R v Marshall

[2023] SASCA 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v MARSHALL

[2023] SASCA 105

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)

27 September 2023

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 maintaining an unlawful sexual relationship with two children under s 50 of the Criminal Law Consolidation Act 1935 (SA).

On a hearing conducted pursuant to s 131 of the Criminal Procedure Act 1921 (SA) (CPA), the primary judge ruled that the accounts of the two complainants were not cross-admissible and ordered that each count be separately tried pursuant to s 102 of the CPA.

The Director of Public Prosecutions (SA) seeks permission to pursue an interlocutory appeal against the ruling pursuant to ss 157(1)(e) and 157(3) of the CPA.

As an alternative, the Director sought judicial review of the primary judge’s order.

HELD (the Court) granting permission to appeal and allowing the appeal:

1.Section 157(1)(e) must be seen as an important new right of appeal concerning interlocutory judgments made in a criminal proceeding that can only be exercised by the DPP with permission granted pursuant to s 157(3) of the CPA.

2.The order that there be separate trials is an “interlocutory judgment” within the meaning of s 157(1)(e) of the CPA, with the result that the Director’s appeal is competent.

3.The case concerns serious charges, each carrying maximum penalties of life imprisonment. The order is of real importance to the prosecution of these charges. If there should be one trial rather than two it is in the public interest to order one trial. It is preferable that the charges be prosecuted with the benefit of rulings on cross-admissibility and severance which are free from error and in accord with the law. On balance, it is “otherwise in the interests of justice” to entertain the DPP appeal in this matter pursuant to s 157(3)(b) of the CPA.

4.The primary judge erred in finding that the probative value of the evidence did not outweigh its prejudicial effect on a similarity of account basis pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). The charges should be tried together.

5.Observations made about what kinds of decisions comprise an “interlocutory judgment”, as distinct from incidental rulings about evidence or procedure, and about the requirements for permission to appeal.

6.Consideration given to the Criminal Justice Report produced by the Royal Commission into Institutional Responses to Child Sexual Abuse and interstate interlocutory appeal provisions.

7.Observations made about the effect of the removal of the word “substantially” from s 34P(2)(a) of the Evidence Act 1929 (SA).

8.      The Director’s application for judicial review is dismissed.

Criminal Appeal Act 1912 (NSW) (NSW) s 5F; Criminal Procedure Act 2009 (Vic) (Vic) s 295; Criminal Appeals Act 2004 (WA) (WA) s 26; Criminal Code Act 1899 (Qld) (Qld) s 590AA, 668A; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) s 157; Evidence Act 1929 (SA) s 34P; Joint Criminal Rules 2022 (SA) r 204.2; Legislation Interpretation Act 2021 (SA) s 16; Statutes Amendment (Attorney-General's Portfolio) Act 2012 (SA) s 23; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), referred to.
AEU v Department of Education and Children’s Services (2012) 248 CLR 1; AF v R [2015] NSWCCA 35; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Ames v The King [2023] SASCA 85; Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90; Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1; Bell v The King [2023] SASCA 86; BHP Billiton Ltd v Schulz (2004) 221 CLR 400; BHP Group Ltd v Impiombato (2022) 96 ALJR 956; Bozatsis and Spanakakis (1997) 97 A Crim R 296; BRK (No 2) v Police (No 2) [2020] SASC 151; Carr v Finance Corp of Australia (1981) 55 ALJR 397; Certain Lloyd’s Underwriters v Cross [2012] 248 CLR 378; CGL v DPP (No 2) (2010) 24 VR 482; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; De Jesus v The Queen (1986) 61 ALJR 1; DES v The Queen [2020] SASCFC 32; Director of Public Prosecutions v Paulino (2017) 54 VR 109; ENT19 v Minister for Home Affairs [2023] HCA 18; FCT v Consolidated Media Holdings (2012) 250 CLR 503; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Fox v Percy (2003) 214 CLR 118; George (a pseudonym) v The Queen [2022] SASCA 66; Graziano v Graziano [2008] SASC 142; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; Hoch v The Queen (1998) 165 CLR 292; Holder v Lewis (2003) 231 LSJS 431; Holder v Lewis [2003] SASC 397; House v The King (1936) 55 CLR 499; Ibrahim v Medical Board of Australia [2015] NSWCA 207; K-Generation Pty Ltd. v Liquor Licensing Court (2009) 237 CLR 501; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Martin v Employers Mutual Ltd (2012) 112 SASR 436; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; McIlvar v Szwarcbord (2008) 186 A Crim R 106; McLeod v Legal Profession Conduct Commissioner [2016] SASC 151; MDM v R (2020) 136 SASR 360; Mickelberg v The Queen (No 3) (1992) 8 WAR 236; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; Phillips v The Queen (2006) 225 CLR 303; PJ v R [2023] NSWCCA 105; Police v Dorizzi (2002) 84 SASR 416; Project Blue Sky Inc v ABA (1998) 194 CLR 355; Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135; R v Armistead [2019] SASCFC 85; R v C, CA [2013] SASCFC 137; R v Fitzgerald & Fleming [2023] SASCA 34; R v Henderson [2023] SASCA 42; R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835; R v Lambeth Metropolitan Stipendiary Magistrate; Ex Parte McComb [1983] QB 551; R v Maiolo (No 2) (2013) 117 SASR 1; R v N, SH [2010] SASCFC 74; R v Nieterink (1999) 76 SASR 56; R v Pacitti [2022] SASCA 108; R v PRM (No 2) [2022] SADC 91; R v PV; Ex parte Attorney-General (Qld) [2005] 2 Qd R 325; R v PWD (2010) 205 A Crim R 75; R v RAG [2006] NSWCCA 343; R v S, NH [2010] SASCFC 74; R v Steffan (1993) 30 NSWLR 633; Re Bonny [1986] 2 Qd R 80; Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131; Sankey v Whitlam (1978) 142 CLR 1; SC v R (2020) 104 NSWLR 257; Sexton v The Queen [2022] SASCA 73; Slape v The Queen [2022] SASCA 91; Smith v The Queen (2001) 206 CLR 593; State of Western Australia v JHN [2021] WASCA 225; Stokes v Samuels (1973) 5 SASR 18; Taylor v Attorney-General for the Commonwealth (2019) 268 CLR 224; Taylor v Owners-Strata Plan 11564 (2014) 253 CLR 531; The King v Snow (1915) 20 CLR 315; The Queen v A2 (2019) 269 CLR 507; The Queen v Denis Bauer (A Pseudonym) (2018) 266 CLR 56; The Queen v Elliott (1996) 185 CLR 250; WCM v Western Australia [2015] WASCA 55; Wells v The Queen (No 2) [2010] VSCA 294; ZL v The Queen (2010) 208 A Crim R 325, considered.

R v MARSHALL
[2023] SASCA 105

Court of Appeal - Criminal:  Livesey P, David JA and Kimber AJA

THE COURT:

Introduction

1. The respondent has been charged with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).  Each count relates to a different girl, each a daughter of a woman with whom the respondent was in an intimate relationship during each period of alleged offending.

2. On 31 March 2023, a District Court judge ruled that the evidence of each complainant was not cross-admissible and did not have a permissible use under s 34P of the Evidence Act 1929 (SA) (the Evidence Act).  In consequence, the primary judge ordered that each count be separately tried.

3. By a notice of appeal dated 21 April 2023, the Director of Public Prosecutions (SA) (DPP or Director) seeks permission to appeal that order. The appeal is not competent unless the order made on 31 March 2023 comprised an “interlocutory judgment” within the meaning of s 157(1)(e) of the Criminal Procedure Act 1921 (SA) (the CPA). Whether permission to appeal should be granted depends upon whether the Court of Appeal is satisfied that the case comes within one of the two limbs of s 157(3) of the CPA, failing which permission to appeal cannot be granted.

4. As will be seen, the order that there be separate trials is an “interlocutory judgment” within the meaning of s 157(1)(e) of the CPA.

5. This Court is usually reluctant to entertain any interlocutory appeal or reservation of a question in a criminal case, whether by the prosecution or by the defence, particularly where it challenges an incidental evidentiary or procedural ruling and entertaining the appeal has the effect of delaying and fragmenting the criminal proceeding.[1] Nonetheless in the particular circumstances of this case it is, on balance, “otherwise in the interests of justice” under s 157(3)(b) of the CPA to entertain this interlocutory appeal against the order that there be separate trials. Permission to appeal should be granted.

   [1]     In Sankey v Whitlam (1978) 142 CLR 1, 25-26 Gibbs ACJ referred to a “regrettable example of the delay that can be caused by departures from the normal course of procedure”. See also The Queen v Elliott (1996) 185 CLR 250; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis (2003) 231 LSJS 431; Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90, [9] (Nicholson, Parker and Lovell JJ), “… the power to direct a judge to reserve a question of law during the course of a criminal trial is only to be exercised in unusual or exceptional circumstances. Undue fragmentation of or interference with the conduct of a criminal trial is to be avoided”; and Bell v The King [2023] SASCA 86, [24] (Lovell, David JJA and Stanley AJA), regarding the power to refer questions for consideration and determination by the Court of Appeal under s 153 of the CPA.

6. For the reasons that follow, the appeal should be allowed. The evidence of each complainant was cross-admissible under s 34P(2)(a) of the Evidence Act on the ground of improbability or similarity of account reasoning.[2]  There should be an order that the counts be tried together.

   [2]     That is, what might be described as “coincidence” reasoning under the Uniform Evidence Acts.

7. The DPP made an application for judicial review, which was pressed only as an alternative to the interlocutory appeal.  As will be seen, it is appropriate to dismiss that application.

8. These reasons are set out as follows:

   Introduction

   The circumstances of the alleged offending

   The reasons of the primary judge

   The Director’s power to pursue an interlocutory appeal

   The extrinsic material – the Second Reading speech and the Royal Commission Report

   The text of the DPP’s interlocutory appeal power

   The meaning of “interlocutory judgment” – competence of this appeal

   Some South Australian authorities on “judgment”

   Some interstate provisions

   Conclusions on competency

   The question of permission to appeal under s 157(3) of the CPA

   The appeal in this case – whether the charges should be separately tried

   The orders that should be made

   The application for judicial review

   Conclusion

   The circumstances of the alleged offending

9. Each count of maintaining an unlawful sexual relationship with a child carries a maximum penalty of life imprisonment.  On an ex officio Information dated 23 March 2022, the particulars of count 1 are as follows:

   Colin David Marshall between the 8th day of April 2000 and the 30th day of September 2005 at Burton, Wingfield, and Riverton, maintained an unlawful sexual relationship with [the first complainant], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:

   (a)      Kissing her on the mouth on more than one occasion;

   (b)     Touching her vagina on more than one occasion;

   (c)      Inserting a finger into her vagina;

   (d)     Inserting his penis into her vagina on more than one occasion;

   (e)      Attempting to cause her to touch his penis on more than one occasion; and

   (f)      Causing her to touch his penis on more than one occasion.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

10. Between 8 April 2000 and 30 September 2005, the first complainant was between seven and 12 years. 

11. The particulars of count 2 are as follows:

    Colin David Marshall between the 1st day of May 2006 and the 31st day of October 2013 at Rosewater, Taperoo, Wingfield, Port Hughes, Port Broughton, Semaphore, or other places, maintained an unlawful sexual relationship with [the second complainant], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:

    (a)      Touching her vagina on more than one occasion;

    (b)     Inserting a finger into her vagina on more than one occasion;

    (c)      Causing her to perform an act of fellatio upon him on more than one occasion;

    (d)     Performing an act of cunnilingus upon her on more than one occasion;

    (e)      Using a vibrator on her vagina on more than one occasion;

    (f)      Showing pornographic material to her on more than one occasion; and

    (g)     Attempting to insert his penis into her vagina

    This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

12. Between 1 May 2006 and 31 October 2013, the second complainant was between six and 13 years. 

13. The primary judge summarised the evidence of each complainant in the following way:[3]

    In summary, [the first complainant] alleges the accused offended against her frequently and recalls individual occasions of abuse including instances when the accused kissed her on the mouth, touched her vagina area on many occasions, digitally penetrated her vagina on one occasion, attempted to insert his penis into her vagina on more than one occasion, and did so on one occasion, and an occasion when he caused her to masturbate him. The offending occurred in the parental bed, her own bed, on the couch in a lounge room, and at the accused's workplace in an office and in a toilet area. Further, there was an occasion when the accused attempted to put his hands down her pants at his workplace stopping only when a customer entered. At times the alleged offending took place at home when other persons were in the house and in the same room. The accused told [the first complainant] not to tell anyone about the offending. The offending occurred as much as two to three times a week with the frequency depending on opportunity.

    [The second complainant] alleges the accused offended against her frequently. The offending included occasions when the accused digitally penetrated her vagina, including while he watched pornographic videos on a computer. It is alleged that he caused [the second complainant] to perform fellatio on him, that he performed cunnilingus on her and that he used sex toys on her. [The second complainant] described the offending occurring in the parental bed, loungeroom, bedroom, laundry, bathroom, in the accused’s workplace office, a caravan and a van. [The second complainant] alleged that at times the offending occurred when other people were in the house, including an occasion when the offending occurred in her parents' bedroom, while her mother was having a bath.  [The second complainant] described the offending to have occurred about twice a week while they lived at one address.

    [3]     R v Marshall [2023] SADC 30, [25]-[26].

14. At the time of the hearing before the primary judge, only the second complainant suggested that the respondent’s offending involved the use of a “sex toy”.  During the hearing before this Court, it was accepted that the prosecution proposed to lead evidence of an occasion when the respondent allegedly showed the first complainant a sex toy.

15. As mentioned, the mother of each complainant was, at the time of the alleged offending, in an intimate relationship with the respondent.  The respondent was described as the step-father of each complainant.  The periods of the alleged offending are sequential.  They equate to the periods of the successive relationships.  The complainants were known to each other, having met during the latter period of alleged offending.  On occasions during that period, the respondent’s son, the younger brother of the first complainant, visited the respondent.  The first complainant accompanied her brother on some of those visits.

16. Before considering whether the appeal is competent, and the question  whether permission to appeal should be granted, it is first necessary to address the reasons of the primary judge and the legislation relevant to her ruling.

    The reasons of the primary judge

17. In careful, detailed reasons delivered promptly following argument, the primary judge determined that the evidence of each complainant was not cross‑admissible.  Accordingly, although the matter was “not without difficulty”, her Honour concluded that there should be separate trials:[4]

    I have considered each of the matters advanced by the prosecution in favour of cross admissibility, both individually and collectively. The matter is not without difficulty. While there are a few relevant parallels, I am ultimately not satisfied that those similarities render the hypothesis that the complainants independently fabricated, imagined or were otherwise mistaken about the offences so improbable, that the probative value of the evidence outweighs its prejudicial effect.

    The discretion to order a separate trial of the charges arises as the evidence related to each count is not admissible in relation to the other. As there is a risk of impermissible prejudice to the accused if the charges remained joined, I order that the charges be severed and there be separate trials.

    [4]     R v Marshall [2023] SADC 30, [55]-[56].

18. This ruling was made in a context where the prosecution had submitted that the common features of the accounts of the complainants demonstrated the improbability that the conduct about which they complained was concocted or imagined independently of each other and was, accordingly, “cross-admissible” pursuant to s 34P(2)(a) of the Evidence Act.

19. By contrast, the respondent had sought separate trials, submitting that the asserted similarities in the accounts of each complainant were not “sufficiently remarkable to justify cross-admissibility” under s 34P(2)(a). Section 34P provides:

    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.

    (4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue 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).

1. As is well-known, a trial judge must, whether or not sitting with a jury, identify and explain the purpose for which evidence may, and may not, be used if it is admitted under s 34P; see s 34R:

   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.

2. This case is not concerned with the directions or warnings that must be given at trial under s 34R of the Evidence Act.

3. The joinder or separation of charges is addressed by s 102 of the CPA. By s 102(1), joinder on the same information is permitted where the charges are or form part of “a series of offences of the same or a similar character”:

   Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.

4. There was no issue about the propriety of initial joinder in this case. The court’s power to order that charges contained in a single information be dealt with in separate proceedings, or that charges in separate informations be dealt with in the same proceedings, is addressed by s 102(5):

   A court may direct that—

   (a)charges contained in a single information be dealt with in separate proceedings; or

   (b)charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).

5. Relevantly for present purposes, the requirement that sexual offences involving different alleged victims be tried together is contained in s 102(6):

   Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:

   (a)subject to paragraph (b), those counts are to be tried together;

   (b)the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.

6. The term “sexual offence” is defined by s 102(9) in a way that includes an offence against s 50 of the Criminal Law Consolidation Act 1935 (SA).

7. The primary judge commenced with the proposition that where sexual offences are charged on one information, and they concern different complainants, the general rule is that they ought not be tried together if the evidence on one count is not admissible on another.[5] Her Honour held that it followed that, if the evidence was not cross-admissible, an accused may be very likely to succeed with an application for severance under s 102(6) of the CPA.[6]

   [5]     De Jesus v The Queen (1986) 61 ALJR 1, 7 (Brennan J); R v Maiolo (No 2) (2013) 117 SASR 1, [42]‑[43] (Peek J, with whom Kourakis CJ and Stanley J agreed).

   [6]     MDM v R (2020) 136 SASR 360, [64] (Peek J).

8. That in any event is the effect of s 102(6)(b) of the CPA.[7]

   [7]     But see R v S, NH [2010] SASCFC 74, [44] (Sulan, Anderson and David JJ), “the insertion of [the] subsection … does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases”.

9. As the primary judge observed, the version of s 34P(2)(a) that she was required to address no longer contained the word “substantially”, with the result that the court was required to be satisfied that the probative force of the evidence outweighed its prejudicial effect. The court is no longer required to consider whether the probative force of the evidence substantially outweighs its prejudicial effect.[8]  It will be necessary to return to that issue.

   [8]     R v Marshall [2023] SADC 30, [16].

10. It was accepted that the prejudicial effect of evidence in cases such as these primarily lay in the antipathy that multiple allegations of sexual wrongdoing may engender, with the associated potential for the finder of fact to be distracted from any defects or frailties otherwise contained in the evidence.[9]

    [9]     R v C, CA [2013] SASCFC 137, [61] (Kourakis CJ, with whom Anderson J agreed).

11. The focus of the Director’s challenge was on the analysis undertaken by the primary judge concerning the probative value of the evidence, together with its permissible use.  The primary judge explained that the requisite approach to the admissibility of “similarity of account evidence” had been summarised by the Chief Justice in R v C, CA in the following terms:[10]

    The question governing the admissibility of similarity of account evidence is therefore whether the accounts of the complainants have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. The prejudice lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence. It is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score. The prejudice engendered by multiple counts relating to different complainants poses less risk on the issue of collusion. A defence of collusion undermines the very similarity on which the prosecution relies. The question of collusion can be evaluated relatively free of the prejudice engendered by the allegations.

    …

    The question is not whether the accounts establish a unique modus operandi, nor is the assessment of the similarities to be approached in the abstract by counting and comparing points of similarity and dissimilarity which have no bearing on the improbability of independent fabrication like the fact that the complainants did not live with their fathers. The question is whether as a matter of human experience the levels of similarity between the complaints might be expected if the complainants for reasons, conscious or sub-conscious, which are peculiar to them, had independently concocted or imagined the offending which they alleged.

    [10]   R v C, CA [2013] SASCFC 137, [61], [65] (Kourakis CJ, with whom Anderson J agreed). See also DES v The Queen [2020] SASCFC 32 (Kourakis CJ, Doyle and Livesey JJ) and Slape v The Queen [2022] SASCA 91, [67] (Doyle, Bleby and David JJA).

12. The primary judge explained her approach to the evidence of each complainant as follows:[11]

    In comparing the accounts, the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse or characteristics of the complainants, and the focus must be upon the similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion.[12]

    In the circumstances of R v C, CA[13] for example, the fact that the three complainant boys were of a similar age, did not have a father figure in their lives, were all acquaintances of the accused’s foster son, and all accompanied the accused on outings, were held not to be probative similarities relevant to improbability reasoning and so on.[14]

    The focus must be on the “peculiarity and detail” of the narrative accounts, rather than features that are commonplace and unremarkable.[15]

    [11]   R v Marshall [2023] SADC 30, [18]-[20].

    [12]   R v C, CA [2013] SASCFC 137, [93]. See also DES v R [2020] SASCFC 32.

    [13]   R v C, CA [2013] SASCFC 137, [61].

    [14]   R v C, CA [2013] SASCFC 137, [61].

    [15]   R v N, SH [2010] SASCFC 74, [54].

13. It will be necessary to return to aspects of this reasoning in so far as it was challenged by the Director. 

14. After identifying the similarities relied on by the prosecution, particularly that allegations of sexual abuse were being made by young female complainants against their step-father, the primary judge again explained that her approach concentrated on the accounts of each complainant, and not the frequency of the offending:[16]

    Those matters are similarities, but none relate to a similarity in the accounts of the alleged offending that bears on improbability reasoning.

    The relevant similarities are only those appearing within the narrative of allegations made by each of the relevant complainants that make it improbable that each complainant would have independently falsified to that same level of detail.[17]

    The prosecution submitted that a similarity between the accounts was found in the frequency of the alleged offending. The accounts were similar in this regard however, the focus must be upon the degree of similarity between the allegations of abuse, rather than the number of regularity of the instances of alleged abuse and be on the similarity that bears upon the improbability of fabrication, coincidence or collusion.[18] 

    [16]   R v Marshall [2023] SADC 30, [29]-[31].

    [17]   MDM v R (2020) 136 SASR 360.

    [18]   DES v The Queen [2020] SASCFC 32, [70].

15. Her Honour found, in addition, that the allegation that the offending occurred in each family home was “not a feature that bears upon the improbability of fabrication, coincidence or collusion”.[19]  Her Honour then concluded her analysis with the following list of similarities:[20]

    The matters that might be said to make it improbable that each complainant has falsified the account include the following similarities in the accounts which alleged:

    1.     The accused orchestrated opportunities to offend

    2.     The similar nature of alleged touching

    3.     That offending occurring at the accused's workplace, and

    4.     That the conduct was brazen and involved a high risk of discovery.

    [19]   R v Marshall [2023] SADC 30, [32].

    [20]   R v Marshall [2023] SADC 30, [33].

16. Thereafter, the primary judge undertook a careful and detailed analysis of each listed issue, addressing the similarities and differences arising on each complainant’s account before reaching her conclusion in the terms earlier set out.[21]

    [21]   R v Marshall [2023] SADC 30, [55]-[56].

17. The trials in these matters have been delayed until next year.  Whether they were deferred because of the Director’s application for permission to appeal is not known, but that seems likely.

    The Director’s power to pursue an interlocutory appeal

18. The Director’s new right of appeal was introduced as part of the Statutes Amendment (Child Sexual Abuse) Act 2021 (SA).[22] Sections 157(1)(e) and 157(3) of the CPA came into operation on 1 June 2022:[23] 

    (e)     subject to subsection (3), the Director of Public Prosecutions may, with the permission of the [Court of Appeal][24], appeal against an interlocutory judgment.

    …

    (3)The [Court of Appeal] may only grant permission for an appeal under subsection (1)(e) if satisfied that—

    (a)     the interlocutory judgment destroys or substantially weakens the prosecution case in respect of any charge and, if correct, is likely to lead to abandonment of that charge; or

    (b)     it is otherwise in the interests of justice to do so.

    [22]   The Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) received assent on 9 Dec 2021, s 11.

    [23]   Government Gazette (SA) 17 February 2022, p 490.

    [24] Although these provisions refer to the Full Court, they must be taken to mean the Court of Appeal in which the appellate jurisdiction of the Supreme Court in criminal cases is generally now reposed, see ss 19B and 50 of the Supreme Court Act 1935 (SA), s 43 of the District Court Act 1991 (SA) and r 192.2 of the Joint Criminal Rules 2022 (SA).

19. By the same Act, the word “substantially” was deleted from s 34P(2)(a) of the Evidence Act.[25] 

    [25]   Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), s 17.

20. Although the title of the amending legislation and the Second Reading speech emphasise the prosecution of child sexual abuse offences, the provisions are not confined in that way.  They are capable of applying to any criminal prosecution.

21. Though the provisions are concerned with criminal appeal litigation, they must be construed by reference to the ordinary principles of statutory construction.[26] 

    [26]   The Queen v A2 (2019) 269 CLR 507, [52].

22. The task for this Court is to attribute legal meaning to statutory text, read in context.[27] Section 14 of the Legislation Interpretation Act 2021 (SA) requires that “the interpretation that best achieves the purpose of the Act … is to be preferred to any other interpretation”. The best guide to a statute’s purpose and the legislative intention it reflects resides in its text and structure, read in context.[28]

    [27]   Taylor v Owners-Strata Plan 11564 (2014) 253 CLR 531, [65].

    [28]   Certain Lloyd’s Underwriters v Cross [2012] 248 CLR 378, [25]-[26].

23. The first stage is a consideration of the context.[29]  In that connection, a reference to context must be understood in its wider sense, embracing any relevant legislative history, the purpose and policy of the provisions, the mischief they are intended to remedy, any relevant surrounding statutory provisions as well as a reading of the statute as a whole.[30] 

    [29]   Project Blue Sky Inc v ABA (1998) 194 CLR 355, [69]; The Queen v A2 (2019) 269 CLR 507, [33].

    [30]   CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47]; The Queen v A2 (2019) 269 CLR 507, [33], [124].

24. An understanding of the context of the new provisions will accordingly assist in fixing meaning to the statutory text.[31]  Indeed, in some cases, a consideration of the statutory context as well as the ordinary principles of statutory construction may require a court to adopt a construction that departs from the literal meaning of the words used.[32]

    [31]   FCT v Consolidated Media Holdings (2012) 250 CLR 503, [39].

    [32]   ENT19 v Minister for Home Affairs [2023] HCA 18, [86]-[87].

25. The new provisions are concerned with a right of appeal.  Rights of appeal are creatures of statute.  Their scope must be determined by the provisions enlivening and governing the jurisdiction of the appeal court, together with any relevant rules of court.[33] The analysis of the statutory context must commence with recognition of the limited opportunities available to litigants to pursue interlocutory appeal rights under the CPA.

    [33]   Fox v Percy (2003) 214 CLR 118, [20].

26. The general policy is that a criminal proceeding, once commenced, should ordinarily proceed to verdict. A convicted person may then appeal as of right on any ground involving a question of law alone, s 157(1)(a)(i), or with permission on any other ground, s 157(1)(a)(ii) of the CPA. By recourse to these provisions, a convicted person can challenge orders, rulings and other decisions made before or during the trial where material error or a miscarriage of justice can be shown: see the common form criminal appeal provision, s 158(1) of the CPA.

27. In South Australia, the DPP was only relatively recently granted the right to appeal an acquittal, with permission, following a trial by judge alone, or where the judge directed the jury to acquit, s 157(1)(b) of the CPA.[34] Ancillary to this is the right of the Attorney-General or the DPP to ask a court before which a person has been acquitted to reserve for consideration by the Court of Appeal a “question antecedent to trial” or, a question “arising in the course of the trial”, s 153(4) of the CPA.

    [34]   Overcoming The King v Snow (1915) 20 CLR 315, 324 (Griffith CJ) to the effect that the judge’s directions on a directed acquittal could not be appealed as an error on a question of law. Before the Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) introduced s 352(1)(ab) (the counter-part to s 157(1)(b) of the CPA), Lander J explained in Police v Cadd (1997) 69 SASR 150, 185, “The Crown, and more lately the Director of Public Prosecutions, has never had a right in this State to appeal against a verdict of acquittal in the Supreme Court and District Court and has only ever had a limited right to seek leave to appeal against a sentence consequent upon a conviction in those courts.”

28. A convicted person or the DPP may, with permission, also appeal against sentence, see 157(1)(a)(iii) and 157(2) of the CPA.

29. The scope for the DPP to pursue an appeal following conviction or sentence is, however, tempered by the need to address double jeopardy considerations associated with the public interest in ensuring that a defendant is not twice vexed by the State.[35]

    [35]   For example, as to acquittals, see R v Fitzgerald & Fleming [2023] SASCA 34, [54] (and the authorities cited) and, as to sentence, see R v Henderson [2023] SASCA 42, [34]-[46] (and the authorities cited).

30. Within this context it can be seen that there are only a handful of provisions which permit the prosecution to challenge interlocutory decisions, including by way of an appeal or the reservation of relevant questions. It should be noted that despite the apparent breadth of the term “issue antecedent to trial”, it is confined by s 151 to stays by reason of an abuse of process:[36]

    1.By s 132 of the CPA, a “determination or order” made by a judge of a superior court in proceedings dealing with charges laid by information pursuant to s 131 is binding on the judge presiding at the trial unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding, or the determination or order is inconsistent with an order previously made on appeal.[37]

    2.A court by which a person “has been or is being tried, or is to be tried or sentenced” for an indictable offence may ask the court to reserve for consideration and determination by the Court of Appeal “a relevant question” on an “issue antecedent to trial” or, on an issue “relevant to the trial or sentencing of the defendant”, ss 153(2) and 153(5). Unless required to do so by the Court of Appeal, a court must not reserve a question if it “would unduly delay the trial or sentencing of the defendant”, s 153(3) of the CPA. The procedure for the presiding judge to state a case and the powers available to the Court of Appeal on a case stated are addressed by ss 154 to 156 of the CPA.[38]  

    3.Where a court makes a decision on “an issue antecedent to trial” the DPP’s appeal is available as of right on any ground that involves “a question of law alone” or on any other ground with the permission of the Court of Appeal, ss 157(1)(c) and 158(6) of the CPA.[39] 

    4.By contrast, the defendant may only appeal a decision on an “issue antecedent to trial” before the commencement or completion of the trial with permission of the court of trial, which is only to be granted if it appears there are “special reasons why it would be in the interests of the administration of justice” to have the appeal determined before the trial is commenced or completed, s 157(d) of the CPA.

    [36] By s 151 of the CPA the term “issue antecedent to trial” is defined as a question as to whether proceedings on an information, or a count on an information, “should be stayed on the ground that the proceedings are an abuse of process of the court”.

    [37]   R v Armistead [2019] SASCFC 85, [65]; R v PRM (No 2) [2022] SADC 91, [18]-[20]; R v Pacitti [2022] SASCA 108.

    [38]   See, for example, George (a pseudonym) v The Queen [2022] SASCA 66 and Bell v The King [2023] SASCA 86.

    [39]   R v Clark [2023] SASCA 15, is a recent example of a case where the trial judge ordered a stay of various counts of theft which was overturned on appeal.

1. Unless the Director is able to challenge a determination or order under s 132, or to exercise the power to reserve a relevant question under s 153, there is limited scope for the Director to challenge rulings, orders or judgments that may have the effect of destroying or substantially weakening the prosecution case. The “case stated” procedure has, apart from cases involving stays, been confined to questions of law with widespread implications for the administration of criminal justice in South Australia.[40]

   [40]   See, for example, Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135. As for s 49 of the Supreme Court Act 1935 (SA), see R v Millhouse (1980) 24 SASR 555, 556; Martin v Employers Mutual Ltd (2012) 112 SASR 436; BRK (No 2) v Police (No 2) [2020] SASC 151, [9]-[14].

2. In that context, s 157(1)(e) must be seen as an important new right of appeal concerning interlocutory judgments made in a criminal proceeding that can, however, only be exercised by the DPP with permission granted pursuant to s 157(3) of the CPA.

3. The Director submitted that this Court should be slow to give effect to any interpretation of s 157(1)(e) that had the effect of reading down the provision and unduly confining the jurisdiction Parliament intended to confer.[41] The assessment of that submission inevitably turns on the ordinary meaning of the provision, informed by the extrinsic material which may be reviewed and relied on for the purposes permitted by s 16 of the Legislation Interpretation Act 2021 (SA).

   [41]   Cf Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, 421; BHP Group Ltd v Impiombato (2022) 96 ALJR 956, [29]ff.

   The extrinsic material – the Second Reading speech and the Royal Commission Report

4. Pursuant to s 16 of the Legislation Interpretation Act 2021 (SA), material not forming part of the Act may be considered if it is capable of assisting in the ascertainment of the meaning of a provision. That is to say, that material may be considered to confirm that the meaning of the provision is the ordinary meaning (s 16(1)(a)) or to determine the meaning if the provision is ambiguous or obscure, or if the ordinary meaning leads to a result that is manifestly absurd or is unreasonable (s 16(1)(b)).

5. The material that may be considered in accordance with s 16(1) includes, among other things, any relevant report of a Royal Commission (s 16(2)(b)) and a second reading speech (s 16(2)(f)). Section 16 of the Legislation Interpretation Act 2021 is in the following terms:

   16—Use of extrinsic material in interpretation

   (1)In the interpretation of a provision of an Act or a legislative instrument, if any material not forming part of the Act or instrument is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

   (a)     to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); or

   (b)     to determine the meaning of the provision—

   (i)if the provision is ambiguous or obscure; or

   (ii)if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made) leads to a result that is manifestly absurd or is unreasonable.

   (2)Without limiting the effect of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision includes the following:

   (a) all matters not forming part of the Act or instrument that are set out in the document containing the text of the Act or instrument as printed or published by the Government Printer or as published under the Legislation Revision and Publication Act 2002;

   (b)     any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the provision was enacted or made;

   (c)     any relevant report of a committee of the Parliament or of either House of the Parliament before the provision was enacted or made;

   (d)     any treaty or other international agreement that is referred to in the Act;

   (e)     any explanatory memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made;

   (f)     the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House;

   (g)     any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section;

   (h)     any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

   (3)In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard must be had, in addition to any other relevant matters, to—

   (a)     the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); and

   (b)     the need to avoid prolonging legal or other proceedings without compensating advantage.

6. While s 16 arguably permits greater access to extrinsic materials than was permitted at common law,[42] perhaps with somewhat greater scope for their use in connection with the determination of the meaning of a provision, it remains the case that neither the second reading speech nor the extrinsic materials can be used as a substitute for the ordinary meaning conveyed by the text of the provision.[43]  As Nettle and Gordon JJ explained in Taylor v Attorney-General for the Commonwealth:[44]

   And, although this Court has acknowledged[45] a role for context in the first instance, it has also steadfastly maintained[46] that the meaning of the statutory text cannot be displaced by legislative history and extrinsic materials, much less one without the other.  The function of the Court is to give effect to the will of the Parliament as expressed in the law, not to bend it to accord to what an officer of the executive may have conjectured to be its meaning.[47]

   [42]   K-Generation Pty Ltd. v Liquor Licensing Court (2009) 237 CLR 501, [50]-[51]; AEU v Department of Education and Children’s Services (2012) 248 CLR 1, [33].

   [43]   Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131, [103]-[109] (Livesey JA, with whom Bleby JA agreed). See also Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416, 420 and Catlow v Accident Compensation Commission (1989) 167 CLR 543, [6] “if the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it”.

   [44]   Taylor v Attorney-General for the Commonwealth (2019) 268 CLR 224, [87] (Nettle and Gordon JJ).

   [45]   CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

   [46]   Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

   [47]   Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ); Singh v The Commonwealth (2004) 222 CLR 322, 336 [19] (Gleeson CJ). See also Frankfurter, “Some Reflections on the Reading of Statutes” (1947) 47 Columbia Law Review 527, 533.

7. In the course of his Second Reading Speech, the Treasurer explained that the reforms were proposed by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission):[48]

   The government is pleased to introduce the Statutes Amendment (Child Sexual Abuse) Bill 2021. The bill introduces a number of important reforms proposed by the Royal Commission into Institutional Responses to Child Sexual Abuse.  The royal commission was established in 2013 and undertook five years of inquiry into institutional responses and instances and allegations of child sexual abuse.  The royal commission delivered four sets of recommendations, one of which was contained in the Criminal Justice Report tabled in federal parliament on 14 August 2017.

   Many of the report’s recommendations are already in place in South Australia; however, a number still require legislative reform to be implemented.  The bill amends various acts to implement the required legislative reforms recommended by the report …

   [48]   Legislative Counsel, Hansard, Tuesday, 24 August 2021, the Hon R I Lucas, page 3955.

8. In relation to the DPP’s right to seek permission to appeal an interlocutory judgment, the Treasurer explained:[49]

   In line with recommendation 79 [of the Royal Commission] … the bill amends section 157 of the Criminal Procedure Act to give the DPP the right to bring an interlocutory appeal against a pre-trial ruling that has the effect of terminating or substantially weakening the prosecution’s case.  This clause can apply to other situations in the interests of justice.  The DPP’s current right of appeal is very limited, and the absence of such a right has led to unfavourable outcomes in the Courts.  The defendant already has a right to appeal interlocutory decisions at the completion of the trial under the Criminal Procedure Act.

   [49]   Legislative Counsel, Hansard, Tuesday, 24 August 2021, the Hon R I Lucas, page 3956.

9. As for the amendment to s 34P, the Treasurer said:[50]

   … the bill amends section 34P of the Evidence Act to increase the admissibility of discreditable conduct evidence. Discreditable conduct composes a propensity and similarity of account evidence. The royal commission recommended reform to the law governing the admissibility of discreditable conduct evidence. However, the South Australian law in this area is well settled and [it] is not necessary to adopt major reform. Instead, a minor amendment has been made, encouraging greater admission of this evidence. In order to admit this kind of evidence, section 34P(2) of the Evidence Act requires that its probative value substantially outweighs the prejudicial effect that it may have on the accused.  Clause 17 of the bill removes the word “substantially”.

   [50]   Legislative Counsel, Hansard, Tuesday, 24 August 2021, the Hon R I Lucas, page 3957.

10. Insofar as is relevant, the Criminal Justice Report produced by the Royal Commission addressed both tendency and coincidence evidence, joint trials and interlocutory appeals by the prosecution. 

11. For the purposes of determining the present appeal, it is not necessary to do other than identify the approach taken by the Royal Commission to these issues, together with the reasons it gave and the recommendations for reform it made, which influenced the approach taken by the South Australian Parliament. 

12. At times, the submissions of the Director suggested that this Court should have regard to the Criminal Justice Report of the Royal Commission to demonstrate that certain assumptions often made in connection with the common law were no longer well-founded. Whether or not that is so, it suggests a use for extrinsic materials well beyond the confirmation or determination of the meaning of the statutory provision insofar as that is permitted by s 16(1) of the Legislation Interpretation Act 2021 (SA).

13. The Royal Commission considered in some detail tendency and coincidence evidence, as well as joint trials.[51]  The Commission explained that the way the criminal justice system deals with allegations against one individual of sexual offending against more than one child is one of the most significant issues identified in connection with its criminal justice work. 

    [51]   Royal Commission into Institutional Reponses to Child Sexual Abuse, (Criminal Justice Report, August 2017) Executive Summary, p 65ff (Criminal Justice Report).

14. As the Royal Commission also explained,[52] where the only evidence of the abuse is the complainant’s evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred.  Though there may be evidence that confirms some of the surrounding circumstances, or evidence of the first complaint, the jury must, effectively, consider the account of one person against the account of another. 

    [52]   Criminal Justice Report, Executive Summary, p 65ff.

15. The Royal Commission considered the then recent ruling of the High Court in Hughes v The Queen,[53] finding that it addressed some but not all problematic issues.  The Commission also considered that a number of case studies and “Jury Reasoning Research” supported various propositions, including the absence of unfair prejudice to an accused in joint trials or where tendency evidence was admitted.  In particular, the Commission was satisfied that concerns about tendency or coincidence evidence carrying a high risk of unfair prejudice are misplaced and that the current law relating to tendency and coincidence evidence, as well as joint trials, should change to facilitate greater cross-admissibility of evidence and more joint trials in child sexual abuse matters.[54] 

    [53] (2017) 263 CLR 338.

    [54]   Criminal Justice Report, Executive Summary, p 70.

16. In connection with tendency and coincidence evidence, as well as joint trials, the Royal Commission described what were said to be unjust outcomes:[55]

    We are satisfied that there have been unjust outcomes in the form of unwarranted acquittals in institutional child sexual abuse prosecutions as a consequence of the exclusion of relevant evidence in the form of tendency and coincidence evidence, we are also satisfied that these unjust outcomes are not limited to prosecutions in relation to child sexual abuse in an institutional context.  The data we discussed above in relation to convictions and acquittals gives us good reason to be confident that this problem extends beyond the particular examples of prosecutions of child sexual abuse offences in institutional contexts that we have examined. 

    [55]   Criminal Justice Report, p 629.

17. As the Commission’s summary explained in connection with Recommendation 44:[56]

    Tendency or coincidence evidence is particularly important in child sexual abuse prosecutions which are, typically, ‘word against word’ cases.  We have examined a number of cases in which juries have been denied the opportunity to hear accounts that give the true picture of what is alleged to have happened.  We are satisfied that there have been unjust outcomes in the form of unwarranted acquittals because of the exclusion of tendency or coincidence evidence.

    [56]   Criminal Justice Report, Executive Summary, p 71.

Recommendation
44.	In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials.

We are satisfied that legislative reform is required.

Although the High Court’s decision in the Hughes appeal addresses the meaning of ‘significant probative value’ and resolves the difference between New South Wales and Victoria in how it is applied, we do not consider that it has resolved all the difficulties we have identified … .

1. The Royal Commission regarded it as “necessary to expressly exclude the common law” and, in addition, it was recommended that the statutory test contained in the Uniform Evidence Act should not require that the evidence “substantially outweigh” the risk of unfair prejudice.  A different approach was suggested, whereby a judge could exclude tendency or coincidence evidence if it was more likely than not to result in the trial being unfair in a manner that could not be cured by directions.[57]

   [57]   Criminal Justice Report, Executive Summary, pp 71-73.

2. The Royal Commission addressed the vital role played by appeals in the criminal justice system.[58]  As the Commission explained, appeals provide parties with an avenue to correct errors in individual matters as well as enabling appeal courts to provide guidance to trial courts, improving consistency across the criminal justice system. 

   [58]   Criminal Justice Report, Executive Summary, p 103.

3. The Royal Commission regarded interlocutory appeals as particularly important, because a trial judge may make orders that could have a significant impact on the prosecution case.  Only New South Wales, Victoria, the Australian Capital Territory and the Commonwealth provide a general right of appeal by the prosecution against interlocutory decisions made during the course of a trial. 

4. In the course of its substantive discussion, the Royal Commission explained that the prosecution was most likely to bring an interlocutory appeal if the judgment or order is likely to have a significant adverse effect on the prosecution case.  The example given was of an interlocutory appeal against a ruling that “tendency or coincidence evidence is inadmissible” and a “joint trial should be severed so that separate trials are required”.[59]

   [59]   Criminal Justice Report, p 336.

5. The Commission discussed R v PWD, where the accused was charged with ten offences against four boys.[60]  The accused was the principal, and the boys were students and boarders of a Catholic college in Bathurst, New South Wales.  In pre‑trial rulings, the trial judge excluded asserted tendency evidence and ordered separate trials.  Before the trials commenced, around a month after the ruling, the Court of Criminal Appeal heard argument.  The Court later allowed the interlocutory appeal by the DPP, overturning the evidentiary rulings and ordering a joint trial (at which the accused was acquitted).

   [60]   R v PWD (2010) 205 A Crim R 75 (Beazley JA, Buddin J and Barr AJ).

6. The Royal Commission reviewed the practices concerning interlocutory appeals across Australia:[61]

   [61]   Criminal Justice Report, pp 336-337.

   The provision in New South Wales is a general right of appeal, but, to appeal any decision or ruling on the admissibility of evidence, the DPP must show that the ruling eliminates or substantially weakens the prosecution’s case.[62]

   [62]   Criminal Appeal Act 1912 (NSW), s 5F(3A).

   In its submission in response to the Consultation Paper, the Victorian Government stated that interlocutory appeals in Victoria require leave and that more stringent rules apply to making interlocutory appeals after a trial has commenced to try to encourage issues to be resolved as early as possible and avoid disrupting a trial.[63]

   [63]   Victorian Government, Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation paper: Criminal justice, 2016, p 25.

   The Victorian Government identified three features of the New South Wales approach that have not been followed in Victoria:

   ·In New South Wales, appeals are restricted to judgments or orders, whereas the Victorian system takes a very broad approach to the definition of interlocutory decision. This avoids arguments regarding whether a decision is a ‘judgment or order’, and hence whether it can be appealed.

   ·In New South Wales, the accused and the prosecution are treated differently as to whether leave to appeal is required and as to the ability to appeal against key evidential points. In Victoria, the parties have equal statutory access to appeals, and leave is required in all cases to allow the Court of Appeal to control the use of interlocutory appeals on a consistent basis.

   ·In New South Wales, the judge may certify that a judgment or order is suitable for an interlocutory appeal. In Victoria, certification is a necessary precondition to the grant of leave to appeal but is limited to specific threshold issues which the certifying judge is best placed to decide.[64]

   In his submission in response to the Consultation Paper, the DPP for the Australian Capital Territory stated that the right of appeal in the Australian Capital Territory is limited to interlocutory orders or judgments and that there is probably no right to appeal rulings on evidence.[65]

   Queensland’s appeal provision is limited to the Attorney-General referring a point of law that has arisen under a ruling in relation to specific matters, including the quashing or staying of the indictment, the joinder of accused or joinder of charges and the deciding of questions of law, including the admissibility of evidence.[66]

   Western Australia has a specific provision relating to separate trial decisions, allowing both the prosecution and the defence to appeal orders either joining or refusing to join two or more matters in a single trial.[67] The provision provides that, if an accused unsuccessfully appeals an order for a joint trial, the joinder cannot then be a ground of appeal if the accused is convicted at the joint trial.

   In South Australia, the DPP may appeal an adverse pre-trial decision on any ground that involves a question of law alone or on any other ground with the permission of the Full Court of the Supreme Court.[68]

   [64]   Victorian Government, Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation paper: Criminal justice, 2016, p 25.

   [65]   Director of Public Prosecutions, Australian Capital Territory, Submission to the Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation paper: Criminal justice, 2016, p 16.

   [66]   Criminal Code (Qld), s 668A(1).

   [67]   Criminal Appeals Act 2004 (WA), s 26.

   [68]   Criminal Law Consolidation Act 1935 (SA), s 352(1)(b). This is a reference to the precursor to s 157(1)(c) of the CPA which, as has been seen, is concerned with issues antecedent to trial, or stays on the ground of abuse of process, see s 151.

1. The Royal Commission recommended that State and Territory governments introduce legislation to expand the right of the DPP to bring an interlocutory appeal in prosecutions involving child sexual abuse offences.  That issue was developed in its substantive analysis:[69]

   Given the significant role that interlocutory appeals have in correcting errors of law before trial, it is important that the DPP in each jurisdiction has adequate rights of interlocutory appeal to reduce the possibility of error in the trial. Given the right of appeal that a convicted person has after a conviction, there is less justification for such rights to be extended to accused persons.

   Interlocutory decisions may significantly reduce, and in some cases even destroy, the prosecution’s prospects of success in the prosecution. We consider that the prosecution’s interlocutory appeal rights should not be subject to a requirement for leave. We note that the New South Wales DPP appears to have exercised his interlocutory appeal rights, which do not require leave, with appropriate restraint.

   We received submissions suggesting that, despite certain differences in operation, the interlocutory appeal provisions in New South Wales and Victoria were working well. As such, we do not recommend that one jurisdiction’s provisions be used in preference to the other’s.

   However, we are satisfied that states and territories should, where necessary, expand the DPP’s right to bring an interlocutory appeal to a broad general right, with the following features. The DPP’s interlocutory appeal right should:

   ·apply to pre-trial judgments or orders and decisions or rulings on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case

   ·not be subject to a requirement for leave

   ·extend to ‘no case’ rulings at trial.

   [69]   Criminal Justice Report, p 341.

2. Importantly, the Commission also recommended that State and Territory governments work with their appellate courts and the Director of Public Prosecutions to ensure that those courts were sufficiently well-resourced to hear and determine interlocutory appeals in prosecutions involving child sexual abuse offences in a timely manner. 

3. These became Recommendations 79 and 80. 

4. The Director urged the Court to consider the work of the Royal Commission concerning the probative value of tendency and coincidence evidence, especially a large number of case studies and the work of Dr Gelb, who had undertaken a statistical analysis of 283 cases of institutional child sexual abuse.  This material, including the conclusions reached by Professor Hamer, were said to demonstrate that child sex offenders are what may be described as ‘specialised generalists’ who commit a range of offences but are more likely to commit their specialist offence, namely, a child sexual offence.[70]

   [70]   Criminal Justice Report, p 603.

5. The Director submitted that this material demonstrated that offending against children comprised a variety of offending behaviours and was not typified by any particular pattern or modus operandi. 

6. Whilst the work of the Royal Commission was self-evidently important and wide‑ranging, its use as extrinsic material is necessarily confined. 

7. Parliament’s reliance on the Commission’s Criminal Justice Report reveals that it informed the enlargement of the Director’s capacity to challenge judgments made on an interlocutory basis and to ease the admissibility of what may be described as similarity of account or coincidence evidence.  However, it is notable that the South Australian Parliament did not simply adopt the recommendations which were made.

8. Notwithstanding the attention devoted in the Royal Commission to tendency and coincidence evidence, as well as to joint trials, the only response was the removal of the word ‘substantially’ in s 34P(2)(a). No change was made to s 34P(2)(b) and what may be described as propensity or disposition evidence, being tendency evidence of the kind addressed in Hughes v The Queen.[71]

   [71]   Hughes v The Queen (2017) 263 CLR 338, in the context of the Uniform Evidence Acts.  See Bektasovski v R (2022) 407 ALR 125 regarding the recent amendments made to s 101 of the Evidence Act 1995 (NSW).

9. For reasons that the Treasurer did not explain in the course of his Second Reading Speech, the South Australian Parliament did not ensure that the Director’s power to pursue an interlocutory appeal applied broadly to “pre-trial judgments or orders and decisions or rulings on the admissibility of evidence”.[72]  The South Australian amendment applies only to “interlocutory judgments”. It was not specifically extended to incorporate ‘no case’ rulings made at trial. And, as is obvious, the new power conferred on the Director is, contrary to the recommendation made by the Royal Commission, explicitly made subject to a requirement to obtain permission to appeal.

   [72]   Recommendation 79, see for example, Criminal Justice Report, p 342.

10. Whilst the power in s 157(1)(e) does target an interlocutory judgment which destroys or substantially weakens the prosecution case, it adds the words “and, if correct, is likely to lead to abandonment of that charge”. The addition of these words is, to say the least, curious. It will be necessary to return to them.

11. Finally, and perhaps paradoxically, there is no hint in the Treasurer’s Second Reading Speech that additional resources were to be made available to the appeal court and the DPP to ensure sufficient resourcing to hear and determine interlocutory appeals in a timely manner before any trial is scheduled to start.  As the interstate cases demonstrate, interlocutory appeals come on with some urgency and not infrequently. It will be difficult 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 at fortnightly callovers.[73]  Whether additional resources will be allocated to meet these difficulties remains to be seen.

    [73]   See, for example, r 200.1ff of the Joint Criminal Rules 2022 (SA).

    The text of the DPP’s interlocutory appeal power

12. There are four components to the new appeal power conferred by ss 157(1)(e) and 157(3) of the CPA:

    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.

13. Although the Director ultimately only relied only on the second limb, s 157(3)(b), it is necessary to consider the meaning and content of the first limb, s 157(3)(a), as part of the process of construing the scope and operation of the provision as a whole.

    The meaning of “interlocutory judgment” – competence of this appeal

14. It is first necessary to address whether the ruling made by the primary judge can properly be described as an “interlocutory judgment” and, in consequence, whether the Director’s appeal is competent. 

15. The composite term “interlocutory judgment” is not defined in the CPA. The term is new to the CPA. It has no “established legal meaning” in this context which must be applied or displaced when determining its meaning according to orthodox principles of statutory construction.[74]  Those principles require that consideration be given to the operation of this term as part of the whole provision, which extends to the scope for granting permission. 

    [74]   Cf Baini v The Queen (2012) 246 CLR 469, [43].

16. For the purposes of determining this appeal, it is not necessary to reach any final conclusion on what is, or is not, an “interlocutory judgment” within the meaning of s 157(1)(e). It will be necessary to address the meaning of that term on a case-by-case basis as cases arise for decision. Nonetheless, some general observations should be made.

17. The ordinary meaning of the word “judgment” embraces a judicial decision on a substantive question or issue in contest between the parties and which concludes a proceeding or some identifiable part of it.  It is difficult indeed to distinguish between a judgment and an order.  In most contexts, they will carry the same meaning.  Both a judgment and an order are capable of being seen as a judicial decision on a substantive question or issue which concludes at least a part of a proceeding. 

18. 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.[75] 

    [75]   Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 (King CJ).

19. 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.[76]  Once a criminal trial is concluded, the trial court usually has no further role to play in the determination of guilt.[77]  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.

    [76]   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].

    [77]   R v Pacitti [2022] SASCA 108, [8]-[18].

20. Whilst the distinction is usually clear, it is not always easy to draw.

21. 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.

22. The ordinary meaning of the word “interlocutory” refers to something which is not, in any legal sense, “final”.[78]  Typically, but not always, it will occur before the conclusion to the proceeding, often before the trial commences. In South Australia, a criminal trial may start some considerable time before a jury is empanelled when the accused is first arraigned.[79] It is now usual for a range of evidentiary and other rulings to be made by the trial court pursuant to s 131 of the CPA, on the voir dire, during the period between the first arraignment and the empanelling of the jury so as to avoid delays once the jury is empanelled.[80]

    [78]   ‘Does the judgment or order, as made, finally dispose of the rights of the parties?’, see Licul v Corney (1976) 50 ALJR 439, 444 (Gibbs J); Carr v Finance Corp of Australia (1981) 55 ALJR 397.

    [79]   Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed); R v Pacitti [2022] SASCA 108 (Livesey P, Doyle and David JJA).

    [80] Section 131 of the CPA was designed to avoid the “notorious mischief” that unless questions relating to the admissibility of evidence or the conduct of the trial could be determined before the jury is empanelled, the jury might otherwise be kept waiting until these matters are addressed: Attorney-General’s Reference No. 1 of 1988 (1988) 49 SASR 1, 5 (King CJ, with whom Millhouse J agreed); R v Pacitti [2022] SASCA 108, [26] (Livesey P), [120]-[124] (Doyle and David JJA).

23. An important feature of many interlocutory decisions is that, theoretically at least, they are reviewable after they are made and until the proceeding is concluded.  In part, this may be because interlocutory decisions are often made on the basis of facts or evidence which has yet to be led and tested at trial.  The court is required to make its decision on what amounts to a preliminary or contingent factual basis. 

24. In the criminal court, there is a well-recognised reluctance to fragment a criminal proceeding, recognising that if an interlocutory ruling is material and wrong, a defendant can usually challenge it on appeal in the event of a conviction:[81]

    Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice …

    [81]   Sankey v Whitlam (1978) 142 CLR 1, 26 (Gibbs ACJ) 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].

25. 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.[82] 

    [82]   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).

26. 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. 

27. The use of the term “interlocutory judgment” in connection with a new right of appeal demonstrates that it is intended to permit the correction of material error by the Court of Appeal on an appeal by way of rehearing,[83] so that the prosecution can proceed with the benefit of any correction made pursuant to r 204.3 of the Joint Criminal Rules 2022 (SA):

    [83]   See r 204.2 of the Joint Criminal Rules 2022 (SA).

    204.3—Determination

    (1)Subject to any statutory provision to the contrary, on an appeal the Court may—

    (a)     set aside or amend the judgment or order the subject of the appellate proceeding;

    (b)     substitute the Court’s own judgment or order;

    (c)     remit the matter for rehearing or reconsideration;

    (d)     dismiss the appeal;

    (e)     make orders for the costs of the appeal or costs at first instance; or

    (f)     make such other or further order for the disposition of the appeal as it thinks fit. 

28. The new right of appeal is intended to enable the Court of Appeal to correct error without needing to have regard to considerations of double jeopardy. 

29. When considering the breadth of the term, it is necessary to consider the statutory context in which it is intended to operate.  It is also necessary to keep distinct what the term “interlocutory judgment” means and the circumstances in which permission to appeal may be granted.  Even if a decision can properly be described as an interlocutory judgment, that does not mean that the Court of Appeal should grant permission to appeal it. 

30. Nonetheless, at least in a general way, it can be seen that the term “interlocutory judgment” when used in s 157(1)(e) was intended to extend to an interlocutory judgment or order on a substantive question or issue that could have an important bearing on the prosecution case, see s 157(3)(a) of the CPA. By contrast, it will usually be difficult to describe incidental rulings about procedure or the admissibility of isolated or discrete pieces of evidence as “interlocutory judgment[s]” for the purposes of s 157(1)(e).

    Some South Australian authorities on “judgment”

31. Whilst there is some support for these views on the authorities which have in this State considered the meaning of the word “judgment”, they were decided in different statutory contexts and the legislation with which they were concerned has since been amended. For example, when considering the scope for the operation of the appeal power in s 50 of the Supreme Court Act 1935 (SA), in Legal Practitioners Complaints Committee v A Practitioner King CJ drew a distinction between judgments, orders or directions which determined substantive questions raised in the action or in interlocutory proceedings, and incidental rulings given in the course of hearing and determining those questions.[84]  King CJ held that there was no difference between an order and a direction.  The former Chief Justice gave as examples of incidental rulings that fell outside the scope of the appeal power decisions relating to adjournments, the time and place of a hearing, the admissibility of evidence, the exclusion or otherwise of witnesses and decisions made about submissions on matters of fact, law or procedure made during the course of a hearing. 

    [84]   Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127.

32. Since that decision, s 50 has been amended and by s 50(6) the word “judgment” is now defined to mean “an order or direction”.[85]  It is not necessary to decide whether, as a result, any change was made to the substance and effect of s 50.

    [85] Section 11 of the Statutes Amendment (New Rules of Civil Procedure) Act 2006 (SA) deleted s 50 of the Supreme Court Act and inserted a new section in a form similar to that which now appears, including sub-s (6).  The amendments were introduced following the introduction of new civil procedure rules, being the Supreme Court Civil Rules 2006 (SA), to “ensure that the statute book does not refer to discontinued practices or archaic terms” (Hansard, House of Assembly, Thursday 22 June 2006), p 635.

33. The approach taken by King CJ was later applied by Duggan J in Police v Dorizzi in the context of an appeal against a decision by a magistrate to exclude evidence when determining whether that decision was amenable to appeal pursuant to the Magistrates Court Act 1991 (SA).[86]  It is, however, noteworthy that there was a definition of the term “judgment” which did not extend to exclusionary rulings.[87]  The legislation was later amended but the same approach was again taken in McIlvar v Szwarcbord when dealing with the admissibility of evidence.[88]  In that case, White J had regard to a number of authorities, together with the subsequent amendment, before concluding that there was no right of appeal to a single judge of the Supreme Court concerning the admissibility of evidence because that kind of ruling could not properly be described as a “judgment” within the statutory definition.[89] Following that decision, s 3 was again amended so that the word “judgment” was defined to mean “an interlocutory order” which in turn was defined to include “an order or ruling relating to the admissibility or giving of evidence”.[90]

    [86]   Police v Dorizzi (2002) 84 SASR 416.

    [87]   Police v Dorizzi (2002) 84 SASR 416, [20] (Duggan J, with whom Debelle and Williams JJ agreed).

    [88]   McIlvar v Szwarcbord (2008) 186 A Crim R 106.

    [89]   McIlvar v Szwarcbord (2008) 186 A Crim R 106, [22]-[23] (White J, citing Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis [2003] SASC 397; cf R v Edwards [2007] SASC 289; see also Graziano v Graziano [2008] SASC 142).

    [90] Section 23 of the Statutes Amendment (Attorney-General's Portfolio) Act 2012 (SA) assented to 24 May 2012 amending s 3 of the Magistrates Court Act 1991 (SA), see the second reading speech (The Hon GE Gago, Thursday 15 March 2012) pp 590-592.

1. As has been explained, the requirements for permission to appeal an interlocutory judgment in South Australia do not follow the form of words used elsewhere. In particular, in s 157(3)(a) additional words were used, as emphasised below:

   (3)The [Court of Appeal] may only grant permission for an appeal under subsection (1)(e) if satisfied that—

   (a)     the interlocutory judgment destroys or substantially weakens the prosecution case in respect of any charge and, if correct, is likely to lead to abandonment of that charge; or

   (b)     it is otherwise in the interests of justice to do so.

2. The meaning of the first part of s 157(3)(a) is clear enough. There can be no doubt about the meaning of the word “destroys” when referring to the effect of the interlocutory judgment on the prosecution case. Interlocutory judgments or orders which could result in orders that may destroy the prosecution case include:

   1.Decisions made about whether there is a case to answer.

   2.Decisions made about whether a search warrant is valid, at least where the prosecution depends upon the evidence obtained pursuant to the exercise of the search warrant.

   3.Decisions made about the admissibility of what is alleged to be an admission or a voluntary confession, again where the prosecution depends upon the admission of the evidence.

3. This list is not exhaustive. It merely serves to demonstrate the range of decisions that may be made by a trial judge on an interlocutory basis which may result in orders that are capable of destroying the prosecution case. 

4. As for the phrase “substantially weakens”, in DPP v Paulino, the members of the Court described the word “substantially” as suggesting “something not very far short of elimination”, and something which is at least “very important” or of “major importance”.[121]

   [121] Director of Public Prosecutions v Paulino (2017) 54 VR 109, [9] (Weinberg JA), [50] (Priest JA). One may add to the analysis undertaken by the Victorian Court of Appeal in DPP v Paulino a reference to the recent decision of this Court where the meaning of the word “substantially” was addressed in the context of s 269C of the CLCA: Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135, [284] (Livesey JA, with whom Kourakis CJ [2] and Lovell JA [266] agreed). The Court held that in the phrase ‘substantially caused by self-induced intoxication’ the word did not mean “primary”.

5. Regrettably, by selecting the word “substantially”, Parliament used a word that is well-recognised as protean in nature, taking its colour from the context in which it appears.[122]  In this case, the word is preceded by the word “destroys” and it is followed by the phrase “and, if correct, is likely to lead to abandonment of that charge”.  The use of the word in this context demonstrates that it is intended to refer to an interlocutory judgment that is of major or critical importance, for if the judgment is correct, it is likely to lead to the abandonment of the charge.

   [122] Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135, [249] (Livesey JA).

6. Whether the interlocutory judgment is likely to lead to abandonment of the charge does not turn on any subjective belief or intention, still less a positive statement made by the DPP.  It is an evaluative question, being one which must be answered by the Court of Appeal having regard to the particular facts and circumstances of the case before it. 

7. Needless to say, very few incidental evidentiary or procedural rulings will be of such critical importance to a prosecution case that they are likely to lead to the abandonment of the prosecution.  Some examples have, however, earlier been given of interlocutory decisions that might be described as an “interlocutory judgment” which may have that effect.

8. In this case, the Director’s written submissions suggested reliance on both limbs of s 157(3). In argument, however, the Director relied only on s 157(3)(b). That was appropriate. Whatever the importance that might be attached to a ruling on cross-admissibility and the consequential order for separate trials, it cannot be said that, if correct, that ruling is of such critical importance that it is likely to lead to the abandonment of the prosecution of the charges. Nothing in the materials suggests that there would be any difficulty with separately prosecuting the charge relating to each complainant. The cases may conceivably be weaker if prosecuted separately, but there is no reason to think that they ought not or cannot be separately prosecuted.

9. That then leaves the second limb to s 157(3) and the considerations relevant to whether “it is otherwise in the interests of justice” to grant permission to appeal an interlocutory judgment, s 157(3)(b).

10. 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)).

11. It has long been recognised that a consideration of the interests of justice will require the judicial evaluation of a broad range of factors, having regard to the particular statutory context in which the inquiry must be undertaken.[123] In connection with the cognate phrase “purposes of justice”, Lord Donaldson MR has said these “are to ensure that the accused is convicted if guilty and acquitted if innocent”.[124]  Drawing on these, in Mickelberg (No 3) Malcolm CJ said:[125]

    The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has received a fair trial. The interests of justice also extend to the public interest in the due administration of justice.

    [123] BHP Billiton Ltd v Schulz (2004) 221 CLR 400, [172] (Gummow J).

    [124] R v Lambeth Metropolitan Stipendiary Magistrate; Ex Parte McComb [1983] QB 551, 564.

    [125] Mickelberg v The Queen (No 3) (1992) 8 WAR 236, 251.

12. 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. 

13. 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.

14. 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.[126]  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.

    [126] 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.

15. Nonetheless, there may be cases where the ruling addresses a substantive question or issue of law, evidence or procedure that is important to the conduct of the particular case or to the administration and practice of criminal law in South Australia.  Deciding questions such as these may address controversies that have developed but not previously been addressed, or which concern the operation of new legislation, or which affect the conduct of the trial or the likelihood of an appeal following the trial.  Accordingly, it may be relevant to show that the point is one which is likely to quell an important controversy or which is likely to reduce the time associated with a trial, or a significant portion of it, or indeed trials of a particular kind generally. 

16. However, where the point raised by the DPP depends on the evidence which might ultimately be led at the trial, 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.

17. These considerations are not exhaustive. Whether they arise will depend on the particular facts and circumstances of any case. They are merely examples of issues that may be thought relevant to whether it will otherwise be in the interests of justice for the Court of Appeal to exercise its discretion to entertain an appeal against an interlocutory judgment under s 157(3)(b) of the CPA.

18. In this case, the Director relied on the fact that this is the first occasion the Court has had to consider ss 157(1)(e) and 157(3) of the CPA. Respectfully, it is doubtful whether that is a matter of any great weight. More important is the fact that the trials in these matters have already been adjourned to next year. Whilst lodging the appeal has apparently caused delay, granting permission will not add to it.

19. It is relevant that the appeal concerns serious charges, carrying maximum penalties of life imprisonment.  As a corollary, the prosecution and defence of these charges is important to the prosecution, the defendant and the community, including the complainants. 

20. In addition, whilst it cannot be said that the order for separate trials is of critical importance to the prosecution of these charges, whether there is a joint trial is a matter of real importance to the prosecution of these charges.  If there should be one trial rather than two, it will be in the public interest to order that there be one trial as it is, at least, likely that one trial rather than two trials will entail some saving in the time and cost associated with the prosecution of these charges, without any relevant prejudice to the defence.

21. Finally, and as will be seen, the asserted error is readily apparent from the reasons reviewed earlier.  The point raised by the DPP is meritorious.  It is preferable that serious charges be prosecuted with the benefit of rulings on cross-admissibility and severance that are free from error and in accord with the law.

22. On balance, it is otherwise in the interests of justice to entertain the DPP appeal in this matter.  Permission to appeal should be granted.

    The appeal in this case – whether the charges should be separately tried

23. The DPP’s contention was that the evidence of each complainant is cross-admissible and has a permissible use under s 34P of the Evidence Act because the evidence is relevant to improbability or coincidence reasoning, otherwise described as similarity of account reasoning.

24. The defence contended that the ruling made by the primary judge fell within her discretion. It was contended that her decision was reasonable and demonstrated no misapprehension regarding the evidence proposed to be led.

25. The parties were content to argue the case on the basis that whether there has been an error made by the primary judge in connection with her rulings on cross‑admissibility and separate trials must be determined according to the principles described in House v The King.[127]

    [127] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). See also Director of Public Prosecutions v Paulino (2017) 54 VR 109, [51] (Priest JA) and the cases cited.

26. In the course of the argument, the Director tended to deprecate the use of a list of issues by which the issue of similarity of account was evaluated.  It is, respectfully, difficult to see why that method of analysis should be criticised.  It is not the fact of a list but what is listed and how the list is used that is important.

27. One may start, at least in a general way, with the approach taken at common law to the similarity of account reasoning in Hoch v The Queen:[128]

    Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force. See Perry v. The Queen; Sutton v. The Queen; Reg. v. Boardman. That strength lies in it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

    …

    Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association (R. v. Sims) or as corroboration (Reg. v. Kilbourne) but the better view would seem to be that it is relevant to prove the commission of the disputed acts. See Boardman, per Lord Hailsham and Lord Cross; Sutton, per Deane J. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well-known passage in the speech of Lord Wilberforce in Boardman:

    This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.

    Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible. When the happenings which are said to bear to each other the requisite degree of similarity are themselves in issue the central question is that of the improbability of similar lies: see Sims; Boardman. See also Rupert Cross, "R. v. Sims in England and the Commonwealth", Law Quarterly Review; Piragoff, Similar Fact Evidence.

    (Citations omitted.)

    [128] Hoch v The Queen (1998) 165 CLR 292, 294-295 (Mason CJ, Wilson and Gaudron JJ).

28. It is necessary to consider the admissibility and probative value of the evidence.[129] The probative value of evidence ordinarily rests on whether its admission is capable of rationally affecting, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[130]  The probative value of the evidence must be assessed having regard to the likely use to be made of it. That is, by having regard to the purpose for which the prosecution proposes to adduce the evidence.

    [129] R v Nieterink (1999) 76 SASR 56, [30]-[35] (Doyle CJ).

    [130] Stokes v Samuels (1973) 5 SASR 18, 48; Re Van Beelen (1974) 9 SASR 163, 193; Palmer v The Queen (1998) 193 CLR 1, [55] (McHugh J); Smith v The Queen (2001) 206 CLR 593, [14]; Day v The Queen (2021) 289 A Crim R 346, [43].

29. The probative value of the evidence in this case lies in the improbability of the complainants giving accounts of what occurred to them with the requisite degree of similarity unless what they are describing happened to them.[131]  That is, whether:[132]

    … the level of similarity between the accounts of the … complainants has such a degree of similarity to give rise to only two possible hypotheses; collusion and concoction, or, that the accounts are true because it is so improbable that independent of one another they could have, as a matter of coincidence, been independently fabricated, imagined or otherwise mistaken.

    [131] Hoch v The Queen (1998) 165 CLR 292, 295 (Mason CJ, Wilson and Gaudron JJ).

    [132] Sexton v The Queen [2022] SASCA 73, [138] (Livesey P, David JA and Stanley AJA).

30. When looking to the requisite points of similarity between the accounts of these complainants, the inquiry is therefore concerned with the extent to which the similarities (or otherwise) bear on the improbability of collusion, concoction or coincidence by the complainants.  That is to say, the court must consider as a matter of common human experience the inherent unlikelihood that two children, with different mothers, would both happen to fabricate or imagine that they had been sexually abused by the same man.  That each complainant was describing the corruption of an otherwise ordinary relationship by the same person was relevant to the determination of the relevance, admissibility, and probative value of their accounts.[133]  Indeed, the requisite analysis must recognise that allegations of sexual abuse against children are well outside ordinary human experience.[134] 

    [133] Sexton v The Queen [2022] SASCA 73, [121]-[139].

    [134] Slape v The Queen [2022] SASCA 91, [58].

31. Whilst what each complainant described by way of the particular offending is relevant, it is necessary to look to the whole of their accounts, in context.  No longer is it necessary to point to “special”, “particular” or “unusual” features to establish admissibility.[135] Rather, one may commence with the fact that the complainants were both female children, describing allegations of sexual abuse committed by their step-father, during the period he was in a relationship with their mothers. Contrary to the Director’s submission, however, that alone is not necessarily sufficient to justify cross-admissibility on the basis of similarity of account reasoning.

    [135] The Queen v Denis Bauer (A Pseudonym) (2018) 266 CLR 56, [48].

32. In this case, one may also bring to account that both girls were describing as part of their accounts that they were pre-pubescent, and that the alleged offending was preceded by what may be described as a period of grooming.  The offending against each girl involved a number of similarities, and was associated with, at the least, showing a sex toy. Each was rendered submissive by a combination of intimacy and warnings not to tell anyone.  In addition, in the circumstances of this case, the number and regularity of the alleged incidents each week, when combined with the similar locations selected (home and office), often orchestrated in brazen circumstances, were capable of bearing on the improbability of coincidence unless what the complainants were describing had occurred to them. 

33. The rejection by the primary judge of a number of these features as relevant to the requisite inquiry reveals error in that, respectfully, her Honour failed to have regard to relevant considerations. 

34. When undertaking the evaluation required by s 34P(2)(a) the court must address any prejudicial effect on the defendant and whether the probative value of the evidence outweighs that prejudicial effect.

35. De Jesus v The Queen concerned charges of rape against two women.  Gibbs CJ, Brennan and Dawson JJ endorsed the approach taken by Brennan J in Sutton v The Queen:[136]

    When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted…

    … Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials …

    [136] De Jesus v The Queen (1986) 61 ALJR 1, 7 citing R v Sutton (1984) 152 CLR 528, 541.

1. That approach was again reaffirmed by Brennan and Dawson JJ in R v Hoch:[137]

   If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts — and there usually is such a risk in sexual cases — separate trials should be ordered: De Jesus v. The Queen.

   [137] R v Hoch (1988) 165 CLR 292, 298.

2. Drawing on the findings of the Royal Commission,[138] the Director submitted that the risk of unfair prejudice has been overstated.  This case is not the occasion to resolve that question.  Regardless, the probative value of the proposed evidence clearly outweighs its prejudicial effect in this case.

   [138] Criminal Justice Report, p 634.

3. It is difficult to determine with any precision what practical difference the removal of the word “substantially” has on the application of s 34P(2)(a) of the Evidence Act.  Apart from the obvious point that the removal of this word was intended to ease the admissibility of evidence, in accordance with the recommendation made by the Royal Commission, the difference is clearly one of degree. 

4. Whereas formerly, the probative value of the proposed evidence was required to substantially outweigh any prejudicial effect, it must now simply outweigh any prejudicial effect.  It is, for example, not necessary to demonstrate that the evidence has a “strong degree of probative force” or that the probative force “clearly transcends its merely prejudicial effect”.[139] The evaluation now required by s 34P(2)(a) is likely to come down in favour of admissibility whenever the evidence going to similarity of account can be identified as having real probative value notwithstanding that there may also be an identifiable prejudicial effect.

   [139] Phillips v The Queen (2006) 225 CLR 303, [54], admittedly addressing “similar fact” evidence.

5. It is, as a result, necessary to review earlier authorities on s 34P(2)(a) with this qualification in mind.[140]

   [140] For example, MDM v R (2020) 136 SASR 360, [63]-[82] (Peek J).

6. In the circumstances of this case, there was a sufficient similarity in the accounts of each complainant, viewed in their proper context, to warrant the conclusion that they had a probative value that outweighed any prejudicial effect they had in connection with the prosecution of each charge for the purposes of s 34P(2)(a) of the Evidence Act.  Indeed, the probative value of each account substantially outweighed any prejudicial effect it may have had.

7. The outcome of undertaking the analysis required by s 34P(2)(a) of the Evidence Act should have resulted in the conclusion that the accounts of each complainant were cross-admissible. Accordingly, s 102(6)(a) of the CPA required that the charges be tried together.

8. The appeal should be allowed.

   The orders that should be made

9. The Court has power under r 204.3 of the Joint Criminal Rules 2022 (SA) to set aside the order the subject of this appeal and substitute its own order.  The orders that should be made are:

   1.The order for separate trials made in the District Court on 31 March 2023 is set aside.

   2.The Rule 49 application dated 6 June 2022 seeking severance of counts is dismissed.

   3.The charges on the Information dated 23 March 2022 will be tried together.

   The application for judicial review

10. As the appeal has been allowed, it is not necessary to determine whether or to what extent judicial review should have been refused because the alternative remedy of an interlocutory appeal was available:[141]

    Where Parliament has provided by statute appeal procedures, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.

    [141] R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835, 852 (Lord Scarman), cited with approval by the Western Australian Court of Appeal in Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501, [135].

11. The cases demonstrate that, depending on the statutory context, this may be an issue of some complexity:[142]

    The obvious case in which the discretion might be exercised against a plaintiff seeking judicial review is where that plaintiff has a statutory right of appeal against the relevant decision, but seeks instead to judicially review that decision. Depending upon limitations that might exist in relation to the right of appeal, an appeal may be just as efficacious as judicial review proceedings in addressing the plaintiff’s concerns. Indeed, given that appeals generally extend to merits based challenges to a decision, they are often more efficacious than judicial review.

    [142] McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [81] (Doyle J). See [79]-[82] and the cases there cited. See also Ibrahim v Medical Board of Australia [2015] NSWCA 207, [75] referring to “the well-established principle that relief of the kind available under s 69 of the Supreme Court Act 1970 (NSW) will not generally be granted if there is another equally effective and convenient remedy, such as here, the right of appeal from a decision of the Board to the Tribunal…”; Victorian Workcover Authority v BSA Limited & Ors [2017] VSCA 276, [10].

12. The Director’s application for judicial review must be dismissed. 

    Conclusion

13. The DPP should be granted permission to appeal, the appeal should be allowed, and orders made as indicated.

14. The parties must be heard on whether any order for costs should be made in connection with the dismissal of the application for judicial review.