 of the CPA............................ 2
The reasons of this Court in R vMarshall.................................................................... 3
The elements of the new appeal power............................................................... 3
Interlocutory judgment or order........................................................................ 3
Permission to appeal – the two limbs of s 157(3) of the CPA............................... 5
Observations regarding the s 157 application procedure................................................ 7
The alleged offending in this case................................................................................ 8
The trial judge’s ruling............................................................................................. 11
The proposed grounds of appeal................................................................................ 12
Ruling 1: Discreditable conduct evidence.................................................................. 13
Ruling 2: Protected communications pursuant to s 67D of the Evidence Act................. 19
Conclusion.............................................................................................................. 23
The reasons of this Court in R vMarshall
The elements of the new appeal power
The Director’s new appeal power under s 157 of the CPA was examined by this Court in R v Marshall.[5] The four elements of the interlocutory appeal power are as follows:[6]
1.     The Director’s right of appeal is confined to “an interlocutory judgment”.
2.The appeal is only available where permission to appeal has been granted by the Court of Appeal.
3.The Court of Appeal may only grant permission if it is satisfied that one of the two limbs of s 157(3) has been established:
a.     The interlocutory judgment destroys or substantially weakens the prosecution case and, if correct, is likely to lead to abandonment of that charge; or
b.    It is otherwise in the interests of justice to grant permission to appeal the interlocutory judgment.
[5]     R v Marshall [2023] SASCA 105 (Livesey P, David JA and Kimber AJA).
[6]     R v Marshall [2023] SASCA 105, [84] (Livesey P, David JA and Kimber AJA).
The context in which the right to seek permission to appeal arises is important.[7] That context includes the limited opportunities offered to the prosecution and the defence to pursue interlocutory appeals under the CPA, as well as the Court’s reluctance to entertain any interlocutory appeal which may delay or fragment criminal proceedings.[8]
[7] In R v Marshall it was observed that, despite the recommendations of the Royal Commission, no additional funding or resources have been made available to accommodate these ad hoc, urgent hearings within the ordinary listing practices of the Court of Appeal, where lists and hearing dates are finalised months ahead of the hearings and where the Court is presently listing appeals in October 2024, R v Marshall [2023] SASCA 105, [74], [83] (Livesey P, David JA and Kimber AJA).
[8] R v Marshall [2023] SASCA 105, [5], [49] (Livesey P, David JA and Kimber AJA).
Interlocutory judgment or order
On the question of what was encompassed within the composite phrase, “interlocutory judgment”, in R v Marshall the Court referred to the well-recognised distinction between a judgment or order that finally resolves a substantive question or issue, and a merely incidental decision, ancillary to the making of a judgment or order:[9]
There is a well-recognised distinction between a judgment or order that finally resolves a substantive question or issue and a merely incidental decision or ruling which is made in the course of, and ancillary to, the making of a judgment or order.[10]
The typical conclusion to a criminal proceeding is the entry of a final judgment or order, such as a conviction or acquittal, following a verdict of guilty or not guilty.[11] Once a criminal trial is concluded, the trial court usually has no further role to play in the determination of guilt.[12] Short of a final judgment, a range of rulings may result in orders which determine substantive questions or issues in litigation. By contrast, examples of merely incidental rulings include rulings made about an adjournment, about objections to questions asked in the course of evidence, and about the admissibility of a document or other evidence. What should or should not be included in a charge to the jury provides another example. Many of these could be described as decisions relating to incidental legal, evidentiary or procedural matters.
Whilst the distinction is usually clear, it is not always easy to draw.
The clearest example of a ruling that may not necessarily be clear is provided by an evidentiary ruling. At one level, all evidentiary rulings decide something which is in contest. However, some may be so routine and, relatively speaking, unimportant that they are unlikely to have any real influence on the conduct of the prosecution or the defence. They do not decide substantive questions or issues. They do not have the character of a judgment or order. They are properly regarded as incidental, akin to rulings on practice and procedure. By contrast, other evidentiary rulings may have a very important bearing on the conduct of the prosecution or the defence. This latter kind of evidentiary ruling may, and often will, be the subject of a formal hearing devoted to the argument and judicial determination of the substantive evidentiary question which is in contest. The pronouncement made by the court may result in a ruling which is, or is at least akin to, a formal order.
[9] R v Marshall [2023] SASCA 105, [90]-[93] (Livesey P, David JA and Kimber AJA).
[10] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 (King CJ).
[11] It is the trial judge who must enter a judgment for conviction or acquittal following the verdict of the jury, NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546, [76]-[78]; [99]-[100].
[12] R v Pacitti [2022] SASCA 108, [8]-[18].
Merely incidental decisions or rulings on matters of evidence or procedure are generally unlikely to be regarded as judgments or orders. Speaking generally, few incidental rulings are important to the conduct of a case. Whilst evidentiary rulings are generally unlikely to have any real influence on the conduct of the case, there are some that may have a very important bearing on the conduct of the prosecution or the defence.[13]
[13] R v Marshall [2023] SASCA 105, [93] (Livesey P, David JA and Kimber AJA).
The decision made in R v Marshall provides an example. That was a case where the primary judge made an evidentiary ruling that the evidence of two complainants in two cases involving one charge of maintaining an unlawful sexual relationship contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). One charge related to each complainant. The judge ruled that their evidence was not cross-admissible, with the result that there was a ruling and an order that the trials would be heard separately. The Court concluded that the ruling on cross-admissibility could not be said to be a merely incidental evidentiary ruling. In addition, the ruling and order for separate trials were “interlocutory judgments” within the meaning of s 157(1)(e) of the CPA.[14]
[14] R v Marshall [2023] SASCA 105, [128] (Livesey P, David JA and Kimber AJA).
The Court gave other examples of interlocutory judgments or orders that could have the effect of destroying the prosecution case, and so come within s 157(3)(a) of the CPA.[15] Whether rulings similar to these – but which do not destroy the prosecution case – might nonetheless be of sufficient importance to be capable of being regarded as “interlocutory judgments” does not arise for decision. The Court summarised its consideration of the term “interlocutory judgment” in the following way:[16]
With these general observations in mind, the composite term “interlocutory judgment” may be taken to refer to a judicial decision made on a substantive question or issue before the conclusion to the criminal proceeding. The use of the word “judgment” in the term “interlocutory judgment” tends to suggest that it will usually be necessary to point to an order, or at the least, a judicial decision having the effect of an order. Accordingly, it does not appear that the term was intended to extend to a merely incidental evidentiary or procedural ruling which does not determine a substantive question or issue in contest between the parties.
[15] R v Marshall [2023] SASCA 105, [133] (Livesey P, David JA and Kimber AJA). Whether these examples were capable of coming within other provisions of the CPA was not explored.
[16] R v Marshall [2023] SASCA 105, [98] (Livesey P, David JA and Kimber AJA).

The Court concluded that the term “interlocutory judgment”, when used in s 157(1)(e), was intended to embrace an interlocutory judgment or order on a disputed substantive question or issue that could have an important bearing on the prosecution case.[17] It was not necessary for the purposes of that case to finally determine whether or to what extent evidentiary or procedural rulings were capable of being regarded as an “interlocutory judgment” within the meaning of s 157(1)(e) of the CPA.
[17] R v Marshall [2023] SASCA 105, [102] (Livesey P, David JA and Kimber AJA).
Permission to appeal – the two limbs of s 157(3) of the CPA
On the question of permission to appeal under s 157(3) of the CPA, in R v Marshall the Court explained that permission would rarely be given to appeal against incidental evidentiary or procedural rulings:[18]
That will be addressed in the cases as they arise. However, as will be seen, permission to appeal will rarely be granted to appeal most of these kinds of rulings, whether because they are not capable of destroying or substantially weakening the prosecution case (s 157(3)(a)), or because it will not otherwise be in the interests of justice to entertain an appeal from them (s 157(3)(b) of the CPA).
[18] R v Marshall [2023] SASCA 105, [127] (Livesey P, David JA and Kimber AJA).
The Court acknowledged that the first limb, s 157(3)(a), posed an evaluative question and that very few incidental evidentiary or procedural rulings would be of such critical importance to the prosecution that they were likely to lead to the abandonment of the prosecution.[19]
[19] R v Marshall [2023] SASCA 105, [138] (Livesey P, David JA and Kimber AJA).
As to the second limb, and whether “it is otherwise in the interests of justice” to grant permission to appeal under s 157(3)(b), the Court warned:[20]
It would be wrong to view this limb as a free-standing provision, enabling permission to be granted whenever the interlocutory point raised by the DPP could be regarded as reasonably arguable. Quite apart from whether the relevant decision is properly to be described as an “interlocutory judgment” within s 157(1)(e), the provision must be viewed in its statutory context. That context suggests that if the judgment or order is not of critical importance to the prosecution case (s 157(3)(a)), the DPP must be able to demonstrate why it is otherwise in the interests of justice to entertain it (s 157(3)(b)).
[20] R v Marshall [2023] SASCA 105, [141] (Livesey P, David JA and Kimber AJA).
On this second limb, the Court examined various considerations which may be regarded as relevant to whether it will be “in the interests of justice” to grant permission to appeal:[21]
Merely incidental evidentiary or procedural rulings will rarely warrant the time, cost and trouble associated with an interlocutory appeal. Rather, the judgment or order must be one that is ordinarily capable of being viewed as important to the conduct of the prosecution.
The seriousness of the charges may be a relevant consideration. In addition, the merit, clarity and nature of the asserted error will be important. So too will be the likely effect of entertaining the appeal and correcting the error. It is difficult to see why it would otherwise be in the interests of justice to entertain a point that appears, at best, contestable or barely arguable. That is especially so where the charges are not serious, and whether or not the error is corrected is of no real importance to the prosecution.
The Court of Appeal will usually also be mindful of the traditional reluctance to entertain an interlocutory appeal in a criminal case, particularly where entertaining the appeal has the effect of delaying and fragmenting the criminal proceeding.[22] The extent of the delay and fragmentation to the trial associated with an interlocutory appeal are likely to be both relevant and important matters. These may be particularly important where the trial has commenced or is nearing completion. The same might be said about the capacity of the defence to accommodate and fund what may be an unexpected disruption to the anticipated course and length of the trial process.
[21] R v Marshall [2023] SASCA 105, [143]-[145] (Livesey P, David JA and Kimber AJA).
[22] The Queen v Elliott (1996) 185 CLR 250; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis [2003] SASC 397; Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90; Bell v The King [2023] SASCA 86.
The Court considered that cases where the impugned ruling addresses a substantive question or issue which might be regarded as important to the conduct of the particular case, or to the administration and practice of criminal law in South Australia, might warrant a grant of permission to appeal.[23] By contrast, where the point raised by the DPP depends on the evidence which might ultimately be led, or where the ruling is capable of being reviewed by the trial court, it may often be the case that it will not otherwise be in the interests of justice to entertain it as part of an interlocutory appeal.
[23] R v Marshall [2023] SASCA 105, [146] (Livesey P, David JA and Kimber AJA).
The considerations discussed by the Court of Appeal in R v Marshall on the question of permission were, of course, far from exhaustive.[24]
[24] R v Marshall [2023] SASCA 105, [148] (Livesey P, David JA and Kimber AJA).
Observations regarding the s 157 application procedure
Criminal litigation is important to the community as well as to those directly involved. It is also time-consuming and expensive. It is stressful for those involved. There are particular stresses operating on those involved in cases involving charges of serious sexual offending. These features of criminal litigation help to explain why pleas of guilty are encouraged by the availability of reductions in sentence under the Sentencing Act 2017 (SA).[25]
[25] R v Bahrami (2020) 137 SASR 327, [30]-[39] (Kourakis CJ), [92]-[94] (Livesey J).
A case should not lose its place in the trial list merely because an application for permission to appeal has been made by the Director. Judges should not be too willing to adjourn cases, particularly for lengthy periods, merely because the Director has through counsel suggested that permission to appeal will be sought pursuant to s 157 of the CPA. It will be for the Director to demonstrate to the Court of Appeal why the delay and fragmentation of the criminal proceeding can, in the circumstances of any particular case, be justified.
The Court’s expectation is that a Director’s application for permission to appeal under s 157 of the CPA should not, in and of itself, result in the lengthy adjournment of any trial. Indeed, it is worth reiterating that it is necessary but not sufficient that any point raised by the Director be reasonably arguable:[26]
It would be wrong to view this limb [s 157(3)(b)] as a free-standing provision, enabling permission to be granted whenever the interlocutory point raised by the DPP could be regarded as reasonably arguable.
[26] R v Marshall [2023] SASCA 105, [141] (Livesey P, David JA and Kimber AJA).
As is widely known, there are long delays associated with the hearing of criminal cases in the District Court, as well as in the other courts, of this State. There are many reasons for these delays, and they include the limited number of courtrooms in Adelaide which are available to hear jury trials such as this case. Listings for District Court jury trials are out to 2026. Adjournments should be avoided if reasonably practicable.
In most cases it may be assumed that the Court will consider an application made by the Director under s 157 of the CPA urgently. A hearing time can be sought, with notice to the defence, through the President’s chambers. The material made available to the trial judge, together with a skeleton outline and a transcript of the argument and ruling will, in the first instance, usually be sufficient to enable the question of permission to be heard.
The Court will be particularly interested to hear from the parties as to whether the ruling or order is an interlocutory judgment and why permission to appeal should be granted or refused. Naturally, the merit of the proposed appeal ground will be relevant even though it may not be decisive on the question whether permission to appeal should be granted. Section 157 cannot, however, be invoked for the purposes of securing advisory opinions from the Court of Appeal. Whilst all rulings made in the course of a criminal trial are of importance, some are clearly more important than others. A clear-sighted view about the relative importance or effect of the impugned ruling or order may be relevant to competency but will invariably be relevant to permission.
In many cases a bench of two judges of the Court of Appeal can, in the first instance, be quickly convened. Whether an adjournment of the trial beyond a day or so is required will usually depend on the preliminary view reached by the Court of Appeal on the question of permission.
The Court will endeavour to reach a view on the application relatively quickly and, if possible, provide ex tempore reasons. Alternatively, the Court will announce its decision, with reasons to follow. If further time is required, the Court will wish to know whether it is feasible to commence or continue with the trial until the Court is in a position to announce its decision before the prosecution case is closed.
To be clear: criminal trials should not be adjourned off merely because an application has been made under s 157 of the CPA. Whilst there may be cases where it is not possible to avoid the adjournment of the trial, whether that is necessary should await the outcome of an urgent hearing in the Court of Appeal. However, as it transpires in this case, an adjournment has been granted and a consideration which is usually important when evaluating whether to grant permission is no longer in issue. Having said that, the fact that the trial has been adjourned for a lengthy period – with respect, unnecessarily – does not mean that permission should be granted.
In this case the adjournment of the trial permitted argument to be deferred and assisted by helpful written outlines, for which a bench of three judges was convened.
The alleged offending in this case
The accused has been charged with two counts of unlawful sexual intercourse with a person under 17 years, contrary to s 49(3) of the CLCA, for which the maximum penalty is imprisonment for 15 years. The accused is also charged with one count of indecent assault, contrary to s 56(1) of the CLCA, for which the maximum penalty is imprisonment for eight years (basic offence).
It is neither appropriate nor necessary for this Court to make any findings about the facts, as distinct from address the basis for the rulings made by the trial judge. What follows comprises a recitation of aspects of the Crown case and the context in which the impugned rulings were made.
The accused was formerly married to the complainant’s mother. It is alleged that between 1 September and 31 October 2021, the accused had sexual intercourse with the complainant at a time when she was aged 15 years. Count 1 alleges an act of digital penetration, whereas count 2 alleges cunnilingus. The offending is alleged to have occurred after the accused, the complainant and her mother had been drinking. It commenced with the accused giving the complainant a foot massage. This is said to have occurred in the family home whilst the complainant’s mother was asleep.
A few days later, the accused is said to have exposed his testicles to the complainant at home. This incident is not charged.
The indecent assault that comprises count 3 is alleged to comprise a touching of the complainant’s breast during a camping trip during early October 2021, which was after the conduct comprising counts 1 and 2.
The prosecution case is that in the weeks following the alleged offending the accused spoke to the complainant, telling her that he loved her and, at times, that he had ruined her childhood. As we understand the prosecution case, there are no allegations concerning further uncharged sexual offending.
The prosecution alleges that during January 2022 the complainant told her boyfriend about the offending. It is contended that this comprises initial complaint evidence which is admissible pursuant to s 34M of the Evidence Act.
Between August and October 2022, the accused sent the complainant a number of text messages. These messages were excluded by the trial judge pursuant to s 34P(2) of the Evidence Act. It is not necessary to outline them all. It is sufficient for present purposes to observe that one message was, “Show us your tits!!!”, sent to the complainant whilst she was getting changed in a tent. During the same camping trip, it is alleged that the accused cuddled the complainant, telling her that he was, “just so horny”. Another message was sent by the accused to the complainant after she had spent a day with her boyfriend, and it included the words: “Are you eating dinner or have you had enough”. This message ended with an eggplant “emoji”.
From the perspective of the prosecution, following these text messages the events on 26 October 2022 are important. The accused’s statements and conduct will be relied on as a combination of express and implied admissions, admissible as exceptions to the rule precluding the admission into evidence of out of court statements.[27]
[27] At least where they are made voluntarily and without inducement, Swaffield v The Queen (1998) 192 CLR 159, [10]-[13] (Brennan CJ).
The prosecution case is that these events were described by the complainant in the course of a recorded interview between the complainant and a police officer conducted pursuant to s 13BA of the Evidence Act.[28] This prescribed statement, the complainant’s evidence-in-chief, is to be supplemented by print-outs of various text messages and evidence from witnesses to whom the accused spoke that day, in addition to the complainant. Much of this evidence, independent of the complainant, has not been excluded.
[28] Section 13BA(4) governs the capacity to exclude any part of an audio-visual recording, whereas s 13BA(5) governs the capacity to grant permission for the witness to be examined, cross-examined or re-examined beyond the audio-visual recording.
At around 9.16 am on 26 October 2022, there was a text message exchange between the complainant and the accused in the following terms:
Complainant: I need to talk to you. My psychologist figured out what happened and I fucked up.
Accused:What?
Complainant: That night.
Shortly after this exchange, the accused telephoned the complainant and asked her what she had said. The accused wanted to know exactly what the complainant had said. On the prosecution case, the accused cried during this conversation and said that he needed to leave work.
It is alleged that the accused then asked the complainant to delete all of her text messages. The accused called the complainant again, asking her what she had said. The complainant said that she had told the psychologist “everything”. When the accused asked what she meant by “everything”, the complainant said words to the effect, “the whole part about you doing oral stuff”.
These text messages and conversations were excluded by the trial judge, pursuant to s 67F of the Evidence Act.
Later during 26 October 2022, the accused messaged the mother of the complainant. He gave her the passwords for all of their household accounts, which it will be said was in preparation for his intended suicide. The messaging between them extended to the following:
Accused:“I really messed up babe, really bad”.
Accused:“The worst part is that I was so drunk at the time that I only had partial memory of what happened and found out more details today which are fucking disgusting. I can assure you that it only happened that one time, not that it makes it any better”.
The accused, it is alleged, sent messages suggesting he was going to take medication and commit suicide at Marino Rocks.
Police found the accused at Marino Rocks, on the prosecution case, having attempted to commit suicide. As the accused was being escorted from the rocks by police he was heard to say, “I fucked up, it’s about my step-daughter, I fucked up”.
These later conversations or messages, and the statements made to police, were not excluded by the trial judge.
The trial judge’s ruling
After hearing argument from the parties, the trial judge gave the following reasons for his ruling:[29]
1.I will deal with the discreditable conduct issues first.
2.In relation to item 4 of the notice most recently filed by the Director, I am not satisfied that the probative value is such to permit admission of the impugned evidence pursuant to s 34P(2) of the Evidence Act. That is not to say that the impugned evidence cannot be led as part of the res gestae on counts 1 and 2.
3.In relation to item 5 from the notice most recently filed, I am not satisfied that the probative value is such to permit admission of all of the messages pursuant to s 34P(2). Items 1 through to 5 will be excluded.
4.In relation to the Crown's application to be granted permission to adduce evidence pursuant to s 67F of the Evidence Act, I have regard to the provisions of s 67F in their entirety and in particular subs (5), (6) and (7).
5.I am not satisfied that the public interest in preserving the protected communications is outweighed in the circumstances of this case by the public interest in preventing a miscarriage of justice that might arise from suppression of the relevant evidence. In the unusual circumstances of this case, to grant permission to the Crown to adduce the evidence is actually more likely to create the danger of a miscarriage due to the impairment of defence to challenge the evidence, for instance, the notes of the consultation with the psychologist are protected communications pursuant to s 67E of the Evidence Act and cannot be accessed by the parties. I note this evidence would not be admissible pursuant to s 34M of the Evidence Act.
6.In any event, theoretically, had I granted permission pursuant to s 67F, which I do not, I would have exercised my discretion to exclude the evidence as operating unfairly against the accused.
[29] The paragraphs have been numbered for ease of reference.
Paragraph 2 is not in issue. It is not in dispute that what was said by the complainant to the accused about the conversation with the psychologist, and indeed what she said to the psychologist, could not be regarded as “initial complaint” evidence which was admissible under s 34M of the Evidence Act.
The proposed grounds of appeal
The Director’s proposed grounds of appeal are that the judge erred:
1.in concluding that the evidence subject of paragraph 5 in the Notice of Intention to Adduce Discreditable Conduct Evidence did not have “strong probative value” within the meaning of s34P(2)(b) of the Evidence Act 1929 (SA);
2.in concluding that the public interest in the protection of the protected communications to which the complainant refers in the evidence of text messages sent on 26 October 2022 outweighed the public interest in preventing a miscarriage of justice that might arise from suppression of the relevant evidence;
3.in acting on the basis that the conversation between the complainant and the accused on 26 October 2022 in which the accused made various, detailed admissions to the sexual abuse of the complainant, involved communications “…made in a therapeutic context” given the definition of that composite phrase in s 67D of the Evidence Act 1929 (SA);
4. in failing to provide adequate reasons for concluding:
a. that the evidence subject of paragraph 5 in the Notice of Intention to Adduce Discreditable Conduct Evidence did not have strong probative value within the meaning of s 34P(2)(b) of the Evidence Act 1929 (SA);
b. that the public interest in the protection of the protected communications to which the complainant refers in the evidence of text messages sent on 26 October 2022 outweighed the public interest in preventing a miscarriage of justice that might arise from suppression of the relevant evidence.

Paragraph 1 of these grounds concerns the text messages exchanged between the accused and the complainant between August and October 2022. Paragraphs 2 and 3 concern the text message exchange between the accused and the complainant on the morning of 26 October 2022, together with the conversations between the complainant and the accused immediately following that exchange during which the complainant was asked about whether she had told the psychologist “everything”.
Whilst the merits of these proposed grounds are relevant to the question whether permission to appeal should be granted, the merits do not determine whether the rulings are “interlocutory judgments”. Where the Director fails to establish that the relevant decisions are “interlocutory judgments”, or that permission to appeal should be granted, it will not generally be necessary to reach any concluded view about the merits of the proposed appeals.
Ruling 1: Discreditable conduct evidence
The prosecution ‘Notice of Intention to Adduce Discreditable Conduct Evidence’ (the Notice) contained the items to which the trial judge referred for the purposes of his ruling, although only Item 5 is relevant to this application:[30]
[30] Excluding references to the names of witnesses and other evidentiary sources.
The Director of Public Prosecutions gives notice of intention to seek to adduce the following evidence of the discreditable conduct of the defendant, …, at trial under section 34P(4) of the Evidence Act 1929.
…
Item 5
(i)    Nature of discreditable conduct:
a.     The defendant sending text messages to the complainant of a sexual nature, specifically:
i.“Growing that big booty” on or before June 2022.[31]
[31] Pursuant to the Affidavit of TD sworn 4 March 2024, this message was sent on 25 August 2022.
ii.“Show us your tits” on 5 October 2022.
iii.“You’re easy” on 9 October 2022.
iv.“Just one [foot rub] though so don’t get too carried away” on 10 October 2022.
v.“Are you eating dinner or have you had enough (eggplant emoji) on 19 October 2022.
(ii)Witness from whom the evidence is proposed to be led, whether in examination in chief or cross-examination: ...
(iii)Facts in issue to which the evidence of the discreditable conduct relate, and counts in respect of which it is relevant:
a.     Whether the defendant engaged in the acts the subject of counts 1-3 on the District Court Information.
(iv)The use or uses of the evidence which are said to be permissible uses under section 34P(2) of the Evidence Act 1929:
The evidence tends to demonstrate that the defendant had a sexual interest in the complainant.
The evidence also tends to rebut the inference of innocence which arises from the parental relationship.
Section 34P of the Evidence Act is relevantly in the following terms:[32]
[32] Section 34P(2)(a) has been amended by the removal of the word “substantially” from the phrase “outweighs any prejudicial effect it may have”, see R v Marshall [2023] SASCA 105, [28], [38], [58], [169]-[170] (Livesey P, David JA and Kimber AJA).
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
It is necessary for the courts of this State to focus on the terms of s 34P of the Evidence Act, rather than interstate provisions.[33]
[33] MDM v The Queen (2020) 136 SASR 360, [8] (Kourakis CJ). In the same case, at [111] Peek J suggested “s 34P(2)(b) imposes a particularly high hurdle to admissibilityfor discreditable conduct evidence that is to be “admitted for a permissible use that relies on a particular propensity as circumstantial evidence of a fact in issue.” This a higher hurdle than that imposed by the Uniform Evidence Law…”.
It was common ground that the sending of sexually explicit text messages between the accused and his teenaged step-daughter comprised evidence of discreditable conduct to which s 34P applied.
Paragraph 3 of the ruling refers to Item 5 or paragraph 5 of the Notice. The second reference to “Items” in that paragraph is a reference to the sub-items or sub-paragraphs which follow, and which set out the five messages in the paragraphs numbered 5(a)(i) to 5(a)(v) inclusive of the Notice.
The ruling, in essence, was that the trial judge was “not satisfied that the probative value” of this material “is such [as] to permit admission”. Though the ruling is brief, the Director’s proposed appeal ground 1 recognises that it is to the effect that the trial judge was not satisfied that, if the messages were “admitted for a permissible use” then, “the evidence has strong probative value having regard to the particular issue or issues arising at trial”, as s 34P(2)(b) requires.
The trial judge did not address whether, if the messages were admitted for a permissible use “that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue” then, “the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have”, as s 34P(2)(a) requires.
Clearly, these messages suggest an intimacy between the accused and the complainant, the recipient of the messages, that had developed to the extent that the accused in his late 30s was emboldened to communicate with the 16-year-old complainant in a sexual manner. They are clearly relevant.[34] They suggest an inappropriate relationship between a step-father and a step-daughter.[35] They are capable of demonstrating that the accused had a sexual interest in the complainant, at the least at the time they were sent.
[34] HML v The Queen (2008) 235 CLR 334, [274]-[275] (Heydon J); R v Marshall [2023] SASCA 105, [159] (Livesey P, David JA and Kimber AJA).
[35] Hughes v The Queen (2017) 263 CLR 338, [40]; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56, [48]‑[52].
The question is whether these messages, which are capable of proving that the accused had a sexual interest in the complainant, have a “strong probative value” having “regard to the particular issue or issues arising at trial” within the meaning of s 34P(2)(b).[36] That is a question of law,[37] and no question of discretion arises.[38] It is for the appeal court to determine for itself whether the impugned evidence has “strong probative value”, this being a question “to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”.[39]
[36] That is to say, having regard to the facts in issue, Johnson v The Queen (2018) 266 CLR 106, [18].
[37] The Queen v Bauer (a pseudonym) (2018) 266 CLR 56, [61]; MDM v The Queen (2020) 136 SASR 360, [3]; R v Garner; R v Webb [2021] SASCA 68, [28]; Slape v The Queen [2022] SASCA 91, [51]
[38] In DPP (VIC) v Paulino (2017) 54 VR 109, [51] (Priest JA) and R v Chase [2018] NSWCCA 71, [11]‑[13] (Basten JA) the approach to appellate review of an evidentiary ruling was described as being akin to that set out in House v The King (1936) 55 CLR 499, even though the trial court is required to make an evaluative judgment rather than exercise a discretion. It was this approach which was described as having been the basis on which the parties were content to argue the case in R v Marshall [2023] SASCA 105, [156] (Livesey P, David JA and Kimber AJA). However other cases have suggested that the correctness standard discussed in Warren v Coombes (1979) 142 CLR 531 applies; R v Riley [2020] NSWCCA 283, [36] (Bathurst CJ); Taylor v The Queen [2020] NSWCCA 335, [110], [112]-[113] (Bell P); Mann v R [2023] NSWCCA 256, [11]-[22] (Kirk JA); Koschierv R [2024] NSWCCA 24, [28]‑[42] (Bell CJ). As the issue of the correct approach to the standard of appellate review was not argued in this case it is not appropriate to express a concluded view.
[39] The Queen v Bauer (a pseudonym) (2018) 266 CLR 56, [61]; Taylor v The Queen [2020] NSWCCA 335, [112] (Bell P).
The messages were generally exchanged between eight months and a year after the alleged offending. This is not a case where the messaging was sent in the midst of an allegedly unlawful sexual relationship, or sexual abuse, contrary to s 50 of the CLCA. There is no allegation of sexual offending at the time of these messages or subsequently.
Whilst these messages reflect a sexual interest in the complainant between August and October 2022, they do not in terms demonstrate a prior sexual interest in the complainant, nor that the accused had a willingness or tendency to act on that interest. The messaging does not contain admissions, nor does it unequivocally refer to the offending or to any prior intimate or esoteric information about the complainant.
Nonetheless the Director contends that this evidence must be evaluated in the context of the whole of the prosecution case, taken at its highest.[40]
[40] Phillips v The Queen (2006) 225 CLR 303, [63]; IMM v The Queen (2016) 257 CLR 300, [34], [95].
On the prosecution case, these messages are capable of demonstrating an intimacy and ongoing sexual interest which may be traced back, at least, to the time of the offending in the course of an ongoing relationship in which the accused and the complainant resided in the same home. The probative value of the evidence was strengthened, and any potential prejudice lessened, by the fact that identity is not in issue.[41] The Director pointed to the 2022 message regarding a foot rub and submitted that it invited a comparison with the allegation that the 2021 offending commenced with a foot massage. It was contended that these messages reveal a specific sexual interest which strengthens the inferential mode of reasoning,[42] namely, that the accused may have acted on that interest.
[41] Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report, Parts III-VI at p 594. Criminal Justice Report (childabuseroyalcommission.gov.au).
[42] TL v The King (2022) 275 CLR 83, [29]-[30].
Whilst these considerations are important and relevant, the question is whether the evidence has strong probative value having regard to the particular issue or issues arising at trial. The present issue is not merely whether the accused had a sexual interest in the complainant, but whether he had a tendency to act on it.[43] In McPhillamy v The Queen, Kiefel CJ, Bell, Keane and Nettle JJ explained:[44]
Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.
[43] Hughes v The Queen (2017) 263 CLR 338, [40]: “Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.”
[44] McPhillamy v The Queen (2018) 92 ALJR 1045, [27]. See also Taylor v The Queen [2020] NSWCCA 355, [85]-[122] (Bell P, in dissent), [136] (Walton J), [140]-[157] (Beech-Jones J). See, in particular, the summary of principles concerning ss 97 and 101(2) of the Evidence Act 1995 (NSW) by Bell P at [122].
It must of course be recognised that McPhillamy v The Queen was a case where the impugned evidence came from two complainants who gave evidence about previous offending, a decade before the subject offending. Nevertheless, in the earlier case of The Queen v Bauer (a pseudonym) the High Court settled the approach to tendency evidence under the Uniform Evidence Acts in a case involving a single complainant:[45]
As is apparent from comparison of the trial judge’s ruling with the Court of Appeal’s reasons for judgment, previous decisions of this Court have left unclear when and if a complainant’s evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.
Henceforth, it should be understood that a complainant's evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.[46]
As the trial judge in substance observed, it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.[47] In HML, Kiefel J (as her Honour then was) explained[48] its significance thus:
“‘[R]elationship evidence’ refers to all the conduct of a sexual kind that has taken place between the accused and the complainant. It encompasses sexual conduct which is an offence, often referred to as 'uncharged acts', and misconduct which may not be an offence. ...
Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the ‘guilty passion’ for, the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged.” (emphasis added; footnotes omitted)
Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[49] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[50]
[45] The Queen v Bauer (a pseudonym) (2018) 266 CLR 56, [47]-[50].
[46] (2017) 263 CLR 338 [57]-[58], [62]-[64] (Kiefel CJ, Bell, Keane and Edelman JJ).
[47] R v Ball [1911] AC 47, 70-71 (Lord Loreburn LC, Earl of Halsbury, Lords Ashbourne, Alverstone CJ, Atkinson, Gorell, Shaw of Dunfermline, Mersey and Robson agreeing at 71-72); R v Gellin (1913) 13 SR (NSW) 271, 277-278 (Cullen CJ, Pring J and Sly J agreeing at 278-279); R v Etherington (1982) 32 SASR 230, 235 (Walters J, Matheson J relevantly and Millhouse J agreeing at 241, 247); B v The Queen (1992) 175 CLR 599, 601-602 (Mason CJ), 605, 608 (Brennan J), 610-611 (Deane J), 618 (Dawson and Gaudron JJ); KRM v The Queen (2001) 206 CLR 221, 230 [24] (McHugh J), 264 [134] (Hayne J).
[48] (2008) 235 CLR 334, 494-495 [492]-[493], see also at 352-353 [6]-[7], 354 [11], 358-359 [25]-[27] (Gleeson CJ), 382-383 [103], [109]-[110] (Hayne J, Gummow J and Kirby J agreeing at 362 [41], 370 [59]), 425-426 [277]-[278] (Heydon J), 478-480 [425]-[433] (Crennan J), 500-502 [506], [510], [512] (Kiefel J).
[49] See Criminal Procedure Act 2009 (Vic), s 194.
[50] HML v The Queen (2008) 235 CLR 334, 397-398 [168], 401-402 [181] (Hayne J).
To reiterate: the question is whether the impugned evidence, whether by itself or with other evidence, is strongly probative of the accused having had a sexual interest in the complainant and a willingness or tendency to act on it.[51]
[51] The Queen v Bauer(a pseudonym) (2018) 266 CLR 56, [48].
It is not obvious that the judge was wrong to conclude that, in the particular circumstances of this case, proof of a sexual interest in the complainant an appreciable period of time after the alleged offending did not have a “strong probative value” concerning the alleged offending as s 34P(2)(b) required.
Having said that, it is not necessary to reach any final conclusion on the merits of this proposed ground of appeal, because permission to appeal should be refused. The application for permission to appeal could not be made under s 157(3)(a). It could only be made under s 157(3)(b). Assuming the competence of this ground of appeal, it is an example of a ruling which is open to be reconsidered depending on the course of evidence. It is not sufficiently important to the conduct of this case, or to the administration and practice of criminal law in South Australia generally, to warrant a grant of permission to appeal.[52]
[52] R v Marshall [2023] SASCA 105, [146] (Livesey P, David JA and Kimber AJA).
Ruling 2: Protected communications pursuant to s 67D of the Evidence Act

As has recently been addressed in some detail by this Court,[53] protected communications comprise a communication relating to a victim or an alleged victim of a sexual offence made in a “therapeutic context”, see s 67E(1) of the Evidence Act:
[53] Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22, [84]-[117] (Livesey P, Bleby and David JJA).
67E—Certain communications to be protected by public interest immunity
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
In Central Adelaide Local Health Network Inc v Whitehouse the Court articulated the purpose of this scheme in the following way:[54]
… to enable victims and alleged victims of sexual offences to access therapy and make necessary disclosures to that end without any inappropriate risk of their personal circumstances being disclosed in legal proceedings.[55] That patent purpose supports a broad reading that incorporates communications made to a person who is not necessarily a counsellor or therapist, if the communication is found, on the evidence, to be made (relevantly) for the purposes of psychiatric or psychological therapy.
The second limb of the definition of ‘therapeutic context’ in subparagraph (a)(ii) distinguishes between communications made for such purposes and communications made in the course of psychiatric or psychological therapy. This is a further textual indicator that a communication made for the purposes of psychiatric or psychological therapy need not be made directly to the counsellor or therapist.
[54] Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22, [95]-[96] (Livesey P, Bleby and David JJA).
[55] [Suppressed] [2005] SASC 214, [36].
Although this part of the case was argued before the trial judge on the basis that s 67F applied to the impugned evidence, it is not immediately obvious that statements made by a complainant to an accused about what she had earlier said to a psychologist could properly be regarded as communications made in a therapeutic context. They are more obviously communications made about a communication relating to a victim or alleged victim of a sexual offence made in a therapeutic context. These kinds of statements do not come within what is defined as a “therapeutic context” under s 67D of the Evidence Act:
therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
the communication is made—
(a)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(i) …
(ii) for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
Plainly, the impugned communications in this case were not made to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim ((a)(i)), nor were they made for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim ((a)(ii)).
It would in any event be difficult to say that the communications were “made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality” ((b)), when the complainant was, on one view of it, waiving confidentiality when revealing to the accused what she had said to her psychologist.[56] Nonetheless, and as has been recognised, it is not open to a complainant to waive the statutory public interest immunity which is conferred by the Act.[57]
[56] Breen v Williams (1996) 186 CLR 71, 87, 90 (Dawson and Toohey JJ) and 119, 129 (Gummow J).
[57] Central Adelaide Local Health Network Inc v Whitehouse [2024] SASCA 22, [84]-[117] (Livesey P, Bleby and David JJA).
It is a difficult question of construction whether the reach of these provisions could properly extend to communications made about a therapeutic communication even if those subsequent communications were not made in a therapeutic context.[58] There are likely to be arguments on either side of the issue whether these secondary or derivative communications should be regarded as protected communications. That construction would require that emphasis be given to the words “communication relating to” rather than the words “made in a therapeutic context”. Whilst on a literal approach that construction appears difficult, it might be supported by a broad, purposive approach.[59]
[58] Having regard to the text, context and purpose of the provision, R v A2 (2019) 269 CLR 507, [32]-[37].
[59] Cf R v R, GJ (2009) 105 SASR 506.
This question of statutory construction is best left to be addressed in the context of a case where it necessary to decide the question with the benefit of a full argument on it.
Before leaving this issue, it is important to recall that, even if the impugned communications were to be regarded as protected, there remains obvious scope for the application of the provisions that permit protected communications to be adduced, see ss 67F(5) to (8) of the Evidence Act:
(5)In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh—
(a)     the public interest in preserving the confidentiality of protected communications;
against—
(b)     the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6)In weighing the above considerations, the court is to have regard to—
(a)     the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)     the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)     the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)     whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)     the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders—
(a)     to prevent further publication or dissemination of the evidence; or
(b)     for any other purpose the court considers appropriate.
There is a great deal to be said for the proposition that the evidence which was excluded under this ruling was necessary to enable a proper appreciation of the messages, statements and events that followed on 26 October 2022. That is to say, even if the communications were protected, this was an appropriate case for the exercise of the power to permit the evidence to be adduced.
The excluded evidence demonstrated that the complainant had told the accused that she had revealed to her psychologist that his conduct toward her included “oral”, and that her psychologist had responded that this needed to be made the subject of a mandatory report by him. On the prosecution case, it might well be contended that, as a former police officer, the accused knew that this meant that the offending would soon come to light.
That there may be credible explanations for the events of 26 October 2022 does not render this evidence inadmissible,[60] nor need the prosecution negative all conceivable innocent explanations.[61]
[60] R v Power (1996) 87 A Crim R 407, 409.
[61] R v Melrose (1987) 30 A Crim R 332, 334.
Whilst the judge was apparently concerned about unfairness, it is a little difficult to know why that was so. This does not appear to be a case where the unfairness discretion is in contemplation.[62] The jury would need to be directed that the complainant’s statement was not admissible for the truth of its content but only so as to enable a proper assessment of the accused’s response to it. In so far as that response might be said to reveal a consciousness of guilt in the accused, the jury must be given clear directions about the appropriate form of reasoning to be employed before it could be treated as probative of guilt.[63]
[62] Police v Dunstall (2015) 256 CLR 403.
[63] See R v Power (1996) 87 A Crim R 407, 409 and Willingham v The Queen (2022) 295 A Crim R 262, [87]-[97], noting the need for caution and clear directions of the kind discussed in Edwards v The Queen (1993) 178 CLR 193. See also Anderson (A Pseudonym) v The King [2024] SASCA 36, [25]-[38].
The judge was concerned that the accused could not get access to the notes of what transpired between the complainant and her psychologist. On one view of it, it might not matter much what was actually said between the complainant and her psychologist because the focus of the prosecution case is on the accused’s response.
Again, it is not necessary to reach any concluded view on the merits, including as to whether s 67E of the Evidence Act extends to the protection of communications which were not made in a therapeutic context where they refer to a communication which was made in a therapeutic context. Even if there is merit in the Director’s proposed ground that does not necessarily mean that permission to appeal should be granted.
Permission to appeal this proposed ground of appeal should be refused. Though the prosecution would prefer to have the benefit of the full context in which the accused is said to have made various express or implied admissions on 26 October 2022,[64] the prosecution is far from dependent on the excluded evidence. Apart from the evidence of the complainant, there is evidence independent of the complainant available to be called from her mother and police regarding the accused’s admissions and attempted suicide.
[64] Which will need to be the subject of appropriate directions to the jury, eg R v BEC [2023] QCA 154.
For these reasons, the evidence is not of critical importance (s 157(3)(a)), and the application for permission could only be considered under s 157(3)(b). Like most evidentiary or procedural rulings, it is open to the trial judge to reconsider this ruling during the course of the trial and before the jury retires. In addition, and though not decisive, it is relevant to the question of permission that the Director is now taking an approach to the operation of s 67E which is different to the approach taken before the trial judge.[65]
[65] Cf R v Beaumont [2023] SASCA 128.
Conclusion
It is not necessary to address the proposed grounds which complain about the adequacy of the reasons given for the rulings made in this case.[66]
[66] Which would require a determination as to whether these rulings were “important interlocutory rulings”, Wainohu v New South Wales (2011) 243 CLR 181, [54]-[58] (French CJ and Kiefel J). They are in any event not to be read as if they were final judgments, Giersch v Pennicott (1977) 15 SASR 300, 305.
The rulings sought to be impugned are open to be reconsidered as the trial unfolds.
It is not in the interests of justice to entertain these appeals and permission to appeal under s 157(3)(b) of the CPA should be refused.