R v Maiolo (No 2) - [2013] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MAIOLO (NO 2)
[2013] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
16 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
Appeal against conviction - appellant charged with five counts of indecent assault and four counts of unlawful sexual intercourse against four female complainants - three of the complainants are sisters - the fourth complainant is the daughter of the appellant and another sister who is not a complainant - the trial proceeded as a re-trial following the quashing of the appellant's convictions of charges in respect of the same complainants and incidents - all nine counts proceeded to trial after an application for severance was refused - the jury returned guilty verdicts on each count.
Whether the evidence established an initial complaint by the sister RX - whether the evidence of complaint by RX was admissible in relation to the other complainants.
Held (Peek J; Kourakis CJ and Stanley J concurring): the evidence of RX as to her conversations with the police and the counsellor did not establish an initial complaint within the meaning of s 34M(6), Evidence Act 1929 - the content was very nebulous and it was not clear whether the subject being addressed was sexual offending against RX or another person(s) - it was also unclear whether, if there was a complaint of conduct towards RX, it related to that complaint - accordingly, the trial Judge erred in directing the jury as to the use of the "complaint evidence" of RX in assessing and bolstering both RX's evidence and that of the other complainants.

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
Whether the evidence of uncharged acts was admitted as "relationship evidence" - whether the trial Judge correctly directed the jury on the permissible and impermissible purposes of that evidence.
Held (Peek J; Kourakis CJ and Stanley J concurring): the Judge was required to direct the jury in accordance with s 34R, Evidence Act 1929 - the Judge's directions were predicated on the basis of the uncharged acts having been admitted as "relationship evidence" and not as propensity evidence - those directions were deficient in their use of the words "context" and "relationship" without specific elaboration and guidance as to their meaning - in their unexplained form, they had a positive tendency to point the jury towards an impermissible use of the evidence of uncharged acts - the trial Judge gave no direction as to the impermissible purpose of the evidence of uncharged acts - it was not enough for the trial Judge to give a direction about the impermissible use of cross-admissible evidence - a clear direction on the impermissible purpose of the evidence was required - accordingly, the appellant was deprived of a trial according to law - R v Grech [1997] 2 VR 609, R v Nieterink (1999) 76 SASR 56 and R v Dolan (1992) 58 SASR 501 referred to.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS
Whether the counts were properly joined - whether some or all of the counts should have been severed - whether the evidence of each of the complainants was cross-admissible.
Held (Peek J; Kourakis CJ and Stanley J concurring): the evidence of the sisters, RX, MX and DX, is cross-admissible - the combined effect of the evidence of all three of the sisters demonstrates a strong linkage or unity between each of the alleged offences such that the evidence substantially outweighs the prejudicial effect it may have on the appellant and has strong probative value - the evidence concerning the daughter, SZ, is not cross-admissible - no underlying unity or specific propensity is evident from the offences allegedly committed against SZ given the differing circumstances attending them - it is insufficient to assert that the appellant is the "common denominator" - at a re-trial, the counts concerning RX, MX and DX may be joined, but not those relating to SZ.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING
Whether the trial Judge gave appropriate directions pursuant to s 34CB, Evidence Act 1929 - whether the trial Judge misdirected the jury as to the correct approach to be taken to the topic of forensic disadvantage due to delay.
Held (Peek J; Kourakis CJ and Stanley J concurring): the trial Judge's directions on forensic disadvantage were deficient - the reference to "difficulties for [the appellant] in giving evidence about matters so old" unduly restricted the ambit of the definition of "forensic disadvantage" - the trial Judge's direction as to assuming that the complainants were doing their best to tell the truth failed to address the fact that the appellant's defence was that they were deliberately lying and served to wrongly excuse significant inconsistencies in their own evidence and as between their accounts - this direction also suggested that the complainants had equally suffered the same forensic disadvantage as the appellant - those errors were accentuated by the direction to "scrutinise" the evidence of the appellant.
Evidence Act 1929 (SA) ss 34CB, 34CB(2)(b), 34M(1), 34M(3), 34M(6), 34P(2), 34P(2)(a), 34P(2)(B), 34P(3), 34R(1), 34S; Evidence (Discreditable Conduct) Amendment Act 2011 (SA); Criminal Law Consolidation Act 1935 (SA) ss 278, 278(1), 278(2a), 278(2a) (c), referred to.
R v Nieterink (1999) 76 SASR 56; R v Dolan (1992) 58 SASR 501; R v Grech [1997] 2 VR 609; R v M, BJ (2011) 110 SASR 1; R v Cassebohm (2011) 109 SASR 465 ; R v S, DD (2010) 109 SASR 46, applied.
R v Liddy (2002) 81 SASR 22, distinguished.
Makin v Attorney-General (NSW) [1894] AC 57; R v Ellis (2010) 107 SASR 94; R v Smith (1915) 1 Cr App R 229; R v Straffen [1952] 2 QB 911; R v Ball [1911] AC 47; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Pfennig v The Queen (1995) 182 CLR 461; Hoch v The Queen (1988) 165 CLR 292; Roach v The Queen (2011) 242 CLR 610; Wilson v The Queen (1970) 123 CLR 334; HML v The Queen (2008) 235 CLR 334; BBH v The Queen (2012) 245 CLR 499; R v Beserick (1993) 30 NSWLR 510; R v S, PC (2008) 102 SASR 199; De Jesus v The Queen (1986) 61 ALJR 1; Director of Public Prosecutions (UK) v Boardman [1975] AC 421; Phillips v The Queen (2006) 225 CLR 303; R v Arthur (1992) 163 LSJS 18; Longman v The Queen (1989) 168 CLR 79; R v MWL (2002) 137 A Crim R 282; R v WEB (2003) 7 VR 200; R v Taylor (No 2) (2008) 18 VR 613; R v GVV (2008) 20 VR 395, discussed.
Harriman v The Queen (1989) 167 CLR 590; B v The Queen (1992) 175 CLR 599; R v Christie [1914] AC 545; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Dupas v The Queen (2012) 218 A Crim R 507; R v Leonard (2006) 67 NSWLR 545; Gipp v The Queen (1998) 194 CLR 106; R v N, SH [2010] SASCFC 74; R v Murray (1987) 11 NSWLR 12; R v N, RC (2012) 112 SASR 399; Davies v Director of Public Prosecutions [1954] AC 378; Kelleher v The Queen (1974) 131 CLR 534; R v James (1983) 36 SASR 215; Bromley v The Queen (1986) 161 CLR 315; Carr v The Queen (1988) 165 CLR 314; Robinson v The Queen (1999) 197 CLR 162; Police v Hirst (2006) 95 SASR 260; R v Maiolo [2011] SASCFC 86; R v H, T (2010) 109 SASR 86; R v A, GP (2012) 113 SASR 146; R v El Rifai [2012] SASCFC 98; Prasad v The Queen (1994) 68 ALJR 194; Domican v The Queen (1992) 173 CLR 555; R v Santos and Carrion (1987) 45 SASR 556; Zoneff v The Queen (2000) 200 CLR 234; R v Clune (No 2) [1996] 1 VR 1; R v Lawford (1993) 61 SASR 542; Thompson v The Queen (1989) 169 CLR 1, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"context", "relationship", "discreditable conduct", "relationship evidence", "sexual attraction evidence", "uncharged acts", "general propensity", "specific propensity", "tendency", "use", "purpose", "permissible purpose", "impermissible purpose", "initial complaint", "cross-admissible evidence", "forensic disadvantage"

R v MAIOLO (NO 2)
[2013] SASCFC 36
Court of Criminal Appeal: Kourakis CJ, Peek and Stanley JJ

KOURAKIS CJ. I would allow the appeal and set aside the convictions for the reasons given by Peek J. I agree with the orders proposed by him.
PEEK J. Appeal against convictions of sexual offences.
PART 1: INTRODUCTION
The appellant was charged with sexual offending against four female complainants. Three of the complainants were sisters and will be referred to as RX, MX and DX. The fourth complainant was SZ, the daughter of the appellant and TX. TX was an elder sister of the three sister complainants, RX, MX and DX. The facts surrounding the relationships between the appellant and the five females to whom I have just referred were somewhat complicated but in simplified terms, the history was as follows.
In 1986, the appellant and TX met and commenced a relationship which continued until 1993. Their daughter, the complainant SZ, was born in October 1987. During the period between 1986 and 1993, the appellant and TX would regularly visit TX’s mother and TX’s younger sisters, RX, MX and DX, at their home. TX’s sisters would also, from time to time, visit the appellant and TX at their home and stay overnight with them.[1] It is alleged that the sexual offending in relation to RX, MX and DX (Counts 1 to 6 on the Information) occurred during this period between 1986 and 1993 and mainly during the home visits. All of the sisters gave evidence of various uncharged acts in addition to the charged offences.
[1] The addresses of the respective homes changed from time to time but that level of detail is not necessary for present purposes.
The sister RX (date of birth: 16 March 1973) gave evidence that the sexual offending in relation to her commenced in about 1987 when she was about 14 years of age and concluded when she was about 16 years old. (Counts 1 to 3 on the Information). The sister MX (date of birth: 11 November 1978) gave evidence that the sexual offending in relation to her commenced in 1991 (when she was about 13 years old) and continued until 1993. (Count 4 on the Information). The sister DX (date of birth: 13 July 1984) gave evidence that the sexual offending in relation to her consisted of digital touching of her vagina when she was about five years old. (Counts 5 and 6 on the Information).
In 1993, the relationship between the appellant and TX ended and the appellant commenced to live with TX’s sister, RX (who was by then about 26 years old), in a sexual relationship. That relationship between the appellant and RX continued until about 1996. During this period from 1993 to 1996 the appellant’s daughter, SZ, was living with her mother, TX, but would visit the appellant every second weekend and stay overnight with the appellant and RX. It is alleged that the sexual offending in relation to the appellant’s daughter, SZ, occurred in the course of those visits, commencing in about 1994 when SZ (date of birth: 3 October 1987) was about six years old and concluding in 1996 when she was about nine years old. SZ also gave evidence of considerably more uncharged acts than the specific counts. (Counts 7 to 9 on the Information).
The Information
The amended Information was as follows:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1^st day of January 1987 and the 31^st day of December 1989 at Brooklyn Park, had sexual intercourse with [RX], a person of or above the age of 12 years and under the age of 17 years, by inserting his finger into her vagina.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1^st day of January 1987 and the 15^th day of March 1990 at Salisbury North, indecently assaulted [RX].
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Robert John Maiolo between the 1^st day of January 1987 and the 15^th day of March 1990 at Brooklyn Park, indecently assaulted [RX].
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 11^th day of November 1991 and the 1^st day of March 1993 at Kilburn, had vaginal sexual intercourse with [MX], a person of or above the age of 12 years and under the age of 17 years.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 13^th day of July 1988 and the 31^st day of December 1990 at Salisbury North, indecently assaulted [DX].
Sixth Count
Statement of Offence
Indecent Assault. (Ibid)
Particulars of Offence
Robert John Maiolo between the 13^th day of July 1988 and the 31^st day of December 1990at Salisbury North, indecently assaulted [DX].
Seventh Count
Statement of Offence
Indecent Assault. (Ibid)
Particulars of Offence
Robert John Maiolo between the 1^st day of February 1993 and the 8^th day of November 1996 at Brooklyn Park, indecently assaulted [SZ].
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Robert John Maiolo between the 1^st day of February 1993 and the 8^th day of November 1996 at Brooklyn Park, had sexual intercourse with [SZ], a person under the age of 12 years, by causing her to perform an act of fellatio upon him.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid)
Particulars of Offence
Robert John Maiolo between the 1^st day of February 1993 and the 8^th day of November 1996 at Brooklyn Park, had sexual intercourse with [SZ], a person under the age of 12 years, by performing an act of cunnilingus upon her.
The course of the prosecution
The present trial was a retrial consequent upon the Court of Criminal Appeal[2] quashing convictions of charges concerning each of the present complainants at a previous trial (the first trial). At the first trial, there was no application for severance, both parties apparently holding the view that the evidence in relation to the various complainants was cross-admissible. However, at the end of the evidence, the trial Judge ruled that the evidence of the complainants was not cross-admissible and summed up to the jury on that basis. The Court of Criminal Appeal allowed the appeal essentially because, on the trial Judge’s ruling, if an application for severance had been made it would likely have been granted; in those circumstances, no directions to the jury that the evidence was not cross-admissible could have obviated the prejudice to the appellant of having a joint trial in circumstances where that should not have occurred.
[2] R v Maiolo [2011] SASCFC 86.
The main (although not the only) point taken by the respondent was that the Judge had been wrong and that the evidence had in fact been cross-admissible. The respondent argued that the appellant should therefore have had a joint trial (as he did) and that he had gained the positive benefit (to which he had not been entitled) of a direction that the evidence was not cross-admissible. This argument was rejected by the Court. David J stated:[3]
[42]Whether the Judge was right or not is not a matter this Court has to decide. There may be a strong argument to suggest the charges are cross-admissible. However, if the Judge has erred in finding that they are not cross‑admissible there is still a problem with the trial process. Assuming that there was cross‑admissibility, it would then be incumbent upon the Judge to carefully explain to the jury how that evidence could be used on each count, the limitations to the use of such evidence and how that evidence cannot be used by way of mere propensity reasoning. No such directions were given because of the Judge’s ruling. I reject that argument.
[43]On the basis of the Judge’s ruling at trial that there was no cross‑admissibility, I am of the view that the only appropriate action to cure any impermissible prejudice was to order a mistrial. In relation to this specific case, the impermissible prejudice could not be rectified by directions no matter how complete they were.
[3] R v Maiolo [2011] SASCFC 86.
The course of the present trial
After hearing an application for severance of counts and separate trials in relation to each of the complainants, on 22 May 2012 the trial Judge ruled that there would be a joint trial of the charges in relation to all of the complainants. Her Honour determined the matter by reference to s 278, Criminal Law Consolidation Act 1935 as it stood prior to the recent repeal of s 278(2a)(c). On 25 May 2012, her Honour commenced the trial before the jury.
On Friday, 1 June 2012, the Evidence (Discreditable Conduct) Amendment Act 2011 came into operation. It repealed s 278(2a)(c), Criminal Law Consolidation Act 1935 and amended the Evidence Act 1929, inserting the new sections 34O to 34T. Prior to the summing up (which occurred on Wednesday, 6 June 2012), her Honour indicated that she would give the directions required by the new s 34R. One of the contentions of the appellant is that the directions ultimately given did not comply with those provisions (or indeed with the preceding common law requirements).
The grounds of appeal
The filed amended grounds of appeal were as follows:
1.The evidence that [RX] made a statement to the police was not evidence capable at law of satisfying the test of initial complaint or of demonstrating consistency of conduct pursuant to Section 34M of the Evidence Act SA 1929.
2.The Learned Trial Judge erred by not properly directing as to the impermissible uses of the uncharged acts.
3.A miscarriage of justice occurred due to the Learned Trial Judge’s failure to order separate trials in relation to each complainant and the directions given to the jury in relation to the similar fact component of the evidence of each complainant.
Grounds 1 to 3 are inelegantly drawn but were interpreted generously on the hearing of the appeal. At the commencement of the hearing, a further ground of appeal was added at the suggestion of the Court as follows:
4.The learned trial Judge erred in that the combined effect of the passage in her Honour’s summing up on the topic of delay [at pages 11 to 12] taken together with, first, the previous direction as to scrutinising the evidence of the appellant in the same way as other witnesses [at page 5(.9)] and, second, the various directions in the summing up as to scrutinising the evidence of prosecution witnesses, had the combined effect of misdirecting the jury as to the correct approach to be taken to the topic of forensic disadvantage to the appellant due to delay. (See s 34CB Evidence Act 1929).
A summary of the issues on the present appeal

The issues on the present appeal (some of which are likely to arise on a further re-trial) will be considered in the following order:
·Evidence of complaint by RX (Ground 1);
·The effect of the Evidence (Discreditable Conduct) Amendment Act 2011;
·Failure to direct as to the impermissible uses of the uncharged acts (Ground 2);
·Joinder, severance and cross-admissibility of evidence (Ground 3); and
·Directions under s 34CB, Evidence Act 1929 (Ground 4).
PART 2: EVIDENCE OF COMPLAINT BY RX (GROUND OF APPEAL 1)
RX made no complainant of sexual misbehaviour by the appellant toward herself until 2008. RX stated in evidence-in-chief:[4]
QWhen was the first time you told anyone about what Mr Maiolo had done to you as a teenager?
AI had a phone call from the police in 2008 and they had said to me that [MX] had been to the police with some complaints about Robert and they also mentioned about [SZ] and they wanted information from me. After that I was seeing one of the counsellors at work and I’d rung her and I spoke to her about it. So I told her quite a few things - just on the phone I told her some details and then we - she came with me and we did a statement to the police and that’s when I really spoke about it, I suppose.
…
QHave you told any of your family members about what happened between you and Mr Maiolo?
ANo.
[4] T168.
In fact, the cross-examination of RX makes it clear that what RX referred to above as “a phone call from the police in 2008” was in fact a series of calls being repeatedly made by Police Officer Triggs seeking information from RX as to allegations being made against the appellant by MX. Portions of that cross-examination appear as follows:[5]
[5] T220-225.
QYou said during your evidence that over the years you’ve had contact with your sister [MX] perhaps more than anybody else from your family?
AOnly because when the police rung me, they had said to me that [MX] had been to the police, made the allegations and, I mean, I rung her before this kind of got started, so I suppose I talk to her a bit more. I just find her easier - well, the easiest one to talk to.
QWhat did you mean when you said a moment ago that you rang [MX] kind of before it got started?
ALike before I made a statement, because the police had rung me wanting information and I didn’t know what I wanted to do, whether I should have made a statement.
QBecause the police were ringing you up an awful lot back in 2008, weren’t they?
AYep.
QYou didn’t really want to talk to them, did you?
AIt was just difficult.
QSo you had a chat with your sister [MX], did you?
AYeah, I can’t remember what time that was, but yeah, just because - like I said, I knew - well, I suspected things with her and things that I knew about her and, you know, it’s funny, I just never ever thought she would say anything, but, yeah.
QIs it the case that you had a telephone conversation with [MX] prior to speaking to police and giving a statement with respect to the matter now before the court?
AI didn’t speak to her about the matter so much, it was just more about - like I was saying I couldn’t decide to make a statement, because they’d rung me, and I told her they rung me and wanted information from me.
…
QHow many times did the police call you before you spoke to your sister [MX]?
AI don’t know. Many times.
QI’m sorry?
AThey called me quite a few times.
QWhat’s ‘quite a few’, half a dozen, a dozen?
AI don’t know, I didn’t count. I don’t know.
QThey were being quite persistent, weren’t they?
AYeah.
QYou wanted to be left alone, perhaps?
AWell, I mean, I didn’t particularly want to think about it.
QWere the police harassing you into giving a statement?
AI don’t know if you’d put it that way.
QWell, how would you put it?
AThey were just calling me lots of times and asking if I had any information.
…
QHad you discussed what you say you’d observed in relation to [MX] with [MX] prior to the police ever contacting you?
AI did say that I knew things, that was it. I didn’t discuss the details.
Did the evidence establish an initial complainant within the meaning of s 34M(6)?
Counsel for the respondent correctly conceded in his outline of argument that: “No evidence was lead as to the content of what was said to the counsellor or the police”. Upon analysis of the whole of the evidence, the position as to any “initial complaint”[6] by RX appears to be as follows.
[6] Evidence Act 1929 s 34M(3).
First, in 2008 RX received a series of phone calls from a police officer and received information that MX and SZ had made complaints to police about the appellant and that police wanted information from her. It appears that RX was, to say the least, hesitant in relation to giving a statement to police incriminating the appellant in relation to those allegations.
Second, at some unspecified time after the 2008 police phone calls, RX telephoned a female counsellor at work and told her either “quite a few things” or “some details”. However, what those things related to or their details is unstated.
Third, at a still later unspecified time, RX says that she and the counsellor “did a statement to the police and that’s when I really spoke about it …”. But again, the content of the statement is unclear. Indeed, having regard to RX’s reluctance to provide any statement to police as referred to above, it is unsafe to assume anything about what allegations, if any, RX may have made as to misconduct by the appellant in relation to herself on the occasion of her giving a statement to the police whose focus was clearly on MX.
The respondent submits that the effect of the evidence is that the statement to police by RX was an elaboration of an initial complaint made by her during the telephone conversation with the counsellor and therefore itself constituted an “initial complaint” by virtue of the definition of that term in s 34M(6), Evidence Act 1929. However, the evidence as to that telephone conversation with the counsellor is very nebulous. It is to be emphasised that the prosecution made no attempt to lead the content of either the statement by RX to the counsellor or her statement to police. Most importantly, it is quite unclear as to what was the precise subject being addressed, and in particular whether it was sexual offending against RX herself or against another person(s).
If there is any evidence of complaint by RX as to conduct towards herself, it is not demonstrated to relate to a charge on the Information
Even if (for the sake of argument) one were to assume that the evidence can establish that RX made some complaint of sexual misconduct toward herself, there is no evidence to show that such a complainant related to any of the specific charges on the Information in relation to RX. The evidence given by RX was far too vague to establish that either her telephone conversation with the counsellor or her statement to police constituted an “initial complaint” within the meaning of the definition of that term in s 34M(6) in relation to any of the charges on the Information relating to RX.
The appeal in The Queen v S, DD[7] was allowed on this basis. Duggan J there stated:[8]
[7] (2010) 109 SASR 46.
[8] R v S, DD (2010) 109 SASR 46, 49-50.
[4]The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
[5]In the present case, the conduct alleged in the first and second counts was some months apart. It was alleged that a large number of similar but uncharged acts took place over the same period.
…
[7]If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial Judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts.
[8]It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.
[9]Furthermore, the jury should have been told that the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency. The summing up did not include such a direction. (Emphasis added)
Anderson J agreed with Duggan J. I stated in that case: [9]
[98]It was contended that on the correct construction of s 34M(3) the words “an initial complaint of an alleged sexual offence” correspond to the words “a charge of the sexual offence” second appearing in s 34M(3) in the sense that it must be apparent that “the sexual offence” that was complained of is the same “sexual offence” that is charged.
[99]This argument is conceptually correct and consequently there will be a clear obligation on the trial Judge to direct the jury as to which charges the evidence relates and to which it does not.
…
[101]As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity.
[102]The effect of the above approach may enable the evidence to be received but it is particularly important that the jury be carefully directed as to the uses to which the complaint evidence adduced can, and can not, be put including the particular count(s) in relation to which it is, and is not, admissible. (Emphasis in original)
[9] R v S, DD (2010) 109 SASR 46, 71-72.
There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware.[10]
[10] I mention for completeness that there is a quite different unresolved matter concerning the admissibility of complaint evidence in circumstances where the making of an initial complaint is established. See the difference between, on the one hand, R v H, T (2010) 108 SASR 86, 93-101 [23]-[50] (Gray J), and R v S, DD (2010) 109 SASR 46, 73-74 [109]-[113] (Peek J), and, on the other hand, R v H, T (2010) 108 SASR 86, 109 [90], 112-113 [105]-[107] (Kourakis J) (as he then was), R v A, GP (2012) 113 SASR 146, 148-149 [16]-[17] (Vanstone J), and R v El Rifai [2012] SASCFC 98 [135] (Kelly J). However, in the circumstances of the present case it is plainly unnecessary to now discuss, let alone resolve, that matter.
The trial Judge’s directions as to complaint evidence
The Judge compendiously directed the jury as to the use of complaint evidence, her directions applying to each of the complainants:[11]
There are reasons why complaint evidence has been given in the trial and those reasons are as follows: first, to inform you, the jury, as to how the allegations first came to light. That gives you a better picture of the account given by each of the four complainants. Second, so that you may judge whether the complaint that was made is consistent with the conduct that is alleged to have occurred, and you will have to judge how you weigh up any inconsistency between the conduct as alleged and the terms of the complaint or complaints that were made about that conduct. And you will recall the submissions that were made to you today about the inconsistency in some of the complaints, specifically referring to [DX] and her complaints to Ms S. Both counsel commented on that topic in detail and I will refer to that tomorrow.
Third, the evidence of initial complaint or later elaborations is before you not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now charged. Fourth, and finally, you must bear in mind there are various reasons why a complainant makes a report at a particular time or to a particular person. You have heard from each of the complainants as to how and why they came to make their complaints. You have heard submissions from both counsel to which I will refer again tomorrow as to what you should make of those accounts.
You are entitled to have regard to the complaints and the reasons that the particular complainants have given as to why they made complaints at the time that they did when you consider their truthfulness and reliability.
[11] Summing up 10-11.
Section 34M, Evidence Act 1929 abolished the common law relating to complaint in sexual cases.[12] That being so, the evidence the subject of the Judge’s directions can only be justified as other than hearsay if those directions were validly given pursuant to s 34M(4). However, such directions as to any complaint by RX could only be given if evidence of an “initial complaint” by RX as to an offence against herself on the information was established. For the reasons stated above, this was not established and her Honour was therefore not in a position to direct the jury that they could use the evidence of RX in the same way as they could use the evidence of initial complaint given by the three other complainants.
[12] Evidence Act 1929 s 34M(1).
Conclusion as to ground of appeal 1
The jury was misdirected in at least two very important ways. First, as to the use of complaint evidence in assessing (and bolstering) the evidence of RX herself. Second, in assessing (and bolstering) the evidence of the other complainants since her Honour directed that the evidence of RX was admissible in relation to their consideration of the evidence of the other complainants.[13] In these circumstances, all convictions must clearly be set aside.[14]
[13] This path of reasoning was left to the jury and the verdict must be set aside since it is not possible to say that the jury did not travel by that route. Thus, in Prasad v The Queen (1994) 68 ALJR 194, 195 the High Court stated: “Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v The Queen (1955) 93 CLR 493”. See also: Domican v The Queen (1992) 173 CLR 555, 560, 565-566 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), 570-571 (Brennan J); R vSantos and Carrion (1987) 45 SASR 556, 567 (King CJ); Zoneff v The Queen (2000) 200 CLR 234, 246 [26] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), 267 [85] (Kirby J); R v Clune(No 2) [1996] 1 VR 1, 5 (Callaway JA); R v Lawford (1993) 61 SASR 542, 550–551 (Duggan J).
[14] The same consequence followed in relation to another conviction to which the error did not directly relate, in R v S, DD (2010) 109 SASR 46. See Peek J, ([131]-[137]) with whom Duggan J ([10]-[11]) and Anderson J ([40]) agreed on this aspect.
PART 3: ADMISSION OF DISCREDITABLE CONDUCT EVIDENCE (GROUNDS OF APPEAL 2 AND 3)
In order to examine the appellant’s second and third grounds of appeal I will have to consider in a little detail the admissibility of evidence of “discreditable conduct”. I use the term “discreditable conduct” for two reasons. First, it is a relatively neutral term, the use of which limits the need to enter into a somewhat barren debate as to the respective meanings of the terms “similar fact evidence” and “propensity evidence” and their inter-relationship. Second, it is the term used in the Evidence (Discreditable Conduct) Amendment Act 2011, which enacted the new ss 34O to 34T of the Evidence Act 1929 (the new provisions), which will be examined below[15] after briefly examining their historical context.
From Makin to Pfennig at a gallop
[15] With the exception of s 34T, which deals with joinder of defendants, a situation not presented by the present case.
In what Kourakis J (as he then was) has aptly referred to as a “dichotomous statement of principle”,[16] Lord Herschell LC in Makin v Attorney-General (NSW) (Makin) held:[17]
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
[16] R v Ellis (2010) 107 SASR 94, 116-117 [96].
[17] [1894] AC 57, 65.
Traditional debate may be largely avoided on this occasion. It is enough to say that although one may perceive a tension between his Lordship’s two propositions, the effect of the overall pronouncement was to posit a general rule of exclusion to which there might be various exceptions. It is sometimes said that such exceptions were delineated by factual classes or categories (with the inference being that the approach was a relatively crude one). There may be an element of truth in this analysis, but the mere incantation of a label and a plausible argument in support was never sufficient to ensure admissibility. The courts bore the force of the general exclusionary edict strongly in mind and the admission of exceptions was just that: exceptional. When one looks at the facts of some of the famous cases decided by reference to the Makin principles such as Makin itself (the baby farmers), R v Smith[18] (brides in the bath); R v Straffen[19] (Straffen) (the distinctive psychopathic strangler) and R v Ball[20] (the incestuous siblings), one uniformly finds evidence possessing really strong probative force.
[18] (1915) 1 Cr App R 229.
[19] [1952] 2 QB 911.
[20] [1911] AC 47.
In my view, this is no accident. The courts required that before an exception was to be admitted it had to possess a justification for admission other than reliance upon a disposition or propensity of the accused and in fact, if not always in express analysis, the courts required this justification to have strong probative force. Of course, another debate here looms as to whether some of the cases said to possess justification for admissibility other than via propensity were, as a matter of logical analysis, cases of propensity by another name. It may be so, but again I do not participate in the debate, except to say this. In my view, the answer, or part of the answer, to a number of the questions raised by commentators is that there is an important distinction between a general propensity (to commit crimes or to commit crimes of the same general kind) on the one hand and a propensity to commit a highly specific type of crime on the other hand. The exclusionary rule was certainly concerned to guard against the former kind of general propensity. As for the latter kind, it may well be that a case such as Straffen would now be so classified as involving a highly specific propensity - but the result of the admissibility inquiry would be the same.

It is not necessary to tarry further because, irrespective of various criticisms of some of the early cases that may be made, it was explicitly accepted in Australia, certainly by the time of the decision of the High Court in Markby v The Queen[21] (Markby), that for similar fact evidence or propensity evidence to be admissible, it must possess strong probative force which transcends its prejudicial effect. It is of critical importance that this was recognised as a requirement of legal admissibility – not a mere discretion.[22] In Markby, Gibbs ACJ (with whom Stephen, Jacobs and Aickin JJ concurred) there stated:[23]
It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have “a strong degree of probative force” (per Lord Wilberforce in Reg v Boardman (1975) AC, at p 444, or “a really material bearing on the issues to be decided” (per Lord Morris of Borth-y-Gest (1975) AC, at p 439, citing Harris v Director of Public Prosecutions (1952) AC, at p 710, it may not be going too far to say that it will be admissible only if it is “so very relevant that to exclude it would be an affront to common sense” (see per Lord Cross in Reg v Boardman (1975) AC, at p 456, and see per Lord Hailsham of St Marylebone (1975) AC, at pp 452-453). The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value. …
[21] (1978) 140 CLR 108.
[22] Director of Public Prosecutions (UK) v Boardman [1975] AC 421, 444 quoted in Markby v The Queen (1978) 140 CLR 108, 117; Perry v The Queen (1982) 150 CLR 500, 604 (Wilson J), 609 (Brennan J); Sutton v The Queen (1984) 152 CLR 547 (Brennan J), 560 (Deane J), 564 (Dawson J); Hoch v The Queen (1988) 165 CLR 292, 300 (Brennan and Dawson JJ); Thompson v The Queen (1989) 169 CLR 1, 16 (Mason CJ and Dawson J); Harriman v The Queen (1989) 167 CLR 590, 598 (Dawson J), 633 (McHugh J); B v The Queen (1992) 175 CLR 599, 608 (Brennan J), 618 (Dawson and Gaudron JJ).
[23] (1978) 140 CLR 108, 117.
In the later case of Perry v The Queen (Perry) Gibbs CJ stated:[24]
Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it. It would, however, be a mistake to think that because the reason for the rule is that the evidence would be unfairly prejudicial, the rule itself does no more than require the judge to exercise a discretion, and to weigh the prejudicial effect of the evidence against its probative value. Many cases, including Reg v Boardman, Harris v Director of Public Prosecutions, and Markby v The Queen, to name only a few, have since recognized that the principles laid down in Makin v Attorney-General (NSW) are authoritative. A trial judge must decide as a matter of law whether the evidence is admissible, and it is only if he decides that it answers the test of admissibility that he need consider whether he should exclude it in the exercise of his discretion. The importance of the distinction between the two steps which the trial judge is required to take can be seen if the case goes on appeal, since the grounds on which a court of criminal appeal will intervene will be different depending on whether inadmissible evidence has been received or there is a challenge to the exercise of the judge’s discretion.
It is true that in deciding whether the evidence is admissible, questions of degree arise and that the judgment to be made is to some extent discretionary. It was said in Harris v Director of Public Prosecutions, that evidence of similar facts, to be admissible, must have “a really material bearing” on the issues to be decided. The judgments in Reg v Boardman show that there are degrees of relevance, and I respectfully agree with the statement of Lord Wilberforce that the evidence to be admissible must have “a strong degree of probative force”: Reg v Boardman. … [Footnotes omitted]
[24] (1982) 150 CLR 580, 585-586.
In Perry, Brennan J stated:[25]
… The exception is allowed only where the probative force of the evidence clearlytranscendsits merely prejudicial effect. … (Emphasis added)
[25] (1982) 150 CLR 580, 609.
In Sutton v The Queen[26] (Sutton) the test of strong probative force was again applied. Thus, Gibbs CJ stated:[27]
… It remains necessary to consider whether the evidence is relevant in some other than the prohibited way, but even if the evidence is so relevant it will not be admitted unless it is strongly probative or really material. This was the view accepted by four members of the Court in Markby v The Queen. The reason for requiring that the evidence should have a specially high probative value is succinctly expressed in an article by Mr Hoffmann in Law Quarterly Review, vol 91 (1975) 193, at p 194:
Ordinarily, similar fact evidence is excluded because it is very prejudicial. It is unfair to the accused to allow the jury to hear it because they are likely to give it more weight than it really deserves. But this unfairness disappears when the similar fact evidence actually does have a very high probative value, and in such exceptional cases justice requires it to be admitted.
The law now affords a double safeguard against the injustice that may be caused by evidence of this kind. First, there is a rule of admissibility which excludes, as a matter of law, evidence unless it is probative, and strongly probative, of the offence charged; it will not answer that description if it does no more than show bad character or propensity or disposition to commit crime, or the sort of crime charged. Further the trial judge has a discretion to exclude evidence which is admissible as a matter of law but whose prejudicial effect may be so great as to outweigh its probative value. …
[26] (1984) 152 CLR 528.
[27] Sutton v The Queen (1984) 152 CLR 528, 533-534.
However, in Sutton Dawson J went further and suggested that the required degree of probative force would only be achieved if there is no rational view of that evidence which is inconsistent with the guilt of the accused.[28] In Hoch v The Queen (Hoch), Mason CJ, Wilson and Gaudron JJ adopted that view and stated:[29]
… In Sutton, Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.
[Footnotes omitted]
[28] (1984) 152 CLR 528, 564. This approach may in fact be traced back to Murphy J in Perry v The Queen (1982) 150 CLR 580, 596, 598, 599.
[29] (1988) 165 CLR 292, 296.
Finally, in Pfennig v The Queen[30] (Pfennig) Mason CJ, Deane and Dawson JJ adopted and extended the reasoning in Hoch. Their Honours stated:
… the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.
[30] (1995) 182 CLR 461, 482-483.
One effect of the new provisions of the Evidence Act 1929 is to reverse the effect of this aspect of the decision in Pfennig. I will return to this matter later.
The rise of “relationship evidence” - the Nieterink doctrine
In the years leading up to the enactment of the Evidence (Discreditable Conduct) Amendment Act 2011, the admissibility of evidence of alleged uncharged acts by the accused upon a complainant was usually addressed by reference to the precepts adumbrated by Doyle CJ in R v Nieterink[31] (Nieterink).
[31] (1999) 76 SASR 56.
The process that had culminated in the decision in Nieterink was, of course, brought about by the perception that the test of admissibility for propensity evidence required by the decision in Pfennig was extraordinarily difficult to satisfy. Indeed, in Nieterink itself, Doyle CJ was of the view that the evidence in that case did not satisfy the test in Pfennig.
In Nieterink, Doyle CJ held that a category of evidence that may be referred to as “relationship evidence” (for the purposes of legal discussion rather than jury instruction) may be admissible without being subject to the (then prevailing) Pfennig test, provided that the actual evidence proposed to be adduced was truly relevant to an issue in the particular case under consideration. His Honour concluded that the evidence in the case of Nieterink itself was admissible on the following bases:[32]
[76]Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases. First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of R. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of R to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that R did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards R.
[32] (1999) 76 SASR 56, 72.
Doyle CJ emphasised the need for specific, targeted admissibility in a further final comment that he made a little later in his judgment:[33]
[80]… there can be no assumption that evidence of uncharged acts that put the charges in context is admissible. As Gaudron J and other judges have said, a basis for reliance and admissibility must be demonstrated. It may be easy to do so in a case like the case before the Court. But still, that must be done.
[33] (1999) 76 SASR 56, 72.
I note that the High Court in Roach v The Queen[34] (Roach) (in the context of non-sexual assault) adopted an approach to relationship evidence equivalent to that taken in Nieterink. In Roach, the male appellant was convicted of assault of his female partner after evidence of previous uncharged acts of assault by him over the course of that relationship was admitted over his objection. Admissibility in fact turned on the particular terms of the Queensland statute but the plurality judgment (French CJ, Hayne, Crennan and Kiefel JJ) is nevertheless of general assistance. Their Honours noted that the trial Judge admitted the evidence “…on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful incident. The evidence of the incident charged would otherwise appear to be given in a vacuum …” and agreed that this was an appropriate basis of admissibility. Their Honours further stated:[35]
[42]The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury. [Footnotes omitted]
[34] (2011) 242 CLR 610.
[35] Roach v The Queen (2011) 242 CLR 610, 624.
Their Honours noted that this approach was in accordance with the decision of the High Court in Wilson v The Queen[36] (a decision upon which Doyle CJ had relied in Nieterink). Their Honours noted both the permissible ambit of “relationship evidence” and the necessity for very careful directions:[37]
[45]In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it.
…
[47]The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
[48]The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant’s evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led “for a very specific purpose” and that they must be “very, very careful in relation to the limited use that [they] may make of such evidence.” He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but “to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006.” More specifically, his Honour said that otherwise they would consider the relationship of “boyfriend/girlfriend” had been on and off for about two and a half years, and then “on the Sunday evening out of the blue he suddenly attacked her with quite a degree of violence”. He said that their reaction to that might be to say “[w]ell, that's highly unlikely. That just doesn't make sense.” (Emphasis added; footnotes omitted)
[36] (1970) 123 CLR 334.
[37] R v Roach (2011) 242 CLR 610, 625.
I might observe that the example given immediately above of an allegation “simply not making sense” if divorced from the context of the violent relationship within which it occurred is, with respect, a cogent and useful one. As has elsewhere been observed, it is obviously not a matter of such evidence being admitted under a nebulous rubric of “relationship” or background evidence” as a matter of course; rather, admission of particular evidence must be clearly justified on the facts of the particular case and, of course, must pass the tests of admissibility under the new provisions of the Evidence Act 1929.
PART 4: EVIDENCE (DISCREDITABLE CONDUCT) AMENDMENT ACT 2011
The Evidence (Discreditable Conduct) Amendment Act 2011 inserted the following new Evidence Act 1929 provisions:
34O—Application of Division
(1)     This Division applies to the trial of a charge of an offence and prevails over any relevant common law rule of admissibility of evidence to the extent of any inconsistency.
(2)     This Division does not apply to—
(a)     evidence adduced pursuant to section 18; or
(b)evidence of the character, reputation, conduct or disposition of a person as a fact in issue.
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 substantially 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.
(4)     Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)     The court may, if it thinks fit, dispense with the requirement in subsection (4).
34Q—Use of evidence for other purposes
Evidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.
34S—Certain matters excluded from consideration of admissibility
Evidence may not be excluded under this Division if the only grounds for excluding the evidence would be either (or both) of the following:
(a)     there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant;
(b)     the evidence may be the result of collusion or concoction.
34T—Severance
Where—
(a)     2 or more defendants are charged in the same information: and
(b)     a party proposes to adduce discreditable conduct evidence; and
(c)     a defendant (the applicant) applies prior to or during a trial for a separate trial or for a charge to be severed from the information,
the court, when considering the application, must give strong weight to a real possibility that the applicant may be prejudiced by—
(d)     evidence proposed to be adduced by the prosecutor against another defendant which is not admissible against the applicant; or
(e)     evidence proposed to be adduced by another defendant which is not admissible against the applicant; or
(f) the applicant’s inability to adduce with respect to another defendant relevant evidence that would be admissible but for the operation of section 34P.
Introduction

Kellam J returned to a direct consideration of the summing up in Taylor itself and stated:[149]
[88]… the reference to the lost ability of police to fully investigate the events was irrelevant to the issue of forensic advantage suffered by the applicant. Certainly the direction contained many if not all of the necessary components of an appropriate Longman warning. The jury were directed as a matter of law that it was dangerous to convict on the evidence of a complainant alone unless having scrutinised the evidence with great care and having considered all the circumstances relevant to the evaluation of the evidence and paying heed to the warning they were satisfied of the truth and accuracy of the material facts. This part of the warning complied with the direction referred to in Longman. However, it was deprived of any great force by the introduction into the directions of the irrelevant matter of the lost opportunity of police to investigate.
[89]What had to be made clear to the jury was the fact that it was because of the delay and the consequent disadvantage to the accused that such scrutiny was required. As Winneke ACJ said in R v WEB:
This type of direction is calculated to bring to the forefront of the jury’s mind the primacy of the warning that it would be dangerous to convict the accused on the unsupported evidence of the complainant in the circumstances of the individual case. It is the unusual circumstances which have put the accused at a disadvantage in the trial — and not the scrutiny of the complainant’s evidence — which compel the warning of the dangers of convicting on unsupported evidence.
[90]Clearly those forensic disadvantages in this case included the lost opportunity on the part of the applicant to make inquiries at or close to the time of the alleged incidents. He had lost the ability to explore the alleged circumstances soon after the offences were said to have occurred. In relation to counts 1–5 the complainant was unable to identify the occasion on which the offences occurred with any specificity, thus making it difficult for the applicant to establish an alibi or raise any defence other than a simple denial. The complainant could not be medically examined close to the time of the alleged offences of rape. None of these forensic disadvantages were the subject of directions. Furthermore I consider that there is weight in the complaint made by the applicant that the Longman warning was diluted by a number of statements made by the trial judge.
[91]In my view and looked at as a whole, the directions given by the judge were far too equivocal to satisfy the requirement that the jury be given a warning, in an “unmistakable and firm voice” and which carried the imprimatur of the judge, of the danger of convicting the applicant in the particular circumstances of the case. The judge introduced her direction about the forensic disadvantage suffered by the applicant by reference to the loss of ability of the police to investigate fully the events in question. The necessity for the warning is that by reason of the long delay the fairness of the trial was necessarily impaired. By reason of that long delay the applicant had been denied the “forensic weapons that reasonable contemporaneity provides”. It is this disadvantage suffered by an accused which “a judge must recognise and to which an unmistakable and firm voice must be given in appropriate directions”.
[92]The irrelevant reference to problems faced by police did not make those matters clear to the jury and indeed, as is submitted on behalf of the applicant, may well have been interpreted by the jury as explaining and excusing any deficiencies in the Crown case. … [Footnotes omitted]
[149] R v Taylor (No 2) (2008) 18 VR 613, 639-640.
Hansen AJA concurred in this respect with Kellam AJ. Ashley JA also agreed with Kellam AJ and stated:[150]
[40]In my respectful opinion the judge’s charge was defective. Her Honour did give a charge nominally addressing s 61(1)(b) of the Act, did give a Kilby direction, and did give a Longman warning. But in my opinion the Longman warning was so diluted, by reference to an irrelevant circumstance, as to fail to achieve the purpose which it had to serve. Upon that issue, I respectfully agree with what Kellam JA has said. Although the judge directed the jury that it was dangerous to convict on the uncorroborated evidence of a complainant, and that it should not do so unless it was satisfied of the truth and accuracy of that evidence on all the material facts, that warning was given in the context of her Honour previously having said, in substance, that both the prosecution and the defence cases were or may have been impaired by the delay.
[150] R v Taylor (No 2) (2008) 18 VR 613, 621-622.
In the earlier decision in R v WEB to which Kellam AJ referred, Winneke ACJ had stated:[151]
[49]There seems to have developed a tendency among some judges in recent times, in circumstances where they accept that a Longman type warning is required, to dilute the warning in similar form to the one which was given here. Whether or not this is caused by a belief that a strong warning in a sexual assault case is tantamount to a reintroduction of the old rule of law or practice which required the judge to give a warning which suggested a sexual complainant to be unreliable, I do not know. It may be that it stems from a belief that a strong warning in the terms of Longman is too favourable for the accused. The fact is that the “Longman warning”, although in similar form to the former common law direction, is given for entirely different reasons. Whether a warning is called for, and in what terms, must of course be a matter for the trial judge in the circumstances of the case. But if, in the interests of fairness of the trial, a Longman type warning is called for, as the judge (in my view correctly) thought was the case here, that warning should be delivered in terms which are clear and concise, and achieve the impact which is required.
[151] (2003) 7 VR 200, 215.
Eames JA had there similarly stated:[152]
[53] The reticence of some trial judges to give the full Longman direction derives, it seems, from their concern that in so doing, and in giving the direction the weight of judicial authority, the direction might convey to the jury that it is the opinion of the trial judge that the jury should reject the evidence of the prosecution witnesses and acquit the accused. In my view, the direction is not intended to convey that message; to do so would be to usurp the function of the jury. The purpose of the Longman direction is to ensure a fair trial and to avoid miscarriages of justice. Trial judges are bound to give the direction, and with the full weight of their office, where, in the light of authority, the circumstances of a case require it to be given. The precise terms of the direction may well be modified according to the circumstances of the individual cases, but the requirement that the warning be backed by the weight of judicial authority is a mandatory feature of a full Longman warning. In this case there was no disagreement between counsel that a full Longman direction was required, and the judge agreed that it was necessary.
[54]It seems clear to me that the judge was endeavouring to provide such a Longman direction but did not want to convey to the jury the inappropriate impression to which I have earlier referred. In endeavouring to achieve both goals his Honour, with respect, unduly diminished the force of the warning which the judges in Longman required be conveyed. As a result, the jury was not told, with adequate clarity and emphasis, that by reason of the delay in this case it was judicial experience that it was dangerous to convict on the uncorroborated evidence of the complainants.
[152] R v WEB (2003) 7 VR 200, 216.
In the more recent Victorian decision in R v GVV, Lasry AJA (with whom Maxwell P and Ashley JA concurred) stated:[153]
[65] In this case, six to nine years had passed between the time of the alleged offences and the time of trial. As I have indicated, there is no question but that a warning of the kind identified in Longman was called for and the trial judge obviously accepted the need for it. In my opinion, the judgment of this court in R v Taylor (No 2) makes it clear that such a warning must be unequivocally favourable to the accused. This is not an occasion for balance between the parties. While the judgment of the court in that case was delivered on 23 April 2008, it confirmed existing principle. Each of Longman, Doggett, and Crampton demonstrate the need for the warning to be exclusively concerned with the forensic disadvantage to the accused.
…
[67]… the judgment of this court in R v Taylor (No 2) makes it clear that such a warning is required to be put to a jury with the forensic disadvantage of the accused highlighted in its own right, and not diluted by any reference to similar disadvantages which may have also afflicted the prosecution.
[153] (2008) 20 VR 395, 411-412.
Conclusion as to ground 4
In R v Cassebohm, after considering the facts there involved, Doyle CJ concluded:[154]
[37]… When one considers the passage as a whole, one sees that the judge has not explained to the jury the nature of the forensic disadvantage, and has not tied his direction adequately to the circumstances of the particular case. I also consider that the direction should have been more emphatic in its terms than it was.
[38]The result of the passage of time was an important aspect of this case, and was an important matter for the defence. I consider that the judge’s direction was inadequate in that respect and, unfortunately, because of the importance of this aspect of the case, gives rise to a real risk of a miscarriage of justice.
[154] (2011) 109 SASR 465, 476.
In the present case, I have come to the same conclusion as Doyle CJ, although for somewhat different reasons. Although I am sure that the learned trial Judge here did not intend it, the result of the combination of the above matters to which I have referred was to produce a s 34CB direction that was both skewed and inadequate. As in R v Cassebohm, this aspect of the case was important and accordingly there was a real risk of a miscarriage of justice.
PART 9: CONCLUSION AND ORDERS ON THE APPEAL
The appellant has succeeded on each of his grounds of appeal. The proviso can have no application in the present circumstances.
No ground justifying the entry of an acquittal has been made out in relation to any of the counts and accordingly there should be an order for re-trial. For the reasons explained above, that order should require that Counts 1 to 6 inclusive be tried before one jury and Counts 7 to 9 inclusive be tried before a different jury
STANLEY J. I would allow the appeal. I agree with the orders proposed by Peek J and his reasons